[Federal Register Volume 70, Number 70 (Wednesday, April 13, 2005)]
[Rules and Regulations]
[Pages 19562-19633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6824]



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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; Final Designation of 
Critical Habitat for the Arroyo Toad (Bufo californicus); Final Rule

  Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT42


Endangered and Threatened Wildlife and Plants; Final Designation 
of Critical Habitat for the Arroyo Toad (Bufo californicus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the arroyo toad (Bufo californicus) 
pursuant to the Endangered Species Act of 1973, as amended (Act). In 
total, approximately 11,695 acres (ac) (4,733 hectares (ha)) fall 
within the boundaries of the critical habitat designation. The critical 
habitat is located in Santa Barbara, Ventura, Los Angeles, San 
Bernardino, and Riverside, Counties, California.

DATES: Effective Date: May 13, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
2493 Portola Road, Suite B, Ventura, CA 93003 (telephone 805/644-1766). 
The final rule, economic analysis, and maps will also be available via 
the Internet at http://Ventura.fws.gov or http://Carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT: For information about Monterey, San 
Luis Obispo, Santa Barbara, and Ventura Counties, northern Los Angeles 
County, and the desert portion of San Bernardino County, contact Diane 
K. Noda, Field Supervisor, Ventura Fish and Wildlife Office, at the 
address given above (telephone 805/644-1766; facsimile 805/644-3958). 
For information about Los Angeles, San Bernardino, Riverside, Orange, 
and San Diego Counties, contact Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the address given above (telephone 760/
431-9440; facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION: Designation Of Critical Habitat Provides 
Little Additional Protection To Species.
    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 470 species or 38 percent 
of the 1,253 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions of unauthorized take, Section 6 funding to the States, and 
the Section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434 and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force v. United State 
Fish and Wildlife Service). In response to these decisions, we are 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    Background information on the arroyo toad can be found in our 
previous final designation of critical habitat for this

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species, published in the Federal Register (FR) on February 7, 2001 (66 
FR 9414). Additional background information is also available in our 
recent proposal of critical habitat for the arroyo toad, published on 
April 28, 2004 (69 FR 23253). That information is incorporated by 
reference into this final rule. This rule, which becomes effective on 
the date listed under Effective Date at the beginning of this document, 
replaces the February 7, 2001, critical habitat designation for this 
species.

Previous Federal Actions

    We designated a total of approximately 182,360 acres (ac) (73,780 
hectares (ha)) of critical habitat for the arroyo toad on February 7, 
2001 (66 FR 9414). On November 6, 2001, the Building Industry Legal 
Defense Foundation, Foothill/Eastern Transportation Corridor Agency, 
National Association of Home Builders, California Building Industry 
Association, and Building Industry Association of San Diego County 
filed a lawsuit in the District of Columbia against the Service 
challenging the designation of arroyo toad critical habitat and 
alleging errors by the Service in promulgating the final rule. Building 
Industry Legal Defense Foundation, et al. v. Gale Norton, Secretary of 
the Interior, et al. Civ. No. 01-2311 (JDB) (D.D.C.). On October 30, 
2002, the court set aside the designation and ordered us to publish a 
new critical habitat designation final rule for the arroyo toad by July 
30, 2004. On April 28, 2004, we published a proposed rule to designate 
approximately 138,713 acres (ac) (56,133 hectares (ha)) of critical 
habitat in Monterey, Santa Barbara, Ventura, Los Angeles, San 
Bernardino, Riverside, Orange, and San Diego Counties, California (69 
FR 23253). On June 25, 2004, the Court granted a motion by the Service 
to extend the deadline for the final rule to March 31, 2005. On 
February 14, 2005, we published a notice announcing the availability of 
the draft economic analysis (DEA), revisions to the proposed rule, and 
reopening of the public comment period (70 FR 7459).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the arroyo toad in the proposed 
rule published on April 28, 2004 (69 FR 23253). We also contacted the 
appropriate Federal, State, and local agencies, Tribes, scientific 
organizations, and other interested parties and invited them to comment 
on the proposed rule. In addition, we invited public comment through 
the publication of notices in the Monterey Herald on May 1, Ventura 
County Star on May 4, the Orange County Register on May 7, the San 
Diego Union Tribune on May 8, and the Santa Barbara News Press on May 
12, 2004. We did not receive any written requests for a public hearing 
prior to the published deadline. The initial comment period ended May 
28, 2004. A second comment period was open from February 14, 2005 to 
March 16, 2005 (70 FR 7459). All comments and new information received 
during the two comment periods have been incorporated into this final 
rule as appropriate.
    A total of 60 commenters responded during the two comment periods, 
including 5 Federal agencies, 3 Tribes, 11 local agencies, 9 local 
organizations, 10 businesses and 5 individuals. Ten commenters 
submitted two separate sets of comments. During the comment period that 
opened on April 28, 2004, and closed on May 28, 2004, we received 42 
comments directly addressing the proposed critical habitat designation: 
2 from peer reviewers, 5 from Federal agencies, and 3 from Tribes. Of 
the 42 parties responding to the proposal during the first comment 
period, 12 supported the proposed designation, 30 were opposed 
(including those who thought we should have proposed more areas for 
critical habitat designation), and a few commenters simply provided 
additional information. During the second comment period that opened on 
February 14, 2005, and closed on March 16, 2005, we received 18 
comments directly addressing the proposed critical habitat designation 
and DEA. Of these latter comments, 2 were from a Federal agency, 1 from 
a Tribe, 5 from local jurisdictions, 7 from businesses, and 3 from 
organizations or individuals. During the second comment period a total 
of 4 commenters supported the designation of critical habitat for the 
arroyo toad, and 14 opposed the designation. We reviewed all comments 
for substantive information and new data regarding the arroyo toad and 
its critical habitat. Comments have been grouped together by issue and 
are addressed in the following summary. All comments and information 
have been incorporated into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from at least three 
knowledgeable individuals who have expertise with the species, with the 
geographic region where the species occurs, and/or familiarity with the 
principles of conservation biology. Of the five individuals contacted, 
three responded. The peer reviewers that submitted comments generally 
supported the proposal and provided us with comments, which are 
included in the summary below and incorporated into the final rule, as 
appropriate. Unless otherwise noted, the peer review comments were on 
our proposed rule published April 28, 2004; subsequent changes to our 
proposal published in the Federal Register on February 14, 2005 (70 FR 
7459) and in this final rule did not receive peer review comment.

Peer Review Comments

    (1) Comment: A peer reviewer who conducts research on a variety of 
toad species at an academic institution found our proposal to be based 
on natural history studies that range in quality from perfectly 
adequate to superior. He commended us for basing much of our proposed 
rule on competent, truly scientific research. It was his opinion that 
the basic biology of the arroyo toad had been adequately reviewed and 
competently applied to the selection, delimitation, and designation of 
proposed sites. He endorsed the proposal and found it to be based on 
adequate research.
    Our Response: As noted by the peer reviewer, we have considered and 
applied every important study involving arroyo toads that is relevant 
to its ecology and protection that we could obtain.
    (2) Comment: A peer reviewer who has extensive experience studying 
the dispersal of arroyo toads, and has conducted studies within nearly 
one-third of the critical habitat units across the range of the 
species, commented that our proposed critical habitat units are 
accurately characterized, appropriately referenced, do not exclude any 
local arroyo toad populations in the specific units he is familiar 
with, and include all breeding and upland habitats necessary for the 
long-term survival of the local populations.
    Our Response: We have identified all habitats that have the 
essential features, or primary constituent elements (PCEs) (see Primary 
Constituent Element section below), necessary for the conservation of 
the species. A portion of these essential areas are included in this 
final designation of critical habitat for the arroyo toad. Some 
essential areas have been excluded from critical habitat designation 
under section 4(b)(2) of the Act, primarily for economic reasons (see 
Application of Section 3(5)(A) and

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4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below 
for a detailed discussion). After receipt of public and peer review 
comments, we revised the model we used to delineate essential and 
critical habitat, which is outlined in the February 14, 2005, Federal 
Register Notice (70 FR 7459) and this final rule (see Summary of 
Changes and Criteria Used to Identify Critical Habitat sections).
    (3) Comment: A peer reviewer expressed concern that our choice of 
words in the Background section might imply that arroyo toads located 
at higher elevations move shorter distances than those found at lower 
elevations near the coast.
    Our Response: The studies we cited in the proposed rule (e.g., 
Griffin 1999; Holland and Sisk 2000; Ramirez 2002a, 2002b, 2002c, 2003) 
indicate that arroyo toads found along streams with broad floodplains 
in coastal areas move farther into the uplands than those found along 
streams away from the coast with steeper slopes bordering the stream 
corridor. Although coastal areas may be at lower elevations, we suspect 
that it is the moderating effect of the ocean on coastal climates, 
including frequent fog, that may allow arroyo toads to disperse farther 
from a source of water without dehydrating, and that moderate slopes 
adjacent to a coastal stream corridor do not inhibit dispersal. More 
extreme temperatures and arid conditions away from the coast may 
inhibit dispersal by arroyo toads from a water source. Although arroyo 
toads can ascend and descend rather steep slopes, a sustained, steep 
gradient would likely inhibit dispersal. The elevation at which arroyo 
toads are found should have no influence on their willingness or 
ability to disperse from a water source.
    (4) Comment: A peer reviewer suggested that we clarify our use of 
critical habitat regional classification units (northern, southern, and 
desert regions).
    Our Response: We have organized the critical habitat units for the 
arroyo toad into three regions (northern, southern, and desert regions) 
that reflect both the range of the species and the distinct ecological 
environments in which the species is found, similar to the system used 
in the recovery plan for the arroyo toad (Service 1999).
    (5) Comment: A peer reviewer suggested that we clarify our 
statement about the use of areas with compact soils by arroyo toads.
    Our Response: Arroyo toads typically dig their own burrows in sandy 
soils or soft substrates where they remain underground during periods 
of inactivity (Service 1999). However, they have also been found in 
areas with harder, compact soils where they cannot burrow. In these 
cases, arroyo toads are likely using preexisting mammal burrows, or 
they are temporarily using these areas for foraging and dispersal at 
night and returning to areas where they can burrow prior to sunrise.
    (6) Comment: A peer reviewer suggested that, in addition to 
agricultural fields, toads are found in orchards.
    Our Response: Although toad may use orchards, the likelihood of 
long-term persistence in this altered habitat is unknown and would 
depend on the level of agricultural activity. To the extent that heavy 
equipment and pesticides are used in an orchard, along with periods of 
intense human activity, mortality rates could exceed reproductive rates 
in and around a stream segment bordered by orchards. However, it is 
possible that resident toads may be able to survive in orchard areas 
set back from the floodplain that do not require intensive management 
or harvest practices.
    (7) Comment: A peer reviewer stated that our discussion concerning 
the value of designating critical habitat, and the procedural and 
resource difficulties involved, should be addressed in a different 
forum, not in a critical habitat rule.
    Our Response: As discussed in the sections ``Designation of 
Critical Habitat Provides Little Additional Protection to Species,'' 
``Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act,'' and ``Procedural and Resource Difficulties in 
Designating Critical Habitat'' and other sections of this and other 
critical habitat designations, we believe that, in most cases, 
conservation mechanisms provided through section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, the 
section 10 incidental take permit process, and cooperative programs 
with private and public landholders and tribal nations provide greater 
incentives and conservation benefits than does the designation of 
critical habitat.
    (8) Comment: After examining the changes to our proposal published 
in the Federal Register on February 14, 2005 (70 FR 7459), one peer 
reviewer stated that the training activities of the military at Fort 
Hunter Liggett may have resulted in riparian habitat modifications that 
may be beneficial to the arroyo toad. The peer reviewer further noted 
that the military also prevents nonmilitary personnel from visiting the 
area which helps prevent the introduction of nonnative predatory 
aquatic vertebrates.
    Our Response: We agree that although some toads would be killed 
outright by ordinance, crushing by vehicles, prescribed burning, 
channel clearing, or other actions undertaken by the military, in some 
instances the resulting habitat modifications may enhance arroyo toad 
habitat, which favor more open habitats. It is unclear to what extent 
habitat modifications resulting from military actions have affected 
arroyo toad numbers at Fort Hunter Liggett, either positively or 
negatively. We also agree that minimizing human access to arroyo toad 
habitat is generally beneficial and can prevent the introduction of 
nonnative predatory aquatic vertebrates. However, certain nonnative 
predatory aquatic vertebrates have already become established at Fort 
Hunter Liggett, including bullfrogs. All military actions affecting 
arroyo toad habitat at Fort Hunter Liggett have been addressed in the 
Army's Endangered Species Management Plan for the arroyo toad at Fort 
Hunter Liggett, which is one of the primary reasons why we have 
excluded Fort Hunter Liggett from critical habitat designation (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section).

Comments Related to Previous Federal Actions, the Act, and Implementing 
Regulations

    (9) Comment: One commenter stated that, according to the Tenth 
Circuit Court of Appeals finding in Catron County Board of Commerce, 
New Mexico v. United States Fish and Wildlife Service, 75F.3d 1429 
(10th Cir 1996) (Catron v. FWS), we are required to prepare an 
environmental assessment or environmental impact statement before 
designating critical habitat.
    Our Response: The commenter is correct in that the Tenth Circuit 
Court of Appeals determined that an environmental assessment or 
environmental impact statement as part of NEPA should be prepared 
before designating critical habitat. However, it is our position that, 
outside the jurisdictional area of the Tenth Circuit Court, we do not 
need to comply with NEPA in connection with designating critical 
habitat under the Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld by the Ninth Circuit Court (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 
S. Ct. 698 (1996)).

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    (10) Comment: Several commenters stated that the arroyo toad is 
everywhere in California and Mexico and that there is not enough 
scientific evidence proving that this species is really endangered, and 
therefore does not need protection under the Act.
    Our Response: The commenters may be confusing the arroyo toad with 
several other species of toads in the genus Bufo occurring in 
California and Mexico. The arroyo toad is just one species of toad, and 
the distribution of the arroyo toad is limited to central and southern 
California and northwestern Baja California, Mexico. While our 
knowledge of the arroyo toad's distribution in southern California has 
increased since it was listed in 1994, the species continues to be 
threatened by habitat destruction and alteration, over-collection, 
predation by introduced predatory fish, and inadequacy of existing 
regulatory mechanisms (59 FR 64859).
    (11) Comment: One commenter stated that critical habitat will 
unnecessarily burden the regulated public and has overloaded Service 
staff.
    Our Response: Critical habitat designations do not by themselves 
constitute a burden in terms of Federal laws and regulations on private 
landowners carrying out private activities, but in California they may 
trigger additional State regulatory reviews and other requirements 
under the California Environmental Quality Act and other State laws and 
regulations. When a Federal approval or permit is required, or Federal 
funds are involved with a project proposed on private property, the 
critical habitat designation does impose a Federal regulatory burden 
for private landowners; absent this, the designation should not affect 
farming and ranching activities on private lands. Similarly, a Federal 
nexus could result in the designation affecting future land use plans, 
and the designation may trigger State requirements which could impact 
such plans.

Comments Related to Critical Habitat, Primary Constituent Elements, and 
Methodology

    (12) Comment: Two commenters questioned the scientific evidence 
used to determine critical habitat.
    Our Response: In designating critical habitat for the arroyo toad, 
we have used the best available scientific and commercial information, 
including results of numerous surveys, peer-reviewed literature, 
unpublished reports by scientists and biological consultants, potential 
habitat maps developed by the Forest Service (Forest Service 2000), and 
expert opinion from biologists with extensive experience studying the 
arroyo toad. Further, information provided in comments on the proposed 
designation and the draft economic analysis were evaluated and taken 
into consideration in the development of this final designation, as 
appropriate. Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Ventura Fish and Wildlife Office (see ADDRESSES section above).
    (13) Comment: One commenter stated that at least 24 additional 
habitat areas should be designated as critical habitat in the final 
rule, including all populations and metapopulations identified in Table 
1 of the arroyo toad recovery plan.
    Our Response: The Act states, at section 3(5)(C), that except in 
particular circumstances determined by the Secretary, critical habitat 
shall not include the entire geographical area which can be occupied by 
the threatened or endangered species. It is not the intent of the Act 
to designate critical habitat for every population and every documented 
historic location of a species. We have designated habitat that contain 
features essential for the conservation of the species.
    (14) Comment: One commenter stated that the proposed designation of 
critical habitat was overly broad and that we included areas that are 
not essential to the conservation of the species. Another commenter 
expressed a similar concern and stated that we proposed more areas than 
what is suitable for the toad in an attempt to make up for the limited 
precipitation in southern California.
    Our Response: As a result of revisions to the methodology used to 
delineate critical habitat, areas that do not contain the features 
essential to the conservation of the species have been removed from the 
final designation (see Summary of Changes and Criteria Used to Identify 
Critical Habitat sections below). Only areas that contain features 
essential to the conservation of the species were designated critical 
habitat; precipitation levels did not directly effect this designation.
    (15) Comment: One commenter stated that the Service failed to 
identify the physical or biological features essential to the 
conservation and recovery of the species or the methods that would be 
used in the identification of such features.
    Our Response: In our ``Primary Constituent Elements'' section we 
have outlined as specifically as possible all of the physical and 
biological features essential to the conservation of the species. In 
our ``Methods'' and ``Criteria Used to Identify Critical Habitat'' 
sections we outlined the methods we used to identify and delineate 
critical habitat.
    (16) Comment: Several commenters stated that we included areas 
where the arroyo toad and their primary constituent elements were 
absent, such as roads, developed areas, and particular natural features 
(i.e., steep slopes), or where their status is uncertain. Another 
commenter acknowledged our attempts to remove these types of areas, but 
requested that we examine the units even more closely, particularly in 
San Diego County, and more finely remove areas that do not contain 
primary constituent elements.
    Our Response: As described below, we have revised the methodology 
used to determine critical habitat, and therefore have removed areas 
that did not contain features essential to the conservation of the 
species (see Summary of Changes and Criteria Used to Identify Critical 
Habitat sections below). We made an effort to exclude all developed 
areas, such as towns, housing developments, and other lands unlikely to 
contain primary constituent elements essential for arroyo toad 
conservation. However, as it is not possible to remove each and every 
one of these features, even at the refined mapping scale used, the maps 
of the proposed designation may still include areas that do not contain 
primary constituent elements (see Criteria Used to Identify Critical 
Habitat below). These areas are not being designated as critical 
habitat.
    As to the comment about units in San Diego County, all units in San 
Diego County have been excluded under section 4(b)(2) of the Act for 
economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act section for detailed 
discussion of exclusions).
    (17) Comment: One commenter stated that the revised criteria used 
to identify upland use by arroyo toads, which resulted in the reduction 
of the maximum distance from the stream to which critical habitat 
extended from 4,921 feet to 1,640 feet, is not supported in the 
proposed rule. Other commenters expressed opposition to our reduction 
in the amount of upland habitat included in our revised model and 
expressed concern that some of the upland habitat used by arroyo toads 
has been removed from consideration as critical habitat. In contrast, 
one commenter stated that the proposed designation of upland habitat 
was overly broad in mountainous areas away from the coast and we should 
have used

[[Page 19566]]

a shorter upland movement distance than 4,921 ft (1,500 m).
    Our Response: We based our decision to revise the model of what 
constitutes essential upland habitat on the best available science and 
data on arroyo toad upland habitat use. The study by Holland and Sisk 
(2000) demonstrated that 88% of the adult and subadult arroyo toad 
population was found within the riparian wash area. Of the remaining 
12% of the arroyo toads in the upland areas, 68% of the arroyo toads 
were found within 1,640 ft (500 m) of the riparian wash area. Although 
some upland habitats shown to be used by arroyo toads in coastal areas 
are no longer within the critical habitat boundary, we believe the 
amount of upland habitat included in this final rule is enough to allow 
for the long-term persistence of the arroyo toad population in a given 
area and captures all areas essential for the conservation of the 
species.
    (18) Comment: One commenter stated that in light of a recent court 
decision regarding the Alameda whipsnake final critical habitat, Home 
Builders Association of Northern California v. U.S. Fish & Wildlife 
Service, 268 F. Supp. 2d, we did not sufficiently explain why the 
designation of unoccupied linkage areas are essential for the 
conservation of the arroyo toad pursuant to 16 U.S.C. 1532(5)(A)(ii). 
The commenter stated that this approach threatens to eliminate the 
distinction between ``areas within the geographic area occupied by the 
species at the time it is listed,'' and ``specific areas outside the 
geographic area occupied by the species at the time it is listed that 
are essential to the conservation of the species.''
    Our Response: We have not designated any critical habitat units 
outside the geographical area currently or historically occupied by the 
species. Arroyo toad breeding habitat is patchily distributed along 
stream courses. Linkage areas between breeding habitat are essential 
for the conservation of the species because they provide habitat for 
toads moving to and from breeding areas and habitat for foraging, 
breeding, and burrowing. Since these linkage areas are occupied by the 
species during some period of their life cycle, they were designated as 
critical habitat (see Summary of Changes from the Proposed Rule section 
for the definition of ``occupied'').
    (19) Comment: Several commenters generally stated that we should 
not rely on survey efforts when they are funded by landowners with an 
interest in obtaining negative results.
    Our Response: As per section 3(5)(A)(i) of the Act and regulations 
at 50 CFR 424.12, we used the best available scientific and commercial 
information available in the designation of critical habitat for the 
arroyo toad, which includes information from all valid survey efforts 
by all qualified biologists. If we receive evidence that survey results 
have been falsified or survey methods were unacceptable, we would not 
use those results. We have no evidence that any of the data we have 
referenced or used in formulating this rule has been falsified or based 
on unacceptable survey methods.
    (20) Comment: One commenter stated that our 30-day comment period 
following the proposed rule was inadequate to allow the public to 
understand and comment meaningfully on the proposed rule and that this 
should have been extended to no less than 60 days.
    Our Response: The proposed critical habitat rule for the arroyo 
toad was available to the public for review and comment for 60 days. 
The first 30-day comment period opened on April 28, 2004 (60 FR 23254). 
On February 14, 2005, we reopened the public comment period for the 
proposed rule for an additional 30-day period upon publication of the 
Notice of Availability of the Draft Economic Analysis (70 FR 7459). We 
believe these two public comment periods provided adequate opportunity 
for public comment.
    (21) Comment: One commenter stated that the Service did not 
adequately notify landowners where proposed critical habitat was 
located. Another commenter expressed concern that the revisions we made 
to critical habitat proposed for the arroyo toad (70 FR 7459) were not 
accompanied by revised maps, nor were revised maps available on any 
website. Without maps showing where revisions were made, the 
description of the changes made to the proposed rule was difficult to 
understand. This made it difficult for the public to adequately comment 
on the proposed revisions.
    Our Response: We issued a widely disseminated news release 
regarding our proposal and published legal notices in all major 
newspapers within the range of the species in California, including the 
Monterey Herald on May 1, Ventura County Star on May 4, the Orange 
County Register on May 7, the San Diego Union Tribune on May 8, and the 
Santa Barbara News Press on May 12, 2004. General maps delineating the 
boundaries of critical habitat were included in the April 28, 2004, 
proposed rule. Due to operational time constraints and a looming court-
ordered deadline, we were unable to produce maps of the subsequent 
revisions and make them available to the general public. However, 
points of contact were given in the proposed rule for landowners 
needing assistance in determining whether their property was within 
designated critical habitat were able to contact the Ventura or 
Carlsbad Fish and Wildlife Office, and specific maps were provided upon 
request. We attempted to carefully describe in the Federal Register (70 
FR 7459) all of the ways in which revisions were made to the proposed 
rule.

Comments Related to Site-Specific Areas

    (22) Comment: One commenter stated that local land use controls 
provide sufficient protection for the arroyo toad in Santa Barbara 
County.
    Our Response: Although there are other State, local, and Federal 
laws that offer some protection to endangered species and their 
habitats (e.g., Clean Water Act and California Environmental Quality 
Act), none provide the same level of protection and review for 
threatened and endangered species as does the Endangered Species Act. 
These laws are not redundant and work in concert to provide protection 
for environmental resources.
    (23) Comment: One commenter stated that Rancho Sisquoc (unit 2) has 
not been surveyed for arroyo toads and the Service does not know that 
arroyo toads occupy this portion of the Sisquoc River.
    Our Response: We agree that much of the Sisquoc River as it flows 
through the privately-owned Sisquoc Ranch has not been surveyed for 
arroyo toads. However, there are two reports of arroyo toads occupying 
the Sisquoc River within the Sisquoc Ranch; arroyo toads were observed 
there by M. Hanson in 1992 (CNDDB 1992) and also by LSA associates in 
1993 (LSA Associates, Inc. 2000). Arroyo toads have also been reported 
along the Sisquoc River both upstream and downstream from the Sisquoc 
Ranch (CNDDB 1992, 1994).
    (24) Comment: One commenter stated that the Service failed to 
explain its rationale regarding the need for special management 
considerations and protection on lands proposed for designation as 
critical habitat in unit 2. Specifically, it did not consider those 
already in place in the Mining and Reclamation Plan for mining 
activities on the Sisquoc River.
    Our Response: The Mining and Reclamation Plan for mining activities 
on the Sisquoc River outlines measures to reduce harm to the arroyo 
toad and its habitat, but it was written prior to the

[[Page 19567]]

designation of critical habitat for this species. Thus, neither 
designated, nor proposed, critical habitat for the arroyo toad is 
addressed in the Mining and Reclamation Plan. Additionally, the Mining 
and Reclamation Plan pertains only to those areas contemplated for sand 
and gravel mining, but does not cover a large portion of the Sisquoc 
River upstream from the mining area, which we have designated as 
critical habitat.
    (25) Comment: Several commenters stated that the Santa Clara River 
is occupied by arroyo toads and should be protected as critical 
habitat.
    Our Response: Critical habitat was proposed along portions of the 
Santa Clara River known to be occupied by the arroyo toad (subunits 6b 
and 6c). However, unit 6 is excluded from critical habitat designation 
under section 4(b)(2) of the Act for economic reasons (see Application 
of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of 
the Act section for detailed discussion of exclusions).
    (26) Comment: One commenter stated that the Army Corps of Engineers 
404 permit granted to Valencia Company and associated Natural River 
Management Plan does not adequately protect arroyo toad habitat along 
the Santa Clara River in and around Valencia (subunit 6b), and 
therefore should not be excluded from the critical habitat designation.
    Our Response: Although we believe the Natural River Management Plan 
does protect arroyo toad habitat (see 70 FR 7459 for a detailed 
discussion), unit 6 is excluded from critical habitat under section 
4(b)(2) of the Act for economic reasons.
    (27) Comment: One commenter stated that land within subunit 6b is 
already, or will be, protected through conservation easements and other 
management measures. This commenter also stated that this area is not 
truly essential to the conservation of the species due to limited 
arroyo toad observations, and would generate considerable costs for 
private landowners, and therefore should be excluded. During the second 
comment period this commenter offered support for our proposed 
exclusion of subunit 6b.
    Our Response: Although this area currently contains a small arroyo 
toad population, arroyo toad numbers likely were much larger in the 
past, and the number of arroyo toads has the potential to greatly 
increase once again throughout suitable habitat in this subunit. 
Therefore, we believe it is essential habitat for the arroyo toad. 
Although we agree that the protection provided by the conservation 
easements conveyed or proposed on lands within this subunit will 
benefit the arroyo toad, unit 6 is excluded under section 4(b)(2) of 
the Act for economic reasons (see Application of Section 3(5)(A) and 
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a 
detailed discussion).
    (28) Comment: One commenter stated that we should have included the 
portion of the Santa Clara River downstream of proposed subunit 6b 
between Castaic Creek and Piru Creek.
    Our Response: Although much of the habitat may be suitable for 
arroyo toads, they have never been reported from this portion of the 
Santa Clara River despite surveys (San Marino Environmental Associates 
1995; RECON 1999; Impact Sciences 2002; Compliance Biology 2004). 
Habitat within the river corridor along this reach appears to be 
suitable for arroyo toads, but much of the upland habitats adjacent to 
the river corridor are unsuitable for arroyo toads because they consist 
of intensive agriculture. Also, most of the river corridor in the Los 
Angeles County portion of this reach will be or is proposed to be 
protected by a conservation easement associated with the Newhall Ranch 
Specific Plan.
    (29) Comment: One commenter supported our inclusion of Castaic 
Creek and the Santa Clara River in the vicinity of the Castaic Creek 
confluence with the Santa Clara River. However, they felt that we 
should have also included the portion of Castaic Creek that is just 
downstream of the Castaic Dam and lagoon.
    Our Response: We have determined that this area should not be 
designated as critical habitat for the following reasons: (1) Surveys 
have indicated that arroyo toads do not occupy this portion of Castaic 
Creek; (2) suitable habitat extends along Castaic Creek for only a 
short distance (perhaps less than a mile) in this area; (3) it is 
isolated from upper Castaic Creek by Castaic Dam, which serves as a 
geographic barrier; and (4) it is isolated from suitable habitat along 
lower Castaic Creek by several miles of rather dry, marginal habitat 
lacking sufficient cover for upland migrating arroyo toads.
    (30) Comment: Two commenters asserted that there is insufficient 
evidence to support our conclusion that the upper portion of the Santa 
Clara River (Soledad Canyon) supports a breeding population of arroyo 
toads. Another commenter stated just the opposite, that there is a 
breeding population of arroyo toads in this area.
    Our Response: Although it does not appear to be a large population, 
the best available science and survey results indicate arroyo toad 
presence and evidence of successful reproduction in the upper Santa 
Clara River (subunit 6b in this rule). As stated in a letter to the 
City of Santa Clarita by Frank Hovore & Associates (F. Hovore, in litt. 
2001, p. 1), ``There can be no doubt whatsoever that the arroyo toad 
maintains a breeding metapopulation unit on the TMC site, and that the 
upland areas around the river are essential to its out-of-channel 
biology, and ultimately, survival.'' At least 70 arroyo toad tadpoles 
have been documented from the upper Santa Clara River in three 
different locations (N. Sandburg, in litt. 2001). We are also aware of 
at least three metamorphosed arroyo toads observed in two separate 
locations. These arroyo toad tadpoles and juveniles were observed and 
identified by at least five qualified biologists on a number of 
different occasions, although all sightings were made in the spring of 
2001. The presence of arroyo toad tadpoles is, by itself, evidence of 
breeding. Arroyo toads in this area may have been missed prior to 2001 
due to the lack of night surveys, surveys being conducted during a 
drought year when reproduction may not have taken place (1990), and 
because surveys were conducted late in the season (July of 1994) when 
this portion of the Santa Clara River may have already dried.
    (31) Comment: A commenter further stated that the tadpoles and 
recently metamorphosed arroyo toads (``metamorphs'') found within the 
upper Santa Clara River [subunit 6c] are equivalent to ``lone wolves'' 
dispersing through an area, and do not constitute a population. The 
commenter cited the 2000 10th Circuit Court case, Wyoming Farm Bureau 
Federation v. Babbitt (199 F.3d 1224, 1234), which ruled that lone 
wolves do not constitute a population.
    Our Response: Movements of arroyo toad tadpoles, and even adults, 
are limited as they cannot disperse across the landscape like wolves. 
The nearest observations of the upper Santa Clara River arroyo toads 
would be those found at least 12 miles (mi) (19.3 kilometers (km)) 
downstream. According to the best available information, this is beyond 
the upstream dispersal capability of an adult arroyo toad. Given that 
most of the intervening habitat along the Santa Clara River between 
these two populations is typically dry, like adults, small, recently 
transformed individuals are certainly not capable of dispersing 12 
miles upstream. Tadpoles do not disperse far from the pool where they 
were deposited as eggs, except for the possibility of being washed 
downstream during a flood event. We

[[Page 19568]]

are unaware of any arroyo toads existing in the Santa Clara River 
watershed upstream of this subunit (6c). Even if there was a population 
further upstream, it would be unlikely for the 70 arroyo toad tadpoles 
to have been washed downstream as a group to this point in Soledad 
Canyon and be found in good condition.
    (32) Comment: Two commenters generally asserted that the upper 
Santa Clara River does not contain the primary constituent elements for 
arroyo toad and constitutes poor habitat for this species. In direct 
contrast to these comments, two other commenters stated that this area 
does contain suitable habitat and is important for the preservation of 
the arroyo toad.
    Our Response: Direct observations by Service biologists and that of 
other biologists conducting arroyo toad surveys show that the upper 
Santa Clara River within proposed subunit 6c does contain all of the 
primary constituent elements of arroyo toad critical habitat. Sandburg 
(in litt. 2001, p.3) states, ``* * * the stream channel [of the Santa 
Clara River] widens with flat terraces, cottonwood overstory, extensive 
alluvial deposits and stream velocities suitable for arroyo toad 
clutches * * * A side tributary, referred to as Bear Creek, delineates 
another large area of optimal arroyo toad habitat with slower water 
velocities and wide alluvial terraces devoid of dense vegetation.'' 
Thus, observations by the Service and independent biologists confirm 
the presence of arroyo toad habitat and the species' primary 
constituent elements.
    (33) Comment: One commenter asserted that the upper Santa Clara 
River does not meet any of our criteria to be designated as critical 
habitat.
    Our Response: In the proposed rule we stated that the criteria we 
used to identify critical habitat are identical to the criteria 
outlined in the final designation previously published in the Federal 
Register on February 7, 2001 (66 FR 9414). In that rule, we outlined 
five criteria, which if any is found on a site, would warrant it to be 
designated as critical habitat. The second of those five criteria 
states that, if a site ``supports at least a small toad population and 
possesses favorable habitat conditions for population expansion and 
persistence,'' then this area would be considered critical habitat. 
Subunit 6c along the upper Santa Clara River meets this criterion. 
However, unit 6 is excluded under section 4(b)(2) of the Act for 
economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act section for a detailed 
discussion).
    (34) Comment: Two commenters referenced a letter from the Service 
stating that a project area on Rasmussen Company land in Soledad Canyon 
along the upper Santa Clara River has little habitat value for the 
arroyo toad. These commenters are concerned that this area, which lacks 
suitable habitat for the arroyo toad, has been proposed as critical 
habitat.
    Our Response: Unit 6, where the land referenced by the commenters 
is located, is excluded from critical habitat designation under section 
4(b)(2) of the Act for economic reasons (see Application of Section 
3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act 
section for a detailed discussion).
    (35) Comment: One commenter stated that our revisions to proposed 
critical habitat in subunit 6c (70 FR 7459) are unwarranted. The 
commenter argued that we should have included the entire original Santa 
Clara River channel (below Agua Dulce Canyon) as critical habitat, as 
originally proposed, rather than removing the portion north of the 
railroad tracks, which traverse portions of the original river channel 
in some locations. The commenter stated that water extraction wells 
installed for mining purposes might now be installed in these areas 
resulting in adverse impacts to surface flows in the Santa Clara River.
    Our Response: We removed the areas in question north of the 
railroad tracks from critical habitat designation because some of these 
areas have been degraded by past mining activities. Also, the railroad 
tracks, which are often raised on rather steep banks, pose a likely 
barrier to arroyo toad movements in these areas. Thus, although arroyo 
toads may be able to cross the railroad tracks in some locations, both 
access and quality of these areas is limited. Therefore, we determined 
their inclusion into critical habitat was not warranted at this time. 
Additionally, any effects to the surface hydrology of the Santa Clara 
River from water withdrawal projects involving a federal nexus that 
adversely affect the arroyo toad or its critical habitat, whether they 
originate outside of critical habitat or not, would be subject to the 
section 7 consultation process under the Act.
    (36) Comment: Two commenters opposed the designation of critical 
habitat on Rancho Las Flores Planned Community (Rancho Las Flores) land 
in Summit Valley, San Bernardino County, which surrounds the West Fork 
of the Mojave River. They pointed out that many acres in this area will 
be designated as open space or protected by conservation easement to 
protect the toad. They also stated that two biological opinions have 
been issued for projects in this area and a Habitat Conservation Plan 
(HCP) is being developed to cover lands not addressed in the biological 
opinions. Additionally, one of the commenters expressed concern that 
new housing, jobs, and other social benefits provided by the planned 
community may be jeopardized or constrained by a critical habitat 
designation.
    Our Response: We agree that greater conservation benefits to arroyo 
toad habitat on private property can result from carefully designed 
plans formulated cooperatively between the Service and private 
conservation partners. However, unit 22, which is the only proposed 
unit that includes Rancho Las Flores lands, is excluded under section 
4(b)(2) of the Act for economic reasons under (see Application of 
Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the 
Act section).
    (37) Comment: One commenter stated that we should have included the 
following additional areas in the critical habitat designation, which 
are listed in Table 1 of the recovery plan for the arroyo toad (Service 
1999) and are found in the Northern Recovery Unit. These areas are the 
following: Upper Salinas River; Agua Caliente Creek in the upper Santa 
Ynez River Basin; and Agua Blanca, Bouquet, and Castaic Creeks in the 
Santa Clara River Basin.
    Our Response: We are unaware of any recent observations of arroyo 
toads in the upper Salinas River watershed or anywhere within San Luis 
Obispo County. Many of the other areas not considered for designation 
as critical habitat, which are identified in Table 1 of the recovery 
plan, are tributaries to larger streams where arroyo toads occur. We do 
not currently have information suggesting that these tributaries are 
occupied by arroyo toad or that these tributaries contribute a 
significant amount of habitat that would be used by the toads. Although 
arroyo toads are not known to occupy Agua Caliente Creek and we have 
not included Agua Caliente Creek as part of the critical habitat 
designation for the toad, we have included the confluence of Agua 
Caliente Creek and the Santa Ynez River because arroyo toads occupy the 
Santa Ynez River. Agua Blanca Creek is a tributary to Piru Creek; the 
portion of Agua Blanca Creek occupied by arroyo toads is included in 
critical habitat. When the recovery plan was published, it was thought 
that habitat suitable for the arroyo toad may be found along Bouquet 
Creek. However, more recent surveys have found Bouquet Creek to be

