65FR36511 Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Arroyo Southwestern Toad, Part 1/3
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[Federal Register: June 8, 2000 (Volume 65, Number 111)]
[Proposed Rules]
[Page 36511-36548]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn00-40]
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Part II
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; Proposed Designation of
Critical Habitat for the Arroyo Southwestern Toad; Proposed Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018--AG15
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Arroyo Southwestern Toad
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose
designation of critical habitat for the arroyo southwestern toad (Bufo
microscaphus californicus) pursuant to the Endangered Species Act of
1973, as amended (Act). A total of approximately 193,600 hectares
(478,400 acres) fall within the boundaries of the proposed critical
habitat designation. Proposed critical habitat is located in Monterey,
San Luis Obispo, Santa Barbara, Ventura, Los Angeles, San Bernardino,
Riverside, Orange, and San Diego Counties, California. If this proposed
rule is made final, section 7 of the Act would prohibit destruction or
adverse modification of critical habitat by any activity funded,
authorized, or carried out by any Federal agency.
Section 4 of the Act requires us to consider economic and other
relevant impacts of specifying any particular area as critical habitat.
We solicit data and comments from the public on all aspects of this
proposal, including data on the economic and other impacts of
designation and our approaches for handling habitat conservation plans
(HCPs). We may revise this proposal to incorporate or address new
information received during the comment period.
DATES: We will accept comments from all interested parties until August
7, 2000. Two public hearings have been scheduled for June 27, 2000, and
June 29, 2000, see locations below.
ADDRESSES:
1. Comments: If you wish to comment, you may submit your comments
and materials concerning this proposal by any one of several methods.
a. You may submit written comments and information to the Field
Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife
Office, 2394 Portola Road, Suite B, Ventura, California 93003.
b. You may hand-deliver written comments to our Ventura Office, at
the address given above.
c. You may send comments by electronic mail (e-mail) to
fw1a...@fws.gov. Please submit these comments as an ASCII file and
avoid the use of special characters and any form of encryption. Please
also include ``Attn: [RIN number]'' and your name and return address in
your e-mail message. If you do not receive a confirmation from the
system that we have received your e-mail message, contact us directly
by calling our Ventura Office at phone number 805/644-1766.
2. Public hearings: Two public hearings are scheduled. Both public
hearings will be held from 1:00 p.m. to 3:00 p.m. and 6:00 p.m. to 8:00
p.m. Public hearing dates and locations are:
a. Tuesday, June 27, 2000, at the Hyatt Valencia, 24500 Town Center
Drive, Valencia, California.
b. Thursday, June 29, 2000, at the Temecula Embassy Suites, 29345
Rancho California Road, Temecula, California.
3. Review of data: Comments and materials received, as well as
supporting documentation used in the preparation of this proposed rule,
will be available for public inspection, by appointment, during normal
business hours at the Ventura Fish and Wildlife Office, 2394 Portola
Road, Suite B, Ventura, California, or at the Carlsbad Fish and
Wildlife Office, 2730 Loker Avenue West, Carlsbad, California
(telephone 760/431-9440).
FOR FURTHER INFORMATION CONTACT: Field Supervisor, Ventura Fish and
Wildlife Office, at the above address (telephone 805/644-1766;
facsimile 805/644-3958). For information about Los Angeles and San
Bernardino Counties, and Riverside, Orange, and San Diego Counties,
contact the Field Supervisor, Carlsbad Fish and Wildlife Office, 2730
Loker Avenue West, Carlsbad, California 92008 (telephone 760/431-9440;
facsimile 760/431-9624).
SUPPLEMENTARY INFORMATION:
Background
The following discussion is adapted from the final recovery plan
for the arroyo toad (Service 1999), which contains additional details
and is available from the addresses above. The arroyo southwestern toad
(Bufo microscaphus californicus) is one of three members of the
southwestern toad (B. microscaphus) complex, in the family of true
toads, Bufonidae. The taxonomy of the complex has been examined
recently by Gergus (1998). Based on his genetic studies, the arroyo
toad should be considered a separate species, Bufo microscaphus
californicus.
The arroyo toad is a small (adults: snout-urostyle (body) length 55
to 82 millimeters (mm) (2.2 to 3.2 inches (in.)), dark-spotted toad of
the family Bufonidae, with females larger than males. Adult arroyo
toads have a light-olive green or gray to tan dorsum (back) with dark
spots and warty skin. The venter (underside) is white or buff and
without dark blotches or spots. A light-colored, V-shaped stripe
crosses the head and eyelids, and the anterior portion of the oval
parotoid glands (just behind the eyes) are pale. There is usually a
light area on each side of the sacral (pelvic) hump and in the middle
of the back. The arroyo toad generally does not have a middorsal
stripe, but if one is present, it extends only partway along the back.
The arroyo toad is found in coastal and desert drainages from
Monterey County, California, south into northwestern Baja California,
Mexico. These systems are inherently quite dynamic, with marked
seasonal and annual fluctuations in climatic regimes, particularly
rainfall. Natural climatic variations as well as other random events,
such as fires and floods, coupled with the species' specialized habitat
requirements, lead to annual fluctuations in arroyo toad populations.
Human alterations of habitat can have unpredictable effects on arroyo
toad populations. As a result of agriculture and urbanization, and the
construction, operation, and maintenance of water storage reservoirs,
flood control structures, roads, and recreational facilities such as
campgrounds and off-highway vehicle parks, many arroyo toad populations
have been reduced in size or extirpated (eliminated) due to extensive
habitat loss from the 1920s into the 1990s. The loss of habitat,
coupled with habitat modifications due to the manipulation of water
levels in many central and southern California streams and rivers, as
well as predation from introduced aquatic species, and habitat
degradation from introduced plant species, caused arroyo toads to be
extirpated from about 75 percent of the previously occupied habitat in
California (Jennings and Hayes 1994).
Because relatively little was known about this animal, and it was
often confused with the California toad (Bufo boreas halophilus), which
is very common in the same region, detailed studies of the natural
history of the arroyo toad were not conducted until the 1980s and
1990s. The arroyo toad exhibits breeding habitat specialization that
favors shallow pools and open sand and gravel channels along low-
gradient reaches of medium to large-sized streams (Service 1999). These
streams can have either intermittent or perennial streamflow and
typically experience
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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. Populations in smaller drainages are
likely to be much smaller and at greater risk of extirpation than those
on larger streams and in larger habitat patches (Service 1999).
Arroyo toads also require and spend most of their adult life in
upland habitats. Individual toads have been observed as far as 2
kilometers (km) (1.2 miles (mi)) from the streams where they breed, but
are most commonly found within 0.5 km (0.3 mi) of those streams
(Service 1999; Griffin et al. 1999; Dan C. Holland, Camp Pendleton
Amphibian and Reptile Survey, Fallbrook, California, unpublished data).
Arroyo toads typically burrow underground during periods of inactivity
and thus tend to utilize upland habitats that have sandy, friable
(readily crumbled) soils. Although the upland habitat use patterns of
this species are poorly understood, activity probably is concentrated
in the alluvial flats (areas created when sediments from the stream are
deposited) and sandy terraces found in valley bottoms (Service 1999;
Griffin et al. 1999; Ramirez 2000; D.C. Holland, unpubl. data).
Habitat Characteristics and Ecological Considerations
Arroyo toads have specialized requirements for breeding habitats.
Specifically, they require shallow, slow-moving streams, and riparian
(areas near a source of water) habitats that are disturbed naturally on
a regular basis, primarily by flooding. Periodic flooding helps
maintain areas of open, nonvegetated sandy stream channels and
terraces. Throughout their range, arroyo toads are found in foothill
canyons and intermountain valleys where medium- to large-sized streams
and rivers are bordered closely by low hills, riverbed gradients are
low, and the surface stream flows frequently pool or are intermittent
for at least a few months of the year. South of the Santa Clara River,
Los Angeles County, they also occur on a few desert slopes and on the
coastal plain.
For breeding, adult arroyo toads use open sites such as overflow
pools, old flood channels, and pools on streams of first to sixth
order. Rivers and streams are classified by order. The order refers to
how many branches or tributaries a stream has. The smallest unbranched
tributary in a watershed is considered an order of one. A channel
formed by the confluence of two such tributaries is designated an order
of two. In general, the higher the order number, the larger the
watershed, and the greater the channel dimensions. Such habitats rarely
have closed canopies over the lower banks of the stream channel due to
regular 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. Episodic (temporary)
flooding is critical to keep the low stream terraces relatively
vegetation-free and the soils friable enough for juvenile and adult
toads to create burrows. Pools less than 30 centimeters (cm) (12 in.)
deep with clear water, flow rates less than 5 cm per second (0.2 foot
(ft) per second), and bottoms composed of sand or well-sorted fine
gravel are favored by adults for breeding.
Areas that are used by juveniles consist primarily of sand or fine
gravel bars with varying amounts of large gravel or cobble with
adjacent stable sandy terraces and streamside flats. Areas that are
damp and have less than 10 percent vegetation cover provide the best
conditions for juvenile survival and rapid growth (Service 1999).
The adjacent sandy terraces, which are used by subadults and adults
for foraging and burrowing, may be sparsely to heavily vegetated with
brush and trees such as mulefat (Baccharis spp.), California sycamore
(Platanus racemosa), cottonwoods (Populus spp.), coast live oak
(Quercus agrifolia), and willow (Salix spp.). 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. Substantial areas of fine sand, into which adult toads burrow,
must be present, but can be interspersed with gravel or cobble
deposits.
Upland habitats used by arroyo toads during the nonbreeding season
include alluvial scrub, coastal sage scrub, chaparral (shrubby plants
adapted to dry summers and moist winters), grassland, and oak woodland.
When foraging, subadult and adult arroyo toads often are found around
the driplines of oak trees. These areas often lack vegetation, yet have
appropriate levels of prey. When active at night, toads often can be
observed near ant trails feeding on passing ants, beetles, and other
prey.
Males call from the streams during the breeding period, which is
generally from February to early July, although it can be extended in
some years, depending on weather conditions. Males may remain at or
near the breeding pools for several weeks and are particularly
susceptible to predation at this time. Females apparently move to the
breeding pools in the streams for only short time periods, in order to
soak in the water and to breed (Griffin et al. 1999; Nancy Sandburg,
Santa Barbara, California, pers. comm. 1999). Amplexus (mating embrace
of the female by the male) and egg-laying generally occur at the site
where the male was calling. Female arroyo toads apparently release
their entire clutch of 2,000 to 10,000 eggs as a single breeding effort
and probably are unable to produce a second clutch during the mating
season. If conditions are unsuitable, females may not obtain sufficient
food for egg production and will forgo breeding during that year. The
eggs are laid on substrates of sand, gravel, cobble, or mud generally
located away from vegetation in the shallow margins of the pool. High
water flows will wash the eggs out of the pools, breaking up the egg
strands and killing the developing embryos. Silt eroding into the
streams from road crossings, adjacent roads, overgrazing, or mining
activities can cover and suffocate the eggs.
