[Federal Register Volume 74, Number 196 (Tuesday, October 13, 2009)]
[Proposed Rules]
[Pages 52612-52664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24076]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Revised Critical Habitat 
for the Arroyo Toad (Anaxyrus californicus); Proposed Rule

  Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / 
Proposed Rules  

[[Page 52612]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0069; 92210-1117-0000-B4]
RIN 1018-AV89


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Arroyo Toad (Anaxyrus californicus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise designated critical habitat for the arroyo toad (Anaxyrus 
californicus), pursuant to the Endangered Species Act of 1973, as 
amended (Act). The previous final rule designated 11,695 acres (ac) 
(4,733 hectares (ha)) of critical habitat and was published in the 
Federal Register (FR) on April 13, 2005. We now propose to designate 
approximately 109,110 ac (44,155 ha) of lands located in Santa Barbara, 
Ventura, Los Angeles, San Bernardino, Riverside, Orange, and San Diego 
Counties, California, which, if finalized as proposed, would result in 
an increase of approximately 97,415 ac (39,422 ha) of critical habitat.

DATES: We will consider comments we receive on or before December 14, 
2009. We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by 
November 27, 2009.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R8-
ES-2009-0069.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2009-0069, Division of Policy and Directives 
Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, 
Suite 222, Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: For general information on the 
proposed designation and information about the proposed revised 
designation in Santa Barbara and Ventura Counties, northern Los Angeles 
County, and the desert portion of San Bernardino County, contact Diane 
Noda, Field Supervisor, or Michael McCrary, Listing and Recovery 
Coordinator, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2493 Portola Road, Suite B, Ventura, CA 93003; telephone (805) 
644-1766; facsimile (805) 644-3958.
    For information about the proposed revised designation in the 
remaining portions of Los Angeles and San Bernardino Counties, as well 
as Riverside, Orange, and San Diego Counties, contact Jim Bartel, Field 
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; 
telephone (760) 431-9440; facsimile (760) 431-9624.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend any final action resulting from this proposed revised 
rule to be based on the best scientific and commercial data available 
and be as accurate and as effective as possible. Therefore, we request 
comments or information from the public, other government agencies, 
Tribes, the scientific community, industry, or other interested parties 
concerning this proposed rule. We particularly seek comments 
concerning:
    1. The reasons why we should or should not revise the designation 
of habitat as ``critical habitat'' under section 4 of the Endangered 
Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), 
including whether there are threats to the species from human activity, 
the degree of which can be expected to increase due to the designation, 
and whether that increase in threat outweighs the benefit of 
designation such that the designation of critical habitat is not 
prudent;
    2. Specific information on:
     The amount and distribution of arroyo toad habitat 
included in this proposed revised rule,
     What areas within the geographical area occupied by the 
species at the time of listing contain features essential to the 
conservation of the species and why, and
     What areas outside the geographical area occupied by the 
species at the time of listing are essential for the conservation of 
the species and why;
    3. Land-use designations and current or planned activities in the 
subject areas and their possible effects on proposed revised critical 
habitat;
    4. Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities, and the benefits of including or excluding areas that exhibit 
these impacts;
    5. Comments or information that may assist us in identifying or 
clarifying the primary constituent elements and the resulting physical 
and biological features essential to the conservation of the arroyo 
toad;
    6. How the proposed revised critical habitat boundaries could be 
refined to more closely circumscribe the landscapes identified as 
essential;
    7. Information regarding Trabuco Creek in Orange County and any 
special management considerations or protection that any essential 
physical or biological features in this area may require;
    8. Information regarding the San Diego River in San Diego County 
from just below El Capitan Reservoir downstream to the confluence with 
San Vicente Creek, and any special management considerations or 
protection that any essential physical or biological features in this 
area may require;
    9. Whether the potential exclusion under section 4(b)(2) of the Act 
of non-Federal lands covered by the Western Riverside County Multiple 
Species Habitat Conservation Plan from final revised critical habitat 
is or is not appropriate and why;
    10. Whether the potential exclusion under section 4(b)(2) of the 
Act of non-Federal lands covered by the San Diego Multiple Species 
Conservation Program-City and County of San Diego's Subarea Plans from 
final revised critical habitat is or is not appropriate and why;
    11. Whether the potential exclusion under section 4(b)(2) of the 
Act of non-Federal lands covered by the Coachella Valley Multiple 
Species Habitat Conservation Plan from final revised critical habitat 
is or is not appropriate and why;
    12. Whether the potential exclusion under section 4(b)(2) of the 
Act of non-Federal lands covered by the Orange County Central-Coastal 
Subregional Habitat Conservation Plan/Natural Community Conservation 
Plan from final revised critical habitat is or is not appropriate and 
why;
    13. Whether the potential exclusion under section 4(b)(2) of the 
Act of non-Federal lands covered by the Southern Orange County Natural 
Community Conservation Plan/Master Streambed Alteration Agreement/
Habitat Conservation Plan from final revised critical habitat is or is 
not appropriate and why;

[[Page 52613]]

    14. Whether the conservation needs of the arroyo toad can be 
achieved or not by limiting the designation of final revised critical 
habitat to non-Tribal lands and why;
    15. Whether the potential exclusion under section 4(b)(2) of the 
Act of Tribal lands of the Rincon Band of Luise[ntilde]o Mission 
Indians from final revised critical habitat is or is not appropriate 
and why;
    16. Whether the potential exclusion under section 4(b)(2) of the 
Act of Tribal lands of the Pala Band of Luise[ntilde]o Mission Indians 
from final revised critical habitat is or is not appropriate and why;
    17. Whether the potential exclusion under section 4(b)(2) of the 
Act of Tribal lands of the Sycuan Band of the Kumeyaay Nation from 
final revised critical habitat is or is not appropriate and why;
    18. Whether the potential exclusion under section 4(b)(2) of the 
Act of Tribal lands of the Capitan Grande Band of Diegueno Mission 
Indians from final revised critical habitat is or is not appropriate 
and why;
    19. Whether the potential exclusion under section 4(b)(2) of the 
Act of Tribal lands of the Mesa Grande Band of Diegueno Mission Indians 
from final revised critical habitat is or is not appropriate and why;
    20. Whether our exemption under section 4(a)(3)(B) of the Act of 
the lands on Department of Defense land at Marine Corps Base, Camp 
Pendleton, in San Diego County; Fallbrook Naval Weapons Station in San 
Diego County; and Fort Hunter Liggett Military Reservation in San Luis 
Obispo County is or is not appropriate, and why;
    21. Information on any quantifiable economic costs or benefits of 
the proposed revised designation of critical habitat;
    22. Whether the benefit of exclusion of any other particular area 
not specifically identified above outweighs the benefit of inclusion 
under section 4(b)(2) of the Act;
    23. Information on the currently predicted effects of climate 
change on the arroyo toad and its habitat;
    24. Any foreseeable impacts on energy supplies, distribution, and 
use resulting from the proposed revised designation and, in particular, 
any impacts on electricity production, and the benefits of including or 
excluding any particular areas that exhibit these impacts; and
    25. Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Our final determination concerning revised critical habitat for the 
arroyo toad will take into consideration all written comments received 
during the comment period, including comments requested from peer 
reviewers, comments received during a public hearing should one be 
requested, and any additional information we receive during the 60-day 
comment period. Our final determination will also consider all written 
comments and any additional information we receive during the comment 
period for the draft economic analysis. All comments will be included 
in the public record for this rulemaking. On the basis of peer reviewer 
and public comments, we may, during the development of our final 
determination, find that areas within those proposed do not meet the 
definition of critical habitat, that some modifications to the 
described boundaries are appropriate, or that areas are or are not 
appropriate for exclusion under section 4(b)(2) of the Act.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov. Please include 
sufficient information with your comment to allow us to verify any 
scientific or commercial data you submit.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).
    You may obtain copies of the proposed revised rule by mail from the 
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT) 
or by visiting the Federal eRulemaking Portal at http://www.regulations.gov.

Background

    It is our intent to discuss only those topics directly relevant to 
the revised designation of critical habitat in this proposed rule. 
Additional information on the arroyo toad may also be found in the 
final listing rule published in the Federal Register on December 16, 
1994 (59 FR 64859), the ``Recovery Plan for the Arroyo Southwestern 
Toad'' (recovery plan; Service 1999), and the designation of critical 
habitat for the arroyo toad published in the Federal Register on April 
13, 2005 (70 FR 19562). These documents are available on the Ventura 
Fish and Wildlife Office and Carlsbad Fish and Wildlife Office Web 
sites at http://www.fws.gov/ventura and http://www.fws.gov/carlsbad. 
However, please note that this proposed rule incorporates new 
information on the distribution of arroyo toads that became available 
since the 2005 final critical habitat designation for this species.

Taxonomy and Nomenclature

    On December 16, 1994, we published a final rule listing the arroyo 
southwestern toad (Bufo microscaphus californicus) as endangered (59 FR 
64859). This animal, originally described as Bufo cognatus californicus 
(Camp 1915, p. 331), has consistently been treated as a distinct taxon. 
However, its rank as a subspecies or species and taxonomic affiliations 
with other species has changed several times since it was described. 
Myers (1930, p. 75) elevated it to species rank as Bufo californicus 
citing morphological, vocalization, and ecological data to distinguish 
it from B. cognatus. Subsequent to Myers' paper, other authors again 
relegated the animal to subspecies rank aligned with various other 
species of Bufo. The name in use at the time of listing, Bufo 
microscaphus californicus, was published by Stebbins (1951, p. 275).
    Since the toad was listed, an analysis of allozyme data (Gergus 
1998, p. 322) supports recognition of Bufo californicus as separate 
from B. microscaphus. In addition, a phylogenetic analysis of 
comparative anatomical and molecular genetic data for amphibians (Frost 
et al. 2006, p. 363) segregated the Nearctic taxa of Bufo as the genus 
Anaxyrus and published the combination Anaxyrus californicus, the 
arroyo toad. This treatment is accepted by the Committee on Standard 
English and Scientific Names of the American Society of Ichthyologists 
and Herpetologists, The Herpetologists' League, and the Society for the 
Study of Amphibians and Reptiles (Frost et al. 2008, p. 3).
    In light of these changes and their acceptance by the above 
scientific authorities, we are proposing to amend the List of 
Threatened and Endangered Wildlife at 50 CFR 17.11 to identify the

[[Page 52614]]

listed entity as ``arroyo toad (Anaxyrus californicus).'' This change 
does not alter the description or distribution of the animals.

Species Description

    The arroyo toad is a small, dark-spotted toad of the family 
Bufonidae. Its coloration ranges from light olive green or gray to 
light brown with a distinctive light-colored, V-shaped stripe across 
the head and the eyelids. The belly is white or buff and often lacks 
dark blotches or spots (Stebbins 2003, p. 212). The species is endemic 
to the coastal plain and mountains of central and southern California, 
and northwestern Baja California, Mexico, from near sea level to about 
8,000 feet (ft) (2,440 meters (m)) in elevation. For a detailed 
description of the species, see the recovery plan and references cited 
within the plan (Service 1999, pp. 1-119), and information in previous 
Federal Register notices, proposed rules, and final rules (59 FR 64859, 
December 16, 1994; 66 FR 9414, February 7, 2001; 69 FR 23254, April 28, 
2004; 70 FR 19562, April 13, 2005). In addition to the recovery plan, 
important sources for information on the biology of the arroyo toad 
include: Sweet (1992, pp. 1-198; 1993, pp. 1-73); Campbell et al. 
(1996, pp. 1-46); Griffin et al. (1998, pp. 1-66); Griffin and Case 
(2001, pp. 633-644); Holland and Sisk (2001); and Ramirez (2002a, pp. 
1-62; 2002b; 2002c; 2003, pp. 1-101).

Life History

    Breeding typically occurs from February to July on streams with 
persistent water (Griffin et al. 1999, p. 1). Males may breed with 
several females in a season; however, female arroyo toads release their 
entire clutch of eggs as a single breeding effort and probably do not 
produce a second clutch during the mating season. Eggs are deposited 
and tadpoles develop in shallow pools with minimal current and little 
or no emergent vegetation. The substrate in these pools is generally 
sand or fine gravel overlain with silt. The eggs hatch in 4 to 5 days 
and the tadpoles are immobile for an additional 5 to 6 days. Tadpoles 
then begin to disperse from the pool margin into the surrounding 
shallow water, where they spend an average of 10 weeks. Peak 
metamorphosis occurs during June and July in the northern part of the 
arroyo toad's range, and from late April through June farther south, 
although it could occur later, particularly at higher elevations 
(Holland 2000, in litt. p. 8). After metamorphosis, the juvenile arroyo 
toads remain on the bordering gravel bars until the pool dries out 
(usually from 8 to 12 weeks depending on the site and rainfall). Most 
individuals become sexually mature by the following spring (Sweet 1992, 
p. 52).
    Arroyo toad tadpoles feed on loose organic material such as 
interstitial algae, bacteria, and diatoms. They do not forage on 
macroscopic vegetation (Sweet 1992, p. 82; Jennings and Hayes 1994, p. 
56). Juvenile arroyo toads feed on ants almost exclusively (Service 
1999, p. 36). By the time they reach 0.7 to 0.9 inch (in) (1.78 
centimeters (cm)) in length, they consume beetles along with ants 
(Sweet 1992, p. 99; Service 1999, p. 36). Adult arroyo toads probably 
consume a wide variety of insects and arthropods including (but not 
limited to) ants, beetles, spiders, larvae, and caterpillars.