[[Page 19569]]

largely unsuitable for arroyo toads, and they have never been observed 
in this tributary.
    (38) Comment: One commenter requested that their First and Second 
San Diego Aqueducts and proposed Moreno Lakes pipeline right-of-ways 
(ROWs) in the San Luis Rey River (Unit 14) and San Diego River (Unit 
17c), respectively, be excluded from critical habitat so that their 
mission of providing water to their member agencies is not hindered. 
They state that their permits for facility operations would need to be 
modified to address a critical habitat designation.
    Our Response: After closer review of available information and 
comments, we have determined that areas on the San Diego River 
downstream from El Capitan Reservoir (Subunit 17c) are not essential to 
the conservation of the toad and are therefore removed from critical 
habitat. Accordingly, the Moreno Lakes ROW in Subunit 17c is no longer 
in critical habitat. Unit 14, the location of the First and Second 
aqueduct of concern to the commenter, is excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section for a detailed discussion).
    (39) Comment: The same commenter asked whether their existing 
Section 7 permit that covers the coastal California gnatcatcher could 
be amended to cover the arroyo toad critical habitat for Units 14 and 
17c.
    Our Response: Assuming the Federal agency that was subject to 
consultation under section 7 of the Act for another listed species 
still retains discretionary jurisdiction over the action, the Federal 
agency must reinitiate section 7 consultation if its action ``may 
affect'' designated critical habitat for the arroyo toad. See Section 7 
Consultation below.
    (40) Comment: One commenter stated several reasons why they believe 
that arroyo toad critical habitat rule improperly includes portions of 
Pardee's Meadowbrook project site north of Highway 76 along the San 
Luis Rey River in Unit 14. They state that this area does not contain 
suitable habitat, is not, and will never be occupied by toads because 
of the barrier created by Highway 76, that we did not provide special 
management considerations for Unit 14, and Unit 14 is outside the 
geographic area occupied by the species.
    Our Response: As a result of revisions to our methodology to 
delineate critical habitat (see the Criteria Used to Identify Critical 
Habitat section below), more than half of the critical habitat located 
north of Highway 76 was removed. The remaining areas were reevaluated 
using the best available information, including an upland habitat 
pitfall study in 2003. The results of this study indicate that the 
primary constituent elements, including soil type, are marginal on the 
property north of the highway. Based on these results and the spatial 
relation of this area to nearby areas of critical habitat, we are 
removing Pardee's Meadowbrook project site north of Highway 76 from 
critical habitat. The remainder of unit 14 is excluded from critical 
habitat designation under section 4(b)(2) of the Act for economic 
reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions 
Under Section 4(b)(2) of the Act section for a detailed discussion).
    (41) Comment: A couple of commenters stated that the portion of 
Whitewater River downstream of the Colorado River Aqueduct lacks the 
primary constituent elements, and therefore should be removed as 
essential habitat for the arroyo toad.
    Our Response: We have reevaluated all the available information and 
have concurred with the commenters that this area does not contain 
essential habitat.
    (42) Comment: One commenter stated that lands owned by the 
Sweetwater Authority, Helix Water District, and Padre Dam Municipal 
District in San Diego County (portions of Units 17 and 18) should be 
excluded from designated critical habitat for the arroyo toad because 
the benefits of exclusion based on economic considerations far outweigh 
the benefits of inclusion.
    Our Response: We have excluded these essential areas from critical 
habitat based on economic considerations (see the Relationship of 
Critical Habitat to Economic Impacts--Exclusions Under Section 4(b)(2) 
of the Act section for a detailed discussion). Lands downstream of El 
Capitan Reservoir in subunit 17b and 17c were removed from critical 
habitat because they were not known to be occupied, and therefore were 
not considered to be essential for the conservation of the species (see 
the Summary of Changes and Criteria Used to Identify Critical Habitat 
sections for detailed discussions).
    (43) Comment: One commenter stated that the Service failed to 
identify special management considerations related to lands owned by 
the Sweetwater Authority, Helix Water District, and Padre Dam Municipal 
District in San Diego County in Units 17 and 18.
    Our Response: We disagree with commenters and did identify special 
management considerations for these Units in the proposed arroyo toad 
critical habitat rule published on April 28, 2004 (69 FR 23254). We 
cited threats from development, exotic predators, timing and amount of 
water transfer as some of the threats that require special management 
considerations.
    (44) Comment: One commenter stated that we should reconsider 
revising essential upland habitat in San Juan Creek for the arroyo toad 
to only capture the floodplain because adjacent alluvial flats and 
uplands are of questionable suitability for toad use, some upland areas 
included industrial land uses and are beyond busy paved roads that are 
not accessible to toads.
    Our Response: Even though all essential areas in San Juan Creek 
have been excluded from designated critical habitat due to economic 
reasons (see the Relationship of Critical Habitat to Economic Impacts--
Exclusions Under Section 4(b)(2) of the Act section for a detailed 
discussion), we still believe that upland areas containing primary 
constituent elements adjacent to riparian habitat are essential for the 
conservation of the toad. It has been well documented that the use 
upland areas by arroyo toads for burrowing, foraging, and aestivating 
is a normal part of their life history (Sweet 1993; Griffin and Case 
2001; Holland and Sisk 2001). Therefore, protecting these upland areas 
is necessary for adequate conservation of the arroyo toad. In some 
cases, we agreed with the commenter and removed upland areas where 
there was heavy industrial land uses. We also examined whether all 
areas beyond paved roads were essential and removed areas where toads 
did not have stream undercrossings.
    (45) Comment: A couple of commenters stated that we should 
reconsider revising the essential reach of San Juan Creek for the 
arroyo toad because we did not provide evidence that certain portions 
of the Creek are occupied, it lacks primary constituent elements, such 
as breeding pools, and contains exotic predators. One of these 
commenters also stated that some portions of San Mateo Watershed should 
be removed because they lack primary constituent elements, such as 
suitable sandy friable soils and contain exotic predators.
    Our Response: Even though all essential areas in San Juan Creek 
have been excluded from designated critical habitat due to economic 
reasons (see the Relationship of Critical Habitat to Economic Impacts--
Exclusions Under Section 4(b)(2) of the Act section for a detailed 
discussion), we still believe that all essential reaches of San Juan 
Creek are occupied because of several reports of toad occurrences in 
these

[[Page 19570]]

areas in the past 15 years as well the possibility for tadpoles to be 
washed downstream into less densely occupied areas (P. Bloom in litt. 
1998). We agree that the density of occupancy along the Creek varies, 
but low density areas are still essential for arroyo toad conservation 
because they contain the primary constituent elements, are occupied, 
and contain special management considerations, such as exotic predator 
and plant control. If these special management considerations were 
applied, it would be likely that population densities would increase. 
All essential reaches of San Juan Creek and San Mateo Watershed in 
Units 10 and 11 have the primary constituent elements, which may 
include stream channels and upland areas adjacent to riparian areas 
that allow for migration between foraging, burrowing, or aestivating 
sites.

Comments Related to Military Lands

    (46) Comment: The Army submitted several comments relating to the 
exclusion of Fort Hunter Liggett from critical habitat. They state 
that: (1) We have essentially approved an Integrated Natural Resource 
Management Plan (INRMP) for the installation; (2) the arroyo toad and 
its habitat are already being protected at Fort Hunter Liggett by the 
Army's Endangered Species Management Plan (ESMP) for the arroyo toad; 
(3) the INRMP and ESMP together provide a greater level of protection 
for the arroyo toad and its habitat than a designation of critical 
habitat would provide; and (4) that the designation of critical habitat 
at Fort Hunter Liggett would interfere with its mission of training 
soldiers. In contrast, a commenter unaffiliated with the military 
stated that the benefit of including Fort Hunter Liggett lands in the 
critical habitat designation outweighed the benefits of exclusion.
    Our Response: All lands essential to the conservation of the arroyo 
toad at Fort Hunter Liggett have been excluded under section 3(5)(A) 
and/or 4(b)(2) of the Act from the final designation of critical 
habitat because of alternative protective measures provided by the Army 
(see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions 
Under Section 4(b)(2) of the Act section for detailed discussion of our 
exclusions below).
    (47) Comment: One commenter stated that they oppose the designation 
of critical habitat for the arroyo toad on Naval Weapons Station, Seal 
Beach, Detachment Fallbrook (Detachment Fallbrook) because of the 
existence of an Integrated Natural Resources Management Plan (INRMP), 
potential complications in conservation efforts with other listed 
species, and adverse impacts on national security.
    Our Response: We have reviewed Detachment Fallbrook's Fire 
Management Plan and INRMP. The Secretary determined, in writing, that 
Detachment Fallbrook's INRMP provides a benefit to the arroyo toad and 
therefore, consistent with Public Law 108-136 (Nov. 2003): Nat. Defense 
Authorization Act for FY04 and Section 4(a)(3) of the Act, the 
Department of Defense's Detachment Fallbrook lands are exempt from 
critical habitat based on the adequacy of their legally operative INRMP 
(see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions 
Under Section 4(b)(2) of the Act section for a detailed discussion of 
this exemption below).
    (48) Comment: A couple of commenters stated that the Service should 
exclude all essential lands on Camp Pendleton, including State lease 
lands and cantonment areas because of their Integrated Natural Resource 
Management Plan (INRMP).
    Our Response: We agree with the commenter and have excluded all 
essential areas, including State lease lands and cantonment areas, from 
designated critical habitat on Camp Pendleton based on their INRMP (see 
the Exemptions Under Section 4(a)(3) section for a detailed 
discussion).
    (49) Comment: One commenter strongly supported the designation of 
critical habitat for the arroyo toad within those portions of Camp 
Pendleton that are leased to the State (San Onofre State Beach) because 
this area supports large numbers of arroyo toads and primary 
constituent elements.
    Our Response: We agree with the commenter that this area is very 
important for the conservation of the arroyo toad. However, we have 
excluded these lands that are leased to the State because they are 
within the area covered by Camp Pendleton's INRMP (see the Exemptions 
Under Section 4(a)(3) section for a detailed discussion).

Comments Related to Tribal Lands

    (50) Comment: A few commenters stated that the Service needs to 
work more closely to meaningfully contact the Bureau of Indian Affairs 
and/or Tribes to fully meet the tenet of Executive Order 13175 and 
Secretarial Order 3206.
    Our Response: We agree that we need to work more closely with 
Tribes potentially impacted by the designation of critical habitat. We 
increased our efforts to work with the Tribes following the proposed 
rule by holding several meetings with various Tribes. We intend to keep 
improving our relationships with the Tribes and the Bureau of Indian 
Affairs following the tenets of Secretarial Order 3206 and Executive 
Order 13175.
    (51) Comment: One commenter stated that no portion of the Soboba 
Indian Reservation should be designated as critical habitat for the 
arroyo toad.
    Our Response: We did not propose or designate any portions of the 
Soboba Indian Reservation as critical habitat for the arroyo toad.
    (52) Comment: One commenter stated that the Service failed to 
provide a meaningful analysis required by Secretarial Order 
3206 prior to designating Indian Lands because of the first 
paragraph in the benefits of inclusion analysis in the proposed 
critical habitat rule that was implied as meaning that there was a 
threat of loss of arroyo toad habitat on Tribal lands in the absence of 
critical habitat.
    Our Response: All essential areas proposed on Tribal lands are 
excluded from critical habitat for economic considerations (see the 
Relationship of Critical Habitat to Economic Impacts--Exclusions Under 
Section 4(b)(2) of the Act section for a detailed discussion). However, 
we did not intend for our statement to imply that there was a threat of 
loss of arroyo toad habitat on Tribal lands in the absence of critical 
habitat. We were simply stating the significance of these areas as 
essential for the conservation of the species.
    (53) Comment: One commenter stated that there are no special 
management considerations and protections on the Rincon Indian 
Reservation because of their Tribal Resource Conservation and 
Management Plan.
    Our Response: All lands on Rincon Indian Reservation are being 
excluded from designated critical habitat for the arroyo toad because 
of economic considerations. We agree with the commenter that their 
Tribal Resource Conservation and Management Plan will address special 
management considerations for the arroyo toad.

Comments Related to HCPs, NCCP Program, Section 7, and Section 404

    (54) Comment: Several commenters were supportive of the policy that 
lands covered by approved and nearly completed HCPs that provide take 
authorization for the arroyo toad should be excluded from critical 
habitat. Several of these commenters also requested that HCP exclusions 
should also apply to draft HCPs, lands enrolled in the NCCP program, 
and lands covered by the Joint Water Agency (JWA) draft plan.

[[Page 19571]]

    Our Response: While we trust that jurisdictions will attempt to 
fulfill their commitment to complete conservation plans, this voluntary 
enrollment does not assure that such plans will be finalized. 
Protections for arroyo toad habitat provided through participating 
jurisdiction's enrollment in the NCCP processes are temporary and are 
not assured; such protections may be lost if the jurisdiction elects to 
withdraw from the NCCP program. Guidelines for the NCCP program direct 
habitat loss to areas with low long-term conservation potential that 
will not preclude the development of adequate NCCP plans and ensure 
that connectivity between areas of high habitat value will be 
maintained. We will consider excluding lands within pending HCP areas 
where we have received a permit application from the participants and 
an environmental analysis has been completed and released for public 
review and comment under the authority of NEPA. By completing these 
criteria, jurisdictions demonstrate their intent to finalize their HCP/
NCCPs.
    (55) Comment: Several commenters stated that the designation of 
critical habitat removes incentives to participate in NCCP and HCP 
processes, in part because of added regulatory uncertainty, increased 
costs to plan development and implementation, weakened stakeholder 
support, delayed approval and development of the plan, and greater 
vulnerability to legal challenge.
    Our Response: HCPs are one of the most important tools for 
reconciling land use with the conservation of listed species on non-
Federal lands. We look forward to working with HCP applicants to ensure 
that their plans meet the issuance criteria and that the designation of 
critical habitat on lands where an HCP is in development does not delay 
the approval and implementation of their HCP.
    (56) Comment: Some commenters stated that our policy to exclude the 
pending Western Riverside Multiple Species Habitat Conservation Plan 
(MSHCP), but not other pending HCPs or NCCPs, may amount to arbitrary 
and capricious administrative conduct.
    Our Response: As stated above, we will consider excluding lands 
within pending HCPs where we have received a permit application from 
the participants and an environmental analysis has been completed and 
released for public review and comment under the authority of NEPA. The 
Western Riverside MSHCP, for which a section 10(a)(1)(B) permit was 
issued on June 22, 2004, was proposed for exclusion in the proposed 
rule because it met these criteria.
    (57) Comment: One commenter asked whether the designation of 
critical habitat would be considered a changed and unforeseen 
circumstance with respect to the various subarea plans presently 
approved or pending.
    Our Response: All approved or pending HCPs that were determined to 
provide a benefit to the conservation of the arroyo toad were excluded 
from the critical habitat designation (see Application of Sections 
3(5)(A), 4(a)(3), and Exclusions Under Section 4(b)(2)of the Act). 
Therefore, there would be no changed or unforeseen circumstance 
resulting from this designation.
    (58) Comment: One commenter stated multiple reasons for why 
essential arroyo toad habitat within several HCPs (including a draft 
HCP) and military installations should not be excluded from critical 
habitat. They stated that the benefit of designating these areas as 
critical habitat outweighs excluding them because exclusions are based 
partly on speculative and unproven future activities and critical 
habitat provides a greater benefit than measures contained in draft and 
approved conservation plans. They also stated that the Service 
unlawfully predetermined the benefits of excluding essential habitat 
because our determination was made prior to soliciting public review.
    Our Response: We agree that critical habitat designation is only 
one part--often the least important element--in the conservation of a 
species. In many cases, partnerships with individual landowners and 
conservation agreements with a variety of stakeholders can provide a 
much greater conservation benefit for arroyo toad and other species, as 
they offer positive management actions that cannot be achieved through 
a critical habitat designation. We have determined that the exclusion 
of lands covered by HCPs or INRMPs from critical habitat designation 
will not result in the extinction of the arroyo toad and that the HCPs 
and INRMPs we evaluated for exclusion will provide a greater benefit to 
the toad than critical habitat (see the Application of Section 3(5)(A) 
and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for 
a detailed discussion).
    However, we did not reach this conclusion prior to receipt of 
public comment as contended in this comment; areas excluded from the 
draft proposal because of their inclusion in HCPs or coverage by INRMPs 
were identified as such, proposed justifications offered for public 
review, and notice was provided that these areas might be included in 
the final designation based on public comments.
    (59) Comment: One commenter asked whether areas covered under 
existing Section 7 permits can be excluded from critical habitat in 
manner similar to areas under existing Section 10 permits.
    Our Response: Consultation under Section 7 of the Act does not 
result in the issuance of a Section 7 ``permit'' per se. Federal 
actions that we conclude are not likely to jeopardize the continued 
existence of a listed species are exempted from the prohibition against 
take of listed animal species under Section 9 of the Act so long as the 
Federal agency and any permittee comply with the terms and conditions 
of the incidental take statement accompanying the Service's biological 
opinion. Typically HCPs provide greater conservation benefits to a 
covered species by assuring the long-term protection and management of 
a covered species and its habitat, and funding for such management 
through the standards found in the 5-Point Policy for HCPs (64 FR 
35242), the HCP No Surprises regulation (63 FR 8859), and relevant 
regulations governing the issuance and implementation of HCPs, such as 
those requiring the permittee to minimize and mitigate the taking to 
the maximum extent practicable. However, such assurances are typically 
not provided in connection with Federal projects subject to section 7 
consultations which, in contrast to activities on non-Federal lands 
covered by HCPs, often do not commit to long-term special management or 
protections. Thus, a consultation unrelated to an HCP typically does 
not accord the lands it covers the extensive benefits an HCP provides. 
However, some landowners have agreed to provide extensive, permanent 
protection of arroyo toad habitat in conjunction with a section 7 
consultation. In cases where we have determined that a conservation 
strategy agreed to by a private landowner provides a substantial, long-
term benefit to the species, we have excluded these private lands from 
the critical habitat designation (see the Application of Section 
3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act 
section below).
    (60) Comment: One commenter stated that all Coachella Valley Water 
District (CVWD) lands be excluded from critical habitat designation 
within the draft Coachella Valley MSHCP boundaries.
    Our Response: The draft Coachella Valley MSHCP has been in 
development for several years. In contrast to other HCPs under 
development, which contain essential arroyo toad habitat, the Coachella 
Valley MSHCP is near its

[[Page 19572]]

completion. As a result, the Service is very close to taking final 
action on the Coachella Valley Association of Government's incidental 
take permit application. On November 5th, 2004, the Service published a 
Notice of Availability of a Final Environmental Impact Statement/
Environmental Impact Report (EIS/EIR) for the draft MSHCP. Although not 
yet completed, the draft Coachella Valley MSHCP plans on conserving 96% 
of the modeled arroyo toad habitat in the Whitewater River, acquiring 
private lands from willing sellers, minimize activities on public lands 
that threaten toads, and conserve other areas of potential habitat 
outside of Whitewater River. This plan will provide some level of 
conservation benefit to the arroyo toad and the habitat that it is 
known to occupy. CVWD is one of the permittees to the draft Plan. As 
result, we have excluded all CVWD lands within the draft Coachella 
Valley MSHCP from designated critical habitat for the arroyo toad. (see 
the Relationship of Critical Habitat to the Draft Coachella Valley 
Multiple Species Habitat Conservation Plan (MSHCP)--Exclusions Under 
Section 4(b)(2) of the Act section for a detailed discussion).
    (61) Comment: One commenter asked whether on-going activities, such 
as routine inspections, road grading, and construction adjacent to 
designated critical habitat are considered to appreciably decrease 
habitat values or quality through indirect effects.
    Our Response: The effects of any such activities on critical 
habitat must be considered by the Federal agency planning to conduct 
such activities. The action agency determines whether their action(s) 
``may affect'' the arroyo toad or its primary constituent elements 
within the adjacent critical habitat based on their analyses. If so, 
the action agency would enter into consultation with us under Section 
7.

Comments Related to Economic Impacts and Analysis; Other Relevant 
Impacts

    (62) Comment: Several commenters expressed concern that commercial 
activities, such as mining, mineral prospecting, agriculture, and new 
home construction would be prohibited or severely restricted by a 
designation of critical habitat. Similarly, other commenters felt that 
critical habitat is a good way to stop activities that they do not 
agree with, such as some of the activities mentioned above.
    Our Response: Section 7(a)(2) of the Act requires Federal agencies 
to ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or 
result in the destruction or adverse modification of 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, the action agency 
ensures that their actions do not destroy or adversely modify critical 
habitat. Section 7 of the Act does not apply to activities on private 
or other non-Federal lands that do not involve a Federal nexus, and 
critical habitat designation would not provide any additional 
protections under the Act for private or non-Federal activities. 
Critical habitat does not prohibit private or commercial activities 
from occurring.
    (63) Comment: Some commenters stated that critical habitat should 
not have been proposed before an analysis of economic and other 
relevant impacts was completed.
    Our Response: Pursuant to 50 CFR 424.19, we are not required to 
conduct an economic analysis at the time critical habitat is initially 
proposed. We evaluated and used comments received on the April 28, 
2004, proposed critical habitat designation to develop the draft 
economic analysis, as appropriate. On February 14, 2005 (70 FR 7459), 
we published a notice in the Federal Register announcing the 
availability of the draft economic analysis and reopening the public 
comment period for 30 days. In making this final critical habitat 
designation, we used the economic analysis and considered all comments 
and information submitted during the public comment periods.
    (64) Comment: Several private property owners commented that their 
property should be removed from critical habitat because the economic 
burden to them would be too great.
    Our Response: Extensive exclusions have been made for economic 
reasons (See Relationship of Critical Habitat to Economic Impacts--
Exclusions Under Section 4(b)(2) of the Act).
    (65) Comment: A couple of commenters stated that the Service should 
exclude all essential lands subject to the Rancho Mission Viejo Ranch 
Plan because the plan provides a conservation benefit to the arroyo 
toad.
    Our Response: We have excluded these essential areas from critical 
habitat based on economic considerations (see the Relationship of 
Critical Habitat to Economic Impacts--Exclusions Under Section 4(b)(2) 
of the Act section for a detailed discussion).
    (66) Comment: One commenter stated that the Service should exclude 
all essential lands where the proposed Foothill-South Transportation 
Corridor may be developed in southern Orange County because of the 
importance of the Corridor as a regional transportation solution and as 
a component of the Air Quality Management Plan.
    Our Response: We have excluded these essential areas from critical 
habitat based on economic considerations (see the Relationship of 
Critical Habitat to Economic Impacts--Exclusions Under Section 4(b)(2) 
of the Act section for a detailed discussion).
    (67) Comment: Several commenters questioned the accuracy of the 
1.25-to-1 offsetting compensation ratio used by the draft economic 
analysis to estimate the amount of land that would potentially be set-
aside due to arroyo toad conservation activities.
    Our Response: The Service has conducted four formal consultations 
concerning real estate development effects on the arroyo toad and 
arroyo toad habitat. The draft economic analysis relies on the average 
offsetting compensation ratio requested by the Service as part of these 
four historical consultations. The draft economic analysis notes that 
actual offsetting compensation ratio used in any particular case will 
depend on a variety of factors unique to the circumstance at hand. The 
1.25-to-1 factor is used in the draft economic analysis as an average 
for the purpose of forecasting future set-aside acres across all 
proposed critical habitat. Given that this estimate is based on the 
full population of formal consultations concerning residential 
development and the arroyo toad, it represents the best information 
available during the preparation of the draft economic analysis.
    (68) Comment: A number of comments state that the draft economic 
analysis does not rely on appropriate real estate values to estimate 
land value losses from critical habitat designations.
    Our Response: The draft economic analysis estimates the per-acre 
value of raw, unimproved, and residentially zoned land at 11 percent of 
the built value. The Service recognizes that the value of raw land as a 
percent of home price will depend on a variety of factors and can 
differ significantly by region. In general, raw land values for single-
family homes of equal density are higher in areas with high land supply 
constraints. However, raw land values as a percent of home price also 
declines as density and development costs increase.
    The draft economic analysis calculates residual land value based on 
an analysis that subtracts hard and soft real estate development costs 
from home prices in Southern California counties. The average home 
prices per county is based on data from Rand in

[[Page 19573]]

2002, the most recent year available, and inflated to 2004 dollars. 
Development cost estimates are based on data from Square Foot Costs by 
RSMeans. Rand reports the median price per square foot for single-
family homes by county calculated from California Association of 
Realtors transaction records. Residential values are assumed to 
appreciate at a rate of 3.4 percent per year in real terms (i.e., 
adjusted for inflation) over the next 21 years, or through 2025. To the 
extent that actual residual land values are higher or lower than those 
projected, the economic impacts will change accordingly.
    (69) Comment: One commenter stated that the draft economic analysis 
fails to account for the limited supply of developable land and the 
corresponding impact on the Southern California housing market.
    Our Response: The draft economic analysis evaluates the potential 
for critical habitat designation to reduce consumer surplus by 
increasing real estate market prices. The analysis concludes that 
critical habitat designation will not affect regional real estate 
markets or prices, and thus consumer surplus, because the total 
reduction in land supply is expected to represent a very small 
component of total future market demand in the region. Specifically, 
the estimated amount of developable acres of habitat set-aside within 
critical habitat designation is estimated at about 0.7 percent of 
future market growth through 2025 in the eight counties where arroyo 
toad critical habitat designation is proposed. Supply adjustments by 
developers, including increased density and/or project 
reconfigurations, are likely to further cancel the market impact of the 
relatively small land supply reduction created by critical habitat 
designation.
    (70) Comment: One commenter stated that the draft economic analysis 
should consider costs at the census tract level.
    Our Response: The draft economic analysis relies on the official 
real estate growth projections provided by SCAG, SANDAG and other 
regional agencies supported by the governmental jurisdictions located 
within arroyo toad critical habitat designation. These projections 
reflect economic and demographic trends at the county and regional 
level and incorporate local zoning and land use data at the census 
tract level. The draft economic analysis assumes that county-wide 
economic and demographic trends are the primary determinant of real 
estate prices. The draft economic analysis also acknowledges that the 
regional land supply is scarce relative to projected growth in several 
counties within the critical habitat designation. However, since the 
reduction in land supply resulting from critical habitat designation 
represents such a small fraction of the total market, the draft 
economic analysis assumes that it will not alter these regional market 
dynamics, or increase market prices resulting in consumer surplus 
losses.
    (71) Comment: One commenter stated that the draft economic analysis 
focuses solely on the losses experienced by landowners as a result of 
critical habitat designation for the arroyo toad. In reality, housing 
projects generate a considerable amount of consumer surplus, and the 
temporary loss of this surplus is a major adverse effect of delay.
    Our Response: The draft economic analysis does not calculate 
consumer surplus losses associated with delay for a variety of reasons. 
First, it is possible that consumers will not experience any delay in 
the consumption of housing given the negligible effect arroyo toad 
critical habitat designation is expected to have on overall housing 
markets (i.e., a variety of housing options exist and consumers may 
substitute between locations). Second, even if the real estate 
purchases of consumers are delayed, only a very small proportion of 
consumer surplus is likely to be lost as the delay period (estimated at 
six months in the first year after designation) is likely to be a small 
proportion of the ownership time horizon. Finally, consumer surplus 
losses due to delay, if any, are difficult to quantify.
    (72) Comment: Several comments question the draft economic analysis 
estimates regarding the amount of land within arroyo toad critical 
habitat designation that would be developed absent arroyo toad 
conservation activities.
    Our Response: The draft economic analysis relies primarily on 
development projections generated by SCAG and SANDAG to determine the 
number of acres slated for real estate development. The draft economic 
analysis only evaluates the impact of the proposed designation on land 
that is within the critical habitat designation and forecasted (by SCAG 
or SANDAG) to be developed by the year 2025. These projections suggest 
that absent critical habitat designation a significant portion of the 
proposed critical habitat designation will not be developed by 2025.
    Though SCAG and SANDAG projections do rely on general plan and 
zoning information, these projections may not reflect very recent 
amendments and changes. In reality, specific projects not anticipated 
in the SCAG and SANDAG forecasts may be developed, just as other 
projects included in these forecasts may never materialize. An 
evaluation of every local land use plan or proposal that could 
potentially affect arroyo toad critical habitat designation, and its 
probability of success, is beyond the scope of the draft economic 
analysis and would not likely lead to more accurate results. SCAG and 
SANDAG represent the best publicly available data sources reporting 
future land development within the proposed arroyo toad critical 
habitat designation.
    In addition, it is important to note that the draft economic 
analysis estimates future offsetting compensation (i.e., land set-
aside) for arroyo toad impacts based on development projections and an 
offsetting compensation ratio. The estimated compensation for impacts 
to the arroyo toad is not in addition to specific measures already 
negotiated by regulators and project proponents. That is, in some 
cases, the draft economic analysis may estimate offsetting compensation 
when compensation has already been agreed upon by regulators and 
project proponents. The impacts estimated in the draft economic 
analysis should not be added to these existing agreements.
    (73) Comment: One commenter stated that the draft economic analysis 
does not consider cumulative effects of the proposed rule.
    Our Response: The draft economic analysis only evaluated potential 
effects of the rulemaking, however, we did take into consideration the 
potential efffects of overlaping designations while evaluating 
potential exclusions from the designation under section 4(b)(2) of the 
Act.
    (74) Comment: One commenter stated that the draft economic analysis 
ignores arroyo toad-related delay impacts associated with 
transportation projects.
    Our Response: Major road projects generally occur over a very long 
time horizon and require interaction with and support from variety of 
local, State, and Federal agencies, including environmental review 
(i.e., CEQA/NEPA). Arroyo toad critical habitat designation is one of 
many issues that will need to be addressed and resolved during the long 
time frame associated with the project approval, entitlement, and 
funding process. Although arroyo toad critical habitat designation may 
increase the costs associated with the construction or completion of a 
major road project, it is not expected to extend the normal time frame 
for a project of

[[Page 19574]]

this nature. Consequently, the draft economic analysis does not 
estimate project delay costs associated with road construction 
projects.
    (75) Comment: One commenter stated that the draft economic analysis 
ignores impacts on the Foothill Eastern Transportation Corridor Agency 
(TCA).
    Our Response: While the draft economic analysis does not refer to 
TCA projects explicitly, the draft economic analysis does estimate 
future costs associated with road projects in critical habitat 
designation Units 10 and 11. These costs reflect estimated economic 
impacts borne by major road projects occurring within those areas. The 
costs of arroyo toad conservation activities on local (non-arterial) 
roads construction projects are not estimated separately in the draft 
economic analysis. Rather, these costs are assumed to be captured in 
the reduced land-value estimates.
    The estimate of future road projects is based on an extrapolation 
of SANDAG transportation planning data to the entire study area. This 
approach was developed based on the best readily available data at the 
time of the draft economic analysis, given the resources allotted to 
the study. While it is possible that detailed information on specific 
planned or proposed road projects may be missed given this methodology, 
it is also possible that the draft economic analysis includes costs for 
projects that may in fact never materialize as projected. Overall, the 
Service believes that the approach utilized in the draft economic 
analysis represents a reasonable estimate of future road project costs.
    The draft economic analysis also assumes that arroyo toad 
conservation activities are unlikely to have an appreciable affect on 
regional mobility. Consequently, the draft economic analysis does not 
attempt to measure the economic cost associated with reduced 
transportation accessibility.
    (76) Comment: One commenter stated that the draft economic analysis 
should consider the implications of the Gifford Pinchot Task Force v. 
US Fish and Wildlife Service litigation.
    Our Response: The draft economic analysis acknowledges that a 
recent Ninth Circuit judicial opinion, Gifford Pinchot Task Force v. 
United States Fish and Wildlife Service, has invalidated the Service's 
regulation defining destruction or adverse modification of critical 
habitat. The Service is currently reviewing the decision to determine 
what effect it (and to a limited extent Center for Biological Diveristy 
v. Bureau of Land Management (Case No. C-03-2509-SI, N.D. Cal.)) may 
have on the outcome of consultations pursuant to section 7 of the Act.
    (77) Comment: One commenter stated that the draft economic analysis 
fails to estimate economic impacts of critical habitat designation on 
tribal reservation lands.
    Our Response: The draft economic analysis estimates economic 
impacts attributable to arroyo toad critical habitat designation on 
tribal land. For example, development projections covering tribal lands 
are relied upon to estimate real estate development costs, 
infrastructure costs and road construction costs. However, due to data 
limitations, the impacts to tribal entities are not presented 
separately.
    (78) Comment: The Service fails to use the proper baseline for the 
analysis.
    Our Response: The draft economic analysis estimates the total cost 
of species conservation activities without subtracting the impact of 
pre-existing baseline regulations (i.e., the cost estimates are fully 
co-extensive). That is, the draft economic analysis complies with 
direction from the U.S. 10th Circuit Court of Appeals.
    (79) Comment: One commenter refuted the draft economic analysis 
assumption that land contained within the 100-year floodplain is the 
most likely to be undevelopable even in the absence of arroyo toad 
conservation activities.
    Our Response: FEMA defines floodplains as Special Flood Hazard 
Areas and places special requirements on development. The lowest floor 
of all new residential buildings in the floodplain must be at or above 
the level of the 100-year flood, in order to qualify for FEMA-backed 
insurance. Non-residential buildings must be at or above the level of 
the 100-year flood, or be flood-proofed to that level. FEMA defines 
minimum requirements; local jurisdictions may place additional 
restrictions on construction. Given these requirements, floodplain 
development is more expensive than development outside the floodplain 
making it more likely to be set aside to compensate for impacts to 
arroyo toad habitat.
    As noted in the draft economic analysis, development rarely occurs 
on 100 percent of the project area assembled by a developer regardless 
of what degree of arroyo toad protection is in place. A development 
site will naturally include a relatively large portion of undeveloped 
acres set aside for a variety of factors, including slope, avoidance of 
hydrologic features (e.g., flood areas, wetlands, drainage channels), 
parcel configuration, and creation of ``amenity features'' such as 
landscaping, parks, and open space. The draft economic analysis uses 
the 100-year flood plain as a proxy for the ``low quality'' land that 
would not have been developed in the absence of arroyo toad habitat. In 
reality, some 100-year flood plain land will be developed while other 
areas outside the flood plain will not, due to other natural or 
geological factors. Nonetheless, GIS-based 100-year flood plain data 
represents the best available data upon which to estimate the 
proportion of ``high-quality'' to ``low-quality'' land within critical 
habitat.
    (80) Comment: One commenter stated that the draft economic analysis 
fails to consider whether floodplain land might carry a development 
premium due to its proximity to rivers and streams.
    Our Response: The draft economic analysis relies on land values 
calculated at the county level. While there may be a land value premium 
associated with proximity to a variety of different amenities, 
estimation of such a premium is beyond the scope of the draft economic 
analysis.
    (81) Comment: One commenter points out that floodplain boundaries 
change over time.
    Our Response: While floodplain boundaries are likely to change over 
time, it is impossible to accurately predict specific changes a-priori. 
The draft economic analysis relies on the most recent FEMA floodplain 
boundary data available.
    (82) Comment: One commenter stated that the draft economic analysis 
does not consider land use conversion from grazing to vineyard.
    Our Response: No publicly available data projects future vineyard 
development (or other agricultural production) in specific geographic 
areas. In addition, no historical formal biological opinions address 
the effect on the arroyo toad of land conversion to agriculture. Thus, 
the draft economic analysis does not address potential economic effects 
from agricultural development. If arroyo toad critical habitat 
designation does affect the feasibility of proposed agriculture 
conversion activities, the economic impacts would be in addition to 
those estimated by the draft economic analysis.
    (83) Comment: One commenter stated that the draft economic analysis 
should consider the potential economic loss from closure of the Rancho 
Sisquoc cattle operation.
    Our Response: The draft economic analysis estimates that project 
modifications requested for the arroyo toad conservation on the Sisquoc 
grazing allotment would have cost about $422,000. Because the allotment 
was