Embryos usually hatch in 4 to 6 days at water temperatures of 12 to
16 degrees Celsius (54 to 59 degrees Fahrenheit). Larvae may take 8 to
14 days to become free-swimming, depending on the water temperature.
They are particularly susceptible to the effects of high water flows
during this time period, and heavy rains or untimely releases of water
from dams can kill thousands of tadpoles very quickly. The larval
period for arroyo toads lasts about 65 to 85 days, depending on water
temperatures. Metamorphosis may occur at any time between April and the
beginning of September, depending on the time of breeding, weather, and
water quality. Peak metamorphosis occurs from the end of June to mid-
July in the northern part of the toad's range and from late April to
mid-May in southern California. For several days before metamorphosis,
arroyo toad larvae cease feeding and aggregate in shallow water along
the edges of gravel or sand bars, often under or along stranded algal
mats. The metamorphosing and newly metamorphosed toads are extremely
susceptible to predation, habitat disturbance, and activities in the
streams during this period, as they cannot escape (Service 1999).
Juvenile arroyo toads remain in the saturated substrate at the
edges of breeding pools for 1 to 3 weeks. They are active during the
day and often exposed on the barren sand because they are too small to
burrow into the
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substrate. During this period, many toads are lost due to predation
unless they can find some cover, such as cobble, algal mats, or pieces
of debris, under which to hide. As the toads mature, they move further
from the pools onto sand and gravel bars. Crushing of toads by humans
and livestock can be a substantial source of mortality at this stage
(Service 1999).
As the toads grow, they begin to dig shallow burrows in fine sand,
and switch to a night-time activity pattern, when they forage for ants
and beetles. Suitable sandy habitat can be highly localized resulting
in dense concentrations of juvenile toads. If the substrate is not
friable enough, juvenile toads often disperse farther away from the
breeding pool into nearby stands of willows and mulefat. Most toads
will move into willows or other vegetation as they grow, and as the
stream dries naturally. Removal of native vegetation, in addition to
increasing erosion into the streams, can leave small toads at risk of
dehydration and death.
Male arroyo toads usually reach adulthood in 2 years. Females
become sexually mature in 2 to 3 years, when they attain lengths
greater than 54 mm (2.1 in.). However, males may reach adulthood at 1
year if conditions are favorable. We have little data on lifespan;
based on age-size distributions, many individuals live only about 5
years. Longevity may vary with local conditions. Recapture rates of
marked individuals from one breeding season to the next range from 15
to 50 percent.
Little is known of the seasonal and annual movements or
physiological ecology of adults, but data suggest that many subadults
and some adult males move along streams as much as 0.8 km (0.5 mi) and
over 1.0 km (0.6 mi) in a few cases during a single breeding season
(Griffin et al. 1999; Ramirez 2000). Dispersal movements may be over 8
km (5 mi) (U.S. Forest Service (Forest Service) 1999). Amount of
rainfall, availability of surface water, width of streamside terraces
and floodplains, vegetative cover, and topography can all influence the
habitat available to arroyo toads and the distances they will move from
the streambed (Griffin et al. 1999; Ramirez 2000). In San Diego County,
Griffin et al. (1999) found that the female adult arroyo toads they
radiotracked moved an average maximum distance of 135 meters (m) (443
feet (ft)) and a maximum of more than 300 m (984 ft) perpendicularly
from streams, while males moved an average maximum of 73 m (240 ft)
from the streams. Males along a coastal stream with a broad floodplain
moved an average maximum of 92 m (302 ft) from the streams, while those
in a narrower canyon moved only 23 m (75 ft) from the streambed
(Griffin et al. 1999). Ramirez (2000) recorded a maximum distance from
the stream of 37 m (121 ft) in one desert slope stream with a very
narrow floodplain, and 145 m (476 ft) in another desert slope system
with a broader floodplain. Extended movement away from streams may be
facilitated by microclimates wherein lower temperatures and high
humidity on foggy days in the spring and summer create moist substrates
in upland habitats where adult arroyo toads can survive (Service 1999).
We do not have enough data to accurately characterize overwintering
activities and habitat use in all of the systems that arroyo toads
inhabit.
Several land use activities may affect the hydrology of arroyo toad
stream habitats and destroy or severely modify the dynamic nature of
the riparian systems upon which arroyo toads depend for reproduction,
development, and survival. Arroyo toad breeding habitat is created and
maintained by the fluctuating hydrological, geological, and ecological
processes operating in riparian ecosystems and the adjacent uplands.
These riparian/wash habitats as well as adjacent upland habitats are
essential for this species' survival. 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. Human activities that affect water quality,
influence the amount and timing of nonflood flows or frequency and
intensity of floods, affect riparian plant communities, or alter
sedimentation dynamics can reduce or eliminate the suitability of
stream channels for arroyo toad breeding habitat. Degradation or loss
of surrounding riparian and upland habitats reduces and eliminates
foraging and overwintering habitat. The introduction of nonnative plant
and animal species can reduce the quality of all habitats used by
arroyo toads, lead to detrimental levels of competition and predation,
or reduce the availability of toad food. Run-off from roads can
decrease habitat quality for arroyo toads, and roads provide access for
humans, domestic animals, and invasive species that can lead to
additional habitat degradation.
The effects of such activities and factors may not become apparent
until many years later when the habitat finally becomes sufficiently
degraded that arroyo toads can no longer reproduce and survive.
Combined with the normal climatic fluctuations in the arroyo toad's
range, which can include consecutive years of extremely high or low
rainfall, human impacts can cause temporary or permanent extirpations
of toads from some areas. Human activities that may cause adverse
impacts to arroyo toads include urbanization and agriculture within and
adjacent to riparian habitats, the use of pesticides and herbicides
within or adjacent to arroyo toad habitat, dam building and the
resulting reservoirs, water flow manipulations, sand and gravel mining,
suction dredge mining, road placement across and within stream
terraces, livestock grazing, off-highway vehicle use of roads and
stream channels, the placement of campgrounds and other recreational
facilities in arroyo toad habitat (especially on stream terraces), and
the use of stream channels and terraces for recreational activities.
Previous Federal Actions
We first included the arroyo southwestern toad as a Category 2
candidate species in the September 18, 1985, Notice of Review of
Candidate Species (50 FR 37958). It was included under the same
category in subsequent notices on January 6, 1989 (54 FR 554), and
November 21, 1991 (56 FR 58804). We were petitioned to list the arroyo
toad under the Endangered Species Act (Act) of 1973, as amended (16
U.S.C. 1531 et seq.), on December 30, 1992, and we published a proposed
rule on August 3, 1993 (58 FR 41231). The arroyo toad was listed as
endangered on December 16, 1994 (59 FR 64859). The designation of
critical habitat was determined to be not prudent due to threats of
vandalism and collection. A draft recovery plan for the arroyo
southwestern toad was made available for public comment on May 6, 1998
(63 FR 25062), and we published the final recovery plan in September
1999.
At the time of listing, we concluded that designation of critical
habitat for the arroyo toad was not prudent because such designation
would not benefit the species. We were concerned that critical habitat
designation would likely increase the degree of threat from vandalism,
collection, or other human-induced impacts. We were aware of at least
one instance of the apparent collection of a group of breeding males
that had occurred during the listing process, following the publication
of information regarding an ongoing scientific study. During the
development of the final recovery plan, concern was raised about
collecting activities on some public lands (Service 1999). However, we
have determined that instances of vandalism have not
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increased since the listing of the arroyo toad, and the threats to this
species and its habitat from specific instances of collection and
habitat destruction do not outweigh the broader educational, potential
regulatory, and other possible benefits that designation of critical
habitat would provide for this species. A designation of critical
habitat can provide educational benefits by formally identifying those
areas essential to the conservation of the species. These areas are
also identified in the recovery plans as the focus of our recovery
efforts for the arroyo toad.
On March 4, 1999, the Southwest Center for Biological Diversity,
the Center for Biological Diversity, and Christians Caring for Creation
filed a lawsuit in the Northern District of California against the U.S.
Fish and Wildlife Service and Bruce Babbitt, Secretary of the
Department of the Interior (Secretary), for failure to designate
critical habitat for seven species: the Alameda whipsnake (Masticophis
lateralis euryxanthus), the Zayante band-winged grasshopper
(Trimerotropis infantilis), the Morro shoulderband snail
(Helminthoglypta walkeriana), the arroyo southwestern toad (Bufo
microscaphus californicus), the San Bernardino kangaroo rat (Dipodomys
merriami parvus), the spectacled eider (Somateria fischeri), and the
Steller's eider (Polysticta stelleri) (Southwest Center for Biological
Diversity v. U.S. Fish and Wildlife, CIV 99-1003 MMC). On November 5,
1999, William Alsup, U.S. District Judge, dismissed the plaintiffs'
lawsuit pursuant to a settlement agreement entered into by the parties.
Publication of this proposed rule is consistent with that settlement
agreement.
Absent the settlement agreement, the processing of this proposed
rule does not conform with our current Listing Priority Guidance
published in the Federal Register on October 22, 1999 (64 FR 57114).
The guidance clarifies the order in which we will process rulemakings.
Highest priority is processing emergency listing rules for any species
determined to face a significant and imminent risk to its well-being
(Priority 1). Second priority (Priority 2) is processing final
determinations on proposed additions to the lists of endangered and
threatened wildlife and plants. Third priority is processing new
proposals to add species to the lists. The processing of administrative
petition findings (petitions filed under section 4 of the Act) is the
fourth priority. We are processing this proposed rule in compliance
with the above-mentioned settlement agreement.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographic 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 (I) essential to the conservation of
the species and (II) that may require special management consideration
or protection and; (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon determination that
such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered species or a threatened species to the
point at which listing under the Act is no longer necessary.
Section 4(b)(2) of the Act requires that we base critical habitat
proposals upon the best scientific and commercial data available, after
taking into consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat. We may
exclude areas from critical habitat designation when the benefits of
exclusion outweigh the benefits of including the areas within critical
habitat, provided the exclusion will not result in extinction of the
species (section 4(b)(2) of the Act).
Designation of critical habitat can help focus conservation
activities for a listed species by identifying areas that contain the
physical and biological features that are essential for conservation of
that species. Designation of critical habitat alerts the public as well
as land-managing agencies to the importance of these areas.
Critical habitat also identifies areas that may require special
management considerations or protection, and may provide protection to
areas where significant threats to the species have been identified.
Critical habitat receives protection from destruction or adverse
modification through required consultation under section 7 of the Act
with regard to actions carried out, funded, or authorized by a Federal
agency. Section 7 also requires conferences on Federal actions that are
likely to result in the adverse modification or destruction of proposed
critical habitat. Aside from the protection that may be provided under
section 7, the Act does not provide other forms of protection to lands
designated as critical habitat.
Section 7(a)(2) of the Act requires Federal agencies to consult
with us to ensure that any action they authorize, fund, or carry out is
not likely to jeopardize the continued existence of a threatened or
endangered species, or result in the destruction or adverse
modification of critical habitat. In 50 CFR 402.02, ``jeopardize the
continued existence'' (of a species) is defined as engaging in an
activity likely to result in an appreciable reduction in the likelihood
of survival and recovery of a listed species. ``Destruction or adverse
modification'' (of critical habitat) is defined as a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for the survival and recovery of the listed species for which critical
habitat was designated. Thus, the definitions of ``jeopardy'' to the
species and ``adverse modification'' of critical habitat are nearly
identical.
