[Federal Register Volume 59, Number 241 (Friday, December 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30994]


[[Page Unknown]]

[Federal Register: December 16, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB97

 

Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Arroyo Southwestern Toad

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered 
status for the arroyo southwestern toad (Bufo microscaphus 
californicus) pursuant to the provisions of the Endangered Species Act 
of 1973, as amended (Act). The arroyo toad occurs exclusively in 
streams in southern California and northwestern Baja California, 
Mexico. The arroyo toad has been extirpated from an estimated 75 
percent of its former range. Threats to the survival of this species 
include: habitat degradation, predation, and small population sizes. 
Only 6 of the 22 extant populations south of Ventura are known to 
contain more than a dozen adults. This rule implements the protection 
and recovery provisions provided by the Act for the arroyo southwestern 
toad.

EFFECTIVE DATE: January 17, 1995.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Ventura Field 
Office, U.S. Fish and Wildlife Service, 2140 Eastman Avenue, Suite 100, 
Ventura, California 93003.

FOR FURTHER INFORMATION CONTACT: Ms. Cathy R. Brown at the above 
address (805/644-1766).

SUPPLEMENTARY INFORMATION:

Background

    The arroyo toad (Bufo microscaphus californicus) is a small toad in 
the family Bufonidae. This taxon was originally described as Bufo 
cognatus californicus from a specimen collected at Santa Paula, Ventura 
County (Camp 1915). Camp's specimen was later shown to differ in 
several respects from Bufo cognatus and was afforded specific status as 
Bufo californicus (Myers 1930). In the following two decades, this toad 
was considered a subspecies of Bufo compactilis (Linsdale 1940) and of 
B. woodhousei (Shannon 1949). The currently accepted taxonomy of the 
arroyo toad as a subspecies of Bufo microscaphus, the southwestern 
toad, is based on morphological similarities (Stebbins 1951, Price and 
Sullivan 1988). The arroyo toad (B. microscaphus californicus) is 
geographically isolated from the Arizona toad (B. microscaphus 
microscaphus) by the Mojave and Colorado Deserts. Work is now in 
progress to determine if the arroyo toad is genetically distinct at the 
species level (S. Sweet, Univ. of Calif., Santa Barbara, pers. comm., 
1991).
    The arroyo toad is a small (5 to 8 centimeters (cm) (2 to 3 
inches)), light greenish gray or tan toad with warty skin and dark 
spots. Its underside is buff colored and often without spots. A light- 
colored stripe crosses the head and eyelids, and a light area usually 
occurs on each sacral hump and in the middle of the back. Its movement 
consists of hopping rather than walking. Its courtship vocalization is 
a high trill, usually lasting 8 to 10 seconds.
    The arroyo toad is restricted to rivers that have shallow, gravelly 
pools adjacent to sandy terraces. Breeding occurs on large streams with 
persistent water from late March until mid-June (Sweet 1989). Eggs are 
deposited and larvae develop in shallow pools with minimal current and 
little or no emergent vegetation and with sand or pea gravel substrate 
overlain with flocculent silt. After metamorphosis (June or July), the 
juvenile toads remain on the bordering gravel bars until the pool no 
longer persists (3 to 8 weeks, depending on site and year) (Sweet 
1992). Juveniles and adults forage for insects on sandy stream terraces 
that have nearly complete closure of cottonwoods (Populus spp.), oaks 
(Quercus spp.), or willows (Salix spp.), and almost no grass and 
herbaceous cover at ground level. Adult toads excavate shallow burrows 
on the terraces where they shelter during the day when the surface is 
damp or during longer intervals in the dry season (Sweet 1989).
    Arroyo toads were historically found along the length of drainages 
in southern California from San Luis Obispo County to San Diego County, 
but now they survive primarily in the headwaters as small isolated 
populations (Sweet 1992, J. Stephenson, Cleveland National Forest, in 
litt., 1993). Urbanization and dam construction beginning in the early 
1900's in southern California caused most of the extensive habitat 
degradation. The species was formerly distributed southward along the 
northwestern coastal region of Baja California, Mexico, to the vicinity 
of San Quintin (ca. 30.5 deg. N Lat.).
    Most remaining populations in the United States occur on privately 
owned lands, primarily within or adjacent to the Cleveland National 
Forest. Less than 50 percent of the known extant populations of arroyo 
toad occur in areas owned or managed by the Forest Service (Los Padres, 
San Bernardino, and Cleveland National Forests) (Sweet 1992, J. 
Stephenson, in litt., 1993). Due mostly to habitat destruction, only 
eight drainages remain where populations of this species may be viable 
(S. Sweet, pers. comm. 1993; J. Stephenson, in litt., 1993). In 1990, 
only seven pairs of arroyo toads were known to have bred anywhere 
within the toad's range (Sweet 1992). Due to the isolation and the 
small sizes, almost all populations are at great risk of extinction.

