[Federal Register: October 13, 2009 (Volume 74, Number 196)]
[Proposed Rules]
[Page 52611-52664]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13oc09-17]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revised Critical Habitat
for the Arroyo Toad (Anaxyrus californicus); Proposed Rule
[[Page 52612]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0069; 92210-1117-0000-B4]
RIN 1018-AV89
Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for the Arroyo Toad (Anaxyrus californicus)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise designated critical habitat for the arroyo toad (Anaxyrus
californicus), pursuant to the Endangered Species Act of 1973, as
amended (Act). The previous final rule designated 11,695 acres (ac)
(4,733 hectares (ha)) of critical habitat and was published in the
Federal Register (FR) on April 13, 2005. We now propose to designate
approximately 109,110 ac (44,155 ha) of lands located in Santa Barbara,
Ventura, Los Angeles, San Bernardino, Riverside, Orange, and San Diego
Counties, California, which, if finalized as proposed, would result in
an increase of approximately 97,415 ac (39,422 ha) of critical habitat.
DATES: We will consider comments we receive on or before December 14,
2009. We must receive requests for public hearings, in writing, at the
address shown in the FOR FURTHER INFORMATION CONTACT section by
November 27, 2009.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-R8-
ES-2009-0069.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2009-0069, Division of Policy and Directives
Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive,
Suite 222, Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: For general information on the
proposed designation and information about the proposed revised
designation in Santa Barbara and Ventura Counties, northern Los Angeles
County, and the desert portion of San Bernardino County, contact Diane
Noda, Field Supervisor, or Michael McCrary, Listing and Recovery
Coordinator, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 2493 Portola Road, Suite B, Ventura, CA 93003; telephone (805)
644-1766; facsimile (805) 644-3958.
For information about the proposed revised designation in the
remaining portions of Los Angeles and San Bernardino Counties, as well
as Riverside, Orange, and San Diego Counties, contact Jim Bartel, Field
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011;
telephone (760) 431-9440; facsimile (760) 431-9624.
If you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend any final action resulting from this proposed revised
rule to be based on the best scientific and commercial data available
and be as accurate and as effective as possible. Therefore, we request
comments or information from the public, other government agencies,
Tribes, the scientific community, industry, or other interested parties
concerning this proposed rule. We particularly seek comments
concerning:
1. The reasons why we should or should not revise the designation
of habitat as ``critical habitat'' under section 4 of the Endangered
Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.),
including whether there are threats to the species from human activity,
the degree of which can be expected to increase due to the designation,
and whether that increase in threat outweighs the benefit of
designation such that the designation of critical habitat is not
prudent;
2. Specific information on:
The amount and distribution of arroyo toad habitat
included in this proposed revised rule,
What areas within the geographical area occupied by the
species at the time of listing contain features essential to the
conservation of the species and why, and
What areas outside the geographical area occupied by the
species at the time of listing are essential for the conservation of
the species and why;
3. Land-use designations and current or planned activities in the
subject areas and their possible effects on proposed revised critical
habitat;
4. Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities, and the benefits of including or excluding areas that exhibit
these impacts;
5. Comments or information that may assist us in identifying or
clarifying the primary constituent elements and the resulting physical
and biological features essential to the conservation of the arroyo
toad;
6. How the proposed revised critical habitat boundaries could be
refined to more closely circumscribe the landscapes identified as
essential;
7. Information regarding Trabuco Creek in Orange County and any
special management considerations or protection that any essential
physical or biological features in this area may require;
8. Information regarding the San Diego River in San Diego County
from just below El Capitan Reservoir downstream to the confluence with
San Vicente Creek, and any special management considerations or
protection that any essential physical or biological features in this
area may require;
9. Whether the potential exclusion under section 4(b)(2) of the Act
of non-Federal lands covered by the Western Riverside County Multiple
Species Habitat Conservation Plan from final revised critical habitat
is or is not appropriate and why;
10. Whether the potential exclusion under section 4(b)(2) of the
Act of non-Federal lands covered by the San Diego Multiple Species
Conservation Program-City and County of San Diego's Subarea Plans from
final revised critical habitat is or is not appropriate and why;
11. Whether the potential exclusion under section 4(b)(2) of the
Act of non-Federal lands covered by the Coachella Valley Multiple
Species Habitat Conservation Plan from final revised critical habitat
is or is not appropriate and why;
12. Whether the potential exclusion under section 4(b)(2) of the
Act of non-Federal lands covered by the Orange County Central-Coastal
Subregional Habitat Conservation Plan/Natural Community Conservation
Plan from final revised critical habitat is or is not appropriate and
why;
13. Whether the potential exclusion under section 4(b)(2) of the
Act of non-Federal lands covered by the Southern Orange County Natural
Community Conservation Plan/Master Streambed Alteration Agreement/
Habitat Conservation Plan from final revised critical habitat is or is
not appropriate and why;
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14. Whether the conservation needs of the arroyo toad can be
achieved or not by limiting the designation of final revised critical
habitat to non-Tribal lands and why;
15. Whether the potential exclusion under section 4(b)(2) of the
Act of Tribal lands of the Rincon Band of Luise[ntilde]o Mission
Indians from final revised critical habitat is or is not appropriate
and why;
16. Whether the potential exclusion under section 4(b)(2) of the
Act of Tribal lands of the Pala Band of Luise[ntilde]o Mission Indians
from final revised critical habitat is or is not appropriate and why;
17. Whether the potential exclusion under section 4(b)(2) of the
Act of Tribal lands of the Sycuan Band of the Kumeyaay Nation from
final revised critical habitat is or is not appropriate and why;
18. Whether the potential exclusion under section 4(b)(2) of the
Act of Tribal lands of the Capitan Grande Band of Diegueno Mission
Indians from final revised critical habitat is or is not appropriate
and why;
19. Whether the potential exclusion under section 4(b)(2) of the
Act of Tribal lands of the Mesa Grande Band of Diegueno Mission Indians
from final revised critical habitat is or is not appropriate and why;
20. Whether our exemption under section 4(a)(3)(B) of the Act of
the lands on Department of Defense land at Marine Corps Base, Camp
Pendleton, in San Diego County; Fallbrook Naval Weapons Station in San
Diego County; and Fort Hunter Liggett Military Reservation in San Luis
Obispo County is or is not appropriate, and why;
21. Information on any quantifiable economic costs or benefits of
the proposed revised designation of critical habitat;
22. Whether the benefit of exclusion of any other particular area
not specifically identified above outweighs the benefit of inclusion
under section 4(b)(2) of the Act;
23. Information on the currently predicted effects of climate
change on the arroyo toad and its habitat;
24. Any foreseeable impacts on energy supplies, distribution, and
use resulting from the proposed revised designation and, in particular,
any impacts on electricity production, and the benefits of including or
excluding any particular areas that exhibit these impacts; and
25. Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Our final determination concerning revised critical habitat for the
arroyo toad will take into consideration all written comments received
during the comment period, including comments requested from peer
reviewers, comments received during a public hearing should one be
requested, and any additional information we receive during the 60-day
comment period. Our final determination will also consider all written
comments and any additional information we receive during the comment
period for the draft economic analysis. All comments will be included
in the public record for this rulemaking. On the basis of peer reviewer
and public comments, we may, during the development of our final
determination, find that areas within those proposed do not meet the
definition of critical habitat, that some modifications to the
described boundaries are appropriate, or that areas are or are not
appropriate for exclusion under section 4(b)(2) of the Act.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov. Please include
sufficient information with your comment to allow us to verify any
scientific or commercial data you submit.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
You may obtain copies of the proposed revised rule by mail from the
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT)
or by visiting the Federal eRulemaking Portal at http://
www.regulations.gov.
Background
It is our intent to discuss only those topics directly relevant to
the revised designation of critical habitat in this proposed rule.
Additional information on the arroyo toad may also be found in the
final listing rule published in the Federal Register on December 16,
1994 (59 FR 64859), the ``Recovery Plan for the Arroyo Southwestern
Toad'' (recovery plan; Service 1999), and the designation of critical
habitat for the arroyo toad published in the Federal Register on April
13, 2005 (70 FR 19562). These documents are available on the Ventura
Fish and Wildlife Office and Carlsbad Fish and Wildlife Office Web
sites at http://www.fws.gov/ventura and http://www.fws.gov/carlsbad.
However, please note that this proposed rule incorporates new
information on the distribution of arroyo toads that became available
since the 2005 final critical habitat designation for this species.
Taxonomy and Nomenclature
On December 16, 1994, we published a final rule listing the arroyo
southwestern toad (Bufo microscaphus californicus) as endangered (59 FR
64859). This animal, originally described as Bufo cognatus californicus
(Camp 1915, p. 331), has consistently been treated as a distinct taxon.
However, its rank as a subspecies or species and taxonomic affiliations
with other species has changed several times since it was described.
Myers (1930, p. 75) elevated it to species rank as Bufo californicus
citing morphological, vocalization, and ecological data to distinguish
it from B. cognatus. Subsequent to Myers' paper, other authors again
relegated the animal to subspecies rank aligned with various other
species of Bufo. The name in use at the time of listing, Bufo
microscaphus californicus, was published by Stebbins (1951, p. 275).
Since the toad was listed, an analysis of allozyme data (Gergus
1998, p. 322) supports recognition of Bufo californicus as separate
from B. microscaphus. In addition, a phylogenetic analysis of
comparative anatomical and molecular genetic data for amphibians (Frost
et al. 2006, p. 363) segregated the Nearctic taxa of Bufo as the genus
Anaxyrus and published the combination Anaxyrus californicus, the
arroyo toad. This treatment is accepted by the Committee on Standard
English and Scientific Names of the American Society of Ichthyologists
and Herpetologists, The Herpetologists' League, and the Society for the
Study of Amphibians and Reptiles (Frost et al. 2008, p. 3).
In light of these changes and their acceptance by the above
scientific authorities, we are proposing to amend the List of
Threatened and Endangered Wildlife at 50 CFR 17.11 to identify the
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listed entity as ``arroyo toad (Anaxyrus californicus).'' This change
does not alter the description or distribution of the animals.
Species Description
The arroyo toad is a small, dark-spotted toad of the family
Bufonidae. Its coloration ranges from light olive green or gray to
light brown with a distinctive light-colored, V-shaped stripe across
the head and the eyelids. The belly is white or buff and often lacks
dark blotches or spots (Stebbins 2003, p. 212). The species is endemic
to the coastal plain and mountains of central and southern California,
and northwestern Baja California, Mexico, from near sea level to about
8,000 feet (ft) (2,440 meters (m)) in elevation. For a detailed
description of the species, see the recovery plan and references cited
within the plan (Service 1999, pp. 1-119), and information in previous
Federal Register notices, proposed rules, and final rules (59 FR 64859,
December 16, 1994; 66 FR 9414, February 7, 2001; 69 FR 23254, April 28,
2004; 70 FR 19562, April 13, 2005). In addition to the recovery plan,
important sources for information on the biology of the arroyo toad
include: Sweet (1992, pp. 1-198; 1993, pp. 1-73); Campbell et al.
(1996, pp. 1-46); Griffin et al. (1998, pp. 1-66); Griffin and Case
(2001, pp. 633-644); Holland and Sisk (2001); and Ramirez (2002a, pp.
1-62; 2002b; 2002c; 2003, pp. 1-101).
Life History
Breeding typically occurs from February to July on streams with
persistent water (Griffin et al. 1999, p. 1). Males may breed with
several females in a season; however, female arroyo toads release their
entire clutch of eggs as a single breeding effort and probably do not
produce a second clutch during the mating season. Eggs are deposited
and tadpoles develop in shallow pools with minimal current and little
or no emergent vegetation. The substrate in these pools is generally
sand or fine gravel overlain with silt. The eggs hatch in 4 to 5 days
and the tadpoles are immobile for an additional 5 to 6 days. Tadpoles
then begin to disperse from the pool margin into the surrounding
shallow water, where they spend an average of 10 weeks. Peak
metamorphosis occurs during June and July in the northern part of the
arroyo toad's range, and from late April through June farther south,
although it could occur later, particularly at higher elevations
(Holland 2000, in litt. p. 8). After metamorphosis, the juvenile arroyo
toads remain on the bordering gravel bars until the pool dries out
(usually from 8 to 12 weeks depending on the site and rainfall). Most
individuals become sexually mature by the following spring (Sweet 1992,
p. 52).
Arroyo toad tadpoles feed on loose organic material such as
interstitial algae, bacteria, and diatoms. They do not forage on
macroscopic vegetation (Sweet 1992, p. 82; Jennings and Hayes 1994, p.
56). Juvenile arroyo toads feed on ants almost exclusively (Service
1999, p. 36). By the time they reach 0.7 to 0.9 inch (in) (1.78
centimeters (cm)) in length, they consume beetles along with ants
(Sweet 1992, p. 99; Service 1999, p. 36). Adult arroyo toads probably
consume a wide variety of insects and arthropods including (but not
limited to) ants, beetles, spiders, larvae, and caterpillars.
Geographic Range
The historical and current range of the arroyo toad extends from
the Salinas River Basin southward through the Santa Ynez, Santa Clara,
and Los Angeles River basins (Sweet 1992, p. 18), to Orange, Riverside,
and San Diego Counties (Jennings and Hayes 1994, p. 54) and southward
to the Arroyo San Simeon system, Baja California, Mexico (Service 1999,
p. 12; Ramirez 2007, p. 5). Populations also occur on the desert slopes
of both the San Gabriel Mountains (in Little Rock Creek in Los Angeles
County) and the San Bernardino Mountains (in the Mojave River and in
its tributaries, Little Horsethief and Deep Creeks, in San Bernardino
County) (Sweet 1992, p. 18; Jennings and Hayes 1994, p. 54).
At the time of listing (59 FR 64859; December 16, 1994), arroyo
toads were believed to be extirpated from the Salinas River Basin. In
1996, arroyo toads were found during surveys on the Fort Hunter Liggett
Military Reservation approximately 40 miles (mi) (64 kilometers (km))
downstream of the historical Santa Margarita arroyo toad locality (U.S.
Army Reserve 2004, pp. 5-10). In 1997, arroyo toads were detected along
a 17-mi (27-km) stretch of the San Antonio River. The Army surveyed
approximately 6 mi (9.6 km) of the San Antonio River on the Military
Reservation in 2002 and estimated there were as many as 7,000 arroyo
toad larvae (tadpoles) in the area (U.S. Army Reserve Command 2004, p.
12). We believe this population was present but undetected on Fort
Hunter Liggett at the time of listing for the following reasons: (1)
Annual surveys (U.S. Army Reserve 2004, p. 38) indicate there is
suitable breeding and upland habitats for this large, robust
population; and (2) given that the nearest extant population of arroyo
toads is 150 mi (240 km) southeast of Fort Hunter Liggett in Santa
Barbara County, it is unlikely that arroyo toads could have dispersed
and newly colonized the Fort Hunter Liggett area by 1996, just 2 years
subsequent to the species being listed in 1994. Therefore, we consider
the population on Fort Hunter Liggett to have existed in 1994 and to
represent the northernmost limit of the species' range at listing and
currently. The geographical area occupied by the species at the time it
was listed is the same as the species' current range in the coastal
streams extending from Monterey County southward to San Diego County,
and extending eastward into the riparian (along the shore of a river,
stream, or lake) environments of San Bernardino and Riverside Counties.
Arroyo toads have been extirpated from approximately 75 percent of
the habitat they originally occupied (Sweet 1992, p. 189; Jennings and
Hayes 1994, p. 57; Campbell et al. 1996, p. 2). At present, arroyo
toads are limited to isolated populations primarily in the headwaters
of coastal streams. The species is likely restricted naturally as a
result of specific habitat requirements for breeding and development
(Service 1999, p. 39). These natural restrictions, coupled with the
small sizes of many arroyo toad populations, make them particularly
vulnerable to the negative effects of human-induced changes to their
habitat (Jennings and Hayes 1994, p. 57).
Habitat
Stream order, elevation, and floodplain width appear to be
important factors in determining habitat suitability (Sweet 1992, pp.
24-26; Griffin et al. 1999, pp. 1-3). Stream order ranks the size and
potential power of streams. The smallest channels in a watershed with
no tributaries are referred to as first-order streams. When two first-
order streams unite, they form a second-order stream; when two second-
order streams unite, they form a third-order stream, and so on. Fifth-
and sixth-order streams are usually larger rivers, while first- and
second-order streams are often small, steep, or intermittent. In the
northern portion of the range, arroyo toads are found on third- to
sixth-order streams (Sweet 1992, p. 24), while in the central and
southern portion of the range, arroyo toads are found in first- to
sixth-order streams (Service 1999, p. 32).
Optimal breeding habitat consists of low-gradient sections of slow-
moving streams with shallow pools, nearby sandbars, and adjacent stream
terraces. Arroyo toads breed and deposit egg masses in the shallow,
sandy pools of these streams, which are usually
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bordered by sand-gravel flood-terraces. Breeding sites favored by adult
arroyo toads have clear water in shallow (less than 12 in (30 cm) deep)
pools (Sweet 1992, p. 28). Optimal breeding sites also have flow rates
less than 1.97 in (5 cm) per second and bottoms composed of sand or
well-sorted, fine gravel, although a significant component of large
gravel or cobble may also be present (Sweet 1992, p. 37).
Stream terrace habitat consisting of alluvial bars and terraces
that may have established cottonwoods (Populus spp.), oaks (Quercus
spp.), or willows (Salix spp.) and almost no grass and herbaceous cover
at ground level are extremely important for arroyo toads prior to,
during, and after the breeding season (Griffin et al. 1999, p. 45;
Sweet 1992, pp. 28-49). Areas that are used by juveniles consist
primarily of sand or fine gravel bars with varying amounts of large
gravel or cobble and adjacent stable sandy terraces and oak flats.
Juvenile arroyo toads favor areas that are damp and have some
vegetation cover (less than 10 percent), which offer refugia and
thermal characteristics that are needed for juvenile survival and rapid
growth (Campbell et al. 1996, p. 12). Bare sand and gravel bars may
support large numbers of juvenile toads, but survivorship can be
reduced due to high levels of predation (Sweet 1992, p. 113).
Adult arroyo toads are often found on sandy alluvial terraces
adjacent to the stream that may be sparsely-to-heavily vegetated with
brush and trees, such as mulefat (Baccharis spp.), California sycamore
(Platanus racemosa), cottonwoods, coast live oak (Quercus agrifolia),
and willow (Campbell et al. 1996, pp. 12-13). The understory of stream
terraces may consist of scattered short grasses, herbs, and leaf
litter, with patches of bare or disturbed soil, or have no vegetation
at all. When foraging, juvenile and adult arroyo toads are often found
around the drip lines of oak trees (Sweet 1992, pp. 45-46; Campbell et
al. 1996, p. 10). When active at night, arroyo toads can often be
observed near ant trails feeding on passing ants and other prey.
Upland habitats used by arroyo toads during both the breeding and
non-breeding seasons include alluvial scrub, coastal sage scrub,
chaparral (shrubby plants adapted to dry summers and moist winters),
grassland, and oak woodland. Within terrace and upland habitats, arroyo
toads aestivate (a state of dormancy similar to hibernation) in burrows
during the non-breeding season, which usually starts in the late summer
and extends from August to January (Ramirez 2003, p. 46). In habitat
utilization studies conducted by Ramirez (2007, pp. 11-14) from 1999 to
2006 in the West Fork Mojave River and Grass Valley Creek areas, arroyo
toads were generally found burrowed within sandy or loamy substrates
with no associated canopy cover, or within mulefat scrub or arroyo
willow (Salix lasiolepis) patches. The majority of individuals tracked
in these studies burrowed immediately adjacent to the active channel or
on sandy terraces within riparian habitat located within flood-prone
areas; however, toads were also found to use upland habitats up to
1,063 ft (324 m) from the active channel (Ramirez 2007, p. 13). In his
2005 study, Ramirez (2007, p. 93) observed several arroyo toad
individuals burrowed in stable terrace habitats dominated by Great
Basin sage scrub and Utah junipers (Juniperus osteosperma). At Little
Rock Creek on the desert slopes of the San Gabriel Mountains, arroyo
toads burrowed in areas closest to the creek that retained higher soil
saturation and were cooler (Ramirez 2002a, p. 50). Griffin et al.
(1999, p. 45) noted that sands are the preferred burrowing substrate
for both male and female arroyo toads, confirming the importance of
natural hydrologic regimes that maintain sand and fine sediment
deposition across the floodplain.
Dispersal
Arroyo toad movement patterns also vary between watersheds or river
reaches in response to different hydrological regimes (Griffin et al.
1999, p. 11). In broad floodplain river systems, arroyo toads searching
for suitable egg-laying sites may have to move across parallel stream
channels. Cristianitos Creek, Talega Creek, and the lower San Mateo
River are examples of this type of river system because of their wide,
sandy floodplains where the river flows into several channels during
floods. Despite river depths of 24 in (60 cm) and swift currents,
Griffin et al. (1999, p. 21) observed numerous toads crossing Talega
Creek and the lower San Mateo River, confirming these river systems are
not a barrier to arroyo toad dispersal. In their study of arroyo toad
movement patterns, Griffin et al. (1999, pp. 18-21) tracked 10 female
and 3 male arroyo toads in the lower San Mateo River and observed
female arroyo toads regularly using riparian and upland habitats far
from the river's edge and returning to these areas after traveling far
upstream for egg-laying. In one case, a female arroyo toad traveled 919
ft (280 m) across the San Mateo Campground into upland native habitat;
in another instance, a female was found 558 ft (170 m) from the San
Mateo River under cover of mulefat scrub (Griffin et al. 1999, p. 20).
They also recorded arroyo toads moving in both up- and downstream
directions, such as the female arroyo toad that traveled upstream more
than 492 ft (150 m) in a single night to a breeding pool. The study
found that both male and female arroyo toads moved more into upland
habitats after completing individual breeding activity (Griffin et al.
1999, p. 46).
In contrast, arroyo toads searching for breeding pools in
watersheds with relatively narrower, steeper-sided drainages (such as
the Piru and Sespe Creek Watersheds in Ventura County) tend to move in
both up- and downstream directions along these channels with their
structure of alternating riffles and pools (Griffin et al. 1999, p.
11). In his Mono Creek study, Sweet (1993, pp. 24-65), concluded that
female arroyo toads became relatively sedentary as they matured whereas
males tended to travel up- and downstream fairly often during the
breeding season (Sweet 1993, p. 65). This study also suggested that
most juvenile arroyo toads disperse away from their natal pools about a
year after metamorphosis (Sweet 1993, p. 65). In fact, numerous
juvenile and adult arroyo toads were observed moving up- and downstream
as much as 0.5 mi (0.8 km) and over 0.6 mi (1 km) in some cases (Sweet
1993, p. 1). Arroyo toads in these watersheds also travel laterally
away from the stream channel into terrace and upland native habitats.
On lower Piru Creek, Sweet (1992, pp. 42-45) observed two adult males
under oaks that were 200 ft (61 m) away.
Reasons for Decline and Threats
A variety of factors contribute to the decline of arroyo toads but
nearly half of historical extirpations prior to listing are attributed
to dam building and operation (Sweet 1992, pp. 4-5; Ramirez 2003, p.
7). Suitable habitat is often flooded out by reservoir water, and
downstream breeding and non-breeding habitat may be severely altered by
reduced flows at some times and sudden excessive flows at others.
Sudden excessive releases of water may destroy sand bars used during
the breeding season, and reconfigure or destroy suitable breeding
pools, thus disrupting clutch and larval development (Ramirez 2003, p.
7). Additionally, dams can interrupt the scouring and deposition
processes needed to maintain arroyo toad pool and terrace habitats.
Areas below dams can become unsuitable as fine sands are lost and not
replaced (Service 1999, pp. 42-43).
[[Page 52616]]
In addition to flood control projects, other threats include
agriculture; sand and gravel mining; urban development; off-highway
vehicle use; urbanization; recreational activities such as camping,
fishing, hiking, picnicking; and natural factors, including drought and
fire (59 FR 64859; Service 1999, p. 39; Ramirez 2003, p. 7). Conversion
of stream terrace habitat for farming, road construction, and
residential and commercial uses has eliminated substantial arroyo toad
habitat in some areas. Suction dredge mining of sand and gravel causes
substantial alteration of habitat by degrading water quality, altering
stream morphology, increasing siltation downstream, and creating deep
pools that hold water year-round for introduced predators of arroyo
toad eggs and larvae (Campbell et al. 1996, p. 16). Natural
disturbances, such as drought and fire, also threaten the arroyo toad
(Campbell et al. 1996, p. 17). Prolonged drought can result in the loss
of suitable breeding pools, foraging habitat, and prey availability
(Sweet 1992, p. 190). Fire can affect arroyo toads by causing direct
mortality and destruction of stream or terrace vegetation.
The introduction of nonnative species that compete for resources or
that prey on arroyo toads also poses a serious threat to arroyo toad
existence. The introduction of aquatic species not native to southern
California watercourses has been facilitated by construction of the
California Aqueduct and other sources of inter-basin water transport
(Service 1999, p. 48). Currently, the California Aqueduct is linked
directly to the Santa Ynez River, Santa Clara River, San Jacinto River,
and Mojave River Basins. Predatory species, many of which have used the
aqueduct to colonize these river basins, include green sunfish (Lepomis
cyanellus), largemouth bass (Micropterous salmoides), black bullhead
(Ictalurus nebulosus), prickly sculpin (Cottus asper), stocked rainbow
trout (Oncorhynchus mykiss), oriental gobies (Tridentiger spp.), red
shiners (Notropis lutrensis), bullfrogs (Rana catesbeiana), African
clawed frogs (Xenopus laevis), and crayfish (Procambarus clarkii)
(Sweet 1992, pp. 118-122; Service 1999, p. 48). All of these species
prey on arroyo toad tadpoles.
Of the above introduced-predators, bullfrogs are probably the most
serious threat to arroyo toads (Stephenson and Calcarone 1999, p. 82).
Bullfrogs are well adapted to deep water conditions in ponded areas
above dams, and dam releases can introduce them to downstream habitats
(CDFG 2005, p. 178). A broad diet and an extended breeding season give
bullfrogs a competitive advantage over native amphibians. Whereas
arroyo toad breeding habitat requirements are highly specialized, in
that they require shallow, slow-moving streams and riparian habitats
that are disturbed on a regular basis, bullfrogs can tolerate elevated
water temperatures and make use of standing pools resulting from urban
runoff to complete their 2-year life cycle (CDFG 2005, p. 178).
Introduced plants have also had a negative effect on arroyo toads
and their habitat. Nonnative plant species, particularly tamarisk
(Tamarix spp.) and giant reed (Arundo donax) alter the natural
hydrology of stream drainages by eliminating sandbars, breeding pools,
and upland habitats. Tamarisk is an aggressive, woody invasive plant
species that can tolerate a variety of environmental conditions and has
become established over as much as a million acres of floodplains,
riparian areas, wetlands, and lake margins in the western United States
(Carpenter 2004, pp. 1-30). Tamarisk can replace or displace native
woody species such as cottonwood and willow which occupy similar
habitats, especially when timing and amount of peak water discharge,
salinity, temperature, and substrate texture have been altered by human
activities (Carpenter 2004, pp. 1-30). Tamarisk also consumes large
quantities of water, possibly more than woody native plant species
occupying the same habitat (Carpenter 2004, p. 3). Highly resistant to
removal by flooding, tamarisk has the potential to form dense corridors
along most large streams. Where this has been allowed to occur,
tamarisk has replaced native vegetation, invaded sand bars, and led to
channelization by constricting flood flows. Arundo donax is a tall,
grass-like plant that grows up to 20 ft (6.1 m) in height with jointed
stems that resemble corn stalks. Arundo donax also invades stream banks
and lakeshores, where it can completely displace native vegetation,
reduce wildlife habitat, increase fire risks, and alter flow regimes
which can cause flooding (Ventura County 2006, pp. 21-23).
In summary, predation from introduced aquatic species and the loss
of habitat, coupled with habitat modifications due to the establishment
of nonnative plants and the manipulation of water levels in many
central and southern California streams and rivers, have caused arroyo
toads to disappear from a large portion of their previously occupied
habitat in California.