Geographic Range

    The historical and current range of the arroyo toad extends from 
the Salinas River Basin southward through the Santa Ynez, Santa Clara, 
and Los Angeles River basins (Sweet 1992, p. 18), to Orange, Riverside, 
and San Diego Counties (Jennings and Hayes 1994, p. 54) and southward 
to the Arroyo San Simeon system, Baja California, Mexico (Service 1999, 
p. 12; Ramirez 2007, p. 5). Populations also occur on the desert slopes 
of both the San Gabriel Mountains (in Little Rock Creek in Los Angeles 
County) and the San Bernardino Mountains (in the Mojave River and in 
its tributaries, Little Horsethief and Deep Creeks, in San Bernardino 
County) (Sweet 1992, p. 18; Jennings and Hayes 1994, p. 54).
    At the time of listing (59 FR 64859; December 16, 1994), arroyo 
toads were believed to be extirpated from the Salinas River Basin. In 
1996, arroyo toads were found during surveys on the Fort Hunter Liggett 
Military Reservation approximately 40 miles (mi) (64 kilometers (km)) 
downstream of the historical Santa Margarita arroyo toad locality (U.S. 
Army Reserve 2004, pp. 5-10). In 1997, arroyo toads were detected along 
a 17-mi (27-km) stretch of the San Antonio River. The Army surveyed 
approximately 6 mi (9.6 km) of the San Antonio River on the Military 
Reservation in 2002 and estimated there were as many as 7,000 arroyo 
toad larvae (tadpoles) in the area (U.S. Army Reserve Command 2004, p. 
12). We believe this population was present but undetected on Fort 
Hunter Liggett at the time of listing for the following reasons: (1) 
Annual surveys (U.S. Army Reserve 2004, p. 38) indicate there is 
suitable breeding and upland habitats for this large, robust 
population; and (2) given that the nearest extant population of arroyo 
toads is 150 mi (240 km) southeast of Fort Hunter Liggett in Santa 
Barbara County, it is unlikely that arroyo toads could have dispersed 
and newly colonized the Fort Hunter Liggett area by 1996, just 2 years 
subsequent to the species being listed in 1994. Therefore, we consider 
the population on Fort Hunter Liggett to have existed in 1994 and to 
represent the northernmost limit of the species' range at listing and 
currently. The geographical area occupied by the species at the time it 
was listed is the same as the species' current range in the coastal 
streams extending from Monterey County southward to San Diego County, 
and extending eastward into the riparian (along the shore of a river, 
stream, or lake) environments of San Bernardino and Riverside Counties.
    Arroyo toads have been extirpated from approximately 75 percent of 
the habitat they originally occupied (Sweet 1992, p. 189; Jennings and 
Hayes 1994, p. 57; Campbell et al. 1996, p. 2). At present, arroyo 
toads are limited to isolated populations primarily in the headwaters 
of coastal streams. The species is likely restricted naturally as a 
result of specific habitat requirements for breeding and development 
(Service 1999, p. 39). These natural restrictions, coupled with the 
small sizes of many arroyo toad populations, make them particularly 
vulnerable to the negative effects of human-induced changes to their 
habitat (Jennings and Hayes 1994, p. 57).

Habitat

    Stream order, elevation, and floodplain width appear to be 
important factors in determining habitat suitability (Sweet 1992, pp. 
24-26; Griffin et al. 1999, pp. 1-3). Stream order ranks the size and 
potential power of streams. The smallest channels in a watershed with 
no tributaries are referred to as first-order streams. When two first-
order streams unite, they form a second-order stream; when two second-
order streams unite, they form a third-order stream, and so on. Fifth- 
and sixth-order streams are usually larger rivers, while first- and 
second-order streams are often small, steep, or intermittent. In the 
northern portion of the range, arroyo toads are found on third- to 
sixth-order streams (Sweet 1992, p. 24), while in the central and 
southern portion of the range, arroyo toads are found in first- to 
sixth-order streams (Service 1999, p. 32).
    Optimal breeding habitat consists of low-gradient sections of slow-
moving streams with shallow pools, nearby sandbars, and adjacent stream 
terraces. Arroyo toads breed and deposit egg masses in the shallow, 
sandy pools of these streams, which are usually

[[Page 52615]]

bordered by sand-gravel flood-terraces. Breeding sites favored by adult 
arroyo toads have clear water in shallow (less than 12 in (30 cm) deep) 
pools (Sweet 1992, p. 28). Optimal breeding sites also have flow rates 
less than 1.97 in (5 cm) per second and bottoms composed of sand or 
well-sorted, fine gravel, although a significant component of large 
gravel or cobble may also be present (Sweet 1992, p. 37).
    Stream terrace habitat consisting of alluvial bars and terraces 
that may have established cottonwoods (Populus spp.), oaks (Quercus 
spp.), or willows (Salix spp.) and almost no grass and herbaceous cover 
at ground level are extremely important for arroyo toads prior to, 
during, and after the breeding season (Griffin et al. 1999, p. 45; 
Sweet 1992, pp. 28-49). Areas that are used by juveniles consist 
primarily of sand or fine gravel bars with varying amounts of large 
gravel or cobble and adjacent stable sandy terraces and oak flats. 
Juvenile arroyo toads favor areas that are damp and have some 
vegetation cover (less than 10 percent), which offer refugia and 
thermal characteristics that are needed for juvenile survival and rapid 
growth (Campbell et al. 1996, p. 12). Bare sand and gravel bars may 
support large numbers of juvenile toads, but survivorship can be 
reduced due to high levels of predation (Sweet 1992, p. 113).
    Adult arroyo toads are often found on sandy alluvial terraces 
adjacent to the stream that may be sparsely-to-heavily vegetated with 
brush and trees, such as mulefat (Baccharis spp.), California sycamore 
(Platanus racemosa), cottonwoods, coast live oak (Quercus agrifolia), 
and willow (Campbell et al. 1996, pp. 12-13). The understory of stream 
terraces may consist of scattered short grasses, herbs, and leaf 
litter, with patches of bare or disturbed soil, or have no vegetation 
at all. When foraging, juvenile and adult arroyo toads are often found 
around the drip lines of oak trees (Sweet 1992, pp. 45-46; Campbell et 
al. 1996, p. 10). When active at night, arroyo toads can often be 
observed near ant trails feeding on passing ants and other prey.
    Upland habitats used by arroyo toads during both the breeding and 
non-breeding seasons include alluvial scrub, coastal sage scrub, 
chaparral (shrubby plants adapted to dry summers and moist winters), 
grassland, and oak woodland. Within terrace and upland habitats, arroyo 
toads aestivate (a state of dormancy similar to hibernation) in burrows 
during the non-breeding season, which usually starts in the late summer 
and extends from August to January (Ramirez 2003, p. 46). In habitat 
utilization studies conducted by Ramirez (2007, pp. 11-14) from 1999 to 
2006 in the West Fork Mojave River and Grass Valley Creek areas, arroyo 
toads were generally found burrowed within sandy or loamy substrates 
with no associated canopy cover, or within mulefat scrub or arroyo 
willow (Salix lasiolepis) patches. The majority of individuals tracked 
in these studies burrowed immediately adjacent to the active channel or 
on sandy terraces within riparian habitat located within flood-prone 
areas; however, toads were also found to use upland habitats up to 
1,063 ft (324 m) from the active channel (Ramirez 2007, p. 13). In his 
2005 study, Ramirez (2007, p. 93) observed several arroyo toad 
individuals burrowed in stable terrace habitats dominated by Great 
Basin sage scrub and Utah junipers (Juniperus osteosperma). At Little 
Rock Creek on the desert slopes of the San Gabriel Mountains, arroyo 
toads burrowed in areas closest to the creek that retained higher soil 
saturation and were cooler (Ramirez 2002a, p. 50). Griffin et al. 
(1999, p. 45) noted that sands are the preferred burrowing substrate 
for both male and female arroyo toads, confirming the importance of 
natural hydrologic regimes that maintain sand and fine sediment 
deposition across the floodplain.

Dispersal

    Arroyo toad movement patterns also vary between watersheds or river 
reaches in response to different hydrological regimes (Griffin et al. 
1999, p. 11). In broad floodplain river systems, arroyo toads searching 
for suitable egg-laying sites may have to move across parallel stream 
channels. Cristianitos Creek, Talega Creek, and the lower San Mateo 
River are examples of this type of river system because of their wide, 
sandy floodplains where the river flows into several channels during 
floods. Despite river depths of 24 in (60 cm) and swift currents, 
Griffin et al. (1999, p. 21) observed numerous toads crossing Talega 
Creek and the lower San Mateo River, confirming these river systems are 
not a barrier to arroyo toad dispersal. In their study of arroyo toad 
movement patterns, Griffin et al. (1999, pp. 18-21) tracked 10 female 
and 3 male arroyo toads in the lower San Mateo River and observed 
female arroyo toads regularly using riparian and upland habitats far 
from the river's edge and returning to these areas after traveling far 
upstream for egg-laying. In one case, a female arroyo toad traveled 919 
ft (280 m) across the San Mateo Campground into upland native habitat; 
in another instance, a female was found 558 ft (170 m) from the San 
Mateo River under cover of mulefat scrub (Griffin et al. 1999, p. 20). 
They also recorded arroyo toads moving in both up- and downstream 
directions, such as the female arroyo toad that traveled upstream more 
than 492 ft (150 m) in a single night to a breeding pool. The study 
found that both male and female arroyo toads moved more into upland 
habitats after completing individual breeding activity (Griffin et al. 
1999, p. 46).
    In contrast, arroyo toads searching for breeding pools in 
watersheds with relatively narrower, steeper-sided drainages (such as 
the Piru and Sespe Creek Watersheds in Ventura County) tend to move in 
both up- and downstream directions along these channels with their 
structure of alternating riffles and pools (Griffin et al. 1999, p. 
11). In his Mono Creek study, Sweet (1993, pp. 24-65), concluded that 
female arroyo toads became relatively sedentary as they matured whereas 
males tended to travel up- and downstream fairly often during the 
breeding season (Sweet 1993, p. 65). This study also suggested that 
most juvenile arroyo toads disperse away from their natal pools about a 
year after metamorphosis (Sweet 1993, p. 65). In fact, numerous 
juvenile and adult arroyo toads were observed moving up- and downstream 
as much as 0.5 mi (0.8 km) and over 0.6 mi (1 km) in some cases (Sweet 
1993, p. 1). Arroyo toads in these watersheds also travel laterally 
away from the stream channel into terrace and upland native habitats. 
On lower Piru Creek, Sweet (1992, pp. 42-45) observed two adult males 
under oaks that were 200 ft (61 m) away.

Reasons for Decline and Threats

    A variety of factors contribute to the decline of arroyo toads but 
nearly half of historical extirpations prior to listing are attributed 
to dam building and operation (Sweet 1992, pp. 4-5; Ramirez 2003, p. 
7). Suitable habitat is often flooded out by reservoir water, and 
downstream breeding and non-breeding habitat may be severely altered by 
reduced flows at some times and sudden excessive flows at others. 
Sudden excessive releases of water may destroy sand bars used during 
the breeding season, and reconfigure or destroy suitable breeding 
pools, thus disrupting clutch and larval development (Ramirez 2003, p. 
7). Additionally, dams can interrupt the scouring and deposition 
processes needed to maintain arroyo toad pool and terrace habitats. 
Areas below dams can become unsuitable as fine sands are lost and not 
replaced (Service 1999, pp. 42-43).