Designating critical habitat does not, in itself, lead to recovery
of a listed species. Designation does not create a management plan,
establish numerical population goals, prescribe specific management
actions (inside or outside of critical habitat), or directly affect
areas not designated as critical habitat. Specific management
recommendations for areas designated as critical habitat are most
appropriately addressed in recovery, conservation and management plans,
and through section 7 consultations and section 10 permits.
This critical habitat designation identifies specific units that
are essential to the conservation of a listed species and that may
require special management considerations or protection. All of the
proposed critical habitat areas are considered essential to the
conservation of the arroyo toad as described in the final recovery
plan. The proposed critical habitat units contain a mosaic of habitats
that provide breeding, foraging, sheltering, and living spaces for
arroyo toads, as well as migration and dispersal corridors. Each
critical habitat unit currently may not contain all of the primary
constituent elements, but could develop them in the future. Some of the
habitat in the proposed units could be improved through habitat
rehabilitation or improved management (e.g., removal of nonnative
species or restoration of more natural streamflow regimes).
Methods
In determining areas that are essential to conserve the arroyo
toad, we used the best scientific and commercial data available. We
have reviewed the overall approach to the conservation of the arroyo
toad undertaken by the local, state, Tribal, and Federal agencies
operating within the species' range since its listing in 1994, and the
identified steps necessary for recovery
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outlined in the final Recovery Plan for the Arroyo Southwestern Toad
(Service 1999).
We have also reviewed available information that pertains to the
habitat requirements of this species, including material received since
completion of the recovery plan. This material included 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;
regional Geographic Information System (GIS) coverages; habitat
evaluation models developed for and data submitted by the Los Padres,
Angeles, San Bernardino, and Cleveland National Forests; habitat
evaluation models for the San Diego County Multiple Species
Conservation Program (MSCP), the North San Diego County Multiple
Habitat Conservation Program (MHCP), and the North County Subarea of
the MSCP for Unincorporated San Diego County; and a habitat capability
model developed by Barto (1999) for San Diego County.
The areas we are proposing to designate as critical habitat
currently provide some or all of those habitat components essential for
the primary biological needs of the arroyo toad as defined by the
primary constituent elements. Additionally, section 4(b)(2) of the Act
requires us to designate critical habitat on the basis of the best
scientific and commercial information available, and to consider the
economic and other relevant impacts of designating a particular area as
critical habitat. We may exclude areas from critical habitat upon a
determination that the benefits of such exclusions outweigh the
benefits of specifying such areas as critical habitat.
Relationship to Mexico
We are not aware of any existing national level regulatory
mechanism in Mexico that would protect the arroyo toad or its habitat,
although new legislation for wildlife is pending in Mexico and Mexico
has laws that could provide protection for rare species, there are
enforcement challenges. If specific protections were available and
enforceable in Mexico, for this species the portion of the range in
Mexico alone, in isolation, would not be adequate to ensure the long-
term conservation of this species.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act, and regulations
at 50 CFR 424.12, in determining which areas to propose as critical
habitat, we are required to base critical habitat determinations on the
best scientific and commercial data available and to consider those
physical and biological features (primary constituent elements) that
are essential to the conservation of the species, and that may require
special management considerations and protection. These include, but
are not limited to, space for individual and population growth and for
normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, rearing (or development) of offspring; and
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
Due to the complex life history and dispersal capabilities of the
toads, and the dynamic nature of the environment in which they are
found, all of the primary constituent elements may not be found in or
adjacent to every stream reach and associated upland habitats proposed
for critical habitat. It is important to provide for dispersal and
migration corridors, as well as allowing room for expansion of the
populations. Habitat rehabilitation efforts, as well as changes in
current management activities, may be necessary in some areas in order
to attain an optimal distribution of the primary constituent elements
in each critical habitat unit.
The primary constituent elements of critical habitat for the arroyo
toad include rivers and streams with a hydrologic regime that supplies
sufficient flowing water of suitable quality at the appropriate times
to provide space, food, and cover needed to sustain eggs, tadpoles,
metamorphosing juveniles, and adult breeding toads; low-gradient stream
segments (typically less than 4 percent) with sandy or fine gravel
substrates which support the formation of shallow pools and sparsely
vegetated sand and gravel bars for breeding and rearing of tadpoles and
juveniles; a natural flooding regime or one sufficiently corresponding
to a natural regime that will periodically scour riparian vegetation,
rework stream channels and terraces, and redistribute sands and
sediments, such that adequate numbers and sizes of breeding pools and
sufficient terrace habitats with appropriate vegetation are maintained
to provide for the needs of all life stages of the toad; upland
habitats of sufficient width and quality (i.e., with areas of loose,
sandy soil where toads can burrow underground) to provide foraging and
living areas for subadult and adult arroyo toads (loose, sandy soils
are typically most prevalent on alluvial terraces and valley
bottomlands and occur primarily, but not exclusively, within 1.5 km
(0.9 mi) of the streamcourse and less than 25 m (80 ft) in elevation
above the adjacent stream channel); few or no nonnative species that
prey upon or compete with arroyo toads, or degrade their habitat;
stream channels and upland habitats where manmade barriers do not
completely or substantially impede migration to overwintering sites,
dispersal between populations, or recolonization of areas that contain
suitable habitat; and undisturbed habitats. Primary constituent
elements, or components thereof, are found in all of the areas proposed
for critical habitat.
Arroyo toads are not distributed uniformly throughout the critical
habitat units. Arroyo toad breeding habitat is patchily distributed
along the stream courses, and the same may be true of appropriate
upland habitat. Some areas are suitable only for migration and
dispersal between breeding and foraging habitats or to additional
breeding pools that will accommodate expanding populations. The areas
within the proposed units contain some or all of the primary
constituent elements. Areas within the proposed critical habitat that
may not have toads present at a given point in time may be capable of
supporting the constituent elements because habitat conditions can
change rapidly in response to flows and other factors, such as the
development and shifting of sand and gravel bars, and creation and
disappearance of pools. Terrace and upland habitat characteristics and
suitability are dynamic and may change as a result of rainfall,
earthquakes, fires, and other natural events.
Criteria Used To Identify Critical Habitat
The final recovery plan (Service 1999) for the arroyo toad
identified the specific recovery needs of the species and serves as a
starting point for identifying areas essential to the conservation of
the toad. Those drainage basins identified in the final recovery plan
as areas that should be maintained or rehabilitated in order to achieve
arroyo toad recovery are generally reflected in this proposed critical
habitat designation. The designation of critical habitat is one of
several tools available for implementing the recovery strategy for the
toad.
The recovery strategy for the arroyo toad focuses on providing
sufficient breeding and upland habitat to maintain self-sustaining
populations of arroyo toads throughout the historic range of
[[Page 36517]]
the species in California, and minimizing or eliminating impacts and
threats to arroyo toad populations. Self-sustaining populations are
those documented as having successful recruitment (i.e., inclusion of
newly matured individuals into the breeding population) equal to 20
percent or more of the average number of breeding adults in 7 of 10
years of average to above average rainfall amounts with normal rainfall
patterns. The level of recruitment is based on the currently available
information, which indicates that arroyo toads may live for only about
5 years, and that losses of overwintering adults can be high. Having 20
percent or greater recruitment in 7 of 10 good rainfall years should
provide a sufficient population base to maintain the population through
adverse conditions such as during drought years or high flow years, or
following fires.
Self-sustaining populations should require little or no direct
human assistance such as captive breeding or rearing, or translocation
of arroyo toads between sites. Protection and management of areas on a
watershed basis is the most effective means of achieving such
distributions of habitat. Areas should be large enough to allow a
dynamic spatial and temporal distribution of suitable breeding,
foraging, dispersal, and migration habitats in the event of random
natural or human-related events such as fires, floods, and droughts.
Arroyo toads survive in areas that are ecologically and
geographically distinct from one another, and the threats in those
areas differ. To better address the recovery needs of the arroyo toad
in each of these areas, we identified three recovery units, the
Northern, Southern, and Desert, that reflect the ecological and
geographic separations, and cover the known and historic range of the
species. We are proposing some critical habitat in each of the recovery
units to identify for the public and land managers those distinct
ecological environments in which the toad is found that are essential
to its recovery, and to enable land managers to make management
decisions that may help stabilize and expand the populations in these
units to preserve the species' full genetic diversity. The recovery
units as identified in the final recovery plan are provided for
reference in Table 1.
TABLE 1. Recovery Units for the Arroyo Toad.
------------------------------------------------------------------------
-------------------------------------------------------------------------
Northern Unit:
San Antonio River, Monterey County
Sisquoc River and tributaries, Santa Barbara County
Upper Santa Ynez River Basin (Indian, Mono, Agua Caliente), Santa
Barbara County
Sespe Creek., Ventura County
Piru Creek (Upper and Lower), Ventura and Los Angeles counties
Upper Santa Clara River Basin, Los Angeles County
Upper Los Angeles Basin: (Big Tujunga, tributaries, Arroyo Seco),
Los Angeles County
Southern Unit:
Santiago Creek, Orange County
San Jacinto and Bautista Creek, Riverside County
San Juan basin and Trabuco Creeks, Orange and Riverside counties
San Mateo and San Onofre Creek Basins, San Diego and Orange
counties
Lower Santa Margarita basin (De Luz, Roblar, and Sandia Creeks),
San Diego County
Upper Santa Margarita Basin (Temecula Creek, Arroyo Seco),
Riverside and San Diego Counties
Lower and Middle San Luis Rey Basin (below Lake Henshaw), San Diego
County
Upper San Luis Rey basin (above Lake Henshaw), San Diego County
Santa Ysabel Creek, San Diego County
San Diego basin (including San Vicente Creek), San Diego County
Sweetwater River Basin (including Viejas, Peterson Creeks), San
Diego County
Cottonwood Creek Basin, San Diego County
Desert Recovery Unit:
Little Rock Creek, Los Angeles County
Upper Mojave River Basin (Mojave, Deep, Horsethief, Little
Horsethief), San Bernardino County
Whitewater River Basin, Riverside County.
------------------------------------------------------------------------
In an effort to map areas essential to the conservation of the
species, we used data on known arroyo toad locations, focusing
specifically on those areas identified in the recovery plan as
essential for the stabilization and reclassification of the species. We
then used spatial data on stream gradient to better determine the
extent of suitable breeding habitat in these areas. Stream segments
containing suitable stream gradient are often patchily distributed and
interspersed with higher gradient segments. These interspersed high-
gradient segments were included in the mapped essential stream reaches
because of their proximity to suitable breeding habitat and their
importance in facilitating movement between breeding sites.