[[Page 19575]]

abandoned, the draft economic analysis assumes that project proponents 
found the project modifications cost prohibitive. This suggests that 
the value of the ranching activity on the Sisquoc allotment is less 
than the $422,000 impact reported by the draft economic analysis.
    (84) Comment: Several commenters stated that the draft economic 
analysis incorrectly reports that the Soledad Canyon sand and gravel 
mining project has been denied local permits by Los Angeles County, 
when in fact the project has been approved.
    Our Response: Local permits for the mining project was denied in 
2002 due to a variety of factors, including environmental review 
procedures, water quality, and proximity to urban development. At the 
time research was conducted for the draft economic analysis, the 
project remained unapproved. However, during the public comment period, 
project proponents informed the Service that the project was approved 
in June of 2004. The project is likely to result in additional costs 
associated with arroyo toad conservation that are not included in the 
draft economic analysis.
    (85) Comment: Several commenters stated that the draft economic 
analysis does not consider the potential for critical habitat 
designation to reduce the size of the Soledad Canyon sand and gravel 
mining project.
    Our Response: The draft economic analysis relies on historical 
biological opinions addressing mining projects in order to forecast 
conservation activities associated with similar projects in the future. 
In the case of the Soledad Canyon sand and gravel mining project, the 
Service issued a biological opinion in 2001 that requested various 
arroyo toad conservation activities. However, the biological opinion 
did not explicitly request a reduction in the size of the mining 
project. While the designation of critical habitat may trigger the 
reinitiation of the project consultation and result in additional 
measures to protect the arroyo toad, it is difficult to predict whether 
the additional measures will include a reduction in the size of the 
project. Furthermore, because no historical biological opinions 
addressing mining projects have resulted in a significant reduction in 
project size exclusively for the protection of the arroyo toad, there 
is no data or basis for forecasting such impacts. To the extent that 
reinitiation of the Soledad Canyon consultation results in a reduction 
in the size of the project due to the arroyo toad, there will be 
economic costs associated with the foregone mining opportunity that are 
not included in the draft economic analysis.
    (86) Comment: Several commenters stated that the designation does 
not adequately estimate costs associated with delays in permitting of 
mining projects.
    Our Response: The draft economic analysis assumes that given 
sufficient knowledge of the regulatory environment, the various 
administrative activities associated with the Act can generally be 
coordinated with other regulatory processes and do not necessarily 
increase the time to obtain approvals.
    (87) Comment: One commenter stated that critical habitat 
designation may create an additional administrative burden on mining 
projects due to increased litigation.
    Our Response: The draft economic analysis only considers costs that 
are reasonably foreseeable. While critical habitat designation may 
stimulate additional legal actions, there is no data to support this 
theory or estimate impacts. The number, scope and timing of potential 
legal challenges associated with the rulemaking would be difficult to 
quantify.
    (88) Comment: One commenter stated that the draft economic analysis 
is unclear regarding the basis of impacts to water management at 
Loveland and Cuyamaca Reservoir and how impacts are calculated.
    Our Response: In the future, the Service may request specific water 
management changes within arroyo toad critical habitat designation. The 
draft economic analysis assumes that the Service will request that the 
managers of the Loveland and Cuyamaca Reservoirs forego water releases 
during the arroyo toad breeding season to avoid impacts. The draft 
economic analysis calculates economic impacts based on the assumption 
that the Service will request that these water managers not conduct 
major water releases water during the arroyo toad breeding season 
(i.e., March 15 through June 15). The draft economic analysis 
conservatively estimates that 50 percent of the foregone release volume 
will require replacement due to losses from percolation and 
evaporation. To calculate the expected water release volume during the 
breeding season, the analysis relies on historical water release data 
provided by the Sweetwater Authority and the Helix Water District. 
Expected water releases in the future are calculated based on 
historical averages.
    (89) Comment: Several commenters stated that the draft economic 
analysis adjusts water losses resulting from foregone releases using an 
arbitrary percentage.
    Our Response: In some cases, water releases may be conducted during 
winter months rather than during the breeding season. This operational 
flexibility may allow water managers to avoid cost impacts associated 
with arroyo toad conservation. The adjustment of water losses is 
intended to reflect the potential for operational flexibility in water 
system management. Due to uncertainty concerning the degree of 
operational flexibility, the draft economic analysis presents a 
sensitivity analysis addressing this assumption.
    (90) Comment: One commenter stated that the draft economic analysis 
fails to recognize that if more imported water is used, then less water 
will be available for water purveyors and water dependent species.
    Our Response: Water used (or lost) as a result of arroyo toad 
conservation activities will be a small proportion of total water 
demands, as discussed on page 58 of the draft economic analysis. While 
there may be localized supply impacts, the location and economic 
implication of such constraints are difficult to determine. Overall, 
these impacts are not expected to be significant.
    (91) Comment: One commenter stated that the draft economic analysis 
fails to recognize that water supplies are limited, especially during 
drought conditions. The commenter suggests that supply constraints will 
increase the economic burden on water agencies.
    Our Response: The draft economic analysis estimates costs to water 
managers based on average conditions. In reality, some years are wetter 
or dryer than others. Special operational constraints affecting water 
managers in dry years or drought years are not analyzed by the draft 
economic analysis. Development of an economic analysis evaluating all 
water-year types for each water agency and district affected by 
critical habitat designation is beyond the scope of the draft economic 
analysis. Dry-year constraints may create an additional economic burden 
for water managers.
    (92) Comment: One commenter stated that the draft economic analysis 
relies upon incorrect water replacement prices.
    Our Response: EPS contacted water managers to determine water 
replacement costs in areas expected to be affected by arroyo toad 
conservation efforts. The draft economic analysis relies on these 
reported costs. If the actual cost of water is higher (or lower) than 
the reported cost, the economic impacts will also be higher (or lower).

[[Page 19576]]

    (93) Comment: One commenter stated that the draft economic analysis 
fails to consider operational constraints related to dam safety and 
other protected species at Cuyamaca Reservoir.
    Our Response: The draft economic analysis assumes that the Service 
will request that water managers forego major water releases from 
Cuyamaca Reservoir during the arroyo toad breeding season. However, in 
reality the Service may need to alter this request to account for site-
specific factors. This level of detail is beyond the scope of the draft 
economic analysis. The economic implications of site specific 
constraints on arroyo toad conservation are unknown.
    (94) Comment: One commenter stated that the draft economic analysis 
fails to consider economic impacts borne by Helix Water District due to 
potential management changes at El Capitan Reservoir.
    Our Response: The draft economic analysis estimates costs 
associated with potential management changes at El Capitan Reservoir. 
It is possible that some of these estimated costs will be passed on to 
the Helix Water District, affecting the distribution of economic 
impacts rather than the total economic impact.
    (95) Comment: One commenter stated that the draft economic analysis 
fails to include significant additional costs to water managers 
attributable to additional consultations and increased scrutiny from 
the California Department of Fish and Game and the Army Corps of 
Engineers.
    Our Response: While it is possible that critical habitat 
designation will increase scrutiny of water operations, any associated 
economic impacts are primarily administrative and not reasonably 
foreseeable. The draft economic analysis does not estimate these 
impacts due to their speculative nature.
    (96) Comment: One commenter stated that pipeline construction costs 
do not consider economic effects from potential mitigation measures, 
delay or uncertainty.
    Our Response: Because pipeline construction is intended to benefit 
the arroyo toad, the Service is unlikely to request additional 
mitigation. The historical record for arroyo toad protection by the 
Service supports this assumption. Consequently, the draft economic 
analysis does not estimate additional impacts associated with pipelines 
intended to improve habitat for the arroyo toad.

Summary of Changes From the Proposed Rule

    In developing the final designation of critical habitat for the 
arroyo toad, we reviewed public comments received on the proposed 
designation of critical habitat published on April 28, 2004, and 
revisions to proposed critical habitat and the draft economic analysis 
published on February 14, 2005 (70 FR 7459); conducted further 
evaluation of lands proposed as critical habitat; refined our mapping 
methodologies; and excluded additional essential habitat from the final 
designation. Table 1, included at the end of this section, outlines 
changes in acreages for each subunit. Specifically, we are making the 
following changes to the final rule from the proposed rule published on 
April 28, 2004:
    (1) We mapped critical habitat more precisely by eliminating 
habitat areas of marginal quality that we do not expect to be used by 
arroyo toads. In certain upland locations, we determined that busy, 
paved roads and railroads constituted barriers to toad movement into 
the uplands. These roads and railroads were found in areas of 
relatively steep slopes and were supported by steeply-constructed 
embankments. Where marginal upland habitat was found behind these 
barriers, it was removed from critical habitat because we did not 
consider it essential to the arroyo toad population. This more precise 
examination of essential areas led to a modest reduction in total 
designated critical habitat acreage from the proposed rule.
    (2) Although we attempted to remove as many developed areas (areas 
that have no value as arroyo toad habitat) as possible before 
publishing the proposed rule, we were not able to eliminate all 
developed areas. Since publication of the proposed rule, we were able 
to further eliminate a small amount of developed area, which has 
resulted in a more precise delineation of essential habitat containing 
one or more of the primary constituent elements. This resulted in a 
minor reduction in the total acreage published in the proposed rule. 
However, it is not possible to remove each and every one of these 
developed areas even at the refined mapping scale used: therefore, the 
maps of the designation still include areas that do not contain primary 
constituent elements. These areas are not being designated as critical 
habitat.
    (3) In some cases, the 82-foot (ft) (25-meter (m)) elevation 
criteria in the model used to determine the extent of the essential 
upland habitat for arroyo toads extended the upstream or downstream 
critical habitat boundary beyond the starting and ending points of the 
essential stream segment (i.e., into areas containing habitat of lower 
quality). These areas were not intended to be included as critical 
habitat and were removed from the designation, leading to a minor 
reduction in the total acreage published in the proposed rule.
    (4) We revised the criteria used to identify essential upland 
habitat. We modified the model to capture upland habitat up to a 1,640 
ft (500 m) distance from the essential stream, rather than a 4,921 ft 
(1,500 m) distance, if the 82-ft (25-m) elevation limit had not yet 
been reached. In a majority of the stream reaches, the model reached 
the 82-ft (25-m) elevation limit before it reached the 1,640 ft (500 m) 
distance from the essential stream, and therefore the distance limit 
was often not a factor.
    We based this 1,640 ft (500 m) distance limit on the results of an 
arroyo toad study on Marine Corps Base, Camp Pendleton (Camp Pendleton) 
in San Diego County (Holland and Sisk 2000), which is the most indepth, 
complete study of the distribution and use of upland habitat by arroyo 
toads. Holland and Sisk (2000) used extensive pitfall trap arrays at 
various distances from a riparian wash area to document toad use of 
adjacent upland areas. They captured approximately 12 percent of their 
toads in the upland areas, while the rest were caught in the riparian 
wash. Of the toads caught in uplands areas, 68 percent of the toads 
were captured within 1,640 ft (500 m) of the riparian wash. Although 
the absolute maximum distance toads may travel cannot be determined by 
the pitfall trapping method, a few toads were caught at distances 
greater than 3,281 ft (1,000 m) from the riparian wash area. Since it 
is not our intent to capture the maximum distance that toads have been 
recorded to travel from riparian areas as critical habitat, we have 
determined that upland habitat up to 1,640 ft (500 m) from riparian 
areas is habitat that is essential for the arroyo toad.
    (5) We revised the criteria used to identify essential stream 
reaches. Upstream areas from known occupied sites were removed from the 
designation. Under the Act, the Secretary of the Interior may only 
include lands if she finds that those lands are essential to the 
conservation of the species. In the case of the arroyo toad, and based 
on the best scientific data available, it was not possible for the 
Secretary at this time to make such a determination for upstream areas 
that were not known to be occupied by the arroyo toad. We defined 
essential occupied areas as those areas within

[[Page 19577]]

approximately 0.7 miles (1.1 km) up and down stream from where the 
species is known to have occurred at the time of listing or 
subsequently. The arroyo toad was listed as an endangered species in 
1994, and we define ``at the time of listing'' for the arroyo toad as 
the period from 1974 to 1994. The 0.7 mile (1.1 km) movement distance 
was selected from a variety of studies demonstrating that arroyo toads 
will move this distance over the course of a year or so (Sweet 1993; 
Griffin 1999; Holland and Sisk 2001; Ramirez 2002a; Hitchcock et al. 
2004). The upper-bounds of essential streams were defined by the 
uppermost toad occurrence in a stream with its corresponding 0.7 mile 
(1.1 km) movement distance. Any proposed critical habitat areas not 
known to be occupied that were upstream from this were removed from 
designated critical habitat. This resulted in the removal of several 
upstream areas previously proposed as critical habitat in a number of 
units, but was greatest in (sub) units 2, 5a, 6c, 8, 10a, 11a, 12b, 13a 
and b, 16c and d, 17a, 17d, 18a, 19a and d, 20, 21, 22a, and 23. 
(Sub)units 7a, 17b, 17c, and 18d were completely removed from critical 
habitat because these (sub)units were not known to be occupied. We did 
not truncate or remove any critical habitat downstream from known 
observations because toads, particularly tadpoles, have been known to 
be washed downstream, particularly during rain events, into suitable 
habitat.
    (6) In subunit 6b, we have determined that San Francisquito Creek 
above the Newhall Ranch Road bridge does not contain the primary 
constituent elements of arroyo toad critical habitat. It is drier than 
we had originally thought and lacks surface water for a sufficient 
duration during the spring time of most years to allow for arroyo toad 
tadpole development. Thus, this portion of San Francisquito Creek, 
which was included in the proposed rule, does not provide breeding 
habitat for arroyo toads and we no longer consider it to be essential 
for the conservation of the species. This resulted in a reduction of 
1,463 acres in subunit 6b. Below the Newhall Ranch Road bridge, arroyo 
toads inhabiting the Santa Clara River may disperse into lower San 
Francisquito Creek to forage and aestivate; we still consider this 
reach of San Francisquito Creek to be essential habitat.
    (7) We no longer consider the arroyo toad habitat within subunit 
22b, a stretch of the Mojave River running through Victorville in San 
Bernardino County, to be essential to the conservation of the species 
and have therefore removed this subunit from the final designation. 
Although we do not have new data concerning arroyo toads in this area, 
we further analyzed and reevaluated the existing data (and lack 
thereof) to arrive at this decision. This subunit runs through the 
relatively urbanized area of Victorville and involves numerous private 
landowners. Much of the upland habitats along the Mojave River in this 
area have been developed, and even areas within the floodplain have 
been developed, which are protected by levees. Exotic predators of the 
arroyo toad have also invaded this portion of the river. Additionally, 
the occupancy of subunit 22b by arroyo toads is questionable at best. 
Arroyo toads were rumored to occur in the Victorville area sometime 
during the 1990s, probably associated with the last significant El 
Ni[ntilde]o event; however, there have been no confirmed reports from 
this area since 1982. The recovery plan (Service 1999) states that 
arroyo toads are presumed extinct in this reach.
    (8) We excluded several areas under Section 4(b)(2) of the Act and 
exempted several areas under section 4(a)(3) of the Act from the final 
critical habitat designation (see the Application of Sections 3(5)(A) 
and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for 
a detailed discussion). This is the primary source of reduction in 
total designated critical habitat acreage that was identified in the 
proposed rule. Exemptions under section 4(a)(3) included portions of 
Units 11 and 12 on Marine Corps Base, Camp Pendleton and portions of 
Unit 12 on Naval Weapons Station, Seal Beach, Detachment Fallbrook 
based on their approved INRMPs. Exclusions pursuant to section 4(b)(2) 
based on economic considerations included all of Units 3, 5, 6, 7, 10, 
13, 14, 15, 16, 17, 18, 19, and 22 and portions of Units 11 and 12. 
Other exclusions pursuant to section 4(b)(2) based on approved HCPs 
included Unit 8 (Orange County Central-Coastal Subregional HCP/NCCP) 
and portions of Unit 9 (Western Riverside MSHCP) and based on a nearly 
completed HCP included portions of Unit 23 (pending Coachella Valley 
MSHCP). Several portions of units that were formerly excluded in the 
proposed rule for being under approved HCPs or in the revised proposed 
rule for private lands covered under special management plans that were 
beneficial to the arroyo toad were changed in the final rule to be 
solely excluded for economic considerations pursuant to section 
4(b)(2). This change included portions of Units 6, 13, 16, 17, 18, 19, 
and 22.

                              Table 1.--Critical Habitat Units for the Arroyo Toad
----------------------------------------------------------------------------------------------------------------
                                                                                 Proposed rule
    Critical habitat units/subunits                     County                     (April 28,    Final rule  ac;
                                                                                 2004)  ac; ha          ha
----------------------------------------------------------------------------------------------------------------
1. San Antonio River..................  Monterey..............................     6,546; 2,649                0
2. Sisquoc River......................  Santa Barbara.........................     6,574; 2,660     4,800; 1,942
3. Upper Santa Ynez River Basin.......  Santa Barbara.........................     4,414; 1,786                0
4. Sespe Creek........................  Ventura...............................     4,138; 1,675     4,008; 1,622
5. Piru Creek.........................  Ventura, L.A..........................    3,966; 1,6050                0
6. Upper Santa Clara River Basin......  Los Angeles...........................     7,398; 2,994                0
7. Upper Los Angeles River Basin......  Los Angeles...........................     4,213; 1,705                0
8. Black Star and Baker Creeks........  Orange................................          172; 69                0
9. San Jacinto River Basin/Bautista     Riverside.............................         683; 277         700; 283
 Creek.
10. San Juan Creek Basin..............  Orange, Riverside.....................     6,285; 2,543                0
11. San Mateo Basin...................  Orange, San Diego.....................     4,580; 1,853                0
12. Lower Santa Margarita Basin.......  San Diego.............................       1,840; 744                0
13. Upper Santa Margarita Basin.......  Riverside, San Diego..................     3,628; 1,468                0
14. Lower and Middle San Luis Rey       San Diego.............................    15,376; 6,222                0
 Basin.
15. Upper San Luis Rey Basin..........  San Diego.............................    11,725; 4,745                0
16. Santa Ysabel Creek................  San Diego.............................    11,080; 4,484                0
17. San Diego River Basin.............  San Diego.............................       2,309; 934                0
18. Sweetwater River Basin............  San Diego.............................     9,235; 3,737                0

[[Page 19578]]

 
19. Cottonwood Creek Basin............  San Diego.............................    15,800; 6,394                0
20. Upper Santa Ana River Basin/Cajon   San Bernardino........................       1,263; 511       1,119; 453
 Wash.
21. Little Rock Creek.................  Los Angeles...........................         941; 381         734; 297
22. Upper Mojave River Basin..........  San Bernardino........................    14,550; 5,848                0
23. Whitewater River..................  Riverside.............................       1,997; 808         333; 135
    Totals............................  ......................................  138,713; 56,133    11,695; 4,733
----------------------------------------------------------------------------------------------------------------

Critical Habitat

    Critical habitat is defined in section 3(5)(A) 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 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
that are necessary to bring an endangered or a threatened species to 
the point at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are ``essential to the conservation of the 
species.'' Critical habitat designations identify, to the extent known 
using the best scientific and commercial data available, habitat areas 
that provide essential life cycle needs of the species (i.e., areas on 
which are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Specific areas within the geographic area occupied by the species 
at the time of listing may be included in critical habitat only if the 
essential features thereon may require special management or 
protection. Thus, we do not include areas where existing management is 
sufficient to conserve the species. (As discussed below, such areas may 
also be excluded from critical habitat pursuant to section 4(b)(2).) 
Accordingly, when the best available scientific and commercial data do 
not demonstrate that the conservation needs of the species so require, 
we will not designate critical habitat in areas outside the geographic 
area occupied by the species at the time of listing. An area currently 
occupied by the species but was not known to be occupied at the time of 
listing will likely be essential to the conservation of the species 
and, therefore, included in the critical habitat designation.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
and our associated Information Quality Guidelines, provides criteria 
and guidance, and establishes procedures to ensure that our decisions 
represent the best scientific and commercial data available. Our 
biologists are required, to the extent consistent with the Act and with 
the use of the best scientific and commercial data available, to use 
primary and original sources of information as the basis for 
recommendations to designate critical habitat. When determining which 
areas are designated as critical habitat, a primary source of 
information is generally the listing package for the species. 
Additional information sources include a recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties or other entities that develop HCPs, scientific 
status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge. All 
information is used in accordance with the provisions of Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information 
Quality Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas that are 
essential to the conservation of the arroyo toad. Our methods for 
identifying the arroyo toad critical habitat included in this final 
designation are those methods we used to make our final designation for 
this species on February 7, 2001 (66 FR 9414) and in our subsequent 
proposal of critical habitat for the arroyo toad, published on April 
28, 2004 (69 FR

[[Page 19579]]

23253) as modified in accordance with our discussion in the Summary of 
Changes section above. In addition, we used information and data (such 
as newly obtained survey results; San Marino Environmental Associates 
1995, RECON 1999, Compliance Biology 2004) received during the public 
comment periods following both the April 28, 2004, proposed rule and 
the February 14, 2005, revisions to proposed critical habitat and 
notice of availability of the draft economic analysis, and 
communications with individuals inside and outside the Service who are 
knowledgeable about the species and its habitat needs.
    We have also reviewed available information that pertains to the 
habitat requirements of this species, including material received since 
completion of the recovery plan. The 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; occupied and 
potential habitat maps developed by the Forest Service (Forest Service 
2000); 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 
predictive habitat suitability map for San Diego County (Barto 1999).

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 designate 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 (PCEs)) 
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, and 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.
    The specific PCEs required for the arroyo toad are derived from the 
biological needs of the arroyo toad as described in the Background 
section of the proposed rule (69 FR 23253). These specific biological 
and physical features, or PCEs, which are essential to the conservation 
of the arroyo toad are described below. Identified lands provide 
aquatic and terrestrial habitat containing the essential PCEs 
supporting the maintenance of self-sustaining populations and 
metapopulations (a set of local populations or breeding sites within an 
area, where typically migration from one local population or breeding 
site to other areas containing suitable habitat is possible, but not 
routine) of arroyo toads throughout its range.

Space for Individual and Population Growth, and for Normal Behavior

    The arroyo toad is found along medium-to-large-sized streams in 
coastal and desert drainages in central and southern California and 
Baja, Mexico. It occupies aquatic, riparian (areas near a source of 
water), and upland habitats within its range. Suitable habitat for the 
arroyo toad is created and maintained by the fluctuating hydrological, 
geological, and ecological processes operating in riparian ecosystems 
and the adjacent uplands. 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. Periodic flooding helps maintain areas of open, sparsely 
vegetated, sandy stream channels and terraces (Sweet 1992; Griffin and 
Case 2001).
    Eggs and tadpoles require aquatic habitat, as described below under 
``Sites for Breeding, Reproduction and Rearing of Offspring.'' Juvenile 
and adult arroyo toads require and spend much of their lives in 
riparian and upland habitats adjacent to breeding locations. Riparian 
habitats used by subadults and adults for foraging and burrowing year 
round include sand bars, alluvial terraces, and streamside benches that 
lack vegetation, or are sparsely to moderately vegetated (Sweet 1992; 
Holland and Sisk 2001). Upland habitats used by arroyo toads during 
both the breeding and nonbreeding seasons include alluvial scrub, 
coastal sage scrub, chaparral (shrubby plants adapted to dry summers 
and moist winters), grassland, and oak woodland (Griffin and Case 
2001). Arroyo toads also have been found in agricultural fields 
(Griffin 1999), but these lands may constitute sinks (areas where 
mortality rates are higher than reproduction rates) over the long-term, 
due to tilling, pesticide and fertilizer applications, and heavy 
equipment use (Griffin and Case 2001).
    The substrate in habitats preferred by arroyo toads consists 
primarily of sand, fine gravel, or pliable soil, with varying amounts 
of large gravel, cobble, and boulders. Areas that are damp and have 
less than 10 percent vegetation cover provide the best conditions for 
juvenile survival and rapid growth (Sweet 1992). Arroyo toads must be 
able to move between the stream and upland foraging sites, as well as 
up and down the stream corridor. Holland and Sisk's (2001) study on 
arroyo toad habitat use in coastal San Diego County revealed toads 
traveling considerable distances (up to at least 0.71 mi (1.14 km)) 
from the edge of the upland/riparian ecotone (i.e., boundary or 
interface). In all study areas, they found that toads were captured as 
far out as the pitfall trap arrays were set for them: 0.71 mi (1.14 km) 
at Cristianitos Creek (east side), 0.56 mi (0.9 km) at Cristianitos 
Creek (west side), and 0.37 mi (0.6 km) at Santa Margarita River. Given 
the contiguous nature of the habitat beyond where the traps were set, 
toads may have traveled farther from the riparian area had the pitfall 
arrays been set further back and not limited in distribution. Arroyo 
toads use a wide range of upland vegetation types, including chaparral, 
coastal sage scrub, oak woodland, grasslands, agricultural lands, and 
ruderal/disturbed areas for foraging, burrowing, and aestivating 
(Griffin and Case 2001; Holland and Sisk 2001). Friable or readily 
crumbled soils that allow toads to burrow are oftentimes patchily 
distributed in the upland areas. Upland areas not containing friable 
soils are still important for toads because they may still contribute 
as foraging grounds where toads can hunt for their prey or migration 
areas between foraging, burrowing, or aestivating areas; toads may also 
occupy the burrows of other animals in areas where the soils are too 
hard for them to burrow into (Griffin 1999).
    Within stream and river movements by arroyo toads is another 
important aspect of their life history. Arroyo toads move within 
streams and rivers to find suitable breeding and foraging habitats as 
well as potential mating partners. In some situations, arroyo toad 
larvae swim or are flushed down stream due to heavy currents (Griffin 
1999). Several radio telemetry studies by Ramirez (2002a, 2002b, 2002c) 
documented toads moving on several occasions around 0.7 miles. In one 
instance, a toad was recorded moving 0.6 mile within one week. These 
studies were never

[[Page 19580]]

more than approximately 5 months in duration and therefore it is 
possible that lifetime toad movements could be even longer. Sweet 
(1993) also documented toad movements of at least 0.7 mile before toads 
left his study area. Griffin (1999) documented a toad moving downstream 
0.64 mi (1025 m) over 42 days before escaping its transmitter. Although 
it is well documented that toads can travel 0.7-0.8 mile within a 
stream or river over the course of a season, it is possible that these 
represent minimum distances since anecdotal evidence exists of toads 
recolonizing suitable breeding pools that are of greater distances from 
other breeding pools.

Food and Water

    Arroyo toad tadpoles eat microscopic algae, bacteria, and 
protozoans from the spaces among pebbles, gravel, and sand or abraded 
from stones (Sweet 1992). Juveniles and adults feed on insects, but 
specialize on ants. When foraging, arroyo toads are often found around 
the driplines of oak trees (Sweet 1992). These areas often lack 
vegetation, yet have sufficient levels of prey. When active at night, 
toads often can be observed near ant trails feeding on ants, beetles, 
and other prey.
    Water in the form of shallow pools along streams is essential for 
arroyo toad breeding (see Sites for Breeding, Reproduction and Rearing 
of Offspring below).

Cover or Shelter

    During the day and other periods of inactivity, arroyo toads seek 
shelter by burrowing into the sand (Sweet 1992). Thus, areas of sandy 
or friable (readily crumbled) soils are necessary for the animals to 
burrow, but these soils can be interspersed with gravel or cobble 
deposits. Arroyo toads may also seek temporary shelter under rocks or 
debris and have been found in mammal burrows on occasion (Griffin 
1999). Upland sites with extremely compact soils can also be used for 
foraging and dispersal (D. Holland, in litt. 2000).

Sites for Breeding, Reproduction and Rearing of Offspring

    The arroyo toad has specialized breeding habitat requirements. They 
favor shallow pools located in open sand and gravel channels, along 
low-gradient (typically less than 6 percent) reaches of medium-to-
large-sized streams (Sweet 1992). These streams can have either 
intermittent or perennial streamflow, and typically experience periodic 
flooding that scours vegetation and replenishes fine sediments. In at 
least some portions of its range, the species also breeds in smaller 
streams and canyons where low-gradient breeding sites are more 
sporadically distributed. Breeding pools must persist long enough for 
the completion of larval development (at least in most years), which is 
generally March through June, depending on location and weather. Sweet 
(1992) measured the average age-to-metamorphosis of arroyo toad larvae 
on the Los Padres National Forest at 71 days, with a predicted minimum 
age-to-metamorphosis of 62 days. Most arroyo toads metamorphose during 
June and July in the northern part of the toad's range, and from late 
April through June in the southern portion of its range, although it 
may be later, particularly at higher elevations (D. Holland, in litt. 
2000).
    Breeding arroyo toads lay their eggs in water over substrates of 
sand, gravel, or cobble in open sites such as overflow pools, old flood 
channels, and shallow pools along streams (Sweet 1992). Such habitats 
rarely have closed canopies over the lower banks of the stream channel 
due to periodic flooding events. Heavily shaded pools are generally 
unsuitable for larval and juvenile arroyo toads because of lower water 
and soil temperatures, and poor algal mat development. Pools less than 
12 inches (30 centimeters (cm)) deep with clear water that have flow 
rates less than 0.2 ft per second (5 cm per second), and bottoms 
composed of sand or well-sorted fine gravel, are favored by adults for 
breeding and egg deposition (Sweet 1992). Larvae usually hatch in 4 to 
6 days at water temperatures of 54 to 59 degrees Fahrenheit (12 to 16 
degrees Celsius). Although egg strings are laid in slow moving water, 
larvae (tadpoles) can be found in streams with water velocities of up 
to 1.0 to 1.3 ft per second (30 to 40 cm per second) (Sweet 1992).
    Pursuant to our regulations, we are required to identify the known 
physical and biological features or PCEs, essential to the conservation 
of the arroyo toad, together with a description of any critical habitat 
that is designated. Based on our current knowledge of the life history, 
biology, and ecology of the species and the requirements of the habitat 
to sustain the essential life history functions of the species, we have 
determined that the arroyo toad's primary constituent elements are:
    1. Rivers or streams with hydrologic regimes that supply water to 
provide space, food, and cover needed to sustain eggs, tadpoles, 
metamorphosing juveniles, and adult breeding toads. Specifically, the 
conditions necessary to allow for successful reproduction of arroyo 
toads are:

    a. Breeding pools with areas less than 12 in (30 cm) deep;
    b. Areas of flowing water with current velocities less than 1.3 
ft per second (40 cm per second); and
    c. Surface water that lasts for a minimum length of 2 months in 
most years (i.e., a sufficient wet period in the spring months to 
allow arroyo toad larvae to hatch, mature, and metamorphose).

    2. Low-gradient stream segments (typically less than 6 percent 
slope) with sandy or fine gravel substrates that support the formation 
of shallow pools and sparsely vegetated sand and gravel bars for 
breeding and rearing of tadpoles and juveniles.
    3. 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 breeding pools and terrace habitats with scattered 
vegetation are maintained.
    4. Riparian and adjacent upland habitats (e.g., alluvial scrub, 
coastal sage scrub, chaparral, and oak woodlands, but particularly 
alluvial streamside terraces and adjacent valley bottomlands that 
include areas of loose soil where toads can burrow underground) to 
provide foraging, aestivation, and living areas for subadult and adult 
arroyo toads.
    5. Stream channels and adjacent upland habitats allowing for 
migration between foraging, burrowing, or aestivating sites, dispersal 
between populations, and recolonization of areas that contain suitable 
habitat.
    These aquatic, riparian, and upland habitat PCEs form the bases of 
our critical habitat units. These features are essential to the 
conservation of the arroyo toad. All lands identified as essential and 
designated as critical habitat contain one or more of the PCEs for the 
arroyo toad.