Previous Federal Action
For more information on previous Federal actions concerning the
arroyo toad, refer to our final designation of critical habitat
published in the Federal Register on April 13, 2005 (70 FR 19562). On
July 20, 2007 (Service 2007, pp. 1-2), we announced that we would
review the April 13, 2005, final rule after questions were raised about
the integrity of scientific information used and whether the decision
made was consistent with the appropriate legal standards. Based on our
review of the previous final critical habitat designation, we
determined it was necessary to revise critical habitat and this rule
proposes those revisions. On December 19, 2007, the Center for
Biological Diversity filed a complaint in the U.S. District Court for
the Southern District of California challenging our designation of
critical habitat for the arroyo toad (Center for Biological Diversity
v. U.S. Fish and Wildlife Service, Case No. 07-2380-JM-AJB). On June 5,
2008, the court entered a consent decree requiring a proposed revised
critical habitat rule to be submitted to the Federal Register by
October 1, 2009, and a final revised critical habitat designation to be
submitted to the Federal Register by October 1, 2010.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features;
(a) Essential to the conservation of the species; and
(b) That may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary. Such methods
and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping and transplantation, and in the
extraordinary case where population
[[Page 52617]]
pressures within a given ecosystem cannot otherwise be relieved, may
include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing activities that are likely to result in the destruction
or adverse modification of critical habitat. Section 7(a)(2) of the Act
requires consultation on Federal actions that may affect critical
habitat. The designation of critical habitat does not affect land
ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
private landowners. Where a landowner seeks or requests Federal agency
funding or authorization of an activity that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) would apply, but even in the event of a destruction or adverse
modification finding, the Federal action agency's and the applicant's
obligation is not to restore or recover the species, but to implement
reasonable and prudent alternatives to avoid destruction or adverse
modification of critical habitat.
To be considered for inclusion in a critical habitat designation,
habitat within the geographical area occupied by the species at the
time it was listed must contain the physical or biological features
that are essential to the conservation of the species. Areas supporting
the essential physical or biological features are identified, to the
extent known using the best scientific data available, as the habitat
areas that provide essential life cycle needs of the species; that is,
areas on which are found the primary constituent elements laid out in
the appropriate quantity and spatial arrangement essential to the
conservation of the species. Habitat within the geographical area
occupied by the species at the time of listing that contains features
essential to the conservation of the species meets the definition of
critical habitat only if these features may require special management
considerations or protection. Under the Act and the regulations at 50
CFR 424.12, we can designate critical habitat in areas outside the
geographical area occupied by the species at the time it is listed only
when we determine that the best available scientific data demonstrate
that the designation of those areas is essential for the conservation
of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas to propose as revised critical
habitat, our primary source of information is generally the information
developed during the listing process for the species and any previous
designations of critical habitat. Additional information sources may
include the recovery plan and 5-year reviews for the species, articles
in peer-reviewed journals, conservation plans developed by States and
counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. In particular, we recognize that climate change may cause
changes in the arrangement of occupied habitat patches. Current climate
change predictions for terrestrial areas in the Northern Hemisphere
indicate warmer air temperatures, more intense precipitation events,
and increased summer continental drying (Field et al. 1999, pp. 1-3;
Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6;
Intergovernmental Panel on Climate Change 2007, p. 11; Cayan et al.
2009, p. xi). However, predictions of climatic conditions for smaller
sub-regions such as California remain uncertain. It is unknown at this
time if climate change in California will result in a warmer trend with
localized drying, higher precipitation events, or other effects. Thus,
the information currently available on the effects of global climate
change and increasing temperatures does not make sufficiently precise
estimates of the location and magnitude of the effects. Nor are we
currently aware of any climate change information specific to the
habitat of the arroyo toad that would indicate what areas may become
important to the species in the future. Therefore, we are unable to
determine what additional areas, if any, may be appropriate to include
in the proposed revised critical habitat for this species; however, we
specifically request information from the public on the currently
predicted effects of climate change on the arroyo toad and its habitat.
Additionally, we recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated critical habitat area is unimportant or
may not be required for recovery of the species.
Areas that support populations of the arroyo toad, but are outside
the critical habitat designation, may continue to be subject to
conservation actions we and other Federal agencies implement under
section 7(a)(1) of the Act. They are also subject to the regulatory
protections afforded by the section 7(a)(2) jeopardy standard, as
determined on the basis of the best available information at the time
of the agency action. Federally funded or permitted projects affecting
listed species outside their designated critical habitat areas may
still result in jeopardy findings in some cases. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), section 7 consultations, or other species conservation planning
efforts if new information available to these planning efforts calls
for a different outcome.
Methods
As required by section 4(b) of the Act, we used the best scientific
and commercial data available in determining which areas within the
geographic area occupied by the species at the time of listing contain
the features essential to the conservation of the arroyo toad, and
which areas outside the geographical area occupied at the time of
listing are essential for the conservation of the species. We reviewed
information used to prepare the 2004 proposed critical habitat rule (69
FR 23254); the approach to provide conservation for the arroyo toad
provided in its recovery plan (Service 1999, pp. 1-119); the 5-year
review for the arroyo toad (Service 2009, pp. 1-51); the California
Department of Fish and Game's (CDFG) California Natural Diversity
Database (CNDDB) records; published peer-reviewed articles;
[[Page 52618]]
unpublished papers and reports; academic theses; survey results;
Geographic Information System (GIS) data (such as species occurrences,
soil data, land use, topography, and ownership maps); and
correspondence to the Service from recognized experts. We solicited new
information collected since publication of the recovery plan and 2005
final critical habitat designation, including information from State,
Federal, and Tribal governments, and from academia and private
organizations that have collected scientific data on the arroyo toad.
We also based our determination of areas meeting the definition of
critical habitat for the arroyo toad in part on the approach in the
recovery plan that focuses on protection and management of breeding and
non-breeding habitat on a watershed basis for the conservation of the
species (Service 1999, pp. 1-119).
Physical and Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied at the time of listing to propose as revised critical
habitat, we consider the physical and biological features that are
essential to the conservation of the species that may require special
management considerations or protection. Those features are the primary
constituent elements (PCEs) laid out in the appropriate quantity and
spatial arrangement for conservation of the species. The PCEs include,
but are not limited to:
(1) Space for individual and population growth, and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, and rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific PCEs required for conservation of the arroyo
toad from its biological needs. The areas proposed for designation as
revised critical habitat provide aquatic habitat for breeding
activities and upland habitat for shelter, foraging, predator
avoidance, and dispersal across the arroyo toad's current range. The
PCEs and the resulting physical and biological features essential to
the conservation of the species are determined based on studies of
arroyo toad ecology as described in the ``Background'' section of this
proposed rule and in the final listing rule published in the Federal
Register on December 16, 1994 (59 FR 64859).
Space for Individual and Population Growth, and for Normal Behavior
The arroyo toad is found along medium-to-large streams in coastal
and desert drainages in central and southern California, and Baja
California, Mexico. It occupies aquatic, riparian, and upland habitats
in a number of the remaining suitable drainages within its range.
Suitable habitat for the arroyo toad is created and maintained by the
fluctuating hydrological, geological, and ecological processes that
naturally occur in riparian ecosystems and adjacent uplands (Campbell
et al. 1996, pp. 13-15; Service 1999, p. 39). Periodic flooding that
modifies stream channels, redistributes channel sediments, and alters
pool location and form, coupled with upper terrace stabilization by
vegetation, is required to keep a stream segment suitable for all life
stages of the arroyo toad (Campbell et al. 1996, p. 13; Service 1999,
p. 39). This natural flooding regime helps maintain areas of open,
sparsely vegetated, sandy stream channels and terraces.
The substrate in habitats preferred by arroyo toads consists
primarily of sand, fine gravel, or pliable soil, with varying amounts
of large gravel, cobble, and boulders. Areas that are damp and have
less than 10 percent vegetation cover provide the best conditions for
juvenile survival and rapid growth (Campbell et al. 1996, p. 12;
Service 1999, pp. 32-34). Arroyo toads breed in the quiet margins of
open streams and avoid sites with deep or swift water, tree canopy
cover, or steeply incised banks. Larvae occupy shallow areas of open
streambeds on substrates ranging from silt to cobble, with preferences
for sand or gravel. Newly metamorphosed arroyo toads and juveniles
remain on sparsely vegetated sand and gravel bars bordering the natal
pool for 3 to 5 weeks (Sweet 1992, p. 52).
Arroyo toads must be able to move between the stream and upland
foraging sites, as well as up and down the stream corridor. Juveniles
and adult arroyo toads require and spend much of their lives in
riparian and upland habitats adjacent to breeding locations (Campbell
et al. 1996, p. 12). Riparian habitats used for foraging and burrowing
include sand bars, alluvial terraces, and streamside benches that lack
vegetation, or are sparsely to moderately vegetated. Upland habitats
used by arroyo toads during both the breeding and non-breeding seasons
include alluvial scrub, coastal sage scrub, chaparral, grassland, and
oak woodland.
Food, Water, and Physiological Requirements
Arroyo toad tadpoles eat microscopic algae, bacteria, and
protozoans consumed from the spaces among pebbles, gravel, and sand, or
abraded from stones (Sweet 1992, p. 82). Juveniles and adults eat
insects, although ants are preferred. When foraging, arroyo toads are
often found around the drip lines of oak trees. These areas often lack
vegetation, yet have levels of prey that will support arroyo toads.
When active at night, toads often are observed near ant trails feeding
on ants, beetles, and other prey.
Cover or Shelter
During the day and other periods of inactivity, arroyo toads seek
shelter by burrowing into sand. Thus, areas of sandy or friable
(readily crumbled) soils are necessary, but these soils can be
interspersed with gravel or cobble deposits. Additionally, arroyo toads
may seek temporary shelter under rocks or debris and have been found in
mammal burrows on occasion. Upland sites with compact soils can also be
used for foraging and dispersal (Holland 2000, in litt.).
Sites for Breeding, Reproduction, and Rearing of Offspring
The arroyo toad has specialized breeding habitat requirements. They
favor shallow pools (less than 12 in (30 cm) deep) and open sand and
gravel channels along low-gradient (typically less than 6 percent)
reaches of medium to large streams (Service 1999, pp. 31-32). These
streams can have either intermittent or perennial streamflow and
typically experience periodic flooding that scours vegetation and
replenishes fine sediments. In at least some portions of its range, the
species also breeds in smaller streams and canyons where low-gradient
breeding sites are more sporadically distributed. Breeding pools must
persist long enough for the completion of larval development, which is
generally March through June, depending on location and weather.
Because the suitability of breeding pools may vary from year to year
due to the dynamics of southern California riparian systems and flood
regimes, adult arroyo toads may move up or down stream in search of
suitable breeding pools, or not breed that year (Campbell et al. 1996,
p. 14).
Arroyo toads breed in rivers with intermittent, seasonal flow, with
a breeding period that may range from late February through July.
Breeding at
[[Page 52619]]
a given site may extend over several months (Griffin and Case 2001, p.
634). Breeding arroyo toads lay their eggs in water over substrates of
sand, gravel, or cobble in open sites such as overflow pools, old flood
channels, and shallow pools along streams. Such habitats rarely have
closed canopies over the lower banks of the stream channel due to
periodic flood events. Heavily shaded pools are generally unsuitable
for larval and juvenile arroyo toads because of lower water and soil
temperatures and poor algal mat development. Pools less than 12 in (30
cm) deep with clear water, flow rates less than 0.2 ft per second (5 cm
per second), and bottoms composed of sand or well-sorted fine gravel
are favored by adults for breeding and egg deposition (Sweet 1992, pp.
29-37). Although egg strings are laid in very slow-moving water, larvae
(tadpoles) can be found in water velocities of up to 1.0 to 1.3 ft per
second (30 to 40 cm per second) (Sweet 1992, p. 29). Breeding may occur
on several dates at a single site, and eggs may be deposited over a
period of 7 to 8 weeks (Campbell et al. 1996, p. 6). Breeding pools
must persist a minimum of 2 months for the completion of larval
development because changes in stream level or altering of the stream
bed or breeding pool may cause high mortality to eggs and small larvae,
sweeping them downstream, stranding and exposing them to desiccation,
or burying and asphyxiating them with silt (Campbell et al. 1996, p.
6). Larvae usually hatch in 4 to 6 days at water temperatures of 54 to
59 degrees Fahrenheit (12 to 16 degrees Celsius). Tadpoles disperse
from the pool margin into the surrounding shallow water, where they
spend an average of 10 weeks. After metamorphosis, the juvenile arroyo
toads remain on the bordering gravel bars until the pool dries out
(usually from 8 to 12 weeks depending on the site and rainfall).
Primary Constituent Elements (PCEs) for the Arroyo Toad
Pursuant to the Act and its implementing regulations, when
considering the designation of critical habitat, we must focus on the
known principal primary constituent elements within the geographical
area occupied by the arroyo toad at the time of listing that are
essential to the conservation of the species. The essential physical
and biological features are those PCEs laid out in an appropriate
quantity and spatial arrangement determined to be essential to the
conservation of the species. All areas proposed in this rule as revised
critical habitat for the arroyo toad are currently occupied, are within
the geographical area occupied by the species at the time of listing,
and contain sufficient PCEs to support at least one life-history
function.
Based on the above needs and our current knowledge of the life
history, biology, and ecology of the species, and the habitat
requirements for sustaining the essential life-history functions of the
species, we have determined that the PCEs specific to the arroyo toad
are:
(1) Rivers or streams with hydrologic regimes that supply water to
provide space, food, and cover needed to sustain eggs, tadpoles,
metamorphosing juveniles, and adult breeding toads. Breeding pools must
persist a minimum of 2 months for the completion of larval development.
However, due to the dynamic nature of southern California riparian
systems and flood regimes, the location of suitable breeding pools may
vary from year to year. Specifically, the conditions necessary to allow
for successful reproduction of arroyo toads are:
Breeding pools with areas less than 12 in (30 cm) deep;
Areas of flowing water with current velocities less than
1.3 ft per second (40 cm per second); and
Surface water that lasts for a minimum of 2 months during
the breeding season (a sufficient wet period in the spring months to
allow arroyo toad larvae to hatch, mature, and metamorphose).
(2) Riparian and adjacent upland habitats, particularly low-
gradient (typically less than 6 percent) stream segments and alluvial
streamside terraces with sandy or fine gravel substrates that support
the formation of shallow pools and sparsely vegetated sand and gravel
bars for breeding and rearing of tadpoles and juveniles; and adjacent
valley bottomlands that include areas of loose soil where toads can
burrow underground, to provide foraging and living areas for juvenile
and adult arroyo toads.
(3) A natural flooding regime, or one sufficiently corresponding to
natural, characterized by intermittent or near perennial flow that
contributes to the persistence of shallow pools into at least mid-
summer, and that maintains areas of open, sparsely vegetated, sandy
stream channels and terraces by periodically scouring riparian
vegetation; and also that modifies stream channels and terraces and
redistributes sand and sediment, such that breeding pools and terrace
habitats with scattered vegetation are maintained.
(4) Stream channels and adjacent upland habitats that allow for
movement to breeding pools, foraging areas, overwintering sites,
upstream and downstream dispersal, and connectivity to areas that
contain suitable habitat.
In summary, the need for space for individual and population growth
and normal behavior is met by PCE (1); the need for food, water and
physiological requirements is met by PCE (1); cover and shelter
requirements are met by PCE (2); areas for breeding reproduction, and
rearing of offspring are met by PCEs (1), (2), and (3); and habitats
representative of the historical, geographical, and ecological
distributions of a species are met by PCE (4).
With this proposed revised designation of critical habitat, we
intend to conserve the physical and biological features that are
essential to the conservation of the species, through the
identification of the appropriate quantity and spatial arrangement of
the PCEs sufficient to support the life-history functions of the
species. Because not all life-history functions require all the PCEs,
not all areas designated as critical habitat will contain all the PCEs.
Each of the areas proposed for designation in this rule has been
determined to contain sufficient PCEs to provide for one or more of the
life-history functions of the arroyo toad.
Special Management Considerations or Protection
In accordance with the definition of critical habitat in section
3(5)(A) of the Act, when designating critical habitat within the
geographical area occupied by the species at the time of listing, we
assess whether the physical and biological features essential to the
conservation of the arroyo toad may require special management
considerations or protection. All areas being proposed as critical
habitat may require some level of management to address current and
future threats to the arroyo toad, to maintain or enhance the physical
and biological features essential to its conservation, and to ensure
the recovery and survival of the species.
A detailed discussion of threats impacting the physical and
biological features essential to the conservation of the arroyo toad
which may require special management considerations or protection, can
be found in the final listing rule (59 FR 64859; December 16, 1994),
the 2001 critical habitat designation (66 FR 9414; February 7, 2001),
the 2005 critical habitat designation (70 FR 19561; April 13, 2005),
and the recovery plan (Service 1999, pp. 1-119). In summary, these
threats include habitat destruction and alteration due to short- and
long-term changes in river hydrology, including
[[Page 52620]]
construction of dams and water diversions; alteration of riparian
wetland habitats by agriculture and urbanization; construction of
roads; site-specific damage by off-highway vehicle use and other
recreational activities; overgrazing; and mining activities. Arroyo
toads and their habitats are also threatened by introduced nonnative
predators (such as bullfrogs and predatory fish), drought, periodic
fires, unseasonal water releases from dams, livestock grazing, and
light and noise pollution from adjacent developments and campgrounds.
Activities that may require special management considerations or
protection of the features essential to the conservation of the arroyo
toad include, but are not limited to: dam construction and operation,
river diversion, conversion of riparian wetland habitat by agriculture
and urbanization, road construction, off-highway vehicle use,
campground development, grazing, and mining. In each proposed critical
habitat unit, special management may be needed to ensure that aquatic
and terrestrial habitat are able to provide abundant breeding and non-
breeding habitat, prey habitat, shelter, and connectivity within the
landscape.
In summary, we find that each of the areas we are proposing as
revised critical habitat contains features essential to the
conservation of the arroyo toad, and that these features may require
special management considerations or protection. Special management
considerations or protection may be required to eliminate, or reduce to
negligible level, the threats affecting each unit and to preserve and
maintain the essential features that the proposed critical habitat
units provide to the arroyo toad. A more comprehensive discussion of
threats facing individual sites is in the individual unit descriptions.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of the arroyo toad. Activities with a Federal nexus that
may affect those unprotected areas outside of critical habitat, such as
development, agricultural activities, and road construction, are still
subject to review under section 7 of the Act if they may affect the
arroyo toad. The take prohibitions of section 9 of the Act also
continue to apply both inside and outside of designated critical
habitat. Take is broadly defined in the Act as to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect a listed species,
or to attempt to engage in any such conduct.
Criteria Used To Identify Critical Habitat
Using the best scientific and commercial data available as required
by section 4(b)(1)(A) of the Act, we identified those areas to propose
for revised designation as critical habitat that, within the
geographical area occupied by the species at the time of listing (see
``Geographic Range'' section), possess those physical and biological
features essential to the conservation of the arroyo toad and which may
require special management considerations or protection. We also
considered the area outside the geographical area occupied by the
species at the time of listing for any areas that are essential for the
conservation of the arroyo toad. The material we used included the 1994
final listing rule (59 FR 64859), the 2004 proposed critical habitat
rule (69 FR 23254), 2008 CNDDB records, the arroyo toad recovery plan,
data in reports submitted during section 7 consultations and by
biologists holding section 10(a)(1)(A) recovery permits, research
published in peer-reviewed articles and presented in academic theses
and agency reports, the 5-year review for the arroyo toad (Service
2009, pp. 1-51), and regional GIS coverages. We analyzed this
information to develop criteria for identifying areas that contain the
PCEs in the appropriate quantity and spatial arrangement essential to
the conservation of the arroyo toad that may require special management
considerations or protection, or that are essential for the
conservation of the arroyo toad.
To begin our analysis, we first examined the CNDDB current and
historical records to get an indication of the habitat where arroyo
toads are present or absent. The CNDDB is a continually refined and
updated inventory of location information gathered during species
surveys and observations. We then examined the arroyo toad recovery
plan (Service 1999, pp. 1-119), which has a recovery strategy focused
on providing sufficient breeding and upland habitat to maintain self-
sustaining populations of arroyo toads (defined as populations that
require little or no direct human assistance such as captive breeding
or rearing, or translocation between sites) throughout the historical
range of the species, and on minimizing or eliminating impacts and
threats to arroyo toad populations (Service 1999, p. 67). The recovery
plan states that in-stream and riparian habitats that support breeding,
as well as upland habitats that provide foraging and overwintering
habitat, need to be managed to maintain and enhance populations
throughout the range of the arroyo toad (Service 1999, p. 68). The
recovery plan divides the range of the arroyo toad into three large
recovery units--northern, southern, and desert--and we considered the
recovery of each of these as well as the species as a whole in our
analysis. Using the recovery plan as our guide, we analyzed areas
within the geographical area occupied by the arroyo toad at the time of
listing to determine which areas contained the PCEs laid out in the
appropriate quantity and spatial arrangement essential to the
conservation of the species (the physical and biological features).
In determining the specific areas containing the essential physical
and biological features, based on the recovery plan, 5-year review,
previous critical habitat proposals for the arroyo toad, scientific
literature, and results of studies that have been conducted since the
species was listed, we made sure that we are proposing critical habitat
that will provide for the conservation of the species. Criteria we
evaluated to assist our process include units: (1) That are dispersed
throughout the current geographical, elevational, and ecological
distribution of the species; (2) that would maintain the appropriate
population structure across the species' range; (3) that retain or
provide the connectivity between breeding sites that allows for the
continued existence of essential metapopulations (a population of
subpopulations in somewhat geographically isolated patches,
interconnected through patterns of gene flow, extinction, and
recolonization (Soule 1987, p. 7), despite fluctuations in the status
of subpopulations); and (4) that contain upland habitat around each
breeding location to allow for survival and recruitment to maintain a
breeding population over the long term.
We also evaluated the area outside the geographical area occupied
by the species at the time of listing to identify any areas that are
essential for the conservation of the arroyo toad. We looked at areas
that may have been historically occupied by arroyo toads based on CNDDB
records but were no longer occupied at the time of listing. We also
considered areas that may have the physical and biological features
essential for the conservation of the species but have never been
occupied. However, based on the best available scientific information,
including the recovery plan which does not identify any such areas as
being important to the recovery of the species, we determined that
there are no areas outside the
[[Page 52621]]
geographical area occupied by the species at the time of listing that
are essential for the conservation of the arroyo toad.
To identify and map areas that we determined meet the definition of
critical habitat, we used data on known arroyo toad locations and data
on movement distances by arroyo toads. The main source for arroyo toad
locations was the CNDDB (2008); we also obtained locations that have
not yet been entered into the CNDDB directly from the biologists that
collected them.
Areas meeting the definition of critical habitat for the arroyo
toad include occupied areas on stream reaches containing suitable
breeding and upland habitat. To determine the extent of suitable arroyo
toad habitat as discussed in the ``Habitat'' section above, we used
spatial data on stream gradients with grades less than 6 percent,
aerial photography, surveys of habitat suitability, and site visits.
Additionally, we included higher gradient areas between breeding
habitat because these areas are used by toads during the non-breeding
period and allow toads to disperse between breeding areas. To delineate
upland habitat areas, we used a GIS-based modeling procedure to
identify alluvial terraces, valley bottomlands, and upland habitats
adjacent to stream reaches occupied by the arroyo toad. Lacking
spatially explicit data on geomorphology, we used elevation above the
stream channel as an indicator of the extent of alluvial and upland
foraging habitat. We determined that areas up to 82 ft (25 m) in
elevation above the stream channel were most likely to contain the
riparian and upland habitat elements essential to arroyo toads. Most
arroyo toad activity and movement occurred within these areas;
therefore, steeper slopes away from the stream were eliminated.
However, we truncated the upland habitat delineation in flat areas at
4,921 ft (1,500 m) from the stream channel (a distance based on known
movement of arroyo toads, see below) if the 82-ft (25-m) elevation
limit had not yet been reached at that point. The 82-ft (25-m)
elevation limit was reached at distances less than 4,921 ft (1,500 m)
from the mapped stream channel along the majority of the stream
reaches, so the distance limit was often not a factor. These model
parameters are based on the best scientific data available and are the
same as those used in the 2004 proposed critical habitat designation
(69 FR 23254).
To evaluate our critical habitat model, we assessed its
effectiveness at capturing documented toad locations from studies that
focused specifically on surveying toads in upland habitats and studies
involving radio telemetry. Holland and Sisk (2000, pp. 1-28)
established extensive pitfall trap arrays at discrete distances from
two stream courses and operated these arrays at various periods
throughout the year. They had 466 captures of arroyo toads, 35 (7.5
percent) of which were identified as being in upland areas. The low
percentage of toads captured in upland areas may be because the vast
majority of captures (98.7 percent) were during the months from January
to September, when breeding and metamorphosis occurs and when toads
would likely be in close proximity to the stream. Nevertheless, toads
were captured at distances that ranged from 49 to 3,855 ft (15 to 1,175
m) from the upland-riparian ecotone (boundary) (Holland and Sisk 2000,
pp. 1-28). For the two areas sampled in that study (Cristianitos Creek
and the upper Santa Margarita River, San Diego County), we found that
our critical habitat boundaries encompassed all of the pitfall trapping
stations where arroyo toads were detected.
We also assessed studies that involved the tracking of arroyo toads
with radio telemetry equipment. For example, in a number of studies by
Ramirez (2002a, p. 10; 2002b, p. 50; 2002c, p. 23; 2003, pp. 72-81),
arroyo toads were tracked from the end of breeding activity until the
commencement of aestivation, generally May through September.
Cumulatively, these four studies involved tracking 77 adult arroyo
toads in three separate critical habitat units in Orange, San
Bernardino, and Los Angeles Counties. All but one of the numerous
burrow sites chosen by these arroyo toads fell within our proposed
revised critical habitat boundaries.
Upon completion of our analyses with our GIS modeling, we
identified six tribes that own lands within areas identified as meeting
the definition of critical habitat: Rincon Band of Luise[ntilde]o
Mission Indians; Pala Band of Luise[ntilde]o Mission Indians; Sycuan
Band of the Kumeyaay Nation; the Barona Group of Capitan Grande Band of
Mission Indians and the Viejas (Baron Long) Group of Capitan Grande
Band of Mission Indians, which jointly manage the Capitan Grande Band
of Diegueno Mission Indians Reservation (Capitan Grande Reservation);
and Mesa Grande Band of Diegueno Mission Indians. These areas are
included in this proposed revised critical habitat, although we are
requesting public comment on whether the conservation needs of the
arroyo toad can be achieved or not by limiting the designation of final
revised critical habitat to non-Tribal lands, and are otherwise
considering these Tribal lands for exclusion from the final critical
habitat under section 4(b)(2) of the Act based on partnerships and
habitat management plans and practices. We will evaluate any submitted
plans in consideration of Secretarial Order 3206, ``American Indian
Tribal Rights, Federal Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and
the relevant provision of the Departmental Manual of the Department of
the Interior (512 DM 2) in relation to the conservation benefits to the
arroyo toad, the features essential to the conservation of the species,
and the appropriateness of excluding Tribal lands under section 4(b)(2)
of the Act. Please see the ``Tribal Lands--Exclusions Under Section
4(b)(2) of the Act'' section for additional discussion.
To provide legal boundaries for the critical habitat areas,
critical habitat boundaries for all drainages were mapped as contiguous
blocks of 98-ft by 98-ft (30-m by 30-m) cells that conform to a
Universal Transverse Mercator (UTM) grid. Due to the conversion of GIS
data from two different geographic projections (UTM zone 10 and zone
11) and conversion of the data to acres and hectares, some rounding
adjustments may be reflected in the total acreage of the units
designated as critical habitat that are shown in the acreage tables and
unit descriptions.
After determining the criteria used to identify critical habitat,
we made every effort to avoid developed areas such as lands covered by
buildings, pavement, and other structures because such lands lack PCEs
for the arroyo toad. We also avoided fragmented areas such as those
surrounded by development. Agricultural lands may have been included if
they were within areas identified as necessary for dispersal or
connectivity between known occurrences. However, we avoided known areas
of intensive agriculture that lacked the PCEs for the arroyo toad. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed revised critical
habitat are excluded by text in this rule and are not proposed for
critical habitat designation. Therefore, if the critical habitat is
[[Page 52622]]
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification, unless the specific action may
affect adjacent critical habitat.
We propose to designate 22 critical habitat units within the
geographic area occupied by the species at the time of listing based on
the criteria presented above. A brief discussion of each area proposed
for designation as critical habitat is provided in the unit
descriptions below. Additional detailed documentation concerning the
essential nature of these areas is contained in our supporting record
for this rulemaking.
Summary of Changes From Previously Designated Critical Habitat
In this proposal to revise critical habitat for the arroyo toad, we
determined that it would be appropriate to begin our analysis of
critical habitat using the previous proposed critical habitat
designation (69 FR 23254; April 28, 2004) as a base from which to make
changes. We are not using the previous final critical habitat
designation (70 FR 19562, April 13, 2005) after questions were raised
about the integrity of the scientific information used and whether the
decision made was consistent with appropriate legal standards. This new
analysis based on the best scientific information currently available
has resulted in an overall decrease in the amount and distribution of
habitat identified as meeting the definition of critical habitat, as
compared to the previous 2004 proposed designation (69 FR 23254). In
this revised rule, we are proposing to designate 109,110 ac (44,155 ha)
of land in Los Angeles, Orange, Riverside, San Bernardino, San Diego,
Santa Barbara, and Ventura Counties, California, as critical habitat,
which is a decrease of approximately 29,603 ac (11,978 ha) as proposed
in 2004 (69 FR 23254). However, it should be noted that this does not
reflect a decrease in every proposed unit compared to the previous
proposal. In fact, the area included in some proposed revised critical
habitat units is larger than it was in the 2004 proposed critical
habitat designation (69 FR 23254) because in some cases new information
has identified additional arroyo toad areas that meet the definition of
critical habitat and these areas are now included.