GIS-based modeling was then used to identify upland areas within a
25-m (80-ft) elevation range of each essential stream reach and no more
than 1.5 km (0.9 mi) away from the stream. This technique was effective
at capturing alluvial areas associated with river valleys without
extending appreciably up the adjacent hillsides. Thus, the width of the
upland component of critical habitat varies based on topography. The
habitat is wide in broad alluvial valleys and narrow in places where
streams run through constricted canyons or between surrounding hills.
To provide a legal description of the proposed critical habitat
units, a 1-km\2\ (0.62 mi\2\) Universal Transverse Mercator (UTM) grid
was overlaid on each essential stream reach and its surrounding upland
habitat area (as defined by the GIS-based modeling described above).
The proposed critical habitat units represent all 1-km\2\ (0.62 mi\2\)
UTM grid squares that contain portions of an essential stream segment
or upland habitat area. Defining critical habitat unit boundaries at a
1-km\2\ (0.62 mi\2\) scale resolution does result in the inclusion of
some areas that potentially lack the primary constituent elements
necessary for arroyo toads.
To identify proposed critical habitat units, we first examined
those lands under Federal jurisdiction. Those lands include areas
managed by the Department of Defense (DOD), the U.S. Forest Service
(USFS), the Bureau of Land Management (BLM), the Army Corps of
Engineers (Army Corps), and the U.S. Fish and Wildlife Service
(Service). We also considered the existing status of non-Federal and
private lands in designating areas as critical habitat. Section
10(a)(1)(B) of the Act authorizes us to issue permits 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. Non-Federal and private lands
that are covered by an existing operative HCP and executed
implementation agreement (IA) for arroyo toads under section
10(a)(1)(B) of the Act receive special management and protection under
the terms of the HCP/IA and are therefore not being proposed for
inclusion in critical habitat as discussed in section 3(5) of the Act.
We considered, and are proposing, portions of the Pala, Rincon,
Capitan Grande, Sycuan, Viejas, La Posta, and Soboba Indian
Reservations because we believe that riparian and adjoining upland
areas on Tribal lands may be essential to the continued existence of
arroyo toads. However, the short
[[Page 36518]]
amount of time allowed under the settlement agreement approved by the
court to propose critical habitat precluded us from adequately
coordinating with the respective Tribes. Subsequent to this proposal,
we will coordinate with the Tribes before making a final determination
as to whether any Tribal lands should be included as critical habitat
for the arroyo toad. We will consider whether these Tribal lands
require special management considerations or protection; we may also
exclude some or all of these lands from critical habitat upon a
determination that the benefits of excluding them outweighs the
benefits of designating these areas as critical habitat, as provided
under section 4(b)(2) of the Act. This consultation will take place
under the auspices of Secretarial Order 3206 and the Presidential
Memorandum of April 29, 1994, which require us to coordinate with
federally recognized Tribes on a Government-to-Government basis.
We did not map critical habitat in sufficient detail to exclude all
developed areas such as towns, housing developments, and other lands
unlikely to contain primary constituent elements essential for arroyo
toad conservation. Areas of existing features and structures within the
unit boundaries, such as buildings, roads, aqueducts, railroads,
airports, and paved areas will not contain one or more of the primary
constituent elements. Federal actions limited to these areas,
therefore, would not trigger a section 7 consultation, unless they
affect the species and/or the primary constituent elements in adjacent
critical habitat.
Proposed Critical Habitat Designation
The approximate area encompassing proposed critical habitat by
county and land ownership is shown in Table 2. Proposed critical
habitat includes arroyo toad habitat throughout the species' range in
the United States (i.e., Monterey, San Luis Obispo, Santa Barbara,
Ventura, Los Angeles, Riverside, San Bernardino, Orange, and San Diego
Counties, California). Lands proposed are under private, local agency,
county, State, Tribal, and Federal ownership. Lands proposed as
critical habitat have been divided into 22 Critical Habitat Units.
Brief descriptions of each unit, and reasons for proposing them as
critical habitat, are presented below. The units are generally based on
geographically distinct river basins. In several instances, a river
basin has been broken into two or more units based on human or natural
landscape features that effectively separate portions of the basin
(e.g., a large reservoir or gorge).
Jennings and Hayes (1994) estimate that arroyo toads have lost up
to 75 percent of their historic habitat. Although the linear measure of
historically occupied streams may not be four times what is currently
occupied, it is clear from museum records and data on extant
populations that the habitats capable of supporting large numbers of
arroyo toads have decreased dramatically in the last 100 years. The
reaches that typically support or historically supported the highest
densities of toads are those in the lower and middle portions of river
basins, typically associated with third order or larger streams. Many
of those reaches have been lost to urban development, intensive
agriculture, and reservoirs.
Arroyo toads now occur as isolated subpopulations on the middle and
upper reaches of tributaries of many large rivers. They probably
occurred on these creeks downstream to the confluences with the
mainstems. If so, and if arroyo toads used the mainstems for breeding
or dispersal, all of the arroyo toads in a single basin would have
constituted a single metapopulation. The isolation of subpopulations on
the tributaries can lead to inbreeding and genetic instability, making
them more susceptible to losses from disease or other problems. Losses
of genetic variability associated with inbreeding can make it more
difficult for a population to survive when environmental conditions
change, as associated with long-term climatic changes or fluctuations
(e.g., ice ages, global warming). When populations in isolated reaches
are greatly reduced or lost due to natural or human-related impacts,
including catastrophic fires or floods, the loss of habitat continuity
and the greater distances between subpopulations will make it more
difficult for arroyo toads to recolonize those fragmented habitats (see
e.g., Barto 1999).
Northern Recovery Unit
The following seven critical habitat units are located in the
Northern Recovery Unit for the arroyo toad, as discussed in the final
recovery plan. Most of the lands are Federal, and management needs are
being addressed through the section 7 consultation process and the
development of management plans and conservation strategies.
Unit 1: San Antonio River, Monterey County
Unit 1 consists of the San Antonio River and adjacent uplands, from
the junction of Forest Creek downstream to San Antonio Reservoir. The
unit encompasses approximately 9,100 ha (22,600 ac), 98 percent of
which is on the Fort Hunter Liggett Military Reservation. This is the
northernmost known occurrence of arroyo toads and is approximately 160
km (100 mi) north of the nearest documented extant population. The
protection and recovery of this population are essential to maintain
the complete genetic variability of the species and the full range of
ecological settings within which it is found.
Unit 2: Sisquoc River, Santa Barbara County
Unit 2 consists of the Sisquoc River and adjacent uplands, from
Sycamore Campground downstream to its confluence with the Santa Maria
River. The unit encompasses approximately 11,700 ha (28,900 ac), of
which 67 percent is private land and 33 percent is within the Los
Padres National Forest. Upper stretches of the river are within the
National Forest and mostly within the San Rafael Wilderness Area. Below
the National Forest boundary, the river and adjacent uplands are on
private lands. This long, unregulated stream is occupied arroyo toad
habitat and is one of the few remaining major rivers in southern
California with a natural flow regime.
Unit 3: Upper Santa Ynez River Basin, Santa Barbara County
Unit 3 is located upstream of Gibraltar Reservoir and incorporates
portions of the upper Santa Ynez River, Indian Creek, Mono Creek, and
adjacent uplands. The unit encompasses approximately 5,700 ha (14,100
ac) within the Los Padres National Forest, with over 90 percent on
National Forest lands and the remainder in private inholdings. Proposed
portions of the upper Santa Ynez River watershed extend from Jameson
Reservoir down to Gibraltar Reservoir. Indian Creek basin is proposed
from the Buckthorn Creek confluence down to the Mono Debris Dam. Mono
Creek is proposed from the first unnamed stream below The Narrows to
its confluence with the Santa Ynez River. A substantial and well-
studied arroyo toad population occurs in this area (Sweet 1992, 1993).
It is likely the remnants of a much larger population that historically
extended downstream below what is now Lake
[[Page 36519]]
Cachuma and upstream into the area occupied by Jameson Reservoir.
Unit 4: Sespe Creek, Ventura County
Unit 4 includes Sespe Creek and adjacent uplands, from the lower
end of Sespe Gorge (elevation approximately 1,075 m (3,530 ft))
downstream to the confluence with Alder Creek. The unit encompasses
approximately 5,800 ha (14,300 ac), of which 96 percent is on the Los
Padres National Forest and the remainder is in private inholdings. A
substantial arroyo toad population occurs in this unit (Service 1999)
along an undammed stream in a watershed that is predominately National
Forest land. In all likelihood, arroyo toad populations in units 4, 5,
and 6 historically were part of a large Santa Clara River Basin
metapopulation. Substantive barriers to toad movement now exist between
these units, including dams, agriculture, and urban development.
Unit 5: Piru Creek, Ventura and Los Angeles Counties
Unit 5 includes Piru Creek and adjacent uplands from the confluence
with Lockwood Creek downstream to Pyramid Reservoir (Subunit A), and
from Piru Gorge downstream to Lake Piru (Subunit B). Subunit B also
includes Agua Blanca Creek from Devil's Gateway downstream to the
confluence with Piru Creek. The unit encompasses approximately 7,800 ha
(19,300 ac), 95 percent of which is within the Los Padres and Angeles
National Forests, with the remaining on private inholdings. A
substantial arroyo toad population occurs in this unit (Service 1999).
Unit 6: Upper Santa Clara River Basin, Los Angeles County
Unit 6 includes portions of Castaic Creek, San Francisquito Creek,
the upper Santa Clara River, and adjacent uplands. The unit encompasses
approximately 13,900 ha (34,300 ac), of which 77 percent is private
land and 23 percent is within the Angeles National Forest. The proposed
portion of Castaic Creek extends from Cienega Spring downstream to
Castaic Lake (Subunit A). A portion of Fish Creek above the confluence
with Castaic Creek is also included in Subunit A. Arroyo toads occur
below Castaic Lake to the confluence of the Santa Clara River (Subunit
B). The upper Santa Clara River is proposed from Bee Canyon downstream
to the confluence with Castaic Creek (Subunit B). San Francisquito
Creek is proposed from Bee Canyon (a different Bee Canyon) to the
confluence with the Santa Clara River (Subunit B). San Francisquito
Creek offers an excellent opportunity for expanding the Upper Santa
Clara arroyo toad population with appropriate management of nonnative
plants and habitat rehabilitation.
Unit 7: Upper Los Angeles River Basin, Los Angeles County
Unit 7 includes portions of Big Tujunga, Mill, Alder, and Arroyo
Seco creeks, and adjacent uplands. The unit encompasses approximately
8,700 ha (21,500 ac), of which 68 percent is within the Angeles
National Forest and 32 percent is private land. Big Tujunga Creek is
proposed from Big Tujunga Dam downstream to Hansen Lake (Subunit A)
(excluding Big Tujunga Reservoir). Big Tujunga Creek upstream from Big
Tujunga Lake to 2 km (1.2 mi) above the confluence with Alder Creek,
Mill Creek from the Monte Cristo Creek confluence downstream to Big
Tujunga Creek, and Alder Creek from the Mule Fork confluence downstream
to Big Tujunga Creek are proposed (Subunit B). Arroyo Seco is proposed
from the Long Canyon confluence downstream to Devil's Gate Reservoir
(Subunit C). Arroyo toads occupy each of these drainages. Big Tujunga
Creek below the reservoir is an area with high potential for expanding
toad numbers through careful management of land use activities and
water releases from the dam.