Criteria Used To Identify Critical Habitat

    We are designating critical habitat on lands that we have 
determined are occupied at the time of listing and contain the primary 
constituent elements of the arroyo toad. In a few instances, designated 
areas were not known to be occupied at the time of listing, but have 
been determined to be essential to the conservation of the species and 
have some or all of the toad's primary constituent elements (see unit 
descriptions for specific discussions). Drainage basins containing 
features essential to the conservation of the arroyo toad are generally 
reflected in this final critical habitat designation. This critical 
habitat designation focuses

[[Page 19581]]

on providing sufficient breeding, riparian, and upland habitats for the 
arroyo toad, thus promoting the conditions for maintaining self-
sustaining arroyo toad populations and metapopulations across their 
historic range in California. Since arroyo toads are found in a variety 
of ecologically and geographically distinct areas, it is important to 
preserve the species' genetic diversity as well as the variety of 
ecological environments in which it is endemic.
    We determined an area was essential if it had one or more of the 
following characteristics: (1) Supports a substantial core population 
of arroyo toads; (2) supports at least a small toad population and 
possesses favorable habitat conditions for population expansion and 
persistence; (3) suitable habitat situated in a location that appears 
to be crucial for maintaining the viability of a larger metapopulation; 
(4) occupied habitat on the periphery of the arroyo toad's geographic 
range; and (5) occupied habitat in atypical or underrepresented 
ecological environments (e.g., high elevation or desert-edge 
populations). These areas were known to be occupied at the time of 
listing or subsequently and have one or more of the primary constituent 
elements described above.
    Areas supporting core populations or that have the potential to 
support large populations were determined to be essential because they 
represent the foundation for continued persistence of the species. 
Furthermore, some habitat areas that would not be considered essential 
if geographically isolated, are in fact essential when situated in 
locations where they facilitate continued connectivity and dispersal of 
individuals between surrounding adjacent populations or play a 
significant role in maintaining metapopulation viability (e.g., by 
providing additional areas of occupancy that provide resilience to 
periodic extirpations of adjacent habitat patches) (Hunter 2002). 
Populations on the periphery of the species range or in atypical 
ecological environments are important for maintaining the genetic 
diversity of the species, which is important for evolutionary 
adaptations to changing climatic and environmental conditions (Hunter 
2002).
    To identify and map areas that are essential, we determined areas 
that contained the essential features as described above, used data on 
known arroyo toad locations, and data on movement distances by arroyo 
toads. Arroyo toad locations were from the California Natural Diversity 
Data Base (CNDDB 2005) and information from biologists that have not 
yet been entered into the data base; only locations from the time of 
listing (1974 to 1994) up through the present were used. Spatial data 
on stream gradients with grades less than 6 percent, aerial 
photography, surveys of habitat suitability, and site visits were all 
used to determine the extent of suitable breeding habitat in these 
areas. We identified occupied areas on stream reaches containing 
suitable breeding habitat, along with interspersed, interconnecting 
higher gradient segments, as essential. Occupied areas were defined as 
stream reaches in which the species was observed that contain 
contiguous stretches of suitable habitat. Occupancy extended up to 
approximately 0.7 mile (1.1 km) upstream from the upper-most arroyo 
toad observation to accommodate within-stream movements by toads. The 
0.7 mile (1.1 km) instream movement distance was selected from a 
variety of studies demonstrating that arroyo toads travel this distance 
over the course of about a year (Sweet 1993; Griffin 1999; Holland and 
Sisk 2001; Ramirez 2002a; Hitchcock et al. 2004). Interspersed higher 
gradient stream segments are often patchily distributed within stream 
reaches and were included as essential stream reaches because of their 
proximity to suitable breeding habitat and their importance in 
facilitating movement between breeding sites. The upper most bound of 
an essential stream reach was determined by the upper most occupied 
area. The change in upstream critical habitat areas from the proposed 
critical habitat rule is discussed above in the Summary of Changes from 
the Proposed Rule section.
    To delineate essential upland habitat areas, we used a GIS-based 
modeling procedure to identify alluvial terraces, valley bottomlands, 
and upland habitats adjacent to stream reaches known to be occupied by 
the arroyo toad. Lacking spatially explicit data on geomorphology, we 
used elevation above the stream channel as an indicator of the extent 
of alluvial and upland foraging habitat. After some experimentation, we 
determined that areas up to 82 ft (25 m) in elevation above the stream 
channel were most likely to contain the riparian and upland habitat 
elements essential to arroyo toads. Most arroyo toad activity and 
movement occurred within these areas and steeper slopes away from the 
stream were eliminated. However, in flat areas, we truncated the upland 
habitat delineation at a distance of 1,640 ft (500 m) from the stream 
channel if the 82 ft (25 m) elevation limit had not yet been reached at 
that point. The 82 ft (25 m) elevation limit was reached at distances 
less than 1,640 ft (500 m) from the mapped stream channel along the 
majority of the stream reaches, so the distance limit was often not a 
factor. We based the 82 ft (25 m) or 1,640 ft (500 m) limit on the 
results of an arroyo toad study on Camp Pendleton in San Diego County 
(Holland and Sisk 2000), which is by far the most indepth, complete 
study of the distribution and use of upland habitat by arroyo toads. 
Holland and Sisk (2000) established extensive pitfall trap arrays at 
different distances and locations and operated the traps at different 
times of the year over several years. Eighty-eight percent of the adult 
and sub-adult toads were captured in the riparian wash area. Although a 
few toads were caught at distances of 1,000 m or more from the riparian 
wash area, approximately 68 percent of the arroyo toads found in upland 
habitats were within 1,640 ft (500 m). The change in upland distance 
from the proposed critical habitat rule is discussed above in the 
Summary of Changes from the Proposed Rule section.
    This GIS-based modeling technique was effective at capturing 
alluvial areas associated with river valleys, and thus, the width of 
the upland component of critical habitat varies based on topography. 
The critical habitat designation widens in broad alluvial valleys and 
narrows in places where streams run through constricted canyons or 
between surrounding hills.
    To provide legal boundaries for the critical habitat areas, 
critical habitat boundaries for all drainages were mapped as contiguous 
blocks of 100 m-by-100 m cells that conform to a Universal Transverse 
Mercator (UTM) grid.
    To identify 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, the Bureau of 
Land Management (BLM), the U.S. Army Corps of Engineers (Army Corps), 
and the Service. We also considered the existing status of non-Federal 
and private lands in designating areas as critical habitat. We also 
determined the extent of Tribal land areas as part of the critical 
habitat designation process. We have coordinated with the respective 
Tribes on this designation under the guidance of the President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments'' (59 FR 22951), E.O. 13175, and 512 
DM 2, which requires us to coordinate with federally-recognized

[[Page 19582]]

Tribes on a Government-to-Government basis.
    In determining critical habitat boundaries, we made every effort to 
exclude all developed areas, such as buildings, paved areas, and other 
lands unlikely to contain primary constituent elements essential for 
arroyo toad conservation. Our 100-meter UTM grid minimum mapping unit 
was used to minimize the amount of development along the urban edge 
included in our mapping areas. Any such structures, paved areas, or 
otherwise developed areas inadvertently left inside critical habitat 
boundaries are not considered part of the designated units. This also 
applies to the land on which such structures sit directly. Therefore, 
Federal actions limited to these areas would not trigger section 7 
consultations, unless they affect the species and/or primary 
constituent elements in adjacent critical habitat.
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below. Additional detailed 
documentation concerning the essential nature of these areas is 
contained in our supporting record for this rulemaking.

Special Management Considerations or Protection

    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 (Campbell et al. 1996). Although 
these factors have not dramatically reduced the range of the arroyo 
toad, within its range many of the habitats that were historically 
capable of supporting large numbers of arroyo toads have been lost in 
the last 100 years. Jennings and Hayes (1994) believe that the loss of 
habitat, coupled with the manipulation of water levels in many central 
and southern California streams and rivers, predation from introduced 
aquatic species, and habitat degradation from introduced plant species, 
caused arroyo toads to be extirpated from 76 percent of their 
previously occupied habitat in California. Through focused survey 
efforts over recent years, a few new arroyo toad populations have been 
discovered. Because of these recent efforts, however, it is unlikely 
that many more populations remain undiscovered, at least on public 
land.
    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing and contain the 
primary constituent elements may require special management 
considerations or protection. As discussed throughout this final rule, 
our proposed rule published on April 28, 2004 (69 FR 23253), and our 
previous final designation of critical habitat for the arroyo toad (66 
FR 9414, February 7, 2001), the arroyo toad and its habitat are 
threatened by a multitude of human-related activities, including but 
not limited to: alteration of the natural hydrological regime (e.g., 
inundation of habitat behind dams, sediment trapping behind dams, water 
flow manipulations from dams and waste water treatment plants, ground 
water pumping, water diversions, channelization, bank stabilization, 
water contamination); degradation and loss of habitat through 
urbanization; the inadvertent or intentional introduction of nonnative 
species (e.g., exotic predators, plants, and diseases); mining (e.g., 
sand and gravel and suction dredge); agriculture (e.g., loss of upland 
habitat and use of pesticides and herbicides); road placement within, 
across, or adjacent to river corridors; off-highway vehicle use in 
stream channels; livestock grazing (e.g., trampling of arroyo toads and 
compaction of soils); and recreation (e.g., campground placement on 
stream terraces, anglers, equestrians, hikers, and mountain bikers). 
While many of these threats operate concurrently and cumulatively with 
each other and with natural disturbances (e.g., droughts and 
wildfires), the loss of existing habitat, alteration of stream flows, 
and the continued colonization of habitat by nonnative species, likely 
represent the most significant current threats to arroyo toads. As 
such, we believe that each area designated as critical habitat may 
require some level of management and/or protection to address the 
current and future threats to the arroyo toad to ensure the overall 
recovery of the species. Such management considerations and protections 
would benefit the arroyo toad and its habitat because of the following: 
Exotic predators and pets may eat or injure arroyo toads; unnatural 
water releases from dams can wash away arroyo toad eggs and tadpoles, 
promote the growth of exotic species, or reduce the availability of 
open sand bar habitat; water diversions can dry a streambed prior to 
the completion of metamorphosis from tadpole to toad; toads can be 
crushed by channel maintenance, road construction, or the plowing of 
agricultural fields with heavy machinery; toads can be trampled during 
recreational activities; and arroyo toad habitat can be adversely 
affected by agricultural practices, the invasion of exotic species, and 
inundation from water impoundments. However, designation of critical 
habitat does not carry with it any requirement that landowners or land 
managers implement any special management or protection programs. 
Threats specific to each unit that may require special management 
considerations or protection are further discussed in the Unit 
Descriptions section.

Critical Habitat Designation

    We are designating 6 units as critical habitat for the arroyo toad. 
The critical habitat areas described below constitute our best 
assessment at this time of areas we determined to be occupied at the 
time of listing, contain the primary constituent elements, and that may 
require special management. Units that are currently occupied, but were 
not known to be occupied at the time of listing, have been determined 
to be essential to the conservation of the species and have one or more 
of the species' primary constituent elements (see Unit Descriptions 
below). The 6 areas designated as critical habitat, plus the 17 units 
that have been excluded from critical habitat designation, are shown in 
Table 1 above. Table 2 below shows the approximate area designated as 
critical habitat for the arroyo toad by land ownership and county.

                            Table 2.--Approximate Critical Habitat in Acres (ac) (Hectares (ha)) by County and Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              State/
            County                Forest Service          BLM            FWS      Military    local          Tribal            Private          Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monterey......................  0                  0                          0          0          0  0................  0................            0
Santa Barbara.................  1,853 ac           0                          0          0          0  0................  2,947 ac.........     4,800 ac
                                (750 ha)                                                                                  (1,193 ha).......   (1,942 ha)

[[Page 19583]]

 
Ventura.......................  3,668 ac           0                          0          0          0  0................  340 ac...........     4,008 ac
                                (1,494 ha)                                                                                (138 ha).........    1,622 ha)
Los Angeles...................  734 ac             0                          0          0          0  0................  0................       734 ac
                                (197 ha)                                                                                                        (297 ha)
San Bernardino................  492 ac             0                          0          0          0  0................  628 ac...........     1,120 ac
                                (199 ha)                                                                                  (254 ha).........     (453 ha)
Riverside.....................  700 ac             333 ac                     0          0          0  0................  0................     1,033 ac
                                (283 ha)           (135 ha)                                                                                     (418 ha)
Orange........................  0                  0                          0          0          0  0................  0................            0
San Diego.....................  0                  0                          0          0          0  0................  0................            0
    Total.....................  7,447 ac           333 ac                     0          0          0  0................  3,915 ac.........    11,695 ac
                                (3,013 ha)         (135 ha)                                                               (1,585 ha).......   (4,733 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------

Unit Descriptions

    Critical habitat and essential habitat that has been excluded 
includes arroyo toad habitat throughout the species' range in Monterey, 
Santa Barbara, Ventura, Los Angeles, Riverside, San Bernardino, Orange, 
and San Diego Counties, California. Lands we considered for critical 
habitat are under private, local agency, county, State, Tribal, and 
Federal ownership. We divided the lands we determined to be essential 
to the conservation of the species into 23 units. We are designating 
critical habitat in 6 units, and excluding the remaining 17 units for 
various reasons, as described in the exclusions section below. For 
those areas that have been excluded, the unit description is provided 
to define the unit and identify why we consider it essential to the 
conservation of the species. Although all of the units are within the 
geographic range of the species, we are not designating all of the 
areas known to be occupied by the arroyo toad. A brief description of 
each unit, reasons why it contains the features essential for the 
conservation of the arroyo toad, and the special management 
considerations particular to each unit, are presented below. 
Additionally, if a unit was not known to be occupied at the time of 
listing, we have also described why we have determined these units to 
be essential to the conservation of the species. The unit boundaries 
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).

Unit 1: San Antonio River, Monterey County

    We have excluded all essential lands in unit 1 including all lands 
on Fort Hunter Liggett from the final critical habitat designation 
under section 4(b)(2) of the Act (see Application of Section 3(5)(A) 
and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for 
a detailed discussion). Unit 1 consists of 6,775 ac (2,742 ha) of the 
San Antonio River and adjacent uplands, from about 2 mi (3 km) upstream 
of the confluence with Mission Creek downstream to San Antonio 
Reservoir, a distance of about 17 mi (27 km), and includes small 
portions of Mission Creek and other tributaries. The vast majority of 
the lands within this unit are owned by the Army. The northernmost 
known population of arroyo toads is located here, and is approximately 
100 mi (160 km) north of the nearest documented extant population. 
Arroyo toads were not known to occur within this area at the time the 
species was listed, but have since been observed along the entire 
length of this segment of the San Antonio River (Service 1999), which 
is still in a relatively natural state and consists of high-quality 
arroyo toad habitat. This area contains all the primary constituent 
elements, including breeding pools in low-gradient stream segments, 
sandy substrates, seasonal flood flows, and relatively undisturbed 
riparian habitat and upland benches for foraging and dispersal. The 
protection of this area is essential to maintaining the complete 
genetic variability of the species and the full range of ecological 
settings within which it is found, which is essential to the ability of 
the arroyo toad to adapt to changing environmental conditions. For 
these reasons we have determined this unit to be essential to the 
conservation of the species. Military operations (including occasional 
troop movements and weed control) in and near the riparian zone may 
create the need for special management considerations in this unit.

Unit 2: Sisquoc River, Santa Barbara County

    Unit 2 consists of approximately 22 mi (36 km) of the Sisquoc River 
and adjacent uplands, from the vicinity of Abel Canyon Campground 
downstream to the confluence with La Brea Creek. The unit encompasses 
approximately 4,800 ac (1,942 ha) of which 61 percent is private land 
and 39 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 rural, private lands. This long, 
undammed stream is occupied arroyo toad habitat and is one of the few 
remaining major rivers in southern California with a natural flow 
regime. Arroyo toads were known to occur within this area at the time 
the species was listed and have been found during recent surveys. This 
area contains all of the primary constituent elements, including 
breeding pools in low-gradient stream segments, sandy or fine gravel 
substrates, seasonal flood flows, and relatively undisturbed riparian/
upland habitat for foraging and dispersal. Lands within this unit are 
threatened by grazing, sand and gravel mining, and limited recreational 
activities and require special management to reduce the impacts 
resulting from these threats.

Unit 3: Upper Santa Ynez River Basin, Santa Barbara County

    All essential lands in unit 3 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Unit 3 is located upstream of Gibraltar 
Reservoir and incorporates portions of the upper Santa Ynez River, 
Indian Creek, Mono

[[Page 19584]]

Creek, and adjacent uplands. The unit encompasses approximately 3,106 
ac (1,257 ha) within the boundaries of Los Padres National Forest, with 
74 percent on National Forest lands and 26 percent on private non-
residential inholdings. The segment of the upper Santa Ynez River 
designated as critical habitat extends approximately 7 mi (11 km) from 
the vicinity of Juncal Campground downstream to Gibraltar Reservoir. 
Indian Creek is designated from its confluence with Mono Creek upstream 
approximately 3 mi (5 km). Mono Creek and associated uplands are 
designated for approximately 6 mi (10 km) from Olgilvy Ranch downstream 
to its confluence with the Santa Ynez River. Arroyo toads were known to 
occur within this area at the time the species was listed and have been 
found during recent surveys. This area contains all of the primary 
constituent elements, including breeding pools in low-gradient stream 
segments, sandy or fine gravel substrates, seasonal flood flows, and 
relatively undisturbed riparian/upland habitat for foraging and 
dispersal.
    A large and well-studied arroyo toad population occurs in this area 
(Sweet 1992, 1993). It is likely a remnant of a much larger population 
that historically extended downstream below what is now Lake Cachuma 
and upstream into the area occupied by Jameson Reservoir. The 
population along Mono Creek is one of the more robust populations of 
arroyo toads on the Los Padres National Forest and is free of exotic 
vertebrate predators for much of its length (Jamie Uyehara, Forest 
Service, pers. comm. 2003). Unit 3 is also the wettest area occupied by 
arroyo toads in the Northern Region (Teale Data Center 1998; California 
Irrigation Management Information System 2000).
    It is likely that arroyo toads in this unit experience 
precipitation and soil moisture conditions that are not faced by toads 
at drier sites. Potential adaptations to these conditions make the 
protection of this area essential to maintaining the genetic diversity 
of the species. Because it is within, or is surrounded by, National 
Forest land, this area has favorable habitat conditions for population 
persistence. The arroyo toad population currently inhabiting Mono and 
Indian Creeks is particularly healthy and could be used as a source for 
the reestablishment of arroyo toads in downstream reaches of the Santa 
Ynez River, if warranted. The leading threats to arroyo toads in this 
area that require special management are primarily along the lower 
Santa Ynez River and lower Mono Creek and include exotic species (e.g., 
bullfrogs), recreation, water withdrawls, and problems associated with 
an upstream dam (e.g., sediment trapping, altered hydrological regime, 
temperature changes).

Unit 4: Sespe Creek, Ventura County

    Unit 4 includes 20 mi (32 km) of Sespe Creek and adjacent uplands, 
from the confluence with Tule Creek downstream to the confluence with 
Alder Creek. The unit encompasses approximately 4,008 ac (1,622 ha), of 
which 92 percent is on the Los Padres National Forest, primarily within 
the Sespe Wilderness. The remainder is in remote, private inholdings. 
Arroyo toads were known to occur within this area at the time the 
species was listed and have been found during recent surveys. One of 
the largest arroyo toad populations on the Los Padres National Forest 
occurs in this unit along Sespe Creek (Forest Service, in litt. 1999), 
which is undammed and retains its natural flooding regime. This core 
population is spread over large areas of high quality habitat, 
including numerous high-quality breeding pools, an abundance of sandy 
substrates, unimpeded seasonal flood flows, and relatively undisturbed 
riparian habitat and upland benches for foraging and dispersal (Sweet 
1992). Up to several hundred adult arroyo toads inhabit this reach of 
the Sespe River (Sweet 1992, 1993), and during years of successful 
reproduction, such as 2003, thousands of juveniles can be found as well 
(Tom Murphy, Forest Service, pers. comm. 2003).
    Arroyo toads have been found up to 3,300 ft (1,000 m) in elevation 
in this area, which is one of the highest known occurrences in the 
Northern Region. The arroyo toads in this unit likely experience 
temperature extremes or other environmental conditions not faced by 
toads at lower elevations. Potential adaptations to these conditions 
make the protection of this area essential for the maintenance of the 
genetic diversity of the species. Impacts to the Sespe Creek habitat 
that require special management are from recreational activities (e.g., 
horseback riding, hiking, and other trail use) and exotic predators 
(e.g., bullfrogs) (Sweet 2003). Special management is needed in this 
unit to reduce or eliminate the impacts from recreation and reduce or 
eliminate exotic predators.

Unit 5: Piru Creek, Ventura and Los Angeles Counties

    All essential lands in unit 5 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Unit 5 encompasses approximately 2,921 
acres (1,182 ha) of which 83 percent is within the Los Padres and 
Angeles National Forests, with the remaining area on a few private 
inholdings. This unit is divided into two subunits. Subunit 5a 
encompasses approximately 8 mi (13 km) of Piru Creek and adjacent 
uplands from the vicinity of Frazier Creek downstream to Pyramid 
Reservoir. Subunit 5b encompasses approximately 9 mi (15 km) of Piru 
Creek from the confluence with Fish Creek downstream to Lake Piru. It 
also includes approximately 1 mi (1.6 km) of Agua Blanca Creek upstream 
from its confluence with Piru Creek. Subunit 5a is in a remote setting 
within the Los Padres National Forest, and most of subunit 5b is within 
the Sespe Wilderness. Arroyo toads were known to occur within this area 
at the time the species was listed and have been found during recent 
surveys.
    Although much of the historical arroyo toad habitat along Piru 
Creek is now inundated by the two reservoirs, a substantial arroyo toad 
population occurs in this unit (Sweet 1993). The upper portion of 
subunit 5a is free of exotic vertebrate predators, and the arroyo toad 
population in this area has been increasing and expanding over the past 
several years (J. Uyehara, pers. comm. 2003). The expansion of the 
population is likely due, in part, to seasonal campground closures and 
the elimination of suction-dredge mining. Because lower Piru Creek 
(subunit 5b) is below a large dam, the habitat there has experienced 
some degradation over the years from perennial water releases, rapid 
changes in flow volume, excessive flows during the breeding season, and 
an increased presence of exotic predators. However, future releases 
from Pyramid Dam are scheduled to more closely mimic natural flows and 
benefit the arroyo toad (Eva Begley, California State Division of Water 
Resources, pers. comm. 2003). This should result in an expanded, stable 
population distributed over areas of good-to-excellent habitat that is 
generally undisturbed by human activities. Both upper and lower Piru 
Creek contain all of the primary constituent elements, including 
breeding pools in low-gradient stream segments, sandy substrate, 
seasonal flood flows (modified to some extent below Pyramid Dam), and 
riparian habitat and upland benches for foraging and dispersal. Special 
management considerations are required to address threats posed by 
horse and cattle grazing, recreation, and unnatural flows

[[Page 19585]]

that could potentially be released from Pyramid Dam.

Unit 6: Upper Santa Clara River Basin, Los Angeles County

    All essential lands in unit 6 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Unit 6 includes portions of the Santa 
Clara River, Castaic Creek, and adjacent uplands. The unit encompasses 
approximately 2,538 ac (1,027 ha), of which 87 percent is private land 
and 13 percent is within the Angeles National Forest. This unit is 
divided into three subunits. Subunit 6a, predominantly within the 
administrative boundary of the Angeles National Forest, includes 
approximately 4 mi (6 km) of Castaic Creek upstream from the Elderberry 
Forebay of Castaic Lake, and approximately 0.7 mi (1.1 km) of Fish 
Creek upstream from its confluence with Castaic Creek. Subunit 6b 
includes approximately 6 mi (10 km) of the Santa Clara River from its 
confluence with the South Fork of the Santa Clara River down to its 
confluence with Castaic Creek, and San Francisquito Creek from the 
Newhall Ranch Road bridge downstream to its confluence with the Santa 
Clara River. Subunit 6c includes approximately 3 mi (5 km) of the upper 
Santa Clara River from approximately 0.5 mi (0.8 km) above its 
confluence with Agua Dulce Creek downstream through Soledad Canyon to 
its confluence with Bee Canyon Creek. Arroyo toads were known to occupy 
upper Castaic Creek at the time of listing (subunit 6a), but were not 
known to occur along the Santa Clara River (subunits 6b, 6c) at the 
time the species was listed. They have been observed within all three 
subunits during recent surveys.
    A healthy population of arroyo toads can be found on Castaic Creek 
above the reservoir (subunit 6a). It may be the largest arroyo toad 
population in the Angeles National Forest (Bill Brown, Forest Service, 
pers. comm. 2003). A small population of arroyo toads can also be found 
in the Santa Clara River near the confluence with San Francisquito 
Creek downstream to the confluence with Castaic Creek (subunit 6b). 
This portion of the Santa Clara River was originally excluded from 
designation as critical habitat for the arroyo toad in 2000, in part 
because we believed that a breeding population of arroyo toads could 
not be sustained in this area. Recent observations of arroyo toads, 
including eggs thought to belong to arroyo toads, refutes this (Ruben 
Ramirez, Cadre Environmental, pers. comm. 2003). Because this area 
apparently supports a breeding population of arroyo toads with the 
potential to greatly expand, we believe it is essential habitat for the 
arroyo toad.
    The upper portion of the Santa Clara River running through Soledad 
Canyon (subunit 6c) supports a small breeding population of arroyo 
toads (N. Sandburg, in litt. 2001; Rick Farris, Service, pers. comm. 
2001; Frank Hovore, Hovore and Associates, in litt. 2001) and has the 
potential to greatly increase in size with appropriate protection.
    Subunits 6a, 6b, and 6c contain all the primary constituent 
elements, including breeding pools in low-gradient stream segments, 
sandy substrates, seasonal flood flows, and riparian and upland 
habitats for foraging and dispersal. The majority of the lands within 
unit 6 are privately-owned and special management considerations are 
required in this unit to address urban development, agriculture, 
recreation, and mining threats. Exotic species, such as African clawed 
frogs (Xenopus laevis), are a concern here as well.
    Castaic Creek from its confluence with the Santa Clara River 
upstream to Castaic Lagoon was included within subunit 6b in the 
February 7, 2001, designation of critical habitat. A portion of lower 
Castaic Creek containing suitable arroyo toad habitat was also included 
in our April 28, 2004, proposed rule. However, flows in this reach are 
affected by the operations of Castaic Dam (e.g., water removed from the 
system for a municipal drinking water supply) and arroyo toads have 
never been observed within lower Castaic Creek; thus, we no longer 
consider it essential to the conservation of the species in its current 
state. Similarly, we have concluded that San Francisquito Creek above 
the Newhall Ranch Road bridge lacks surface water for a sufficient 
duration during spring of most years to allow for arroyo toad tadpole 
development. Thus, this portion of San Francisquito Creek, which was 
included in subunit 6b in the proposed rule, does not provide breeding 
habitat for arroyo toads, and we no longer consider this portion of San 
Francisquito Creek to be essential for the conservation of the species.

Unit 7: Upper Los Angeles River Basin, Los Angeles County

    All essential lands in Unit 7 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential areas in Unit 7 include portions 
of Big Tujunga, Mill, and Alder Creeks, and adjacent uplands in the 
upper Los Angeles River Basin. The unit encompass approximately 1,772 
ac (717 ha), of which 95 percent is within the Angeles National Forest 
and 5 percent is on private lands. This unit was divided into two 
subunits in the proposed rule (7a and 7b). However, all lands in 
subunit 7a were removed because these areas were not known to be 
occupied by arroyo toads and were therefore not essential. Subunit 7b 
encompasses: (1) Approximately 8 mi (13 km) of upper Big Tujunga Creek 
from immediately above Big Tujunga Reservoir upstream to approximately 
1.0 mi (1.6 km) above the confluence with Alder Creek, (2) almost 3.7 
mi (6 km) of Mill Creek from the Monte Cristo Creek confluence 
downstream to Big Tujunga Creek, and (3) 1.7 mi (2.7 km) of Alder Creek 
from 0.2 mi (0.3 km) downstream of the Mule Fork confluence downstream 
to Big Tujunga Creek.
    Subunit 7b contains an important high elevation arroyo toad 
population in the Big Tujunga Canyon watershed in the Upper Los Angeles 
River basin within the Angeles National Forest. All drainages in 
subunit 7b have been reported to be occupied by arroyo toads within the 
last 15 years (Forest Service, in litt. 1996; Forest Service 2000; 
California Natural Diversity Data Base (CNDDB) 2003). This population 
occurs in a high-elevation environment that is atypical for arroyo 
toads and functions as the only significant known population remaining 
in the coastal foothills of the San Gabriel Mountains. Subunit 7b is 
essential for arroyo toad conservation because it contains several 
primary constituent elements, including breeding pools in low-gradient 
stream segments, sandy substrates for burrowing and aestivating, 
seasonal flood flows, and riparian and upland habitats for foraging and 
dispersal. Threats that require special management considerations for 
this unit include exotic predators, such as crayfish and bullfrogs, and 
exotic plants, such as Arundo donax.

Unit 8: Lower Santa Ana River Basin/ Santiago Creek, Orange County

    All essential lands in Unit 8 are excluded from critical habitat 
designation under section 4(b)(2) of the Act because they are within 
the approved Orange County Central Coastal Subregion Natural Community 
Conservation Plan (NCCP)/Habitat Conservation Plan (HCP) area (see 
Application of Section 3(5)(A) and

[[Page 19586]]

4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a 
detailed discussion). Essential areas in Unit 8 include portions of 
Santiago and Baker Creeks and adjacent uplands in the lower Santa Ana 
River Basin. The unit encompasses approximately 840 ac (340 ha) just 
above Irvine Lake, of which 100 percent is on private land. Unit 8 
encompasses approximately 1.3 mi (2.1 km) stretch of lower Baker Canyon 
from the Cleveland National Forest boundary downstream to the 
confluence with Santiago Creek as well as approximately 2.0 mi (3.2 km) 
of Santiago Creek from the Baker Canyon confluence downstream to Irvine 
Lake.
    Unit 8 contains an important arroyo toad population in Santiago and 
Baker Creeks in central Orange County. Toads were observed in lower 
Baker Canyon and at the confluence of Silverado Creek and Santiago 
Creek during the 1970s and 1980s (Robert Fisher, USGS, in litt. 1985; 
CNDDB 2003). This population may represent one of the last remnants of 
a greater historic population that existed in the Santa Ana River basin 
that was mostly extirpated due to urbanization of the greater Los 
Angeles metropolitan area. It is also possible that this population 
belongs to a larger metapopulation that extends across the lower 
coastal mountain slopes of the Santa Ana Mountains from Santiago Creek 
to San Mateo Creek (including Units 10 and 11). This unit is essential 
because it contains primary constituent elements, such as low-gradient 
sandy streams and adjacent upland terraces for foraging, burrowing, and 
aestivation. Threats that require special management considerations 
include impacts from nearby residential activities, and degrading 
habitat conditions due to past commercial sand and gravel removal 
operations.

Unit 9: San Jacinto River Basin, Riverside County

    Unit 9 includes portions of the San Jacinto River and Bautista 
Creek and adjacent uplands in the San Jacinto River Basin. The unit 
encompasses approximately 700 ac (283 ha), of which 100 percent is 
within the San Bernardino National Forest. We are designating a 3.1 mi 
(5.1 km) discontinuous stretch of Bautista Creek and an approximately 
0.5 mi (0.8 km) discontinuous reach of the San Jacinto River east of 
the Forest Service boundary as critical habitat. Approximately 2,418 ac 
(978 ha) of essential habitat on private and State lands along the San 
Jacinto River from the Sand Canyon confluence downstream to the Soboba 
Indian Reservation border and along Bautista Creek from the San 
Bernardino National Forest boundary downstream to near the middle of 
section 27 (T5S, R1E), where the stream enters a debris basin, is 
excluded because it is within the Western Riverside MSHCP planning area 
(see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act section for a detailed discussion).
    Unit 9 contains an important arroyo toad population in the San 
Jacinto River and Bautista Creek within the San Bernardino National 
Forest. Arroyo toads were first discovered in lower Bautista Creek in 
1975 (G. Stewart, unpubl. data) in an area that has since suffered 
severe habitat loss due to substantial urban development. Arroyo toads 
have also recently been reported in the San Jacinto River (B. Ortega in 
litt. 2000) and in Bautista Creek within the San Bernardino National 
Forest (USGS 2000, 2001). This unit contains the most northeastern 
arroyo toad population within the coastal region for the species and is 
effectively isolated from other known toad populations to the south in 
the Santa Margarita Watershed, to the west in the San Juan Watershed, 
and from residual populations to the north in the Santa Ana Watershed 
due to geographic features. It is likely that this isolation has 
occurred over long geologic time, and therefore, toads in the San 
Jacinto Watershed may have evolved unique genetic, phenotypic, and/or 
behavioral characteristics that are essential for the conservation of 
the species. Furthermore, unit 9 is essential for arroyo toad 
conservation because it contains several primary constituent elements, 
including low gradient sandy streambeds with slow moving water suitable 
for arroyo toad breeding and adjacent upland terrace for foraging and 
burrowing that promote the ability of this area to support a viable 
population. Threats that require special management considerations for 
this unit include destruction of habitat and mortality of individual 
toads due to recreation, vehicular traffic, and road improvements to 
the nearby Bautista Road (USGS 2001).

Unit 10: San Juan Creek Basin, Orange County

    All essential lands in Unit 10 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential areas in Unit 10 include 
portions of San Juan Creek, Bell Canyon, Trabuco Creek, and adjacent 
uplands in the San Juan Creek Basin. The unit encompasses approximately 
5,256 ac (2,127 ha), of which 52 percent is private land, 41 percent is 
Orange County Park Land (Caspers Wilderness Park and O'Neill Regional 
Park), and 8 percent is within the Cleveland National Forest. This unit 
is divided into two subunits. Subunit 10a encompass approximately 18.5 
mi (30 km) of San Juan Creek from the Lower San Juan picnic ground 
downstream to Interstate 5 and about 2.5 mi (4 km) of Bell Canyon from 
just below Crow Canyon downstream to the confluence with San Juan 
Creek. Subunit 10b covers approximately 5 mi (8 km) of Trabuco Creek 
from the Cleveland National Forest boundary to approximately 0.9 mi 
(1.4 km) downstream of the State Route 241 (Foothill Transportation 
Corridor) bridge.
    Unit 10 contains a vital arroyo toad population in the San Juan 
Creek Basin that was known to be occupied at the time the species was 
listed. Arroyo toads were originally discovered in San Juan Creek in 
1974 (F. Roberts, Jr., in litt.), but the extent of their occupancy in 
this Basin was not known at the time the species was listed under the 
Act. Recent surveys have collectively demonstrated that subunit 10a 
supports a significant toad population (P. Bloom, environmental 
consultant, in litt. 1998; USGS, in litt. 1999a; CNDDB 2005). Subunit 
10a is essential for arroyo toad conservation because it contains 
several primary constituent elements in San Juan Creek and Bell Canyon, 
including low-gradient stream segments with sandy or fine gravel 
substrates that support shallow pools and alluvial scrub habitat that 
provides suitable foraging, burrowing, and aestivating habitat. Subunit 
10b is also essential for arroyo toad conservation because it is 
occupied and contains several primary constituent elements in Trabuco 
Creek (D. Holland, in litt. 2000), such as low-gradient streams with 
shallow pools and adjacent upland habitat for foraging and burrowing 
that are favorable for population persistence. Arroyo toad populations 
in this unit may function as an important linkage between toads in 
Santiago Creek (formerly proposed as Unit 8) to the north and the San 
Mateo Creek Basin to the south (Unit 11). This population is threatened 
by exotic predators (bullfrogs), increased water diversions, and 
residual effects of recent gravel mining operations (Bloom 1998) and 
requires special management to reduce the impacts associated with these 
threats.

[[Page 19587]]

Unit 11: San Mateo Creek and San Onofre Creek Basins, San Diego and 
Orange Counties

    All essential lands in Unit 11 are either excluded from critical 
habitat designation under section 4(b)(2) of the Act for economic 
reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions 
Under Section 4(b)(2) of the Act section) or exempted from critical 
habitat designation due to Marine Corps Base, Camp Pendleton's (Camp 
Pendleton) Integrated Natural Resource Management Plan (INRMP) (see the 
Exemptions Under Section 4(a)(3) section for a detailed discussion). 
Essential areas in Unit 11 include portions of San Mateo, Cristianitos, 
Talega, Gabino, La Paz, San Onofre, and Jardine Creeks, and adjacent 
uplands in the San Mateo and San Onofre Creek Basins. This unit 
encompasses approximately 8,178 ac (3,310 ha), of which 83 percent is 
within portions of Marine Corps Base, Camp Pendleton (Camp Pendleton), 
including State lease lands, and 17 percent is on private land. This 
unit was divided into three subunits in the proposed rule (11a, 11b, 
and 11c). Subunit 11a includes approximately 3.1 mi (5 km) of San Mateo 
Creek from the Cristianitos Creek confluence downstream to just below 
Interstate 5 highway and includes portions of Cristianitos Creek from 
just above Gabino Creek downstream to the confluence with San Mateo 
Creek. This subunit also includes approximately 3.1 mi (5 km) of Gabino 
Creek upstream from its confluence with Cristianitos Creek, including 
about 0.6 mi (1 km) of La Paz Creek, as well as approximately 2.7 mi 
(4.3 km) of Talega Creek upstream from its confluence with Cristianitos 
Creek and beyond the boundaries of Camp Pendleton. Portions of 
essential habitat in both subunit 11a along San Mateo, San Onofre, and 
Talega Creeks and San Onofre Creek and subunit 11c within Camp 
Pendleton were originally excluded from the proposed rule because they 
were within mission-essential training areas (69 FR 23253). These 
areas, as well proposed State leased lands (subunit 11a) and cantonment 
areas (subunit 11c), are now exempted from critical habitat based on 
Camp Pendleton's approved INRMP that was signed in 2001. Subunit 11b 
encompasses approximately 6 mi (9.7 km) of San Mateo Creek from the 
Cleveland National Forest boundary downstream to the confluence with 
Cristianitos Creek. Subunit 11c encompasses approximately 8 mi (12.9 
km) of San Onofre Creek upstream from Interstate 5 highway as well as 
approximately 2 mi (3.2 km) of Jardine Canyon upstream from the 
confluence with San Onofre Creek.
    Unit 11 contains an indispensable arroyo toad population in the San 
Mateo Creek and San Onofre Creek Basins. Unit 11 contains several 
primary constituent elements of low-gradient stream segments with sandy 
or fine gravel substrates, shallow pools for breeding and rearing of 
tadpoles and juveniles, and riparian and adjacent uplands habitats for 
foraging and dispersal to other populations. With so many favorable 
habitat conditions, this area is able to support a considerable arroyo 
toad population (Holland and Goodman 1998; CNDDB 2005) and is essential 
for the species. An unusual and important aspect of this unit is its 
close proximity to the coast because nearly all of the historic near-
coastal populations have been extirpated due to extensive urbanization 
and river channelization along the coastal regions of southern 
California. Distinctive climatic conditions near the coast may provide 
different selective pressures on toads in this area, and favor specific 
genetic characteristics that help maintain the genetic diversity of the 
species. Lands within this unit are threatened by cumulative impacts 
from human activities, including direct mortality from vehicle 
collisions and vehicular crossings of stream beds, recreational 
activities, camping, fire, exotic predators, and invasive plants 
(Holland and Goodman 1998) and require special management to reduce 
impacts associated with these threats.