The main differences between the 2004 proposed critical habitat
rule (69 FR 23254) and this 2009 proposed revised critical habitat rule
for the arroyo toad include the following:
(1) Our analysis of new and updated information received since the
2004 proposed critical habitat designation (69 FR 23254) resulted in
the identification of areas meeting the definition of critical habitat
that differs from the areas identified in 2004.
(2) We modified the mapping methodology from our previous proposed
critical habitat designation (69 FR 23254). For the 2004 proposed
designation, unit boundaries were snapped to points on a grid
conforming to the Universal Transverse Mercator (UTM) projection. The
reason for using a grid, which consisted of 100-meter by 100-meter
cells, was to decrease the number of coordinate pairs and thereby
simplify the description of unit boundaries. However, for this revised
proposed designation, we use a more detailed description of unit
boundaries. Although the change in area resulting from this
modification is relatively minor (about 5 percent), this change affects
all units.
(3) We did not exclude any areas in this proposed rule pursuant to
section 4(b)(2) of the Act. In accordance with 50 CFR 424.19, in making
our final determination regarding the revised designation, we will
consider the impacts of designating lands (such as tribal and HCP
lands) as critical habitat and may exclude such lands in the final rule
pursuant to section 4(b)(2) of the Act.
The following paragraphs provide explanations of how the proposed
revised critical habitat units differ from those in the 2004 proposed
critical habitat designation (69 FR 23254), except for those units
where the only change was from the modification in mapping methodology
described above (units 2, 3, 4, 5, 6, 14, and 21). The unit names used
in the subsection headings refer to the unit names as proposed in 2004.
Unit 1: San Antonio River
In the current proposal, we are now exempting areas within the
Department of Defense's Fort Hunter Liggett Military Reservation from
designation as revised critical habitat under section 4(a)(3)(B) of the
Act. This unit is within the geographical area occupied at the time of
listing (see ``Geographical Range'' section) and contains the physical
or biological features essential to the conservation of the species
which may require special management considerations or protection. In
the previous 2004 proposed designation (69 FR 23254), Fort Hunter
Liggett had not yet completed its Integrated Natural Resources
Management Plan (INRMP) and, therefore, was not exempted under section
4(a)(3)(B) of the Act. However, Fort Hunter Liggett was excluded under
section 4(b)(2) of the Act for reasons of national security and because
existing management plans provided a benefit to the arroyo toad. Fort
Hunter Liggett's first INRMP was approved in 2005, and an updated
version was approved in 2007, which includes management actions that
benefit the arroyo toad. Unit 1 as proposed in 2004 (69 FR 23254)
encompassed approximately 6,546 ac (2,649 ha). For this proposed
revised critical habitat designation, the modified mapping methodology
we used resulted in a 1.4 percent decrease in acres in Unit 1, for a
total of 6,453 ac (2,612 ha). With our current exemption of all areas
within Fort Hunter Liggett (see ``Application of Section 4(a)(3) of the
Act'' section), the entire unit has been exempted from designation as
revised critical habitat.
Unit 7: Upper Los Angeles River Basin
We have removed Subunit 7a (approximately 2,262 ac (915 ha)) within
Unit 7 from our proposed revision of critical habitat. Subunit 7a is
within the geographical area occupied at the time of listing; however,
this subunit was erroneously included in the previous proposed rule (69
FR 23254). Although we were not aware of this issue when we published
the previous proposed rule, high-flow water releases from the Big
Tujunga Dam upstream of this subunit have likely altered the hydrology
such that arroyo toad breeding habitat is not maintained (that is, lack
of PCEs 1 and 3) (Hitchcock et al. 2004, p. 8; Backlin 2009, pers.
comm.). The loss of the PCEs from this area has resulted in the
extirpation of arroyo toads (Backlin et al. 2002, pp. 6, 12; Hitchcock
et al. 2004, pp. 8-9, 29). Furthermore, the presence of the Big Tujunga
Dam blocks dispersal from occupied areas upstream. Therefore, we have
determined that the area does not contain the physical and biological
features essential to the conservation of the arroyo toad and therefore
does not meet the definition of critical habitat for the arroyo toad.
Unit 8: Lower Santa Ana River Basin
Areas meeting the definition of critical habitat that were excluded
in the 2004 proposed critical habitat designation (69 FR 23254) within
the Orange County Central-Coastal NCCP/HCP are now being proposed in
this rule, and we are considering them for exclusion in the final rule
(see ``Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of
the Act'' section). These areas include: (1) Black Star Creek from the
NCCP/HCP boundary
[[Page 52623]]
downstream to the confluence with Santiago Creek, (2) Baker Canyon from
the NCCP/HCP boundary downstream to the confluence with Santiago Creek,
and (3) Santiago Creek from the confluence with Silverado Creek
downstream to Irvine Lake. Information received since our previous 2004
proposed critical habitat designation (69 FR 23254) indicates that
areas within Santiago Creek upstream of the confluence with Silverado
Creek contain occupied suitable habitat on which are found the physical
and biological features essential to the conservation of the species.
Therefore, we also added areas to Unit 8 encompassing approximately 6.6
mi (11 km) of Santiago Creek from just below the town of Modjeska
downstream to Irvine Lake. Additionally, new information indicates that
Silverado Creek contains occupied suitable habitat on which are found
the features essential to the conservation of the species (Haase 2005,
p. 2; Haase 2008, pp. 2-3; Thomas 2009, pers. comm.). Therefore, we
added areas to Unit 8 encompassing approximately 7.3 mi (12 km) of
Silverado Creek from the eastern edge of section 11 (T05S, R07W) in the
Cleveland National Forest downstream to the confluence with Santiago
Creek. With the exception of areas that were excluded within the Orange
County Central-Coastal NCCP/HCP, this unit encompassed approximately
172 ac (69 ha) in the 2004 proposed critical habitat designation (69 FR
23254). With the proposed addition of areas within the Orange County
Central-Coastal NCCP/HCP and other areas described above, it now
encompasses approximately 2,182 ac (883 ha).
Unit 9: San Jacinto River Basin
Areas meeting the definition of critical habitat that were excluded
in the 2004 proposed critical habitat designation (69 FR 23254) within
the Western Riverside County MSHCP are now being proposed in this rule,
and we are considering them for exclusion in the final rule (see
``Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the
Act'' section). These areas include: (1) The San Jacinto River from the
Sand Canyon confluence downstream to the Soboba Indian Reservation
border, and (2) Bautista Creek from areas outside of the San Bernardino
National Forest downstream to near the middle of Section 27 (T5S, R1E)
where the stream enters a debris basin. Unit 9 encompassed
approximately 683 ac (277 ha) along Bautista Creek in the 2004 proposed
critical habitat designation (69 FR 23254); with the addition of the
areas described above, areas along the San Jacinto River and Bautista
Creek are now proposed as separate subunits. Subunit 9a along the San
Jacinto River encompasses approximately 1,226 ac (496 ha)) and Subunit
9b along Bautista Creek encompasses approximately 1,180 ac (478 ha).
Unit 10: San Juan Creek Basin
Information received since our previous 2004 proposed critical
habitat designation (69 FR 23254) indicates that areas upstream of
Subunit 10a in Bell Canyon, up to the southern half of section 8 (T06S,
R06W) in the Cleveland National Forest, contain occupied suitable
habitat on which are found the physical and biological features
essential to the conservation of the species (Haase 2009a, in litt.).
In the previous 2004 proposed critical habitat designation (69 FR
23254), Subunit 10a encompassed approximately 5,143 ac (2,076 ha) of
Bell Canyon from just below Crow Canyon downstream to the confluence
with San Juan Creek, in addition to areas along San Juan Creek. We
added these upstream areas to Subunit 10a, which now totals 4,728 ac
(1,913 ha). Although we added upstream areas to Subunit 10a, the total
area of this subunit decreases from the 2004 proposed critical habitat
designation (69 FR 23254) because of our change in mapping methodology.
Unit 11: San Mateo Creek and San Onofre Creek Basins
In the 2004 proposed critical habitat designation (69 FR 23254),
areas in Subunits 11a and 11c within Marine Corps Base (MCB) Camp
Pendleton were exempted from critical habitat under section 4(a)(3)(B)
of the Act, except areas leased to outside parties for other land uses
(such as San Onofre State Park and private agricultural lands). We are
now exempting all lands within MCB Camp Pendleton from designation as
revised critical habitat, including the leased lands (which are subject
to the approved Integrated Natural Resources Management Plan (INRMP)
for MCB Camp Pendleton), due to the benefits afforded to the arroyo
toad by the management described in the approved INRMP for MCB Camp
Pendleton (see ``Application of Section 4(a)(3) of the Act'' section).
Subunit 11a encompassed approximately 4,112 ac (1,664 ha) in the 2004
proposed critical habitat designation (69 FR 23254); with the exemption
of all areas within MCB Camp Pendleton, it now encompasses
approximately 1,034 ac (418 ha). Subunit 11c encompassed approximately
399 ac (161 ha) as proposed in 2004; with the exemption of all areas
within MCB Camp Pendleton (including the lands leased to other
parties), the entire subunit is removed.
Unit 12: Lower Santa Margarita River Basin
In the 2004 proposed critical habitat designation (69 FR 23254), we
exempted a portion of Unit 12 within MCB Camp Pendleton under section
4(a)(3)(B) of the Act. In this proposed rule, we are exempting all
lands within both MCB Camp Pendleton and the Fallbrook Naval Weapons
Station from designation as revised critical habitat (see ``Application
of Section 4(a)(3) of the Act'' section). Unit 12 encompassed
approximately 1,840 ac (744 ha) in the 2004 proposed critical habitat
designation (69 FR 23254); with the exemption of all areas within MCB
Camp Pendleton and the Fallbrook Naval Weapons Station, it now
encompasses approximately 1,009 ac (408 ha).
Unit 13: Upper Santa Margarita River Basin
Areas meeting the definition of critical habitat that were excluded
in the 2004 proposed critical habitat designation within the Western
Riverside County MSHCP are now being proposed in this rule, and we are
considering them for exclusion in the final rule (see ``Habitat
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act''
section). These areas include: (1) Areas around Subunit 13a along
Arroyo Seco Creek, (2) areas downstream of Subunit 13b along Temecula
Creek to Vail Lake, and (3) Wilson Creek from Lancaster Valley
downstream to Vail Lake. Subunit 13a encompassed approximately 704 ac
(285 ha) in the 2004 proposed critical habitat designation (69 FR
23254); with the addition of surrounding areas in Arroyo Seco Creek, it
now encompasses approximately 1,155 ac (467 ha). Subunit 13b
encompassed approximately 2,924 ac (1,183 ha) as proposed in 2004; with
the addition of downstream areas of Temecula Creek, it now encompasses
approximately 4,756 ac (1,925 ha). Information received since our
previous critical habitat designation indicates that areas upstream of
Lancaster Valley along Wilson Creek (included in this proposed rule as
Subunit 13c) to the confluence with Cahuilla Creek contain occupied
suitable habitat on which are found the physical and biological
features essential to the conservation of the species (Haase 2009a, in
litt.). This new subunit encompasses approximately 2,226 ac (901 ha).
[[Page 52624]]
Unit 15: Upper San Luis Rey River Basin
Information received since our previous 2004 proposed critical
habitat designation (69 FR 23254) indicates that the area downstream of
Barker Valley (formerly Subunit 15b) along the West Fork of the San
Luis Rey River, which is within the geographical area occupied by the
species at the time of listing, contains suitable habitat on which are
found the physical and biological features essential to the
conservation of the species, and provides for dispersal between
populations in this area and populations in Lake Henshaw (formerly
Subunit 15a) (Haase 2009, pers. comm.). In the 2004 proposed critical
habitat designation (69 FR 23254), Subunits 15a and 15b together
encompassed approximately 11,725 ac (4,745 ha). We are including the
area between Barker Valley and Lake Henshaw in this proposed revised
designation and have merged the two subunits into a single unit (Unit
15), which now totals 12,026 ac (4,867 ha).
Unit 16: Santa Ysabel Creek Basin
Areas meeting the definition of critical habitat that were excluded
in the 2004 proposed critical habitat designation (69 FR 23254) within
the San Diego MSCP-City and County of San Diego Subarea Plans are now
being proposed in this rule, and we are considering them for exclusion
in the final rule (see ``Habitat Conservation Plans--Exclusions Under
Section 4(b)(2) of the Act'' section). In the previous 2004 proposed
critical habitat designation (69 FR 23254), Subunits 16a, 16b, and 16c
were three separate areas due to our exclusion in the 2004 proposed
rule of downstream habitat along Santa Ysabel Creek. Subunit 16a
encompassed approximately 2,758 ac (1,116 ha) along Santa Ysabel Creek
from just below Sutherland Reservoir, Temescal Creek, and Boden Canyon;
Subunit 16b encompassed approximately 2,727 ac (1,104 ha) along Guejito
Creek; and Subunit 16c encompassed approximately 3,749 ac (1,517 ha)
along Santa Maria Creek. We merged these three subunits into a single
subunit (16a) in this proposed revised critical habitat rule; thus,
Subunit 16a now totals 12,136 ac (4,911 ha).
In this proposed revised critical habitat designation, we removed
areas within Subunit 16a that encompass Santa Ysabel Creek from just
below Sutherland Reservoir downstream to the confluence with Temescal
Creek. When we published our previous 2004 proposed critical habitat
designation (69 FR 23254), we believed this area, which is within the
geographical area occupied at the time of listing, met the definition
of critical habitat. However, information we received since then
indicates that breeding habitat is not available due to the absence of
a natural flooding regime downstream of Sutherland Dam and the
steepness of the stream corridor (lack of PCEs 1, 2, and 3).
Furthermore, this area does not provide connectivity to upstream areas
occupied by the species due to the presence of the dam. Survey
information indicates arroyo toads have been extirpated from this area
as a result of the loss of PCEs (Service 2006, p. 2). Therefore, we
determined that this area, which is within the geographical area
occupied by the species at the time of listing, does not contain
features essential to the conservation of the species and therefore
does not meet the definition of critical habitat for the arroyo toad.
Unit 17: San Diego River Basin/San Vicente Creek
Information received since our previous 2004 proposed critical
habitat designation (69 FR 23254) indicates that areas upstream of
Subunit 17a along the San Diego River to Temescal Creek, which are
within the geographical area occupied by the species at the time of
listing, contain occupied suitable habitat on which are found the
physical and biological features essential to the conservation of the
species (HELIX 2008, pp. 2, 7; Brown and Rochester 2009, pers. comm.).
Subunit 17a as proposed in 2004 encompassed approximately 1,003 ac (406
ha) along the San Diego River from Ritchie Creek downstream to the
upper edge of El Capitan Reservoir. In this proposed rule, we added
these upstream areas to Subunit 17a, which now totals 1,241 ac (502
ha).
Areas meeting the definition of critical habitat that were excluded
in the 2004 proposed critical habitat designation within the San Diego
MSCP-City and County of San Diego Subarea Plans are now being proposed
in this rule, and we are considering them for exclusion in the final
rule (see ``Habitat Conservation Plans--Exclusions Under Section
4(b)(2) of the Act'' section). In the previous 2004 proposed critical
habitat designation (69 FR 23254), Subunits 17b and 17c were two
separate areas due to our exclusion in the 2004 proposed rule of
downstream habitat along the San Diego River. Subunit 17b encompassed
approximately 174 ac (70 ha) and Subunit 17c approximately 707 ac (286
ha) along the San Diego River as proposed in 2004. We merged the two
subunits into a single subunit (17b) in this proposed revised critical
habitat rule; thus Subunit 17b now totals 1,865 ac (755 ha).
Unit 18: Sweetwater River Basin
Areas meeting the definition of critical habitat that were excluded
in the 2004 proposed critical habitat designation (69 FR 23254) within
the San Diego MSCP-City and County of San Diego Subarea Plans are now
being proposed in this rule, and we are considering them for exclusion
in the final rule (see ``Habitat Conservation Plans--Exclusions Under
Section 4(b)(2) of the Act'' section). In the previous 2004 proposed
critical habitat designation (69 FR 23254), Subunits 18a, 18b, and 18d
were three separate areas due to our exclusion in the 2004 proposed
rule of downstream habitat along the Sweetwater River. As proposed in
2004, Subunit 18a encompassed approximately 4,196 ac (1,698 ha) along
the Sweetwater River from the top of Upper Green Valley in Cuyamaca
Rancho State Park, Subunit 18b encompassed approximately 583 ac (236
ha) along Peterson Canyon, and Subunit 18d encompassed approximately
474 ac (192 ha) along Viejas Creek. In this proposed rule, we merged
these three subunits into a single subunit (18a), which now totals
4,156 ac (1,682 ha). Although we added areas that were excluded from
the 2004 proposed critical habitat designation (69 FR 23254), the total
area of the new Subunit 18a is smaller than the areas proposed in
Subunits 18a, 18b, and 18d in the 2004 proposed rule because of our
change in mapping methodology.
In this proposed revised critical habitat designation, we removed
areas within Subunit 18c that encompass the Sweetwater River from just
above Sycuan Resort downstream to the upper edge of Sweetwater
Reservoir. These areas were erroneously included in the previous 2004
proposed rule. We now know that sand mining operations and
channelization of the river through two golf courses have likely
altered the hydrology in this area such that breeding habitat is not
maintained (that is, lack of PCEs 1 and 3) (Brown and Rochester 2009,
pers. comm.). Furthermore, information received since our previous 2004
proposed critical habitat designation (69 FR 23254) indicates that this
area is no longer occupied by arroyo toads (Madden-Smith et al. 2005,
p. 22; Brown and Rochester 2009, pers. comm.; Martin 2009, pers. comm.)
because of the loss of PCEs. Therefore, we have determined that this
area does not contain features essential to the conservation of the
species and therefore does not meet the
[[Page 52625]]
definition of critical habitat for the arroyo toad. As proposed in
2004, Subunit 18c encompassed approximately 3,982 ac (1,611 ha) along
the Sweetwater River from immediately below Loveland Dam downstream to
the upper edge of Sweetwater Reservoir; with the proposed removal of
the areas described above, Subunit 18c now totals 627 ac (254 ha).
Unit 19: Cottonwood Creek Basin
In this proposed revised critical habitat designation, we removed
areas within Subunit 19b that encompass 9.9 mi (16 km) of Cottonwood
Creek from approximately 2.5 mi (4 km) below Morena Reservoir
downstream to Barrett Reservoir. These areas were erroneously included
in the previous 2004 proposed rule. Information received since our
previous 2004 proposed critical habitat designation (69 FR 23254)
indicates that the hydrology in this area was altered since the
construction of the Morena Dam in the early 1900s such that breeding
habitat is not maintained (lack of PCEs 1 and 3), and therefore this
area is no longer occupied by arroyo toads (Jennings 2009, pers.
comm.). Moreover, the presence of Morena and Barrett reservoirs block
arroyo toad dispersal from occupied areas upstream and downstream along
Cottonwood Creek (lack of PCE 5). Therefore, we determined that this
area, which is within the geographical area occupied by the toad at the
time of listing, does not contain features essential to the
conservation of the species and therefore does not meet the definition
of critical habitat for the arroyo toad.
Areas meeting the definition of critical habitat downstream of
Subunit 19b to the U.S.-Mexico border that were excluded in the 2004
proposed rule within the San Diego MSCP-City and County of San Diego
Subarea Plans are now being proposed in this rule, and we are
considering them for exclusion in the final rule (see ``Habitat
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act''
section). Subunit 19b, which encompassed approximately 5,564 ac (2,252
ha) in the 2004 proposed critical habitat designation (69 FR 23254),
now encompasses approximately 5,129 ac (2,076 ha). Additionally, data
received since our previous 2004 proposed critical habitat designation
(69 FR 23254) indicate that Campo Creek, which is within the
geographical area occupied by the species at the time of listing, has
occupied suitable habitat on which are found the physical and
biological features essential to the conservation of the species (LEI
2008, pp. 5, 8). Therefore, we added areas encompassing approximately
4.4 mi (7 km) of Campo Creek from Campo Lake downstream to the U.S.-
Mexico border as part of Subunit 19e.
Unit 20: Upper Santa Ana River Basin/Cajon Wash
Information received since our previous 2004 proposed critical
habitat designation (69 FR 23254) indicates that areas upstream of Unit
20 to just below Cajon Junction are within the geographical area
occupied by the arroyo toad at the time of listing and contain the
physical and biological features essential to the conservation of the
species (Rathbun 2007, in litt.; Meyer 2009, in litt.). In the previous
2004 proposed critical habitat designation (69 FR 23254), Unit 20
encompassed approximately 1,262 ac (511 ha) of Cajon Wash from just
south of Cajon campground. We added these upstream areas to Unit 20,
which now totals 1,775 ac (718 ha).
Unit 22: Upper Mojave River Basin
We have removed Subunit 22b (approximately 8,631 ac (3,493 ha))
within Unit 22 from our proposed revision of critical habitat. Subunit
22b is within the geographical area occupied at the time of listing.
However, new information received since our previous 2004 proposed
critical habitat designation (69 FR 23254) indicates that this area was
erroneously proposed as critical habitat in 2004. Habitat in this area
for the arroyo toad has been altered by steadily declining groundwater
levels along the Upper Narrows to Lower Narrows reach of the Mojave
River (Webb et al. 2001, p. 1) to such an extent that it does not
contain features essential to the conservation of the species and
therefore does not meet the definition of critical habitat for the
arroyo toad.
Unit 23: Whitewater River Basin
In this proposed revised critical habitat designation, we removed
areas within Unit 23 that encompass Whitewater River from the Colorado
River Aqueduct downstream to Interstate Highway 10. When we published
our previous 2004 proposed critical habitat designation (69 FR 23254),
we believed this area, which is within the geographical area occupied
at the time of listing, met the definition of critical habitat.
However, information received since our previous 2004 proposed critical
habitat designation (69 FR 23254) indicates that high-flow water
releases and channelization of the river downstream of the aqueduct has
likely altered the habitat such that it no longer supports the physical
and biological features essential to the conservation of the arroyo
toad (Roberts 2009, pers. comm.). We have determined that this area
does not meet the definition of critical habitat for the arroyo toad
and should not have been proposed in 2004. As proposed in 2004, Unit 23
encompassed approximately 1,997 ac (808 ha) along the Whitewater River
from near Red Dome downstream to Interstate 10; with the removal of the
areas described above, Unit 23 now totals 1,355 ac (548 ha).
Proposed Revisions to Critical Habitat Designation
We are proposing to designate 22 units (Units 2 through 23) as
critical habitat for the arroyo toad. The total area identified as Unit
1 is exempted from critical habitat designation under section
4(a)(3)(B) of the Act, and therefore is not proposed. All proposed
units are within the geographical area occupied by the species at the
time of listing and contain the physical and biological features
essential to the conservation of the arroyo toad which may require
special management considerations or protection. Although not a
prerequisite for designation as critical habitat, all units are
currently occupied. The proposed revised critical habitat areas
described below constitute our best assessment at this time of areas
that meet the definition of critical habitat for the arroyo toad.
Approximate area encompassing the proposed revised critical habitat by
county and land ownership is shown in Table 1, and the overall area of
proposed revised critical habitat units for the arroyo toad are shown
by unit in Table 2. The designation of these units, if finalized, would
replace the existing critical habitat designation for the arroyo toad
in 50 CFR 17.95(d).
Table 1--Approximate Proposed Revised Critical Habitat for the Arroyo Toad, in Acres (ac) (Hectares (ha)) by County (Ordered From North to South) and
Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
County Federal State/local Tribal Private Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Barbara...................................................... 3,914 0 0 2,892 6,806
[[Page 52626]]
(1,584) ............... ............... (1,171) (2,755)
Ventura............................................................ 4,392 0 0 639 5,031
(1,778) ............... ............... (259) (2,036)
Los Angeles........................................................ 2,382 0 0 3,453 5,835
(964) ............... ............... (1,398) (2,362)
San Bernardino..................................................... 3,964 132 0 3,599 7,695
(1,604) (53) ............... (1,456) (3,113)
Riverside.......................................................... 1,789 210 0 7,504 9,503
(724) (85) ............... (3,037) (3,846)
Orange............................................................. 434 1,909 0 6,362 8,705
(176) (773) ............... (2,575) (3,524)
San Diego.......................................................... 6,843 3,481 4,046 51,165 65,535
(2,769) (1,409) (1,636) (20,707) (26,521)
------------------------------------------------------------------------------------
Total.......................................................... 23,718 5,732 4,046 76,951 109,110
(9,598) (2,320) (1,636) (31,141) (44,155)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Values in table may not sum due to rounding.
Table 2--Approximate Proposed Revised Critical Habitat Units for the Arroyo Toad
----------------------------------------------------------------------------------------------------------------
Critical habitat units
Unit and subunits County Acres Hectares
----------------------------------------------------------------------------------------------------------------
Northern Recovery Unit
----------------------------------------------------------------------------------------------------------------
1................................ San Antonio River-- Monterey............. 0 0
exempt.
2................................ Sisquoc River......... Santa Barbara........ 3,775 1,528
3................................ Upper Santa Ynez River Santa Barbara........ 3,032 1,227
4................................ Sespe Creek........... Ventura.............. 2,760 1,117
5................................ Piru Creek............ Ventura.............. 2,507 1,015
5a............................... ...................... ..................... 1,358 550
5b............................... ...................... ..................... 1,149 465
6................................ Upper Santa Clara Los Angeles.......... 3,795 1,537
River.
6a............................... ...................... ..................... 520 210
6b............................... ...................... ..................... 1,995 807
6c............................... ...................... ..................... 1,279 518
7................................ Upper Los Angeles Los Angeles.......... 1,190 482
River Basin.
------------------------------------------------------------------------------
Subtotal..................... ...................... ..................... 17,059 6,904
----------------------------------------------------------------------------------------------------------------
Southern Recovery Unit
----------------------------------------------------------------------------------------------------------------
8................................ Lower Santa Ana River Orange............... 2,182 883
Basin.
9................................ San Jacinto River Riverside............ 2,406 974
Basin.
9a............................... ...................... ..................... 1,226 496
9b............................... ...................... ..................... 1,180 478
10............................... San Juan Creek Basin.. Orange, Riverside.... 5,667 2,293
10a.............................. ...................... ..................... 4,728 1,913
10b.............................. ...................... ..................... 939 380
11............................... San Mateo Basin....... Orange, San Diego.... 1,068 432
11a.............................. ...................... ..................... 1,034 418
11b.............................. ...................... ..................... 34 14
12............................... Lower Santa Margarita, San Diego............ 1,009 408
Basin.
12a.............................. ...................... ..................... 394 159
12b.............................. ...................... ..................... 615 248
13............................... Upper Santa Margarita Riverside, San Diego. 8,137 3,293
Basin.
13a.............................. ...................... ..................... 1,155 467
13b.............................. ...................... ..................... 4,756 1,925
13c.............................. ...................... ..................... 2,226 901
14............................... Lower and Middle San San Diego............ 12,906 5,223
Luis Rey Basin.
15............................... Upper San Luis Rey San Diego............ 12,026 4,867
Basin.
16............................... Santa Ysabel Creek.... San Diego............ 13,567 5,490
16a.............................. ...................... ..................... 12,136 4,911
16d.............................. ...................... ..................... 1,431 579
17............................... San Diego River Basin. San Diego............ 4,263 1,725
17a.............................. ...................... ..................... 1,241 502
17b.............................. ...................... ..................... 1,865 755
17d.............................. ...................... ..................... 1,158 469
18............................... Sweetwater River Basin San Diego............ 4,783 1,936
18a.............................. ...................... ..................... 4,156 1,682
18c.............................. ...................... ..................... 627 254
[[Page 52627]]
19............................... Cottonwood Creek Basin San Diego............ 14,375 5,817
19a.............................. ...................... ..................... 5,847 2,366
19b.............................. ...................... ..................... 5,129 2,076
19c.............................. ...................... ..................... 1,511 611
19d.............................. ...................... ..................... 938 380
19e.............................. ...................... ..................... 950 384
------------------------------------------------------------------------------
Subtotal..................... ...................... ..................... 82,389 33,342
----------------------------------------------------------------------------------------------------------------
Desert Recovery Unit
----------------------------------------------------------------------------------------------------------------
20............................... Upper Santa Ana River San Bernardino....... 1,775 718
Basin/Cajon Wash.
21............................... Little Rock Creek Los Angeles.......... 612 248
Basin.
22............................... Upper Mojave River San Bernardino....... 5,919 2,395
Basin.