Previous Federal Action

    The arroyo toad was first included by the Service as a category 2 
candidate species in the September 18, 1985, Notice of Review of 
Vertebrate Wildlife (50 FR 37958). Category 2 applies to taxa for which 
information now in the possession of the Service indicates that 
proposing to list as endangered or threatened is possibly appropriate, 
but for which conclusive data on biological vulnerability and threat 
are not currently available to support proposed rules. The subspecies 
also was included as a category 2 candidate in the January 6, 1989, and 
November 21, 1991, Animal Notices of Review (54 FR 554 and 56 FR 58804, 
respectively). After publication of the most recent Notice of Review, 
the Service obtained substantial information on the biological 
vulnerability and the environmental threats to elevate this species to 
category 1. Category 1 species are those for which the Service 
possesses sufficient data to support proposals for listing. Most of the 
new information and analyses came from Dr. Samuel Sweet, University of 
California, Santa Barbara; Dr. Mark Jennings, California Academy of 
Sciences; and staff of the Los Padres National Forest.
    On December 30, 1992, (not January 12, 1993, as indicated in 
proposed rule (58 FR 41232)) the Service received a petition from Dr. 
Sweet and Dr. Mark Jennings to list the arroyo toad as endangered 
(Sweet and Jennings 1992). Section 4(b)(3)(A) of the Endangered Species 
Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq), requires to the 
maximum extent practicable, that the Secretary make a finding within 90 
days of receipt of a petition, as to whether or not substantial 
information indicates the requested action may be warranted. If such a 
finding is made, the Service is directed to commence a review of the 
status of the species. Within 12 months of receipt of a petition found 
to present substantial information, the Secretary is further directed 
to make a finding that the petitioned action is warranted, not 
warranted, or warranted but precluded. In this instance, the 
preparation of the proposed rule was nearly complete at the time the 
petition was received, thus alleviating the need to commence the status 
review that the Service would typically start in response to a 
petition.
    On August 3, 1993, the Service published a proposed rule in the 
Federal Register (58 FR 41231) to list the arroyo toad as endangered. 
That proposal was based primarily on information provided by the 
petitioners, published literature, and contacts with various 
herpetologists.