[[Page 52616]]

    In addition to flood control projects, other threats include 
agriculture; sand and gravel mining; urban development; off-highway 
vehicle use; urbanization; recreational activities such as camping, 
fishing, hiking, picnicking; and natural factors, including drought and 
fire (59 FR 64859; Service 1999, p. 39; Ramirez 2003, p. 7). Conversion 
of stream terrace habitat for farming, road construction, and 
residential and commercial uses has eliminated substantial arroyo toad 
habitat in some areas. Suction dredge mining of sand and gravel causes 
substantial alteration of habitat by degrading water quality, altering 
stream morphology, increasing siltation downstream, and creating deep 
pools that hold water year-round for introduced predators of arroyo 
toad eggs and larvae (Campbell et al. 1996, p. 16). Natural 
disturbances, such as drought and fire, also threaten the arroyo toad 
(Campbell et al. 1996, p. 17). Prolonged drought can result in the loss 
of suitable breeding pools, foraging habitat, and prey availability 
(Sweet 1992, p. 190). Fire can affect arroyo toads by causing direct 
mortality and destruction of stream or terrace vegetation.
    The introduction of nonnative species that compete for resources or 
that prey on arroyo toads also poses a serious threat to arroyo toad 
existence. The introduction of aquatic species not native to southern 
California watercourses has been facilitated by construction of the 
California Aqueduct and other sources of inter-basin water transport 
(Service 1999, p. 48). Currently, the California Aqueduct is linked 
directly to the Santa Ynez River, Santa Clara River, San Jacinto River, 
and Mojave River Basins. Predatory species, many of which have used the 
aqueduct to colonize these river basins, include green sunfish (Lepomis 
cyanellus), largemouth bass (Micropterous salmoides), black bullhead 
(Ictalurus nebulosus), prickly sculpin (Cottus asper), stocked rainbow 
trout (Oncorhynchus mykiss), oriental gobies (Tridentiger spp.), red 
shiners (Notropis lutrensis), bullfrogs (Rana catesbeiana), African 
clawed frogs (Xenopus laevis), and crayfish (Procambarus clarkii) 
(Sweet 1992, pp. 118-122; Service 1999, p. 48). All of these species 
prey on arroyo toad tadpoles.
    Of the above introduced-predators, bullfrogs are probably the most 
serious threat to arroyo toads (Stephenson and Calcarone 1999, p. 82). 
Bullfrogs are well adapted to deep water conditions in ponded areas 
above dams, and dam releases can introduce them to downstream habitats 
(CDFG 2005, p. 178). A broad diet and an extended breeding season give 
bullfrogs a competitive advantage over native amphibians. Whereas 
arroyo toad breeding habitat requirements are highly specialized, in 
that they require shallow, slow-moving streams and riparian habitats 
that are disturbed on a regular basis, bullfrogs can tolerate elevated 
water temperatures and make use of standing pools resulting from urban 
runoff to complete their 2-year life cycle (CDFG 2005, p. 178).
    Introduced plants have also had a negative effect on arroyo toads 
and their habitat. Nonnative plant species, particularly tamarisk 
(Tamarix spp.) and giant reed (Arundo donax) alter the natural 
hydrology of stream drainages by eliminating sandbars, breeding pools, 
and upland habitats. Tamarisk is an aggressive, woody invasive plant 
species that can tolerate a variety of environmental conditions and has 
become established over as much as a million acres of floodplains, 
riparian areas, wetlands, and lake margins in the western United States 
(Carpenter 2004, pp. 1-30). Tamarisk can replace or displace native 
woody species such as cottonwood and willow which occupy similar 
habitats, especially when timing and amount of peak water discharge, 
salinity, temperature, and substrate texture have been altered by human 
activities (Carpenter 2004, pp. 1-30). Tamarisk also consumes large 
quantities of water, possibly more than woody native plant species 
occupying the same habitat (Carpenter 2004, p. 3). Highly resistant to 
removal by flooding, tamarisk has the potential to form dense corridors 
along most large streams. Where this has been allowed to occur, 
tamarisk has replaced native vegetation, invaded sand bars, and led to 
channelization by constricting flood flows. Arundo donax is a tall, 
grass-like plant that grows up to 20 ft (6.1 m) in height with jointed 
stems that resemble corn stalks. Arundo donax also invades stream banks 
and lakeshores, where it can completely displace native vegetation, 
reduce wildlife habitat, increase fire risks, and alter flow regimes 
which can cause flooding (Ventura County 2006, pp. 21-23).
    In summary, predation from introduced aquatic species and the loss 
of habitat, coupled with habitat modifications due to the establishment 
of nonnative plants and the manipulation of water levels in many 
central and southern California streams and rivers, have caused arroyo 
toads to disappear from a large portion of their previously occupied 
habitat in California.

Previous Federal Action

    For more information on previous Federal actions concerning the 
arroyo toad, refer to our final designation of critical habitat 
published in the Federal Register on April 13, 2005 (70 FR 19562). On 
July 20, 2007 (Service 2007, pp. 1-2), we announced that we would 
review the April 13, 2005, final rule after questions were raised about 
the integrity of scientific information used and whether the decision 
made was consistent with the appropriate legal standards. Based on our 
review of the previous final critical habitat designation, we 
determined it was necessary to revise critical habitat and this rule 
proposes those revisions. On December 19, 2007, the Center for 
Biological Diversity filed a complaint in the U.S. District Court for 
the Southern District of California challenging our designation of 
critical habitat for the arroyo toad (Center for Biological Diversity 
v. U.S. Fish and Wildlife Service, Case No. 07-2380-JM-AJB). On June 5, 
2008, the court entered a consent decree requiring a proposed revised 
critical habitat rule to be submitted to the Federal Register by 
October 1, 2009, and a final revised critical habitat designation to be 
submitted to the Federal Register by October 1, 2010.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features;
    (a) Essential to the conservation of the species; and
    (b) That may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under the Act are no longer necessary. Such methods 
and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping and transplantation, and in the 
extraordinary case where population

[[Page 52617]]

pressures within a given ecosystem cannot otherwise be relieved, may 
include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing activities that are likely to result in the destruction 
or adverse modification of critical habitat. Section 7(a)(2) of the Act 
requires consultation on Federal actions that may affect critical 
habitat. The designation of critical habitat does not affect land 
ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
private landowners. Where a landowner seeks or requests Federal agency 
funding or authorization of an activity that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) would apply, but even in the event of a destruction or adverse 
modification finding, the Federal action agency's and the applicant's 
obligation is not to restore or recover the species, but to implement 
reasonable and prudent alternatives to avoid destruction or adverse 
modification of critical habitat.
    To be considered for inclusion in a critical habitat designation, 
habitat within the geographical area occupied by the species at the 
time it was listed must contain the physical or biological features 
that are essential to the conservation of the species. Areas supporting 
the essential physical or biological features are identified, to the 
extent known using the best scientific data available, as the habitat 
areas that provide essential life cycle needs of the species; that is, 
areas on which are found the primary constituent elements laid out in 
the appropriate quantity and spatial arrangement essential to the 
conservation of the species. Habitat within the geographical area 
occupied by the species at the time of listing that contains features 
essential to the conservation of the species meets the definition of 
critical habitat only if these features may require special management 
considerations or protection. Under the Act and the regulations at 50 
CFR 424.12, we can designate critical habitat in areas outside the 
geographical area occupied by the species at the time it is listed only 
when we determine that the best available scientific data demonstrate 
that the designation of those areas is essential for the conservation 
of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas to propose as revised critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species and any previous 
designations of critical habitat. Additional information sources may 
include the recovery plan and 5-year reviews for the species, articles 
in peer-reviewed journals, conservation plans developed by States and 
counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. In particular, we recognize that climate change may cause 
changes in the arrangement of occupied habitat patches. Current climate 
change predictions for terrestrial areas in the Northern Hemisphere 
indicate warmer air temperatures, more intense precipitation events, 
and increased summer continental drying (Field et al. 1999, pp. 1-3; 
Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6; 
Intergovernmental Panel on Climate Change 2007, p. 11; Cayan et al. 
2009, p. xi). However, predictions of climatic conditions for smaller 
sub-regions such as California remain uncertain. It is unknown at this 
time if climate change in California will result in a warmer trend with 
localized drying, higher precipitation events, or other effects. Thus, 
the information currently available on the effects of global climate 
change and increasing temperatures does not make sufficiently precise 
estimates of the location and magnitude of the effects. Nor are we 
currently aware of any climate change information specific to the 
habitat of the arroyo toad that would indicate what areas may become 
important to the species in the future. Therefore, we are unable to 
determine what additional areas, if any, may be appropriate to include 
in the proposed revised critical habitat for this species; however, we 
specifically request information from the public on the currently 
predicted effects of climate change on the arroyo toad and its habitat. 
Additionally, we recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated critical habitat area is unimportant or 
may not be required for recovery of the species.
    Areas that support populations of the arroyo toad, but are outside 
the critical habitat designation, may continue to be subject to 
conservation actions we and other Federal agencies implement under 
section 7(a)(1) of the Act. They are also subject to the regulatory 
protections afforded by the section 7(a)(2) jeopardy standard, as 
determined on the basis of the best available information at the time 
of the agency action. Federally funded or permitted projects affecting 
listed species outside their designated critical habitat areas may 
still result in jeopardy findings in some cases. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), section 7 consultations, or other species conservation planning 
efforts if new information available to these planning efforts calls 
for a different outcome.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available in determining which areas within the 
geographic area occupied by the species at the time of listing contain 
the features essential to the conservation of the arroyo toad, and 
which areas outside the geographical area occupied at the time of 
listing are essential for the conservation of the species. We reviewed 
information used to prepare the 2004 proposed critical habitat rule (69 
FR 23254); the approach to provide conservation for the arroyo toad 
provided in its recovery plan (Service 1999, pp. 1-119); the 5-year 
review for the arroyo toad (Service 2009, pp. 1-51); the California 
Department of Fish and Game's (CDFG) California Natural Diversity 
Database (CNDDB) records; published peer-reviewed articles;

[[Page 52618]]

unpublished papers and reports; academic theses; survey results; 
Geographic Information System (GIS) data (such as species occurrences, 
soil data, land use, topography, and ownership maps); and 
correspondence to the Service from recognized experts. We solicited new 
information collected since publication of the recovery plan and 2005 
final critical habitat designation, including information from State, 
Federal, and Tribal governments, and from academia and private 
organizations that have collected scientific data on the arroyo toad. 
We also based our determination of areas meeting the definition of 
critical habitat for the arroyo toad in part on the approach in the 
recovery plan that focuses on protection and management of breeding and 
non-breeding habitat on a watershed basis for the conservation of the 
species (Service 1999, pp. 1-119).

Physical and Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied at the time of listing to propose as revised critical 
habitat, we consider the physical and biological features that are 
essential to the conservation of the species that may require special 
management considerations or protection. Those features are the primary 
constituent elements (PCEs) laid out in the appropriate quantity and 
spatial arrangement for conservation of the species. The PCEs include, 
but are not limited to:
    (1) Space for individual and population growth, and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific PCEs required for conservation of the arroyo 
toad from its biological needs. The areas proposed for designation as 
revised critical habitat provide aquatic habitat for breeding 
activities and upland habitat for shelter, foraging, predator 
avoidance, and dispersal across the arroyo toad's current range. The 
PCEs and the resulting physical and biological features essential to 
the conservation of the species are determined based on studies of 
arroyo toad ecology as described in the ``Background'' section of this 
proposed rule and in the final listing rule published in the Federal 
Register on December 16, 1994 (59 FR 64859).

Space for Individual and Population Growth, and for Normal Behavior

    The arroyo toad is found along medium-to-large streams in coastal 
and desert drainages in central and southern California, and Baja 
California, Mexico. It occupies aquatic, riparian, and upland habitats 
in a number of the remaining suitable drainages within its range. 
Suitable habitat for the arroyo toad is created and maintained by the 
fluctuating hydrological, geological, and ecological processes that 
naturally occur in riparian ecosystems and adjacent uplands (Campbell 
et al. 1996, pp. 13-15; Service 1999, p. 39). Periodic flooding that 
modifies stream channels, redistributes channel sediments, and alters 
pool location and form, coupled with upper terrace stabilization by 
vegetation, is required to keep a stream segment suitable for all life 
stages of the arroyo toad (Campbell et al. 1996, p. 13; Service 1999, 
p. 39). This natural flooding regime helps maintain areas of open, 
sparsely vegetated, sandy stream channels and terraces.
    The substrate in habitats preferred by arroyo toads consists 
primarily of sand, fine gravel, or pliable soil, with varying amounts 
of large gravel, cobble, and boulders. Areas that are damp and have 
less than 10 percent vegetation cover provide the best conditions for 
juvenile survival and rapid growth (Campbell et al. 1996, p. 12; 
Service 1999, pp. 32-34). Arroyo toads breed in the quiet margins of 
open streams and avoid sites with deep or swift water, tree canopy 
cover, or steeply incised banks. Larvae occupy shallow areas of open 
streambeds on substrates ranging from silt to cobble, with preferences 
for sand or gravel. Newly metamorphosed arroyo toads and juveniles 
remain on sparsely vegetated sand and gravel bars bordering the natal 
pool for 3 to 5 weeks (Sweet 1992, p. 52).
    Arroyo toads must be able to move between the stream and upland 
foraging sites, as well as up and down the stream corridor. Juveniles 
and adult arroyo toads require and spend much of their lives in 
riparian and upland habitats adjacent to breeding locations (Campbell 
et al. 1996, p. 12). Riparian habitats used for foraging and burrowing 
include sand bars, alluvial terraces, and streamside benches that lack 
vegetation, or are sparsely to moderately vegetated. Upland habitats 
used by arroyo toads during both the breeding and non-breeding seasons 
include alluvial scrub, coastal sage scrub, chaparral, grassland, and 
oak woodland.

Food, Water, and Physiological Requirements

    Arroyo toad tadpoles eat microscopic algae, bacteria, and 
protozoans consumed from the spaces among pebbles, gravel, and sand, or 
abraded from stones (Sweet 1992, p. 82). Juveniles and adults eat 
insects, although ants are preferred. When foraging, arroyo toads are 
often found around the drip lines of oak trees. These areas often lack 
vegetation, yet have levels of prey that will support arroyo toads. 
When active at night, toads often are observed near ant trails feeding 
on ants, beetles, and other prey.