22a.............................. ...................... ..................... 5,684 2,300
22c.............................. ...................... ..................... 235 95
23............................... Whitewater River Basin Riverside............ 1,355 548
------------------------------------------------------------------------------
Subtotal..................... ...................... 9,661................ .............. 3,909
------------------------------------------------------------------------------
Total.................... ...................... 109,110.............. .............. 44,155
----------------------------------------------------------------------------------------------------------------
Values in table may not sum due to rounding.
Presented below are brief descriptions of all units. The units are
grouped by recovery unit as described in the recovery plan (Service
1999) and listed in order geographically north to south and west to
east within each recovery unit. A brief description of each unit and
the reasons it meets the definition of critical habitat are presented
below.
Northern Recovery Unit
As described in the recovery plan (Service 1999, pp. 1-119),
maintaining arroyo toad populations in the areas described by the
following 7 unit descriptions is necessary to conserve the species in
the northern recovery unit. Because the toad populations in this
recovery unit have been reduced in size and their habitat fragmented by
road construction, dams, agriculture, and urbanization, it is important
to protect all of them and safeguard against the loss of any one
population due to random natural or human-caused events. The U.S.
Forest Service is the primary landowner of proposed revised critical
habitat within the northern recovery unit.
Unit 1: San Antonio River
Although the lands in this unit are exempt from critical habitat
designation under section 4(a)(3)(B) of the Act, we provide the
following information to explain why these lands meet the definition of
critical habitat. This unit is located in Monterey County and
encompasses: (1) San Antonio River and adjacent uplands from about 2 mi
(3 km) upstream of the confluence with Mission Creek downstream to San
Antonio Reservoir, a distance of about 17 mi (27 km); and (2) small
portions of Mission Creek and other tributaries. The unit consists of
6,453 ac (2,612 ha) of Federal (Department of Defense) land and is
entirely contained within Fort Hunter Liggett Military Reservation
boundaries. Arroyo toads can be found along the entire length of this
segment of the San Antonio River, which is still in a relatively
natural state, consists of high-quality arroyo toad habitat, and
supports probably one of the largest populations within the northern
recovery unit (U.S. Army Reserve Command 2004, p. 38). The northernmost
known population of arroyo toads is located here and is approximately
100 mi (160 km) north of the nearest documented extant population.
Arroyo toads in this unit may experience climatic conditions not faced
by toads farther south. Unit 1 contains the physical and biological
features that are essential to the conservation of the species,
including breeding pools in low-gradient stream segments with sandy or
fine gravel substrates (PCEs 1 and 2), seasonal flood flows (PCE 3),
and relatively undisturbed riparian and upland habitat for foraging and
dispersal (PCE 4). The physical and biological features essential to
the conservation of the species in this unit may require special
management considerations or protection to address threats from
nonnative vertebrate predators such as bullfrogs and beavers (Castor
canadensis). These lands on Fort Hunter Liggett are exempt from
critical habitat designation under section 4(a)(3)(B) of the Act
because they are subject to the 2007 Integrated Natural Resources
Management Plan (INRMP) for Fort Hunter Liggett, and the INRMP provides
a benefit to the arroyo toad (see the ``Application of Section 4(a)(3)
of the Act'' section of this proposed rule for a detailed discussion).
Unit 2: Sisquoc River (3,775 ac (1,528 ha))
This unit is located in Santa Barbara County and encompasses
approximately 33 mi (54 km) of the Sisquoc River and adjacent uplands
from Sycamore Campground downstream to just below the confluence with
La Brea Creek. Upper stretches of the river are within the Los Padres
National Forest and mostly within the San Rafael Wilderness Area. Below
the National Forest boundary, the river and adjacent uplands are on
rural private lands. The unit consists of 1,700 ac (688 ha) of Federal
land and 2,073 ac (839 ha) of private land. This long, undammed river
is one of the few remaining major rivers in southern California with a
natural flow regime, and supports a core population of arroyo toad that
is important for maintaining the genetic diversity of the species. Unit
2 contains the physical and biological features that are essential to
the conservation of the species, including breeding pools in low-
gradient stream segments with sandy or fine gravel substrates (PCEs 1
and 2), seasonal flood flows (PCE 3), and relatively undisturbed
riparian and upland habitat for foraging and dispersal (PCE 4). The
physical and biological features essential to the
[[Page 52628]]
conservation of the species in this unit may require special management
considerations or protection to address threats from the removal and
alteration of habitat due to sand and gravel mining, livestock
overgrazing of riparian habitats, and limited recreational activities.
Please see the ``Special Management Considerations or Protection''
section of this proposed rule for a discussion of the threats to arroyo
toad habitat and potential management considerations.
Unit 3: Upper Santa Ynez River Basin (3,032 ac (1,227 ha))
This unit is located in Santa Barbara County upstream of Gibraltar
Reservoir and encompasses approximately 27 mi (43 km) of the upper
Santa Ynez River, Indian Creek, Mono Creek, and adjacent uplands. The
unit consists of 2,214 ac (896 ha) of Federal land and 818 ac (331 ha)
of private land within the Los Padres National Forest, and supports a
large and well-studied arroyo toad population (Sweet 1992, pp. 1-198;
1993, pp. 1-73) that likely experiences precipitation and soil moisture
conditions not faced by toads at drier sites. Potential adaptations to
these conditions make this unit important for maintaining the genetic
diversity of the species. Unit 3 contains the physical and biological
features that are essential to the conservation of the species,
including breeding pools in low-gradient stream segments with sandy or
fine gravel substrates (PCEs 1 and 2), seasonal flood flows (PCE 3),
and relatively undisturbed riparian and upland habitat for foraging and
dispersal (PCE 4). The physical and biological features essential to
the conservation of the species in this unit may require special
management considerations or protection to address threats, primarily
along the lower Santa Ynez River and lower Mono Creek, from nonnative
species, recreation, and problems associated with an upstream dam (such
as sediment trapping, altered hydrological regime, and temperature
changes). Please see the ``Special Management Considerations or
Protection'' section of this proposed rule for a discussion of the
threats to arroyo toad habitat and potential management considerations.
Unit 4: Sespe Creek (2,760 ac (1,117 ha))
This unit is located in Ventura County and encompasses
approximately 27 mi (43 km) of Sespe Creek and adjacent uplands, from
the lower end of Sespe Gorge (elevation approximately 3,530 ft (1,076
m)) downstream to the confluence with Alder Creek. The unit consists of
2,498 ac (1,011 ha) of Federal land and 262 ac (106 ha) of private
land. This unit supports one of the largest arroyo toad populations on
the Los Padres National Forest along Sespe Creek, which is undammed and
retains its natural flooding regime. Up to several hundred adult arroyo
toads inhabit this reach of the Sespe River (Sweet 1992, p. 192), and
during years of successful reproduction, such as 2003, thousands of
juveniles can be found as well (Murphy 2008, pers. comm.). Arroyo toads
have been found up to 3,300 ft (1,000 m) in elevation in this area,
which is one of the highest known occurrences in the northern recovery
unit. The arroyo toads in this unit likely experience temperature
extremes or other environmental conditions not faced by toads at lower
elevations so that potential adaptations to these conditions make this
unit important for maintaining the genetic diversity of the species.
Unit 4 contains the physical and biological features that are essential
to the conservation of the species, including numerous suitable
breeding pools (shallow, sand- or gravel-based pools with a minimum of
vegetation along one or both margins during the breeding season from
late March to June (Sweet 1992, p. 28)) and an abundance of sandy
substrates (PCEs 1 and 2), unimpeded seasonal flood flows (PCE 3), and
relatively undisturbed riparian habitat and upland benches for foraging
and dispersal (PCE 4). The physical and biological features essential
to the conservation of the species in this unit may require special
management considerations or protection to address threats from
recreational activities and nonnative predators. Please see the
``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
Unit 5: Piru Creek (2,507 ac (1,015 ha))
This unit is located in Ventura and Los Angeles Counties and
consists of two subunits totaling 2,105 ac (852 ha) of Federal land and
402 ac (163 ha) of private inholdings.
Subunit 5a
Subunit 5a encompasses approximately 17 mi (27 km) of Piru Creek
and adjacent uplands from the confluence with Lockwood Creek downstream
to Pyramid Reservoir. The subunit consists of 1,277 ac (517 ha) of
Federal land and 81 ac (33 ha) of private land. The upper portion of
Subunit 5a is free of nonnative vertebrate predators, and the
substantial arroyo toad population supported by this subunit has been
increasing and expanding in this area over the past several years
(Uyehara 2003, pers. comm.). Subunit 5a contains the physical and
biological features that are essential to the conservation of the
species, including breeding pools in low-gradient stream segments with
sandy substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and
riparian habitat and upland benches for foraging and dispersal (PCE 4).
The physical and biological features essential to the conservation of
the species in this subunit may require special management
considerations or protection to address threats from horse and cattle
grazing and recreational activities. Please see the ``Special
Management Considerations or Protection'' section of this proposed rule
for a discussion of the threats to arroyo toad habitat and potential
management considerations.
Subunit 5b
Subunit 5b is primarily within the Sespe Wilderness and encompasses
approximately 15 mi (24 km) of Piru Creek from the confluence with Fish
Creek downstream to Lake Piru, as well as Agua Blanca Creek from
Devil's Gateway downstream to the confluence with Piru Creek. The
subunit supports a substantial arroyo toad population and consists of
828 ac (335 ha) of Federal land and 321 ac (130 ha) of private land.
Subunit 5b contains the physical and biological features that are
essential to the conservation of the species, including breeding pools
in low-gradient stream segments with sandy substrates (PCEs 1 and 2),
seasonal flood flows (modified to some extent below Pyramid Dam) (PCE
3), and riparian habitat and upland benches for foraging and dispersal
(PCE 4). Because lower Piru Creek in Subunit 5b is downstream of a
large dam, the habitat there has experienced some degradation over the
years from perennial water releases, rapid changes in flow volume,
excessive flows during the breeding season, and an increased presence
of nonnative predators. However, Pyramid Dam has permanently changed
the water release schedule to one that will more closely mimic natural
flows and will benefit the arroyo toad (State Water Board 2008, p. 3).
The physical and biological features essential to the conservation of
the species in this subunit may require special management
considerations or protection to address threats from nonnative
predators and recreational activities. Please see the ``Special
Management Considerations or Protection'' section of this proposed rule
for a discussion of the threats to arroyo
[[Page 52629]]
toad habitat and potential management considerations.
Unit 6: Upper Santa Clara River Basin (3,795 ac (1,537 ha))
This unit is located in northwestern Los Angeles County and
consists of three subunits totaling 443 ac (179 ha) of Federal land and
3,351 ac (1,356 ha) of private land.
Subunit 6a
Subunit 6a encompasses approximately 7 mi (12 km) of Castaic Creek
from Bear Canyon downstream to Castaic Lake, and 0.7 mi (1.2 km) of
Fish Creek from Cienaga Spring to the confluence with Castaic Creek.
Subunit 6a encompasses approximately 11 mi (18 km) of upper Santa Clara
River from Arrastre Canyon downstream to the confluence with Bee Canyon
Creek. The subunit consists of 284 ac (115 ha) of Federal land and 236
ac (96 ha) of private land. Subunit 6a contains the physical and
biological features that are essential to the conservation of the
species, including breeding pools in low-gradient stream segments with
sandy substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and
riparian habitat and upland benches for foraging and dispersal (PCE 4).
The physical and biological features essential to the conservation of
the species in this subunit may require special management
considerations or protection to address threats from urban development,
agriculture, recreation, mining, and nonnative predators. Please see
the ``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
Subunit 6b
Subunit 6b encompasses: (1) Approximately 2.6 mi (4.2 km) of
Castaic Creek from the downstream edge of The Old Road right-of-way
(adjacent to Interstate 5) down to the confluence with the Santa Clara
River, (2) 6 mi (10 km) of the Santa Clara River from the confluence
with Bouquet Creek down to the confluence with Castaic Creek, and (3)
1.1 mi (2 km) of San Francisquito Creek from Newhall Ranch Road
downstream to the confluence with the Santa Clara River. The subunit
consists of 159 ac (65 ha) of Federal land and 1,995 ac (807 ha) of
private land. This subunit allows for natural population expansion and
fluctuation of the Santa Clara River population by connecting arroyo
toad habitat in Castaic Creek with San Francisquito Creek and the
occupied reach of the Santa Clara River. Subunit 6b contains the
physical and biological features that are essential to the conservation
of the species, including breeding pools in low-gradient stream
segments with sandy substrates (PCEs 1 and 2), seasonal flood flows
(PCE 3), and riparian habitat and upland benches for foraging and
dispersal (PCE 4). The physical and biological features essential to
the conservation of the species in this subunit may require special
management considerations or protection to address threats from urban
development, agriculture, recreation, mining, and nonnative predators.
Please see the ``Special Management Considerations or Protection''
section of this proposed rule for a discussion of the threats to arroyo
toad habitat and potential management considerations.
Subunit 6c
Subunit 6c encompasses approximately 11 mi (18 km) of upper Santa
Clara River from Arrastre Canyon downstream to the confluence with Bee
Canyon Creek. The subunit consists of 159 ac (64 ha) of Federal land
and 1,120 ac (453 ha) of private land. This subunit is important for
maintaining the arroyo toad metapopulation in the upper Santa Clara
River Basin. Additionally, the upper portion of the Santa Clara River
in this subunit supports a breeding population of arroyo toads
(Sandburg 2001, in litt.; Farris 2001, pers. comm.; Hovore 2001, in
litt.) that has the potential to greatly increase in size. Subunit 6c
contains the physical and biological features that are essential to the
conservation of the species, including breeding pools in low-gradient
stream segments with sandy substrates (PCEs 1 and 2), seasonal flood
flows (PCE 3), and riparian habitat and upland benches for foraging and
dispersal (PCE 4). The physical and biological features essential to
the conservation of the species in this subunit may require special
management considerations or protection to address threats from urban
development, agriculture, recreation, mining, and nonnative predators.
Please see the ``Special Management Considerations or Protection''
section of this proposed rule for a discussion of the threats to arroyo
toad habitat and potential management considerations.
Unit 7: Upper Los Angeles River Basin (1,190 ac (482 ha))
This unit is located in central Los Angeles County and encompasses:
(1) Approximately 8 mi (13 km) of upper Big Tujunga Creek from
immediately above Big Tujunga Reservoir upstream to approximately 1.2
mi (2 km) above the confluence with Alder Creek, (2) almost 3.7 mi (6
km) of Mill Creek from the Monte Cristo Creek confluence downstream to
Big Tujunga Creek, and (3) approximately 1.9 mi (3 km) of Alder Creek
from the Mule Fork confluence downstream to Big Tujunga Creek. The unit
consists of 1,113 ac (451 ha) of Forest Service land and 77 ac (31 ha)
of private land. This unit supports an important high-elevation arroyo
toad population in the Big Tujunga Canyon watershed in the Upper Los
Angeles River Basin within the Angeles National Forest, which is
atypical for arroyo toads, and supports the only significant known
population remaining in the coastal foothills of the San Gabriel
Mountains. Unit 7 contains the physical and biological features that
are essential to the conservation of the species, including aquatic
habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and
upland habitat for foraging and dispersal activities (PCE 4). The
physical and biological features essential to the conservation of the
species in this unit may require special management considerations or
protection to address threats from nonnative predators, such as
crayfish, bullfrogs, and nonnative plants such as Arundo donax. Please
see the ``Special Management Considerations or Protection'' section of
this proposed rule for a discussion of the threats to arroyo toad
habitat and potential management considerations.
Southern Recovery Unit
As described in the recovery plan (Service 1999, pp. 1-119),
maintaining arroyo toad populations in the following 12 critical
habitat units is necessary to conserve the species in the southern
recovery unit. The units consist of a range of geographic locations
from coastal regions to interior mountains. Arroyo toads likely
occurred throughout each of these river and creek basins, but are now
found only in segments of the rivers and creeks due to loss or change
of habitat and nonnative predators. Conserving arroyo toad populations
in these river basins is necessary for preserving the species' full
range of genetic and phenotypic (observable characteristics produced by
the interaction of the genotype and the environment) variation.
Unit 8: Lower Santa Ana River Basin (2,182 ac (883 ha))
This unit is located in east-central Orange County and encompasses:
(1) Approximately 6.6 mi (11 km) of Santiago Creek from just below the
town of Modjeska downstream to Irvine Lake, (2) approximately 2 mi (3
km) of Black Star Creek downstream to the
[[Page 52630]]
confluence with Santiago Creek, (3) an approximately 2.4 mi (4 km)
stretch of lower Baker Canyon downstream to the confluence with
Santiago Creek, and (4) approximately 7.3 mi (12 km) of Silverado Creek
from the eastern edge of section 11 (T05S, R07W) in the Cleveland
National Forest downstream to the confluence with Santiago Creek. The
unit consists of 54 ac (22 ha) of Forest Service land and 2,128 ac (861
ha) of private land. This unit contains a vital arroyo toad population
in central Orange County that may represent one of the last remnants of
a greater historical population from the Santa Ana River Basin that was
mostly extirpated due to urbanization of the greater Los Angeles
metropolitan area. It is also possible that this population belongs to
a larger metapopulation that extends across the lower coastal mountain
slopes of the Santa Ana Mountains from Santiago Creek to San Mateo
Creek (including Units 10 and 11 discussed below). Unit 8 contains the
physical and biological features that are essential to the conservation
of the species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this unit may require
special management considerations or protection to address threats from
nearby residential activities and degrading habitat conditions due to
past commercial sand and gravel removal operations. Please see the
``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations. We are considering the
exclusion of approximately 1,497 ac (606 ha) of lands in Unit 8 within
the Orange County Central-Coastal NCCP/HCP from the final revised
critical habitat designation under section 4(b)(2) of the Act (see
``Application of Section 4(b)(2) of the Act'' section of this proposed
revised rule for a detailed discussion).
Unit 9: San Jacinto River Basin (2,406 ac (974 ha))
This unit is located in west-central Riverside County and consists
of two subunits totaling 13 ac (5 ha) of Bureau of Land Management
land, 492 ac (199 ha) of Forest Service land, 210 ac (85 ha) of State
land, and 1,691 ac (684 ha) of private land. This unit supports the
most northeastern arroyo toad populations within the coastal region of
the species' range and is effectively isolated from other known toad
populations to the south in the Santa Margarita Watershed, to the west
in the San Juan Watershed, and from residual populations to the north
in the Santa Ana Watershed due to geographic features. It is likely
that this isolation occurred over a long geologic time period;
therefore, toads in the San Jacinto Watershed may have evolved unique
genetic, phenotypic, or behavioral characteristics that are important
for the conservation of the species.
Subunit 9a
Subunit 9a encompasses approximately 6.3 mi (10 km) of the San
Jacinto River from the Sand Canyon confluence downstream to the Soboba
Indian Reservation border. The subunit consists of 64 ac (26 ha) of
Forest Service land, 8 ac (3 ha) of Bureau of Land Management land, and
1,154 ac (467 ha) of private land. Subunit 9a contains the physical and
biological features that are essential to the conservation of the
species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from cumulative impacts from human activities, including direct
mortality from vehicular traffic, trampling, trash dumping, and
collection (Ortega 2009, in litt. p. 1; Wilcox 2009, pers. comm.).
Please see the ``Special Management Considerations or Protection''
section of this proposed rule for a discussion of the threats to arroyo
toad habitat and potential management considerations. We are
considering the exclusion of approximately 678 ac (274 ha) of private
lands in Subunit 9a within the Western Riverside County MSHCP from the
final revised critical habitat designation under section 4(b)(2) of the
Act (see ``Application of Section 4(b)(2) of the Act'' section of this
proposed revised rule for a detailed discussion).
Subunit 9b
Subunit 9b encompasses approximately 7.4 mi (12 km) of Bautista
Creek from near the eastern edge of Section 20 (T6S, R2E) downstream to
approximately the middle of Section 27 (T5S, R1E), where the stream
enters a debris basin. The subunit consists of 428 ac (173 ha) of
Forest Service land, 5 ac (2 ha) of Bureau of Land Management land, 210
ac (85 ha) of State land, and 537 ac (217 ha) of private land. Subunit
9b contains the physical and biological features that are essential to
the conservation of the species, including aquatic habitat for breeding
and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from recreation and vehicular traffic (USGS 2001, p. 8). Please
see the ``Special Management Considerations or Protection'' section of
this proposed rule for a discussion of the threats to arroyo toad
habitat and potential management considerations. We are considering the
exclusion of approximately 475 ac (192 ha) of private lands in Subunit
9b within the Western Riverside County MSHCP from the final revised
critical habitat designation under section 4(b)(2) of the Act (see
``Application of Section 4(b)(2) of the Act'' section of this proposed
revised rule for a detailed discussion).
Unit 10: San Juan Creek Basin (5,667 ac (2,293 ha))
This unit is located in southern Orange County and southwestern
Riverside County and consists of two subunits totaling 558 ac (225 ha)
of Forest Service land, 1,909 ac (773 ha) of local government land, and
3,200 ac (1,295 ha) of private land. This unit supports a vital arroyo
toad population in the San Juan Creek Basin, and arroyo toad
populations in this unit may function as an important linkage between
toads in Santiago Creek (Unit 8) to the north and the San Mateo Creek
Basin (Unit 11) to the south.
Subunit 10a
This subunit is located in southern Orange County and southwestern
Riverside County. Subunit 10a encompasses: (1) Approximately 5 mi (8
km) of San Juan Creek from immediately above the Upper San Juan
Campground downstream to Interstate 5, (2) approximately 9.9 mi (16 km)
of Bell Canyon from the southern half of section 8 (T06S, R06W) in the
Cleveland National Forest downstream to the confluence with San Juan
Creek, and (3) approximately 1.2 mi (2 km) of an unnamed tributary to
the west of Bell Canyon in sections 8 and 18 (T06S, R06W) downstream to
the confluence with Bell Creek. The subunit consists of 547 ac (221 ha)
of Forest Service land, 1,406 ac (569 ha) of local government land, and
2,775 ac (1,123 ha) of private land. Subunit 10a contains the physical
and biological features that are essential to the conservation of the
species,
[[Page 52631]]
including aquatic habitat for breeding and non-breeding activities
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal
activities (PCE 4). The physical and biological features essential to
the conservation of the species in this subunit may require special
management considerations or protection to address threats from
nonnative predators (bullfrogs), increased water diversions, and
residual effects of recent gravel mining operations (Bloom 1998, p. 2).
Please see the ``Special Management Considerations or Protection''
section of this proposed rule for a discussion of the threats to arroyo
toad habitat and potential management considerations. We are
considering the exclusion of approximately 3,405 ac (1,378 ha) of
permittee-owned or controlled lands in Subunit 10a within the Southern
Orange County NCCP/Master Streambed Alteration Agreement/HCP from the
final revised critical habitat designation under section 4(b)(2) of the
Act (see ``Application of Section 4(b)(2) of the Act'' section of this
proposed revised rule for a detailed discussion).
Subunit 10b
This subunit is located in southern Orange County. Subunit 10b
encompasses 5.2 mi (8 km) of Trabuco Creek downstream from
approximately the middle of section 6 (T06S, R06W) in the Cleveland
National Forest. The subunit consists of 11 ac (4 ha) of Forest Service
land, 503 ac (204 ha) of local government land, and 425 ac (172 ha) of
private land. Subunit 10b contains the physical and biological features
that are essential to the conservation of the species, including
aquatic habitat for breeding and non-breeding activities (PCEs 1, 2,
and 3) and upland habitat for foraging and dispersal activities (PCE
4). The physical and biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative
predators (bullfrogs), increased water diversions, and residual effects
of recent gravel mining operations (Bloom 1998, p. 2). Please see the
``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
Unit 11: San Mateo Creek Basin (1,068 ac (432 ha))
This unit is located in northwestern San Diego County, southern
Orange County, and southwestern Riverside County and consists of two
subunits totaling 34 ac (14 ha) of Forest Service land and 1,034 ac
(418 ha) of private land. This unit supports large arroyo toad
populations in close proximity to the coast. Nearly all of the other
near-coastal, historical populations of arroyo toad were extirpated due
to extensive urbanization and river channelization along the coastal
regions of southern California. Distinctive climatic conditions near
the coast may provide different selective pressures on toads in this
area, and favor specific genetic characteristics that help maintain the
genetic diversity of the species. We are exempting from designation
approximately 5,994 ac (2,426 ha) of military land that fall within the
boundaries of this proposed revised critical habitat unit under section
4(a)(3)(B) of the Act because the lands are subject to the 2007 INRMP
for MCB Camp Pendleton, and the INRMP provides a benefit to the arroyo
toad (see the ``Application of Section 4(a)(3) of the Act'' section of
this proposed revised rule for a detailed discussion).
Subunit 11a
Subunit 11a encompasses: (1) Approximately 1.7 mi (3 km) of
Cristianitos Creek from just above Gabino Creek downstream to the MCB
Camp Pendleton boundary; (2) approximately 3.1 mi (5 km) of Gabino
Creek upstream from its confluence with Cristianitos Creek, including
about 0.6 mi (1 km) of La Paz Creek; and (3) approximately 4 mi (6 km)
of Talega Creek upstream from its confluence with Cristianitos Creek
and beyond the boundaries of MCB Camp Pendleton. The subunit consists
of 1,034 ac (418 ha) of private land. Subunit 11a contains the physical
and biological features that are essential to the conservation of the
species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from cumulative impacts from human activities, including direct
mortality from vehicle collisions and vehicular crossings of
streambeds, grazing, and nonnative predators (Bloom 1996, pp. 4-5;
Bloom 1998, in litt., pp. 1, 3). Please see the ``Special Management
Considerations or Protection'' section of this proposed rule for a
discussion of the threats to arroyo toad habitat and potential
management considerations. We are considering the exclusion of
approximately 963 ac (390 ha) of permittee-owned or controlled lands in
Subunit 11a within the Southern Orange County NCCP/Master Streambed
Alteration Agreement/HCP from the final revised critical habitat
designation under section 4(b)(2) of the Act (see ``Application of
Section 4(b)(2) of the Act'' section of this proposed revised rule for
a detailed discussion).
Subunit 11b
Subunit 11b encompasses approximately 1 mi (2 km) of San Mateo
Creek beyond the boundaries of MCB Camp Pendleton within the Cleveland
National Forest near Devil Canyon. The subunit consists of 34 ac (14
ha) of Forest Service land. Subunit 11b contains the physical and
biological features that are essential to the conservation of the
species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from nonnative predators (ECORP 2004, p. 16). Please see the
``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
Unit 12: Lower Santa Margarita River Basin (1,009 ac (408 ha))
This unit is located in northwestern San Diego County and consists
of two subunits totaling 5 ac (2 ha) of State land and 1,004 ac (406
ha) of private land. This unit supports large arroyo toad populations
in proximity to other large populations to the north (Unit 11), and
provides potential connectivity to populations in the upper Santa
Margarita River Basin (Unit 13). We are exempting from designation
approximately 7,239 ac (2,929 ha) of military land (7,016 ac (2,839 ha)
on MCB Camp Pendleton and 223 ac (90 ha) on Fallbrook Naval Weapons
Station) that fall within the boundaries of this critical habitat unit
from the proposed revised designation of critical habitat under section
4(a)(3)(B) of the Act because the lands are subject to the 2007 INRMP
for MCB Camp Pendleton and the 2006 INRMP for the Fallbrook Naval
Weapons Station, and each INRMP provides a benefit to the arroyo toad
(see the ``Application of Section 4(a)(3) of the Act'' section of this
proposed revised rule for a detailed discussion).
[[Page 52632]]
Subunit 12a
Subunit 12a encompasses approximately 2.1 mi (3 km) of De Luz Creek
from the town of De Luz downstream to the MCB Camp Pendleton boundary.
The subunit consists of 394 ac (159 ha) of private land. Subunit 12a
contains the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from cumulative impacts to the species' habitat from
recreation, nonnative predators, and nonnative plants (CNDDB 2008 EO
26). Please see the ``Special Management Considerations or Protection''
section of this proposed rule for a discussion of the threats to arroyo
toad habitat and potential management considerations.
Subunit 12b
Subunit 12b encompasses approximately 5.5 mi (9 km) of the Santa
Margarita River upstream from the MCB Camp Pendleton boundary. The
subunit consists of 5 ac (2 ha) of State land and 610 ac (247 ha) of
private land. Subunit 12b contains the physical and biological features
that are essential to the conservation of the species, including
aquatic habitat for breeding and non-breeding activities (PCEs 1, 2,
and 3) and upland habitat for foraging and dispersal activities (PCE
4). The physical and biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from cumulative impacts
to the species' habitat from nonnative predators, nonnative plants, and
vehicular traffic (Varanus Biological Services, Inc. 1999, pp. 34-35).
Please see the ``Special Management Considerations or Protection''
section of this proposed rule for a discussion of the threats to arroyo
toad habitat and potential management considerations.