Unit 12: Lower Santa Margarita River Basin, San Diego County

    All essential lands in Unit 12 are either excluded from critical 
habitat designation under section 4(b)(2) of the Act for economic 
reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions 
Under Section 4(b)(2) of the Act section) or exempted from critical 
habitat designation due to Camp Pendleton's and Naval Weapons Station 
Seal Beach Detachment Fallbrook's (Fallbrook Naval Weapons Station) 
INRMP (see the Exemptions Under Section 4(a)(3) section for a detailed 
discussion). Essential areas in Unit 12 encompass approximately 6,388 
ac (2,585 ha), of which 86 percent is on Camp Pendleton, 5 percent is 
on Fallbrook Naval Weapons Station, and 8 percent is on private land. 
This unit is divided into two subunits (12a and 12b). In the proposed 
critical habitat rule, portions of subunits 12a and12b along the Santa 
Margarita River, De Luz Creek, and Roblar Creek in subunits 12a and 12b 
within Camp Pendleton were excluded because they were within mission-
essential training areas (69 FR 23253). These areas are now exempted 
from critical habitat based on Camp Pendleton's approved INRMP that was 
signed in 2001. Portions of essential habitat in subunit 12b along the 
Santa Margarita River within the Fallbrook Naval Weapons Station are 
also exempted from the final critical habitat designation due to their 
INRMP and Fire Management Plan. Subunit 12a includes approximately 5 mi 
(8.0 km) of De Luz Creek from the town of De Luz to the confluence with 
the Santa Margarita River as well as approximately 2 mi (3.2 km) of 
Roblar Creek. Subunit 12b includes portions of the Santa Margarita 
River from approximately 1 mi (1.6 km) northeast of the Camp Pendleton 
boundary downstream Interstate 5 highway.
    Unit 12 contains a significant arroyo toad population in the lower 
Santa Margarita River Basin. Recent surveys of the Santa Margarita 
River and De Luz Creek immediately downstream of this unit on Camp 
Pendleton have documented what is probably the largest known population 
of arroyo toads (Holland 1995; Holland and Goodman 1998; Varanus 
Biological Services, Inc. 1999; Holland and Sisk 2001; CNDDB 2005). 
This unit contains several primary constituent elements including 
rivers with suitable hydrologic regimes, low-gradient stream segments 
with sandy substrates supporting shallow pools and gravel bars for 
breeding and rearing tadpoles and juveniles, and riparian and adjacent 
upland habitat to provide foraging and living areas for subadult and 
adult toads. This unit is important for the conservation of the species 
because of its size and potential connectivity to populations in the 
upper Santa Margarita River Basin (Unit 13). Threats to this habitat 
that require special management considerations include cumulative 
impacts to the species' habitat from human activities, including direct 
mortality from vehicle collisions and vehicular crossings of stream 
beds, fire, exotic predators, and invasive plants (Holland and Goodman 
1998).

Unit 13: Upper Santa Margarita River Basin, Riverside County

    All essential lands in Unit 13 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential areas in Unit 13 are located 
upstream from Vail Lake and include portions of Arroyo Seco and 
Temecula Creeks, and adjacent uplands in the upper Santa

[[Page 19588]]

Margarita Basin. The unit encompasses approximately 2,115 ac (856 ha), 
of which 81 percent is private land and 19 percent is within the 
Cleveland National Forest. This unit is divided into two subunits (13a 
and 13b). The upper half of subunit 13b in Temecula Creek, upper 
portion of subunit 13a, and all of Wilson Creek was removed because it 
was not known to be occupied, and therefore no longer considered to be 
essential. Subunit 13a includes 3.7 mi (5.9 km) of Arroyo Seco Creek 
from just north of the San Diego/ Riverside Counties boundary 
downstream to Vail Lake. Subunit 13b includes approximately 3 mi (4.8 
km) of Temecula Creek from just east of the town of Radec downstream to 
Vail Lake.
    Unit 13 contains an important arroyo toad population in the Upper 
Santa Margarita Basin upstream from Vail Lake. Unit 13 is important for 
the conservation of the species because it provides a potential link to 
populations in the lower Santa Margarita River Basin and other nearby 
drainages containing suitable habitat, such as upper portions of 
Temecula Creek and Wilson Creek that are not known to be occupied. 
Toads were known to occupy the Upper Santa Margarita Basin at the time 
of listing in 1994 and have also been documented in this area more 
recently (AMEC Earth and Environmental, Inc. 2001; CNDDB 2005). Unit 13 
is essential for the conservation of the arroyo toad because it 
contains several primary constituent elements, such as low gradient 
sandy stream channels with slow moving water suitable for breeding and 
adjacent upland terraces for foraging, burrowing, and aestivating. 
Exotic predators, campground activities, streambed alterations, and 
agricultural run-off threaten arroyo toads in this unit and require 
special management.

Unit 14: Lower and Middle San Luis Rey River Basin, San Diego County

    All essential lands in Unit 14 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential lands in Unit 14 include 
portions of the San Luis Rey River and adjacent upland areas below the 
La Jolla Indian Reservation, as well as sections of Pala and Keys 
Creeks in the lower and middle San Luis Rey River Basin. The unit 
encompasses approximately 8,669 ac (3,508 ha), of which 84 percent is 
private land, 10 percent is on the Pala Indian Reservation, and 5 
percent is on the Rincon Indian Reservation. Approximately 30 mi (48 
km) of the San Luis Rey River from the western edge of the La Jolla 
Indian Reservation downstream to the confluence with Guajome Creek near 
the City of Oceanside are designated as critical habitat. It also 
includes approximately 3.4 mi (5.5 km) of Pala Creek and 1.7 mi (2.7 
km) of Keys Creek upstream from their confluence with the San Luis Rey 
River.
    Unit 14 contains an indispensable arroyo toad population in the San 
Luis Rey River Basin. This unit was known to be occupied at the time of 
listing in 1994. Several more recent surveys have documented the 
presence of arroyo toads throughout this unit (Dudek & Associates 1995; 
California Department of Transportation 1999; PCR Services Corporation 
1999; Tierra Environmental Services 1999; Varanus Biological Services, 
Inc. 1999; Cadre Environmental 2004). This long, low-elevation (all 
below 1,000 ft (305 m) in elevation) unit is situated in a broad, flat 
valley with a low-gradient river that supports all the primary 
constituent elements, such as shallow pools for breeding and sandy 
substrates in adjacent upland terraces for foraging, burrowing, and 
aestivating. This unit is necessary for the conservation of the arroyo 
toad because it supports one of the largest contiguous river reaches 
that is occupied by the species and has the ability to support a viable 
population. Special management considerations that are required in this 
unit include addressing issues regarding dams and water diversions in 
the upper end of the unit and minimizing impacts from intensive 
urbanization, agriculture, exotic predators, and plants.

Unit 15: Upper San Luis Rey River Basin, San Diego County

    All essential lands in Unit 15 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential areas in Unit 15 include the 
upper San Luis Rey River above Lake Henshaw, two of its headwater 
tributaries, and adjacent uplands in the upper San Luis Rey River 
Basin. The unit encompasses approximately 6,183 ac (2,502 ha), of which 
73 percent is private land and 27 percent is within the Cleveland 
National Forest. This unit consists of two subunits (subunits 15a and 
15b). Subunit 15a covers almost 8.7 mi (14 km) of the upper San Luis 
Rey River from the Indian Flats area downstream to the upper end of 
Lake Henshaw and includes about 7.8 mi (12.5 km) of Agua Caliente Creek 
from the western edge of section 13 (T10S, R3E) to the confluence with 
the San Luis Rey. Subunit 15b includes approximately 1.6 mi (2.5 km) of 
the West Fork of the San Luis Rey River, where it runs through Barker 
Valley.
    Unit 15 contains an important high-elevation arroyo toad population 
with large areas of suitable habitat. Arroyo toads were known to occupy 
this unit at the time of listing in 1994. More recent surveys have also 
documented arroyo toads in both subunits 15a and 15b (USGS 2000; CNDDB 
2005). Unit 15 is important for the conservation of the species because 
it contains a unique assemblage of several small, disjunct, high-
elevation arroyo toad populations and one significant population on 
Agua Caliente Creek (E. Gergus, San Diego State University, in litt. 
1992; CNDDB 2005) in an area where in-stream and/or overland dispersal 
between populations is likely still possible. Maintaining adequate 
genetic connectivity within this population increases the probability 
of these populations' long term persistence. This unit is essential 
because it contains the primary constituent elements of low-gradient 
stream segments with sandy substrates supporting shallow pools, and 
riparian and adjacent upland habitats that provide areas for foraging 
and burrowing. The primary threats against the arroyo toad in this unit 
that would be alleviated through special management include groundwater 
pumping on private lands, exotic predators, and grazing.

Unit 16: Santa Ysabel Creek Basin, San Diego County

    All essential lands in Unit 16 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential areas in Unit 16 include 
portions of Santa Ysabel, Santa Maria, Guejito, and Temescal Creeks 
(Pamo Valley) and adjacent uplands in the San Dieguito River/Santa 
Ysabel Creek Basin. The unit encompasses approximately 10,259 ac (4,152 
ha), of which 93 percent is private land, 3 percent is within the 
Cleveland National Forest, 1 percent is on County Park land, 1 percent 
on California Department of Fish and Game (CDFG) land, and the 
remaining 1 percent is on the Mesa Grande Indian Reservation. This unit 
consists of four subunits (16a, 16b, 16c, and 16d). Subunit 16a 
includes approximately 9 mi (14.5 km) of Santa Ysabel Creek from the 
confluence with Temescal Creek downstream to the confluence with

[[Page 19589]]

Santa Maria Creek, approximately 4.3 mi (7 km) of Temescal Creek from 
the northern edge of Pamo Valley to the confluence with Santa Ysabel 
Creek and approximately 2.5 mi (4.0 km) of Boden Canyon upstream from 
the Santa Ysabel Creek confluence. Subunit 16b includes approximately 
10 mi (16.1 km) of Guejito Creek from the 2,000 ft (610 m) elevation 
contour downstream to the confluence with Santa Ysabel Creek. Subunit 
16c covers approximately 7.0 mi (11.2 km) of Santa Maria Creek from the 
west side of Ramona south of the Ramona Airport to the confluence with 
Santa Ysabel Creek. Subunit 16d includes approximately 3 mi (4.8 km) of 
Santa Ysabel Creek upstream from the confluence with Witch Creek.
    Unit 16 contains a vital arroyo toad population for the 
conservation of the species in the Santa Ysabel River Basin. This unit 
was known to be occupied at the time of listing in 1994, and more 
recent surveys have documented toads to occupying all of the drainages 
in this unit, including a significant population in Temescal and Santa 
Ysabel Creeks within Pamo Valley (Varanus Biological Services, Inc. in 
litt. 1999; Tierra Environmental Services, in litt. 2001; USGS, in 
litt. 2002; CNDDB 2005). This unit has a high conservation value 
because it is interconnected with other occupied essential areas in the 
San Diego MSCP that are excluded. Collectively, these areas contain 
large amounts of suitable habitat that promote the ability of a large 
population to persist and contribute to the species recovery. Unit 16 
is essential because it contains several primary constituent elements, 
including low-gradient sandy stream segments with shallow pools for 
breeding and rearing of tadpoles, upland sandy terraces that provide 
foraging and burrowing habitat, and stream channels and upland habitats 
that allow for migration to foraging areas. Grazing, exotic predators, 
and urbanization (Tierra Environmental Services, in litt. 2001; CNDDB 
2005) are the primary threats to this arroyo toad essential habitat 
that require special management considerations in this unit.

Unit 17: San Diego River Basin/San Vicente Creek, San Diego County

    All essential lands in Unit 17 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential lands in Unit 17 include 
portions of the San Diego River and San Vicente Creek and adjacent 
uplands in the San Diego River Basin. The unit encompasses 
approximately 1,955 ac (791 ha), of which 83 percent is private land, 
10 percent is within the Cleveland National Forest, and 7 percent is on 
the Capitan Grande Indian Reservation. The unit was divided into four 
subunits in the proposed rule (subunits 17a, 17b, 17c, 17d), of which 
two (subunits 17b and 17c) are no longer essential because they are not 
known to be occupied. Subunit 17a includes approximately 5 mi (8 km) of 
the San Diego River from Ritchie Creek downstream through 0.5 mi (0.9 
km) of the Capitan Grande Indian Reservation to the upper edge of El 
Capitan Reservoir and approximately 0.6 mi (1 km) of lower Cedar Creek. 
Subunit 17d includes 4 mi (6.4 km) of San Vicente Creek upstream from 
San Vicente Reservoir.
    Unit 17 contains a necessary arroyo toad population in the upper 
San Diego River Basin. Arroyo toads were known to occupy this unit at 
the time of listing in 1994 (CNDDB 2005). Unit 17 is important for the 
arroyo toad conservation because it contains suitable habitat for 
population expansion, thus increasing the probability of the long-term 
persistence of these populations. This unit is essential because it 
contains the primary constituent elements of low-gradient stream 
segments with sandy substrates supporting shallow pools for breeding, 
riparian and adjacent upland habitats that provide foraging, living, 
and migration areas for subadult and adult toads. Special management 
considerations or protections are required to minimize threats from 
exotic predators.

Unit 18: Sweetwater River Basin, San Diego County

    All essential lands in Unit 18 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential areas in Unit 18 include 
portions of the Sweetwater River and Peterson Canyon and adjacent 
uplands in the Sweetwater River Basin. The unit encompasses 
approximately 5,347 ac (2,164 ha), of which 46 percent is private land, 
32 percent is on California State Park lands, 17 percent is within the 
Cleveland National Forest, 3 percent is on the San Diego National 
Wildlife Refuge, 2 percent is on CDFG land, and less than 1 percent on 
the Sycuan Indian Reservation. The unit was divided into four subunits 
in the proposed rule (18a, 18b, 18c, and 18d). Subunit 18d was no 
longer essential because this area was not known to be occupied. 
Subunit 18a covers approximately 20 mi (32 km) of the Sweetwater River 
from approximately one mile upstream of the Stonewall Creek confluence 
in the Green Valley in Cuyamaca Rancho State Park downstream to the 
confluence with Viejas Creek. Subunit 18b includes approximately 0.5 mi 
(0.8 km) of the Sweetwater River between Viejas Creek and Loveland 
Reservoir and 1.5 mi (2.4 km) of Peterson Canyon from just east of the 
Taylor Creek confluence downstream to the top of Loveland Reservoir. 
Subunit 18c encompasses approximately 16 mi (26 km) of the Sweetwater 
River from immediately below Loveland Dam downstream to the upper edge 
of Sweetwater Reservoir.
    Unit 18 contains a significant arroyo toad population in the 
Sweetwater River Basin that was known to be occupied at the time the 
species was listed in 1994. This unit is necessary for conservation of 
the arroyo toad because it supports several significant populations 
over large stretches of rivers and streams (E. Gergus, in litt. 1992; 
Ervin and Griffin, in litt. 1997; Varanus Biological Services, Inc. 
1999; CNDDB 2005). Unit 18 is essential because it contains the primary 
constituent elements of open sandy river bottoms with shallow pools 
that support breeding populations and adjacent upland foraging and 
burrowing areas. Maintaining suitable habitat conditions and 
connectivity are essential to provide for the long-term persistence of 
these populations. Lands within these subunits require special 
management considerations to address threats from adverse (i.e., 
timing, amount) water releases from reservoirs, cattle grazing, gravel 
mining operations, off highway vehicular traffic, and exotic predators.

Unit 19: Cottonwood Creek Basin, San Diego County

    All essential lands in Unit 19 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential areas in Unit 19 include 
portions of Cottonwood, Potrero, Pine Valley, Morena, La Posta, and 
Kitchen Creeks and adjacent uplands in the Cottonwood Creek Basin. This 
large unit encompasses approximately 11,135 ac (4,579 ha), of which 55 
percent is private land, 36 percent is within the Cleveland National 
Forest, 8 percent is on land owned by San Diego County, and less than 1 
percent is on BLM land. This unit is divided into four subunits (19a, 
19b, 19c, 19d). Subunit 19a covers

[[Page 19590]]

7 mi (11.2 km) of Cottonwood Creek from its confluence with Kitchen 
Creek downstream to Morena Reservoir and includes approximately 3.7 mi 
(6 km) of La Posta Creek, 2.8 mi (4.5 km) of Morena Creek, and 5 mi (8 
km) of Kitchen Creek upstream from the Cottonwood Creek confluence. 
Subunit 19b includes 9.3 mi (15 km) of Potrero Creek from approximately 
the 2,466-ft (752-m) elevation benchmark downstream to the confluence 
with Cottonwood Creek, approximately 10 mi (16.1 km) of Cottonwood 
Creek from Barrett Lake downstream to the United States International 
Border. Portions of 19b between Morena Reservoir and Barrett Lake and 
19c (Scove Canyon) were no longer considered essential because these 
areas were not known to be occupied. Subunit 19c covers about 7.5 mi 
(12 km) of Pine Valley Creek from the north edge of section 12 (T15S, 
R4E) downstream to approximately 0.6 mi (1 km) south of Interstate 8 
and includes approximately 0.6 mi (1 km) of Noble Creek. Subunit 19d 
encompasses 8 mi (13 km) of Pine Valley Creek from the Nelson Canyon 
confluence downstream to Barrett Reservoir.
    Unit 19 contains a fundamentally important arroyo toad population 
in the Cottonwood Creek Basin. This unit was known to be occupied at 
the time the species was listed and also contains several recent 
documentations of large distinct arroyo toad occurrences (E. Gergus, in 
litt. 1992; Varanus Biological Services, Inc. 1999; USGS, in litt. 
1999b; CNDDB 2005). This unit is important for the conservation of the 
species because it contains several areas where in-stream and/or 
overland dispersal between populations is likely possible and where 
there is room for population expansion. Lands within this unit also 
provide an important linkage to populations occurring on excluded 
essential habitat within the San Diego MSCP area. This unit is 
essential because it contains the primary constituent elements of wide, 
open sandy low-gradient stream segments supporting shallow pools for 
breeding and sparsely vegetated upland habitat for foraging and 
burrowing. Urbanization, grazing, Border Patrol activities, introduced 
plants, and exotic predators are the primary threats to this arroyo 
toad essential habitat that require special management considerations.

Unit 20: Upper Santa Ana River Basin/Cajon Wash, San Bernardino County

    Essential areas in Unit 20 include approximately 4 mi (6.4 km) of 
Cajon Wash and adjacent uplands, from just south of Cajon campground 
downstream to the San Bernardino National Forest boundary. The unit 
encompasses approximately 1,119 ac (4453 ha), of which 56 percent is 
private land and 44 percent is within the San Bernardino National 
Forest.
    This population may represent some of the last vestiges of a much 
greater population that historically existed along the upper Santa Ana 
River Basin, but was almost entirely extirpated due to urbanization of 
the greater Los Angeles area. Arroyo toads were not known to occur 
within this area at the time the species was listed but were located 
near the junction between Lone Pine Canyon and Cajon Wash in 2000 (USGS 
2000). The nearest known arroyo toad population occurs approximately 
3.7 mi (6 km) (straight line distance) to the east in the West Fork 
Mojave River (Unit 22). However, the steep terrain between these 
populations makes it likely that these populations are geographically 
isolated from one another. Protecting this population is essential for 
the conservation of the species because it helps preserve an important 
remnant population that may possess unique genetic, phenotypic, and/or 
behavioral variation of the species. This unit is essential because it 
contains the primary constituent elements of low-gradient sandy stream 
segments supporting shallow breeding pools, adjacent upland terraces 
for foraging and burrowing, and a flooding regime that sufficiently 
corresponds to natural conditions and periodically scours riparian 
vegetation and reworks stream channels. Recreational usage is the 
primary threat to this habitat and requires special management 
considerations.

Unit 21: Little Rock Creek Basin, Los Angeles County

    Essential areas in Unit 21 include approximately 4.5 mi (7.2 km) of 
Little Rock Creek and adjacent uplands, from just north of the Little 
Sycamore campground downstream to the upper end of Little Rock 
Reservoir (in the vicinity of Rocky Point Picnic Ground), and 
approximately 1.1 mi (1.8 km) of Santiago Creek and adjacent uplands 
upstream from the confluence with Little Rock Creek in the Little Rock 
Creek Basin. The unit encompasses approximately 734 ac (297 ha), all of 
which is within the Angeles National Forest.
    Unit 21 contains an important desert arroyo toad population in the 
Little Rock Creek Basin. Arroyo toads were not known to occur within 
this area at the time the species was listed. This unit is important 
for the conservation of the species because recent surveys have 
documented toads in this basin (Forest Service, in litt. 1998; Ramirez 
2002a), which is geographically isolated from other known toad 
populations. Therefore, it is possible that arroyo toads in this desert 
area possess unique genetic and phenotypic variation. Protecting 
peripheral populations such as this is necessary for the species 
conservation because it maintains a broad range of genetic diversity 
for the species. Losses of diversity can result in reduced evolutionary 
flexibility and declines in fitness. This unit is essential because it 
contains the primary constituent elements of low-gradient sandy stream 
segments that support shallow breeding pools, adjacent upland areas for 
foraging, and a hydrologic regime that sufficiently corresponds to 
natural conditions and scours the riparian vegetation, thus providing 
open areas for movement. Threats from recreational activities require 
special management considerations to preserve the area's favorable 
habitat conditions for the persistence of this population.

Unit 22: Upper Mojave River Basin, San Bernardino County

    All essential lands in Unit 22 are excluded from critical habitat 
designation under section 4(b)(2) of the Act for economic reasons (see 
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act section). Essential areas in Unit 22 include 
portions of the Mojave River, the West Fork of the Mojave River, 
Horsethief and Little Horsethief Creeks, Grass Valley Creek, Deep 
Creek, and adjacent uplands in the upper Mojave River Basin. The unit 
encompasses approximately 6,328 ac (2,561 ha), of which 35 percent is 
private land, 34 percent is managed by the U.S. Army Corps of Engineers 
in association with a flood control reservoir, 28 percent is within the 
San Bernardino National Forest, 2 percent is California State Parks 
land, and 1 percent is BLM land. The unit was divided into three 
subunits (22a, 22b, 22c) in the proposed rule. Subunit 22b was removed 
as essential because it is not known whether this area is occupied. 
Subunit 22a includes: (1) Approximately 9.3 mi (18 km) of Deep Creek 
from near Holcomb Creek downstream to the confluence with the West 
Fork; (2) approximately 4 mi (6 km) of Little Horsethief Creek upstream 
from its confluence with Horsethief Creek; (3) approximately 4 mi (6 
km) of Horsethief Creek from approximately 1 mi (1.6 km) above the 
Little Horsethief Creek confluence downstream to the West Fork 
confluence; (4) approximately 6 mi (10 km) of the West Fork of the 
Mojave River from Highway 173 downstream to Mojave River Forks

[[Page 19591]]

Dam; (5) approximately 1 mi (1.6 km) of the Mojave River below Mojave 
River Forks Dam; (6) approximately 1.4 mi (2.2 km) of Grass Valley 
Creek upstream from the confluence with the West Fork; and (7) 
approximately 2.8 mi (4.5 km) of Kinley Creek upstream from the Deep 
Creek confluence. Subunit 22c includes approximately 1 mi (1.6 km) of 
the upper West Fork of the Mojave River, above Silverwood Lake, from 
near the 3,613 ft (1,462 m) elevation benchmark downstream to the upper 
end of the lake.
    These subunits contain the primary constituent elements of low-
gradient sandy stream segments that support shallow breeding pools, 
adjacent upland areas for foraging, and a hydrologic regime that 
sufficiently corresponds to natural conditions and scours the riparian 
vegetation, thus providing open areas for movements by toads. Subunit 
22c was not known to be occupied at the time the species was listed, 
but toads have been found during recent surveys (Tierra Madre 
Consultants, Inc. in litt. 1995; Ramirez 2002b; CNDDB 2005; Forest 
Service, in litt. 2003; Ramirez 2003). Summit Valley, which encompasses 
the lower portions of Horsethief Creek and the West Fork of the Mojave 
River, is a broad, flat, alluvial valley that supports a substantial 
arroyo toad population (Ramirez 2003). Providing adequate and proper 
streamflows and protections for the upland alluvial habitats would 
increase the probability for the long-term persistence of this large 
toad population. If adequate streamflows and upland alluvial habitats 
can be maintained, this desert unit would have the most favorable 
conditions of any of the desert units for long-term persistence of the 
large toad population. Protection of this area is essential to maintain 
the range of genetic and phenotypic diversity of the species. The 
presence of exotic species, grazing, residential development, flood 
control activities, and recreational activity (particularly off-road 
vehicle use) may create the need for special management in this unit.

Unit 23: Whitewater River Basin, Riverside County

    Essential areas in Unit 23 include approximately 7.2 mi (11.7 km) 
of the Whitewater River and adjacent uplands, from near Red Dome 
downstream to the Colorado River Aqueduct. The unit encompasses 
approximately 333 ac (135 ha), of which 100 percent is BLM land. 
Approximately 625 ac (252 ha) of essential habitat within the draft 
Coachella Valley MSHCP planning area has been excluded from the final 
designation (see Application of Section 3(5)(A) and 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act section for a detailed 
discussion).
    Unit 23 contains another important desert arroyo toad population. 
This unit was known to be occupied at the time of listing. Arroyo toads 
were observed and photographed in the drainage in 1992 (Patten and 
Myers 1992) but were not detected in surveys conducted during the 2000 
breeding season (Jones and Stokes, in litt. 2000). However, 2000 was 
generally a bad year for arroyo toad breeding activity, particularly in 
the southern half of the species' range, because of below average 
precipitation and subsequent low streamflows. In 2003, a tadpole was 
identified with almost complete certainty to be an arroyo toad near 
where the Colorado River Aqueduct crosses the river (P. Bloom, in litt. 
2003). Given the relatively recent documentation of arroyo toads in 
this drainage, and the continued presence of suitable habitat in the 
area, we believe it is likely that this unit is still occupied. Unit 23 
is essential because it supports several primary constituent elements 
such as open sandy areas near small areas of slow moving water and 
adjacent sparse riparian habitat for foraging and burrowing. These 
essential PCEs support an isolated desert population on the easternmost 
periphery of the species' range in the Colorado Desert that may possess 
unique phenotypic and genetic variation that are unique to desert 
populations and possibly distinct from desert populations in Units 21 
and 22 in the Mojave Desert. Maintaining greater genetic diversity 
creates greater potential for adaptation to changing environmental 
conditions. Threats to this population that require special management 
considerations include unsuitable water flow for breeding and off 
highway vehicular traffic.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.2, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species and 
are relying on the statutory provisions of the Act in evaluating the 
effects of Federal actions on designated critical habitat, pending 
further regulatory guidance.
    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 proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a 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. We may issue a formal conference 
report if requested by a Federal agency. Formal conference reports on 
proposed critical habitat contain an opinion that is prepared according 
to 50 CFR 402.14, as if critical habitat were designated. We may adopt 
the formal conference report as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). The conservation recommendations in a conference report 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, the 
action agency ensures that their 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

[[Page 19592]]

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 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.
    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 U.S. Army Corps of Engineers 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 funding), 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 may also jeopardize the continued existence of the arroyo toad. 
Federal activities that, when carried out, may adversely affect 
critical habitat for the arroyo toad include, but are not limited to:
    (1) Actions that would affect aquatic, riparian, or upland areas by 
any Federal agency. Such activities could include, but are not limited 
to, flood control or changes in water banking activities. These 
activities could eliminate or reduce the habitat necessary for the 
reproduction, sheltering, or growth of arroyo toads.
    (2) Actions that would affect the regulation of water flows by any 
Federal agency. Such activities could include, but are not limited to, 
damming, diversion, and channelization. These activities could 
eliminate or reduce the habitat necessary for the reproduction, 
sheltering or growth of arroyo toads.
    (3) Actions that would involve regulations funded or permitted by 
the Federal Highway Administration. (We note that the Federal Highway 
Administration does not fund the routine operations and maintenance of 
the State highway system.). Such activities could include, but are not 
limited to, new road construction and right-of-way designation. These 
activities could eliminate or reduce aquatic or riparian habitat along 
river crossings necessary for reproduction, sheltering or growth of 
arroyo toads.
    (4) Actions that would involve regulation of airport improvement 
activities by the Federal Aviation Administration. Such activities 
could include, but are not limited to, the creation or expansion of 
airport facilities. These activities could eliminate or reduce aquatic, 
riparian, or upland habitat necessary for the reproduction, sheltering, 
foraging, or growth of arroyo toads.
    (5) Actions that would involve licensing of construction of 
communication sites by the Federal Communications Commission. Such 
activities could include, but are not limited to, the installation of 
new radio equipment and facilities. These activities could eliminate or 
reduce the habitat necessary for the reproduction, sheltering, 
foraging, or growth of arroyo toads.
    (6) Actions that would involve 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. Such activities could include, but are not 
limited to, activities associated with the cleaning up of Superfund 
sites, erosion control activities, and flood control activities. These 
activities could eliminate or reduce upland and/or aquatic habitat for 
arroyo toads.
    (7) Actions that would affect waters of the United States by the 
Army Corps under section 404 of the Clean Water Act. Such activities 
could include, but are not limited to, placement of fill. These 
activities could eliminate or reduce the habitat necessary for the 
reproduction, feeding, or growth of arroyo toads.
    Of the six units we are designating as critical habitat, we 
consider four of them (units 2, 4, 9, 23) to be occupied by the species 
at the time of listing, as identified in the listing rule (59 FR 
64859). Critical habitat units 20 and 21 were not known to be occupied 
at the time of listing but are currently occupied; the arroyo toad 
populations in these units have, in all likelihood, been inhabiting 
areas within these two units for many years, but were not detected 
until after the species became listed in 1994. We consider all of the 
units designated as critical habitat, as well as those that have been 
excluded, to be essential to the conservation of the arroyo toad. All 
units are within the geographic range of the species, all are occupied 
by the species (based on observations made within the last 20 years), 
and are likely to be used by the arroyo toad, whether for foraging, 
breeding, growth of larvae and juveniles, intra-specific communication, 
dispersal, migration, genetic exchange, or sheltering. Federal agencies 
already consult with us on activities in areas currently occupied by 
the species or if the species may be affected by the action to ensure 
that their actions do not jeopardize the continued existence of the 
species.
    We recognize that the designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, we 
want to ensure that the public is aware that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) of 
the Act and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard and the prohibitions of section 9 of the Act. 
Critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, HCPs, or other species 
conservation planning efforts, if new information available to these 
planning efforts calls for a different outcome.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact Diane Noda, Field Supervisor, Ventura Fish and Wildlife Office 
or Carlsbad

[[Page 19593]]

Fish and Wildlife Office (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).

Application of Sections 3(5)(A) and 4(a)(3) and Exclusion Under Section 
4(b)(2)of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential for the conservation of the species are not, by 
definition, critical habitat. Similarly, within the geographic area 
occupied by the species, if the features essential for the conservation 
of the species will not require special management considerations or 
protection, the area is not, by definition, critical habitat. To 
determine whether the essential features within an area may require 
special management, we first determine if the essential features 
located there generally require special management to address 
applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the essential features within the area do not 
require special management.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the 
enhancement or restoration of its habitat within the area covered by 
the plan); (2) the plan provides assurances that the conservation 
management strategies and actions will be implemented (i.e., those 
responsible for implementing the plan are capable of accomplishing the 
objectives, and have an implementation schedule or adequate funding for 
implementing the management plan); and (3) the plan provides assurances 
that the conservation strategies and measures will be effective (i.e., 
it identifies biological goals, has provisions for reporting progress, 
and is of a duration sufficient to implement the plan and achieve the 
plan's goals and objectives).
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised, on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    In our critical habitat designations, we use the provisions 
outlined in section 4(b)(2) of the Act to evaluate those specific areas 
that we are proposing as critical habitat. Lands we have excluded 
pursuant to section 4(b)(2) include those covered by the following 
types of plans if they provide assurances that the conservation 
measures they outline will be implemented and effective: (1) Legally 
operative HCPs that cover the species; (2) draft HCPs that cover the 
species and have undergone public review and comment (i.e., pending 
HCPs); (3) Endangered Species Management Plans prepared by the DOD 
(where a 4(a)(3) exemption is not possible due to a unsigned INRMP); 
and (4) areas with significant economic impacts to landowners.
    We have considered, but are excluding from critical habitat for the 
arroyo toad, essential habitat in the following areas under section 
4(b)(2): Lands covered by the Orange County Central-Coastal NCCP/HCP, 
Western Riverside Multiple Species Habitat Conservation Plan (MSHCP), 
and pending Coachella Valley MSHCP; areas on Fort Hunter Liggett; and 
lands with significant economic impacts to landowners. See below for a 
detailed discussion of our exclusion of these lands under section 
4(b)(2) of the Act.
    Section 318 of fiscal year 2004 the National Defense Authorization 
Act (Public Law No. 108-136) amended the Endangered Species Act to 
address the relationship of Integrated Natural Resources Management 
Plans (INRMPs) to critical habitat by adding a new section 4(a)(3). 
This provision prohibits the Service from designating as critical 
habitat any lands or other geographical areas owned or controlled by 
the Department of Defense, or designated for its use, that are subject 
to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 
670a), if the Secretary of the Interior determines in writing that such 
plan provides a benefit to the species for which critical habitat is 
proposed for designation. The following installations have INRMPs in 
place that provide a benefit for the arroyo toad, and essential habitat 
on these installations is exempted from the critical habitat 
designation under section 4(a)(3): Marine Corps Base, Camp Pendleton 
and Naval Weapons Station, Seal Beach Detachment Fallbrook (Fallbrook 
Naval Weapons Station). See below for a detailed discussion of our 
exemption of these lands under section 4(a)(3) of the Act. Table 3 
lists the total size of areas designated as critical habitat or as 
essential to the conservation of the arroyo toad, and areas excluded 
from the final designation.