Summary of Comments and Recommendations

    In the August 3, 1993, proposed rule and associated notifications 
all interested parties were requested to submit factual reports or 
information relevant to a final decision on the listing proposal. 
Appropriate state agencies, county governments, Federal agencies, 
scientific organizations, and other interested parties were contacted 
and requested to comment. Notice of the publication of the proposal was 
published in the Santa Barbara News Press, Los Angeles Times, and the 
San Diego Union Tribune. Requests for a public hearing were received 
from four parties: the California Cattlemen's Association, the Newhall 
Land and Farming Company, Public Lands for the People, and United Water 
Conservation District. On September 9, 1993, the Service published a 
notice in the Federal Register announcing the hearing and extending the 
comment period until October 15, 1993 (58 FR 47428). The Service 
conducted a hearing on October 4, 1993, at the Minerals Management 
Service in Camarillo, California. Thirteen parties presented testimony.
    During the comment period, the Service received written and oral 
comments from 27 parties, including those of three Federal agencies, 
three State agencies, and 19 individuals or groups. The Santa Monica 
Mountains National Recreation Area (National Park Service), U.S. Forest 
Service, the U.S. National Biological Survey's National Ecology 
Research Center, Southwestern Herpetologists Society, Keep the Sespe 
Wild Committee, and the Environmental Defense Center were some of the 
eight commenters expressing support for the listing proposal. Sixteen 
commenters opposed the listing of the arroyo toad. Eight were neutral 
on the proposal but offered clarification or additional information. 
Written and oral statements obtained during the public hearing and 
comment period are combined in the following discussion. In addition, 
information submitted by the commenters, including updated locality and 
population data from the Cleveland, San Bernardino, and Los Padres 
National Forests, has been incorporated into this final rule. Opposing 
comments and other comments questioning the rule have been organized 
into specific issues. These issues and the Service's response to each 
are summarized as follows:
    Issue 1: One of the petitioners noted that the common name for the 
species, Bufo microscaphus, is southwestern toad, whereas the common 
name of the subspecies, B. microscaphus californicus, is arroyo toad. 
In the proposed rule the Service referred to B. microscaphus 
californicus as the arroyo southwestern toad.
    Service Response: The Service acknowledges the nomenclatural 
confusion in the proposed rule. The Service prefers to utilize common 
names of subspecies that also reflect the species to which it is 
presently assigned; such usage allows the general public to find 
information on both the full species and the listed subspecies. The 
common name of the subspecies appears as the ``arroyo southwestern 
toad'' in the rule but is usually referred to as the ``arroyo toad'' in 
the preamble text.
    Issue 2: Several commenters believed that there was insufficient 
scientific evidence to list the arroyo toad; that all the data on the 
species came from a single ``biased'' source; and that more studies 
should be conducted before a final decision on listing could be made.
    Service Response: In researching the proposed rule, the Service 
reviewed data and consulted publications from many sources, including 
herpetologists at academic institutions, staff biologists with the U.S. 
Forest Service, research biologists within the Fish and Wildlife 
Service, and museum records. It is the consensus of the herpetologists 
that contacted the Service that the arroyo toad is one of the most 
threatened amphibians in southern California (see Issue 7). A recent 
report prepared under contract to the California Department of Fish and 
Game stated that the combination of threats ``probably make this taxon 
the most vulnerable in California'' (Jennings and Hayes 1992). In 
regard to recommendations that more studies are needed before listing 
the arroyo toad, section 4 of the Act states that a determination to 
list must be based on the best scientific and commercial data available 
after conducting a review of the status of the species. The Service 
completed such a review of the toad in preparing the proposed rule and 
prior to the receipt of the petition. The best scientific and 
commercial data now available supports listing the arroyo toad as 
endangered.
    Issue 3: Several commenters believed that the proposed rule did not 
present any scientific evidence for the adverse effects of mining, 
recreation, or grazing on arroyo toads.
    Service Response: The proposed rule presented numerous examples of 
habitat degradation caused by mining, recreation, and grazing (see 
Factor A in the proposed rule and this final rule). As stated in the 
proposed rule, mining, recreation, and grazing have all been observed 
to alter microhabitat characteristics essential to successful breeding 
of arroyo toads. Recreation and grazing are also implicated in 
mortality of adult and juvenile arroyo toads. As directed by the Act, 
the Service used the best available scientific and commercial data in 
proposing to list the arroyo toad. These data demonstrate the potential 
negative effects of these activities. Although the commenters do not 
agree with the conclusions in the proposed rule, they did not submit 
any information to disprove the Service's analysis of the effects of 
mining, grazing, or recreation on arroyo toad populations.
    Issue 4: Several commenters stated that the listing of the arroyo 
toad should not proceed until the Service conducts the appropriate 
National Environmental Policy Act review.
    Service Response: The Service need not prepare environmental 
assessments or environmental impact statements pursuant to the National 
Environmental Policy Act (NEPA) for reasons outlined in the Federal 
Register on October 25, 1983 (48 FR 49244). Basically, the listing of a 
species is exempt as a matter of law for NEPA review. Listing decisions 
are based upon biological, not sociological or economical, 
considerations. This view has been upheld in at least one court case 
(Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (1981))
    Issue 5: One commenter was puzzled by the Service's statement in 
the proposed rule that ``little opportunity exists for natural 
dispersal and recolonization following local extirpations,'' because 
volunteers of an off-road vehicle association had recently offered to 
relocate toads into formerly occupied habitats.
    Service Response: The Service's statement referred to the effects 
of habitat fragmentation on the viability of arroyo toad populations 
and their ability to disperse naturally to reoccupy former habitat. The 
Service appreciates the offer for volunteer help and will consider such 
offer in the recovery of the species. The reintroduction of arroyo 
toads into habitats from which small, isolated populations had become 
extirpated would likely require frequent, intensive management efforts. 
In most cases, such efforts would be unsuccessful, especially if the 
arroyo toads were placed in degraded areas. Section 2 of the Endangered 
Species Act clearly states that the purpose of the Act is to provide a 
means whereby the natural ecosystems upon which endangered and 
threatened species depend may be conserved. However, such intensive 
management actions may play a role in endangered species recovery, in 
addition to habitat protection.
    Issue 6: One commenter stated that failure to designate critical 
habitat ``hampers the efforts of landowners and other interested 
parties to locate additional populations of this species, possibly 
precluding the need for protection under the act.''
    Service Response: Designation of critical habitat for the arroyo 
toad would not be prudent at this time. The arroyo toad is threatened 
by taking, an activity difficult to control. Remaining populations of 
the arroyo toad are small and geographically restricted, so that they 
are now vulnerable to unrestricted collection. Publication of specific 
localities, which would be required in proposing critical habitat, 
would reveal precise locality data and thereby make the species more 
vulnerable to additional collection and acts of vandalism, and increase 
the difficulties of enforcement. Designation of critical habitat first 
focuses on known occupied habitat, which would not aid in locating 
additional populations.
    Issue 7: One commenter believed that the Service was not justified 