Unit 13: Upper Santa Margarita River Basin (8,137 ac (3,293 ha))
This unit is located in southern Riverside County and northern San
Diego County and consists of three subunits totaling 23 ac (9 ha) of
Bureau of Land Management land, 434 ac (176 ha) of Forest Service land,
and 7,682 ac (3,109 ha) of private land. This unit provides potential
links to arroyo toad populations in the lower Santa Margarita River
Basin and other nearby drainages containing suitable habitat.
Subunit 13a
Subunit 13a encompasses approximately 7.3 mi (12 km) of Arroyo Seco
Creek from just south of the San Diego-Riverside County boundary
downstream to Vail Lake. The subunit consists of 343 ac (139 ha) of
Forest Service land and 813 ac (329 ha) of private land. Subunit 13a
contains the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from nonnative predators and campground activities (USGS 2000,
p. 3). Please see the ``Special Management Considerations or
Protection'' section of this proposed rule for a discussion of the
threats to arroyo toad habitat and potential management considerations.
We are considering the exclusion of approximately 690 ac (279 ha) of
private land in Subunit 13a within the Western Riverside County MSHCP
from the final revised critical habitat designation under section
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act''
section of this proposed revised rule for a detailed discussion).
Subunit 13b
Subunit 13b encompasses approximately 16.3 mi (26 km) of Temecula
Creek from Dodge Valley downstream to Vail Lake. The subunit consists
of 91 ac (37 ha) of Forest Service land, 23 ac (9 ha) of Bureau of Land
Management land, and 4,643 ac (1,879 ha) of private land. Subunit 13b
contains the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from road maintenance and sand-mining operations (HELIX 2004,
p. 1). Please see the ``Special Management Considerations or
Protection'' section of this proposed rule for a discussion of the
threats to arroyo toad habitat and potential management considerations.
We are considering the exclusion of approximately 2,318 ac (938 ha) of
private land in Subunit 13b within the Western Riverside County MSHCP
from the final revised critical habitat designation under section
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act''
section of this proposed revised rule for a detailed discussion).
Subunit 13c
Subunit 13c encompasses approximately 6.5 mi (10 km) of Wilson
Creek from the confluence with Cahuilla Creek downstream to Vail Lake.
The subunit consists of 2,226 ac (901 ha) of private land. Subunit 13c
contains the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from direct mortality and habitat degradation from off-highway
vehicular traffic, and upstream sedimentation caused by urbanization,
agriculture, or wildfire (R. Haase, MCAS Camp Pendleton, in litt.
2009b, p. 1). Please see the ``Special Management Considerations or
Protection'' section of this proposed rule for a discussion of the
threats to arroyo toad habitat and potential management considerations.
We are considering the exclusion of approximately 2,225 ac (900 ha) of
private land in Subunit 13c within the Western Riverside County MSHCP
from the final revised critical habitat designation under section
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act''
section of this proposed revised rule for a detailed discussion).
Unit 14: Lower and Middle San Luis Rey River Basin (12,906 ac (5,223
ha))
This unit is located in northern San Diego County and encompasses
approximately 30 mi (48 km) of the San Luis Rey River from the western
edge of the La Jolla Indian Reservation downstream to the confluence
with Guajome Creek near the City of Oceanside. It also includes
approximately 3.4 mi (5.5 km) of Pala Creek and 1.7 mi (2.7 km) of Keys
Creek upstream from their confluence with the San Luis Rey River. The
unit consists of approximately 5 ac (2 ha) of Bureau of Land Management
land, 10 ac (4 ha) of State land, 3,540 ac (1,432 ha) of tribal land,
and 9,351 ac (3,785 ha) of private land, and supports one of the
largest
[[Page 52633]]
contiguous river reaches that is occupied by the species. Unit 14
contains the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this unit may
require special management considerations or protection to address
threats from dams and water diversions, intensive urbanization,
agriculture, and nonnative predators and plants. Please see the
``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
As discussed in the ``Application of Section 4(b)(2) of the Act''
section of this proposed revised rule, we recognize the importance of
government-to-government relationships with Tribes; therefore, we are
considering the exclusion of approximately 1,155 ac (467 ha) of Rincon
Band of Luise[ntilde]o Mission Indians Tribal Lands and approximately
2,385 ac (963 ha) of Pala Band of Luise[ntilde]o Mission Indians Tribal
Lands in Unit 14 from the final revised critical habitat designation
under section 4(b)(2) of the Act. We are seeking public comment on the
appropriateness of the inclusion or exclusion of these lands from final
designation of revised critical habitat and whether the conservation
needs of the arroyo toad can be achieved by limiting the designation to
non-tribal lands (see Public Comments section).
Unit 15: Upper San Luis Rey River Basin (12,026 ac (4,867 ha))
This unit is located in northern San Diego County and encompasses:
(1) Approximately 8.6 mi (14 km) of the West Fork of the San Luis Rey
River from Barker Valley downstream to the upper end of Lake Henshaw,
(2) approximately 11.4 mi (18 km) of the upper San Luis Rey River from
the Indian Flats area downstream to the upper end of Lake Henshaw, and
(3) approximately 6.9 mi (11 km) of Agua Caliente Creek from the
western edge of section 13 (T10S, R3E) to the confluence with the San
Luis Rey River. The unit consists of 1,428 ac (578 ha) of Forest
Service land and 10,598 ac (4,289 ha) of private land. This unit
supports a unique assemblage of several small, disjunct, high-elevation
arroyo toad populations and one significant population on Agua Caliente
Creek (Gergus 1992, in litt.; Ervin 2000, in litt.; CNDDB 2008, Element
Occurrences (EOs) 27, 32) in an area where in-stream and overland
dispersal between populations is likely still possible. Unit 15
contains the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this unit may
require special management considerations or protection to address
threats from groundwater pumping on private lands, nonnative predators,
and grazing. Please see the ``Special Management Considerations or
Protection'' section of this proposed rule for a discussion of the
threats to arroyo toad habitat and potential management considerations.
Unit 16: Santa Ysabel Creek Basin (13,567 ac (5,490 ha))
This unit is located in north-central San Diego County and consists
of two subunits totaling 6 ac (2 ha) of Bureau of Land Management land,
138 ac (56 ha) of Forest Service land, 182 ac (74 ha) of State land,
143 ac (58 ha) of local government land, 23 ac (9 ha) of tribal land,
and 13,074 ac (5,291 ha) of private land. This unit supports large
amounts of suitable habitat connecting large populations with several
additional populations.
Subunit 16a
Subunit 16a encompasses: (1) Approximately 12 mi (19 km) of Santa
Ysabel Creek from the confluence with Temescal Creek downstream to the
confluence with Santa Maria Creek, (2) approximately 10 mi (16.1 km) of
Guejito Creek from the 2,000 ft (610 m) elevation contour downstream to
the confluence with Santa Ysabel Creek, (3) approximately 2.5 mi (4.0
km) of Boden Canyon upstream from the Santa Ysabel Creek confluence,
(4) approximately 4.3 mi (7 km) of Temescal Creek from the northern
edge of Pamo Valley to the confluence with Santa Ysabel Creek, and (5)
approximately 9.1 mi (15 km) of Santa Maria Creek from the west side of
Ramona to the confluence with Santa Ysabel Creek. The subunit consists
of 138 ac (56 ha) of Forest Service land, 6 ac (2 ha) of Bureau of Land
Management land, 182 ac (74 ha) of State land, 143 ac (58 ha) of local
government land, and 11,667 ac (4,721 ha) of private land. Subunit 16a
contains the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from grazing, nonnative predators, and urbanization (Tierra
Environmental Services 2001, in litt.; CNDDB 2008, EOs 59, 61). Please
see the ``Special Management Considerations or Protection'' section of
this proposed rule for a discussion of the threats to arroyo toad
habitat and potential management considerations. We are considering the
exclusion of approximately 3,915 ac (1,585 ha) of private lands in
Subunit 16a within the San Diego MSCP-City and County of San Diego
Subarea Plans from the final revised critical habitat designation under
section 4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the
Act'' section of this proposed revised rule for a detailed discussion).
Subunit 16d
Subunit 16d encompasses approximately 5.2 mi (8.3 km) of Santa
Ysabel Creek about 0.5 mi (0.8 km) east of Highway 79 downstream to
approximately 0.25 mi (0.4 km) downstream of the confluence with Witch
Creek. The subunit consists of 23 ac (9 ha) of Mesa Grande Reservation
tribal land and 1,408 ac (570 ha) of private land. Subunit 16d contains
the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from grazing (CNDDB 2008, EO 62). Please see the ``Special
Management Considerations or Protection'' section of this proposed rule
for a discussion of the threats to arroyo toad habitat and potential
management considerations.
As discussed in the ``Application of Section 4(b)(2) of the Act''
section of this proposed revised rule, we recognize the importance of
government-to-government relationships with Tribes; therefore, we are
considering the exclusion of approximately 23 ac (9 ha) of Mesa Grande
Band of Diegueno Mission Indians Tribal Lands in Subunit 16d from the
final revised critical habitat designation under section 4(b)(2) of the
Act. We are seeking public comment on the appropriateness of the
inclusion or exclusion of these lands from final designation of revised
critical
[[Page 52634]]
habitat and whether the conservation needs of the arroyo toad can be
achieved by limiting the designation to non-tribal lands (see Public
Comments section).
Unit 17: San Diego River Basin/San Vicente Creek (4,263 ac (1,725 ha))
This unit is located in central San Diego County and consists of
three subunits totaling 35 ac (14 ha) of Bureau of Land Management
land, 390 ac (158 ha) of Forest Service land, 93 ac (38 ha) of Capitan
Grande Band of Diegueno Mission Indians tribal land, and 3,746 ac
(1,516 ha) of private land. This unit supports suitable habitat for
population expansion, thus increasing the probability of the long-term
persistence of these populations.
Subunit 17a
Subunit 17a encompasses: (1) Approximately 8.7 mi (14 km) of the
San Diego River from Temescal Creek downstream through 0.5 mi (0.9 km)
of the Capitan Grande Reservation to the upper edge of El Capitan
Reservoir, and (2) approximately 1 mi (2 km) of lower Cedar Creek. The
subunit consists of 354 ac (143 ha) of Forest Service land, 92 ac (37
ha) of Capitan Grande Band of Diegueno Mission Indians tribal land, and
795 ac (322 ha) of private land. Subunit 17a contains the physical and
biological features that are essential to the conservation of the
species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from urbanization and nonnative predators. Please see the
``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
As discussed in the ``Application of Section 4(b)(2) of the Act''
section of this proposed revised rule, we recognize the importance of
government-to-government relationships with Tribes; therefore, we are
considering the exclusion of approximately 92 ac (37 ha) of Capitan
Grande Band of Diegueno Mission Indians Tribal Lands in Subunit 17a
from the final revised critical habitat designation under section
4(b)(2) of the Act. We are seeking public comment on the
appropriateness of the inclusion or exclusion of these lands from final
designation of revised critical habitat and whether the conservation
needs of the arroyo toad can be achieved by limiting the designation to
non-tribal lands (see Public Comments section).
Subunit 17b
Subunit 17b encompasses approximately 7.2 mi (12 km) of the San
Diego River downstream from San Vicente Reservoir. The subunit consists
of 12 ac (5 ha) of Bureau of Land Management land, 36 ac (15 ha) of
Forest Service land, and 1,817 ac (735 ha) of private land. Subunit 17b
contains the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from urbanization, agriculture, nonnative predators, and
adverse water releases (based on timing or amount) from the Sutherland/
San Vicente Aqueduct. Please see the ``Special Management
Considerations or Protection'' section of this proposed rule for a
discussion of the threats to arroyo toad habitat and potential
management considerations. We are considering the exclusion of
approximately 1,730 ac (700 ha) of private lands in Subunit 17b within
the San Diego MSCP-City and County of San Diego Subarea Plans from the
final revised critical habitat designation under section 4(b)(2) of the
Act (see ``Application of Section 4(b)(2) of the Act'' section of this
proposed revised rule for a detailed discussion).
Subunit 17d
Subunit 17d encompasses approximately 7.6 mi (12 km) of San Vicente
Creek upstream from San Vicente Reservoir. The subunit consists of 23
ac (9 ha) of Bureau of Land Management land and 1,134 ac (459 ha) of
private land. Subunit 17d contains the physical and biological features
that are essential to the conservation of the species, including
aquatic habitat for breeding and non-breeding activities (PCEs 1, 2,
and 3) and upland habitat for foraging and dispersal activities (PCE
4). The physical and biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from urbanization,
agriculture, nonnative predators, and adverse water releases (based on
timing or amount) from the Sutherland/San Vicente Aqueduct (Varanus
Biological Services, Inc. 1999, p. 20; RECON 2008, pp. 1, 3-4). Please
see the ``Special Management Considerations or Protection'' section of
this proposed rule for a discussion of the threats to arroyo toad
habitat and potential management considerations. We are considering the
exclusion of approximately 931 ac (377 ha) of private lands in Subunit
17d within the San Diego MSCP-City and County of San Diego Subarea
Plans from the final revised critical habitat designation under section
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act''
section of this proposed revised rule for a detailed discussion).
Unit 18: Sweetwater River Basin (4,783 ac (1,936 ha))
This unit is located in south-central San Diego County and consists
of two subunits totaling 553 ac (224 ha) of Forest Service land, 3 ac
(1 ha) of San Diego National Wildlife Refuge land, 1,659 ac (671 ha) of
State land, 391 ac (158 ha) of tribal land, and 2,178 ac (882 ha) of
private land. This unit supports several significant populations over
large stretches of rivers and streams (Gergus 1992, in litt.; Ervin
1997, in litt.; Varanus Biological Services, Inc. 1999, pp. 4-16; CNDDB
2008, EOs 38, 43, 67, 73, 77, 85, 99, 100).
Subunit 18a
Subunit 18a encompasses: (1) Approximately 26.6 mi (43 km) of the
Sweetwater River from the top of Upper Green Valley in Cuyamaca Rancho
State Park downstream to the top of Loveland Reservoir, (2)
approximately 4.3 mi (7 km) of Viejas Creek from the western border of
the Viejas Indian Reservation downstream to the confluence with the
Sweetwater River, and (3) approximately 1.5 mi (2 km) of Peterson
Canyon from just east of the Taylor Creek confluence downstream to the
top of Loveland Reservoir. The subunit consists of 553 ac (224 ha) of
Forest Service land, 1,554 ac (629 ha) of State land, and 2,049 ac (829
ha) of private land. Subunit 18a contains the physical and biological
features that are essential to the conservation of the species,
including aquatic habitat for breeding and non-breeding activities
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal
activities (PCE 4). The physical and biological features essential to
the conservation of the species in this subunit may require special
management considerations or protection to address threats from
vehicular traffic, including off- highway vehicular traffic; horse-
riding activities; nonnative predators; reservoir inundation; and
cumulative impacts from human activities, including direct mortality
from trampling and trash
[[Page 52635]]
dumping (Varanus Biological Services, Inc. 1999, p. 14; Mendelsohn et
al. 2005, pp. 10-11). Please see the ``Special Management
Considerations or Protection'' section of this proposed rule for a
discussion of the threats to arroyo toad habitat and potential
management considerations. We are considering the exclusion of
approximately 545 ac (221 ha) of private lands in Subunit 18a within
the San Diego MSCP-City and County of San Diego Subarea Plans from the
final revised critical habitat designation under section 4(b)(2) of the
Act (see ``Application of Section 4(b)(2) of the Act'' section of this
proposed revised rule for a detailed discussion).
Subunit 18c
Subunit 18c encompasses approximately 5.8 mi (9.3 km) of the
Sweetwater River from immediately below Loveland Dam downstream to just
above the Sycuan Resort. The subunit consists of 3 ac (1 ha) of San
Diego National Wildlife Refuge land, 391 ac (158 ha) of Sycuan Band of
the Kumeyaay Nation tribal land, 105 ac (42 ha) of State land, and 129
ac (53 ha) of private land. Subunit 18c contains the physical and
biological features that are essential to the conservation of the
species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from adverse water releases (based on timing or amount) from
the Loveland Reservoir and gravel mining operations (Madden-Smith et
al. 2003, pp. 15, 17). Please see the ``Special Management
Considerations or Protection'' section of this proposed rule for a
discussion of the threats to arroyo toad habitat and potential
management considerations.
As discussed in the ``Application of Section 4(b)(2) of the Act''
section of this proposed revised rule, we recognize the importance of
government-to-government relationships with Tribes; therefore, we are
considering the exclusion of approximately 391 ac (158 ha) of Sycuan
Band of the Kumeyaay Nation Tribal Lands in Subunit 18c from the final
revised critical habitat designation under section 4(b)(2) of the Act.
We are seeking public comment on the appropriateness of the inclusion
or exclusion of these lands from final designation of revised critical
habitat and whether the conservation needs of the arroyo toad can be
achieved by limiting the designation to non-tribal lands (see Public
Comments section).
We are also considering the exclusion of approximately 595 ac (241
ha) of private lands in Subunit 18c within the San Diego MSCP-City and
County of San Diego Subarea Plans from the final revised critical
habitat designation under section 4(b)(2) of the Act (see ``Application
of Section 4(b)(2) of the Act'' section of this proposed revised rule
for a detailed discussion).
Unit 19: Cottonwood Creek Basin (14,375 ac (5,817 ha))
Unit 19 is located in southern San Diego County and consists of
five subunits totaling 190 ac (77 ha) of Bureau of Land Management
land, 3,928 ac (1,589 ha) of Forest Service land, 1,482 ac (600 ha) of
local government land, and 8,778 ac (3,551 ha) of private land. This
unit encompasses a large number of distinct arroyo toad occurrences
(Gergus 1992, in litt.; Varanus Biological Services, Inc. 1999, pp. 2-
3; Gergus 2000, in litt.; CNDDB 2008, EOs 20-22, 30, 40, 44, 63-65, 69,
79) in an area where in-stream and overland dispersal between
populations is likely still possible and where there is room for
population expansion.
Subunit 19a
Subunit 19a encompasses: (1) Approximately 7 mi (11.2 km) of
Cottonwood Creek from Buckman Springs (near Interstate 8) downstream to
Morena Reservoir, (2) approximately 2.8 mi (4.5 km) of Morena Creek
downstream to the Cottonwood Creek confluence, (3) approximately 0.5 mi
(1 km) of an unnamed tributary of Morena Creek in section 35 (T16S,
R04E) downstream to the confluence with Morena Creek, (4) approximately
5 mi (8 km) of Kitchen Creek downstream to the Cottonwood Creek
confluence, and (5) approximately 3.7 mi (6 km) of La Posta Creek
downstream to the Cottonwood Creek confluence. The subunit consists of
2,129 ac (862 ha) of Forest Service land, 1,482 ac (600 ha) of local
government land, and 2,237 ac (905 ha) of private land. Subunit 19a
contains the physical and biological features that are essential to the
conservation of the species, including aquatic habitat for breeding and
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from grazing, recreational activities, and nonnative plants and
predators (Ervin 2000, in litt.; TAIC 2005, p. 1; CNDDB 2008, EOs 20,
44, 69). Please see the ``Special Management Considerations or
Protection'' section of this proposed rule for a discussion of the
threats to arroyo toad habitat and potential management considerations.
Subunit 19b
Subunit 19b encompasses approximately 12.7 mi (20 km) of Cottonwood
Creek from immediately below Barrett Lake downstream to the U.S.-Mexico
border and includes 10.3 mi (17 km) of Potrero Creek from approximately
the 2,466-ft (752-m) elevation benchmark downstream to the confluence
with Cottonwood Creek. The subunit consists of 80 ac (32 ha) of Forest
Service land, 129 ac (52 ha) of Bureau of Land Management land, and
4,921 ac (1,991 ha) of private land. Subunit 19b contains the physical
and biological features that are essential to the conservation of the
species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from grazing, and nonnative plants and predators (Ervin 1997,
in litt.; TAIC 2005, pp. 1, 3; CNDDB 2008, EOs 40, 64, 65, 79). Please
see the ``Special Management Considerations or Protection'' section of
this proposed rule for a discussion of the threats to arroyo toad
habitat and potential management considerations. We are considering the
exclusion of approximately 1,226 ac (496 ha) of private lands in
Subunit 19b within the San Diego MSCP-City and County of San Diego
Subarea Plans from the final revised critical habitat designation under
section 4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the
Act'' section of this proposed revised rule for a detailed discussion).
Subunit 19c
Subunit 19c encompasses: (1) Approximately 7.6 mi (12 km) of Pine
Valley Creek from the north edge of section 12 (T15S, R4E) downstream
to approximately 0.6 mi (1 km) south of Interstate 8, (2) approximately
0.6 mi (1 km) of Noble Creek downstream to the confluence with Pine
Valley Creek, (3) approximately 2.4 mi (4 km) of Scove Canyon
downstream to the confluence with Pine Valley Creek, and (4)
approximately 1.3 mi (2 km) of an unnamed tributary upstream of Scove
Canyon in sections 25 and 36 (T15S, R04E). The subunit consists of 809
ac (327 ha) of Forest Service land and 703 ac (284 ha) of private land.
Subunit 19c contains the physical and biological
[[Page 52636]]
features that are essential to the conservation of the species,
including aquatic habitat for breeding and non-breeding activities
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal
activities (PCE 4). The physical and biological features essential to
the conservation of the species in this subunit may require special
management considerations or protection to address threats from
urbanization, grazing, vehicular traffic, and nonnative predators
(Holland and Sisk 2001, p. 9; CNDDB 2008, EOs 21, 22, 30). Please see
the ``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
Subunit 19d
Subunit 19d encompasses approximately 8 mi (13 km) of Pine Valley
Creek from the Nelson Canyon confluence downstream to Barrett Reservoir
and approximately 1.6 mi (3 km) of Horsethief Canyon downstream to the
confluence with Pine Valley Creek. The subunit consists of 910 ac (368
ha) of Forest Service land and 28 ac (11 ha) of private land. Subunit
19d contains the physical and biological features that are essential to
the conservation of the species, including aquatic habitat for breeding
and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for
foraging and dispersal activities (PCE 4). The physical and biological
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
threats from grazing and U.S. Border Patrol activities (Varanus
Biological Services, Inc. 1999, p. 2; CNDDB 2008, EO 63). Please see
the ``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
Subunit 19e
Subunit 19e encompasses approximately 4.4 mi (7 km) of Campo Creek
from Campo Lake downstream to the U.S.-Mexico border. The subunit
consists of 61 ac (25 ha) of Bureau of Land Management land and 889 ac
(360 ha) of private land. Subunit 19e contains the physical and
biological features that are essential to the conservation of the
species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from fire management activities along the U.S.-Mexico border
(LEI 2008, p. 2). Please see the ``Special Management Considerations or
Protection'' section of this proposed rule for a discussion of the
threats to arroyo toad habitat and potential management considerations.
Desert Recovery Unit
As described in the recovery plan (Service 1999, pp. 1-119),
maintaining arroyo toad populations in the following 4 critical habitat
units is necessary to conserve the species in the desert recovery unit.
Each of these units is isolated from each other and from any other
recovery units, making the issues of inbreeding, fragmentation, and
random negative impacts of great concern. However, this recovery unit
also represents unique ecological conditions for arroyo toads, and
likely harbors important genetic diversity.
Unit 20: Upper Santa Ana River Basin/Cajon Wash (1,775 ac (718 ha))
This unit is located in southwestern San Bernardino County and
encompasses approximately 7.9 mi (13 km) of Cajon Wash upstream from
the San Bernardino National Forest boundary. The unit consists of 711
ac (288 ha) of Forest Service land and 1,065 ac (431 ha) of private
land. This unit supports a population that may represent some of the
last vestiges of a much greater population that historically existed
along the upper Santa Ana River Basin, but was almost entirely
extirpated due to urbanization of the greater Los Angeles area, and
helps preserve a critical outlier segment of the genetic, phenotypic,
or behavioral variation of the species. Unit 20 contains the physical
and biological features that are essential to the conservation of the
species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this unit may require
special management considerations or protection to address threats from
recreational activities. Please see the ``Special Management
Considerations or Protection'' section of this proposed rule for a
discussion of the threats to arroyo toad habitat and potential
management considerations.
Unit 21: Little Rock Creek Basin (612 ac (248 ha))
This unit is located in central Los Angeles County and encompasses:
(1) Approximately 5.9 mi (9.5 km) of Little Rock Creek from the South
Fork confluence downstream to the upper end of Little Rock Reservoir
(in the vicinity of Rocky Point Picnic Ground), and (2) approximately
1.1 mi (1.8 km) of Santiago Creek upstream from the confluence with
Little Rock Creek in the Little Rock Creek Basin. The unit consists of
612 ac (248 ha) of Forest Service land. This unit is on the periphery
of the species' range in the Mojave Desert and geographically isolated
from other known toad populations; therefore, it is possible that
arroyo toads in this area possess unique genetic and phenotypic
variation. Unit 21 contains the physical and biological features that
are essential to the conservation of the species, including aquatic
habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and
upland habitat for foraging and dispersal activities (PCE 4). The
physical and biological features essential to the conservation of the
species in this unit may require special management considerations or
protection to address threats from recreational activities. Please see
the ``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
Unit 22: Upper Mojave River Basin (5,919 ac (2,395 ha))
This unit is located in San Bernardino County and consists of two
subunits totaling 3,253 ac (1,316 ha) of Federal land, 2,534 ac (1,025
ha) of private land, and 132 ac (54 ha) of State land.
Subunit 22a
Subunit 22a includes: (1) Approximately 9.3 mi (18 km) of Deep
Creek from near Holcomb Creek downstream to the confluence with the
West Fork; (2) approximately 4 mi (6 km) of Little Horsethief Creek
upstream from its confluence with Horsethief Creek; (3) approximately 4
mi (6 km) of Horsethief Creek from approximately 1 mi (1.6 km) above
the Little Horsethief Creek confluence downstream to the West Fork
confluence; (4) approximately 6 mi (10 km) of the West Fork of the
Mojave River from Highway 173 downstream to Mojave River Forks Dam; (5)
approximately 1 mi (1.6 km) of the Mojave River below Mojave River
Forks Dam; (6) approximately 1.4 mi (2.2 km) of Grass Valley Creek
upstream
[[Page 52637]]
from the confluence with the West Fork; and (7) approximately 2.8 mi
(4.5 km) of Kinley Creek upstream from the Deep Creek confluence. The
subunit consists of 3,209 ac (1,299 ha) of Federal land and 2,474 ac
(1,001 ha) of private land. This subunit supports the largest
population of the species on the desert side of the San Bernardino
Mountains and is important for maintaining the range of genetic and
phenotypic diversity of the species. Subunit 22a contains the physical
and biological features that are essential to the conservation of the
species, including aquatic habitat for breeding and non-breeding
activities (PCEs 1, 2, and 3) and upland habitat for foraging and
dispersal activities (PCE 4). The physical and biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from nonnative species, urban development, and recreation.
Please see the ``Special Management Considerations or Protection''
section of this proposed rule for a discussion of the threats to arroyo
toad habitat and potential management considerations.
Subunit 22c
Subunit 22c includes approximately 1 mi (1.6 km) of the upper West
Fork of the Mojave River, above Silverwood Lake, from near the 3,613 ft
(1,462 m) elevation benchmark downstream to the upper end of the lake.
The subunit consists of 43 ac (17 ha) of Federal land, 132 ac (54 ha)
of county land, and 60 ac (24 ha) of private land. This subunit
contains Summit Valley, which encompasses the lower portions of
Horsethief Creek and the West Fork of the Mojave River, a broad, flat,
alluvial valley that supports a substantial arroyo toad population
(Ramirez 2003, pp. 16-17). Additionally, the downstream portion of this
subunit contains the driest conditions of any unit proposed for arroyo
toad critical habitat (Teale Data Center 1998, p. 1; CIMS 2000, p. 1),
which suggests that this population may possess unique physiological
adaptations, such as a reduced rate of evaporative water loss, and is
important for maintaining the range of genetic and phenotypic diversity
of the species. Subunit 22c contains the physical and biological
features that are essential to the conservation of the species,
including aquatic habitat for breeding and non-breeding activities
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal
activities (PCE 4). The physical and biological features essential to
the conservation of the species in this subunit may require special
management considerations or protection to address threats from
nonnative species, urban development, and recreation. Please see the
``Special Management Considerations or Protection'' section of this
proposed rule for a discussion of the threats to arroyo toad habitat
and potential management considerations.