Cover or Shelter

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

Sites for Breeding, Reproduction, and Rearing of Offspring

    The arroyo toad has specialized breeding habitat requirements. They 
favor shallow pools (less than 12 in (30 cm) deep) and open sand and 
gravel channels along low-gradient (typically less than 6 percent) 
reaches of medium to large streams (Service 1999, pp. 31-32). These 
streams can have either intermittent or perennial streamflow and 
typically experience periodic flooding that scours vegetation and 
replenishes fine sediments. In at least some portions of its range, the 
species also breeds in smaller streams and canyons where low-gradient 
breeding sites are more sporadically distributed. Breeding pools must 
persist long enough for the completion of larval development, which is 
generally March through June, depending on location and weather. 
Because the suitability of breeding pools may vary from year to year 
due to the dynamics of southern California riparian systems and flood 
regimes, adult arroyo toads may move up or down stream in search of 
suitable breeding pools, or not breed that year (Campbell et al. 1996, 
p. 14).
    Arroyo toads breed in rivers with intermittent, seasonal flow, with 
a breeding period that may range from late February through July. 
Breeding at

[[Page 52619]]

a given site may extend over several months (Griffin and Case 2001, p. 
634). Breeding arroyo toads lay their eggs in water over substrates of 
sand, gravel, or cobble in open sites such as overflow pools, old flood 
channels, and shallow pools along streams. Such habitats rarely have 
closed canopies over the lower banks of the stream channel due to 
periodic flood events. Heavily shaded pools are generally unsuitable 
for larval and juvenile arroyo toads because of lower water and soil 
temperatures and poor algal mat development. Pools less than 12 in (30 
cm) deep with clear water, flow rates less than 0.2 ft per second (5 cm 
per second), and bottoms composed of sand or well-sorted fine gravel 
are favored by adults for breeding and egg deposition (Sweet 1992, pp. 
29-37). Although egg strings are laid in very slow-moving water, larvae 
(tadpoles) can be found in water velocities of up to 1.0 to 1.3 ft per 
second (30 to 40 cm per second) (Sweet 1992, p. 29). Breeding may occur 
on several dates at a single site, and eggs may be deposited over a 
period of 7 to 8 weeks (Campbell et al. 1996, p. 6). Breeding pools 
must persist a minimum of 2 months for the completion of larval 
development because changes in stream level or altering of the stream 
bed or breeding pool may cause high mortality to eggs and small larvae, 
sweeping them downstream, stranding and exposing them to desiccation, 
or burying and asphyxiating them with silt (Campbell et al. 1996, p. 
6). Larvae usually hatch in 4 to 6 days at water temperatures of 54 to 
59 degrees Fahrenheit (12 to 16 degrees Celsius). Tadpoles disperse 
from the pool margin into the surrounding shallow water, where they 
spend an average of 10 weeks. After metamorphosis, the juvenile arroyo 
toads remain on the bordering gravel bars until the pool dries out 
(usually from 8 to 12 weeks depending on the site and rainfall).

Primary Constituent Elements (PCEs) for the Arroyo Toad

    Pursuant to the Act and its implementing regulations, when 
considering the designation of critical habitat, we must focus on the 
known principal primary constituent elements within the geographical 
area occupied by the arroyo toad at the time of listing that are 
essential to the conservation of the species. The essential physical 
and biological features are those PCEs laid out in an appropriate 
quantity and spatial arrangement determined to be essential to the 
conservation of the species. All areas proposed in this rule as revised 
critical habitat for the arroyo toad are currently occupied, are within 
the geographical area occupied by the species at the time of listing, 
and contain sufficient PCEs to support at least one life-history 
function.
    Based on the above needs and our current knowledge of the life 
history, biology, and ecology of the species, and the habitat 
requirements for sustaining the essential life-history functions of the 
species, we have determined that the PCEs specific to the arroyo toad 
are:
    (1) Rivers or streams with hydrologic regimes that supply water to 
provide space, food, and cover needed to sustain eggs, tadpoles, 
metamorphosing juveniles, and adult breeding toads. Breeding pools must 
persist a minimum of 2 months for the completion of larval development. 
However, due to the dynamic nature of southern California riparian 
systems and flood regimes, the location of suitable breeding pools may 
vary from year to year. Specifically, the conditions necessary to allow 
for successful reproduction of arroyo toads are:
     Breeding pools with areas less than 12 in (30 cm) deep;
     Areas of flowing water with current velocities less than 
1.3 ft per second (40 cm per second); and
     Surface water that lasts for a minimum of 2 months during 
the breeding season (a sufficient wet period in the spring months to 
allow arroyo toad larvae to hatch, mature, and metamorphose).
    (2) Riparian and adjacent upland habitats, particularly low-
gradient (typically less than 6 percent) stream segments and alluvial 
streamside terraces with sandy or fine gravel substrates that support 
the formation of shallow pools and sparsely vegetated sand and gravel 
bars for breeding and rearing of tadpoles and juveniles; and adjacent 
valley bottomlands that include areas of loose soil where toads can 
burrow underground, to provide foraging and living areas for juvenile 
and adult arroyo toads.
    (3) A natural flooding regime, or one sufficiently corresponding to 
natural, characterized by intermittent or near perennial flow that 
contributes to the persistence of shallow pools into at least mid-
summer, and that maintains areas of open, sparsely vegetated, sandy 
stream channels and terraces by periodically scouring riparian 
vegetation; and also that modifies stream channels and terraces and 
redistributes sand and sediment, such that breeding pools and terrace 
habitats with scattered vegetation are maintained.
    (4) Stream channels and adjacent upland habitats that allow for 
movement to breeding pools, foraging areas, overwintering sites, 
upstream and downstream dispersal, and connectivity to areas that 
contain suitable habitat.
    In summary, the need for space for individual and population growth 
and normal behavior is met by PCE (1); the need for food, water and 
physiological requirements is met by PCE (1); cover and shelter 
requirements are met by PCE (2); areas for breeding reproduction, and 
rearing of offspring are met by PCEs (1), (2), and (3); and habitats 
representative of the historical, geographical, and ecological 
distributions of a species are met by PCE (4).
    With this proposed revised designation of critical habitat, we 
intend to conserve the physical and biological features that are 
essential to the conservation of the species, through the 
identification of the appropriate quantity and spatial arrangement of 
the PCEs sufficient to support the life-history functions of the 
species. Because not all life-history functions require all the PCEs, 
not all areas designated as critical habitat will contain all the PCEs. 
Each of the areas proposed for designation in this rule has been 
determined to contain sufficient PCEs to provide for one or more of the 
life-history functions of the arroyo toad.

Special Management Considerations or Protection

    In accordance with the definition of critical habitat in section 
3(5)(A) of the Act, when designating critical habitat within the 
geographical area occupied by the species at the time of listing, we 
assess whether the physical and biological features essential to the 
conservation of the arroyo toad may require special management 
considerations or protection. All areas being proposed as critical 
habitat may require some level of management to address current and 
future threats to the arroyo toad, to maintain or enhance the physical 
and biological features essential to its conservation, and to ensure 
the recovery and survival of the species.
    A detailed discussion of threats impacting the physical and 
biological features essential to the conservation of the arroyo toad 
which may require special management considerations or protection, can 
be found in the final listing rule (59 FR 64859; December 16, 1994), 
the 2001 critical habitat designation (66 FR 9414; February 7, 2001), 
the 2005 critical habitat designation (70 FR 19561; April 13, 2005), 
and the recovery plan (Service 1999, pp. 1-119). In summary, these 
threats include habitat destruction and alteration due to short- and 
long-term changes in river hydrology, including

[[Page 52620]]

construction of dams and water diversions; alteration of riparian 
wetland habitats by agriculture and urbanization; construction of 
roads; site-specific damage by off-highway vehicle use and other 
recreational activities; overgrazing; and mining activities. Arroyo 
toads and their habitats are also threatened by introduced nonnative 
predators (such as bullfrogs and predatory fish), drought, periodic 
fires, unseasonal water releases from dams, livestock grazing, and 
light and noise pollution from adjacent developments and campgrounds. 
Activities that may require special management considerations or 
protection of the features essential to the conservation of the arroyo 
toad include, but are not limited to: dam construction and operation, 
river diversion, conversion of riparian wetland habitat by agriculture 
and urbanization, road construction, off-highway vehicle use, 
campground development, grazing, and mining. In each proposed critical 
habitat unit, special management may be needed to ensure that aquatic 
and terrestrial habitat are able to provide abundant breeding and non-
breeding habitat, prey habitat, shelter, and connectivity within the 
landscape.
    In summary, we find that each of the areas we are proposing as 
revised critical habitat contains features essential to the 
conservation of the arroyo toad, and that these features may require 
special management considerations or protection. Special management 
considerations or protection may be required to eliminate, or reduce to 
negligible level, the threats affecting each unit and to preserve and 
maintain the essential features that the proposed critical habitat 
units provide to the arroyo toad. A more comprehensive discussion of 
threats facing individual sites is in the individual unit descriptions.
    The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in the 
conservation of the arroyo toad. Activities with a Federal nexus that 
may affect those unprotected areas outside of critical habitat, such as 
development, agricultural activities, and road construction, are still 
subject to review under section 7 of the Act if they may affect the 
arroyo toad. The take prohibitions of section 9 of the Act also 
continue to apply both inside and outside of designated critical 
habitat. Take is broadly defined in the Act as to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect a listed species, 
or to attempt to engage in any such conduct.

Criteria Used To Identify Critical Habitat

    Using the best scientific and commercial data available as required 
by section 4(b)(1)(A) of the Act, we identified those areas to propose 
for revised designation as critical habitat that, within the 
geographical area occupied by the species at the time of listing (see 
``Geographic Range'' section), possess those physical and biological 
features essential to the conservation of the arroyo toad and which may 
require special management considerations or protection. We also 
considered the area outside the geographical area occupied by the 
species at the time of listing for any areas that are essential for the 
conservation of the arroyo toad. The material we used included the 1994 
final listing rule (59 FR 64859), the 2004 proposed critical habitat 
rule (69 FR 23254), 2008 CNDDB records, the arroyo toad recovery plan, 
data in reports submitted during section 7 consultations and by 
biologists holding section 10(a)(1)(A) recovery permits, research 
published in peer-reviewed articles and presented in academic theses 
and agency reports, the 5-year review for the arroyo toad (Service 
2009, pp. 1-51), and regional GIS coverages. We analyzed this 
information to develop criteria for identifying areas that contain the 
PCEs in the appropriate quantity and spatial arrangement essential to 
the conservation of the arroyo toad that may require special management 
considerations or protection, or that are essential for the 
conservation of the arroyo toad.
    To begin our analysis, we first examined the CNDDB current and 
historical records to get an indication of the habitat where arroyo 
toads are present or absent. The CNDDB is a continually refined and 
updated inventory of location information gathered during species 
surveys and observations. We then examined the arroyo toad recovery 
plan (Service 1999, pp. 1-119), which has a recovery strategy focused 
on providing sufficient breeding and upland habitat to maintain self-
sustaining populations of arroyo toads (defined as populations that 
require little or no direct human assistance such as captive breeding 
or rearing, or translocation between sites) throughout the historical 
range of the species, and on minimizing or eliminating impacts and 
threats to arroyo toad populations (Service 1999, p. 67). The recovery 
plan states that in-stream and riparian habitats that support breeding, 
as well as upland habitats that provide foraging and overwintering 
habitat, need to be managed to maintain and enhance populations 
throughout the range of the arroyo toad (Service 1999, p. 68). The 
recovery plan divides the range of the arroyo toad into three large 
recovery units--northern, southern, and desert--and we considered the 
recovery of each of these as well as the species as a whole in our 
analysis. Using the recovery plan as our guide, we analyzed areas 
within the geographical area occupied by the arroyo toad at the time of 
listing to determine which areas contained the PCEs laid out in the 
appropriate quantity and spatial arrangement essential to the 
conservation of the species (the physical and biological features).
    In determining the specific areas containing the essential physical 
and biological features, based on the recovery plan, 5-year review, 
previous critical habitat proposals for the arroyo toad, scientific 
literature, and results of studies that have been conducted since the 
species was listed, we made sure that we are proposing critical habitat 
that will provide for the conservation of the species. Criteria we 
evaluated to assist our process include units: (1) That are dispersed 
throughout the current geographical, elevational, and ecological 
distribution of the species; (2) that would maintain the appropriate 
population structure across the species' range; (3) that retain or 
provide the connectivity between breeding sites that allows for the 
continued existence of essential metapopulations (a population of 
subpopulations in somewhat geographically isolated patches, 
interconnected through patterns of gene flow, extinction, and 
recolonization (Soule 1987, p. 7), despite fluctuations in the status 
of subpopulations); and (4) that contain upland habitat around each 
breeding location to allow for survival and recruitment to maintain a 
breeding population over the long term.
    We also evaluated the area outside the geographical area occupied 
by the species at the time of listing to identify any areas that are 
essential for the conservation of the arroyo toad. We looked at areas 
that may have been historically occupied by arroyo toads based on CNDDB 
records but were no longer occupied at the time of listing. We also 
considered areas that may have the physical and biological features 
essential for the conservation of the species but have never been 
occupied. However, based on the best available scientific information, 
including the recovery plan which does not identify any such areas as 
being important to the recovery of the species, we determined that 
there are no areas outside the