in keeping habitat and population data confidential, because this 
practice ``does not allow for an independent assessment of the 
vulnerability of the species and the critical need for listing.''
    Service Response: The proposed and final rules contain a complete 
summary of the data available to the Service regarding the status of 
the arroyo toad. Habitat and population data have been available for 
review (see ``Addresses'' section above). As discussed above (Issues 2 
and 6), these data have been reviewed by the scientific community and 
there is a consensus among herpetologists that the arroyo toad is one 
of the most threatened amphibians in California.
    Issue 8: Several commenters referred to the economic impacts of 
listing the arroyo toad and recommended that the Service not proceed 
with listing the species until the present and future economic impacts 
of listing had been considered.
    Service Response: Section 4 of the Act directs the Service to 
consider only the best scientific and commercial data available when 
making a decision regarding the appropriateness of listing a species as 
endangered or threatened; economic impacts are not considered in this 
evaluation. Economic factors are only to be considered in the 
designation of critical habitat.
    Issue 9: Several commenters contended that listing constitutes 
taking of private property by the Federal government without 
compensation to the landowner.
    Service Response: Listing of the arroyo toad under the Endangered 
Species Act will trigger the protective measures of section 9 of the 
Act, prohibiting the take of this species. In addition, the Act 
requires that Federal agencies insure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of any listed species, or destroy or adversely modify its critical 
habitat, if any is designated. Any activity on private land that 
requires Federal involvement (such as a section 404 permit under the 
Clean Water Act) that may affect this species would have to be reviewed 
by the Service to insure that the continued existence of the species 
would not be jeopardized.
    Listing under the Act does not imply that private land would be 
confiscated or taken without just compensation. Recovery planning for 
the arroyo toad may include recommendations for land acquisition or 
easements involving private landowners. These efforts only would be 
undertaken with the cooperation of the landowner. In the majority of 
cases, private landowners are not precluded from using their land in 
the manner originally intended.
    Issue 10: One commenter requested that the proposed listing of the 
arroyo toad be delayed until the Service could investigate the 
possibility of implementing an arroyo toad hatchery and transplanting 
program.
    Service Response: Section 2 of the Endangered Species Act states 
that the purpose of the Act is to provide a means whereby the 
ecosystems upon which endangered and threatened species depend may be 
conserved. Captive breeding programs, such as the hatchery proposed by 
the commenter, may be considered in planning for the recovery of some 
listed species but are not a substitute for recovery of listed species 
in the wild. See the Service's response to Issue 5 above.
    Issue 11: One commenter asked if the arroyo toad's decline is tied 
to the worldwide amphibian decline.
    Service Response: The Endangered Species Act permits the listing of 
species that have become rare due to both natural and manmade factors. 
The decline of the arroyo toad may be due in part to the as-yet-unknown 
factors causing the decline of amphibians throughout the world. As 
summarized in the proposed rule, however, habitat degradation, 
predation by introduced species, and the inadequacy of existing 
regulatory mechanisms have played a significant role in the arroyo 
toad's decline.
    Issue 12: One commenter stated that the decision to list the arroyo 
toad should be withheld until the genetic studies prove that the arroyo 
toad is a distinct species.
    Service Response: Section 3(15) of the Act states that ``(T)he term 
``species'' includes any subspecies of fish or wildlife or plants . . . 
which interbreeds when mature.'' Therefore, for the purposes of the 
Act, this subspecies is treated as a species. Determination of full 
species status is not necessary to proceed with listing the arroyo 
toad.
    Issue 13: One commenter questioned the Service's preparation of a 
proposed rule prior to receipt of a petition. The commenter suggested 
that this indicated impropriety, and an unacceptably close relationship 
with the petitioners, on the part of the Service.
    Service Response: Section 4(b) of the Act establishes two methods 
by which a species may be considered for listing. Section 4(b)(1)(A) 
describes the process followed by the Service when the Service 
initiates a listing proposal. Section 4(b)(3)(A) describes the process 
of initiating a listing action in response to a petition. In each case, 
the Service conducts a status review of the species. A status review 
takes into account the best available scientific and commercial 
information, including published reports and consultations with 
experts, regarding the species to determine if it should be provided 
protection under the Act. In the case of the arroyo toad, as discussed 
above, the Service had completed a status review of the species and 
drafted a proposed rule (pursuant to section 4(b)(1)(A)) before the 
petition was received.
    Issue 14: Two commenters contended that adequate regulatory 
mechanisms are currently in place to protect the arroyo toad, because 
the species occurs largely on National Forest lands. Therefore, any 
action that could affect the species would undergo environmental review 
pursuant to National Environmental Policy Act.
    Service Response: As stated in the proposed rule and this final 
rule, the arroyo toad has been extirpated from an estimated 75 percent 
of its former range. Although a substantial proportion of currently 
occupied habitat is found on National Forest lands, recovery of arroyo 
toads on privately owned lands will likely be necessary to restore the 
species to levels that will permit removal from the endangered species 
list. The commenters are correct in stating that actions on Federal 
lands would be subject to review under the National Environmental 
Policy Act (NEPA). However, the objective of NEPA is to ensure that 
Federal agencies consider every significant aspect of the environmental 
impact of a proposed action. The law does not guarantee that actions 
with significant impacts will not be authorized. Therefore, NEPA will 
be applied to actions that affect the arroyo toad, but it does not 
assure protection for the species.
    Issue 15: One commenter stated that listing will not alleviate the 
effect of exotic predators, which was identified in the proposed rule 
as one of the most severe threats to the survival of the arroyo toad.
    Service Response: The Act provides for the determination of 
endangered or threatened status to be based upon the five factors of 
section 4(a)(1) and not upon whether or not certain threats can be 
reduced or eliminated in a species' recovery. Section 4(f)(1) of the 
Act directs the Service to develop and implement a recovery plan for 
the conservation and survival of listed species. Most of the exotic 
predators are either game fish (e.g., bass, trout) or the bullfrog (see 
below). A recovery plan would address the reduction of some of the 
impacts from those predators through State and Federal actions. Section 
6 of the Act enables the Service to transfer funds to State endangered 
species conservation programs for implementation of actions that will 
further the conservation of the listed species. Thus, by listing the 
arroyo toad, guidance and funding can be provided for habitat 
management, including control of exotic predators in arroyo toad 
habitats.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that the arroyo toad should be 
classified as an endangered species. Procedures found at section 4 of 
the Endangered Species Act (16 U.S.C. 1531 et seq.) and regulations (50 
CFR part 424) promulgated to implement the listing provisions of the 
Act were followed. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1). These factors and their application to the arroyo 
southwestern toad (Bufo microscaphus californicus) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Habitat destruction and alteration constitutes the most severe 
threat facing the arroyo toad. This toad is now confined to the 
headwaters of streams it occupied historically along their entire 
lengths.