   Table 3.--Total Size of Final Critical Habitat for the Arroyo Toad,
    Including Areas Excluded and Exempted From the Final Designation
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total essential habitat.................  104,699 ac
                                          (42,370 ha)
Essential habitat exempted under section  12,630 ac
 4(a)(3) of the Act: Camp Pendleton       (5,111 ha)
 (except lands leased to the CDPR) and
 Fallbrook Naval Weapons Station.
Exclusion of essential habitat under      80,374 ac
 section 4(b)(2) of the Act: Fort Hunter  (32,526 ha)
 Liggett; HCP plan areas including
 Central-Coastal Orange County NCCP/HCP,
 Western Riverside MSHCP, pending
 Coachella Valley MSHCP; areas with a
 significant economic impact to
 landowners.
    Total Final Critical Habitat........  11,695 ac
                                          (4,732 ha)
------------------------------------------------------------------------


[[Page 19594]]

Relationship of Critical Habitat to Military Lands--Application of 
Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete, by November 17, 2001, an Integrated Natural Resource 
Management Plan (INRMP). An INRMP integrates implementation of the 
military mission of the installation with stewardship of the natural 
resources found on military lands. Each INRMP includes an assessment of 
the ecological needs on the installation, including the need to provide 
for the conservation of listed species; a statement of goals and 
priorities; a detailed description of management actions to be 
implemented to provide for the ecological needs of listed species; and 
a monitoring and adaptive management plan. We consult with the military 
on the development and implementation of INRMPs for installations with 
listed species.
    We are prohibited from designating as critical habitat any lands or 
other geographical areas owned or controlled by the DOD, or designated 
for its use, that are subject to an INRMP prepared under section 101 of 
the Sikes Act, if the Secretary of the Interior determines, in writing, 
that such plan provides a benefit to the species for which critical 
habitat is proposed for designation. In order to provide a benefit to 
the species, the INRMP must meet the following three criteria: (1) A 
current INRMP must be complete and provide a benefit to the species; 
(2) the plan must provide assurances that the conservation management 
strategies will be implemented; and (3) the plan must provide 
assurances that the conservation management strategies will be 
effective, by providing for periodic monitoring and revisions (adaptive 
management) as necessary. An INRMP integrates implementation of the 
military mission of the installation with stewardship of the natural 
resources found there. Each INRMP includes an assessment of the 
ecological needs on the military installation, including conservation 
provisions for listed species; a statement of goals and priorities; a 
detailed description of management actions to be implemented to provide 
for these ecological needs; and a monitoring and adaptive management 
plan.
    We have exempted lands owned by Camp Pendleton and Fallbrook Naval 
Weapons Station from the final critical habitat designation pursuant to 
section 4(a)(3) of the Act based on legally operative INRMPs that 
provide a benefit to the arroyo toad. This includes portions of Unit 11 
and Unit 12 on Camp Pendleton and a portion of Unit 12 on Fallbrook 
Naval Weapons Station. Although Fort Hunter Liggett has not completed 
an INRMP, we are excluding essential habitat on this base under 4(b)(2) 
of the Act based on their completed Endangered Species Management Plan 
for the arroyo toad. Detailed discussions of the exemptions and 
exclusion of military lands are discussed by installation below.

Marine Corps Base, Camp Pendleton

    The arroyo toad occurs primarily in three watersheds on Camp 
Pendleton: Santa Margarita, San Onofre, and San Mateo Rivers. Arroyo 
toad populations within these watersheds on Camp Pendleton contain 
features essential to the conservation of the species because these 
watersheds retain relatively natural hydrological processes and 
functions. The Santa Margarita watershed is one of the least altered 
major watersheds occupied by the species throughout its range. Also, 
the lower portions of all three watersheds represent the last remaining 
coastal plain areas where high numbers of arroyo toads occur within 6 
mi (10 km) of the coast and in coastal marsh zones. Elsewhere 
throughout the species' range, urban and agricultural development has 
been largely responsible for extirpating arroyo toad populations in low 
coastal plain areas.
    Camp Pendleton's INRMP was completed and signed by the Commanding 
General on November 9, 2001. The INRMP provides conservation measures 
that will directly and indirectly benefit the arroyo toad and other 
listed species found on the Base. According to Camp Pendleton's March 
16, 2005 comment letter, the Base annually reviews and updates its 
INRMP with cooperation of the Service and California Department of Fish 
and Game to verify that: (1) The Base has sufficient professionally 
trained natural resources management staff available to implement the 
INRMP; (2) there have not been significant changes to the 
installation's mission requirements or its natural resources; (3) 
planned actions are implemented in an adaptive manner, adjusting 
management priorities and methodologies to accommodate changing natural 
resource and mission requirements; and (4) the required Federal, State, 
and installation coordination has occurred.
    Camp Pendleton manages listed species, including the arroyo toad, 
in its riparian areas, such as Santa Margarita River, within the 
framework of programmatic management plans, approved in a biological 
opinion (BO) issued by the Service on October 30, 1995 (Service 1995). 
The biological opinion discussed ongoing and planned training 
activities, infrastructure maintenance activities, several construction 
projects, and a Riparian and Estuarine Ecosystem Conservation Plan and 
assessed potential impacts to six federally-listed species, including 
the arroyo toad. Management measures include, but are not limited to, 
programmatic instructions to avoid and minimize impacts to listed 
species (e.g. vehicle traffic must use existing roads, trails and 
crossings in riparian areas) and riparian habitat enhancement (exotic 
vegetation and animal control). Camp Pendleton's management of riparian 
areas provides a benefit to the arroyo toad.
    Additionally, Camp Pendleton states in their March 16, 2005, 
comment letter that they are also conducting a study examining arroyo 
toad use of habitat dominated by giant reed (Arundo donax) and have 
partnered with the U.S. Geological Survey's Biological Resources 
Division to develop and implement a rigorous, science-based monitoring 
protocol for the arroyo toad populations on the Base.
    Camp Pendleton has demonstrated ongoing funding of their INRMP and 
management of endangered and threatened species. According to their 
March 16, 2005, comment letter, in FY 2003, Camp Pendleton spent 
approximately $5 million to fund INRMP-driven projects and to assure 
its implementation. During FY 2004, they applied over $3.5 million 
toward projects, programs, and activities that provide direct and 
indirect benefit to the management and conservation of Base natural 
resources. Moreover, in partnership with the Service, Camp Pendleton is 
funding two Service biologists to assist in implementing their Sikes 
Act program and buffer lands acquisition initiative.
    Based on Camp Pendleton's past funding history for listed species 
and their Sikes Act program, we believe there is a high degree of 
certainty that Camp Pendleton: (1) Will continue to have the necessary 
staffing, funding levels, funding sources, and other resources to 
implement their INRMP, (2) has the legal authority, legal procedural 
requirements, authorizations, and regulatory mechanisms to implement 
their INRMP and other conservation efforts, and (3) will implement the 
INRMP in coordination with the California Department of Fish and Game

[[Page 19595]]

and with the Service. We also believe that there is a high degree of 
certainty that the conservation efforts of their INRMP will be 
effective. Service biologists work closely with Camp Pendleton on a 
variety of endangered and threatened species issues, including the 
arroyo toad. The management programs and Base directives to avoid and 
minimize impacts to the species are consistent with current and ongoing 
section 7 consultations with Camp Pendleton. Through our cooperative 
relationship with Camp Pendleton and the section 7 consultation 
process, we can ensure that conservation efforts identified in the 
INRMP for the arroyo toad will: (1) Address the nature and extent of 
threats, (2) provide for monitoring and reporting progress on 
implementation, and (3) incorporate the principles of adaptive 
management. Therefore, we find that the INRMP for Camp Pendleton 
provides a benefit for the arroyo toad and are exempting from critical 
habitat all lands on Camp Pendleton, including lands leased to the 
State, pursuant to section 4(a)(3) of the Act.

Fallbrook Naval Weapons Station

    Fallbrook Naval Weapons Station, located in northern San Diego 
County, is approximately 8,850 ac (3,581 ha). Fallbrook Naval Weapons 
Station contains high quality habitat that supports a large population 
of the arroyo toad within the Santa Margarita watershed. Arroyo toads 
at Fallbrook NWS have the potential to disperse into adjacent 
populations downstream on Camp Pendleton and upstream to suitable 
habitat on private lands.
    In 1996, Fallbrook NWS completed an INRMP to address conservation 
and management recommendations within the scope of the installation's 
military mission. The INRMP provides conservation measures that will 
directly and indirectly benefit the arroyo toad and other listed 
species found on the Naval Station. The 1996 INRMP was prepared with 
input from the Service and incorporates conservation measures outlined 
in several previously completed consultations between the Service and 
Fallbrook NWS. Fallbrook NWS is currently working with the Service to 
revise and update their INRMP.
    Additionally, Fallbrook NWS recently completed a formal section 7 
consultation with the Service to revise their fire management plan to 
provide more effective fuels management and wildfire control, while 
minimizing impacts to listed species on the installation, including the 
arroyo toad. The revised fire management plan incorporates fuels 
management and fire suppression activities with habitat management 
needs of the arroyo toad and other listed species to promote 
conservation and recovery of these species on Fallbrook NWS.
    Based on Fallbrook Naval Weapons Station's Sikes Act program, we 
believe there is a high degree of certainty that they: (1) Will 
continue to have the necessary staffing, funding levels, funding 
sources, and other resources to implement their INRMP, (2) has the 
legal authority, legal procedural requirements, authorizations, and 
regulatory mechanisms to implement their INRMP and other conservation 
efforts, and (3) will implement the INRMP in coordination with the 
California Department of Fish and Game and with the Service. We also 
believe that there is a high degree of certainty that the conservation 
efforts of their INRMP will be effective. Service biologists work 
closely with Fallbrook Naval Weapons Station on a variety of endangered 
and threatened species issues, including the arroyo toad. The 
management programs and Station's directives to avoid and minimize 
impacts to the species are consistent with current and ongoing section 
7 consultations with Fallbrook Naval Weapons Station. Through our 
cooperative relationship with Fallbrook Naval Weapons Station and the 
section 7 consultation process, we can ensure that conservation efforts 
identified in the INRMP for the arroyo toad will: (1) Address the 
nature and extent of threats, (2) provide for monitoring and reporting 
progress on implementation, and (3) incorporate the principles of 
adaptive management. Therefore, we find that the INRMP for Fallbrook 
Naval Weapons Station provides a benefit for the arroyo toad and are 
exempting from critical habitat all lands on Fallbrook Naval Weapons 
Station pursuant to section 4(a)(3) of the Act.

Fort Hunter Liggett

    The arroyo toad occupies an approximately 17-mi (27.4-km) segment 
of the San Antonio River at Fort Hunter Liggett. This segment contains 
features essential to the conservation of the species and is of 
important biological value because it supports the northernmost known 
population and is approximately 100 mi (160 km) north of the nearest 
documented extant population. Arroyo toads in this unit may experience 
climatic conditions not faced by toads at sites farther south. The 
protection of this area is important to maintaining the complete 
genetic variability of the species and the full range of ecological 
settings within which it is found. This stretch of the San Antonio 
River is undammed, provides excellent habitat for the arroyo toad, and 
supports probably one of the largest populations within the Northern 
Region.
    In the proposed rule, we considered but did not propose to include 
mission-essential training areas on Fort Hunter Liggett as critical 
habitat for the arroyo toad under section 4(b)(2) of the Act, because 
designation of critical habitat could adversely impact national 
security. The Army conducts training operations using landing fields, 
tanks, machine guns, grenade launchers, and other weapons at Fort 
Hunter Liggett. The Army has stated that it considers critical habitat 
to conflict with mission-essential training tasks, and that critical 
habitat designation would adversely affect Fort Hunter Liggett's 
training mission. The Army submitted a map to us of the mission-
essential training areas that are found within lands we determined to 
contain features essential to the conservation of the arroyo toad 
(Army, in litt. 2003). During the public comment period for the 
proposal, the Army stated that we had incorrectly concluded that the 
only mission-essential areas are the individual training sites. Rather, 
all Fort Hunter Liggett lands are essential for realistic and effective 
training. Thus, the designation of the areas we proposed as critical 
habitat would seriously limit their ability to conduct critical 
training activities.
    The Army recognizes the need for protection and conservation of 
sensitive species, including the arroyo toad, on military lands and has 
identified conservation measures to protect and conserve arroyo toads 
and their habitat. The Army has coordinated with us to finalize the 
development of their Endangered Species Management Plan (ESMP) for the 
arroyo toad at Fort Hunter Liggett, which currently guides management 
of all lands occupied by arroyo toads along the San Antonio River. The 
ESMP includes measures to minimize harm to the arroyo toad from 
training activities and outlines actions to ensure the persistence of 
arroyo toads on the installation. The ESMP is an appendix to, and part 
of, the INRMP for Fort Hunter Liggett. We expect the INRMP, which is in 
a final draft form, to be finalized and signed in 2005. We have 
reviewed Fort Hunter Liggett's ESMP in relation to the three criteria 
listed above for evaluating management plans, and we find that the ESMP 
meets the criteria and will provide a benefit to the arroyo toad 
population at Fort Hunter Liggett.

[[Page 19596]]

(1) Benefits of Inclusion
    The primary benefit of any critical habitat with regard to 
activities that require consultation pursuant to section 7 of the Act 
is to ensure that the activity will not destroy or adversely modify 
designated critical habitat. The educational benefits of critical 
habitat include informing the Army of areas that are important to the 
conservation of listed species. However, because the Army has worked 
cooperatively with the Service to develop an ESMP that protects the 
toad and its essential habitat on Fort Hunter Liggett, and the nearly 
finalized INRMP is expected to be completed in 2005 (for which we will 
complete a Section 7 consultation), we do not believe that designation 
of critical habitat on the fort will significantly benefit the arroyo 
toad beyond the protection already afforded the species under the Act. 
In addition, through the INRMP development process and development of 
the ESMP for the arroyo toad, the Army is already aware of essential 
arroyo toad habitat areas on the installation.
(2) Benefits of Exclusion
    Substantial benefits are expected to result from the exclusion of 
Fort Hunter Liggett from critical habitat. The Army has stated that all 
training and non-training areas together are integral to their mission 
of ensuring troop readiness. If we designate critical habitat on the 
base the Army would be required to engage in consultation with us on 
activities that may affect designated critical habitat. The requirement 
to consult on activities occurring on the base could delay and impair 
the ability of the Army to conduct effective training activities and 
limit Fort Hunter Liggett's utility as a military training 
installation, thereby adversely affecting national security.
    In addition, exclusion of Fort Hunter Liggett lands from the final 
designation will allow us to continue working with the Army in a spirit 
of cooperation and partnership. In the past the Army has generally 
viewed the designation of critical habitat as having a negative 
regulatory effect that discourages cooperative and proactive efforts by 
the Army to conserve listed species and their habitats. The DoD 
generally views designation of critical habitat on military lands as an 
indication that their actions to protect the species and its habitat 
are inadequate. Excluding these areas from the perceived negative 
consequences of critical habitat will facilitate cooperative efforts 
between the Service and the Army to formulate the best possible INRMP 
and ESMP, and continue effective management of the arroyo toad at Fort 
Hunter Liggett.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We met with the Army on December 12, 2003, at Fort Hunter Liggett 
to discuss essential arroyo toad habitat, and possible impacts to the 
base. We also received extensive comments from the Army during the 
public comment period. In light of national security interests and the 
Army's need to maintain a high level of readiness and fighting 
capabilities, and in light of the Army's completed ESMP for the arroyo 
toad, we excluded critical habitat on all lands within unit 1, 
including all Fort Hunter Liggett lands, under section 4(b)(2) of the 
Act. We find that the benefits of excluding these lands from critical 
habitat outweigh the benefits of including them. We further find that 
the exclusion of these areas will not lead to the extinction of the 
arroyo toad because Army training activities are conducted primarily 
outside of the riparian corridor where toads are concentrated, and the 
ESMP is expected to effectively manage for the persistence of the San 
Antonio River population.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Relationship of Critical Habitat to Economic Impacts--Exclusions Under 
Section 4(b)(2) of the Act

    This section allows the Secretary to exclude areas from critical 
habitat for economic reasons if she determines that the benefits of 
such exclusion exceed the benefits of designating the area as critical 
habitat, unless the exclusion will result in the extinction of the 
species concerned. This is a discretionary authority Congress has 
provided to the Secretary with respect to critical habitat. Although 
economic and other impacts may not be considered when listing a 
species, Congress has expressly required their consideration when 
designating critical habitat. Exclusions under this section for non-
economic reasons are addressed above.
    In general, we have considered in making the following exclusions 
that all of the costs and other impacts predicted in the economic 
analysis may not be avoided by excluding the area, due to the fact that 
the areas in question are currently occupied by the arroyo toad and 
there will be requirements for consultation under Section 7 of the Act, 
or for permits under section 10 (henceforth ``consultation''), for any 
take of the species, and other protections for the species exist 
elsewhere in the Act and under State and local laws and regulations. In 
addition, some areas are also occupied by other listed species and in 
some cases are designated as critical habitat for those species. In 
conducting economic analyses, we are guided by the 10th Circuit Court 
of Appeal's ruling in the New Mexico Cattle Growers Association case 
(248 F.3d at 1285), which directed us to consider all impacts, 
``regardless of whether those impacts are attributable co-extensively 
to other causes.'' As explained in the analysis, due to possible 
overlapping regulatory schemes and other reasons, there are also some 
elements of the analysis which may overstate some costs.
    Conversely, the 9th Circuit has recently ruled (``Gifford 
Pinchot'', 378 F.3d at 1071) that the Service's regulations defining 
``adverse modification'' of critical habitat are invalid because they 
define adverse modification as affecting both survival and recovery of 
a species. The court directed us to consider that adverse modification 
should be focused on impacts to recovery. While we have not yet 
proposed a new definition for public review and comment, changing the 
adverse modification definition to respond to the Court's direction may 
result in additional costs associated with critical habitat definitions 
(depending upon the outcome of the rulemaking). This issue was not 
addressed in the economic analysis for the arroyo toad, as this was 
well underway at the time the decision was issued and we have a court-
ordered deadline for reaching a final decision, so we cannot quantify 
the impacts at this time. However, it is a factor to be

[[Page 19597]]

considered in evaluating projections of future economic impacts from 
critical habitat.
    In addition, we have received several credible comments on the 
economic analysis contending that it underestimates, perhaps 
significantly, the costs associated with this critical habitat 
designation. Both of these factors are a balancing consideration 
against the possibility that some of the costs shown in the economic 
analysis might be attributable to other factors, or be overly high, and 
so not necessarily avoided by excluding the area for which the costs 
are predicted from this critical habitat designation.
    We recognize that we have excluded a significant portion of the 
proposed critical habitat. Congress expressly contemplated that 
exclusions under this section might result in such situations when it 
enacted the exclusion authority. House Report 95-1625, stated on page 
17: ``Factors of recognized or potential importance to human activities 
in an area will be considered by the Secretary in deciding whether or 
not all or part of that area should be included in the critical habitat 
* * * In some situations, no critical habitat would be specified. In 
such situations, the Act would still be in force prevent any taking or 
other prohibited act * * * .'' (emphasis supplied)
    We accordingly believe that these exclusions, and the basis upon 
which they are made, are fully within the parameters for the use of 
section 4(b)(2) set out by Congress.

Unit 3

    We have excluded all of proposed Unit 3, consisting of 
approximately 3,675 ac (1,487 ha) under section 4(b)(2) of the Act. The 
analysis which led us to the conclusion that the benefits of excluding 
this area exceed the benefits of designating it as critical habitat, 
and will not result in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would exceed $20 million between the years 2004 
through 2025, almost all of which would be related to impacts to local 
water supplies. These figures include costs associated with conducting 
consultations with us pursuant to section 7 of the Act, modification of 
current operations of dams and other elements of water projects, time 
delays, and uncertainty. Excluding this unit would avoid some or all of 
those costs.
    We note that the analysis made the assumption that the Service 
would require revisions in dam operations to benefit the species in 
only half of the cases where such modifications could reasonably be 
required, as only the higher priority situations were likely to be 
addressed. As a result, the analysis reduced the estimated cost impacts 
to water supplies by 50% across-the-board. While this is one possible 
outcome, it is also quite possible that the Service, either of its own 
volition or as the result of litigation, might in fact address every 
case where modification to existing dam operations are needed to avoid 
adverse modification of critical habitat, if it were designated. 
Therefore, in both this and other units addressed below where there are 
significant projected costs relating to water supplies, there is a 
reasonable possibility that these costs may be twice the projected 
amounts.
    The analysis also presents an alternative under which costs would 
be approximately half of the amount provided, but does not have, and 
thus does not provide, information to indicate the probability of this 
occurring. As a result, it is quite apparent how the higher costs could 
be reached, but not clear as to whether the lower-cost scenario could 
occur.
    The economic analysis looked at two different generally accepted 
ways of measuring economic impacts from the designation--economic 
efficiency and regional economic impact. The figures resulting from 
these analyses are not the same, and should not be added in an effort 
to obtain cumulative totals. Please consult the economic analysis for 
explanations of the two methods and of their differences.
    The economic analysis found that in addition to the efficiency 
effects noted above, the total impacts to water supply from this unit 
and other proposed units would cause a regional reduction in output of 
$10.6 million between the years 2004 through 2025 (again reduced by 50% 
on the assumption that only half the affected dams would be required to 
undertake changes, as explained above--see Table 18 of the Economic 
Analysis) and a loss of 85 jobs.
    By excluding this unit, some or all of those costs will be avoided.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive

[[Page 19598]]

climate for Habitat Conservation Plans and other active conservation 
measures which provide greater conservation benefits than would result 
from designation of critical habitat--even in the post-Gifford Pinchot 
environment--which requires only that there be no adverse modification 
resulting from Federally-related actions. We therefore find that the 
benefits of excluding these areas from this designation of critical 
habitat outweigh the benefits of including them in the designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit 
under section 10. The toad is protected from take under section 9. The 
exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 5

    We have excluded all of proposed Unit 5, consisting of 
approximately 2,921 ac (1,182 ha), under section 4(b)(2) of the Act. 
The analysis which led us to the conclusion that the benefits of 
excluding this area exceed the benefits of designating it as critical 
habitat, and will not result in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of at 50 CFR 17.3) would be required even without the 
critical habitat designation and without regard to the existence of a 
Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would exceed $15 million between the years 2004 
through 2025. Over $14 million of this would be related to impacts to 
local water supplies (see also discussion above on water costs). These 
figures include costs associated with conducting consultations with us 
pursuant to section 7 of the Act, modification of current operations of 
dams and other elements of water projects, time delays, and 
uncertainty. Excluding this unit would avoid some or all of those 
costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above --which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit 
under section 10. The toad is protected from take under section 9. The 
exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 6

    We have excluded all of proposed Unit 6, consisting of 
approximately 2,538 ac (1,027 ha), under section 4(b)(2) of the Act. 
The analysis which led us to the conclusion that the benefits of 
excluding this area exceed the benefits of designating it as critical 
habitat, and will not result in the extinction of the species, follows.

[[Page 19599]]

(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of at 50 CFR 17.3) would be required even without the 
critical habitat designation and without regard to the existence of a 
Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would exceed $21 million between the years 2004 
through 2025. Over $16 million of this would fall on private property 
owners, and over $3 million would be related to impacts to local water 
supplies (see also discussion above on water costs). These figures 
include costs associated with conducting consultations with us pursuant 
to section 7 of the Act, loss of land values associated with the 
avoidance of arroyo toads and their habitat, modification of current 
operations of dams and other elements of water projects, time delays, 
and uncertainty. Excluding this unit would avoid some or all of those 
costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat.
    In addition, as discussed above, there are a substantial number of 
Habitat Conservation Plans and other active conservation measures 
underway for the species, which provide greater conservation benefits 
than would result from a designation. In regards to subunit 6b 
specifically, the Natural River Management Plan (NRMP) (Valencia 
Company 1998) ensures the protection of most of the river corridor 
areas considered essential for the arroyo toad along the Santa Clara 
River and lower San Francisquito Creek with conservation easements, 
which total approximately 1,200 ac (486 ha). The Newhall Ranch Specific 
Plan (separate from the NRMP), includes protection via conservation 
easement for the Santa Clara River corridor from just above the 
confluence of Castaic Creek down to the Los Angeles County border. The 
Castaic Creek river corridor below the I-5 bridge would be protected 
via conservation easement as well. Newhall Land has also agreed to 
protect approximately 48 additional ac (19 ha) of prime arroyo toad 
habitat within the Santa Clara River corridor near the I-5 bridge via 
conservation easement (riparian areas not included in the NRMP). Thus, 
most all of the breeding habitat and riparian river corridor in subunit 
6b is protected or designated for protection via conservation easement. 
Ultimately, these easements will extend along every river mile of 
Castaic Creek, San Francisquito Creek, and the Santa Clara River within 
subunit 6b. There is accordingly no reason to believe that the 
exclusion of unit 6 would result in extinction of the species.

Unit 7

    We have excluded all of Unit 7, consisting of approximately 1,772 
ac (717 ha) , under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign

[[Page 19600]]

specific actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of at 50 CFR 17.3) would be required even without the 
critical habitat designation and without regard to the existence of a 
Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consulting with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be nearly $36 million between the years 2004 
through 2025. Over $26 million of this would fall on private property 
owners, and over $7 million would be related to impacts to local water 
supplies (see also discussion above on water costs). These figures 
include costs associated with conducting consultations with us pursuant 
to section 7 of the Act, loss of land values associated with the 
avoidance of arroyo toads and their habitat, modification of current 
operations of dams and other elements of water projects, time delays, 
and uncertainty. By excluding this unit, some or all of those costs 
will be avoided.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above --which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 10

    We have excluded all of Unit 10, consisting of approximately 5,256 
ac (2127 ha), under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be nearly $56 million between the years 2004 
through 2025. Over $53 million of this would fall on private property

[[Page 19601]]

owners. These figures include costs associated with conducting 
consultations with us pursuant to section 7 of the Act, loss of land 
values associated with the avoidance of arroyo toads and their habitat, 
time delays, and uncertainty. Excluding this unit would avoid some or 
all of those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 11

    We have excluded all private lands in proposed Unit 11, consisting 
of approximately 1,399 ac (566 ha), under section 4(b)(2) of the Act. 
The analysis which led us to the conclusion that the benefits of 
excluding this area exceed the benefits of designating it as critical 
habitat, and will not result in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be nearly $18 million between the years 2004 
through 2025. Over $15 million of this would fall on private property 
owners. These figures include costs associated with conducting 
consultations with us pursuant to section 7 of the Act, loss of land 
values associated with the avoidance of arroyo toads and their habitat, 
time delays, and uncertainty. Excluding this unit would avoid some or 
all of those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The

[[Page 19602]]

exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 12

    We have excluded all private lands in Unit 12, consisting of 
approximately 537 ac (217 ha), under section 4(b)(2) of the Act. The 
analysis which led us to the conclusion that the benefits of excluding 
this area exceed the benefits of designating it as critical habitat, 
and will not result in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be over $40 million between the years 2004 
through 2025, nearly all of which would fall on private property 
owners. These figures include costs associated with conducting 
consultations with us pursuant to section 7 of the Act, loss of land 
values associated with the avoidance of arroyo toads and their habitat, 
time delays, and uncertainty. Excluding this unit would avoid some or 
all of those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 13

    We have excluded all of Unit 13, consisting of approximately 2,115 
ac (856 ha), under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth

[[Page 19603]]

of exotic species, increasing the availability of open sand bar 
habitat, and maintaining breeding pools long enough for larvae to 
develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be over $34 million between the years 2004 
through 2025, nearly all of which would fall on private property 
owners. These figures include costs associated with conducting 
consultations with us pursuant to section 7 of the Act, loss of land 
values associated with the avoidance of arroyo toads and their habitat, 
time delays, and uncertainty. Excluding this unit would avoid some or 
all of those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation.
    In regards to subunits 13a and 13b specifically, the Western 
Riverside MSHCP offers additional conservation measures to protect the 
arroyo toad within their planning area, including surveying for 
additional populations and protecting habitat, which will help ensure 
the long-term conservation of the arroyo toad. There is accordingly no 
reason to believe that these exclusions would result in extinction of 
the species.

Unit 14

    We have excluded all of Unit 14, consisting of approximately 8,669 
ac (3508 ha), under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be nearly $144 million between the years 2004 
through 2025. Over $133 million of this would fall on private property 
owners, and over $8 million would be related to impacts to local water 
supplies (see also discussion above on water costs). These figures 
include costs associated with conducting consultations with us pursuant 
to section 7 of the Act, loss of land values associated with the 
avoidance of arroyo toads and their habitat, modification of

[[Page 19604]]

current operations of dams and other elements of water projects, time 
delays, and uncertainty. Excluding this unit would avoid some or all of 
those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. In regards to portions of Unit 14 
specifically, the Rincon and Pala Indian Tribes have each offered 
additional conservation measures to protect arroyo toad habitat on 
their lands.
    The Pala Band of Mission Indians' arroyo toad management plan 
states that the Tribe will work to achieve the following as 
conservation practices to benefit the arroyo toad: (1) Maintenance of 
open space along Pala Creek and the San Luis Rey River to allow for 
within stream movements by arroyo toads and water flow; (2) 
encouragement of allottees to cluster dwellings near roadways to create 
corridors for toad movements into upland areas; (3) placement of a 
vehicle bridge across the San Luis Rey River to remove impacts to toads 
by vehicles crossing the river; and (4) removal of non-native plants 
and animal species throughout toad corridors.
    The Rincon Band of Mission Indians' arroyo toad management plan 
provides a comprehensive management framework to address threats to the 
toad within the HMA, including: (1) Monitoring and eradication of 
introduced plants and animals; (2) exclusion of mining; (3) exclusion 
of livestock grazing; (4) exclusion of unauthorized recreational uses 
and off-road vehicle use; and (5) provide a community educational 
outreach component. This plan is intended to serve as an interim plan 
that will be incorporated into the Rincon Tribe's Multiple Species 
Habitat Conservation Plan currently under development and scheduled for 
completion by or before 2006. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 15

    We have excluded all of Unit 15, consisting of approximately 6,183 
ac (2,502 ha), under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining -breeding pools long enough for 
larvae to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consulting with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be over $81 million between the years 2004 
through 2025, nearly all of which would fall on private property 
owners. These figures include costs associated with conducting 
consultations with us pursuant to section 7 of the Act, loss of land 
values associated with the avoidance of arroyo toads and their habitat, 
time delays, and uncertainty. Excluding this unit would avoid some or 
all of those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam

[[Page 19605]]

operations, which may be already provided for as discussed above--which 
could result from including those lands in this designation of critical 
habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 16

    We have excluded all of Unit 16, consisting of approximately 10,259 
ac (4,152 ha), under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be over $180 million between the years 2004 
through 2025. Nearly $168 million of this would fall on private 
property owners, and nearly $10 million would be related to impacts to 
local water supplies (see also discussion above on water costs). These 
figures include costs associated with conducting consultations with us 
pursuant to section 7 of the Act, loss of land values associated with 
the avoidance of arroyo toads and their habitat, modification of 
current operations of dams and other elements of water projects, time 
delays, and uncertainty. Excluding this unit would avoid some or all of 
those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that there be no adverse modification 
resulting from Federally-related actions. We therefore find that the 
benefits of excluding these areas from this designation of critical 
habitat outweigh the benefits of including them in the designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation.
    In regards to portions of subunits 16a, 16b, and 16c specifically, 
the San Diego Multiple Species Conservation Program offers additional 
conservation measures

[[Page 19606]]

to protect the arroyo toad within their planning area, including 
protecting and maintaining sufficient, suitable, low-gradient sandy 
stream habitat to meet the arroyo toad's breeding requirements; 
preserve sheltering and foraging habitats within 0.6 mi (1km) of 
occupied breeding habitat within designated preserve lands; and control 
nonnative predators and human impacts within designated preserve land. 
Preserve lands are currently under development and are intended to be 
permanently maintained and managed for the benefit of the arroyo toad 
and other covered species. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 17

    We have excluded all of Unit 17, consisting of approximately 1,955 
ac (791 ha), under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be over $71 million between the years 2004 
through 2025. Over $40 million of this would fall on private property 
owners, and nearly $30 million would be related to impacts to local 
water supplies (see also discussion above on water costs). These 
figures include costs associated with conducting consultations with us 
pursuant to section 7 of the Act, loss of land values associated with 
the avoidance of arroyo toads and their habitat, modification of 
current operations of dams and other elements of water projects, time 
delays, and uncertainty. Excluding this unit would avoid some or all of 
those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that there be no adverse modification 
resulting from Federally-related actions. We therefore find that the 
benefits of excluding these areas from this designation of critical 
habitat outweigh the benefits of including them in the designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation.
    In regards to portions of subunit 17d specifically, the San Diego 
Multiple Species Conservation Program offers additional conservation 
measures to protect the arroyo toad within their planning area, 
including protecting and maintaining sufficient, suitable, low-gradient 
sandy stream habitat to meet the arroyo toad's breeding requirements; 
preserve sheltering and foraging habitats within 0.6 mi (1km) of 
occupied breeding habitat within designated preserve lands; and control 
nonnative predators and human impacts within designated preserve land. 
Preserve lands are currently under development and are intended to be 
permanently maintained and managed for the benefit of the arroyo toad 
and other covered species. Additionally, in regards to portions of 17a, 
the Barona Band of Mission Indians and Viejas Band of Kumeyaay Indians 
have both agreed to establish a cooperative approach with us concerning 
arroyo toad conservation on certain lands in Capitan Grande 
Reservation, which is jointly administered by both Tribes. There is 
accordingly no reason to believe that these exclusions would result in 
extinction of the species.

Unit 18

    We have excluded all of Unit 18, consisting of approximately 5,347 
ac (2164 ha), under section 4(b)(2) of the Act. The analysis which led 
us to the

[[Page 19607]]

conclusion that the benefits of excluding this area exceed the benefits 
of designating it as critical habitat, and will not result in the 
extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be over $98 million between the years 2004 
through 2025. Over $94 million of this would fall on private property 
owners, and nearly $2 million would be related to impacts to local 
water supplies (see also discussion above on water costs). These 
figures include costs associated with conducting consultations with us 
pursuant to section 7 of the Act, loss of land values associated with 
the avoidance of arroyo toads and their habitat, modification of 
current operations of dams and other elements of water projects, time 
delays, and uncertainty. Excluding this unit would avoid some or all of 
those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation.
    In regards to portions of subunits 18a, 18b, and 18c specifically, 
the San Diego Multiple Species Conservation Program offers additional 
conservation measures to protect the arroyo toad within their planning 
area, including protecting and maintaining sufficient, suitable, low-
gradient sandy stream habitat to meet the arroyo toad's breeding 
requirements; preserve sheltering and foraging habitats within 0.6 mi 
(1km) of occupied breeding habitat within designated preserve lands; 
and control nonnative predators and human impacts within designated 
preserve land. Preserve lands are currently under development and are 
intended to be permanently maintained and managed for the benefit of 
the arroyo toad and other covered species.
    In addition, the Sycuan Band of Kumeyaay Nation Habitat 
Conservation Strategy Measures Plan (HCSMP) includes the following 
conservation measures: (1) Protection of existing habitat for 
compliance and species recovery; (2) enhancement of existing habitat; 
(3) restoration to create new habitat; (4) management of habitat to 
maintain and preserve ecological functions; (5) avoidance and 
minimization of direct impacts on individuals and populations land 
habitat of covered species; (6) population enhancement measures that 
dierectly or indirectly incrase abundance of covered species, and (7) 
research necessary to improve conservation measure effectiveness. 
Conservation measures to protect, enhance, restore habitat are 
primarily directed toward conservation of focus species' habitat, such 
as that for the arroyo toad, on the Reservation and Singing Hills golf 
course. There is accordingly no reason to believe that these exclusions 
would result in extinction of the species.

Unit 19

    We have excluded all of Unit 19, consisting of approximately 11,315 
ac (4,579 ha), under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.

[[Page 19608]]

(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3) would be required even without 
the critical habitat designation and without regard to the existence of 
a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be over $202 million between the years 2004 
through 2025, nearly all of which would fall on private property 
owners. These figures include costs associated with conducting 
consultations with us pursuant to section 7 of the Act, loss of land 
values associated with the avoidance of arroyo toads and their habitat, 
time delays, and uncertainty. Excluding this unit would avoid some or 
all of those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis--exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above--which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that there be no adverse modification 
resulting from Federally-related actions. We therefore find that the 
benefits of excluding these areas from this designation of critical 
habitat outweigh the benefits of including them in the designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation.
    In regards to portions of subunit 19b specifically, the San Diego 
Multiple Species Conservation Program offers additional conservation 
measures to protect the arroyo toad within their planning area, 
including protecting and maintaining sufficient, suitable, low-gradient 
sandy stream habitat to meet the arroyo toad's breeding requirements; 
preserve sheltering and foraging habitats within 0.6 mi (1km) of 
occupied breeding habitat within designated preserve lands; and control 
nonnative predators and human impacts within designated preserve land. 
Preserve lands are currently under development and are intended to be 
permanently maintained and managed for the benefit of the arroyo toad 
and other covered species. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.