Unit 23: Whitewater River Basin (1,355 ac (548 ha))
This unit is located in northern Riverside County and encompasses
approximately 6.4 mi (10 km) of the Whitewater River from near Red Dome
downstream to the Colorado River Aqueduct. The unit consists of 783 ac
(317 ha) of Bureau of Land Management land and 572 ac (231 ha) of
private land. This unit supports an isolated desert population on the
easternmost periphery of the species' range in the Colorado Desert that
may possess unique phenotypic and genetic variation that are distinct
from other desert populations in the Mojave Desert (including Units 21
and 22 discussed above). Unit 23 contains the physical and biological
features that are essential to the conservation of the species,
including aquatic habitat for breeding and non-breeding activities
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal
activities (PCE 4). The physical and biological features essential to
the conservation of the species in this unit may require special
management considerations or protection to address threats from
unsuitable water flow for breeding and off-highway vehicular traffic.
Please see the ``Special Management Considerations or Protection''
section of this proposed rule for a discussion of the threats to arroyo
toad habitat and potential management considerations. We are
considering the exclusion of approximately 538 ac (218 ha) of private
lands in Unit 23 within the Coachella Valley MSHCP from the final
revised critical habitat designation under section 4(b)(2) of the Act
(see ``Application of Section 4(b)(2) of the Act'' section of this
proposed revised rule for a detailed discussion).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the Fifth and Ninth Circuit Courts of Appeal have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442F (5th Cir. 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species. Section 7(a)(2) of the Act requires Federal agencies,
including the Service, to evaluate their actions with respect to any
species that is endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a species proposed for listing or result in destruction or adverse
modification of proposed critical habitat. Conference reports provide
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. We may issue a
formal conference report if requested by a Federal agency. Formal
conference reports on proposed critical habitat contain an opinion that
is prepared according to 50 CFR 402.14, as if critical habitat were
designated. We may adopt the formal conference report as the biological
opinion when the critical habitat is designated, if no substantial new
information or changes in the action alter the content of the opinion
(see 50 CFR 402.10(d)). The conservation recommendations in a
conference report or opinion are advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) of the
Act through our issuance of:
[[Page 52638]]
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
An exception to the concurrence process referred to in (1) above
occurs in consultations involving National Fire Plan projects. In 2004,
the U.S. Forest Service and the Bureau of Land Management reached
agreements with the Service to streamline a portion of the section 7
consultation process (BLM-ACA 2004, pp. 1-8; FS-ACA 2004, pp. 1-8). The
agreements allow the U.S. Forest Service and the Bureau of Land
Management the opportunity to make ``not likely to adversely affect''
determinations for projects implementing the National Fire Plan. Such
projects include prescribed fire, mechanical fuels treatments (thinning
and removal of fuels to prescribed objectives), emergency
stabilization, burned area rehabilitation, road maintenance and
operation activities, ecosystem restoration, and culvert replacement
actions. The U.S. Forest Service and the Bureau of Land Management will
insure staff is properly trained and both agencies will submit
monitoring reports to the Service to determine if the procedures are
being implemented properly and effects on endangered species and their
habitats are being properly evaluated. As a result we do not believe
the alternative consultation processes being implemented as a result of
the National Fire Plan will differ significantly from those
consultations being conducted by the Service.
If we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected, and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the arroyo toad or its
designated critical habitat will require section 7(a)(2) consultation
under the Act. Activities on State, Tribal, local, or private lands
requiring a Federal permit (such as a permit from the U.S. Army Corps
of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
et seq.) or a permit under section 10 of the Act from the Service) or
involving some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) will also be subject to the section
7(a)(2) consultation process. Federal actions not affecting listed
species or critical habitat, and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or permitted,
do not require section 7(a)(2) consultations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
physical and biological features (PCEs) to an extent that appreciably
reduces the conservation value of critical habitat for the arroyo toad.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species.
Activities that, when carried out, funded, or authorized by a
Federal agency, may adversely affect critical habitat and, therefore,
should result in consultation for the arroyo toad include, but are not
limited to, the following:
(1) Actions that alter water chemistry or temperature. Such
activities include, but are not limited to: Release of chemicals,
biological pollutants, or heated effluents into the surface water or
into connected groundwater at a point source or by dispersed release
(non-point source). These activities can alter water conditions beyond
the tolerances of the arroyo toad and result in direct or cumulative
adverse effects to these individuals and their life cycles.
(2) Actions that increase sediment deposition within the stream
channel or disturb upland foraging and dispersal habitat. Such
activities include, but are not limited to: Excessive sedimentation
from livestock overgrazing, road construction, commercial or urban
development, channel alteration, timber harvest, off-highway vehicle or
recreational use, and other watershed and floodplain disturbances.
These activities could eliminate or reduce the habitat necessary for
the growth and reproduction of the arroyo toad by increasing the
sediment deposition to levels that would adversely affect their ability
to complete their life cycles.
(3) Actions that alter channel morphology or geometry. Such
activities include, but are not limited to: Flood control and water
diversion structures, such as dams and reservoirs, that regulate stream
flows and trap sediments, direct groundwater extraction,
channelization, impoundment, road and bridge construction, development,
mining, dredging, and destruction of riparian vegetation. These
activities may lead to changes to the hydrologic functioning of the
stream and alter the timing, duration, water flows, and levels that
would degrade or eliminate the arroyo toad and its habitat. These
actions can also lead to increased sedimentation and degradation in
water quality to levels that are beyond the tolerances of the arroyo
toad and provide habitat for
[[Page 52639]]
nonnative species that prey on arroyo toads.
(4) Actions that eliminate upland foraging, aestivating, or
dispersal habitat for the arroyo toad. Such activities include, but are
not limited to: Road construction, commercial or urban development,
timber harvest, off-highway vehicle or recreational use, and other
watershed and floodplain disturbances. These actions could affect the
species' habitat through erosion, siltation, soil compaction, water
quality degradation from urban runoff containing contaminants,
fertilizers and pesticides, and the spread of introduced nonnative
plants.
(5) Actions that lead to introducing, spreading, or augmenting
nonnative aquatic species in stream segments used by arroyo toad.
Possible actions include, but are not limited to: Introduction of
chytrid fungus or other diseases, fish stocking for sport, nonnative
aquatic plant species for aesthetics, or other related actions. These
activities could affect the growth and reproduction of the arroyo toad
by subjecting eggs, larvae, tadpoles, and adult arroyo toads to
increased predation pressure or limit the amount of habitat available
for the species, which would adversely affect the arroyo toad's ability
to complete its life cycle.
Note that the scale of these activities is a crucial factor in
determining whether, in any instance, they would directly or indirectly
alter critical habitat to the extent that the value of the critical
habitat would be appreciably diminished in providing for the physical
or biological features essential to the conservation of the arroyo
toad.
We consider all of the units and subunits proposed as critical
habitat to contain features essential to the conservation of the arroyo
toad. All units are within the geographical area occupied by the
species at the time it was listed, and are currently occupied by arroyo
toads. To ensure that their actions do not jeopardize the continued
existence of the arroyo toad, Federal agencies already consult with us
on activities in areas currently occupied by the arroyo toad, or in
unoccupied areas if the species may be affected by their actions.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Endangered Species Act to limit areas eligible
for designation as critical habitat. Specifically, section
4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides:
``The Secretary shall not designate as critical habitat any lands or
other geographical areas owned or controlled by the Department of
Defense, or designated for its use, that are subject to an integrated
natural resources management plan prepared under section 101 of the
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that
such plan provides a benefit to the species for which critical habitat
is proposed for designation.''
We consult with the military on the development and implementation
of INRMPs for installations with federally listed species. INRMPs
developed by military installations located within the range of the
arroyo toad and which contain those features essential to the species'
conservation were analyzed for exemption under the authority of section
4(a)(3)(B) of the Act.
Approved INRMPS
Fort Hunter Liggett Military Reservation, MCB Camp Pendleton, and
Fallbrook Naval Weapons Station have approved INRMPs. The U.S. Army
Reserve and Marine Corps (on both MCB Camp Pendleton and Fallbrook
Naval Weapons Station) committed to working closely with us and
California Department of Fish and Game (as well as California
Department of Parks and Recreation (California State Parks) with
regards to lands leased by MCB Camp Pendleton) to continually refine
the existing INRMPs as part of the Sikes Act's INRMP review process.
Based on our review of the INRMPs for these military installations, and
in accordance with section 4(a)(3)(B)(i) of the Act, we have determined
that the lands within these installations identified as meeting the
definition of critical habitat are subject to the INRMPs, and that
conservation efforts identified in these INRMPs will provide a benefit
to the arroyo toad (see the following sections that detail this
determination for each installation). Therefore, lands within these
installations are exempt from critical habitat designation under
section 4(a)(3)(B) of the Act. We are not including approximately
19,686 ac (7,967 ha) of habitat on Fort Hunter Liggett, MCB Camp
Pendleton, and Fallbrook Naval Weapons Station in this proposed revised
critical habitat designation because of this exemption.
Fort Hunter Liggett Military Reservation
Fort Hunter Liggett was established in 1940 as Hunter Liggett
Military Reservation, when the Army purchased lands belonging to
William Randolph Hearst and other private landowners. The installation
was used intensively to prepare troops for World War II, the Korean and
Vietnam conflicts, and the Cold War, as a training ground for the 7th
Infantry Division formerly stationed at Fort Ord, and as a Test and
Experimentation Command Center. Fort Hunter Liggett occupies
approximately 163,000 ac (66,000 ha) of varied habitats within the
Santa Lucia Mountains in southern Monterey County. Currently, the
installation is used for training by the 40th Mechanized Infantry
Division of the California Army National Guard; reserve units from
several branches of the Armed Forces; active components of the Army
Rangers, Special Forces, Navy Seabees, and Marines; and other
government agencies.
The Fort Hunter Liggett INRMP is a planning document that guides
the management and conservation of natural resources under the
installation's control. The INRMP was prepared to ensure that natural
resources are managed in support of the Fort Hunter Liggett military
training mission and that all activities are consistent with Federal
stewardship requirements. The Fort Hunter Liggett INRMP was completed
in 2005, followed by a revised and updated version in 2007, to address
conservation and management of its natural resources, including
conservation measures for the arroyo toad (U.S. Army Reserve Command
2007, pp. 171-174).
[[Page 52640]]
The INRMP is Fort Hunter Liggett's adaptive plan for managing natural
resources to support and be consistent with the military mission while
protecting and enhancing the biological integrity of lands under its
use (U.S. Army 2004, p. iv). Fort Hunter Liggett is committed to an
ecosystem management approach for its natural resources program by
integrating all components of natural resource management into a
comprehensive and coordinated effort. An integrated approach to
ecosystem management will help protect the biological diversity found
at Fort Hunter Liggett.
The INRMP identifies the following management and protection
measures for the arroyo toad: (1) Implement monitoring that will meet
the Service's criteria to demonstrate population status of arroyo toads
on Fort Hunter Liggett; (2) reduce public and military vehicle
encroachment into sandy riverine habitat, particularly during the
breeding season for the arroyo toad; (3) minimize adverse effects to
arroyo toads from roads and borrow sites (sites where soil and other
material is removed for construction purposes); (4) gain an
understanding of the timing of arroyo toad upland use, extent of upland
use and distance traveled from breeding sites, characteristics of
preferred upland habitat to include micro- and macro-habitats and
substrate of burrowing sites, and use of rodent burrows; (5) identify
threat posed by noxious weeds and reduce noxious weed presence to
improve native habitat and site diversity; (6) obtain geomorphology
information that will provide a foundation for development of
management strategies for arroyo toad habitat and a better idea of
habitat sustainability for arroyo toads; (7) identify threat posed by
nonnative beavers in the San Antonio River in arroyo toad breeding
habitat and outlying areas and implement control if threats warrant;
(8) reduce bullfrog abundance in areas most likely to benefit arroyo
toads; (9) prevent introduction and spread of disease at Fort Hunter
Liggett; (10) maintain a viable population of arroyo toads and suitable
habitat on Fort Hunter Liggett; (11) evaluate current management goals
and actions and adapt to meet species management requirements; (12)
integrate species management and conservation with Fort Hunter Liggett
training and maintenance activities; (13) provide for adaptive
management in accordance with the Fort Hunter Liggett INRMP; and (14)
monitor mortality in order to augment the Service's ability to
determine effects of Fort Hunter Liggett activities on arroyo toad and
identify mortality factors at Fort Hunter Liggett.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts
identified in the 2005 INRMP and 2007 updated INRMP for Fort Hunter
Liggett provide a benefit to the arroyo toad and features essential to
its conservation, and will benefit arroyo toads occurring in habitats
on the installation. This includes habitat located in the Salinas River
Basin (Service 1999, p. 14). Therefore, lands subject to the INRMP for
the Fort Hunter Liggett Military Reservation are exempt from critical
habitat designation under section 4(a)(3)(B) of the Act, and we are not
including approximately 6,453 ac (2,612 ha) of habitat in this proposed
revised critical habitat designation because of this exemption.
Marine Corps Base (MCB) Camp Pendleton
MCB Camp Pendleton is the Marine Corps' premier amphibious training
installation and its only west coast amphibious assault training
center. The installation has been conducting air, sea, and ground
assault training since World War II. MCB Camp Pendleton occupies over
125,000 ac (50,586 ha) of coastal southern California in the northwest
corner of San Diego County. Aside from nearly 10,000 ac (4,047 ha) that
is developed, most of the installation is largely undeveloped land that
is used for training. MCB Camp Pendleton is situated between two major
metropolitan areas: Los Angeles, 82 miles (132 kilometers) to the
north, and San Diego, 38 miles (61 kilometers) to the south. Nearby
communities include Oceanside to the south, Fallbrook to the east, and
San Clemente to the northwest. Aside from a portion of the
installation's border that is shared with the San Mateo Wilderness Area
and the Fallbrook Naval Weapons Station, surrounding land use is urban
development, rural residential development, and agricultural farming
and ranching. The largest single leaseholder on the installation is
California State Parks, which includes a 50-year real estate lease
granted on September 1, 1971, for 2,000 ac (809 ha) that encompasses
San Onofre State Beach.
The MCB Camp Pendleton INRMP is a planning document that guides the
management and conservation of natural resources under the
installation's control. The INRMP was prepared to assist installation
staff and users in their efforts to conserve and rehabilitate natural
resources consistent with the use of MCB Camp Pendleton to train
Marines and set the agenda for managing natural resources on MCB Camp
Pendleton. MCB Camp Pendleton completed its INRMP in 2001, followed by
a revised and updated version in 2007 to address conservation and
management recommendations within the scope of the installation's
military mission, including conservation measures for the arroyo toad
(MCB Camp Pendleton 2007, Appendix F, Section F.1, pp. F1-F5).
Additionally, according to the 2007 INRMP, California State Parks is
required to conduct its natural resources management consistent with
the philosophies and supportive of the objectives of the revised 2007
INRMP (MCB Camp Pendleton 2007, Chapter 2, p. 31).
The arroyo toad receives programmatic protection from training and
other installation activities within the riparian component of its
habitat, as outlined and required in the Riparian Ecosystem
Conservation Plan (MCB Camp Pendleton 2007, Appendix C). Management and
protection measures for the arroyo toad identified in Appendix C of the
INRMP include, but are not limited to, the following: (1) Eliminating
nonnative, invasive species (such as Arundo donax) on the installation
and off the installation in partnership with upstream landowners to
enhance ecosystem value; (2) providing viable riparian corridors and
promoting connectivity of native riparian habitats; (3) maintaining
natural floodplain processes and extent of these areas by avoiding and
minimizing further permanent loss of floodplain habitats; (4)
maintaining to the extent practicable stream and river flows needed to
support riparian habitat; (5) monitoring and maintaining groundwater
levels and basin withdrawals to avoid loss and degradation of habitat
quality; (6) restoring areas to their original condition after
disturbance, such as following project construction or fire damage; and
(7) promoting increased arroyo toad populations in watersheds through
perpetuation of natural ecosystem processes and programmatic
instruction application for avoidance and minimization of impacts (MCB
Camp Pendleton 2007, Appendix C, pp. C5-C8).
Current environmental regulations and restrictions apply to all
threatened and endangered species on the installation (including the
arroyo toad) and are provided to all users of ranges and training areas
to guide activities and protect the species and its habitat. First,
specific conservation measures are applied to arroyo toad and its
habitat
[[Page 52641]]
that include: (1) Controlling nonnative animal species (such as
bullfrogs) and nonnative plant species (such as Arundo donax and
Rorippa spp. (watercress)); and (2) restricting military-related
traffic use within riparian areas to existing roads, trails, and
crossings. Second, MCB Camp Pendleton's environmental security staff
review projects and enforce existing regulations and orders that,
through their implementation, avoid and minimize impacts to natural
resources, including the arroyo toad and its habitat. Third, MCB Camp
Pendleton provides training to personnel on environmental awareness for
sensitive resources on the base, including the arroyo toad and its
habitat. As a result of these regulations and restrictions, activities
occurring on MCB Camp Pendleton are currently conducted in a manner
that minimizes impacts to arroyo toad habitat.
MCB Camp Pendleton's INRMP also benefits the arroyo toad through
ongoing monitoring and research efforts. The installation conducts
annual monitoring to track arroyo toad populations and has conducted a
study to examine arroyo toad use of habitat dominated by Arundo donax
(although analysis of this study is not yet complete). Data are
provided to all necessary personnel through MCB Camp Pendleton's GIS
database on sensitive resources and in their published resource atlas.
Additionally, MCB Camp Pendleton collaborated with the U.S. Geological
Survey's Biological Resources Division to develop and implement a
rigorous, science-based monitoring protocol for arroyo toad populations
throughout the installation, including surveying for presence of eggs
and larvae (Atkinson et al. 2003, pp. 4-5).
We are consulting with the Marine Corps under section 7 of the Act
to programmatically address potential upland impacts to the arroyo toad
(and several other species) as a result of military training and other
activities on MCB Camp Pendleton. Upon completion of this consultation,
we expect additional measures that benefit the arroyo toad will be
incorporated into the INRMP for MCB Camp Pendleton. This consultation
is currently in progress, and we did not rely on any proposed measures
in our consideration of the INRMP under section 4(a)(3)(B) of the Act.
However, upland habitat conservation measures being considered include,
but are not limited to: (1) Implementing programmatic measures to avoid
and minimize impacts to upland habitats adjacent to riparian habitats
occupied by arroyo toads, and (2) compensating for impacts to upland
habitats used by arroyo toads by implementing ongoing installation-wide
upland habitat enhancement programs (such as nonnative vegetation
control, erosion control, and upland habitat restoration).
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts
identified in the 2007 INRMP for MCB Camp Pendleton provide a benefit
to the arroyo toad and its habitat. This includes habitat located in
the following areas: San Mateo Creek, San Onofre Creek, and Santa
Margarita River Basins (names of areas used follow those used in the
recovery plan (Service 1999, pp. 25-27). Therefore, lands subject to
the INRMP for MCB Camp Pendleton, which includes the lands leased from
the Department of Defense by other parties, are exempt from critical
habitat designation under section 4(a)(3)(B) of the Act, and we are not
including approximately 13,010 ac (5,265 ha) of habitat in this
proposed revised critical habitat designation because of this
exemption.
Fallbrook Naval Weapons Station
The Naval Weapons Station Seal Beach, Detachment Fallbrook
(Fallbrook Naval Weapons Station), is the primary west coast supply
point of ordinance for the U.S. Marine Corps and the large deck
amphibious assault ships of the Pacific Fleet. The Fallbrook Naval
Weapons Station also has the only west coast maintenance facility for
air-launched missiles for the Pacific Fleet. The installation
encompasses approximately 8,852 acres (3,582 ha) and is located within
the southern foothills of the Santa Ana Mountains of northern San Diego
County, adjacent to the city of Fallbrook, California. It is bounded to
the north, west, and much of the south by MCB Camp Pendleton, with the
Santa Margarita River forming the common border on the north between
the two properties. Other than training lands on MCB Camp Pendleton,
surrounding land use includes semi-rural agricultural lands that
include plant nurseries, avocado and citrus groves, vineyards, and
limited urban development.
The Fallbrook Naval Weapons Station INRMP is a planning document
that guides the management and conservation of natural resources under
the installation's control. The INRMP was prepared to assist
installation staff and users in their efforts to support mission
operations and accommodate increased military mission requirements for
national security and emergency homeland security, while meeting all
environmental compliance responsibilities. The INRMP also provides
ecosystem-based management to preserve, protect, and enhance natural
resources on the installation, and provides the organizational support
and communication links necessary for effective planning,
implementation, and administration of the installation's natural
resources. The Fallbrook Naval Weapons Station completed its INRMP in
2006 (which was updated from an INRMP developed by the Naval Ordnance
Center Pacific Division in 1996) to address conservation and management
of its natural resources, including conservation measures for the
arroyo toad (Fallbrook Naval Weapons Station 2006, Chapter 3, pp. 108-
110).
The arroyo toad primarily receives protection from installation
activities because no training occurs on the installation, and
maintenance and potential development activities typically do not occur
in arroyo toad habitat due to the steep sloping topography along the
Santa Margarita River that immediately surrounds the suitable habitat.
However, some impacts could occur associated with activities (such as
fuel break grading, fire management, and possible infrastructure) that
may impact the arroyo toad and thus require implementation of specified
protection measures. The INRMP identifies the following management and
protection measures for the arroyo toad: (1) Avoidance and minimization
measures applied to infrastructure development and maintenance to
protect the arroyo toad that are part of the National Environmental
Policy Act approval process; (2) placement of riparian filter strip and
buffer along firebreaks that lead into riparian zones where arroyo
toads may be active; (3) avoidance of firebreak maintenance and fire
suppression activities (where possible); (4) avoidance of discing for
firebreaks leading to the Santa Margarita River during arroyo toad
dispersal periods; (5) implementation of erosion and sediment control;
(6) timing and location protections associated with prescribed burns;
(7) implementation of nonnative vegetation control measures, including
removal of Arundo donax; (8) implementation of standardized survey
methods; (9) evaluation and control of nonnative bullfrogs; and (10)
implementation of long-term monitoring activities, including upland
sites (Fallbrook Naval Weapons Station 2006, Chapter 3, pp. 108-110).
The ongoing monitoring efforts outlined in the INRMP (as listed
above) include surveys of sites at two or more locations along the
Santa Margarita
[[Page 52642]]
River, which includes upland surveys conducted every 5 years, offset
from breeding surveys by 2 years. Surveys are also conducted after
major alteration of the flow regime (natural or anthropogenic).
Finally, the installation conducts annual monitoring to track arroyo
toad populations as part of the fire plan activities, with survey data
available since 2001 (Fallbrook Naval Weapons Station 2006, Chapter 3,
p. 109).
Environmental regulations and restrictions apply to all threatened
and endangered species on the installation (including the arroyo toad)
and are provided to all users of the installation to guide activities
and protect the species and its habitat (Fallbrook Naval Weapons
Station 2006, Chapter 5, p. 25). Biennial meetings are held with the
Service to evaluate all management items associated with threatened and
endangered species, including the arroyo toad.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts
identified in the 2006 INRMP for the Fallbrook Naval Weapons Station
provide a benefit to the arroyo toad, and will benefit arroyo toads
occurring on the installation, which includes habitat located in the
Santa Margarita River Basin (as identified in the recovery plan
(Service 1999, pp. 26-27). Therefore, lands subject to the INRMP for
the Fallbrook Naval Weapons Station are exempt from critical habitat
designation under section 4(a)(3)(B) of the Act, and we are not
including approximately 223 ac (90 ha) of habitat in this proposed
revised critical habitat designation because of this exemption.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the legislative history is clear that the Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor.
Under section 4(b)(2) of the Act, we consider all relevant impacts,
including economic impacts. In compliance with section 4(b)(2) of the
Act, we are preparing a new analysis of the economic impacts of this
proposed revision to critical habitat for the arroyo toad, to evaluate
the potential economic impact of the proposed revised designation. We
will announce the availability of the draft economic analysis as soon
as it is completed, at which time we will seek public review and
comment. At that time, copies of the draft economic analysis will be
available for downloading from the Internet at http://
www.regulations.gov, or by contacting the Ventura Fish and Wildlife
Office or Carlsbad Fish and Wildlife Office directly (see FOR FURTHER
INFORMATION CONTACT). During the development of the final revised
designation, we will consider economic impacts, public comments, and
other new information, and areas, including those identified for
potential exclusion in this proposed rule, may be excluded from the
final critical habitat designation under section 4(b)(2) of the Act and
our implementing regulations at 50 CFR 424.19.
In addition to economic impacts, we consider a number of factors in
a section 4(b)(2) analysis. For example, we consider whether there are
lands owned by the Department of Defense where a national security
impact might exist. We also consider whether landowners have developed
any habitat conservation plans (HCPs) or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged or discouraged by designation of, or exclusion from,
critical habitat in an area. In addition, we look at the presence of
Tribal lands or Tribal Trust resources that might be affected, and
consider the government-to-government relationship of the United States
with the Tribal entities. We also consider any social impacts that
might occur because of the designation.
As discussed in further detail in the ``Habitat Conservation Plan
Lands--Exclusions under Section 4(b)(2) of the Act'' and ``Tribal
Lands--Exclusions Under Section 4(b)(2) of the Act'' sections below, we
have preliminarily identified certain areas that we are considering
excluding from the final revised critical habitat designation for the
arroyo toad under section 4(b)(2) of the Act. However, we specifically
solicit comments on the inclusion or exclusion of such areas (see
Public Comments section).
Most federally listed species in the United States will not recover
without the cooperation of non-Federal landowners. More than 60 percent
of the United States is privately owned (National Wilderness Institute
1995, p. 2), and at least 80 percent of endangered or threatened
species occur either partially or solely on private lands (Crouse et
al. 2002, p. 720). Stein et al. (1995, p. 400) found that only about 12
percent of listed species were found almost exclusively on Federal
lands (90 to 100 percent of their known occurrences restricted to
Federal lands) and that 50 percent of federally listed species are not
known to occur on Federal lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-Federal landowners
(Wilcove and Chen 1998; p. 1407; Crouse et al. 2002; p. 720; James
2002, p. 271). Building partnerships and promoting voluntary
cooperation of landowners are essential to our understanding the status
of species on non-Federal lands, and necessary for us to implement
recovery actions such as reintroducing listed species and restoring and
protecting habitat.
Many private landowners, however, are wary of the possible
consequences of attracting endangered species to their property.
Mounting evidence suggests that some regulatory actions by the Federal
Government, while well-intentioned and required by law, can (under
certain circumstances) have unintended negative consequences for the
conservation of species on private lands (Wilcove et al. 1996; pp. 5-6;
Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp.
270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-1643). Many
landowners fear a decline in their property value due to real or
perceived restrictions on land-use options where threatened or
endangered species are found. Consequently, harboring endangered
species is viewed by many landowners as a liability. This perception
results in anti-conservation incentives, because maintaining habitats
that harbor endangered species represents a risk to future economic
opportunities (Main et al. 1999, pp. 1264-1265; Brook et al. 2003, pp.
1644-1648).
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome
[[Page 52643]]
of the designation, triggering regulatory requirements for actions
funded, authorized, or carried out by Federal agencies under section
7(a)(2) of the Act, can sometimes be counterproductive to its intended
purpose on non-Federal lands. Thus, the benefits of excluding areas
that are covered by effective partnerships or other conservation
commitments can often be high.
Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act
Section 10(a)(1)(B) of the Act authorizes us to issue permits to
non-Federal entities for the take of listed species incidental to
otherwise lawful activities. An incidental take permit application must
be supported by a habitat conservation plan (HCP) that identifies
conservation measures that the permittee agrees to implement for the
species to minimize and mitigate the impacts of the requested
incidental take. We may exclude from critical habitat designation non-
Federal public lands and private lands that are covered by an existing
operative HCP and any applicable implementation agreement under section
10(a)(1)(B) of the Act, if we make a determination that the benefits of
exclusion outweigh the benefits of inclusion as discussed in section
4(b)(2) of the Act. We are considering whether to exclude lands covered
by the Western Riverside County Multiple Species HCP (Western Riverside
County MSHCP), San Diego Multiple Species Conservation Program (MSCP),
Coachella Valley Multiple-Species HCP (Coachella Valley MSHCP), the
Southern Orange County Natural Community Conservation Plan (NCCP)/
Master Streambed Alteration Agreement/HCP (Southern Orange HCP), and
the Orange County Central-Coastal Subregional NCCP/HCP (Orange County
Central-Coastal NCCP/HCP) (see the ``Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act'' section below).
If the Secretary decides to exercise his discretion under section
4(b)(2) of the Act, the following areas of habitat are being considered
for possible exclusion from final revised critical habitat for the
arroyo toad: 6,386 ac (2,583 ha) in the Western Riverside County MSHCP
(Units 9 and 13); 8,942 ac (3,620 ha) in the San Diego MSCP-City and
County of San Diego's Subarea Plans (Subunits 16a, 17b, 17d, 18a, 18c,
and 19b); 538 ac (218 ha) in the Coachella Valley MSHCP (Unit 23);
1,497 ac (606 ha) in the Orange County Central-Coastal NCCP/HCP; and
4,407 ac (1,784 ha) in the Southern Orange HCP (Subunit 10a and Subunit
11a).