    The arroyo toad was formerly found on rivers with near-perennial 
flow throughout southern California from San Luis Obispo County to San 
Diego County. It is believed to be extirpated in San Luis Obispo County 
(S. Sweet, pers. comm., 1991). Populations persist in Santa Barbara, 
Ventura, Los Angeles, Riverside, and San Diego Counties. Recent 
sightings of scattered individuals have been reported from Orange, San 
Bernardino, and southwest Imperial Counties.
    The majority of the remaining populations in Santa Barbara and 
Ventura Counties are located on the Los Padres National Forest. This 
National Forest supports the majority of southern California's 
remaining intact large river systems and maintains five viable 
populations of arroyo toads. Sespe Creek in Ventura County has the 
largest known population (Sweet 1992). Other populations are found on 
the Sisquoc, Santa Ynez, and upper and lower Piru drainages (Sweet 
1992).
    Populations to the south are located primarily in San Diego and 
Riverside Counties and are predominantly found in the vicinity of the 
Cleveland National Forest and on private lands within or adjacent to 
national forest. In San Diego County, arroyo toads have been found on 
the Santa Margarita, Guejito, Sweetwater, Vallecito, San Luis Rey, 
Santa Ysabel, Witch, Cottonwood, Temescal, Agua Caliente, Santa Maria, 
Lusardi, Pine Valley, Noble, Kitchen, Long Potrero, Upper San Diego, 
San Vincente, and Morena drainages. Populations on Temescal, Agua 
Caliente, Pine Valley, and Cottonwood drainages may be considered 
viable (J. Stephenson, in litt., 1993; J. Copp, California Academy of 
Sciences, in litt., 1993). Recent surveys have located very small 
populations of arroyo toads in four creeks in southwestern Riverside 
County (Temecula, Arroyo Seco, San Mateo, and Tenaja Creeks) (J. 
Stephenson, in litt., 1993). The single recent occurrence of arroyo 
toads in San Bernardino County is on Deep Creek in the San Bernardino 
National Forest.
    Several factors presently threaten the remaining 25 percent of the 
habitat of the arroyo toad including: (1) Short- and long-term changes 
in river hydrology, including construction of dams and water 
diversions; (2) alteration of riparian wetland habitats by agriculture 
and urbanization; (3) construction of roads; (4) site-specific damage 
by off-highway vehicle use; (5) development of campgrounds and other 
recreational activities; (6) over-grazing; and (7) mining activities.
    Dam construction was responsible for the loss of approximately 40 
percent of the estimated original range of the arroyo toad. Twenty-six 
large impoundments are currently located within the range of this 
species, inundating over 190 km (120 miles) of suitable habitat. 
Additional areas have been identified as potential dam sites and, if 
constructed, would destroy 25 percent of the current range (6 to 7 
percent of the original range) of the arroyo toad (Sweet 1991a).
    In addition to habitat loss through direct inundation, dams can 
have significant effects on habitat quality downstream. Artificial flow 
regulation disrupts the natural processes that produce the terrace and 
pool habitats required by arroyo toads. Unseasonal water releases may 
prevent arroyo toads from breeding due to habitat changes (Sweet 1992).
    Another consequence of sustained unnatural perennial flows below 
dams is an adverse effect on the habitat of this species by encouraging 
vegetative growth in a riparian corridor, which increases ground 
stability and hence confines and deepens the creek channel. Water 
temperatures are reduced below the temperatures needed for larval 
development (Sweet 1991a).
    The arroyo toad is also sensitive to stream diversions as they 
cause the riparian areas to dry. Water diversions that alter normal 
flows have degraded habitats and adversely affected arroyo toads by 
leading to: (1) The early drying of breeding pools, causing breeding 
failures or loss of the larval population; (2) restriction of the 
period essential for rapid growth when newly-metamorphosed toads can 
forage on damp gravel bars; and (3) loss of damp subsurface soil, which 
may result in high adult mortality during late summer and early fall 
(Sweet 1992).
    Development projects in riparian wetlands have caused permanent 
losses of riparian habitats and are the most conspicuous factor in the 
decline of the arroyo toad (S. Sweet, pers. comm., 1991). Agriculture 
and urbanization have already destroyed much of the suitable arroyo 
toad habitat south of the Santa Clara River in Ventura County (S. 
Sweet, pers. comm., 1991). Stream terraces have been converted to 
farming, road corridors, and residential and commercial uses, while the 
streams themselves have been channelized for flood control. Large 
stretches of riparian corridor habitat have also been degraded or 
destroyed by cattle and feral pigs (S. Sweet, pers. comm., 1991).
    Recreational activities in riparian wetlands have had substantial 
negative effects to arroyo toad habitat and individuals, as discussed 
in Factor E. Off-highway vehicles cause extensive damage to the shallow 
pools in which arroyo toads breed (Sweet 1992).
    Streamside campgrounds in southern California national forests have 
frequently been located adjacent to arroyo toad habitat (Sweet 1992). 
In the Los Padres National Forest, each of the three campgrounds on 
Piru and Sespe Creeks were developed on terraces used by arroyo toads 
within 50 to 100 meters (150 to 300 feet) of their breeding pools. On 
the upper Santa Ynez River, also in Los Padres National Forest, three 
of four campgrounds are also located in arroyo toad habitat (Sweet 
1991a, 1991b). The placement of campgrounds is similar in the Cleveland 
National Forest in San Diego County; upper San Juan Creek, upper San 
Luis Rey River, and Cottonwood Creek all have campgrounds situated 
adjacent to arroyo toad breeding habitats (M. Jennings, in litt., 
1993).
    The use of heavy equipment in yearly reconstruction of roads and 
stream crossings in the national forests has had significant and 
repeated impacts to arroyo toads and toad habitat. Maintenance of the 
road to Ogilvy Ranch, a private inholding in the Los Padres National 
Forest, is likely responsible for a depressed population of arroyo 
toads in Mono Creek. The Ogilvy Ranch road makes 18 crossings of Mono 
Creek, many directly through or near arroyo toad breeding pools. In 
summer 1992, the Los Padres National Forest declined to open the Ogilvy 
Ranch road in order to protect populations of arroyo toads and other 
candidate amphibians and reptiles. However, the road was opened with a 
bulldozer in the fall. As juvenile arroyo toads were likely burrowed in 
the soft sand adjacent to the creek, grading the road up the creek 
destroyed habitat and probably killed individual toads. Regular 
maintenance of roads in the Los Padres National Forest negatively 
affects arroyo toad individuals and toad habitat on the Santa Ynez 
River, Piru and Sespe Creeks, as well.
    Mining activities are an additional threat to this species. 
Recreational suction dredging for gold adversely affects toad habitat 
and individuals. Dredging destroys breeding pools used by arroyo toads 
and causes excessive siltation downstream, which asphyxiates eggs and 
small larvae. For example, during the Memorial Day weekend of 1991, 
four small dredges operating on Piru Creek (Los Padres National Forest) 
produced sedimentation visible more than 1 kilometer (0.6 mile) 
downstream and adversely affected 40,000 to 60,000 arroyo toad larvae. 
Subsequent surveys revealed nearly total destruction of the species in 
this stream section; fewer than 100 larvae survived, and only 4 
juvenile toads were located (Sweet 1992).
    Several rivers in the Los Padres National Forest were recently 
temporarily closed to gold mining, and it is uncertain whether the ban 
will be made permanent. In December 1992, a group of miners challenged 
the Forest Service's authority to close Piru Creek to mining. These 
individuals practiced various methods of gold extraction until cited by 
the Forest Service. It is probable that future challenges will occur 
and, if successful, will threaten the population of arroyo toads on 
Piru Creek.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Populations of the arroyo toad are becoming so small and confined 
that even limited taking by campers, recreationists, and scientific 
researchers could adversely affect this species' viability. These toads 
are threatened from collecting by children near the campgrounds. No 
data exists on the extent of such collection activities, but it is 
probable that it continues to occur.