Southern Recovery Unit
The following 12 critical habitat units are located in the Southern
Recovery Unit for the arroyo toad, as discussed in the final recovery
plan. Arroyo toads probably occurred in and along the coastal plain
portions of all the streams in this unit, but are now found on the
coastal plain only in units 8, 10, 11, and 12. The latter two units are
largely encompassed by Camp Pendleton Marine Corps Base.
Unit 8: Santiago Creek, Orange County
Unit 8 is centered around the confluence of Santiago, Black Star,
and Baker creeks, just above Irvine Lake. The unit encompasses
approximately 1,200 ha (3,000 ac), 95 percent of which is private land
and 5 percent is within the Cleveland National Forest. Black Star Creek
is proposed from near the southwest corner of Section 30 (T4S, R7W)
downstream to Santiago Creek. An approximately 3 km (1.9 mi) stretch of
lower Baker Canyon is proposed. Portions of the Orange County Central/
Coastal Natural Community Conservation Planning Act of 1991 (NCCP)/HCP
planning area fall within the unit boundaries, but areas where take has
been authorized are not being proposed for critical habitat. The
current status of arroyo toads in this unit is poorly known, but there
are historic records from the 1970s and high-quality habitat still
exists in the area. The unit is important for arroyo toad recovery, as
it is the northernmost remaining habitat in Orange County and supports
the only remaining population within the lower Santa Ana River Basin.
Unit 9: San Jacinto River and Bautista Creek, Riverside County
Unit 9 includes portions of the San Jacinto River and Bautista
Creek and adjacent uplands, several miles east of the town of Hemet.
The unit encompasses approximately 5,370 ha (13,300 ac), of which 62
percent is private land and 24 percent is within the San Bernardino
National Forest. The San Jacinto River is proposed from the Sand Canyon
confluence downstream to just below the confluence with Indian Creek.
The lower 1 km (0.6 mi) of Indian Creek is also included. Bautista
Creek is proposed from near the middle of section 20 (T6S, R2E)
downstream to near the middle of section 21 (T5S, R1E), at the point
where the levee starts. The current status of arroyo toads in this unit
is poorly known, but there are historic records from the 1970s and high
quality habitat still exists in the area. It is an important area for
recovery, being the only remaining area in the San Jacinto River Basin
capable of supporting a substantial population.
Approximately 330 ha (815 ac) of the Soboba Indian Reservation are
included in this unit. Within the Reservation, riparian and associated
upland habitats along lower Indian Creek and the San Jacinto River are
considered essential for the conservation of the arroyo toad. Based on
the outcome of discussions with the Soboba Tribe, and the results of
our 4(b)(2) analysis, critical habitat on these Tribal lands may be
appropriate and has been identified in this proposed rule.
Unit 10: San Juan and Trabuco Creeks, Orange and Riverside Counties
Unit 10 includes portions of San Juan Creek, Bell Canyon, Trabuco
Creek, and adjacent uplands. The unit encompasses approximately 8,600
ha (21,300 ac), of which 59 percent is private land, 21 percent is
Orange County park land (i.e., Caspers Wilderness Park and O'Neil
Regional Park), and 20 percent is on the Cleveland National Forest. The
proposed portion of San Juan Creek extends from the bottom of Decker
Canyon downstream to Interstate 5 (Subunit A). The proposed portion of
Bell Canyon extends from just below
robop...@us.govnews.org
Posting-number: Volume 65, Issue 111, Page 36511, Part 1
[[Page 36520]]
Crow Canyon downstream to the confluence with San Juan Creek (Subunit
A). An approximately 8 km (5 mi) stretch of Trabuco Creek is proposed,
extending downstream from Falls Canyon (Subunit B). San Juan Creek
supports a large arroyo toad population, which is concentrated within
Caspers Wilderness Park and private lands downstream. Trabuco Creek is
occupied by arroyo toads, but there is little additional information on
their distribution and abundance in this drainage. Although habitat has
been degraded in the far downstream portions of San Juan Creek, there
is still high potential for restoration and recovery in this area.
Unit 11: San Mateo and San Onofre Basins, San Diego and Orange Counties
Unit 11 includes portions of San Mateo, San Onofre, Christianitos,
Talega, Gabino, and La Paz creeks, and adjacent uplands. The unit
encompasses approximately 11,200 ha (27,600 ac), of which 78 percent is
within the Camp Pendleton Marine Corps Base and 20 percent is on
private land. The proposed portion of San Mateo Creek extends from
Devils Canyon downstream to Interstate 5. The proposed portion of San
Onofre Creek extends approximately 16 km (10 mi) upstream from
Interstate 5 and includes portions of Jardine Canyon. Christianitos
Creek is proposed from just above Gabino Creek downstream to the
confluence with San Mateo Creek. An approximately 5 km (3.1 mi) stretch
of Gabino Creek upstream from its confluence with Christianitos Creek
is proposed, including about 1 km (0.6 mi) of La Paz Creek. An
approximately 7 km (4.4 mi) stretch of Talega Creek upstream from its
confluence with Christianitos Creek is also proposed. This unit
supports a large number of arroyo toads (D.C. Holland, unpubl. data)
and one of the few remaining populations on the coastal plain.
Unit 12: Lower Santa Margarita River, San Diego County
Unit 12 includes the Santa Margarita River and adjacent uplands,
from the lower end of Temecula Canyon to Interstate 5. It also includes
De Luz Creek from the town of De Luz to the confluence with the Santa
Margarita River and approximately 2.5 km (1.6 mi) of Roblar Creek above
its confluence with the Santa Margarita River. The unit encompasses
approximately 9,800 ha (24,200 ac), of which 74 percent is within
either the Camp Pendleton Marine Corps Base or the Fallbrook Naval
Weapons Station and 25 percent is on private land. The arroyo toad
population within this unit is large (D.C. Holland, unpubl. data) and
one of the few remaining on the coastal plain.
Unit 13: Upper Santa Margarita River Basin, Riverside and San Diego
Counties
Unit 13 is located above Vail Lake and includes portions of
Temecula Creek, Wilson Creek, Arroyo Seco Creek, and adjacent uplands.
The unit encompasses approximately 9,800 ha (24,200 ac), of which 78
percent is private land and 18 percent is within the Cleveland National
Forest. Temecula Creek is proposed from Dodge Valley downstream to Vail
Lake. Wilson Creek is proposed from Lancaster Valley down to Vail Lake,
and the Arroyo Seco segment extends from Crosley Homestead down to Vail
Lake. The broad, flat alluvial valleys found in this unit contain high-
quality habitat for arroyo toads, and the species occurs in each of the
proposed drainages. It is the largest and highest quality area of
suitable arroyo toad habitat in Riverside County.
Unit 14: Lower and Middle San Luis Rey River Basin, San Diego County
Unit 14 includes portions of the San Luis Rey River below Lake
Henshaw and adjacent uplands, and includes the lower portion of Keys
Creek. The unit encompasses approximately 13,400 ha (33,100 ac), of
which 77 percent is private land and 17 percent is Tribal land. The San
Luis Rey River is proposed from the western edge of the La Jolla Indian
Reservation downstream to the confluence with Guajome Creek near the
city of Oceanside. Approximately 2.7 km (1.7 mi) of Keys Creek upstream
from the confluence with the San Luis Rey is also proposed. This long,
low-elevation (all below 305 m (1,000 ft) in elevation) unit, situated
in a broad, flat valley, is prime occupied habitat for arroyo toads.
Approximately 1,365 ha (3,375 ac) of the Pala Indian Reservation and
920 ha (2,275 ac) of the Rincon Indian Reservation are included in this
unit. Within these reservations, riparian and associated upland
habitats along the San Luis Rey River, Pala Creek, and other tributary
streams are considered essential for the conservation of the arroyo
toad.
The San Luis Rey River provides important high quality habitat for
the arroyo toad. However, intensive urbanization and agriculture near
the coast, and dams and water diversions in the upper end, have greatly
reduced habitat quality in the upper and lower portions of this
drainage, leaving only the middle stretch of the river with any
remaining high quality, occupied toad habitat. Approximately 19 percent
of the identified remaining suitable habitat along the San Luis Rey is
on Tribal land (13 percent on the Pala and 6 percent on the Rincon).
The Pala Reservation is in the middle of the San Luis Rey critical
habitat unit. If habitat on the reservation is lost, the remaining
population would be highly fragmented and vulnerable to extirpation.
Also, land uses on the stream terrace (primarily agricultural fields)
have been more intensive on the private lands, particularly in the
lower end of the unit. Thus, the Tribal lands actually support a
greater percentage of high quality upland habitat. Based on the outcome
of discussions with the Pala and Rincon Indian Tribes, and the results
of our 4(b)(2) analysis, critical habitat on these Tribal lands may be
appropriate and has been identified in this proposed rule.
Unit 15: Upper San Luis Rey Basin, San Diego County
Unit 15 includes the upper San Luis Rey River above Lake Henshaw,
two of its headwater tributaries, and adjacent uplands. The unit
encompasses approximately 7,400 ha (18,300 ac), of which 68 percent is
private land and 32 percent is within the Cleveland National Forest.
The upper San Luis Rey River is proposed from the Indian Flats area
downstream to the upper end of Lake Henshaw (Subunit A). Agua Caliente
Creek is proposed from the western edge of section 13 (T10S, R3E) to
the confluence with the San Luis Rey (Subunit A). An approximately 2.5
km (1.6 mi) stretch of the West Fork of the San Luis Rey River is
proposed where it runs through Barker Valley (Subunit B). Arroyo toads
occur in each of these drainages, with the largest concentration found
along Agua Caliente Creek. This unit contains an important assemblage
of several small, disjunct, high-elevation populations and one large,
core population in an area where in-stream and/or overland dispersal
between populations is probably still possible.
Unit 16: Santa Ysabel Creek, San Diego County
Unit 16 includes portions of Santa Ysabel Creek and adjacent
uplands, and includes portions of Santa Maria Creek, Guejito Creek, and
Temescal Creek (Pamo Valley). The unit encompasses approximately 9,500
ha (23,500 ac), of which 76 percent is private land and 20 percent is
within the Cleveland National Forest. Santa Ysabel Creek is proposed
from Sutherland Reservoir downstream to the western boundary of the
Cleveland National Forest near Boden Canyon (which is the eastern
boundary of the San Diego MSCP area) (Subunit A). Approximately 7 km
(4.3 mi) of Temescal Creek is proposed from the
[[Page 36521]]
northern edge of Pamo Valley to the confluence with Santa Ysabel Creek
(Subunit A). Approximately 12 km (7.5 mi) of Guejito Creek is proposed
from the 610 m (2,000 ft) elevation contour downstream to the San Diego
MSCP boundary near San Pasqual Valley (Subunit B). Approximately 10 km
(6 mi) of Santa Maria Creek is proposed from the west side of Ramona to
the San Diego MSCP boundary near San Pasqual Valley (Subunit C). Arroyo
toads occur in each of these drainages, with a particularly substantial
concentration in Pamo Valley. This unit provides an important linkage
to a substantial arroyo toad population in San Pasqual Valley that
occurs within the San Diego MSCP area.