Table 3 below provides approximate areas (in acres and hectares) of
lands that meet the definition of critical habitat but are exempt from
designation under section 4(a)(3) of the Act (see ``Application of
Section 4(a)(3) of the Act'' section above) or the Service is
considering for possible exclusion under section 4(b)(2) of the Act
from the final revised critical habitat rule.
Table 3--Exemptions and Potential Exclusions From Proposed Revised
Critical Habitat for the Arroyo Toad
------------------------------------------------------------------------
Acres Hectares
------------------------------------------------------------------------
Exemptions Under Section 4(a)(3) of the Act
------------------------------------------------------------------------
Military Lands:
Fort Hunter Liggett Military 6,453 2,612
Reservation........................
Marine Corps Base, Camp Pendleton... 13,010 5,265
Fallbrook Naval Weapons Station..... 223 90
-------------------------------
Total........................... 19,686 7,967
------------------------------------------------------------------------
Potential Exclusions Considered Under Section 4(b)(2) of the Act
------------------------------------------------------------------------
Habitat Conservation Plans:
Western Riverside County Multiple 6,386 2,583
Species Habitat Conservation Plan
(MSHCP)............................
City of San Diego and County of San 8,942 3,620
Diego Subarea Plans under the San
Diego Multiple Species Conservation
Program (MSCP).....................
Coachella Valley Multiple Species 538 218
Habitat Conservation Plan
(Coachella Valley MSHCP)...........
Southern Orange Natural Community 4,407 1,784
Conservation Plan/Master Streambed
Alteration Agreement/Habitat
Conservation Plan (Southern Orange
HCP)...............................
Orange County-Coastal Subregional 1,497 606
Habitat Conservation Plan/Natural
Community Conservation Plan (Orange
County Central-Coastal NCCP/HCP )..
-------------------------------
Total........................... 21,770 8,811
------------------------------------------------------------------------
Tribal Lands:
Rincon Band of Luise[ntilde]o 1,155 467
Mission Indians Tribal Lands.......
Pala Band of Luise[ntilde]o Mission 2,385 963
Indians............................
Sycuan Band of the Kumeyaay Nation 391 158
Tribal Lands.......................
Capitan Grande Band of Diegueno 92 37
Mission Indians....................
Mesa Grande Band of Diegueno Mission 23 9
Indians............................
-------------------------------
Total........................... 4,046 1,634
------------------------------------------------------------------------
Values in table may not sum due to rounding.
[[Page 52644]]
Western Riverside County Multiple Species Habitat Conservation Plan
(Western Riverside County MSHCP)
The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional HCP encompassing about 1.26 million ac (510,000 ha) in
western Riverside County (including lands within Units 9 and 13). The
Western Riverside County MSHCP addresses 146 listed and unlisted
``covered species,'' including the arroyo toad. Participants in the
Western Riverside County MSHCP include 14 cities; the County of
Riverside, including the Riverside County Flood Control and Water
Conservation Agency (County Flood Control), Riverside County
Transportation Commission, Riverside County Parks and Open Space
District, and Riverside County Waste Department; California State
Parks; and the California Department of Transportation. The Western
Riverside County MSHCP was designed to establish a multi-species
conservation program that minimizes and mitigates the expected loss of
habitat and the incidental take of covered species. On June 22, 2004,
the Service issued a single incidental take permit (Service 2004, p.
140) under section 10(a)(1)(B) of the Act to 22 permittees under the
Western Riverside County MSHCP for a period of 75 years. For the
reasons discussed under the ``Application of Section 4(b)(2) of the
Act'' section of this rule, if the Secretary decides to exercise his
discretion under section 4(b)(2) of the Act, we are considering the
possible exclusion of non-Federal lands that meet the definition of
critical habitat within the Western Riverside County MSHCP from the
final designation. Specifically, we are considering the exclusion of
6,386 ac (2,583 ha) in Units 9 and 13.
The Western Riverside County MSHCP will establish approximately
153,000 ac (61,917 ha) of new conservation lands (Additional Reserve
Lands) to complement the approximately 347,000 ac (140,426 ha) of pre-
existing natural and open space areas (Public/Quasi-Public lands).
These Public/Quasi-Public lands include those under Federal ownership,
primarily Forest Service and Bureau of Land Management lands, and also
permittee-owned or controlled open-space areas (such as wildlife
habitat within State and County parks). Collectively, the Additional
Reserve Lands and Public/Quasi-Public lands form the overall Western
Riverside County MSHCP Conservation Area. The configuration of the
153,000 ac (61,916 ha) of Additional Reserve Lands is not mapped or
precisely identified (``hard-lined'') in the Western Riverside County
MSHCP, but rather is based on textual descriptions of the type of
habitat conservation necessary to meet the conservation goals for all
covered species within the bounds of the approximately 310,000-ac
(125,453-ha) Criteria Area as implementation of the Western Riverside
County MSHCP takes place. We internally mapped a ``Conceptual Reserve
Design'' that illustrates existing Public/Quasi-Public lands and
predicts the geographic distribution of the Additional Reserve Lands
based on our interpretation of the textual descriptions of habitat
conservation necessary to meet conservation goals.
Specific conservation objectives in the Western Riverside County
MSHCP for the arroyo toad include conserving 9,695 ac (3,914 ha) of
occupied habitat or suitable habitat for the species in the Western
Riverside County MSHCP Conservation Area (Service 2004, p. 163). This
acreage goal can be attained through acquisition or other dedications
of land assembled from within the Criteria Area (the Additional Reserve
Lands) and through coordinated management of existing Public/Quasi-
Public lands. (See paragraph below for discussion of amount of habitat
expected to be conserved on Additional Reserve Lands.) Preservation and
management of arroyo toad habitat under the Western Riverside County
MSHCP will contribute to the conservation and ultimate recovery of this
species. The arroyo toad is threatened primarily by: Alterations of
stream hydrology and geomorphology; development; agriculture, including
livestock grazing; recreational activities; and nonnative species
(Service 2004, pp. 156-158). The Western Riverside County MSHCP removes
or reduces threats to this species and its PCEs by placing large blocks
of occupied and unoccupied habitat into preservation throughout the
Conservation Area. Areas identified for preservation and conservation
include nine of the known occurrences along portions of San Juan Creek,
Los Alamos Creek, San Jacinto River, Indian Creek, Bautista Creek,
Wilson Creek, Temecula Creek, Arroyo Seco, and Vail Lake. The Western
Riverside County MSHCP will maintain ecological processes within the
MSHCP Conservation Area given existing constraints and activities
covered under the MSHCP along portions of San Juan Creek, San Jacinto
River, Indian Creek, Bautista Creek, Wilson Creek, Temecula Creek,
Arroyo Seco, and Vail Lake. Additionally, the Western Riverside County
MSHCP requires surveys for the arroyo toad as part of the project
review process for public and private projects where suitable habitat
is present within defined survey areas (see Amphibian Species Survey
Area Map, Figure 6-3 of the Western Riverside County MSHCP, Volume I in
Dudek and Associates, Inc. 2003). For locations with positive survey
results, 90 percent of those portions of the property that provide
long-term conservation value for the species will be avoided until it
is demonstrated that the conservation objectives for the species are
met (see Additional Survey Needs and Procedures, Western Riverside
County MSHCP, Volume 1, section 6.3.2 in Dudek and Associates, Inc.
2003). Once the species-specific objectives are met, avoided areas
would be evaluated to determine whether they should be released for
development or included in the MSHCP Conservation Area.
The survey requirements, avoidance and minimization measures, and
management for the arroyo toad--(and its PCEs) provided for in the
Western Riverside County MSHCP are expected to benefit this species on
public and private lands covered by the plan. We are considering the
exclusion of approximately 6,386 ac (2,583 ha) of private lands in
Units 9 and 13 within the Western Riverside County MSHCP Plan Area from
the final revised critical habitat designation under section 4(b)(2) of
the Act. Projects in the areas proposed as critical habitat that occur
on these lands are subject to approval by Western Riverside County
MSHCP permittees, therefore the conservation requirements of the MSHCP
would apply. At this time, approximately 43 ac (38 ha) within Units 9
and 13 have been acquired for conservation under the Western Riverside
County MSHCP. Our Conceptual Reserve Design indicates that another 68
percent (4,359 ac (1,764 ha)) of the lands in Units 9 and 13 that we
are considering for exclusion will likely be acquired for conservation
as Additional Reserve Lands. Of the remaining 31 percent of lands in
Units 9 and 13 that we are considering for exclusion, 1,814 ac (728
ha), or 91 percent, of these lands are within the Western Riverside
County MSHCP survey area for the arroyo toad and are subject to the
Additional Survey Needs and Procedures Policy described above.
The Western Riverside County MSHCP incorporates processes that
allow for Service oversight and participation in program
implementation. These processes include: (1) Consultation with the
Service on a long-term management and monitoring plan; (2) submission
of
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annual monitoring reports; (3) annual status meetings with the Service;
and (4) submission of annual implementation reports to the Service
(Service 2004, pp. 18-23).
In summary, we are considering exclusion of 6,386 ac (2,583 ha) of
arroyo toad habitat on private lands in Units 9 and 13 that meet the
definition of critical habitat for arroyo toad within the Western
Riverside County MSHCP under section 4(b)(2) of the Act. The 1994 final
listing rule for arroyo toad identified the following primary threats
to the arroyo toad: habitat degradation, predation, and small
population size (59 FR 64866). The implementation of the Western
Riverside County MSHCP helps to address these threats through a
regional planning effort, and outlines species-specific objectives and
criteria for the conservation of the arroyo toad. We will analyze the
benefits of inclusion and exclusion of this area from proposed revised
critical habitat under section 4(b)(2) of the Act. We encourage any
public comment in relation to our consideration of the areas in Units 9
and 13 for inclusion or exclusion (see Public Comments section above).
San Diego Multiple Species Conservation Plan (MSCP-City and County of
San Diego's Subarea Plans
The MSCP is a framework HCP that has been in place for more than a
decade. The plan area encompasses approximately 582,243 ac (235,626 ha)
(County of San Diego 1997, p. 1-1; City of San Diego 1998, pp. 2-1, and
4-2 to 4-4) and provides for conservation of 85 federally listed and
sensitive species (``covered species'') through the establishment and
management of approximately 171,920 ac (69,574 ha) of preserve lands
within the Multi-Habitat Planning Area (City of San Diego) and Pre-
Approved Mitigation Areas (County of San Diego). The MSCP was developed
in support of applications for incidental take permits for several
federally listed species by 12 participating jurisdictions and many
other stakeholders in southwestern San Diego County. Under the umbrella
of the MSCP, each of the 12 participating jurisdictions is required to
prepare a subarea plan that implements the goals of the MSCP within
that particular jurisdiction. Separate Subarea Plans for the County of
San Diego and the City of San Diego have been completed and include
evaluations of the arroyo toad. For the reasons discussed under the
``Application of Section 4(b)(2) of the Act'' section of this rule, if
the Secretary decides to exercise his discretion under section 4(b)(2)
of the Act, we are considering the possible exclusion of lands that
meet the definition of critical habitat within the City of San Diego
Subarea Plan and County of San Diego Subarea Plan. Specifically, we are
considering the exclusion of 8,942 ac (3,620 ha) in Subunits 16a, 17b,
17d, 18a, 18c, and 19b.
Upon completion of preserve assembly, approximately 171,920 ac
(69,574 ha) of the 582,243-ac (235,626-ha) MSCP plan area will be
preserved (City of San Diego 1998, pp. 2-1, and 4-2 to 4-4). The City
of San Diego's preserve is delineated by mapped preserve boundaries
referred to as ``hardline'' boundaries (the Multi-Habitat Planning
Area). The County of San Diego has both ``hardline'' boundaries as well
as preserve areas that do not have ``hardline'' boundaries. In areas
where the ``hardlines'' are not defined, the County's subarea plan
identifies areas where mitigation activities should be focused to
assemble its preserve areas (the Pre-Approved Mitigation Areas). Those
areas of the MSCP preserve that are already conserved, as well as those
areas that are designated for inclusion in the preserve under the plan,
are referred to as the ``preserve area'' in this proposed revised
critical habitat designation. When the preserve is completed, the
public sector (Federal, State, and local government, and the general
public) will have contributed 108,750 ac (44,010 ha) (63.3 percent) to
the preserve, of which 81,750 ac (33,083 ha) (48 percent) was existing
public land when the MSCP was established and 27,000 ac (10,927 ha) (16
percent) will have been acquired. At completion, the private sector
will have contributed 63,170 ac (25,564 ha) (37 percent) to the
preserve as part of the development process, either through avoidance
of impacts or as compensatory mitigation for impacts to biological
resources outside the preserve. Federal and State governments, local
jurisdictions and special districts, and managers of privately owned
lands currently and in the future will manage and monitor their lands
in the preserve for species and habitat protection (City of San Diego
1998, pp. 2-1, and 4-2 to 4-4).
Private lands within the Multi-Habitat Planning Area and Pre-
Approved Mitigation Areas are subject to special restrictions on
development, and lands that are dedicated to the preserve must be
legally protected and permanently managed to conserve the covered
species. Public lands owned by the City, County, State of California,
and the Federal Government that are identified for conservation under
the MSCP must also be protected and permanently managed to protect the
covered species.
Numerous processes are incorporated into the MSCP that allow our
oversight of the MSCP implementation. For example, the MSCP imposes
annual reporting requirements and provides for our review and approval
of proposed subarea plan amendments and preserve boundary adjustments
and for Service review and comment on projects during the California
Environmental Quality Act review process. We also chair the MSCP
Habitat Management Technical Committee and the Monitoring Subcommittee
(City of San Diego 1998, pp. 5-11 to 5-23). Each MSCP subarea plan must
account annually for the progress it is making in assembling
conservation areas. We must receive annual reports that include, both
by project and cumulatively, the habitat acreage destroyed and
conserved within the subareas. This accounting process ensures that
habitat conservation proceeds in rough proportion to habitat loss and
in compliance with the MSCP subarea plans and the plans' associated
implementing agreements.
The subarea plans under the MSCP contain requirements to monitor
and adaptively manage arroyo toad habitat and provide for the
conservation of this species' PCEs. The framework and area-specific
management plans are comprehensive and address a broad range of
management needs at the preserve and species levels that are intended
to reduce the threats to covered species and thereby contribute to the
recovery of the species. These plans include the following: (1) Fire
management, which includes deferring to the California Department of
Forestry and Fire Protection for management activities; (2) public
access control; (3) fencing and gates; (4) ranger patrol; (5) trail
maintenance; (6) visitor, interpretive, and volunteer services; (7)
hydrological management; (8) signage and lighting; (9) trash and litter
removal; (10) access road maintenance; (11) enforcement of property or
homeowner requirements; (12) removal of invasive species; (13)
nonnative predator control; (14) species monitoring; (15) habitat
restoration; (16) management for diverse age classes of covered
species; (17) use of herbicides and rodenticides; (18) biological
surveys; (19) research; and (20) species management conditions (City of
San Diego 1998, pp. 6-7).
Specific conservation objectives for the arroyo toad in the subarea
plans under the MSCP include preservation of all known (breeding)
locations of this species and minimization of impacts to uplands areas
within the MSCP planning area. Additionally, impacts to
[[Page 52646]]
the species will be minimized within the preserve through required
implementation of area-specific management directives, which must
address maintenance of arroyo toad populations through control of
nonnative predators, protection and maintenance of sufficient suitable
low-gradient sandy stream habitat (including appropriate water quality)
to meet breeding requirements, and preservation of sheltering and
foraging habitat within 0.62 mi (1 km) of breeding habitat that
supports or is likely to support the arroyo toad (City of San Diego
1997, p. 142; Service 1997, pp. 80, 102).
At this time, 10 years into the implementation of the City and
County of San Diego's subarea plans, approximately 1,622 ac (656 ha),
or 19 percent, of lands that we are considering for exclusion have been
conserved. An additional 2,891 ac (1,170 ha), or 34 percent, are
targeted for conservation in accordance with the subarea plans inside
the Pre-Approved Mitigation Areas and Multi-Habitat Planning Area.
Similarly, although some areas placed in conservation are not yet fully
managed, such management will occur over time as the subarea plans
continue to be implemented.
In summary, we are considering exclusion of 8,942 ac (3,620 ha) of
arroyo toad habitat on non-Federal lands in Subunits 16a, 17b, 17d,
18a, 18c, and 19b that meet the definition of critical habitat for
arroyo toad within the City of San Diego's Subarea Plan and the County
of San Diego's Subarea Plan under section 4(b)(2) of the Act, of which
19 percent (1,593 ac (644 ha)) have been conserved. The 1994 final
listing rule for arroyo toad identified the following primary threats
to the arroyo toad: habitat degradation, predation, and small
population size (59 FR 64866). The implementation of both subarea plans
helps to address these threats through a regional planning effort
rather than through a project-by-project approach, and outlines
species-specific objectives and criteria for the conservation of the
arroyo toad. We will analyze the benefits of inclusion and exclusion of
the areas within the jurisdictions of each subarea plan from critical
habitat under section 4(b)(2) of the Act. We encourage any public
comment in relation to our consideration of the areas in Subunits 16a,
17d, 18a, 18c, and 19b for inclusion or exclusion (see Public Comments
section above).
Coachella Valley Multiple Species Habitat Conservation Plan (Coachella
Valley MSHCP)
The Coachella Valley MSHCP is a large-scale, multi-jurisdictional
habitat conservation plan encompassing about 1.1 million ac (445,156
ha) in the Coachella Valley of Riverside County (including lands within
Unit 23). An additional 69,000 ac (27,923) of Indian Reservation lands
are not included in the Coachella Valley MSHCP, but are within the plan
area boundary. The Coachella Valley MSHCP addresses 27 listed and
unlisted ``covered species,'' including arroyo toad. Participants in
the Coachella Valley MSHCP include eight cities (Cathedral City,
Coachella, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs,
and Rancho Mirage); the County of Riverside, including the Riverside
County Flood Control and Water Conservation District, Riverside County
Parks and Open Space District, Riverside County Waste Management
District; the Coachella Valley Association of Governments; Coachella
Valley Water District; Imperial Irrigation District; California
Department of Transportation; California State Parks; Coachella Valley
Mountains Conservancy; and the Coachella Valley Conservation Commission
(the created joint powers regional authority). The Coachella Valley
MSHCP was designed to establish a multiple species habitat conservation
program that minimizes and mitigates the expected loss of habitat and
the incidental take of covered species. On October 1, 2008, the Service
issued a single incidental take permit (TE-104604-0) under section
10(a)(1)(B) of the Act to 19 permittees under the Coachella Valley
MSHCP for a period of 75 years. For the reasons discussed under the
``Application of Section 4(b)(2) of the Act'' section of this rule, if
the Secretary decides to exercise his discretion under section 4(b)(2)
of the Act, we are considering the possible exclusion of lands that
meet the definition of critical habitat within the Coachella Valley
MSHCP. Specifically, we are considering the exclusion of 538 ac (218
ha) in Unit 23.
The Coachella Valley MSHCP will establish an approximately 721,457-
ac (291,964-ha) Reserve System comprised of 557,100 ac (225,451 ha) of
Existing Conservation Lands, up to 29,990 ac (12,137 ha) of
Complementary Conservation, and up to 8,777 ac (3,552 ha) of Public and
Quasi-Public lands. The permittees will mitigate for the impacts of the
take on covered species by conserving 96,400 ac (39,012 ha) (7,500 ac
(3,035 ha) of existing local permittee lands and 88,900 ac (35,977 ha)
of new conservation) of habitat and perpetually managing 125,590 ac
(50,825 ha) within the Reserve System. The location and configuration
of the 88,900 ac (35,977 ha) of new local permittee mitigation lands
and the 21,390 ac (8,656 ha) that will be acquired through State and
Federal contributions are not precisely mapped, but will be assembled
from the 21 conservation areas identified in the Coachella Valley
MSHCP. Within each conservation area, 90 percent of each natural
community within each jurisdiction will be conserved and no more than
10 percent of the habitat will be lost. In general, the design of the
overall Reserve System was intended to capture core habitats,
ecological processes, and biological corridors and linkages. The
permittees' collection and use of development mitigation fees, landfill
tipping fees, and other funding specified in the Coachella Valley MSHCP
and related documents will be used to acquire, protect, and manage the
Reserve System in perpetuity. The permittees, the State, and Service
will work cooperatively to enter into a Memorandum of Understanding or
other appropriate agreements with Federal, State, and non-governmental
organization land managers to cooperatively manage the Existing
Conservation Lands in conformance with the MSHCP. In addition, the
Coachella Valley MSHCP includes measures to avoid and minimize impacts
on covered species resulting from covered activities.
The Coachella Valley MSHCP plan area includes about 2,095 ac (846
ha) of suitable arroyo toad habitat (Dudek and CVAG 2007, pp. 9-88) of
which approximately 1,301 ac (526 ha) contain the physical and
biological features essential to the conservation of the species. Of
suitable habitat, 2,082 ac (841 ha) are identified in the Coachella
Valley MSHCP as ``Core Habitat'' for the species. Core Habitat is
defined as areas of habitat that: (1) Are of sufficient size to support
a self-sustaining population for the species; (2) are not fragmented in
a way to cause separation into isolated populations; (3) have
functional essential ecological processes; and (4) have effective
biological corridors or linkages to other habitats, where feasible, to
allow gene flow among populations (Dudek and CVAG 2007, p. xxxi).
Specific conservation goals, conservation objectives, and required
measures for the arroyo toad in the Coachella Valley MSHCP include
protection of 2,007 ac (810 ha) of arroyo toad habitat comprised of
2,004 ac (809
[[Page 52647]]
ha) (96 percent) of Core Habitat along with 3 ac (1 ha) of Other
Conserved Habitat (land that is permanently protected and managed for
the benefit of the species) (Dudek and CVAG 2007, pp. xxxi, 9-88). Of
the habitat identified for protection in the Reserve System,
approximately 1,301 ac (525 ha) are on Bureau of Land Management lands
(Existing Conservation Lands) and are anticipated to be managed pending
a Memorandum of Understanding with the Bureau of Land Management
(Service 2008, p. 176). The remaining 706 ac (285 ha) will be acquired
from willing sellers on private lands (Dudek and CVAG 2007, pp. 9-87).
We are considering for exclusion approximately 538 ac (218 ha) of non-
Federal lands that meet the definition of critical habitat for the
arroyo toad within the Coachella Valley MSHCP. Of these lands,
approximately 483 ac (195 ha), or 90 percent, are within Core Habitat
areas.
The Coachella Valley MSHCP Reserve System will protect and manage
Core Habitat areas for the arroyo toad in perpetuity. The Coachella
Valley MSHCP provides for management and monitoring programs to ensure
the conservation of this species, including control of activities that
adversely impact water quality and the hydrological regime, disturbance
from recreational activity in sensitive areas, control of invasive
species where necessary, and restoration and enhancement of degraded
habitat as necessary (Dudek and CVAG 2007, pp. 9-89). Additionally, the
Coachella Valley MSHCP includes an educational program for residents
and visitors in Whitewater Canyon to inform them about the arroyo toad
and its conservation needs (Dudek and CVAG 2007, pp. 9-89).
At this time, approximately 481 ac (195 ha), or 89 percent, of
lands that we are considering for exclusion have been acquired for
conservation under the Coachella Valley MSHCP. In addition, 45 ac (18
ha) that meet the definition of critical habitat are not identified as
either Core or Other Conserved Habitat by the Coachella Valley MSHCP,
but fall within Conservation Areas under the Coachella Valley MSHCP. We
anticipate that 41 ac (17 ha), or 90 percent, of these lands will be
conserved under the Coachella Valley MSHCP.
In summary, we are considering exclusion of 538 ac (218 ha) of
arroyo toad habitat on non-Federal lands in Unit 23 that meets the
definition of critical habitat for arroyo toad within the Coachella
Valley MSHCP under section 4(b)(2) of the Act, of which 89 percent (481
ac (195 ha)) have been conserved. The 1994 final listing rule for
arroyo toad identified the following primary threats to the arroyo
toad: habitat degradation, predation, and small population size (59 FR
64866). The implementation of the Coachella Valley MSHCP helps to
address these threats through a regional planning effort, and outlines
species-specific objectives and criteria for the conservation of the
arroyo toad. We will analyze the benefits of inclusion and exclusion of
this area from critical habitat under section 4(b)(2) of the Act. We
encourage any public comment in relation to our consideration of the
areas in Unit 23 for inclusion or exclusion (see Public Comments
section above).
Orange County Central-Coastal Subregional Habitat Conservation Plan/
Natural Community Conservation Plan (Orange County Central-Coastal
NCCP/HCP)
The Orange County Central-Coastal NCCP/HCP in central Orange County
(Unit 8) was developed in cooperation with numerous local and State
jurisdictions and agencies, and participating landowners, including the
cities of Anaheim, Costa Mesa, Irvine, Orange, and San Juan Capistrano;
Southern California Edison; Transportation Corridor Agencies; The
Irvine Company; California Department of Parks and Recreation;
Metropolitan Water District of Southern California; and Orange County.
Approved in 1996, the Orange County Central-Coastal NCCP/HCP provides
for the establishment of approximately 38,738 ac (15,677 ha) of reserve
lands for 39 covered species within the 208,713-ac (84,463-ha) planning
area. We issued an incidental take permit under section 10(a)(1)(B) of
the Act that provides conditional incidental take authorization for the
arroyo toad for all areas within the Orange County Central-Coastal
Subregion, except the North Ranch Policy Plan Area. This take
authorization only applies to smaller arroyo toad populations,
reintroduced populations, or populations that have expanded due to
NCCP/HCP reserve management. It also requires implementation of a
mitigation plan to relocate toads to protected areas within reserves,
when necessary. For the reasons discussed under the ``Application of
Section 4(b)(2) of the Act'' section of this rule, we are considering
the possible exclusion of lands that meet the definition of critical
habitat within the Orange County Central-Coastal NCCP/HCP.
Specifically, we are considering the exclusion of 1,497 ac (606 ha) in
Unit 8.
The North Ranch Policy Plan Area was excluded from take
authorization provided under the Orange County Central-Coastal NCCP/HCP
due to a lack of detailed biological information and specific
conservation commitments at the time of adoption of the NCCP/HCP. We
have since determined that arroyo toad habitat within the North Ranch
Policy Plan Area meets the definition of critical habitat for the
arroyo toad in that it has the features essential to the conservation
of the species and because it helps support a viable Santa Ana Mountain
arroyo toad population. In 2002, the owner, The Irvine Company, granted
a conservation easement to The Nature Conservancy over a portion of the
North Ranch Policy Plan Area and has taken steps to conserve this area,
including a $10 million management endowment. Approximately 761 ac (308
ha), or 51 percent, of lands that we are considering for exclusion fall
within the conservation easement.
The Orange County Central-Coastal NCCP/HCP's reserve system
includes approximately 592 ac (240 ha), or 40 percent, of lands that we
are considering for exclusion. The Orange County Central-Coastal NCCP/
HCP provides for monitoring of covered species, including the arroyo
toad, and adaptive management for covered species and their habitat
within this reserve system. Adaptive management activities may include
a program to control nonnative predators, such as bullfrogs, clawed
frogs, and nonnative fishes. To date, monitoring related to arroyo toad
has consisted of reserve-wide herpetofauna surveys conducted from 1997
through 2001 and management activities with potential to benefit arroyo
toad, which include ongoing control of invasive nonnative vegetation in
the upland environment throughout the reserve system.
The Orange County Central-Coastal NCCP/HCP requires the
implementation of a mitigation plan if a planned activity results in
take of arroyo toads. The mitigation plan will: (1) Address design
modifications and other on-site measures that are consistent with the
project's purposes, minimize impacts, and provide appropriate
protections for the arroyo toad; (2) provide for arroyo toad relocation
to a location acceptable to the Service and California Department of
Fish and Game, coupled with compensatory habitat management/enhancement
activities at the relocation site; and (3) provide for monitoring and
adaptive management of arroyo toads and their habitat.
In summary, we are considering exclusion of 1,497 ac (606 ha) of
arroyo
[[Page 52648]]
toad habitat on permittee-owned or controlled lands in Unit 8 that
meets the definition of critical habitat for arroyo toad within the
Orange County Central-Coastal Subregional NCCP/HCP under section
4(b)(2) of the Act. Approximately 51 percent (761 ac (308 ha)) of these
lands are conserved within the North Ranch Policy Plan Area and another
40 percent (592 ac (240 ha)) are conserved within this NCCP/HCP's
reserve system. The 1994 final listing rule for arroyo toad identified
the following primary threats to the arroyo toad: habitat degradation,
predation, and small population size (59 FR 64866). The implementation
of the Orange County Central-Coastal Subregional NCCP/HCP helps to
address these threats through a regional planning effort, and outlines
species-specific objectives and criteria for the conservation of the
arroyo toad. We will analyze the benefits of inclusion and exclusion of
this area from critical habitat under section 4(b)(2) of the Act. We
encourage any public comment in relation to our consideration of the
areas in Unit 8 for inclusion or exclusion (see Public Comments section
above).