C. Disease or Predation

    Over the past 20 years, at least 60 species of fishes have been 
introduced to the western U.S. States, 59 percent of which are 
predatory (Hayes and Jennings 1986; Jennings 1988). The introduction of 
exotic predators to southern California waters has been facilitated, in 
part, by the interbasin transport of water (e.g., California Aqueduct). 
Introduced predators had substantial impacts on the sizes of extant 
populations of arroyo toads and may have contributed to regional 
extinctions (Hayes and Jennings 1986).
    Virtually all rivers that contain or once contained arroyo toads 
support populations of introduced predatory fish, such as green sunfish 
(Lepomis cyanellus), largemouth bass (Micropterous salmoides), 
mosquitofish (Gambusia affinis), black bullhead (Ictalurus nebulosus), 
arroyo chub (Gila orcutti), prickly sculpin (Cottus asper), rainbow 
trout (Oncorhynchus mykiss), oriental gobies (Tridentiger sp.), and red 
shiners (Notropis lutrensis) (Sweet 1992). All of these introduced fish 
prey on tadpoles and have been observed inducing high arroyo toad 
larval mortality in breeding pools on the Piru, Sespe, and Santa Ynez 
drainages. It is probable that predation by introduced fish species 
occurs elsewhere (Sweet 1992).
    Arroyo toads occur in streams with perennial or near perennial 
flow. Most streams with populations of arroyo toads also have 
populations of introduced bullfrogs (Rana catesbeiana). Adult bullfrogs 
are highly predatory and have been observed to prey on adult arroyo 
toads (Sweet 1993). Habitat for bullfrogs has been enhanced within the 
existing range of the arroyo toad via diversions and artificially 
maintained perennial flows below dams. Increased bullfrog populations 
in these permanent water areas threaten the survival of arroyo toad 
populations.