Unit 17: San Diego River/San Vicente Creek, San Diego County
Unit 17 includes portions of the San Diego River and San Vicente
Creek and adjacent uplands. The unit encompasses approximately 5,100 ha
(12,600 ac), of which 65 percent is private land and 22 percent is
within the Cleveland National Forest. Subunit A includes the San Diego
River from Ritchie Creek downstream to the upper edge of El Capitan
Reservoir (including approximately 1 km (0.6 mi) of lower Cedar Creek)
and San Vicente Creek from the eastern end of San Diego Country Estates
downstream to where the creek crosses Wildcat Canyon Road (the MSCP
area boundary). Subunit B extends from El Capitan Reservoir to El Monte
County Park. Subunit C extends from approximately 2 km (1.2 mi) below
El Monte County Park downstream to the confluence with San Vicente
Creek. The upper San Diego River and San Vicente Creek are both
occupied by arroyo toads. This unit also provides an important linkage
to populations occurring within the San Diego MSCP area. Approximately
360 ha (900 ac) of the Capitan Grande Indian Reservation are included
in this unit. Within the Reservation, riparian and associated upland
habitats along the upper San Diego River above El Capitan Lake are
considered essential for the conservation of the arroyo toad. Based on
the outcome of discussions with the Barona and Viejas Indian Tribes
(which jointly govern the Capitan Grande Reservation), and the results
of our 4(b)(2) analysis, critical habitat on these Tribal lands may be
appropriate and has been identified in this proposed rule.
Approximately 190 acres of the Barona Indian Reservation south of San
Vicente Creek are also included in this unit. These acres are not
considered to be high-quality arroyo toad habitat; they lie within the
unit boundary because of the spatial scale at which these units were
mapped. Thus, Tribal lands on the Barona Indian Reservation are not
considered essential to conserve the toad and are not being proposed
for critical habitat. Because of the short time-line associated with
this proposal, we were unable to accurately remove this area from the
proposed critical habitat boundaries.
Unit 18: Sweetwater River Basin, San Diego County
Unit 18 includes portions of the Sweetwater River, Peterson Canyon,
Viejas Creek, and adjacent uplands. The unit encompasses approximately
11,410 ha (28,200 ac), of which 52 percent is private land, 22 percent
is on California State Park land, 17 percent is within the Cleveland
National Forest, and 6 percent is on the San Diego National Wildlife
Refuge. Three disjunct portions of the Sweetwater River are proposed:
from the top of Upper Green Valley in Cuyamaca Rancho State Park
downstream to the San Diego MSCP area boundary (Subunit A), an
approximately 1-km (0.6-mi) segment immediately above Loveland
Reservoir that is outside the MSCP area boundary (Subunit B), and from
immediately below Loveland Dam downstream to the upper edge of
Sweetwater Reservoir (Subunit C). Peterson Canyon is proposed from just
east of the Taylor Creek confluence downstream to the top of Loveland
Reservoir (Subunit A). Viejas Creek is proposed from the western end of
Viejas Valley downstream to the Congressional boundary of the Cleveland
National Forest (which is the eastern boundary of the San Diego MSCP
area) (Subunit A). All of the drainages included in this unit support
arroyo toads. The unit provides an important linkage to populations on
the lower Sweetwater River, which occur within the San Diego MSCP area.
Approximately 185 ha (460 ac) of the Sycuan Indian Reservation and 100
ha (250 ac) of the Viejas Indian Reservation are included in this unit.
Within the reservations, riparian and associated upland habitats along
Viejas Creek (Viejas Reservation) and the lower part of Sycuan Creek
(Sycuan Reservation) are considered essential for the conservation of
the arroyo toad. Based on the outcome of discussions with the Viejas
and Sycuan Indian Tribes, and the results of our 4(b)(2) analysis,
critical habitat on these Tribal lands may be appropriate and has been
identified in this proposed rule.
Unit 19: Cottonwood Creek Basin, San Diego County
Unit 19 includes portions of Cottonwood Creek, adjacent uplands,
and portions of the following tributaries: Potrero Creek, Pine Valley
Creek, Scove Canyon, Morena Creek, La Posta Creek, and Kitchen Creek.
The unit, which is the largest proposed, encompasses approximately
18,000 ha (44,500 ac), of which 54 percent is within the Cleveland
National Forest and 34 percent is private land. Two disjunct portions
of Cottonwood Creek are proposed: From Buckman Springs (near Interstate
8) downstream to Morena Reservoir including approximately 13 km (8.1
mi) of La Posta Creek, 6 km (3.7 mi) of Morena Creek, and 2.5 km (1.6
mi) of Kitchen Creek (Subunit A). Subunit B extends from approximately
4 km (2.5 mi) below Morena Reservoir downstream to State Highway 94
(excluding Barrett Reservoir) and Potrero Creek from approximately the
752 m (2,466 ft) elevation benchmark downstream to the confluence with
Cottonwood Creek. Two disjunct portions of Pine Valley Creek are
proposed: From the north edge of section 12 (T15S, R4E) downstream to
approximately 1 km (0.6 mi) south of Interstate 8 including
approximately 4 km (2.5 mi) of Scove Canyon and 1 km (0.6 mi) of Noble
Creek (Subunit C) and from the Nelson Canyon confluence downstream to
Barrett Reservoir (Subunit D). Approximately 170 ha (425 ac) of the La
Posta Indian Reservation are included in this unit. Within the
Reservation, riparian and associated upland habitats along La Posta
Creek are considered essential for the conservation of the arroyo toad.
Based on the outcome of discussions with the La Posta Tribe, and the
results of our 4(b)(2) analysis, critical habitat on these Tribal lands
may be appropriate and has been identified in this proposed rule. This
unit encompasses a large number of distinct arroyo toad occurrences in
an area where in-stream and/or overland dispersal between populations
is probably still possible. It also provides an important linkage to
populations occurring within the San Diego MSCP area.
Desert Recovery Unit
The following four critical habitat units are in the Desert
Recovery Unit as described in the final recovery plan. Each of these
units is isolated from each other and from any other units, making the
issues of inbreeding, fragmentation, and random negative impacts of
great concern. Sufficient habitat needs to be secured and managed so
that threats are
[[Page 36522]]
reduced and each population can increase in size.
Unit 20: Little Rock Creek, Los Angeles County
Unit 20 includes approximately 5 km (3.1 mi) of Little Rock Creek
below Little Rock Reservoir (Subunit A) and from the South Fork
confluence downstream to Little Rock Reservoir (Subunit B). Also
included in Subunit B is an approximately 1.5 km (0.9 mi) segment of
Santiago Creek upstream of the confluence with Little Rock Creek and
adjacent uplands. The unit encompasses approximately 3,000 ha (7,400
ac), of which 79 percent is within the Angeles National Forest and 20
percent is private land. A substantial arroyo toad population occurs in
this unit, in which the management of recreational activities has
recently changed. Studies are currently under way to better determine
the distribution of the population along the creek and to assess upland
habitat use (Ramirez 2000).
Unit 21: Upper Mojave River Basin, San Bernardino County
Unit 21 includes portions of the Mojave River, the West Fork of the
Mojave River, Horsethief and Little Horsethief creeks, Deep Creek, and
adjacent uplands. The unit encompasses approximately 14,200 ha (35,100
ac), of which 26 percent is within the San Bernardino National Forest,
56 percent is private land, and 9 percent is U.S. Army Corps of
Engineers-managed land associated with the flood control reservoir. Two
separate segments of the Mojave River are proposed: (1) From Mojave
River Forks Dam downstream approximately 4 km (2.5 mi) and (2) from
approximately 2 km (1.2 mi) southeast of the Upper Narrows (section 14,
T5N, R4W) downstream to approximately 6 km (3.7 mi) below the Lower
Narrows (section 13, T6N, R5W). The West Fork is proposed from near the
1462 m (3,613 ft) elevation benchmark downstream to the confluence with
Deep Creek (excluding Silverwood Lake). Deep Creek is proposed from
near Devil's Hole to the confluence with the West Fork. Horsethief
Canyon is proposed from Little Horsethief Creek to the confluence with
the West Fork of the Mojave River. Little Horsethief Creek is proposed
from approximately the western edge of section 28 (T3N, R5W) downstream
to the confluence with Horsethief Creek. Summit Valley, through which
Horsethief Creek flows, to and downstream of the confluence with the
West Fork, is a broad, flat, alluvial valley that supports large
numbers of arroyo toads (Ramirez 1999). It is probably the largest
concentration of arroyo toads on the desert side of the mountains.
Unit 22: Whitewater River, Riverside County
Unit 22 includes portions of the Whitewater River and adjacent
uplands, from near Red Dome downstream to one-quarter mile south of
Interstate 10. The unit encompasses approximately 2,400 ha (5,900 ac),
of which 56 percent is BLM land and 44 percent is private land. The
current status of arroyo toads in this unit is poorly known, but recent
sightings have occurred and high-quality habitat still exists in the
area.
[[Page 36523]]
Table 2.--Approximate Critical Habitat in Hectares (ha) (Acres (ac) by County and Land Ownership
[Area estimates reflect critical habitat unit boundaries, not the primary constituent elements within]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
County Forest service BLM FWS Military State/Local Tribal Private Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Monterey........................ 0................. 0................. 0................. 8,908 ha (22,013 0................. 0................. 218 ha (539 ac)... 9,126 ha (22,552
ac). ac)
San Luis Obispo................. 0................. 0................. 0................. 0................. 0................. 0................. 253 ha (625 ac)... 253 ha (625 ac)
Santa Barbara................... 9,008 ha (22,260 0................. 0................. 0................. 0................. 0................. 8,120 ha (20,066 17,128 ha (42,326
ac). ac). ac)
Ventura......................... 10,575 ha (26,130 0................. 0................. 0................. 0................. 0................. 546 ha (1,350 ac). 11,121 ha (27,480
ac). ac)
Los Angeles..................... 13,914 ha (34,382 58 ha (143 ac).... 0................. 0................. 58 ha (143 ac).... 0................. 14,050 ha (34,719 28,080 ha (69,387
ac). ac). ac)
San Bernardino.................. 3,725 ha (9,204 496 ha (1,225 ac). 0................. 1,221 ha (3,017 816 ha (2,016 ac). 0................. 7,943 ha (19,627 14,200 ha (35,089
ac). ac). ac). ac)
Riverside....................... 3,132 ha (7,738 1,949 ha (4,817 0................. 0................. 103 ha (255 ac)... 330 ha (815 ac)... 10,085 ha (24,920 15,599 ha (38,545
ac). ac). ac). ac)
Orange.......................... 1,178 ha (2,910 0................. 0................. 51 ha (125 ac).... 1,854 ha (4,581 0................. 8,431 ha (20,833 11,514 ha (28,449
ac). ac). ac). ac)
San Diego....................... 18,062 ha (44,631 1,424 ha (3,519ac) 723 ha (1,787 ac). 15,922 ha (39,344 4,436 ha (10,960 3,100 ha (7,660 42,924 ha (106,066 86,591 ha (213,963
ac). ac). ac). ac). ac). ac)
Total........................... 59,594 ha (147,255 3,927 ha (9,704 723 ha (1,787 ac). 26,103 ha (64,499 7,267 ha (17,955 3,430 ha (8,475 92,572 ha (228,745 193,616 ha
ac). ac). ac). ac). ac). ac). (478,419 ac)
---------------------------------------------------------------------------------------------------------------------------------------------------------------
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[[Page 36524]]
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 do
not destroy or adversely modify critical habitat to the extent that the
action appreciably diminish the value of the critical habitat for the
survival and recovery of the species. Individuals, organizations,
States, local governments, and other non-Federal entities are affected
by the designation of critical habitat only if their actions occur on
Federal lands, require a Federal permit, license, or other
authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is designated or proposed. 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 proposed species 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. The conservation recommendations in a conference report are
advisory. If a species is listed or critical habitat is designated,
section 7(a)(2) 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. Through this consultation, we
would ensure that the permitted actions do not destroy or adversely
modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined 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, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid the likelihood of jeopardizing
the continued existence of listed species or result in the destruction
or adverse modification of 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 critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat. Conference reports assist the agency in eliminating conflicts
that may be caused by the proposed action, and may include
recommendations on actions to eliminate conflicts with or adverse
modifications to proposed critical habitat. The conservation
recommendations in a conference report are advisory.