Southern Orange County Natural Community Conservation Plan/Master
Streambed Alteration Agreement/Habitat Conservation Plan (Southern
Orange HCP)
The Southern Orange HCP is a large-scale multi-jurisdictional HCP
encompassing approximately 86,021 ac (34,811 ha) in southern Orange
County (including lands within Subunit 10a and Subunit 11a). The
Southern Orange HCP was developed by the County of Orange (County),
Rancho Mission Viejo, and the Santa Margarita Water District (Water
District) to address impacts to 32 species, including the arroyo toad,
resulting from residential and associated infrastructure development.
On January 10, 2007, the Service issued incidental take permits
(Service 2007, p. 431) under section 10(a)(1)(B) of the Act to the
three permittees for a period of 75 years. For the reasons discussed
under the ``Application of Section 4(b)(2) of the Act'' section of this
rule, we are considering the possible exclusion of lands that meet the
definition of critical habitat within the Southern Orange HCP.
Specifically, we are considering the exclusion of 4,407 ac (1,784 ha)
in Subunit 10a and Subunit 11a.
The Southern Orange HCP will establish approximately 30,426 ac
(12,313 ha) of habitat reserve (Service 2007, p. 19). The HCP provides
for a large, biologically diverse and permanent habitat reserve that
will protect: (1) Large blocks of natural vegetation communities that
provide habitat for the covered species; (2) ``important'' and
``major'' populations of the covered species in key locations; (3)
wildlife corridors and habitat linkages that connect the large habitat
blocks and covered species populations to each other, the Cleveland
National Forest, and the adjacent Orange County Central-Coastal NCCP/
HCP; and (4) the underlying hydrogeomorphic processes that support the
major vegetation communities providing habitat for the covered species
(Service 2007, p. 10).
Habitat for the arroyo toad was modeled during the Southern Orange
HCP process. Specific conservation goals in the Southern Orange HCP for
the arroyo toad include the conservation and management of 1,322 ac
(534 ha) of HCP-modeled habitat within Rancho Mission Viejo (Service
2007, p. 59), of which approximately 1,208 ac (489 ha), or 28 percent,
meet the definition of critical habitat. An additional 2,297 ac (943
ha), or 52 percent, of lands that we are considering for exclusion fall
outside of the HCP-modeled habitat, but entirely within Southern Orange
HCP's habitat reserve. Thus, Southern Orange HCP's habitat reserve
encompasses 3,505 ac (1415 ha), or 80 percent, of lands that we are
considering for exclusion. While not all habitat in the reserve will be
conserved, the habitat reserve will contain habitat to support all of
the known populations in Rancho Mission Viejo and County lands,
including San Juan Creek, Talega Canyon, Bell Canyon, and Lower
Cristianitos Creek/Lower Gabino Canyon (Service 2007, p. 62). Following
implementation of the HCP, all of the known populations will be
conserved as follows:
(1) Almost all of the documented breeding habitat will be
conserved;
(2) Only a small portion (a maximum of 28 of 650 ac (11 of 263 ha),
or 4 percent) of HCP-modeled habitat for arroyo toad in the San Mateo
Creek watershed (Subunit 11a) will be impacted. The conservation and
management of all breeding habitat and remaining upland habitat is
anticipated to maintain the populations in Talega Creek and lower
Cristianitos Creek/lower Gabino Canyon;
(3) Implementation of the HCP will impact a substantial portion
(402 of 1,074 ac (163 of 435 ha), or 37 percent) of HCP-modeled upland
habitat for arroyo toad along San Juan Creek (Subunit 10a) on Rancho
Mission Viejo. However, the conservation and management of breeding
habitat and remaining upland habitat in San Juan Creek combined with
the already-conserved habitat in Bell Canyon (Subunit 10a) on County
land and restoration of 24 ac (10 ha) of breeding habitat in upper San
Juan Creek on County land is anticipated to maintain the population
along San Juan Creek; and
(4) The population in Bell Canyon and the portion of the population
in upper San Juan Creek (Subunit 10a) are already conserved on County
land and will be cooperatively managed by the County (Service 2007, p.
67).
In addition to the creation of a habitat reserve, the following
conservation measures specified in the Southern Orange HCP will
contribute to the protection and management of arroyo toad habitat:
(1) Potential impacts to arroyo toads associated with construction
activities on Rancho Mission Viejo will be avoided and minimized
through preparation of Biological Resources Construction Plans in
coordination with the Service;
(2) Potential impacts to arroyo toad habitat from grazing
activities will be addressed through implementation of the Grazing
Management Plan, which includes the management of grazing activities
and restoration of upland habitat with native grasses and coastal sage
scrub;
(3) Implementation of the Invasive Species Control Plan on Rancho
Mission Viejo will result in removal of nonnative plant species that
degrade aquatic habitats and removal of aquatic predators of the arroyo
toad;
(4) Through Water Quality Management Plans, flow duration (which
influences channel morphology) and water quality will be maintained
such that hydrologic conditions of concern such as erosion or
sedimentation or pollutants of concern will be addressed; and
(5) A detailed monitoring program for the arroyo toad that includes
monitoring conducted both at a species-specific level and also at a
habitat-landscape level will be developed in coordination with the
Service (Service 2007, pp. 62-64).
In summary, we are considering exclusion of 4,407 ac (1,784 ha) of
arroyo toad habitat on permittee-owned or controlled lands in Subunit
10a and Subunit 11a that meets the definition of critical habitat for
arroyo toad within the Southern Orange HCP under section 4(b)(2) of the
Act. Although not all lands proposed as critical habitat that are
targeted for preservation and management within the Southern Orange HCP
have been officially dedicated to the preserve system, we believe that
all conservation anticipated under the Southern Orange HCP will
[[Page 52649]]
occur. The 1994 final listing rule for arroyo toad identified the
following primary threats to the arroyo toad: habitat degradation,
predation, and small population size (59 FR 64866). The implementation
of the Southern Orange HCP helps to address these threats through a
regional planning effort, and outlines species-specific objectives and
criteria for the conservation of the arroyo toad. We will analyze the
benefits of inclusion and exclusion of this area from critical habitat
under section 4(b)(2) of the Act. We encourage any public comment in
relation to our consideration of the areas in Subunit 10a and Subunit
11a for inclusion or exclusion (see Public Comments section above).
Tribal Lands--Exclusions Under Section 4(b)(2) of the Act
In accordance with the Secretarial Order 3206, ``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and
the relevant provision of the Departmental Manual of the Department of
the Interior (512 DM 2), we believe that fish, wildlife, and other
natural resources on tribal lands are better managed under tribal
authorities, policies, and programs than through Federal regulation
wherever possible and practicable. Based on this philosophy, we believe
that, in most cases, designation of tribal lands as critical habitat
provides very little additional benefit to threatened and endangered
species. Conversely, such designation is often viewed by tribes as
unwarranted and an unwanted intrusion into tribal self-governance, thus
compromising the government-to-government relationship essential to
achieving our mutual goals of managing for healthy ecosystems upon
which the viability of threatened and endangered species populations
depend. We will take into consideration our partnerships and existing
conservation actions that tribes have or are currently implementing
when conducting our exclusion analysis in the final revised critical
habitat designation. We will also take into consideration conservation
actions that are planned (such as a Memorandum of Understanding
addressing arroyo toad conservation that is under development between
the Service, Bureau of Indian Affairs, and affected tribes (as
discussed in detail below)) as part of our on-going commitment to the
government-to-government relationship with tribes. If the Secretary
decides to exercise his discretion under section 4(b)(2) of the Act, we
are considering lands covered by the tribes identified below for
possible exclusion from final critical habitat.
Considered Exclusion for Several Tribal Lands
We are considering the exclusion of 4,046 ac (1,636 ha) of arroyo
toad habitat proposed in Units 14, 16, 17, and 18 under section 4(b)(2)
of the Act. These areas overlap with tribal lands that are owned or
managed by the following tribes: (1) Rincon Band of Luise[ntilde]o
Mission Indians; (2) Pala Band of Luise[ntilde]o Mission Indians; (3)
Sycuan Band of the Kumeyaay Nation; (4) the Mesa Grande Band of
Diegueno Mission Indians; and (5) the Barona Group of Capitan Grande
Band of Mission Indians and the Viejas (Baron Long) Group of Capitan
Grande Band of Mission Indians, which jointly manage the Capitan Grande
Band of Diegueno Mission Indians Reservation (Capitan Grande
Reservation). Conservation afforded (or currently being developed) for
the arroyo toad and its habitat on each of these tribe's lands is
addressed in the following paragraphs.
The Rincon Band of Luise[ntilde]o Mission Indians of the Rincon
Reservation (Rincon Band of Luise[ntilde]o Mission Indians) encompasses
approximately 4,026 ac (1,625 ha) in northern San Diego County (Unit
14), which includes approximately 910 ac (368 ha) of arroyo toad
habitat proposed as critical habitat. Additionally, a total of 245 ac
(99 ha) of off-reservation lands (such as fee-owned) are owned or
managed by the Tribe and contain arroyo toad habitat proposed as
critical habitat. The Rincon Band of Luise[ntilde]o Mission Indians
developed a management plan for the arroyo toad in 2005 that provides
guidelines for the protection and management of arroyo toad habitat
within a 97-ac (39-ha) Habitat Management Plan area, which is within
the area proposed as critical habitat. Specific tasks that will be
implemented include: (1) Removal and monitoring of nonnative species
within the plan area that pose a threat to the arroyo toad; (2) removal
and monthly monitoring of trash and debris within the plan area; (3)
maintenance and monitoring of oil and grease traps at the edge of
facility parking lots; (4) assessment and monthly monitoring of
vehicle, livestock, and other incursions (such as trespassing) into the
plan area; (5) reporting of unauthorized activities within the plan
area to the Service; (6) development of an arroyo toad education
program; and (7) placement of signs at regular intervals along the plan
area boundary.
The Pala Band of Luise[ntilde]o Mission Indians of the Pala
Reservation (Pala Band of Luise[ntilde]o Mission Indians) encompasses
approximately 12,429 ac (5,018 ha) in northern San Diego County (Unit
14), which includes approximately 1,662 ac (673 ha) of arroyo toad
habitat proposed as critical habitat. Additionally, a total of 723 ac
(293 ha) of off-reservation lands (such as fee-owned) are owned or
managed by the Tribe and contain arroyo toad habitat proposed as
critical habitat. The Reservation is located in the Middle San Luis Rey
River basin approximately 6 miles (9.7 km) east of Interstate 15 on
California Highway 76. The town of Pala is located along California
Highway 76 in approximately the center of the Reservation. The
Reservation was established for the Cupeno and Luise[ntilde]o Indians,
who considered themselves to be one ``people''--Pala. The Pala Band of
Luise[ntilde]o Mission Indians developed a Master Plan in 2005 that is
currently being implemented to guide management and land use on the
Reservation. Additionally, the Tribe has developed a management plan to
address resource management and conservation of the arroyo toad, which
outlines the following conservation goals to benefit the species: (1)
Maintenance of designated open space and waterways for the arroyo toad
along Pala Creek and the San Luis Rey River; (2) encouraging allottees
(owners of individual allotments within reservation lands) to locate
new construction away from inland allotment areas; (3) replacing the
Lilac Extension vehicle crossing of the San Luis Rey River with a
bridge; (4) reducing off-highway vehicle activity by establishing a
designated area for these activities outside of arroyo toad habitat;
(5) purchasing adjacent property known to be occupied by arroyo toads
and placing occupied areas in reserve; (6) discouraging development of
six allotments within the San Luis Rey River; and (7) removal of
nonnative species within arroyo toad habitat corridors.
The Sycuan Band of the Kumeyaay Nation own reservation lands that
encompass approximately 806 ac (325 ha) in southern San Diego County
(Unit 18), which includes approximately 22 ac (9 ha) of arroyo toad
habitat proposed as critical habitat. Additionally, a total of 369 ac
(149 ha) of off-reservation lands (such as fee-owned) are owned or
managed by the Tribe and contain arroyo toad habitat proposed as
critical habitat. The Sycuan Band of the
[[Page 52650]]
Kumeyaay Nation has two land management plans in place relevant to
their reservation that provide direct and indirect benefits to the
arroyo toad and its habitat on the reservation: an Interim Land Use
Master Plan that was adopted by the Sycuan General Council on January
10, 2002 (BRG 2002), and the Sycuan Tribal Environmental Plan that was
approved by the Tribal Council in June 2003 (Sycuan 2003). The Land Use
Master Plan provides recommended land use planning for the reservation
and additional surrounding properties that are to be brought into
Trust, and is based on preservation of sensitive environmental and
tribal resources (BRG 2002, p. 1). The Sycuan Tribal Environmental Plan
includes policies, procedures, and guidance that are in compliance with
the Tribal Environmental Policy Act (Sycuan 2003, p. 1). The Sycuan
Tribal Environmental Plan outlines procedures for environmental
planning, project implementation, and operations that minimize adverse
considerations where potential negative impacts to human health and the
environment could occur. Additionally, the Sycuan Tribal Environmental
Plan promotes environmental protection through responsible management
practices that will benefit conservation of threatened and endangered
species, including the arroyo toad and its habitat. Conservation
measures are organized into the following three categories that are
outlined in more detail within the ``Sycuan Conservation Strategy and
Conservation Measures Plan'' (Conservation Plan) portion of the Sycuan
Tribal Environmental Plan: (1) Conservation area site selection,
design, and management; (2) land cover type conservation measures; and
(3) species-specific conservation measures (which protect and restore
populations and habitat of each covered species) (Sycuan 2003, p. 5).
The overall Conservation Plan includes the following types of
conservation measures for arroyo toad and other covered species: (1)
Protection of existing habitat for compliance and species recovery; (2)
enhancement of existing habitat; (3) restoration to create new habitat;
(4) management of habitat to maintain and preserve ecological
functions; avoidance and minimization of direct impacts on individuals
and habitat of covered species; (5) population enhancement measures
that directly or indirectly increase abundance of covered species; and
(6) research necessary to improve conservation measure effectiveness
(Sycuan 2003, pp. 5-6).
The Mesa Grande Reservation, which is owned and managed by the Mesa
Grande Band of Diegueno Mission Indians, is situated in the hills above
Sutherland Reservoir near the mountain community of Santa Ysabel, which
is approximately 35 miles northeast of San Diego, San Diego County. The
Reservation encompasses approximately 1,818 ac (734 ha) of land in Unit
16, which includes approximately 23 ac (9 ha) of arroyo toad habitat
proposed as critical habitat. Although an arroyo toad management plan
currently does not exist for the Mesa Grande Reservation, the Service,
Bureau of Indian Affairs, and Tribe are currently coordinating to
discuss management of the arroyo toad and its habitat on the
Reservation.
The Capitan Grande Reservation lands fall within the Capitan Grande
Canyon where the San Diego River once ran, which is approximately 35
miles (56 km) east of San Diego, San Diego County. The Reservation
encompasses approximately 15,619 ac (6,306 ha) of land in Unit 17,
which includes approximately 92 ac (37 ha) of arroyo toad habitat
proposed as critical habitat. Following an 1875 Presidential Executive
Order, a number of small reservations (including the Capitan Grande
Reservation) was formed. It was from this reservation that the
following two tribes were formed: Barona Group of Capitan Grande Band
of Mission Indians of the Barona Reservation, and the Viejas (Baron
Long) Group of Capitan Grande Band of Mission Indians of the Viejas
Reservation. Both the Barona Group of Capitan Grande Band of Mission
Indians and the Viejas Group of Capitan Grande Band of Mission Indians
jointly manage the Capitan Grande Reservation. Although an arroyo toad
management plan currently does not exist for the Capitan Grande
Reservation, the Service, Bureau of Indian Affairs, and both Tribes are
currently coordinating to discuss management of the arroyo toad and its
habitat on the Reservation.
In summary, we are considering exclusion of the following lands
under section 4(b)(2) of the Act: 1,155 ac (467 ha) in Unit 14 within
the Rincon Band of Luise[ntilde]o Mission Indians Reservation and other
associated tribal lands owned/managed by the Rincon Band of
Luise[ntilde]o Mission Indians; 2,385 ac (963 ha) in Unit 14 within the
Pala Band of Luise[ntilde]o Mission Indians Reservation and other
associated tribal lands owned/managed by the Pala Band of
Luise[ntilde]o Mission Indians; 391 ac (158 ha) in Unit 18 within the
Sycuan Band of the Kumeyaay Nation's Reservation and other associated
tribal lands owned/managed by the Sycuan Band of the Kumeyaay Nation;
92 ac (37 ha) in Unit 17 within the Capitan Grande Reservation; and 23
ac (9 ha) in Unit 16 within the Mesa Grande Reservation. We are seeking
public comment on whether the conservation needs of the arroyo toad can
be achieved by limiting the designation to non-Tribal lands and the
appropriateness of the inclusion or exclusion of these lands from the
final revised critical habitat designation (see Public Comments
section).
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will be obtaining the expert
opinions of at least three appropriate independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will invite these peer reviewers to
comment during this public comment period on our specific assumptions
and conclusions in this proposed revised designation of critical
habitat.
We will consider all comments and information we receive during the
comment period on this proposed rule during our preparation of a final
determination. Accordingly, our final decision may differ from this
proposal.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if we receive any requests for hearings. We must
receive your request for a public hearing within 45 days after the date
of this Federal Register publication. Send your request to the
addresses listed in FOR FURTHER INFORMATION CONTACT. We will schedule
public hearings on this proposal, if any are requested, and announce
the dates, times, and places of those hearings, as well as how to
obtain reasonable accommodations, in the Federal Register and local
newspapers at least 15 days before the first hearing.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) determines whether this
rule is significant under Executive Order (E.O.) 12866. OMB bases its
determination upon the following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
[[Page 52651]]
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a statement of factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities.
An analysis of the economic impacts of the 2004 proposed critical
habitat designation was made available to the public on February 14,
2005 (70 FR 7459), and finalized in the final rule to designate
critical habitat published in the Federal Register on April 13, 2005
(70 FR 19562). In our economic analysis of that designation (70 FR
19562, p. 19613), we evaluated small business entities in three
categories: Land development, fruit and nut farms, and cattle ranching.
On the basis of our analysis we determined that the designation of
critical habitat for the arroyo toad would result in: (1) An annual
impact of less than one percent (17 projects and therefore businesses,
assuming one project per business) of land development small businesses
and that those businesses could realize an impact of approximately 20
percent of total annual sales; (2) an annual impact to less than one
percent (one farm) of small fruit and nut farms and that that farm
would realize an impact of less than three percent of total annual
sales; (3) an annual impact of less than one percent of cattle ranches
(one ranch) and that the ranch would realize an impact of less than
approximately $100,000 of total annual sales; (4) an annual impact of
less than one percent of small viticulture firms (one firm) and that
the firm would realize an impact of less than approximately five
percent of total annual sales; and (5) an annual impact of less than
one percent of small governments as a percent of the county total and
small governments would realize an impact of less than one percent of
annual government budget. Based on these data, the impacts on small
business, small governments, and small nonprofits were expected to be
negligible (Economic & Planning, Inc. 2005, pp. A-5--A-18). However,
the economic analysis prepared for the 2005 critical habitat
designation does not accurately reflect the full range of potential
economic impacts that may result from this proposed revision to arroyo
toad critical habitat.
We will prepare a new economic analysis for this proposed revised
critical habitat designation for the arroyo toad. At this time, we lack
current economic information necessary to provide an updated factual
basis for the required RFA finding with regard to this proposed
revision to critical habitat. Therefore, we defer the RFA finding until
completion of the draft economic analysis prepared under section
4(b)(2) of the Act and E.O. 12866. The draft economic analysis will
provide the required factual basis for the RFA finding. Upon completion
of the draft economic analysis, we will announce its availability in
the Federal Register and reopen the public comment period for the
proposed revised designation. We will include with this announcement,
as appropriate, an initial regulatory flexibility analysis or a
certification that the rule will not have a significant economic impact
on a substantial number of small entities accompanied by the factual
basis for that determination. We have concluded that deferring the RFA
finding until completion of the draft economic analysis is necessary to
meet the purposes and requirements of the RFA. Deferring the RFA
finding in this manner will ensure that we make a sufficiently informed
determination based on adequate economic information and provide the
necessary opportunity for public comment.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, we make the
following findings:
1. This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance; or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
onto State governments.
2. Based in part on an analysis conducted for the previous
designation of critical habitat and extrapolated to
[[Page 52652]]
this designation, we do not expect this rule to significantly or
uniquely affect small governments. Small governments will be affected
only to the extent that any programs having Federal funds, permits, or
other authorized activities must ensure that their actions will not
adversely affect the critical habitat. Therefore, a Small Government
Agency Plan is not required. However, as we conduct our economic
analysis for the revised rule, we will further evaluate this issue and
revise this assessment if appropriate.
Takings--Executive Order 12630
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating revised critical habitat for the arroyo toad in a takings
implications assessment. The takings implications assessment concludes
that this designation of revised critical habitat for the arroyo toad
does not pose significant takings implications for lands within or
affected by the revised designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), the proposed rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, this proposed revised critical habitat designation with
appropriate State resource agencies in California. The designation may
have some benefit to these governments because the areas that contain
the features essential to the conservation of the species are more
clearly defined, and the primary constituent elements of the habitat
necessary to the conservation of the species are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist these local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform), it
has been determined that the rule does not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Order. We have proposed to revise critical habitat in accordance with
the provisions of the Act. This proposed rule uses standard property
descriptions and identifies the primary constituent elements within the
designated areas to assist the public in understanding the habitat
needs of the arroyo toad.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995. This
rule will not impose recordkeeping or reporting requirements on State
or local governments, individuals, businesses, or organizations. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the Circuit
Court of Appeals of the United States for the Tenth Circuit, we do not
need to prepare environmental analyses as defined by NEPA (42 U.S.C.
4321 et seq.) in connection with designating critical habitat under the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244). This
position was upheld by the Circuit Court of Appeals of the United
States for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Clarity of the Rule
We are required by E.O. 12866, E.O. 12988, and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
1. Be logically organized;
2. Use the active voice to address readers directly;
3. Use clear language rather than jargon;
4. Be divided into short sections and sentences; and
5. Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We are currently coordinating with affected Tribes regarding this
proposed revised critical habitat designation, and have included Tribal
lands in this revised proposal. We are requesting public comment on the
appropriateness of including or excluding these lands in the final
revised critical habitat rule. We will continue to coordinate with the
Tribal governments during the designation process.
Energy Supply, Distribution, or Use--Executive Order 13211
E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. Based on an analysis
conducted for the previous designation of critical habitat and
extrapolated to this designation, along with a further analysis of the
additional areas included in this revision, we have determined that
this proposed rule to revise critical habitat for the arroyo toad is
not expected to significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required. However, we will further
[[Page 52653]]
evaluate this issue as we conduct our economic analysis, and review and
revise this assessment as warranted.
References Cited
A complete list of all references cited in this rulemaking is
available on http://www.regulations.gov and upon request from the Field
Supervisor, Ventura Fish and Wildlife Office, or the Field Supervisor,
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Author(s)
The primary authors of this notice are staff from the Ventura Fish
and Wildlife Office and the Carlsbad Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for ``Toad, arroyo (= arroyo
southwestern)'' under ``Amphibians'' in the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
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Species Vertebrate
---------------------------------------------------------- population where When Critical Special
Historic range endangered or Status listed habitat rules
Common name Scientific name threatened
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* * * * * * *
Amphibians
* * * * * * *
Toad, arroyo (= arroyo Anaxyrus californicus U.S.A. (CA), Mexico.. Entire.............. E 568 17.95(d) NA
southwestern.
* * * * * * *
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3. In Sec. 17.95(d), revise the entry for ``Arroyo Toad (Bufo
californicus)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
Arroyo Toad (Anaxyrus californicus)
(1) Critical habitat units are depicted for Los Angeles, Orange,
Riverside, San Bernardino, San Diego, Santa Barbara, and Ventura
Counties, California, on the maps below.
(2) Within these areas, the primary constituent elements for the
arroyo toad consist of four components:
(i) Rivers or streams with hydrologic regimes that supply water to
provide space, food, and cover needed to sustain eggs, tadpoles,
metamorphosing juveniles, and adult breeding toads. Breeding pools must
persist a minimum of 2 months for the completion of larval development.
However, due to the dynamic nature of southern California riparian
systems and flood regimes, the location of suitable breeding pools may
vary from year to year. Specifically, the conditions necessary to allow
for successful reproduction of arroyo toads are:
(A) Breeding pools with areas less than 12 in (30 cm) deep;
(B) Areas of flowing water with current velocities less than 1.3 ft
per second (40 cm per second); and
(C) Surface water that lasts for a minimum of 2 months during the
breeding season (i.e., a sufficient wet period in the spring months to
allow arroyo toad larvae to hatch, mature, and metamorphose).
(ii) Riparian and adjacent upland habitats, particularly low-
gradient (typically less than 6 percent) stream segments and alluvial
streamside terraces with sandy or fine gravel substrates that support
the formation of shallow pools and sparsely vegetated sand and gravel
bars for breeding and rearing of tadpoles and juveniles; and adjacent
valley bottomlands that include areas of loose soil where toads can
burrow underground, to provide foraging and living areas for juvenile
and adult arroyo toads.
(iii) A natural flooding regime, or one sufficiently corresponding
to natural, characterized by intermittent or near perennial flow that
contributes to the persistence of shallow pools into at least mid-
summer, and that maintains areas of open, sparsely vegetated, sandy
stream channels and terraces by periodically scouring riparian
vegetation; and also that modifies stream channels and terraces and
redistributes sand and sediment, such that breeding pools and terrace
habitats with scattered vegetation are maintained.
(iv) Stream channels and adjacent upland habitats that allow for
movement to breeding pools, foraging areas, overwintering sites,
upstream and downstream dispersal, and recolonization of areas that
contain suitable habitat.
(3) Critical habitat does not include manmade structures existing
on the effective date of this rule and not containing one or more of
the primary constituent elements, such as buildings, aqueducts,
airports, and roads, and the land on which such structures are located.
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS 7.5' quadrangles using USDA National
Agricultural Imagery Program (NAIP) county-wide MrSID compressed
mosaics of 1 meter resolution and natural color aerial photography from
summer 2005. Critical habitat units were then mapped using Universal
Transverse Mercator (UTM) zone 10, North American Datum (NAD) 1983
coordinates.
(5) Note: Index map 1 of Units of Critical Habitat for Arroyo Toad
(Anaxyrus californicus) follows:
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[[Page 52654]]
[GRAPHIC] [TIFF OMITTED] TP13OC09.000
[[Page 52655]]
(6) Note: Index map 2 of Units of Critical Habitat for Arroyo Toad
(Anaxyrus californicus) follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.001
[[Page 52656]]
(7) Units 2 and 3, Santa Barbara County, California.
(i) [Reserved for textual description of units.]
(ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus
californicus), Units 2 and 3, Santa Barbara County, California,
follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.002
[[Page 52657]]
(8) Units 4 and 5, Ventura and Los Angeles Counties, California.
(i) [Reserved for textual description of units.]
(ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus
californicus), Units 4 and 5, Ventura and Los Angeles Counties,
California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.003
[[Page 52658]]
(9) Unit 6, Los Angeles County, California.
(i) [Reserved for textual description of units.]
(ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus
californicus), Unit 6, Los Angeles County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.004
[[Page 52659]]
(10) Units 7 and 21, Los Angeles County, California.
(i) [Reserved for textual description of units.]
(ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus
californicus), Units 7 and 21, Los Angeles County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.005
[[Page 52660]]
(11) Units 8, 10, and 11, Orange, Riverside, and San Diego
Counties, California.
(i) [Reserved for textual description of units.]
(ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus
californicus), Units 8, 10, and 11, Orange, Riverside, and San Diego
Counties, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.006
[[Page 52661]]
(12) Units 9 and 23, Riverside County, California.
(i) [Reserved for textual description of units.]
(ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus
californicus), Units 9 and 23, Riverside County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.007
[[Page 52662]]
(13) Units 12, 13, 14, 15, 16, and 17, Riverside and San Diego
Counties, California.
(i) [Reserved for textual description of units.]
(ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus
californicus), Units 12, 13, 14, 15, 16, and 17, Riverside and San
Diego Counties, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.008
[[Page 52663]]
(14) Units 18 and 19, San Diego County, California.
(i) [Reserved for textual description of units.]
(ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus
californicus), Units 18 and 19, San Diego County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.009
[[Page 52664]]
(15) Units 20 and 22, San Diego County, California.
(i) [Reserved for textual description of units.]
(ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus
californicus), Units 20 and 22, San Diego County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.010
* * * * *
Dated: September 28, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-24076 Filed 10-9-09; 8:45 am]
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