[[Page 52621]]

geographical area occupied by the species at the time of listing that 
are essential for the conservation of the arroyo toad.
    To identify and map areas that we determined meet the definition of 
critical habitat, we used data on known arroyo toad locations and data 
on movement distances by arroyo toads. The main source for arroyo toad 
locations was the CNDDB (2008); we also obtained locations that have 
not yet been entered into the CNDDB directly from the biologists that 
collected them.
    Areas meeting the definition of critical habitat for the arroyo 
toad include occupied areas on stream reaches containing suitable 
breeding and upland habitat. To determine the extent of suitable arroyo 
toad habitat as discussed in the ``Habitat'' section above, we used 
spatial data on stream gradients with grades less than 6 percent, 
aerial photography, surveys of habitat suitability, and site visits. 
Additionally, we included higher gradient areas between breeding 
habitat because these areas are used by toads during the non-breeding 
period and allow toads to disperse between breeding areas. To delineate 
upland habitat areas, we used a GIS-based modeling procedure to 
identify alluvial terraces, valley bottomlands, and upland habitats 
adjacent to stream reaches occupied by the arroyo toad. Lacking 
spatially explicit data on geomorphology, we used elevation above the 
stream channel as an indicator of the extent of alluvial and upland 
foraging habitat. We determined that areas up to 82 ft (25 m) in 
elevation above the stream channel were most likely to contain the 
riparian and upland habitat elements essential to arroyo toads. Most 
arroyo toad activity and movement occurred within these areas; 
therefore, steeper slopes away from the stream were eliminated. 
However, we truncated the upland habitat delineation in flat areas at 
4,921 ft (1,500 m) from the stream channel (a distance based on known 
movement of arroyo toads, see below) if the 82-ft (25-m) elevation 
limit had not yet been reached at that point. The 82-ft (25-m) 
elevation limit was reached at distances less than 4,921 ft (1,500 m) 
from the mapped stream channel along the majority of the stream 
reaches, so the distance limit was often not a factor. These model 
parameters are based on the best scientific data available and are the 
same as those used in the 2004 proposed critical habitat designation 
(69 FR 23254).
    To evaluate our critical habitat model, we assessed its 
effectiveness at capturing documented toad locations from studies that 
focused specifically on surveying toads in upland habitats and studies 
involving radio telemetry. Holland and Sisk (2000, pp. 1-28) 
established extensive pitfall trap arrays at discrete distances from 
two stream courses and operated these arrays at various periods 
throughout the year. They had 466 captures of arroyo toads, 35 (7.5 
percent) of which were identified as being in upland areas. The low 
percentage of toads captured in upland areas may be because the vast 
majority of captures (98.7 percent) were during the months from January 
to September, when breeding and metamorphosis occurs and when toads 
would likely be in close proximity to the stream. Nevertheless, toads 
were captured at distances that ranged from 49 to 3,855 ft (15 to 1,175 
m) from the upland-riparian ecotone (boundary) (Holland and Sisk 2000, 
pp. 1-28). For the two areas sampled in that study (Cristianitos Creek 
and the upper Santa Margarita River, San Diego County), we found that 
our critical habitat boundaries encompassed all of the pitfall trapping 
stations where arroyo toads were detected.
    We also assessed studies that involved the tracking of arroyo toads 
with radio telemetry equipment. For example, in a number of studies by 
Ramirez (2002a, p. 10; 2002b, p. 50; 2002c, p. 23; 2003, pp. 72-81), 
arroyo toads were tracked from the end of breeding activity until the 
commencement of aestivation, generally May through September. 
Cumulatively, these four studies involved tracking 77 adult arroyo 
toads in three separate critical habitat units in Orange, San 
Bernardino, and Los Angeles Counties. All but one of the numerous 
burrow sites chosen by these arroyo toads fell within our proposed 
revised critical habitat boundaries.
    Upon completion of our analyses with our GIS modeling, we 
identified six tribes that own lands within areas identified as meeting 
the definition of critical habitat: Rincon Band of Luise[ntilde]o 
Mission Indians; Pala Band of Luise[ntilde]o Mission Indians; Sycuan 
Band of the Kumeyaay Nation; the Barona Group of Capitan Grande Band of 
Mission Indians and the Viejas (Baron Long) Group of Capitan Grande 
Band of Mission Indians, which jointly manage the Capitan Grande Band 
of Diegueno Mission Indians Reservation (Capitan Grande Reservation); 
and Mesa Grande Band of Diegueno Mission Indians. These areas are 
included in this proposed revised critical habitat, although we are 
requesting public comment on whether the conservation needs of the 
arroyo toad can be achieved or not by limiting the designation of final 
revised critical habitat to non-Tribal lands, and are otherwise 
considering these Tribal lands for exclusion from the final critical 
habitat under section 4(b)(2) of the Act based on partnerships and 
habitat management plans and practices. We will evaluate any submitted 
plans in consideration of Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and 
the relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2) in relation to the conservation benefits to the 
arroyo toad, the features essential to the conservation of the species, 
and the appropriateness of excluding Tribal lands under section 4(b)(2) 
of the Act. Please see the ``Tribal Lands--Exclusions Under Section 
4(b)(2) of the Act'' section for additional discussion.
    To provide legal boundaries for the critical habitat areas, 
critical habitat boundaries for all drainages were mapped as contiguous 
blocks of 98-ft by 98-ft (30-m by 30-m) cells that conform to a 
Universal Transverse Mercator (UTM) grid. Due to the conversion of GIS 
data from two different geographic projections (UTM zone 10 and zone 
11) and conversion of the data to acres and hectares, some rounding 
adjustments may be reflected in the total acreage of the units 
designated as critical habitat that are shown in the acreage tables and 
unit descriptions.
    After determining the criteria used to identify critical habitat, 
we made every effort to avoid developed areas such as lands covered by 
buildings, pavement, and other structures because such lands lack PCEs 
for the arroyo toad. We also avoided fragmented areas such as those 
surrounded by development. Agricultural lands may have been included if 
they were within areas identified as necessary for dispersal or 
connectivity between known occurrences. However, we avoided known areas 
of intensive agriculture that lacked the PCEs for the arroyo toad. The 
scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed revised critical 
habitat are excluded by text in this rule and are not proposed for 
critical habitat designation. Therefore, if the critical habitat is

[[Page 52622]]

finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification, unless the specific action may 
affect adjacent critical habitat.
    We propose to designate 22 critical habitat units within the 
geographic area occupied by the species at the time of listing based on 
the criteria presented above. A brief discussion of each area proposed 
for designation as critical habitat is provided in the unit 
descriptions below. Additional detailed documentation concerning the 
essential nature of these areas is contained in our supporting record 
for this rulemaking.

Summary of Changes From Previously Designated Critical Habitat

    In this proposal to revise critical habitat for the arroyo toad, we 
determined that it would be appropriate to begin our analysis of 
critical habitat using the previous proposed critical habitat 
designation (69 FR 23254; April 28, 2004) as a base from which to make 
changes. We are not using the previous final critical habitat 
designation (70 FR 19562, April 13, 2005) after questions were raised 
about the integrity of the scientific information used and whether the 
decision made was consistent with appropriate legal standards. This new 
analysis based on the best scientific information currently available 
has resulted in an overall decrease in the amount and distribution of 
habitat identified as meeting the definition of critical habitat, as 
compared to the previous 2004 proposed designation (69 FR 23254). In 
this revised rule, we are proposing to designate 109,110 ac (44,155 ha) 
of land in Los Angeles, Orange, Riverside, San Bernardino, San Diego, 
Santa Barbara, and Ventura Counties, California, as critical habitat, 
which is a decrease of approximately 29,603 ac (11,978 ha) as proposed 
in 2004 (69 FR 23254). However, it should be noted that this does not 
reflect a decrease in every proposed unit compared to the previous 
proposal. In fact, the area included in some proposed revised critical 
habitat units is larger than it was in the 2004 proposed critical 
habitat designation (69 FR 23254) because in some cases new information 
has identified additional arroyo toad areas that meet the definition of 
critical habitat and these areas are now included.
    The main differences between the 2004 proposed critical habitat 
rule (69 FR 23254) and this 2009 proposed revised critical habitat rule 
for the arroyo toad include the following:
    (1) Our analysis of new and updated information received since the 
2004 proposed critical habitat designation (69 FR 23254) resulted in 
the identification of areas meeting the definition of critical habitat 
that differs from the areas identified in 2004.
    (2) We modified the mapping methodology from our previous proposed 
critical habitat designation (69 FR 23254). For the 2004 proposed 
designation, unit boundaries were snapped to points on a grid 
conforming to the Universal Transverse Mercator (UTM) projection. The 
reason for using a grid, which consisted of 100-meter by 100-meter 
cells, was to decrease the number of coordinate pairs and thereby 
simplify the description of unit boundaries. However, for this revised 
proposed designation, we use a more detailed description of unit 
boundaries. Although the change in area resulting from this 
modification is relatively minor (about 5 percent), this change affects 
all units.
    (3) We did not exclude any areas in this proposed rule pursuant to 
section 4(b)(2) of the Act. In accordance with 50 CFR 424.19, in making 
our final determination regarding the revised designation, we will 
consider the impacts of designating lands (such as tribal and HCP 
lands) as critical habitat and may exclude such lands in the final rule 
pursuant to section 4(b)(2) of the Act.
    The following paragraphs provide explanations of how the proposed 
revised critical habitat units differ from those in the 2004 proposed 
critical habitat designation (69 FR 23254), except for those units 
where the only change was from the modification in mapping methodology 
described above (units 2, 3, 4, 5, 6, 14, and 21). The unit names used 
in the subsection headings refer to the unit names as proposed in 2004.

Unit 1: San Antonio River

    In the current proposal, we are now exempting areas within the 
Department of Defense's Fort Hunter Liggett Military Reservation from 
designation as revised critical habitat under section 4(a)(3)(B) of the 
Act. This unit is within the geographical area occupied at the time of 
listing (see ``Geographical Range'' section) and contains the physical 
or biological features essential to the conservation of the species 
which may require special management considerations or protection. In 
the previous 2004 proposed designation (69 FR 23254), Fort Hunter 
Liggett had not yet completed its Integrated Natural Resources 
Management Plan (INRMP) and, therefore, was not exempted under section 
4(a)(3)(B) of the Act. However, Fort Hunter Liggett was excluded under 
section 4(b)(2) of the Act for reasons of national security and because 
existing management plans provided a benefit to the arroyo toad. Fort 
Hunter Liggett's first INRMP was approved in 2005, and an updated 
version was approved in 2007, which includes management actions that 
benefit the arroyo toad. Unit 1 as proposed in 2004 (69 FR 23254) 
encompassed approximately 6,546 ac (2,649 ha). For this proposed 
revised critical habitat designation, the modified mapping methodology 
we used resulted in a 1.4 percent decrease in acres in Unit 1, for a 
total of 6,453 ac (2,612 ha). With our current exemption of all areas 
within Fort Hunter Liggett (see ``Application of Section 4(a)(3) of the 
Act'' section), the entire unit has been exempted from designation as 
revised critical habitat.

Unit 7: Upper Los Angeles River Basin

    We have removed Subunit 7a (approximately 2,262 ac (915 ha)) within 
Unit 7 from our proposed revision of critical habitat. Subunit 7a is 
within the geographical area occupied at the time of listing; however, 
this subunit was erroneously included in the previous proposed rule (69 
FR 23254). Although we were not aware of this issue when we published 
the previous proposed rule, high-flow water releases from the Big 
Tujunga Dam upstream of this subunit have likely altered the hydrology 
such that arroyo toad breeding habitat is not maintained (that is, lack 
of PCEs 1 and 3) (Hitchcock et al. 2004, p. 8; Backlin 2009, pers. 
comm.). The loss of the PCEs from this area has resulted in the 
extirpation of arroyo toads (Backlin et al. 2002, pp. 6, 12; Hitchcock 
et al. 2004, pp. 8-9, 29). Furthermore, the presence of the Big Tujunga 
Dam blocks dispersal from occupied areas upstream. Therefore, we have 
determined that the area does not contain the physical and biological 
features essential to the conservation of the arroyo toad and therefore 
does not meet the definition of critical habitat for the arroyo toad.