D. The Inadequacy of Existing Regulatory Mechanisms

    The U.S. Army Corps of Engineers (Corps) is responsible for 
administering section 404 of the Federal Water Pollution Control Act 
Amendments of 1972 (Clean Water Act) and has authority to regulate the 
placement of dredged and fill materials into waters of the United 
States. Individual actions under nationwide permits undergo minimal 
outside agency review. Individual permits, which are subject to more 
extensive review, are required for projects that affect greater than 4 
hectares (10 acres).
    The Corps cannot issue a nationwide or individual permit where a 
federally proposed or listed species may be affected, without first 
conferring or consulting with the Service under section 7 of the 
Endangered Species Act. In addition, the Service, as part of the 
section 404 review process, provides comments on both pre-discharge 
notices for nationwide permits and public notices for individual 
permits.
    Most construction projects in or near arroyo toad habitat would 
require a permit from the Corps pursuant to section 404 of the Clean 
Water Act. In practice, the Corps' actions under section 404 have not 
adequately protected arroyo toads, as the Corps has rarely required 
individual permits where impacts to the toad would occur. The Corps has 
either approved the projects under nationwide permits, or there have 
been repeated unauthorized activities. Federal listing of this species 
will ensure greater consideration of the effects of permitted actions 
during the review process, as well as provide the protection of section 
7 of the Act.
    The National Environmental Policy Act (NEPA) and California 
Environmental Quality Act (CEQA) require an intensive environmental 
review of projects that may adversely affect Federal candidate species. 
However, project proponents are not required to avoid impacts to these 
species, and proposed mitigation measures are frequently not adequately 
implemented. As with section 404 permits, the Service's comments 
through these environmental review processes are only advisory.
    Forest Service policy, as described in the National Forest 
Management Act, states ``Fish and wildlife habitat shall be managed to 
maintain viable populations of existing native and desired non-native 
vertebrate species in the planning area'' (36 CFR 219.19). The Los 
Padres National Forest has recently funded studies on the ecology of 
arroyo toads (Sweet 1992, 1993). The Los Padres and Cleveland National 
Forests have begun to use this information to develop a riparian 
habitat conservation strategy to provide better protection for arroyo 
toads and other sensitive riparian species on the two forests. This 
positive step may address the impacts associated with road maintenance, 
off-highway vehicle use, placer mining, recreation, and the issuance of 
special use permits for dam and water diversion construction, all of 
which have contributed to the decline of the arroyo toad on national 
forests lands in southern California. Conservation actions by the 
Forest Service and the State of California will assist in the recovery 
of the species. Recovery of the species can not be assured, however, 
without the implementation of protective measures for arroyo toad 
populations on private lands.
    Alteration of the natural intermittent flow regimes by dams has had 
significant adverse impacts to arroyo toads. Prior to 1992, the 
California Department of Water Resources, which operates Pyramid Dam on 
Piru Creek in the Los Padres and Angeles National Forests, frequently 
discharged excess flows from the reservoir resulting in the depressed 
population of arroyo toads on lower Piru Creek. Recent coordination 
among the Department of Water Resources, Forest Service, and Fish and 
Wildlife Service have resulted in releases from the dam that more 
closely mimic natural flows, benefitting the arroyo toad. Water 
releases of several million gallons per day from Barrett Dam on 
Cottonwood Creek during the period when larval arroyo toads were 
metamorphosing negatively affected the population in San Diego County 
in summer 1993.
    Although the arroyo toad is classified as a ``Species of Special 
Concern'' by the State of California (Steinhart 1990) and may not be 
taken without an approved scientific collecting permit, this 
designation provides no special, legally mandated protection of the 
species and its habitat.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Several other factors have also contributed to the decline of the 
species including drought, fire, and light and noise pollution. 
Additionally, there has been direct mortality of the toads due to road 
construction and maintenance, water inundation or drainage from dams 
and diversions, off-highway vehicle use, cattle and pig trampling, 
mining, and recreational activities.
    By far, the most significant natural factor adversely affecting the 
arroyo toad is drought and resultant deterioration of riparian 
habitats. Southern California recently experienced 5 consecutive years 
of lower than average rainfall. These drought conditions, when combined 
with human-induced water reductions (i.e., diversions of water from 
streams), have degraded riparian ecosystems and have created extremely 
stressful conditions for most aquatic species.
    Drought also affects arroyo toads in another manner. Female arroyo 
toads must feed for at least 2 months in order to develop the fat 
reserves needed to produce a clutch of eggs (Sweet 1992). In drought 
years, females may find insufficient insect prey to produce eggs before 
males cease their courtship behavior of calling, resulting in no 
reproduction in that year. The extremely low reproduction of 1990 was 
likely due to 4 years of severe drought (Sweet 1992). Although rainfall 
patterns in 1992 and 1993 returned to near normal levels, drought is a 
naturally recurring phenomenon in southern California. There is no 
doubt that arroyo toads evolved with periodic, severe drought. However, 
the recurrence of this natural event combined with the many manmade 
factors negatively affecting arroyo toad survival remains a significant 
threat to the species persistence.
    Periodic fires may adversely affect arroyo toads by causing direct 
mortality, destroying streamside vegetation, or eliminating vegetation 
that sustains the watershed. Recent natural and human-induced wildfires 
had devastating effects on populations of arroyo toads. The 1991 Lions 
Fire on upper Sespe Creek in the Los Padres National Forest destroyed 
habitat containing the largest known extant population of arroyo toads 
including 15 known breeding pools and over 50 percent of the known 
adult population on the Sespe drainage (Sweet 1991c). Surveys in 1992 
revealed that the effects of the fire and subsequent flooding, erosion, 
and siltation caused the death of not less than 50 percent of the 
resident adult population of arroyo toads.
    The vocalizations of male toads are crucial to the breeding success 
of this species, as their calls are the key factor to finding mates. 
Light and noise pollution from adjacent developments or campgrounds may 
also reduce arroyo toad reproductive success by disrupting the 
vocalization behavior of males during the breeding season (M. Jennings, 
in litt., 1993). Generally, the local population of arroyo toads 
declines as campground use increases (Sweet 1992).
    Unseasonal water releases from dams may prevent arroyo toads from 
breeding altogether, as discussed in Factor A, or may wash away eggs 
and larvae if releases are made after breeding has occurred (Sweet 
1992). For example, large unscheduled releases from Pyramid Lake in May 
1991 virtually eliminated all reproduction by arroyo toads below the 
dam in Piru Creek in what would have been the best year for 
reproduction following 5 years of drought (Sweet 1992). A proposal to 
convey State Water Project water from Pyramid Lake to Piru Lake via 
Piru Creek would also threaten arroyo toad survival on Piru Creek, if 
releases substantially alter natural flow regimes.
    Grazing brings another potential source of mortality to this 
species. Horses and cattle graze in riparian areas and may trample eggs 
and larvae of arroyo toads (S. Sweet, pers. comm., 1991). Grazing also 
increases levels of sedimentation in streams that can smother eggs and 
larvae (M. Jennings, in litt., 1993)
    Off-highway vehicle use is believed to be the primary factor 
responsible for the decimation of the Mojave River population of the 
arroyo toad (Jennings 1991). On Memorial Day weekend in 1991, a fence 
protecting a breeding pool on Piru Creek was cut, and off-highway 
vehicles had access to the creek. The disturbance destroyed a small 
sand bar that maintained a shallow pool, resulting in the loss of 
12,000 to 16,000 arroyo southwestern tadpoles (Sweet 1992).
    Recreational use of campgrounds is heaviest in early summer, when 
arroyo toad larvae and juveniles are present and most vulnerable. As 
the young toads are diurnal, sedentary, and live on the sand bars, they 
are often crushed. Recreational use has resulted in the alteration of 
stream and breeding pool morphology and trampling of juvenile toads 
(Sweet 1992). Adult arroyo toads, which forage in open areas in the 
campgrounds, are frequently killed on campground roads at night (Sweet 
1992; M. Jennings, in litt., 1993).
    Habitat loss, high mortality, and low reproduction from all of the 
sources discussed above also result in the fragmentation of surviving 
populations into isolated subpopulations. While these subpopulations 
may continue to survive and reproduce over the short term, their long-
term survival is not secure, because little opportunity exists for 
natural dispersal and recolonization following local extirpations 
(Sweet 1991a). Habitat fragmentation increases the probability of local 
extirpation due to stochastic events and also likely results in 
reduction of genetic variability within the small, isolated 
subpopulations.
    The recent years of extremely low reproductive success have likely 
been a bottleneck in the remaining populations of arroyo toads, in 
which few individuals will reach sexual maturity until 1995 (Sweet 
1992). As mature adults age and die in the next 2 years, little 
recruitment into the breeding population is likely, and numerous local 
extinctions of already small populations are probable. As individuals 
may not survive and reproduce due to detrimental events such as drought 
or road maintenance, and, as the population numbers are low and the 
range is restricted, such events could cause the extinction of the 
species.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present and future 
threats faced by the arroyo toad in determining to make this final 
rule. The arroyo toad has been extirpated from a substantial portion of 
its historic range. Virtually all remaining populations are small and 
face a variety of immediate threats to their continued viability. This 
toad lives in highly specialized habitats that have been and will 
continue to be targeted for development and degradation by human 
activities and is extremely vulnerable to habitat modification and 
water quality changes. Based on this evaluation, the preferred action 
is to list the arroyo toad as endangered. Other alternatives to this 
action were considered but not preferred because not listing this 
species at all or listing it as threatened would not be in keeping with 
the purposes of the Act. For the reasons discussed below, critical 
habitat is not being proposed at this time.