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)).
Activities on Federal lands that may affect the arroyo toad or its
critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the Army Corps under section 404 of the Clean Water
Act, a section 10(a)(1)(B) permit from the Service, or some other
Federal action, including funding (e. g., Federal Highway
Administration or Federal Emergency Management Agency) will also
continue to be subject to the section 7 consultation process. Federal
actions not affecting listed species or critical habitat and actions on
non-Federal and private lands that are not federally funded,
authorized, or permitted do not require section 7 consultation.
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 include those that appreciably reduce the value of critical
habitat for both the survival and recovery of the arroyo toad. Within
critical habitat, this pertains only to those areas containing the
primary constituent elements. We note that such activities may also
jeopardize the continued existence of the species.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery. Actions likely to ``destroy or adversely modify'' critical
habitat are those that would appreciably reduce the value of critical
habitat for the survival and recovery of the listed species.
Common to both definitions is an appreciable detrimental effect on
both survival and recovery of a listed species. Given the similarity of
these definitions, actions likely to destroy or adversely modify
critical habitat would almost always result in jeopardy to the species
concerned, particularly when the area of the proposed action is
occupied by the species concerned. Designation of critical habitat in
areas occupied by the arroyo toad is not likely to result in a
regulatory burden above that already in place due to the presence of
the listed species.
Designation of critical habitat could affect Federal agency
activities. Federal agencies already consult with us on activities in
areas currently occupied by the species to ensure that their actions do
not jeopardize the continued existence of the species. These actions
include, but are not limited to:
(1) Regulation of activities affecting waters of the United States
by the Army Corps under section 404 of the Clean Water Act;
[[Page 36525]]
(2) Regulation of water flows, damming, diversion, and
channelization by any Federal agencies;
(3) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities on Federal lands (such as
those managed by the Service, Forest Service, DOD, or BLM);
(4) Regulation of grazing, mining, and recreation by the BLM, DOD,
Army Corps, or Forest Service;
(5) Regulation of airport improvement activities by the Federal
Aviation Administration;
(6) Military training and maneuvers on Fort Hunter Liggett, Camp
Pendleton, and other applicable DOD lands;
(7) Construction of roads and fences along the international border
with Mexico, and associated immigration enforcement activities by the
Immigration and Naturalization Service (INS);
(8) Licensing of construction of communication sites by the Federal
Communications Commission, and;
(9) Funding of activities by the U.S. Environmental Protection
Agency, Department of Energy, Federal Emergency Management Agency,
Federal Highway Administration, or any other Federal agency.
Relationship to Habitat Conservation Plans
A number of habitat conservation planning efforts have been
completed within the range of the arroyo toad. Principal among these
are the NCCP efforts in San Diego and Orange counties. The San Diego
MSCP, and its approved subarea plans, provide measures to conserve
known populations of the arroyo toad within Santa Ysabel Creek in San
Pasqual Valley, San Vicente Creek above San Vicente Reservoir,
Sweetwater River, Otay River, and Cottonwood Creek in Marron Valley.
Area-specific management directives for MSCP subarea plans must address
the conservation of the arroyo toad by protecting and maintaining
sufficient, suitable low-gradient sandy stream habitat to meet breeding
requirements, preserving sheltering and foraging habitats within 1 km
(0.6 mi) of occupied breeding habitat within designated preserve lands,
controlling nonnative predators, and controlling human impacts within
designated preserves. Incidental take of arroyo toads is authorized
through the MSCP, but only for certain upland areas outside of U.S.
Army Corps of Engineers jurisdiction.
All lands within the MSCP planning areas considered essential to
the conservation of the arroyo toad were identified as preserve areas
and are managed for the benefit of the arroyo toad under the terms of
the MSCP. Therefore, with one exception, we have determined that non-
Federal lands within MSCP planning areas that have an approved plan and
an executed implementation agreement, approved as of the date of this
rule, do not meet the definition of critical habitat in the Act, and we
are not proposing designation of such lands as critical habitat. The
exception concerns the reach of the Sweetwater River between Loveland
and Sweetwater Reservoirs that is within the County of San Diego's MSCP
plan. This area is affected by activities (e.g., reservoir water
transfers) that are outside the authority of the approved County's MSCP
plan. Therefore, we have included this limited reach of the Sweetwater
River as critical habitat.
The arroyo toad has been identified as a ``conditionally covered''
species by the Orange County Central/Coastal Subregion NCCP/HCP.
``Conditional coverage'' allows projects to proceed within the Central/
Coastal subregion that will impact ``smaller populations (except for
the lower Limestone Creek population), reintroduced populations, or
populations that have expanded due to NCCP reserve management'' (pg.
94, Orange County Central/Coastal NCCP/HCP IA, Section 8.3.2). However,
``habitat that supports a major arroyo toad population that plays an
essential role in the distribution of the arroyo toad in the subregion
is not covered'' (pg. 94, Orange County Central/Coastal NCCP/HCP IA,
Section 8.3.2). We are not proposing designation of critical habitat in
the Orange County Central/Coastal NCCP/HCP planning area where take has
been authorized.
Habitat conservation plans currently under development are intended
to provide for protection and management of habitat areas essential for
the conservation of the arroyo toad, while directing development and
habitat modification to nonessential areas of lower habitat value. The
HCP development process provides an opportunity for more intensive data
collection and analysis regarding the use of particular habitat areas
by the arroyo toad. The process also enables us to conduct detailed
evaluations of the importance of such lands to the long-term survival
of the species in the context of constructing a biologically configured
system of interlinked habitat blocks. We fully expect that HCPs
undertaken by local jurisdictions (e.g., counties, cities) and other
parties will identify, protect, and provide appropriate management for
those specific lands within the boundaries of the plans that are
essential for the long-term conservation of the species. We believe and
fully expect that our analyses of proposed HCPs and proposed projects
under section 7 will show that covered activities carried out in
accordance with the provisions of the HCPs and biological opinions will
not result in destruction or adverse modification of critical habitat.
We provide technical assistance and work closely with applicants
throughout the development of HCPs to identify lands essential for the
long-term conservation of the arroyo toad and appropriate conservation
and management actions. Several HCP efforts are currently under way
that address listed and nonlisted species in areas within the range of
the arroyo toad and in areas we propose as critical habitat. These
HCPs, which will incorporate appropriate adaptive management, should
provide for the conservation of the species. Furthermore, we will be
doing intra-service consultation on the impacts of these HCPs on
designated critical habitat and determining whether it would destroy or
adversely modify critical habitat. We are soliciting comments on
whether future approval of HCPs and issuance of section 10(a)(1)(B)
permits for the arroyo toad should trigger revision of designated
critical habitat to exclude lands within the HCP area and, if so, by
what mechanism (see Public Comments Solicited section).
If you have questions regarding whether specific activities will
constitute adverse modification of critical habitat, contact the Field
Supervisor, Ventura or Carlsbad Fish and Wildlife Offices (see
ADDRESSES section). Requests for copies of the regulations on listed
wildlife, and inquiries about prohibitions and permits may be addressed
to the U.S. Fish and Wildlife Service, Branch of Endangered Species,
911 N.E. 11th Ave, Portland, OR 97232 (telephone 503/231-2063;
facsimile 503/231-6243).
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available, and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion
[[Page 36526]]
will result in the extinction of the species. We will conduct an
analysis of the economic impacts of designating these areas as critical
habitat prior to a final determination. When completed, we will
announce the availability of the draft economic analysis with a notice
in the Federal Register, and we will reopen the comment period 30 days
at that time to accept comments on the economic analysis or further
comments on the proposed rule.
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat for the arroyo toad as provided by section 4 of
the Act, including whether the benefits of designation will outweigh
any threats to the species due to designation;
(2) Specific information on the distribution of the arroyo toad,
the amount and distribution of its habitat, and what habitat is
essential to the conservation of the species and why;
(3) Land use practices and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families; and
(5) Economic and other values associated with designating critical
habitat for the arroyo toad, such as those derived from nonconsumptive
uses (e.g., hiking, camping, bird-watching, enhanced watershed
protection, improved air quality, increased soil retention, ``existence
values,'' and reductions in administrative costs).
In this proposed rule, we do not propose to designate critical
habitat on non-Federal and private lands within the boundaries of any
existing HCP and subarea plan with an executed Implementation Agreement
and permit for arroyo toads approved under section 10(a)(1)(B) of the
Act on or before the date of the final rule designating critical
habitat for the toad. We believe that, since an existing HCP provides
for long-term commitments to conserve the species and areas essential
to the conservation of the arroyo toad, such areas do not meet the
definition of critical habitat because they do not need special
management considerations or protection. However, we are specifically
soliciting comments on the appropriateness of this approach, and on the
following or other alternative approaches for critical habitat
designation in areas covered by existing approved HCPs:
(1) Designate critical habitat without regard to existing HCP
boundaries and allow the section 7 consultation process on the issuance
of the incidental take permit to ensure that any take we authorized
will not destroy or adversely modify critical habitat;
(2) Designate as critical habitat reserves, preserves, and other
conservation lands identified by approved HCPs on the premise that they
encompass areas that are essential to conservation of the species
within the HCP area and will continue to require special management
protection in the future. Under this approach, all other lands covered
by existing approved HCPs where incidental take for the arroyo toad is
authorized under a legally operative permit pursuant to section
10(a)(1)(B) of the Act would be excluded from critical habitat.
The amount of critical habitat we designate for the arroyo toad in
a final rule may either increase or decrease, depending upon which
approach we adopt for dealing with designation in areas of existing
approved HCPs.