Unit 8: Lower Santa Ana River Basin

    Areas meeting the definition of critical habitat that were excluded 
in the 2004 proposed critical habitat designation (69 FR 23254) within 
the Orange County Central-Coastal NCCP/HCP are now being proposed in 
this rule, and we are considering them for exclusion in the final rule 
(see ``Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of 
the Act'' section). These areas include: (1) Black Star Creek from the 
NCCP/HCP boundary

[[Page 52623]]

downstream to the confluence with Santiago Creek, (2) Baker Canyon from 
the NCCP/HCP boundary downstream to the confluence with Santiago Creek, 
and (3) Santiago Creek from the confluence with Silverado Creek 
downstream to Irvine Lake. Information received since our previous 2004 
proposed critical habitat designation (69 FR 23254) indicates that 
areas within Santiago Creek upstream of the confluence with Silverado 
Creek contain occupied suitable habitat on which are found the physical 
and biological features essential to the conservation of the species. 
Therefore, we also added areas to Unit 8 encompassing approximately 6.6 
mi (11 km) of Santiago Creek from just below the town of Modjeska 
downstream to Irvine Lake. Additionally, new information indicates that 
Silverado Creek contains occupied suitable habitat on which are found 
the features essential to the conservation of the species (Haase 2005, 
p. 2; Haase 2008, pp. 2-3; Thomas 2009, pers. comm.). Therefore, we 
added areas to Unit 8 encompassing approximately 7.3 mi (12 km) of 
Silverado Creek from the eastern edge of section 11 (T05S, R07W) in the 
Cleveland National Forest downstream to the confluence with Santiago 
Creek. With the exception of areas that were excluded within the Orange 
County Central-Coastal NCCP/HCP, this unit encompassed approximately 
172 ac (69 ha) in the 2004 proposed critical habitat designation (69 FR 
23254). With the proposed addition of areas within the Orange County 
Central-Coastal NCCP/HCP and other areas described above, it now 
encompasses approximately 2,182 ac (883 ha).

Unit 9: San Jacinto River Basin

    Areas meeting the definition of critical habitat that were excluded 
in the 2004 proposed critical habitat designation (69 FR 23254) within 
the Western Riverside County MSHCP are now being proposed in this rule, 
and we are considering them for exclusion in the final rule (see 
``Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the 
Act'' section). These areas include: (1) The San Jacinto River from the 
Sand Canyon confluence downstream to the Soboba Indian Reservation 
border, and (2) Bautista Creek from areas outside of the San Bernardino 
National Forest downstream to near the middle of Section 27 (T5S, R1E) 
where the stream enters a debris basin. Unit 9 encompassed 
approximately 683 ac (277 ha) along Bautista Creek in the 2004 proposed 
critical habitat designation (69 FR 23254); with the addition of the 
areas described above, areas along the San Jacinto River and Bautista 
Creek are now proposed as separate subunits. Subunit 9a along the San 
Jacinto River encompasses approximately 1,226 ac (496 ha)) and Subunit 
9b along Bautista Creek encompasses approximately 1,180 ac (478 ha).

Unit 10: San Juan Creek Basin

    Information received since our previous 2004 proposed critical 
habitat designation (69 FR 23254) indicates that areas upstream of 
Subunit 10a in Bell Canyon, up to the southern half of section 8 (T06S, 
R06W) in the Cleveland National Forest, contain occupied suitable 
habitat on which are found the physical and biological features 
essential to the conservation of the species (Haase 2009a, in litt.). 
In the previous 2004 proposed critical habitat designation (69 FR 
23254), Subunit 10a encompassed approximately 5,143 ac (2,076 ha) of 
Bell Canyon from just below Crow Canyon downstream to the confluence 
with San Juan Creek, in addition to areas along San Juan Creek. We 
added these upstream areas to Subunit 10a, which now totals 4,728 ac 
(1,913 ha). Although we added upstream areas to Subunit 10a, the total 
area of this subunit decreases from the 2004 proposed critical habitat 
designation (69 FR 23254) because of our change in mapping methodology.

Unit 11: San Mateo Creek and San Onofre Creek Basins

    In the 2004 proposed critical habitat designation (69 FR 23254), 
areas in Subunits 11a and 11c within Marine Corps Base (MCB) Camp 
Pendleton were exempted from critical habitat under section 4(a)(3)(B) 
of the Act, except areas leased to outside parties for other land uses 
(such as San Onofre State Park and private agricultural lands). We are 
now exempting all lands within MCB Camp Pendleton from designation as 
revised critical habitat, including the leased lands (which are subject 
to the approved Integrated Natural Resources Management Plan (INRMP) 
for MCB Camp Pendleton), due to the benefits afforded to the arroyo 
toad by the management described in the approved INRMP for MCB Camp 
Pendleton (see ``Application of Section 4(a)(3) of the Act'' section). 
Subunit 11a encompassed approximately 4,112 ac (1,664 ha) in the 2004 
proposed critical habitat designation (69 FR 23254); with the exemption 
of all areas within MCB Camp Pendleton, it now encompasses 
approximately 1,034 ac (418 ha). Subunit 11c encompassed approximately 
399 ac (161 ha) as proposed in 2004; with the exemption of all areas 
within MCB Camp Pendleton (including the lands leased to other 
parties), the entire subunit is removed.

Unit 12: Lower Santa Margarita River Basin

    In the 2004 proposed critical habitat designation (69 FR 23254), we 
exempted a portion of Unit 12 within MCB Camp Pendleton under section 
4(a)(3)(B) of the Act. In this proposed rule, we are exempting all 
lands within both MCB Camp Pendleton and the Fallbrook Naval Weapons 
Station from designation as revised critical habitat (see ``Application 
of Section 4(a)(3) of the Act'' section). Unit 12 encompassed 
approximately 1,840 ac (744 ha) in the 2004 proposed critical habitat 
designation (69 FR 23254); with the exemption of all areas within MCB 
Camp Pendleton and the Fallbrook Naval Weapons Station, it now 
encompasses approximately 1,009 ac (408 ha).

Unit 13: Upper Santa Margarita River Basin

    Areas meeting the definition of critical habitat that were excluded 
in the 2004 proposed critical habitat designation within the Western 
Riverside County MSHCP are now being proposed in this rule, and we are 
considering them for exclusion in the final rule (see ``Habitat 
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act'' 
section). These areas include: (1) Areas around Subunit 13a along 
Arroyo Seco Creek, (2) areas downstream of Subunit 13b along Temecula 
Creek to Vail Lake, and (3) Wilson Creek from Lancaster Valley 
downstream to Vail Lake. Subunit 13a encompassed approximately 704 ac 
(285 ha) in the 2004 proposed critical habitat designation (69 FR 
23254); with the addition of surrounding areas in Arroyo Seco Creek, it 
now encompasses approximately 1,155 ac (467 ha). Subunit 13b 
encompassed approximately 2,924 ac (1,183 ha) as proposed in 2004; with 
the addition of downstream areas of Temecula Creek, it now encompasses 
approximately 4,756 ac (1,925 ha). Information received since our 
previous critical habitat designation indicates that areas upstream of 
Lancaster Valley along Wilson Creek (included in this proposed rule as 
Subunit 13c) to the confluence with Cahuilla Creek contain occupied 
suitable habitat on which are found the physical and biological 
features essential to the conservation of the species (Haase 2009a, in 
litt.). This new subunit encompasses approximately 2,226 ac (901 ha).

[[Page 52624]]

Unit 15: Upper San Luis Rey River Basin

    Information received since our previous 2004 proposed critical 
habitat designation (69 FR 23254) indicates that the area downstream of 
Barker Valley (formerly Subunit 15b) along the West Fork of the San 
Luis Rey River, which is within the geographical area occupied by the 
species at the time of listing, contains suitable habitat on which are 
found the physical and biological features essential to the 
conservation of the species, and provides for dispersal between 
populations in this area and populations in Lake Henshaw (formerly 
Subunit 15a) (Haase 2009, pers. comm.). In the 2004 proposed critical 
habitat designation (69 FR 23254), Subunits 15a and 15b together 
encompassed approximately 11,725 ac (4,745 ha). We are including the 
area between Barker Valley and Lake Henshaw in this proposed revised 
designation and have merged the two subunits into a single unit (Unit 
15), which now totals 12,026 ac (4,867 ha).

Unit 16: Santa Ysabel Creek Basin

    Areas meeting the definition of critical habitat that were excluded 
in the 2004 proposed critical habitat designation (69 FR 23254) within 
the San Diego MSCP-City and County of San Diego Subarea Plans are now 
being proposed in this rule, and we are considering them for exclusion 
in the final rule (see ``Habitat Conservation Plans--Exclusions Under 
Section 4(b)(2) of the Act'' section). In the previous 2004 proposed 
critical habitat designation (69 FR 23254), Subunits 16a, 16b, and 16c 
were three separate areas due to our exclusion in the 2004 proposed 
rule of downstream habitat along Santa Ysabel Creek. Subunit 16a 
encompassed approximately 2,758 ac (1,116 ha) along Santa Ysabel Creek 
from just below Sutherland Reservoir, Temescal Creek, and Boden Canyon; 
Subunit 16b encompassed approximately 2,727 ac (1,104 ha) along Guejito 
Creek; and Subunit 16c encompassed approximately 3,749 ac (1,517 ha) 
along Santa Maria Creek. We merged these three subunits into a single 
subunit (16a) in this proposed revised critical habitat rule; thus, 
Subunit 16a now totals 12,136 ac (4,911 ha).
    In this proposed revised critical habitat designation, we removed 
areas within Subunit 16a that encompass Santa Ysabel Creek from just 
below Sutherland Reservoir downstream to the confluence with Temescal 
Creek. When we published our previous 2004 proposed critical habitat 
designation (69 FR 23254), we believed this area, which is within the 
geographical area occupied at the time of listing, met the definition 
of critical habitat. However, information we received since then 
indicates that breeding habitat is not available due to the absence of 
a natural flooding regime downstream of Sutherland Dam and the 
steepness of the stream corridor (lack of PCEs 1, 2, and 3). 
Furthermore, this area does not provide connectivity to upstream areas 
occupied by the species due to the presence of the dam. Survey 
information indicates arroyo toads have been extirpated from this area 
as a result of the loss of PCEs (Service 2006, p. 2). Therefore, we 
determined that this area, which is within the geographical area 
occupied by the species at the time of listing, does not contain 
features essential to the conservation of the species and therefore 
does not meet the definition of critical habitat for the arroyo toad.

Unit 17: San Diego River Basin/San Vicente Creek

    Information received since our previous 2004 proposed critical 
habitat designation (69 FR 23254) indicates that areas upstream of 
Subunit 17a along the San Diego River to Temescal Creek, which are 
within the geographical area occupied by the species at the time of 
listing, contain occupied suitable habitat on which are found the 
physical and biological features essential to the conservation of the 
species (HELIX 2008, pp. 2, 7; Brown and Rochester 2009, pers. comm.). 
Subunit 17a as proposed in 2004 encompassed approximately 1,003 ac (406 
ha) along the San Diego River from Ritchie Creek downstream to the 
upper edge of El Capitan Reservoir. In this proposed rule, we added 
these upstream areas to Subunit 17a, which now totals 1,241 ac (502 
ha).
    Areas meeting the definition of critical habitat that were excluded 
in the 2004 proposed critical habitat designation within the San Diego 
MSCP-City and County of San Diego Subarea Plans are now being proposed 
in this rule, and we are considering them for exclusion in the final 
rule (see ``Habitat Conservation Plans--Exclusions Under Section 
4(b)(2) of the Act'' section). In the previous 2004 proposed critical 
habitat designation (69 FR 23254), Subunits 17b and 17c were two 
separate areas due to our exclusion in the 2004 proposed rule of 
downstream habitat along the San Diego River. Subunit 17b encompassed 
approximately 174 ac (70 ha) and Subunit 17c approximately 707 ac (286 
ha) along the San Diego River as proposed in 2004. We merged the two 
subunits into a single subunit (17b) in this proposed revised critical 
habitat rule; thus Subunit 17b now totals 1,865 ac (755 ha).

Unit 18: Sweetwater River Basin

    Areas meeting the definition of critical habitat that were excluded 
in the 2004 proposed critical habitat designation (69 FR 23254) within 
the San Diego MSCP-City and County of San Diego Subarea Plans are now 
being proposed in this rule, and we are considering them for exclusion 
in the final rule (see ``Habitat Conservation Plans--Exclusions Under 
Section 4(b)(2) of the Act'' section). In the previous 2004 proposed 
critical habitat designation (69 FR 23254), Subunits 18a, 18b, and 18d 
were three separate areas due to our exclusion in the 2004 proposed 
rule of downstream habitat along the Sweetwater River. As proposed in 
2004, Subunit 18a encompassed approximately 4,196 ac (1,698 ha) along 
the Sweetwater River from the top of Upper Green Valley in Cuyamaca 
Rancho State Park, Subunit 18b encompassed approximately 583 ac (236 
ha) along Peterson Canyon, and Subunit 18d encompassed approximately 
474 ac (192 ha) along Viejas Creek. In this proposed rule, we merged 
these three subunits into a single subunit (18a), which now totals 
4,156 ac (1,682 ha). Although we added areas that were excluded from 
the 2004 proposed critical habitat designation (69 FR 23254), the total 
area of the new Subunit 18a is smaller than the areas proposed in 
Subunits 18a, 18b, and 18d in the 2004 proposed rule because of our 
change in mapping methodology.
    In this proposed revised critical habitat designation, we removed 
areas within Subunit 18c that encompass the Sweetwater River from just 
above Sycuan Resort downstream to the upper edge of Sweetwater 
Reservoir. These areas were erroneously included in the previous 2004 
proposed rule. We now know that sand mining operations and 
channelization of the river through two golf courses have likely 
altered the hydrology in this area such that breeding habitat is not 
maintained (that is, lack of PCEs 1 and 3) (Brown and Rochester 2009, 
pers. comm.). Furthermore, information received since our previous 2004 
proposed critical habitat designation (69 FR 23254) indicates that this 
area is no longer occupied by arroyo toads (Madden-Smith et al. 2005, 
p. 22; Brown and Rochester 2009, pers. comm.; Martin 2009, pers. comm.) 
because of the loss of PCEs. Therefore, we have determined that this 
area does not contain features essential to the conservation of the 
species and therefore does not meet the

[[Page 52625]]

definition of critical habitat for the arroyo toad. As proposed in 
2004, Subunit 18c encompassed approximately 3,982 ac (1,611 ha) along 
the Sweetwater River from immediately below Loveland Dam downstream to 
the upper edge of Sweetwater Reservoir; with the proposed removal of 
the areas described above, Subunit 18c now totals 627 ac (254 ha).