Unit 22

    We have excluded all of Unit 22, consisting of approximately 6,328 
ac (2,561 ha), under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' Yet another 
benefit might be modification of current operations of dams and other 
elements of water projects to provide water at times more beneficial to 
the species than the current operation of some dams within proposed 
critical habitat. Since the economic analysis of this is based on 
projections of future actions, it is not possible to assign specific 
actions, and benefits to the species, for particular units.
    In general, the modifications would be designed to have water flows 
in stream reaches downstream from dams more closely resemble the 
stream's natural state. Benefits would include avoidance of excess 
artificial water flows washing eggs or tadpoles downstream, possibly 
avoiding growth of exotic species, increasing the availability of open 
sand bar habitat, and maintaining breeding pools long enough for larvae 
to develop.
    However, inasmuch as this area is currently occupied by the 
species, consultation for activities which might adversely impact the 
species, including

[[Page 19609]]

possibly significant habitat modification (see definition of ``harm'' 
at 50 CFR 17.3) would be required even without the critical habitat 
designation and without regard to the existence of a Federal nexus.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any Federal 
action which might impact the toad. The additional educational benefits 
which might arise from critical habitat designation are largely 
accomplished through the multiple notice and comments which accompanied 
the development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be over $27 million. Over $25 million of this 
would fall on private property owners. These figures include costs 
associated with conducting consultations with us pursuant to section 7 
of the Act, loss of land values associated with the avoidance of arroyo 
toads and their habitat, time delays, and uncertainty. Excluding this 
unit would avoid some or all of those costs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these lands from the 
designation of critical habitat--avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis-- exceed the educational and regulatory benefits, including 
possible changes to dam operations, which may be already provided for 
as discussed above -- which could result from including those lands in 
this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat, which requires--even in the post-
Gifford Pinchot environment--only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. In 
addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. In regards to subunit 22a specifically, the 
Rancho Las Flores Planned Community (Rancho Las Flores) and neighboring 
Las Flores Ranch (both in Summit Valley, San Bernardino County), have 
each offered additional conservation measures to protect arroyo toad 
habitat on their lands.
    Additional conservation measures offered by Rancho Las Flores 
include the protection of approximately 290 ac (117 ha) of prime arroyo 
toad habitat within the river corridors of Horsethief Creek and the 
West Fork of the Mojave River. Additional protection along Grass Valley 
Creek is contemplated as well. As a part of the development plans for 
Rancho Las Flores, the land owners have agreed to minimize impacts to 
arroyo toad habitat from humans, cattle, and development, monitor the 
status of the arroyo toad, and remove exotic species.
    Additional conservation measures offered by Las Flores Ranch 
include the protection of approximately 190 acres (77 ha) of prime 
arroyo toad habitat within the river corridors of Horsethief Creek and 
the West Fork of the Mojave River as well as measures to minimize 
impacts from humans, horses, and development. There is accordingly no 
reason to believe that the exclusion of unit 22 would result in 
extinction of the species.

Relationship of Critical Habitat to Approved Habitat Conservation 
Plans--Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires us to consider other relevant 
impacts, in addition to economic impacts, when designating critical 
habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits 
for the take of listed wildlife species incidental to otherwise lawful 
activities. Development of an HCP is a prerequisite for the issuance of 
an incidental take permit pursuant to section 10(a)(1)(B) of the Act. 
An incidental take permit application must be supported by an HCP that 
identifies conservation measures that the permittee agrees to implement 
for the species to minimize and mitigate the impacts of the permitted 
incidental take.
    HCPs vary in size and may provide for incidental take coverage and 
conservation management for one or many federally-listed species. 
Additionally, more than one applicant may participate in the 
development and implementation of an HCP. Some areas occupied by the 
arroyo toad involve several complex HCPs that address multiple species, 
cover large areas, and are important to many participating permittees. 
Large regional HCPs expand upon the basic requirements set forth in 
section 10(a)(1)(B) of the Act because they reflect a voluntary, 
cooperative approach to large-scale habitat and species conservation 
planning. Many of the large regional HCPs in southern California have 
been, or are being, developed to provide for the conservation of 
numerous federally-listed species and unlisted sensitive species and 
the habitat that provides for their biological needs. These HCPs are 
designed to proactively implement conservation actions to address 
future projects that are anticipated to occur within the planning area 
of the HCP. However, given the broad scope of these regional HCPs, not 
all projects envisioned to potentially occur may actually take place. 
The State of California also has a NCCP process that is very similar to 
the federal HCP process and is often completed in conjunction with the 
HCP process. We recognize that many of the projects with HCPs also have 
state issued NCCPs.
    In the case of approved regional HCPs and accompanying Implementing 
Agreements (IAs) (e.g., those sponsored by cities, counties, or other 
local jurisdictions) that provide for incidental take coverage for the 
arroyo toad, a primary goal of these regional plans is to provide for 
the protection and management of habitat essential for the

[[Page 19610]]

species' conservation, while directing development to other areas. The 
regional 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 
system of interlinked habitat blocks that provide for its biological 
needs.
    We considered, but did not designate as critical habitat, lands 
within the Central-Coastal NCCP/HCP in Orange County and Western 
Riverside MSHCP under section 4(b)(2) of the Act. These approved and 
legally operative HCPs include portions of two critical habitat units 
(units 8 and 9). We believe the benefits of excluding lands within 
these legally operative HCPs from the final critical habitat 
designation will outweigh the benefits of including them. The following 
represents our rationale for excluding these areas.

Orange County Central Coastal Subregional NCCP/HCP

    All essential habitat for the arroyo toad in Unit 8 in western 
Orange County is excluded under section 4(b)(2) of the Act from 
critical habitat because it is within the Orange County Central Coastal 
Subregional NCCP/HCP. The Central-Coastal NCCP/HCP in Orange County was 
developed in cooperation with numerous local and State jurisdictions 
and agencies, and participating landowners, including the cities of 
Anaheim, Costa Mesa, Irvine, Orange, and San Juan Capistrano; Southern 
California Edison; Transportation Corridor Agencies; The Irvine 
Company; California Department of Parks and Recreation; Metropolitan 
Water District of Southern California; and Orange County. Approved in 
1996, the Central-Coastal NCCP/HCP provides for the establishment of 
approximately 38,738 ac (15,677 ha) of reserve lands for 39 covered 
species within the 208,713 ac (84,463 ha) planning area. All of Unit 8 
is within the plan area. We issued an incidental take permit under 
section 10(a)(1)(B) of the Act that provides conditional incidental 
take authorization for the arroyo toad for all areas within the 
Central-Coastal Subregion, except the North Ranch Policy Plan area. 
This take authorization only applies to smaller arroyo toad 
populations, reintroduced populations, or populations that have 
expanded due to NCCP/HCP reserve management. It also requires 
implementation of a mitigation plan to relocate toads to protected 
areas within reserves, when necessary. The Central-Coastal NCCP/HCP 
provides for monitoring of the arroyo toad and adaptive management of 
its habitat within the reserve system. Adaptive management activities 
may include a program to control exotic predators, such as bullfrogs, 
clawed frogs, and nonnative fishes. It also includes a program to close 
dirt road crossings without culverts or upgrading such crossings with 
concrete fords and/or culverts on publicly owned lands outside the 
reserve system, if baseline monitoring indicates such measures would 
likely be effective.
    The North Ranch Policy Plan area was excluded from take 
authorization provided under the Central Coastal NCCP/HCP's biological 
opinion due to a lack of detailed biological information and specific 
conservation commitments at the time of adoption of the NCCP/HCP. We 
have since determined that available arroyo toad habitat within the 
North Ranch Policy Plan area has features essential to the conservation 
of the arroyo toad because it helps support a viable Santa Ana Mountain 
arroyo toad population. In 2002, the owner, The Irvine Company, granted 
a conservation easement to The Nature Conservancy over a portion of the 
North Ranch Policy Plan Area that covered the arroyo toad critical 
habitat areas. We recognize that the Irvine Company has taken steps to 
conserve the North Ranch Policy Area, including a $10 million 
management endowment. The conservation easement provides adequate 
protection for arroyo toad habitat within this unit. As a result, we 
are excluding the North Ranch Policy Plan area from critical habitat.

Western Riverside MSHCP

    Portions of essential habitat for the arroyo toad in Unit 9 located 
on non-Federal lands are excluded under section 4(b)(2) of the Act from 
critical habitat because they are within the Western Riverside MSHCP in 
western Riverside County. Participants in this HCP include 14 cities 
and the County of Riverside, including the Riverside County Flood 
Control and Water Conservation Agency, Riverside County Transportation 
Commission, Riverside County Parks and Open Space District, and 
Riverside County Waste Department. California Department of Parks and 
Recreation and Caltrans are also participants. Approved on June 22, 
2004, the Western Riverside MSHCP provides for the establishment of 
approximately 153,000 ac (62,000 ha) of diverse habitats of reserve 
lands for 146 covered species within the 1.26-million acre (510,000-ha) 
planning area. The conservation of 153,000 ac (62,000 ha) will 
complement other existing natural and open space areas (e.g., State 
Parks, Forest Service, and County Park Lands). The Western Riverside 
MSHCP provides for conservation actions within the planning area, 
including surveying for additional populations and habitat protection, 
which will help ensure the long-term conservation of the arroyo toad. 
We are designating portions of Unit 9 on U.S. Forest Service lands 
within the planning area boundary of the Western Riverside MSHCP as 
critical habitat because Forest Service activities are not covered 
under a section 10(a)(1)(B) permit.
(1) Benefits of Inclusion
    Under section 7, critical habitat designation will provide little 
additional benefit to the arroyo toad within the boundaries of these 
approved HCPs. The principal benefit of any designated critical habitat 
is that federally-funded, permitted, or authorized activities that may 
affect critical habitat will require consultation under section 7 of 
the Act. Such consultations ensure that adequate protection is provided 
to avoid adverse modification or destruction of critical habitat. 
Currently approved HCPs that cover the toad are designed to ensure the 
conservation of the species within the plan area, and incorporate 
special management and protection measures for arroyo toad habitat 
within plan boundaries. The adequacy of plan measures to protect the 
toad and its habitat has undergone thorough evaluation in the section 7 
consultations completed prior to approval of the plans, and therefore, 
the benefit of including these areas to require section 7 consultation 
is negated.
    Development and implementation of these HCPs have provided other 
important conservation benefits for the toad, including the development 
of biological information to guide conservation efforts and assist in 
the species' recovery. The educational benefits of designating critical 
habitat, including informing the public of areas that are important to 
the conservation of listed species, are essentially the same as those 
that have occurred during the process of reviewing and approving these 
HCPs. Specifically, each of these HCPs involved public participation 
through public notices and public comment periods, prior to being 
approved. For these reasons, we believe that designation of critical 
habitat would provide little additional benefit in areas covered by 
these approved HCPs. Federal actions that may affect the toad will 
still require consultation under section 7 of the Act.

[[Page 19611]]

(2) Benefits of Exclusion
    The benefits of excluding HCPs from critical habitat designation 
include relieving landowners, communities, and counties of any 
additional regulatory burden that might be imposed by critical habitat. 
Many HCPs, particularly large regional HCPs, take many years to develop 
and, upon completion, become regional conservation plans that are 
consistent with the recovery objectives for listed species that are 
covered within the plan area. Additionally, many of these HCPs provide 
conservation benefits to unlisted sensitive species. Imposing an 
additional regulatory review after an HCPs is completed solely as a 
result of the designation of critical habitat may undermine 
conservation efforts and partnerships in many areas. In fact, it could 
result in the loss of species' benefits if participants abandon the 
voluntary HCP process. Designation of critical habitat within the 
boundaries of approved HCPs could also be viewed as a disincentive to 
those entities currently developing HCPs or contemplating them in the 
future. The benefits of excluding lands within approved HCPs generally 
from critical habitat apply fully to the approved HCPs discussed above 
that cover the arroyo toad.
    A related benefit of excluding lands within approved HCPs that 
cover the arroyo toad from the critical habitat designation is the 
continued ability to seek new partnerships with future HCPs 
participants, including States, counties, local jurisdictions, 
conservation organizations, and private landowners, which together can 
implement conservation actions that we would be unable to accomplish 
otherwise. If lands within approved HCPs plan areas are designated as 
critical habitat, it would likely have a chilling effect on our ability 
to establish new partnerships to develop HCPs, particularly large 
regional HCPs that involve numerous participants and address landscape-
level conservation of the toad and its habitat. By excluding these 
lands, we preserve our current partnerships and encourage additional 
conservation actions in the future. We have determined that the 
benefits of excluding lands within approved HCPs from critical habitat 
designation outweigh the benefits of inclusion.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In general, we find that the benefits of critical habitat 
designation on lands within approved HCPs are small while the benefits 
of excluding such lands from designation of critical habitat are 
substantial. After weighing the small benefits of including these lands 
against the much greater benefits derived from excluding them, 
including relieving property owners of an additional layer of approvals 
and regulation, and encouraging the pursuit of additional conservation 
partnerships, we are excluding lands within approved HCPs from the 
critical habitat designation pursuant to section 4(b)(2) of the Act. 
The educational benefits of critical habitat, including informing the 
public about areas that are important for the long-term survival and 
conservation of the species, have been provided by the public notice 
and comment procedures required to establish these HCPs.
    We have reviewed and evaluated the approved Orange County Central 
Coastal Subregional NCCP/HCP and the Western Riverside NCCP/HCP for 
Unit 8 and Unit 9 and find that each of these HCPs includes the arroyo 
toad as a covered species and provides protection for the arroyo toad 
and its associated habitat in perpetuity. Excluding these lands also 
preserves the partnerships that we developed with the local 
jurisdictions and project proponent in the development of the HCPs and 
NCCP/HCPs. Therefore, essential habitat covered under these HCPs and 
NCCP/HCPs have been excluded pursuant to section 4(b)(2) of the Act 
since the benefits of exclusion outweigh the benefits of inclusion as 
critical habitat.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. There 
is accordingly no reason to believe that these exclusions would result 
in extinction of the species.

Relationship of Critical Habitat to the Pending Coachella Valley 
Multiple Species Habitat Conservation Plan--Exclusions Under Section 
4(b)(2) of the Act

    Portions of Unit 23 are being excluded pursuant to section 4(b)(2) 
of the Act from designated critical habitat because they are located 
within the draft Coachella Valley MSHCP or Plan in Riverside County. 
The draft Coachella Valley MSHCP has been in development from the mid-
1990s to present, pursuant to an application to the Service for a 
Section 10(a)(1)(B) permit under the Act. The following entities 
submitted signed a Memorandum of Understanding (Planning Agreement) to 
govern the preparation of the MSHCP: Coachella Valley Association of 
Governments (CVAG); the cities of Cathedral City, Coachella, Desert Hot 
Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, and 
Rancho Mirage; County of Riverside; U.S. Fish and Wildlife Service; 
California Department of Fish and Game; Bureau of Land Management; U.S. 
Forest Service; and the National Park Service. Subsequently, California 
Department of Transportation, Coachella Valley Water District, Imperial 
Irrigation District, Riverside County Flood Control and Water 
Conservation District, Riverside County Regional Parks and Open Space 
District, Riverside County Waste Management District, California 
Department of Parks and Recreation, and Coachella Valley Mountains 
Conservancy also decided to participate in preparation of the Plan. The 
parties later amended the Planning Agreement to also address the 
requirements of the Natural Community Conservation Planning (NCCP) Act 
and prepared a NCCP pursuant to California Fish and Game Code Section 
2810. The draft Coachella Valley MSHCP area encompasses approximately 
1.2 million ac (485,623 ha), of which 69,000 ac (27,923 ha) is owned by 
an Indian Reservation and are not included in the draft MSHCP, leaving 
a total of 1.1 million ac (445,154 ha) addressed by the draft MSHCP in 
Riverside County.
    It is estimated by CVAG that there are 2,045 ac (828 ha) of habitat 
for arroyo toad in the draft MSHCP plan area, all within the proposed 
Whitewater Canyon Conservation. Of this 2,045 ac (828 ha), 1,296 ac 
(525 ha) are considered existing conservation lands. Of the 749 ac (303 
ha) of arroyo toad habitat not currently conserved within the 
Whitewater Canyon Conservation Area, the draft MSHCP proposes to 
conserve 674 ac (273 ha) of modeled arroyo toad habitat as part of the 
preferred alternative reserve design. All essential areas in Unit 23 
are within the preferred alternative reserve. Other goals of this draft 
MSHCP include: (1) Protecting other important conservation areas to 
allow for population fluctuation and promote genetic diversity; (2) 
protecting essential ecological processes, such as sand transport 
systems, necessary to maintain core

[[Page 19612]]

habitat and other conserved areas; (3) maintaining biological corridors 
and linkages among all conserved populations to the maximum extent 
feasible; and (4) ensuring conservation of habitat quality through 
biological monitoring and adaptive management actions.
    The draft MSHCP states that, although Whitewater Canyon is open to 
the public and existing uses that may impact arroyo toad habitat will 
not be eliminated by the MSHCP, impacts to essential habitat for the 
arroyo toad in Unit 23 will be minimized as a result of the following: 
(1) 96% of the modeled habitat will be conserved under the MSHCP; (2) 
the MSHCP includes acquisition of essential habitat on private lands in 
Whitewater Canyon from willing sellers; and (3) development of 
management prescriptions for land on essential habitat in public 
ownership in the canyon to minimize activities deleterious to the 
arroyo toad and its habitat. The Plan as states that other areas of 
potential suitable habitat in Snow Creek and Mission Creek will be 
conserved (CVMC 2004).
    CVAG has demonstrated a sustained commitment to develop the MSHCP 
to comply with section 10(a)(1)(B) of the Act, the California 
Endangered Species Act, and the State's NCCP program. On November 5, 
2004, the Service published a Notice of Availability of a Final 
Environmental Impact Statement/Environmental Impact Report (EIS/EIR) 
for the draft MSHCP.
    Although not yet completed and implemented, CVAG has made 
significant progress in the development of its MSHCP to meet the 
requirements outlined in section 10(a)(1)(B) of the Act. In light of 
the Service's confidence that CVAG will reach a successful conclusion 
to its MSHCP development process, we are excluding lands within their 
preferred alternative reserve design from final critical habitat 
designation for the arroyo toad.
(1) Benefits of Inclusion
    As stated previously, the benefits of designating critical habitat 
on lands within the boundaries of approved HCPs are normally small. 
Where HCPs are in place that include coverage for arroyo toad, our 
experience has shown that the HCPs and their Implementing Agreements 
include management measures and protections designed to protect, 
restore, enhance, manage, and monitor habitat that benefit the long-
term protection of the species. The principal benefit of designating 
critical habitat is that projects carried out, authorized, or funded by 
Federal agencies that may affect critical habitat require the action 
agency to consult with the Service to ensure such activities do not 
destroy or adversely modify designated critical habitat. In the case of 
the CVAG, their draft MSHCP will be analyzed by the Service to 
determine the effects of the MSHCP on the species for which the 
participants are seeking incidental take permits. The draft MSHCP 
currently under review by the Service reflects revisions made to the 
Plan based on comments and input from the Service and California 
Department of Fish and Game.
(2) Benefits of Exclusion
    Excluding lands within CVAG's draft MSHCP preferred alternative 
reserve design area from critical habitat designation will enhance our 
ability to work with Plan participants in the spirit of cooperation and 
partnership. A more detailed discussion concerning our rationale for 
excluding HCPs from critical habitat designation is outlined under the 
previous section. Further, the Service believes the analysis conducted 
to evaluate the benefits of excluding approved HCPs from critical 
habitat designation is applicable and appropriate to apply to CVAG's 
MSHCP.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
    In general, we find that the benefits of critical habitat 
designation on lands within pending HCPs that cover those species are 
small while the benefits of excluding such lands from designation of 
critical habitat are substantial. After weighing the small benefits of 
including lands within the draft MSHCP area against the much greater 
benefits derived from exclusion, we are excluding all essential areas 
within CVAG's draft MSHCP from the final critical habitat pursuant to 
section 4(b)(2) of the Act, with the exception of essential areas on 
lands that are owned by public agencies who are not signatories to the 
MSHCP (i.e., U.S. Forest Service and Bureau of Land Management).
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the toad, regardless of whether a 
Federal nexus is present, must undergo a consultation with the Service 
under the requirements of section 7 of the Act or receive a permit from 
us under section 10. The toad is protected from take under section 9. 
The exclusions leave these protections unchanged from those which would 
exist if the excluded areas were designated as critical habitat. There 
is accordingly no reason to believe that these exclusions would result 
in extinction of the species.

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 will result in the extinction of the species concerned. We 
conducted an economic analysis to estimate potential economic effects 
of the proposed arroyo toad critical habitat designation (Economic & 
Planning Systems 2004). The draft analysis was made available for 
public review on February 14, 2005 (70 FR 7459). We accepted comments 
on the draft analysis until March 16, 2005.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the arroyo toad. This information is intended to assist the 
Secretary in making decisions about whether the benefits of excluding 
particular areas from the designation outweigh the benefits of 
including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy

[[Page 19613]]

baseline. The total conservation costs from reported efficiency effects 
associated with the designation of critical habitat in this rule are 
approximately $9 million from 2004 to 2025. This total includes losses 
in land value (by far the primary cost source), as well as project 
modification, administrative, CEQA, delay, and uncertainty costs.
    A copy of the final economic analysis and description of the 
exclusion process with supporting documents are included in our 
administrative record and may be obtained by contacting the Ventura or 
Carlsbad offices (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. In our proposed rule, 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if this designation of critical habitat for the arroyo 
toad would affect a substantial number of small entities, we considered 
the number of small entities affected within particular types of 
economic activities (e.g., land development, fruit and nut farms, 
cattle ranching, and small governments). We considered each industry or 
category individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by the designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted or authorized by Federal agencies; non-Federal 
activities are not affected by the designation.
    When this critical habitat designation is effective, Federal 
agencies must consult with us if their activities may affect designated 
critical habitat. Consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process. In areas where occupancy by arroyo toad 
is unknown, the designation of critical habitat could trigger 
additional review of Federal agencies pursuant to section 7 of the Act 
and may result in additional requirements on Federal activities to 
avoid destruction or adverse modification of critical habitat.
    In our economic analysis of this designation we evaluated the 
potential economic effects on small business entities and small 
governments resulting from conservation actions related to the listing 
of this species and proposed designation of its critical habitat. We 
evaluated small business entities in three categories: land 
development, fruit and nut farms, and cattle ranching. On the basis of 
our analysis we determined that this proposed designation of critical 
habitat for the arroyo toad would result in: (1) An annual impact to 
less that one percent (17 projects and therefore businesses--assuming 
one project per business) of land development small businesses and that 
those businesses could realize an impact of approximately 20 percent of 
total annual sales; (2) an annual impact to less that one percent (one 
farm) of small fruit and nut farms and that that farm would realize an 
impact of less than three percent of total annual sales; (3) an annual 
impact to less that one percent of cattle ranches (one ranch) and that 
the ranch would realize an impact of less than approximately $100,000 
of total annual sales; (4) an annual impact to less that one percent of 
small viticulture firms (one firm) and that the firm would realize an 
impact of less than approximately five percent of total annual sales; 
and (5) an annual impact to less that one percent of small governments 
as a percent of the county total and small governments would realize an 
impact of less than one percent of annual government budget. Based on 
this data from the proposed rule, and the additional exclusions of 
units made in this final rulemaking, we have determined that this 
designation would not affect a substantial number of small land 
development companies, fruit and nut farms, or cattle ranches. Further, 
we have determined that this designation would also not result in a 
significant effect to the annual sales of those small impacted by this 
designation. As such, we are certifying that this designation of 
critical habitat would not result in a significant economic impact on a 
substantial number of small entities.

[[Page 19614]]

Local Government Impacts (Public Sector Impacts)

    Only two small local governments would be affected by arroyo toad 
critical habitat designation: the cities of Rancho Santa Margarita and 
San Juan Capistrano. There is no record of consultations between the 
Service and these cities. In general, city governments may get involved 
in land use projects, and therefore section 7 consultations, through 
various permits, or involvement in local utility and infrastructure 
projects. This involvement is usually as an interested party, not the 
primary applicant. The economic analysis estimates that these two 
cities will consult as a prime applicant two times in the next 21 
years. This would represent less than one percent of the total annual 
budget of each city.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the small 
businesses that may be required to consult with us regarding their 
project's impact on arroyo toad and its habitat. First, if we conclude, 
in a biological opinion, that a proposed action is likely to jeopardize 
the continued existence of a species or adversely modify its critical 
habitat, we can offer ``reasonable and prudent alternatives.'' 
Reasonable and prudent alternatives are alternative actions that can be 
implemented in a manner consistent with the scope of the Federal 
agency's legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid jeopardizing the 
continued existence of listed species or result in adverse modification 
of critical habitat. A Federal agency and an applicant may elect to 
implement a reasonable and prudent alternative associated with a 
biological opinion that has found jeopardy or adverse modification of 
critical habitat. An agency or applicant could alternatively choose to 
seek an exemption from the requirements of the Act or proceed without 
implementing the reasonable and prudent alternative. However, unless an 
exemption were obtained, the Federal agency or applicant would be at 
risk of violating sections 7(a)(2) and 9 of the Act if it chose to 
proceed without implementing the reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this critical habitat designation. Within the critical 
habitat units, 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 Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by any Federal agency;
    (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, 
Corps, or Forest Service;
    (5) Regulation of airport improvement activities by the FAA;
    (6) Military training and maneuvers, facilities operations, and 
maintenance on DOD lands designated as critical habitat;
    (7) Licensing of construction of communication sites by the Federal 
Communications Commission; and,
    (8) Funding of activities by the U.S. Environmental Protection 
Agency (EPA), Department of Energy (DOE), FEMA, Federal Highway 
Administration (FHA), or any other Federal agency.
    It is likely that a developer or other project proponent could 
modify a project or take measures to protect the arroyo toad. The kinds 
of actions that may be included if future reasonable and prudent 
alternatives become necessary include conservation set-asides, 
management of competing nonnative species, restoration of degraded 
habitat, and regular monitoring. These are based on our understanding 
of the needs of the species and the threats it faces, as described in 
the final listing rule and proposed critical habitat designation. These 
measures are not likely to result in a significant economic impact to 
project proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons and based on currently 
available information, that it is not likely to affect a substantial 
number of small entities. Federal involvement, and thus section 7 
consultations, would be limited to a subset of the area designated. The 
most likely Federal involvement could include Corps permits, permits we 
may issue under section 10(a)(1)(B) of the Act; funding for Federal 
Highway Administration, Federal Emergency Management Agency or FAA 
projects; and regulation of grazing, mining, and recreation by the BLM, 
DOD, Corps, or Forest Service. We certify that the rule will not have a 
significant impact on a substantial number of small business entities. 
Therefore, a regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2))

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C 801 et seq.), this rule to designate critical habitat for the 
arroyo toad is not considered to be a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an effect on the 
economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises, nor will the rule have a significant 
economic impact on a substantial number of small entities. Refer to the 
final economic analysis for a discussion of the effects of this 
determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply,

[[Page 19615]]

distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This final rule to designate critical habitat for the arroyo toad is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

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.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, Small Government Agency Plan is 
not required.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with the Department of the Interior policies, we 
requested information from, and coordinated development of, this final 
critical habitat designation with appropriate State resource agencies 
in California. The designation of critical habitat in areas currently 
occupied by the arroyo toad imposes no additional restrictions to those 
currently in place and, therefore, has little incremental impact on 
State and local governments and their activities. The designation may 
have some benefit to the States and local resource agencies in that the 
areas essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are specifically identified. While 
making this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Endangered Species 
Act. This rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of the arroyo toad.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain new or revised information collection 
for which OMB approval is required under the Paperwork Reduction Act. 
This rule will not impose recordkeeping or reporting requirements on 
State or local governments, individuals, businesses, or organizations. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we have coordinated with 
federally-recognized Tribes on a Government-to-Government basis. We 
have excluded Tribal lands from critical habitat pursuant to section 
4(b)(2) of the Act based on economic considerations.

Relationship to Mexico

    We are not aware of any existing national 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

[[Page 19616]]

provide protection for rare species, there are enforcement challenges. 
Even if specific protections were available and enforceable in Mexico, 
the portion of the arroyo toad's range in Mexico alone, in isolation, 
would not be adequate to ensure the long-term conservation of the 
species.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Ventura Fish and 
Wildlife Office, or the Field Supervisor, Carlsbad Fish and Wildlife 
Office (see ADDRESSES section).

Author

    The primary author of this notice is the staff of the U.S. Fish and 
Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
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. 
4201-4205; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. Amend Sec.  17.95(d) by revising critical habitat for the arroyo 
toad (Bufo californicus) to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
ARROYO TOAD (Bufo californicus)
    (1) Critical habitat units are depicted for Santa Barbara, Ventura, 
Los Angeles, San Bernardino, and Riverside Counties, California, on the 
maps below.
    (2) The primary constituent elements of critical habitat for the 
arroyo toad are the habitat components that provide:
    (i) Rivers or streams with hydrologic regimes that supply water to 
provide space, food, and cover needed to sustain eggs, tadpoles, 
metamorphosing juveniles, and adult breeding toads. Specifically, the 
conditions necessary to allow for successful breeding of arroyo toads 
are:
    (A) Breeding pools with areas less than 12 in (30 cm) deep;
    (B) Areas of flowing water with current velocities less than 1.3 ft 
per second (40 cm per second); and
    (C) Surface water that lasts for a minimum length of 2 months in 
most years, i.e., a sufficient wet period in the spring months to allow 
arroyo toad larvae to hatch, mature, and metamorphose.
    (ii) Low-gradient stream segments (typically less than 6 percent) 
with sandy or fine gravel substrates that support the formation of 
shallow pools and sparsely vegetated sand and gravel bars for breeding 
and rearing of tadpoles and juveniles.
    (iii) 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 breeding pools and terrace habitats with scattered 
vegetation are maintained.
    (iv) Riparian and adjacent upland habitats (particularly alluvial 
streamside terraces and adjacent valley bottomlands that include areas 
of loose soil where toads can burrow underground) to provide foraging 
and living areas for subadult and adult arroyo toads.
    (v) Stream channels and adjacent upland habitats that allow for 
migration to foraging areas, overwintering sites, dispersal between 
populations, and recolonization of areas that contain suitable habitat.
    (3) Critical habitat does not include man-made structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, aqueducts, 
airports, roads, and the land on which such structures are located.
    (4) Index maps of arroyo toad critical habitat.
    (i) Note: Map 1 (index map) follows:
BILLING CODE 4310-55-P

[[Page 19617]]

[GRAPHIC] [TIFF OMITTED] TR13AP05.000

    (ii) Map 2 (index map) follows:

[[Page 19618]]

[GRAPHIC] [TIFF OMITTED] TR13AP05.001

BILLING CODE 4310-55-C
    (5) Unit 2; Sisquoc River, Santa Barbara County, California.
    (i) From USGS 1:24,000 scale quadrangles Foxen Canyon, Zaca Lake,

[[Page 19619]]

Bald Mountain and Hurricane Deck. Land bounded by the following UTM 
Zone 10, NAD 27 coordinates (E, N): 754600, 3859000; 754600, 3859600; 
754700, 3859600; 754700, 3859700; 754800, 3859700; 754800, 3859800; 
754900, 3859800; 754900, 3859900; 755000, 3859900; 755000, 3860000; 
755100, 3860000; 755100, 3860100; 755300, 3860100; 755300, 3860200; 
756200, 3860200; 756200, 3860300; 756500, 3860300; 756500, 3860200; 
756600, 3860200; 756600, 3859700; 756400, 3859700; 756400, 3859600; 
756700, 3859600; 756700, 3859700; 757400, 3859700; 757400, 3859600; 
757600, 3859600; 757600, 3859500; 757700, 3859500; 757700, 3859400; 
757800, 3859400; 757800, 3859200; 757900, 3859200; 757900, 3859100; 
758100, 3859100; 758100, 3858900; 758200, 3858900; 758200, 3858800; 
758300, 3858800; 758300, 3858700; 758500, 3858700; 758500, 3858600; 
758600, 3858600; 758600, 3858700; 758800, 3858700; 758800, 3859100; 
758900, 3859100; 758900, 3859200; 759600, 3859200; 759600, 3859100; 
759700, 3859100; 759700, 3859000; 759900, 3859000; 759900, 3858800; 
760000, 3858800; 760000, 3858700; 759900, 3858700; 759900, 3858600; 
760000, 3858600; 760000, 3858500; 760200, 3858500; 760200, 3858400; 
760300, 3858400; 760300, 3858300; 760600, 3858300; 760600, 3858400; 
760900, 3858400; 760900, 3858200; 761000, 3858200; 761000, 3858000; 
761400, 3858000; 761400, 3858100; 761600, 3858100; 761600, 3858200; 
761700, 3858200; 761700, 3858300; 761800, 3858300; 761800, 3858600; 
762000, 3858600; 762000, 3858700; 762300, 3858700; 762300, 3858800; 
762400, 3858800; 762400, 3858700; 762500, 3858700; 762500, 3858800; 
762900, 3858800; 762900, 3858700; 763600, 3858700; 763600, 3858600; 
763800, 3858600; 763800, 3858500; 763900, 3858500; 763900, 3858300; 
764700, 3858300; 764700, 3858400; 765100, 3858400; 765100, 3858500; 
765200, 3858500; 765200, 3858600; 765300, 3858600; 765300, 3858700; 
765400, 3858700; 765400, 3858800; 765600, 3858800; 765600, 3859000; 
765700, 3859000; 765700, 3859100; 765800, 3859100; 765800, 3859200; 
766000, 3859200; 766000, 3859300; 766100, 3859300; 766100, 3859400; 
766200, 3859400; 766200, 3859500; 766600, 3859500; 766600, 3859600; 
766700, 3859600; 766700, 3859700; 767000, 3859700; 767000, 3859800; 
767300, 3859800; 767300, 3859900; 767700, 3859900; 767700, 3860000; 
767900, 3860000; 767900, 3860200; 767800, 3860200; 767800, 3860300; 
767900, 3860300; 767900, 3860400; 768000, 3860400; 768000, 3860500; 
768100, 3860500; 768100, 3860400; 768300, 3860400; 768300, 3860500; 
768399, 3860500; 768400, 3860500; 768400, 3860600; 768800, 3860600; 
768800, 3860500; 768900, 3860500; 768900, 3860400; 769000, 3860400; 
769000, 3860200; 769200, 3860200; 769200, 3860300; 769300, 3860300; 
769300, 3860200; 769400, 3860200; 769400, 3860000; 769500, 3860000; 
769500, 3860100; 769800, 3860100; 769800, 3860200; 770000, 3860200; 
770000, 3860100; 770200, 3860100; 770200, 3860000; 770300, 3860000; 
770300, 3860100; 770500, 3860100; 770500, 3860000; 770700, 3860000; 
770700, 3859900; 770900, 3859900; 770900, 3859800; 771400, 3859800; 
771400, 3859700; 771700, 3859700; 771700, 3859600; 771800, 3859600; 
771800, 3859500; 771900, 3859500; 771900, 3859400; 772100, 3859400; 
772100, 3859300; 772200, 3859300; 772200, 3858900; 772400, 3858900; 
772400, 3859000; 772500, 3859000; 772500, 3858900; 772800, 3858900; 
772800, 3859000; 772900, 3859000; 772900, 3858700; 773200, 3858700; 
773200, 3858600; 773500, 3858600; 773500, 3858500; 773900, 3858500; 
773900, 3858400; 774100, 3858400; 774100, 3858100; 774200, 3858100; 
774200, 3858000; thence east to the meridian of longitude at 120 
degrees at y-coordinate 3858000; thence from the meridian of longitude 
at 120 degrees at UTM zone 11, NAD 27 y-coordinate 3858000, east and 
following UTM zone 11, NAD 27 coordinates 226200, 3858000; 226200, 
3857900; 226400, 3857900; 226400, 3858000; 226600, 3858000; 226600, 
3857900; 227100, 3857900; 227100, 3857800; 227700, 3857800; 227700, 
3857900; 228000, 3857900; 228000, 3858000; 228200, 3858000; 228200, 
3858100; 228500, 3858100; 228500, 3858000; 228700, 3858000; 228700, 
3857800; 228800, 3857800; 228800, 3857900; 229200, 3857900; 229200, 
3858000; 229500, 3858000; 229500, 3858100; 230000, 3858100; 230000, 
3858200; 230100, 3858200; 230100, 3858300; 230300, 3858300; 230300, 
3858600; 230400, 3858600; 230400, 3858700; 230500, 3858700; 230500, 
3858800; 230600, 3858800; 230600, 3859400; 230800, 3859400; 230800, 
3859700; 230900, 3859700; 230900, 3859800; 231200, 3859800; 231200, 
3859700; 231300, 3859700; 231300, 3859800; 231600, 3859800; 231600, 
3859900; 231700, 3859900; 231700, 3860000; 231800, 3860000; 231800, 
3860100; 232100, 3860100; 232100, 3860000; 232200, 3860000; 232200, 
3859800; 232300, 3859800; 232300, 3859700; 232400, 3859700; 232400, 
3859600; 232500, 3859600; 232500, 3859400; 232600, 3859400; 232600, 
3859200; 232700, 3859200; 232700, 3858900; 232900, 3858900; 232900, 
3858700; 233000, 3858700; 233000, 3858800; 233100, 3858800; 233100, 
3858700; 233600, 3858700; 233600, 3858800; 234000, 3858800; 234000, 
3858600; 234200, 3858600; 234200, 3858500; 234300, 3858500; 234300, 
3858200; 234400, 3858200; 234400, 3858300; 234600, 3858300; 234600, 
3858400; 235000, 3858400; 235000, 3858300; 235100, 3858300; 235100, 
3858200; 235200, 3858200; 235200, 3858100; 235300, 3858100; 235300, 
3858000; 235600, 3858000; 235600, 3857900; 235800, 3857900; 235800, 
3858000; 236400, 3858000; 236400, 3857600; 236900, 3857600; 236900, 
3857500; 237100, 3857500; 237100, 3857600; 237200, 3857600; 237200, 
3857700; 237400, 3857700; 237400, 3857300; 237300, 3857300; 237300, 
3857100; 236900, 3857100; 236900, 3857200; 236700, 3857200; 236700, 
3857300; 236000, 3857300; 236000, 3857500; 235900, 3857500; 235900, 
3857400; 235800, 3857400; 235800, 3857500; 235700, 3857500; 235700, 
3857600; 235300, 3857600; 235300, 3857700; 235100, 3857700; 235100, 
3857800; 235000, 3857800; 235000, 3857900; 234600, 3857900; 234600, 
3857700; 234200, 3857700; 234200, 3857900; 234100, 3857900; 234100, 
3858000; 234000, 3858000; 234000, 3858100; 233900, 3858100; 233900, 
3858300; 233600, 3858300; 233600, 3858200; 233500, 3858200; 233500, 
3858100; 233200, 3858100; 233200, 3858200; 232700, 3858200; 232700, 
3858300; 232600, 3858300; 232600, 3858400; 232500, 3858400; 232500, 
3858700; 232400, 3858700; 232400, 3859200; 232300, 3859200; 232300, 
3859300; 232200, 3859300; 232200, 3859400; 232000, 3859400; 232000, 
3859600; 231700, 3859600; 231700, 3859500; 231600, 3859500; 231600, 
3859400; 231100, 3859400; 231100, 3859200; 231000, 3859200; 231000, 
3859100; 231100, 3859100; 231100, 3858800; 231000, 3858800; 231000, 
3858700; 230900, 3858700; 230900, 3858500; 230800, 3858500; 230800, 
3858400; 230900, 3858400; 230900, 3858100; 230800, 3858100; 230800, 
3858000; 230700, 3858000; 230700, 3857900; 230300, 3857900; 230300, 
3857700; 229800, 3857700; 229800, 3857800; 229700, 3857800; 229700, 
3857700; 229500, 3857700; 229500, 3857600; 229400, 3857600; 229400, 
3857500; 228500, 3857500; 228500, 3857600; 228200, 3857600; 228200, 
3857500; 228100,