Critical Habitat

    Section 4(a)(3) of the Act requires to the maximum extent prudent 
and determinable that the Secretary designate critical habitat at the 
time a species is determined to be endangered or threatened. The 
Service finds that designation of critical habitat is not presently 
prudent for the arroyo toad.
    As discussed under Factor B in the ``Summary of Factors Affecting 
the Species,'' the arroyo toad is threatened by taking, an activity 
difficult to control. Remaining populations of the arroyo toad are 
small and geographically restricted, so that they are now vulnerable to 
unrestricted collection. Publication of specific localities, which 
would be required in proposing critical habitat, would reveal precise 
locality data and, thereby, make the species more vulnerable to 
additional collection and acts of vandalism and increase the 
difficulties of enforcement.
    The Forest Service has been notified of the locations and 
importance of protecting this species' habitat. Protection of this 
species' habitat will be addressed in the recovery process and through 
the section 7 consultation process. Therefore, it would not now be 
prudent to determine the critical habitat of the arroyo toad.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain activities. Recognition through listing encourages and 
results in conservation actions by Federal, State, and private 
agencies; groups; and individuals. The Endangered Species Act provides 
for possible land acquisition and cooperation with the States and 
requires that recovery actions be carried out for all listed species. 
The protection required of Federal agencies and the prohibitions 
against taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies 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 being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) requires Federal agencies to insure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed 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 
must enter into formal consultation with the Service.
    The Forest Service (Department of Agriculture) and the Corps 
(Department of Defense) are the main Federal agencies that will be 
required to protect this species if it is listed. Federal agencies must 
consult with the Service, as described in section 7 of the Act, on any 
project that may affect this species. The Forest Service harbors a 
substantial portion of known arroyo toad populations; hence, some of 
Forest Service actions within the species' habitat may be affected. 
Forest Service activities, such as the construction and maintenance of 
roads, and the issuance of special use permits for dam and bridge 
construction, mining, and water diversion projects would be subject to 
the Act's section 7 requirements. Corps activities or issuances of 
permits subject to section 404 of the Clean Water Act would be subject 
to the Endangered Species Act section 7 requirements. Any Federal 
actions that are subject to environmental review under the National 
Environmental Policy Act may be subject to the requirements of section 
7 of the Act.
    Listing of the arroyo toad as endangered will provide for the 
development of a recovery plan. Such a plan will bring together both 
State and Federal efforts for its conservation. The plan will establish 
a framework for cooperation and coordination among agencies in 
conservation efforts. The plan will set recovery priorities and 
estimate costs of various tasks necessary to accomplish them. It will 
also describe site-specific management actions necessary to achieve 
conservation and survival of the arroyo toad.
    The Act and implementing regulations found at 50 CFR 17.21 set 
forth a series of prohibitions and exceptions that apply to endangered 
wildlife. These prohibitions, in part, make it illegal for any person 
subject to the jurisdiction of the United States to take (includes 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect; or attempt any such conduct), import or export, transport in 
interstate or foreign commerce in the course of commercial activity, or 
sell or offer for sale in interstate or foreign commerce any listed 
wildlife species. It is also illegal to possess, sell, deliver, carry, 
transport, or ship any such wildlife that has been taken illegally. 
Certain exceptions apply to agents of the Service and State 
conservation agencies.
    It is the policy of the Service (59 FR 34272) to identify to the 
maximum extent practicable those activities that would or would not 
constitute a violation of section 9 of the Act at the time of listing. 
The intent of this policy is to increase public awareness of the effect 
of this listing on proposed and ongoing activities within a species' 
range. For further information, contact the Field Supervisor (see 
``Addresses'' section). During the public comment period inquiries were 
made as to the effect listing would have on the mining industry, water 
projects, and recreational activities. The Service believes that, based 
on the best available information, the following actions will not 
result in a violation of section 9, provided these activities are 
carried out in accordance with existing regulations and permit 
requirements: momentary moving of individual adult toads out of danger 
(e.g., road, path); release, diversion, or withdrawal of water in a 
manner that does not displace tadpoles or eggs or disrupt breeding of 
adults; normal lighting and noises around campgrounds; and non-
destructive recreational use of breeding habitat outside of the 
breeding period (January through May).
    Activities that the Service believes could potentially result in 
the take of the arroyo toad, include, but are not limited to, 
unauthorized collecting or capture of the species, except as noted 
above to momentarily move an individual out of harm's way; introduction 
of exotic species into occupied habitat (e.g., fish, other species of 
toads); unauthorized destruction/alteration of the species' habitat 
(e.g., in- stream dredging, rock removal, channelization, discharge of 
fill material, operation of any vehicles within the stream channel); 
violation of a construction, discharge or withdrawal permit that 
affects occupied habitat; pesticide applications affecting occupied 
habitat in violation of label restrictions; or other illegal discharges 
or dumping of toxic chemicals, silt, or other pollutants into waters 
supporting the species.
    Other unauthorized activities not identified in the above two 
paragraphs will be reviewed on a case-by-case basis to determine if a 
violation of section 9 of the Act may have occurred. The Service does 
not consider these lists to be exhaustive and provides them for the 
information of the public.
    The Act and 50 CFR 17.22 and 17.23 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered wildlife species under certain circumstances. Such permits 
are available for scientific purposes, to enhance the propagation or 
survival of the species, and for incidental take in connection with 
otherwise lawful activities. Requests for copies of the regulations on 
listed wildlife and inquiries regarding them may be addressed to the 
U.S. Fish and Wildlife Service, Ecological Services, Endangered Species 
Permits, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181 (503/231-
2063; FAX 503/231-6243).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that an Environmental 
Assessment or Environmental Impact Statement, as defined under the 
authority of the National Environmental Policy Act of 1969, need not be 
prepared in connection with regulations adopted pursuant to section 
4(a) of the Endangered Species Act of 1973, as amended. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited herein is available upon 
request from the Ventura Field Office (see ADDRESSES above).

Author

    The primary author of this final rule is Cathy R. Brown of the 
Ventura Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Regulation Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations is amended, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec. 17.11(h) by adding the following, in alphabetical 
order under AMPHIBIANS, to the List of Endangered and Threatened 
Wildlife:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                  Vertebrate population                                                    
---------------------------------------------------      Historic range         where endangered or      Status    When listed    Critical     Special  
       Common name             Scientific name                                       threatened                                   habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
       Amphibians                                                                                                                                       
                                                                                                                                                        
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
Toad, arroyo              Bufo microscaphus         U.S.A. (CA), Mexico.....  Entire.................  E                   568           NA           NA
 southwestern.             californicus.                                                                                                                
                                                                                                                                                        
                                                                                                                                                        
                                                                      * * * * * * *                                                                     
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: November 22, 1994.
Mollie H. Beattie,
Director, U.S. Fish and Wildlife Service
[FR Doc. 94-30994 Filed 12-15-94; 8:45 am]
BILLING CODE 4310-55-P