Unit 19: Cottonwood Creek Basin

    In this proposed revised critical habitat designation, we removed 
areas within Subunit 19b that encompass 9.9 mi (16 km) of Cottonwood 
Creek from approximately 2.5 mi (4 km) below Morena Reservoir 
downstream to Barrett Reservoir. These areas were erroneously included 
in the previous 2004 proposed rule. Information received since our 
previous 2004 proposed critical habitat designation (69 FR 23254) 
indicates that the hydrology in this area was altered since the 
construction of the Morena Dam in the early 1900s such that breeding 
habitat is not maintained (lack of PCEs 1 and 3), and therefore this 
area is no longer occupied by arroyo toads (Jennings 2009, pers. 
comm.). Moreover, the presence of Morena and Barrett reservoirs block 
arroyo toad dispersal from occupied areas upstream and downstream along 
Cottonwood Creek (lack of PCE 5). Therefore, we determined that this 
area, which is within the geographical area occupied by the toad at the 
time of listing, does not contain features essential to the 
conservation of the species and therefore does not meet the definition 
of critical habitat for the arroyo toad.
    Areas meeting the definition of critical habitat downstream of 
Subunit 19b to the U.S.-Mexico border that were excluded in the 2004 
proposed rule within the San Diego MSCP-City and County of San Diego 
Subarea Plans are now being proposed in this rule, and we are 
considering them for exclusion in the final rule (see ``Habitat 
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act'' 
section). Subunit 19b, which encompassed approximately 5,564 ac (2,252 
ha) in the 2004 proposed critical habitat designation (69 FR 23254), 
now encompasses approximately 5,129 ac (2,076 ha). Additionally, data 
received since our previous 2004 proposed critical habitat designation 
(69 FR 23254) indicate that Campo Creek, which is within the 
geographical area occupied by the species at the time of listing, has 
occupied suitable habitat on which are found the physical and 
biological features essential to the conservation of the species (LEI 
2008, pp. 5, 8). Therefore, we added areas encompassing approximately 
4.4 mi (7 km) of Campo Creek from Campo Lake downstream to the U.S.-
Mexico border as part of Subunit 19e.

Unit 20: Upper Santa Ana River Basin/Cajon Wash

    Information received since our previous 2004 proposed critical 
habitat designation (69 FR 23254) indicates that areas upstream of Unit 
20 to just below Cajon Junction are within the geographical area 
occupied by the arroyo toad at the time of listing and contain the 
physical and biological features essential to the conservation of the 
species (Rathbun 2007, in litt.; Meyer 2009, in litt.). In the previous 
2004 proposed critical habitat designation (69 FR 23254), Unit 20 
encompassed approximately 1,262 ac (511 ha) of Cajon Wash from just 
south of Cajon campground. We added these upstream areas to Unit 20, 
which now totals 1,775 ac (718 ha).

Unit 22: Upper Mojave River Basin

    We have removed Subunit 22b (approximately 8,631 ac (3,493 ha)) 
within Unit 22 from our proposed revision of critical habitat. Subunit 
22b is within the geographical area occupied at the time of listing. 
However, new information received since our previous 2004 proposed 
critical habitat designation (69 FR 23254) indicates that this area was 
erroneously proposed as critical habitat in 2004. Habitat in this area 
for the arroyo toad has been altered by steadily declining groundwater 
levels along the Upper Narrows to Lower Narrows reach of the Mojave 
River (Webb et al. 2001, p. 1) to such an extent that it does not 
contain features essential to the conservation of the species and 
therefore does not meet the definition of critical habitat for the 
arroyo toad.

Unit 23: Whitewater River Basin

    In this proposed revised critical habitat designation, we removed 
areas within Unit 23 that encompass Whitewater River from the Colorado 
River Aqueduct downstream to Interstate Highway 10. When we published 
our previous 2004 proposed critical habitat designation (69 FR 23254), 
we believed this area, which is within the geographical area occupied 
at the time of listing, met the definition of critical habitat. 
However, information received since our previous 2004 proposed critical 
habitat designation (69 FR 23254) indicates that high-flow water 
releases and channelization of the river downstream of the aqueduct has 
likely altered the habitat such that it no longer supports the physical 
and biological features essential to the conservation of the arroyo 
toad (Roberts 2009, pers. comm.). We have determined that this area 
does not meet the definition of critical habitat for the arroyo toad 
and should not have been proposed in 2004. As proposed in 2004, Unit 23 
encompassed approximately 1,997 ac (808 ha) along the Whitewater River 
from near Red Dome downstream to Interstate 10; with the removal of the 
areas described above, Unit 23 now totals 1,355 ac (548 ha).

Proposed Revisions to Critical Habitat Designation

    We are proposing to designate 22 units (Units 2 through 23) as 
critical habitat for the arroyo toad. The total area identified as Unit 
1 is exempted from critical habitat designation under section 
4(a)(3)(B) of the Act, and therefore is not proposed. All proposed 
units are within the geographical area occupied by the species at the 
time of listing and contain the physical and biological features 
essential to the conservation of the arroyo toad which may require 
special management considerations or protection. Although not a 
prerequisite for designation as critical habitat, all units are 
currently occupied. The proposed revised critical habitat areas 
described below constitute our best assessment at this time of areas 
that meet the definition of critical habitat for the arroyo toad. 
Approximate area encompassing the proposed revised critical habitat by 
county and land ownership is shown in Table 1, and the overall area of 
proposed revised critical habitat units for the arroyo toad are shown 
by unit in Table 2. The designation of these units, if finalized, would 
replace the existing critical habitat designation for the arroyo toad 
in 50 CFR 17.95(d).

  Table 1--Approximate Proposed Revised Critical Habitat for the Arroyo Toad, in Acres (ac) (Hectares (ha)) by County (Ordered From North to South) and
                                                                     Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               County                                    Federal        State/local         Tribal          Private           Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Barbara......................................................           3,914                0                0            2,892            6,806

[[Page 52626]]

 
                                                                             (1,584)  ...............  ...............          (1,171)          (2,755)
Ventura............................................................           4,392                0                0              639            5,031
                                                                             (1,778)  ...............  ...............            (259)          (2,036)
Los Angeles........................................................           2,382                0                0            3,453            5,835
                                                                               (964)  ...............  ...............          (1,398)          (2,362)
San Bernardino.....................................................           3,964              132                0            3,599            7,695
                                                                             (1,604)             (53)  ...............          (1,456)          (3,113)
Riverside..........................................................           1,789              210                0            7,504            9,503
                                                                               (724)             (85)  ...............          (3,037)          (3,846)
Orange.............................................................             434            1,909                0            6,362            8,705
                                                                               (176)            (773)  ...............          (2,575)          (3,524)
San Diego..........................................................           6,843            3,481            4,046           51,165           65,535
                                                                             (2,769)          (1,409)          (1,636)         (20,707)         (26,521)
                                                                    ------------------------------------------------------------------------------------
    Total..........................................................          23,718            5,732            4,046           76,951          109,110
                                                                             (9,598)          (2,320)          (1,636)         (31,141)         (44,155)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Values in table may not sum due to rounding.


                Table 2--Approximate Proposed Revised Critical Habitat Units for the Arroyo Toad
----------------------------------------------------------------------------------------------------------------
                                   Critical habitat units
               Unit                     and subunits               County              Acres         Hectares
----------------------------------------------------------------------------------------------------------------
                                             Northern Recovery Unit
----------------------------------------------------------------------------------------------------------------
1................................  San Antonio River--     Monterey.............               0               0
                                    exempt.
2................................  Sisquoc River.........  Santa Barbara........           3,775           1,528
3................................  Upper Santa Ynez River  Santa Barbara........           3,032           1,227
4................................  Sespe Creek...........  Ventura..............           2,760           1,117
5................................  Piru Creek............  Ventura..............           2,507           1,015
5a...............................  ......................  .....................           1,358             550
5b...............................  ......................  .....................           1,149             465
6................................  Upper Santa Clara       Los Angeles..........           3,795           1,537
                                    River.
6a...............................  ......................  .....................             520             210
6b...............................  ......................  .....................           1,995             807
6c...............................  ......................  .....................           1,279             518
7................................  Upper Los Angeles       Los Angeles..........           1,190             482
                                    River Basin.
                                  ------------------------------------------------------------------------------
    Subtotal.....................  ......................  .....................          17,059           6,904
----------------------------------------------------------------------------------------------------------------
                                             Southern Recovery Unit
----------------------------------------------------------------------------------------------------------------
8................................  Lower Santa Ana River   Orange...............           2,182             883
                                    Basin.
9................................  San Jacinto River       Riverside............           2,406             974
                                    Basin.
9a...............................  ......................  .....................           1,226             496
9b...............................  ......................  .....................           1,180             478
10...............................  San Juan Creek Basin..  Orange, Riverside....           5,667           2,293
10a..............................  ......................  .....................           4,728           1,913
10b..............................  ......................  .....................             939             380
11...............................  San Mateo Basin.......  Orange, San Diego....           1,068             432
11a..............................  ......................  .....................           1,034             418
11b..............................  ......................  .....................              34              14
12...............................  Lower Santa Margarita,  San Diego............           1,009             408
                                    Basin.
12a..............................  ......................  .....................             394             159
12b..............................  ......................  .....................             615             248
13...............................  Upper Santa Margarita   Riverside, San Diego.           8,137           3,293
                                    Basin.
13a..............................  ......................  .....................           1,155             467
13b..............................  ......................  .....................           4,756           1,925
13c..............................  ......................  .....................           2,226             901
14...............................  Lower and Middle San    San Diego............          12,906           5,223
                                    Luis Rey Basin.
15...............................  Upper San Luis Rey      San Diego............          12,026           4,867
                                    Basin.
16...............................  Santa Ysabel Creek....  San Diego............          13,567           5,490
16a..............................  ......................  .....................          12,136           4,911
16d..............................  ......................  .....................           1,431             579
17...............................  San Diego River Basin.  San Diego............           4,263           1,725
17a..............................  ......................  .....................           1,241             502
17b..............................  ......................  .....................           1,865             755
17d..............................  ......................  .....................           1,158             469
18...............................  Sweetwater River Basin  San Diego............           4,783           1,936
18a..............................  ......................  .....................           4,156           1,682
18c..............................  ......................  .....................             627             254

[[Page 52627]]

 
19...............................  Cottonwood Creek Basin  San Diego............          14,375           5,817
19a..............................  ......................  .....................           5,847           2,366
19b..............................  ......................  .....................           5,129           2,076
19c..............................  ......................  .....................           1,511             611
19d..............................  ......................  .....................             938             380
19e..............................  ......................  .....................             950             384
                                  ------------------------------------------------------------------------------
    Subtotal.....................  ......................  .....................          82,389          33,342
----------------------------------------------------------------------------------------------------------------
                                              Desert Recovery Unit
----------------------------------------------------------------------------------------------------------------
20...............................  Upper Santa Ana River   San Bernardino.......           1,775             718
                                    Basin/Cajon Wash.
21...............................  Little Rock Creek       Los Angeles..........             612             248
                                    Basin.
22...............................  Upper Mojave River      San Bernardino.......           5,919           2,395
                                    Basin.
22a..............................  ......................  .....................           5,684           2,300
22c..............................  ......................  .....................             235              95
23...............................  Whitewater River Basin  Riverside............           1,355             548
                                  ------------------------------------------------------------------------------
    Subtotal.....................  ......................  9,661................  ..............           3,909
                                  ------------------------------------------------------------------------------
        Total....................  ......................  109,110..............  ..............          44,155
----------------------------------------------------------------------------------------------------------------
Values in table may not sum due to rounding.

    Presented below are brief descriptions of all units. The units are 
grouped by recovery unit as described in the recovery plan (Service 
1999) and listed in order geographically north to south and west to 
east within each recovery unit. A brief description of each unit and 
the reasons it meets the definition of critical habitat are presented 
below.