[[Page 19620]]

3857500; 228100, 3857400; 228000, 3857400; 228000, 3857300; 227300, 
3857300; 227300, 3857400; 226600, 3857400; 226600, 3857500; 226400, 
3857500; 226400, 3857400; 226300, 3857400; 226300, 3857300; 226200, 
3857300; 226200, 3857200; 225900, 3857200; 225900, 3857600; thence west 
to the meridian of longitude at 120 degrees at y-coordinate 3857600; 
thence from the meridian of longitude at 120 degrees at UTM zone 10, 
NAD 27 y-coordinate 3857600, west and following UTM zone 10, NAD 27 
coordinates 773900, 3857600; 773900, 3857700; 773800, 3857700; 773800, 
3857900; 773700, 3857900; 773700, 3858000; 773600, 3858000; 773600, 
3858100; 773100, 3858100; 773100, 3858200; 772800, 3858200; 772800, 
3858400; 772500, 3858400; 772500, 3858500; 772100, 3858500; 772100, 
3858600; 771900, 3858600; 771900, 3858900; 771800, 3858900; 771800, 
3859000; 771700, 3859000; 771700, 3859100; 771600, 3859100; 771600, 
3859200; 771100, 3859200; 771100, 3859300; 770600, 3859300; 770600, 
3859400; 770500, 3859400; 770500, 3859500; 770000, 3859500; 770000, 
3859600; 769800, 3859600; 769800, 3859700; 769600, 3859700; 769600, 
3859600; 769500, 3859600; 769500, 3859500; 769400, 3859500; 769400, 
3859400; 769200, 3859400; 769200, 3859500; 769100, 3859500; 769100, 
3859700; 769000, 3859700; 769000, 3859800; 768800, 3859800; 768800, 
3860000; 768500, 3860000; 768500, 3860100; 768400, 3860100; 768400, 
3860000; 768300, 3860000; 768300, 3859600; 768200, 3859600; 768200, 
3859500; 767400, 3859500; 767400, 3859400; 767300, 3859400; 767300, 
3859500; 767200, 3859500; 767200, 3859400; 767000, 3859400; 767000, 
3859300; 766800, 3859300; 766800, 3859200; 766500, 3859200; 766500, 
3859100; 766400, 3859100; 766400, 3859000; 766100, 3859000; 766100, 
3858900; 766000, 3858900; 766000, 3858800; 765900, 3858800; 765900, 
3858500; 765700, 3858500; 765700, 3858400; 765800, 3858400; 765800, 
3858200; 765700, 3858200; 765700, 3858100; 764800, 3858100; 764800, 
3858000; 763900, 3858000; 763900, 3857900; 763600, 3857900; 763600, 
3858200; 763500, 3858200; 763500, 3858300; 763300, 3858300; 763300, 
3858400; 762800, 3858400; 762800, 3858200; 762700, 3858200; 762700, 
3858100; 762200, 3858100; 762200, 3858000; 762100, 3858000; 762100, 
3857900; 762000, 3857900; 762000, 3857800; 761900, 3857800; 761900, 
3857900; 761800, 3857900; 761800, 3857700; 761600, 3857700; 761600, 
3857600; 761500, 3857600; 761500, 3857700; 761400, 3857700; 761400, 
3857600; 760700, 3857600; 760700, 3857900; 760300, 3857900; 760300, 
3858000; 760100, 3858000; 760100, 3858100; 759900, 3858100; 759900, 
3858200; 759800, 3858200; 759800, 3858300; 759700, 3858300; 759700, 
3858500; 759500, 3858500; 759500, 3858600; 759300, 3858600; 759300, 
3858700; 759200, 3858700; 759200, 3858600; 759100, 3858600; 759100, 
3858500; 759000, 3858500; 759000, 3858200; 758900, 3858200; 758900, 
3858000; 758700, 3858000; 758700, 3857900; 758500, 3857900; 758500, 
3858000; 758400, 3858000; 758400, 3857900; 758200, 3857900; 758200, 
3858000; 757900, 3858000; 757900, 3858100; 757800, 3858100; 757800, 
3858200; 757700, 3858200; 757700, 3858300; 757500, 3858300; 757500, 
3858400; 757400, 3858400; 757400, 3858500; 757300, 3858500; 757300, 
3858600; 757200, 3858600; 757200, 3858700; 757000, 3858700; 757000, 
3858600; 756600, 3858600; 756600, 3858700; 756400, 3858700; 756400, 
3858800; 756300, 3858800; 756300, 3858900; 756200, 3858900; 756200, 
3859000; 756100, 3859000; 756100, 3859100; 755800, 3859100; 755800, 
3859200; 755200, 3859200; 755200, 3859100; 755100, 3859100; 755100, 
3859000; returning to754600, 3859000.
    (ii) Note: Map of Unit 2 follows.

[[Page 19621]]

[GRAPHIC] [TIFF OMITTED] TR13AP05.002

    (6) Unit 4; Sespe Creek, Ventura County, California.
    (i) From USGS 1:24,000 scale quadrangles Wheeler Springs, Lion 
Canyon, Topatopa Mountains, and Devils Heart Peak. Land bounded by the

[[Page 19622]]

following UTM zone 11, NAD 27 coordinates (E, N): 318600, 3828000; 
318600, 3827800; 318800, 3827800; 318800, 3827700; 318900, 3827700; 
318900, 3827400; 319100, 3827400; 319100, 3827700; 319200, 3827700; 
319200, 3827800; 319500, 3827800; 319500, 3827700; 319600, 3827700; 
319600, 3827500; 319700, 3827500; 319700, 3827300; 319800, 3827300; 
319800, 3827400; 319900, 3827400; 319900, 3827300; 320000, 3827300; 
320000, 3826900; 320100, 3826900; 320100, 3826800; 320400, 3826800; 
320400, 3826700; 320500, 3826700; 320500, 3826500; 320900, 3826500; 
320900, 3826300; 321000, 3826300; 321000, 3826100; 320900, 3826100; 
320900, 3826000; 320700, 3826000; 320700, 3826200; 320600, 3826200; 
320600, 3826300; 320400, 3826300; 320400, 3826400; 320300, 3826400; 
320300, 3826500; 320200, 3826500; 320200, 3826600; 319900, 3826600; 
319900, 3826700; 319800, 3826700; 319800, 3826900; 319700, 3826900; 
319700, 3827000; 319400, 3827000; 319400, 3827300; 319300, 3827300; 
319300, 3827100; 319200, 3827100; 319200, 3827000; 318800, 3827000; 
318800, 3827200; 318700, 3827200; 318700, 3827400; 318500, 3827400; 
318500, 3827600; 318300, 3827600; 318300, 3827700; 318200, 3827700; 
318200, 3827600; 318100, 3827600; 318100, 3827400; 318000, 3827400; 
318000, 3827300; 317500, 3827300; 317500, 3827400; 317400, 3827400; 
317400, 3827500; 317100, 3827500; 317100, 3827400; 317000, 3827400; 
317000, 3826900; 316800, 3826900; 316800, 3826800; 316400, 3826800; 
316400, 3826900; 316200, 3826900; 316200, 3827000; 316000, 3827000; 
316000, 3827100; 315800, 3827100; 315800, 3827200; 315700, 3827200; 
315700, 3827300; 315500, 3827300; 315500, 3827200; 315400, 3827200; 
315400, 3827100; 315300, 3827100; 315300, 3827000; 314500, 3827000; 
314500, 3826900; 314400, 3826900; 314400, 3826800; 314200, 3826800; 
314200, 3826900; 314100, 3826900; 314100, 3826800; 313900, 3826800; 
313900, 3826900; 313600, 3826900; 313600, 3826800; 313100, 3826800; 
313100, 3827000; 313000, 3827000; 313000, 3827200; 312800, 3827200; 
312800, 3827300; 312400, 3827300; 312400, 3827200; 312500, 3827200; 
312500, 3826900; 312600, 3826900; 312600, 3826400; 312000, 3826400; 
312000, 3826500; 311900, 3826500; 311900, 3826400; 311800, 3826400; 
311800, 3826200; 311600, 3826200; 311600, 3826300; 311300, 3826300; 
311300, 3826600; 311200, 3826600; 311200, 3826500; 311100, 3826500; 
311100, 3826400; 311000, 3826400; 311000, 3826200; 310900, 3826200; 
310900, 3826100; 310800, 3826100; 310800, 3825900; 310700, 3825900; 
310700, 3825800; 310500, 3825800; 310500, 3825500; 310100, 3825500; 
310100, 3825400; 310000, 3825400; 310000, 3825500; 309500, 3825500; 
309500, 3825400; 309300, 3825400; 309300, 3825500; 309100, 3825500; 
309100, 3825900; 309000, 3825900; 309000, 3826000; 308200, 3826000; 
308200, 3825900; 307900, 3825900; 307900, 3826000; 307600, 3826000; 
307600, 3826100; 307500, 3826100; 307500, 3826000; 307400, 3826000; 
307400, 3825900; 307200, 3825900; 307200, 3825800; 307100, 3825800; 
307100, 3825700; 306800, 3825700; 306800, 3825800; 306300, 3825800; 
306300, 3825700; 305300, 3825700; 305300, 3825800; 305000, 3825800; 
305000, 3825900; 304800, 3825900; 304800, 3826000; 304700, 3826000; 
304700, 3826100; 304600, 3826100; 304600, 3826200; 304500, 3826200; 
304500, 3825800; 304400, 3825800; 304400, 3825700; 304300, 3825700; 
304300, 3825600; 304100, 3825600; 304100, 3825500; 304000, 3825500; 
304000, 3825600; 303600, 3825600; 303600, 3825700; 303500, 3825700; 
303500, 3825800; 303100, 3825800; 303100, 3825700; 302500, 3825700; 
302500, 3825800; 302300, 3825800; 302300, 3825900; 301800, 3825900; 
301800, 3826000; 301700, 3826000; 301700, 3825900; 301500, 3825900; 
301500, 3826100; 301200, 3826100; 301200, 3826200; 301100, 3826200; 
301100, 3826100; 300700, 3826100; 300700, 3826000; 300400, 3826000; 
300400, 3825900; 300100, 3825900; 300100, 3825800; 300000, 3825800; 
300000, 3825700; 299800, 3825700; 299800, 3825600; 299600, 3825600; 
299600, 3825700; 299500, 3825700; 299500, 3825800; 298500, 3825800; 
298500, 3825700; 298300, 3825700; 298300, 3825600; 297600, 3825600; 
297600, 3825500; 297500, 3825500; 297500, 3825300; 297300, 3825300; 
297300, 3825600; 297200, 3825600; 297200, 3825700; 297100, 3825700; 
297100, 3825500; 297000, 3825500; 297000, 3825400; 296900, 3825400; 
296900, 3825300; 296700, 3825300; 296700, 3825400; 296600, 3825400; 
296600, 3825500; 296400, 3825500; 296400, 3825600; 296300, 3825600; 
296300, 3825700; 296200, 3825700; 296200, 3825800; 295900, 3825800; 
295900, 3825700; 295800, 3825700; 295800, 3825600; 295400, 3825600; 
295400, 3825500; 295200, 3825500; 295200, 3825400; 295100, 3825400; 
295100, 3825200; 294900, 3825200; 294900, 3825300; 294700, 3825300; 
294700, 3825400; 294600, 3825400; 294600, 3825500; 294400, 3825500; 
294400, 3825600; 294100, 3825600; 294100, 3825800; 294000, 3825800; 
294000, 3825900; 293900, 3825900; 293900, 3826000; 293800, 3826000; 
293800, 3825900; 293000, 3825900; 293000, 3825800; 292000, 3825800; 
292000, 3826000; 291800, 3826000; 291800, 3826200; 291600, 3826200; 
291600, 3826300; 291500, 3826300; 291500, 3826500; 291800, 3826500; 
291800, 3826400; 291900, 3826400; 291900, 3826500; 292200, 3826500; 
292200, 3826600; 292100, 3826600; 292100, 3826700; 292000, 3826700; 
292000, 3827000; 292100, 3827000; 292100, 3827100; 292200, 3827100; 
292200, 3827200; 292400, 3827200; 292800, 3827200; 292800, 3827100; 
292700, 3827100; 292700, 3826900; 292600, 3826900; 292600, 3826700; 
292700, 3826700; 292700, 3826600; 292600, 3826600; 292600, 3826400; 
292500, 3826400; 292500, 3826300; 292400, 3826300; 292400, 3826200; 
292700, 3826200; 292700, 3826300; 292900, 3826300; 292900, 3826400; 
293000, 3826400; 293000, 3826500; 293400, 3826500; 293400, 3826600; 
293600, 3826600; 293600, 3826700; 293900, 3826700; 293900, 3826500; 
294100, 3826500; 294100, 3826400; 294300, 3826400; 294300, 3826500; 
294800, 3826500; 294800, 3826400; 294700, 3826400; 294700, 3826300; 
294600, 3826300; 294600, 3826200; 294500, 3826200; 294500, 3826100; 
294600, 3826100; 294600, 3826000; 294700, 3826000; 294700, 3825900; 
294800, 3825900; 294800, 3825800; 295000, 3825800; 295000, 3825900; 
295300, 3825900; 295300, 3826100; 295200, 3826100; 295200, 3826300; 
295300, 3826300; 295300, 3826400; 295400, 3826400; 295400, 3826300; 
295700, 3826300; 295700, 3826400; 296000, 3826400; 296000, 3826200; 
296300, 3826200; 296300, 3826100; 296400, 3826100; 296400, 3826000; 
296500, 3826000; 296500, 3825900; 296600, 3825900; 296600, 3825800; 
296700, 3825800; 296700, 3825600; 296800, 3825600; 296800, 3825900; 
296900, 3825900; 296900, 3826000; 297000, 3826000; 297000, 3826100; 
297300, 3826100; 297300, 3826000; 297600, 3826000; 297600, 3826100; 
297800, 3826100; 297800, 3826000; 297900, 3826000; 297900, 3825900; 
298000, 3825900; 298000, 3826100; 298100, 3826100; 298100, 3826200; 
298400, 3826200; 298400, 3826300; 298500, 3826300; 298500, 3826400; 
298700, 3826400; 298700, 3826500; 298900, 3826500; 298900, 3826400; 
299000, 3826400; 299000, 3826300; 299600, 3826300; 299600, 3826200;

[[Page 19623]]

299700, 3826200; 299700, 3826000; 299800, 3826000; 299800, 3826100; 
299900, 3826100; 299900, 3826300; 300000, 3826300; 300000, 3826400; 
300100, 3826400; 300100, 3826500; 300200, 3826500; 300200, 3826600; 
300500, 3826600; 300500, 3826500; 300900, 3826500; 300900, 3826600; 
301700, 3826600; 301700, 3826500; 301900, 3826500; 301900, 3826400; 
302000, 3826400; 302000, 3826200; 302400, 3826200; 302400, 3826400; 
302700, 3826400; 302700, 3826100; 303000, 3826100; 303000, 3826200; 
303100, 3826200; 303100, 3826300; 303600, 3826300; 303600, 3826100; 
303800, 3826100; 303800, 3826000; 304000, 3826000; 304000, 3826100; 
304100, 3826100; 304100, 3826200; 304200, 3826200; 304200, 3826500; 
304300, 3826500; 304300, 3826600; 304800, 3826600; 304800, 3826500; 
304900, 3826500; 304900, 3826400; 305100, 3826400; 305100, 3826300; 
305300, 3826300; 305300, 3826200; 305500, 3826200; 305500, 3826300; 
305700, 3826300; 305700, 3826200; 306000, 3826200; 306000, 3826100; 
306200, 3826100; 306200, 3826200; 306500, 3826200; 306500, 3826300; 
306900, 3826300; 306900, 3826200; 307100, 3826200; 307100, 3826300; 
307200, 3826300; 307200, 3826400; 307500, 3826400; 307500, 3826500; 
307800, 3826500; 307800, 3826400; 307900, 3826400; 307900, 3826300; 
308000, 3826300; 308000, 3826200; 308200, 3826200; 308200, 3826300; 
308300, 3826300; 308300, 3826500; 308600, 3826500; 308600, 3826400; 
309000, 3826400; 309000, 3826300; 309300, 3826300; 309300, 3826200; 
309400, 3826200; 309400, 3825800; 309900, 3825800; 309900, 3825900; 
309800, 3825900; 309800, 3826000; 310100, 3826000; 310100, 3825900; 
310200, 3825900; 310200, 3826100; 310300, 3826100; 310300, 3826200; 
310600, 3826200; 310600, 3826400; 310700, 3826400; 310700, 3826600; 
310800, 3826600; 310800, 3826700; 310800, 3826800; 311100, 3826800; 
311100, 3826900; 311600, 3826900; 311600, 3827000; 311900, 3827000; 
311900, 3826900; 312000, 3826900; 312000, 3826800; 312200, 3826800; 
312200, 3826900; 312100, 3826900; 312100, 3827100; 312000, 3827100; 
312000, 3827500; 312100, 3827500; 312100, 3827600; 312500, 3827600; 
312500, 3827700; 312600, 3827700; 312600, 3827600; 313000, 3827600; 
313000, 3827500; 313200, 3827500; 313200, 3827400; 313300, 3827400; 
313300, 3827300; 315100, 3827300; 315100, 3827400; 315200, 3827400; 
315200, 3827700; 315400, 3827700; 315400, 3827800; 315500, 3827800; 
315500, 3827700; 316000, 3827700; 316000, 3827600; 316100, 3827600; 
316100, 3827400; 316300, 3827400; 316300, 3827300; 316400, 3827300; 
316400, 3827100; 316700, 3827100; 316700, 3827600; 316800, 3827600; 
316800, 3827700; 316900, 3827700; 316900, 3827900; 317000, 3827900; 
317000, 3828000; 317500, 3828000; 317500, 3827900; 317600, 3827900; 
317600, 3827800; 317800, 3827800; 317800, 3827900; 317900, 3827900; 
317900, 3828000; returning to 318600, 3828000; excluding land bounded 
by 293600, 3826200; 293600, 3826300; 293400, 3826300; 293400, 3826200; 
293600, 3826200.
    (ii) Note: Map of Unit 4 follows.
BILLING CODE 4310-55-P

[[Page 19624]]

[GRAPHIC] [TIFF OMITTED] TR13AP05.003

BILLING CODE 4310-55-C

[[Page 19625]]

    (7) Unit 9; San Jacinto River Basin/Bautista Creek, Riverside 
County, California.
    (i) From USGS 1:24,000 scale quadrangle Blackburn Canyon. Land 
bounded by the following UTM zone 11, NAD27 coordinates (E, N): 515200, 
3733300; thence east to the Cleveland National Forest (CNF) boundary at 
y-coordinate 3733300; thence south, west, and north along the CNF 
boundary, passing y-coordinate 3733300, to x-coordinate 515200; 
returning to 515200, 3733300.
    (ii) Land bounded by the following UTM zone 11, NAD27 coordinates 
(E, N): 517000, 3732900; thence south to the CNF boundary at x-
coordinate 517000; thence west and north along the CNF boundary to y-
coordinate 3732900; returning to 517000, 3732900.
    (iii) Land bounded by the following UTM zone 11, NAD27 coordinates 
(E, N): 516700, 3732300; 516700, 3732400; thence west to the CNF 
boundary at y-coordinate 3732400; thence north and southeast along the 
CNF boundary to y-coordinate 3732300; returning to 516700, 3732300.
    (iv) Land bounded by the following UTM zone 11, NAD27 coordinates 
(E, N): 514700, 3726400; 514700, 3726700; 514600, 3726700; 514600, 
3726800; 514500, 3726800; 514500, 3727100; 514400, 3727100; 514400, 
3727200; 514200, 3727200; thence north to the CNF boundary at x-
coordinate 514200; thence east and south along the CNF boundary to y-
coordinate 3726300; thence west and following coordinates 514800, 
3726300; 514800, 3726400; returning to 514700, 3726400.
    (v) Land bounded by the following UTM zone 11, NAD27 coordinates 
(E, N): 515800, 3725000; 515900, 3725000; 515900, 3724900; 516200, 
3724900; 516200, 3724700; 516300, 3724700; 516300, 3724500; 516600, 
3724500; 516600, 3724400; 516800, 3724400; 516800, 3724200; 516900, 
3724200; 516900, 3724100; 517000, 3724100; 517000, 3723800; 517200, 
3723800; 517200, 3723400; 517300, 3723400; thence south to the CNF 
boundary at x-coordinate 517300; thence west and southeast along the 
CNF boundary, passing x-coordinate 518500, to y-coordinate 518800; 
thence east following coordinates 3721900; 518800, 3722000; 518900, 
3722000; 518900, 3722100; 519000, 3722100; 519000, 3721900; 519100, 
3721900; 519100, 3721700; 519000, 3721700; 519000, 3721500; 518900, 
3721500; 518900, 3721400; 518300, 3721400; 518300, 3721500; 518200, 
3721500; 518200, 3721600; 518100, 3721600; 518100, 3721700; 517900, 
3721700; 517900, 3721900; 517700, 3721900; 517700, 3722000; 517600, 
3722000; 517600, 3722100; 517500, 3722100; 517500, 3722300; 517200, 
3722300; 517200, 3722400; 517100, 3722400; 517100, 3722800; 517000, 
3722800; 517000, 3722900; 516900, 3722900; 516900, 3723000; 516800, 
3723000; 516800, 3723500; 516500, 3723500; 516500, 3723700; 516600, 
3723700; 516600, 3723900; 516500, 3723900; 516500, 3724100; 516300, 
3724100; 516300, 3724200; 515900, 3724200; 515900, 3724500; 515800, 
3724500; 515800, 3724600; 515600, 3724600; 515600, 3724700; 515500, 
3724700; 515500, 3725400; 515400, 3725400; thence north to the CNF 
boundary at x-coordinate 515400; thence east along the CNF boundary to 
x-coordinate 515800; returning to 515800, 3725000. Land bounded by the 
following UTM zone 11, NAD27 coordinates (E, N): 518000, 3723100; 
518000, 3723000; 518100, 3723000; 518100, 3722900; 518300, 3722900; 
518300, 3722700; 518200, 3722700; 518200, 3722600; 518300, 3722600; 
518300, 3722500; 518400, 3722500; 518400, 3722400; 518500, 3722400; 
518500, 3722300; 518600, 3722300; 518600, 3722100; 518700, 3722100; 
thence south to the CNF boundary at x-coordinate 518700; thence 
northwest along the CNF boundary to y-coordinate 3723100; returning to 
518000, 3723100.
    (vi)Note: Map of Unit 9 follows.

[[Page 19626]]

[GRAPHIC] [TIFF OMITTED] TR13AP05.004


[[Page 19627]]


    (8) Unit 20; Upper Santa Ana River Basin/Cajon Wash, San Bernardino 
County, California.
    (i) From USGS 1:24,000 scale quadrangle Cajon. Land bounded by the 
following UTM zone 11, NAD27 coordinates (E, N): 457100, 3792000; 
457300, 3792000; 457300, 3791900; 457400, 3791900; 457400, 3792000; 
457500, 3792000; 457500, 3791900; 457600, 3791900; 457600, 3792000; 
457700, 3792000; 457700, 3791900; 457800, 3791900; 457800, 3791800; 
457900, 3791800; 457900, 3791700; 458000, 3791700; 458000, 3791500; 
457900, 3791500; 457900, 3791400; 457400, 3791400; 457400, 3791300; 
457200, 3791300; 457200, 3791000; 457100, 3791000; 457100, 3790800; 
457200, 3790800; 457200, 3790600; 457300, 3790600; 457300, 3790500; 
457400, 3790500; 457400, 3790400; 457500, 3790400; 457500, 3790300; 
458000, 3790300; 458000, 3790200; 458300, 3790200; 458300, 3790100; 
458600, 3790100; 458600, 3790000; 458700, 3790000; 458700, 3789900; 
458800, 3789900; 458800, 3789800; 458900, 3789800; 458900, 3789700; 
459000, 3789700; 459000, 3789600; 459100, 3789600; 459100, 3789400; 
459400, 3789400; 459400, 3789300; 459500, 3789300; 459500, 3789200; 
459600, 3789200; 459600, 3789000; 459700, 3789000; 459700, 3788900; 
459800, 3788900; 459800, 3788800; 459900, 3788800; 459900, 3788700; 
460000, 3788700; 460000, 3788600; 460100, 3788600; 460100, 3788500; 
460400, 3788500; 460400, 3788400; 460600, 3788400; 460600, 3788300; 
460700, 3788300; 460700, 3788200; 460800, 3788200; 460800, 3788100; 
460900, 3788100; 460900, 3787400; 460800, 3787400; 460800, 3787200; 
460500, 3787200; 460500, 3787300; 460400, 3787300; 460400, 3787400; 
460300, 3787400; 460300, 3787500; 460200, 3787500; 460200, 3787600; 
460100, 3787600; 460100, 3787700; 460000, 3787700; 460000, 3787800; 
459800, 3787800; 459800, 3787900; 459700, 3787900; 459700, 3788000; 
459600, 3788000; 459600, 3788100; 459400, 3788100; 459400, 3788200; 
459300, 3788200; 459300, 3788300; 459200, 3788300; 459200, 3788500; 
459100, 3788500; 459100, 3788700; 458900, 3788700; 458900, 3788900; 
458700, 3788900; 458700, 3789000; 458500, 3789000; 458500, 3789100; 
458300, 3789100; 458300, 3789300; 458100, 3789300; 458100, 3789400; 
458000, 3789400; 458000, 3789500; 457900, 3789500; 457900, 3789600; 
457800, 3789600; 457800, 3789700; 457700, 3789700; 457700, 3789800; 
457600, 3789800; 457600, 3789700; 457500, 3789700; 457500, 3789800; 
457300, 3789800; 457300, 3789900; 457000, 3789900; 457000, 3790100; 
456900, 3790100; 456900, 3790200; 456800, 3790200; 456800, 3790500; 
456700, 3790500; 456700, 3791000; 456600, 3791000; 456600, 3791200; 
456700, 3791200; 456700, 3791300; 456800, 3791300; 456800, 3791400; 
456900, 3791400; 456900, 3791500; 457100, 3791500; returning to 457100, 
3792000.
    (ii) Note: Map of Unit 20 follows.

[[Page 19628]]

[GRAPHIC] [TIFF OMITTED] TR13AP05.005

    (9) Unit 21; Little Rock Creek Basin, Los Angeles County, 
California.
    (i) From USGS 1:24,000 scale quadrangles Juniper Hills and Pacifico 
Mountain. Land bounded by the following UTM zone 11, NAD27

[[Page 19629]]

coordinates (E, N): 406300, 3814500; 406500, 3814500; 406500, 3814100; 
406600, 3814100; 406600, 3813600; 406800, 3813600; 406800, 3813400; 
406700, 3813400; 406700, 3813300; 406800, 3813300; 406800, 3812700; 
406900, 3812700; 406900, 3812300; 407000, 3812300; 407000, 3812200; 
407200, 3812200; 407200, 3811900; 407300, 3811900; 407300, 3811800; 
407400, 3811800; 407400, 3811700; 407500, 3811700; 407500, 3811600; 
407600, 3811600; 407600, 3811400; 407800, 3811400; 407800, 3811200; 
408200, 3811200; 408200, 3811100; 408500, 3811100; 408500, 3811000; 
408700, 3811000; 408700, 3810900; 409000, 3810900; 409000, 3810800; 
409100, 3810800; 409100, 3810600; 409200, 3810600; 409200, 3810400; 
409300, 3810400; 409300, 3810300; 409400, 3810300; 409400, 3810100; 
409500, 3810100; 409500, 3810000; 409800, 3810000; 409800, 3809900; 
409900, 3809900; 409900, 3809500; 409600, 3809500; 409600, 3809700; 
409300, 3809700; 409300, 3809800; 409200, 3809800; 409200, 3810000; 
409100, 3810000; 409100, 3810100; 409000, 3810100; 409000, 3810300; 
408900, 3810300; 408900, 3810400; 408800, 3810400; 408800, 3810500; 
408600, 3810500; 408600, 3810600; 408200, 3810600; 408200, 3810800; 
407900, 3810800; 407900, 3810900; 407700, 3810900; 407700, 3811000; 
407600, 3811000; 407600, 3811100; 407500, 3811100; 407500, 3811200; 
407400, 3811200; 407400, 3811300; 407300, 3811300; 407300, 3811400; 
407100, 3811400; 407100, 3811500; 407000, 3811500; 407000, 3811600; 
406900, 3811600; 406900, 3811700; 406800, 3811700; 406800, 3811800; 
406700, 3811800; 406700, 3811900; 406600, 3811900; 406600, 3812600; 
406500, 3812600; 406500, 3813100; 406400, 3813100; 406400, 3813200; 
406300, 3813200; 406300, 3813500; 406400, 3813500; 406400, 3813800; 
406300, 3813800; 406300, 3814000; 406200, 3814000; 406200, 3813900; 
406100, 3813900; 406100, 3813800; 406000, 3813800; 406000, 3813700; 
405900, 3813700; 405900, 3813600; 405700, 3813600; 405700, 3813500; 
405600, 3813500; 405600, 3813400; 405500, 3813400; 405500, 3813300; 
405400, 3813300; 405400, 3813100; 405200, 3813100; 405200, 3813000; 
405000, 3813000; 405000, 3812900; 404800, 3812900; 404800, 3813100; 
404900, 3813100; 404900, 3813300; 405000, 3813300; 405000, 3813400; 
405100, 3813400; 405100, 3813500; 405200, 3813500; 405200, 3813600; 
405400, 3813600; 405400, 3813700; 405500, 3813700; 405500, 3813800; 
405600, 3813800; 405600, 3813900; 405800, 3813900; 405800, 3814000; 
405900, 3814000; 405900, 3814200; 406000, 3814200; 406000, 3814300; 
406100, 3814300; 406100, 3814400; 406300, 3814400; returning to 406300, 
3814500.
    (ii) Note: Map of Unit 21 follows.

[[Page 19630]]

[GRAPHIC] [TIFF OMITTED] TR13AP05.006

    (10) Unit 23; Whitewater River Basin, Riverside County, California.
    (i) From USGS 1:24,000 scale quadrangle White Water. Land bounded 
by the following UTM zone 11, NAD27 coordinates (E, N): 532500, 
3759600;

[[Page 19631]]

532600, 3759600; 532600, 3759200; 532700, 3759200; 532700, 3758900; 
532800, 3758900; 532800, 3758700; 532900, 3758700; 532900, 3758400; 
532800, 3758400; 532800, 3757800; 532900, 3757800; thence south to the 
Bureau of Land Management (BLM) boundary at x-coordinate 532900; thence 
west and south along the BLM boundary to y-coordinate 3757400; thence 
west and following coordinates 532400, 3757400; 532400, 3757600; 
532300, 3757600; 532300, 3757800; 532200, 3757800; 532200, 3758000; 
532100, 3758000; thence north to the BLM boundary at x-coordinate 
532100; thence east and north along the BLM boundary to y-coordinate 
3759600; returning to 532500, 3759600.
    Land bounded by the following UTM zone 11, NAD27 coordinates (E, 
N): 532800, 3755600; thence north to the BLM boundary at x-coordinate 
532800; thence eastward along the BLM boundary to x-coordinate 533600; 
thence south and following coordinates 533600, 3755200; 533700, 
3755200; thence south to the BLM boundary at x-coordinate 533700; 
thence westward along the BLM boundary to x-coordinate 533000; thence 
north and following coordinates 533000, 3755400; 532900, 3755400; 
532900, 3755600; returning to 532800, 3755600.
    (ii) Note: Unit 23 included on map with Unit 9.
BILLING CODE 4310-55-P

[[Page 19632]]

[GRAPHIC] [TIFF OMITTED] TR13AP05.007


[[Page 19633]]


* * * * *

    Dated: March 31, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 05-6824 Filed 4-12-05; 8:45 am]
BILLING CODE 4310-55-C