Additionally, we are also seeking comments on critical habitat
designation relative to future HCPs. Several conservation planning
efforts are now under way within the range of the arroyo toad, and
other listed and nonlisted species, in areas we are proposing as
critical habitat. For areas where HCPs are currently under development,
we are proposing to designate critical habitat for areas that we
believe are essential to the conservation of the species and need
special management or protection. We invite comments on the
appropriateness of this approach.
In addition, we invite comments on the following, or other
approaches, for addressing critical habitat within the boundaries of
future approved HCPs upon issuance of section 10(a)(1)(B) permits for
the arroyo toad:
(1) Retain critical habitat designation within the HCP boundaries
and use the section 7 consultation process on the issuance of the
incidental take permit to ensure that any take we authorize will not
destroy or adversely modify critical habitat;
(2) Revise the critical habitat designation upon approval of the
HCP and issuance of the section 10(a)(1)(B) permit to retain only
preserve areas, on the premise that they encompass areas essential for
the conservation of the species within the HCP area and require special
management and protection in the future. Assuming that we conclude, at
the time an HCP is approved and the associated incidental take permit
is issued, that the plan protects those areas essential to the
conservation of the arroyo toad, we would revise the critical habitat
designation to exclude areas outside the reserves, preserves, or other
conservation lands established under the plan. Consistent with our
listing program priorities, we would publish a proposed rule in the
Federal Register to revise the critical habitat boundaries;
(3) As in (2) above, retain only preserve lands within the critical
habitat designation, on the premise that they encompass areas essential
for conservation of the species within the HCP area and require special
management and protection in the future. However, under this approach,
the exclusion of areas outside the preserve lands from critical habitat
would occur automatically upon issuance of the incidental take permit.
The public would be notified and have the opportunity to comment on the
boundaries of the preserve lands and the revision of designated
critical habitat during the public review and comment process for HCP
approval and permitting;
(4) Remove designated critical habitat entirely from within the
boundaries of an HCP when the plan is approved (including preserve
lands), on the premise that the HCP establishes long-term commitments
to conserve the species, and no additional special management or
protection is required. This exclusion from critical habitat would
occur automatically upon issuance of the incidental take permit. The
public would be notified and have the opportunity to comment on the
revision of designated critical habitat during the public notification
process for HCP approval and permitting; or
(5) Remove designated critical habitat entirely from within the
boundaries of an HCP when the plan is approved (including preserve
lands), on the premise that the HCP establishes long-term commitments
to conserve the species, and no further special management or
protection is required. Consistent with our listing program priorities,
we would publish a proposed rule in the Federal Register to revise the
critical habitat boundaries.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours.
[[Page 36527]]
Individual respondents may request that we withhold their home address
from the rulemaking record, which we will honor to the extent allowable
by law. In some circumstances, we would withhold from the rulemaking
record a respondent's identity, as allowable by law. If you wish us to
withhold your name and/or address, you must state this prominently at
the beginning of your comment. However, we will not consider anonymous
comments. We will make all submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public inspection in their entirety.
Peer Review
In accordance with our policy published in the Federal Register on
July 1, 1994 (59 FR 34270), we will seek the expert opinions of at
least three appropriate and independent specialists regarding this
proposed rule. The purpose of such review is to ensure listing
decisions are based on scientifically sound data, assumptions, and
analyses. We will send these peer reviewers copies of this proposed
rule immediately following publication in the Federal Register. We will
invite these peer reviewers to comment, during the public comment
period, on the specific assumptions and conclusions regarding the
proposed designation of critical habitat.
We will consider all comments and information received during the
60-day comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Given the large geographic extent covered by this
proposal, the high likelihood of multiple requests, and the need to
publish the final determination by January 1, 2001, we have scheduled
two public hearings. The hearings are scheduled to be held in Valencia,
California, on June 27, 2000, and in Temecula, California, on June 29,
2000. Written comments submitted during the comment period are
considered to be of equal weight as comments presented at a public
hearing. For additional information on public hearings, see the
ADDRESSES section.
Anyone wishing to make an oral statement for the record is
encouraged to provide a written copy of their statement and present it
to us at the hearing. In the event of large attendance, the time
allotted for oral statements may be limited. Oral and written
statements receive equal consideration. There are no limits to the
length of written comments presented at the hearing or mailed to us.
Legal notices announcing the date, time, and location of the hearings
are published in the ADDRESSES section of this Federal Register notice.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make proposed rules easier to understand including answers to questions
such as the following: (1) Are the requirements in the document clearly
stated? (2) Does the proposed rule contain technical language or jargon
that interferes with the clarity? (3) Does the format of the proposed
rule (grouping and order of sections, use of headings, paragraphing,
etc.) aid or reduce its clarity? (4) Is the description of the proposed
rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful
in understanding the proposed rule? What else could we do to make the
proposed rule easier to understand?
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule and has been reviewed by the Office of Management and
Budget (OMB), under Executive Order 12866.
(a) This rule will not have an annual economic effect of $100
million or more or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government. The arroyo toad
was listed as an endangered species in 1994. In fiscal years 1994
through 1999, the Ventura and Carlsbad Fish and Wildlife Offices
conducted 27 and 55, respectively, formal section 7 consultations with
other Federal agencies to ensure that their actions would not
jeopardize the continued existence of the arroyo toad.
Under the Act, critical habitat may not be adversely modified by a
Federal agency action; critical habitat does not impose any
restrictions on non-Federal persons unless they are conducting
activities funded or otherwise sponsored, authorized, or permitted by a
Federal agency. Section 7 requires Federal agencies to ensure that they
do not jeopardize the continued existence of the species. Based upon
our experience with the species and its needs, we conclude that any
Federal action or authorized action that could potentially cause an
adverse modification of the proposed critical habitat would currently
be considered as ``jeopardy'' under the Act (see Table 3). Accordingly,
the designation of currently occupied areas as critical habitat does
not have any incremental impacts on what actions may or may not be
conducted by Federal agencies or non-Federal persons that receive
Federal authorization or funding. Non-Federal persons that do not have
a Federal ``sponsorship'' of their actions are not restricted by the
designation of critical habitat (however, they continue to be bound by
the provisions of the Act concerning ``take'' of the species).
Table 3.--Impacts of Arroyo Toad Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
Additional activities
Activities potentially affected by species potentially affected by
Categories of activities listing only \1\ critical habitat
designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially Removing, degrading, or destroying arroyo toad None.
Affected \3\. habitat (as defined in the primary constituent
elements discussion), whether by activities
such as road construction, grading, and
maintenance; fencing; off-road vehicle use;
airport improvement activities; road right-of-
way designation; overgrazing; mining activities
including suction dredging; recreational
activities including development of
campgrounds; changes in long and short-term
water flows including damming, diversion,
alteration by agriculture and urbanization, and
channelization; military training and
maneuvers; licensing for construction of
communication sites; chemical, or other means
including herbicide or pesticide application,
etc.); and appreciably decreasing habitat value
or quality through indirect effects (edge
effects, invasion of exotic plants or animals,
or fragmentation that the Federal Government
carries out.
[[Page 36528]]
Private Activities Potentially Removing, degrading, or destroying arroyo toad None.
Affected \4\. habitat (as defined in the primary constituent
elements discussion), whether by activities
such as road construction, grading, and
maintenance; fencing; off-road vehicle use;
airport improvement activities; road right-of-
way designation; overgrazing; mining activities
including suction dredging; recreational
activities including development of
campgrounds; changes in long and short-term
water flows including damming, diversion,
alteration by agriculture and urbanization, and
channelization; military training and
maneuvers; licensing for construction of
communication sites; chemical, or other means
including herbicide or pesticide application,
etc.); and appreciably decreasing habitat value
or quality through indirect effects (edge
effects, invasion of exotic plants or animals,
or fragmentation) that require a Federal action
(permit, authorization, or funding).
----------------------------------------------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by listing the arroyo toad as an endangered
species (December 16, 1994 (59 FR 64859) under the Endangered Species Act.
\2\ This column represents the activities potentially affected by the critical habitat designation in addition
to those activities potentially affected by listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private entity that may need Federal authorization or funding.
(b) This rule will not create inconsistencies with other agencies'
actions. As discussed above, Federal agencies have been required to
ensure that their actions do not jeopardize the continued existence of
the arroyo toad since the listing in 1994. The prohibition against
adverse modification of critical habitat is not expected to impose any
additional restrictions to those that currently exist in occupied areas
of proposed critical habitat.
(c) This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
Federal agencies are currently required to ensure that their activities
do not jeopardize the continued existence of the species, and, as
discussed above, we do not anticipate that the adverse modification
prohibition (resulting from critical habitat designation) will have any
incremental effects in areas of occupied habitat.
(d) This rule will not raise novel legal or policy issues. The
proposed rule follows the requirements for determining critical habitat
contained in the Act.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
In the economic analysis (under section 4 of the Act), we will
determine whether designation of critical habitat will have a
significant effect on a substantial number of small entities. As
discussed under Regulatory Planning and Review above, this rule is not
expected to result in any restrictions in addition to those currently
in existence for areas of occupied critical habitat. As indicated on
Table 2 (see Proposed Critical Habitat Designation section), we
designated property owned by Federal, Tribal, State, and local
governments, and private property.
Within these areas, the types of Federal actions or authorized
activities that we have identified as potential concerns are:
(1) Regulation of activities affecting waters of the United States
by the Army Corps under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization by any Federal agencies;
(3) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities on Federal lands (such as
those managed by the Service, Forest Service, DOD, or BLM);
(4) Regulation of grazing, mining, and recreation by the BLM,
Department of Defense, Army Corps, or Forest Service;
(5) Regulation of airport improvement activities by the Federal
Aviation Administration;
(6) Military training and maneuvers on Fort Hunter Liggett, Camp
Pendleton, and other applicable DOD lands;
(7) Construction of roads and fences along the international border
with Mexico, and associated immigration enforcement activities by the
INS;
(8) Licensing of construction of communication sites by the Federal
Communications Commission, and;
(9) Funding of activities by the U.S. Environmental Protection
Agency, Department of Energy, Federal Emergency Management Agency,
Federal Highway Administration, or any other Federal agency.
Many of the activities sponsored by Federal agencies within the
proposed critical habitat areas are carried out by small entities (as
defined by the Regulatory Flexibility Act) through contract, grant,
permit, or other Federal authorization. As discussed above, these
actions are currently required to comply with the listing protections
of the Act, and the designation of occupied areas as critical habitat
is not anticipated to have any additional effects on these activities.
For actions on non-Federal property that do not have a Federal
connection (such as funding or authorization), the current restrictions
concerning take of the species remain in effect, and this rule will
have no additional restrictions.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C.
804(2))
In the economic analysis, we will determine whether designation of
critical habitat will cause (a) any effect on the economy of $100
million or more; (b) any increases in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or (c) any significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. As discussed above, we anticipate that the designation of
critical habitat will not have any additional effects on these
activities in areas of critical habitat occupied by the species.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. Small
governments will be affected only to the extent that any