Northern Recovery Unit

    As described in the recovery plan (Service 1999, pp. 1-119), 
maintaining arroyo toad populations in the areas described by the 
following 7 unit descriptions is necessary to conserve the species in 
the northern recovery unit. Because the toad populations in this 
recovery unit have been reduced in size and their habitat fragmented by 
road construction, dams, agriculture, and urbanization, it is important 
to protect all of them and safeguard against the loss of any one 
population due to random natural or human-caused events. The U.S. 
Forest Service is the primary landowner of proposed revised critical 
habitat within the northern recovery unit.
Unit 1: San Antonio River
    Although the lands in this unit are exempt from critical habitat 
designation under section 4(a)(3)(B) of the Act, we provide the 
following information to explain why these lands meet the definition of 
critical habitat. This unit is located in Monterey County and 
encompasses: (1) San Antonio River and adjacent uplands from about 2 mi 
(3 km) upstream of the confluence with Mission Creek downstream to San 
Antonio Reservoir, a distance of about 17 mi (27 km); and (2) small 
portions of Mission Creek and other tributaries. The unit consists of 
6,453 ac (2,612 ha) of Federal (Department of Defense) land and is 
entirely contained within Fort Hunter Liggett Military Reservation 
boundaries. Arroyo toads can be found along the entire length of this 
segment of the San Antonio River, which is still in a relatively 
natural state, consists of high-quality arroyo toad habitat, and 
supports probably one of the largest populations within the northern 
recovery unit (U.S. Army Reserve Command 2004, p. 38). The northernmost 
known population of arroyo toads is located here and is approximately 
100 mi (160 km) north of the nearest documented extant population. 
Arroyo toads in this unit may experience climatic conditions not faced 
by toads farther south. Unit 1 contains the physical and biological 
features that are essential to the conservation of the species, 
including breeding pools in low-gradient stream segments with sandy or 
fine gravel substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), 
and relatively undisturbed riparian and upland habitat for foraging and 
dispersal (PCE 4). The physical and biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats from 
nonnative vertebrate predators such as bullfrogs and beavers (Castor 
canadensis). These lands on Fort Hunter Liggett are exempt from 
critical habitat designation under section 4(a)(3)(B) of the Act 
because they are subject to the 2007 Integrated Natural Resources 
Management Plan (INRMP) for Fort Hunter Liggett, and the INRMP provides 
a benefit to the arroyo toad (see the ``Application of Section 4(a)(3) 
of the Act'' section of this proposed rule for a detailed discussion).
Unit 2: Sisquoc River (3,775 ac (1,528 ha))
    This unit is located in Santa Barbara County and encompasses 
approximately 33 mi (54 km) of the Sisquoc River and adjacent uplands 
from Sycamore Campground downstream to just below the confluence with 
La Brea Creek. Upper stretches of the river are within the Los Padres 
National Forest and mostly within the San Rafael Wilderness Area. Below 
the National Forest boundary, the river and adjacent uplands are on 
rural private lands. The unit consists of 1,700 ac (688 ha) of Federal 
land and 2,073 ac (839 ha) of private land. This long, undammed river 
is one of the few remaining major rivers in southern California with a 
natural flow regime, and supports a core population of arroyo toad that 
is important for maintaining the genetic diversity of the species. Unit 
2 contains the physical and biological features that are essential to 
the conservation of the species, including breeding pools in low-
gradient stream segments with sandy or fine gravel substrates (PCEs 1 
and 2), seasonal flood flows (PCE 3), and relatively undisturbed 
riparian and upland habitat for foraging and dispersal (PCE 4). The 
physical and biological features essential to the

[[Page 52628]]

conservation of the species in this unit may require special management 
considerations or protection to address threats from the removal and 
alteration of habitat due to sand and gravel mining, livestock 
overgrazing of riparian habitats, and limited recreational activities. 
Please see the ``Special Management Considerations or Protection'' 
section of this proposed rule for a discussion of the threats to arroyo 
toad habitat and potential management considerations.
Unit 3: Upper Santa Ynez River Basin (3,032 ac (1,227 ha))
    This unit is located in Santa Barbara County upstream of Gibraltar 
Reservoir and encompasses approximately 27 mi (43 km) of the upper 
Santa Ynez River, Indian Creek, Mono Creek, and adjacent uplands. The 
unit consists of 2,214 ac (896 ha) of Federal land and 818 ac (331 ha) 
of private land within the Los Padres National Forest, and supports a 
large and well-studied arroyo toad population (Sweet 1992, pp. 1-198; 
1993, pp. 1-73) that likely experiences precipitation and soil moisture 
conditions not faced by toads at drier sites. Potential adaptations to 
these conditions make this unit important for maintaining the genetic 
diversity of the species. Unit 3 contains the physical and biological 
features that are essential to the conservation of the species, 
including breeding pools in low-gradient stream segments with sandy or 
fine gravel substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), 
and relatively undisturbed riparian and upland habitat for foraging and 
dispersal (PCE 4). The physical and biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats, primarily 
along the lower Santa Ynez River and lower Mono Creek, from nonnative 
species, recreation, and problems associated with an upstream dam (such 
as sediment trapping, altered hydrological regime, and temperature 
changes). Please see the ``Special Management Considerations or 
Protection'' section of this proposed rule for a discussion of the 
threats to arroyo toad habitat and potential management considerations.
Unit 4: Sespe Creek (2,760 ac (1,117 ha))
    This unit is located in Ventura County and encompasses 
approximately 27 mi (43 km) of Sespe Creek and adjacent uplands, from 
the lower end of Sespe Gorge (elevation approximately 3,530 ft (1,076 
m)) downstream to the confluence with Alder Creek. The unit consists of 
2,498 ac (1,011 ha) of Federal land and 262 ac (106 ha) of private 
land. This unit supports one of the largest arroyo toad populations on 
the Los Padres National Forest along Sespe Creek, which is undammed and 
retains its natural flooding regime. Up to several hundred adult arroyo 
toads inhabit this reach of the Sespe River (Sweet 1992, p. 192), and 
during years of successful reproduction, such as 2003, thousands of 
juveniles can be found as well (Murphy 2008, pers. comm.). Arroyo toads 
have been found up to 3,300 ft (1,000 m) in elevation in this area, 
which is one of the highest known occurrences in the northern recovery 
unit. The arroyo toads in this unit likely experience temperature 
extremes or other environmental conditions not faced by toads at lower 
elevations so that potential adaptations to these conditions make this 
unit important for maintaining the genetic diversity of the species. 
Unit 4 contains the physical and biological features that are essential 
to the conservation of the species, including numerous suitable 
breeding pools (shallow, sand- or gravel-based pools with a minimum of 
vegetation along one or both margins during the breeding season from 
late March to June (Sweet 1992, p. 28)) and an abundance of sandy 
substrates (PCEs 1 and 2), unimpeded seasonal flood flows (PCE 3), and 
relatively undisturbed riparian habitat and upland benches for foraging 
and dispersal (PCE 4). The physical and biological features essential 
to the conservation of the species in this unit may require special 
management considerations or protection to address threats from 
recreational activities and nonnative predators. Please see the 
``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
Unit 5: Piru Creek (2,507 ac (1,015 ha))
    This unit is located in Ventura and Los Angeles Counties and 
consists of two subunits totaling 2,105 ac (852 ha) of Federal land and 
402 ac (163 ha) of private inholdings.
Subunit 5a
    Subunit 5a encompasses approximately 17 mi (27 km) of Piru Creek 
and adjacent uplands from the confluence with Lockwood Creek downstream 
to Pyramid Reservoir. The subunit consists of 1,277 ac (517 ha) of 
Federal land and 81 ac (33 ha) of private land. The upper portion of 
Subunit 5a is free of nonnative vertebrate predators, and the 
substantial arroyo toad population supported by this subunit has been 
increasing and expanding in this area over the past several years 
(Uyehara 2003, pers. comm.). Subunit 5a contains the physical and 
biological features that are essential to the conservation of the 
species, including breeding pools in low-gradient stream segments with 
sandy substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and 
riparian habitat and upland benches for foraging and dispersal (PCE 4). 
The physical and biological features essential to the conservation of 
the species in this subunit may require special management 
considerations or protection to address threats from horse and cattle 
grazing and recreational activities. Please see the ``Special 
Management Considerations or Protection'' section of this proposed rule 
for a discussion of the threats to arroyo toad habitat and potential 
management considerations.
Subunit 5b
    Subunit 5b is primarily within the Sespe Wilderness and encompasses 
approximately 15 mi (24 km) of Piru Creek from the confluence with Fish 
Creek downstream to Lake Piru, as well as Agua Blanca Creek from 
Devil's Gateway downstream to the confluence with Piru Creek. The 
subunit supports a substantial arroyo toad population and consists of 
828 ac (335 ha) of Federal land and 321 ac (130 ha) of private land. 
Subunit 5b contains the physical and biological features that are 
essential to the conservation of the species, including breeding pools 
in low-gradient stream segments with sandy substrates (PCEs 1 and 2), 
seasonal flood flows (modified to some extent below Pyramid Dam) (PCE 
3), and riparian habitat and upland benches for foraging and dispersal 
(PCE 4). Because lower Piru Creek in Subunit 5b is downstream of a 
large dam, the habitat there has experienced some degradation over the 
years from perennial water releases, rapid changes in flow volume, 
excessive flows during the breeding season, and an increased presence 
of nonnative predators. However, Pyramid Dam has permanently changed 
the water release schedule to one that will more closely mimic natural 
flows and will benefit the arroyo toad (State Water Board 2008, p. 3). 
The physical and biological features essential to the conservation of 
the species in this subunit may require special management 
considerations or protection to address threats from nonnative 
predators and recreational activities. Please see the ``Special 
Management Considerations or Protection'' section of this proposed rule 
for a discussion of the threats to arroyo

[[Page 52629]]

toad habitat and potential management considerations.
Unit 6: Upper Santa Clara River Basin (3,795 ac (1,537 ha))
    This unit is located in northwestern Los Angeles County and 
consists of three subunits totaling 443 ac (179 ha) of Federal land and 
3,351 ac (1,356 ha) of private land.
Subunit 6a
    Subunit 6a encompasses approximately 7 mi (12 km) of Castaic Creek 
from Bear Canyon downstream to Castaic Lake, and 0.7 mi (1.2 km) of 
Fish Creek from Cienaga Spring to the confluence with Castaic Creek. 
Subunit 6a encompasses approximately 11 mi (18 km) of upper Santa Clara 
River from Arrastre Canyon downstream to the confluence with Bee Canyon 
Creek. The subunit consists of 284 ac (115 ha) of Federal land and 236 
ac (96 ha) of private land. Subunit 6a contains the physical and 
biological features that are essential to the conservation of the 
species, including breeding pools in low-gradient stream segments with 
sandy substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and 
riparian habitat and upland benches for foraging and dispersal (PCE 4). 
The physical and biological features essential to the conservation of 
the species in this subunit may require special management 
considerations or protection to address threats from urban development, 
agriculture, recreation, mining, and nonnative predators. Please see 
the ``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
Subunit 6b
    Subunit 6b encompasses: (1) Approximately 2.6 mi (4.2 km) of 
Castaic Creek from the downstream edge of The Old Road right-of-way 
(adjacent to Interstate 5) down to the confluence with the Santa Clara 
River, (2) 6 mi (10 km) of the Santa Clara River from the confluence 
with Bouquet Creek down to the confluence with Castaic Creek, and (3) 
1.1 mi (2 km) of San Francisquito Creek from Newhall Ranch Road 
downstream to the confluence with the Santa Clara River. The subunit 
consists of 159 ac (65 ha) of Federal land and 1,995 ac (807 ha) of 
private land. This subunit allows for natural population expansion and 
fluctuation of the Santa Clara River population by connecting arroyo 
toad habitat in Castaic Creek with San Francisquito Creek and the 
occupied reach of the Santa Clara River. Subunit 6b contains the 
physical and biological features that are essential to the conservation 
of the species, including breeding pools in low-gradient stream 
segments with sandy substrates (PCEs 1 and 2), seasonal flood flows 
(PCE 3), and riparian habitat and upland benches for foraging and 
dispersal (PCE 4). The physical and biological features essential to 
the conservation of the species in this subunit may require special 
management considerations or protection to address threats from urban 
development, agriculture, recreation, mining, and nonnative predators. 
Please see the ``Special Management Considerations or Protection'' 
section of this proposed rule for a discussion of the threats to arroyo 
toad habitat and potential management considerations.
Subunit 6c
    Subunit 6c encompasses approximately 11 mi (18 km) of upper Santa 
Clara River from Arrastre Canyon downstream to the confluence with Bee 
Canyon Creek. The subunit consists of 159 ac (64 ha) of Federal land 
and 1,120 ac (453 ha) of private land. This subunit is important for 
maintaining the arroyo toad metapopulation in the upper Santa Clara 
River Basin. Additionally, the upper portion of the Santa Clara River 
in this subunit supports a breeding population of arroyo toads 
(Sandburg 2001, in litt.; Farris 2001, pers. comm.; Hovore 2001, in 
litt.) that has the potential to greatly increase in size. Subunit 6c 
contains the physical and biological features that are essential to the 
conservation of the species, including breeding pools in low-gradient 
stream segments with sandy substrates (PCEs 1 and 2), seasonal flood 
flows (PCE 3), and riparian habitat and upland benches for foraging and 
dispersal (PCE 4). The physical and biological features essential to 
the conservation of the species in this subunit may require special 
management considerations or protection to address threats from urban 
development, agriculture, recreation, mining, and nonnative predators. 
Please see the ``Special Management Considerations or Protection'' 
section of this proposed rule for a discussion of the threats to arroyo 
toad habitat and potential management considerations.
Unit 7: Upper Los Angeles River Basin (1,190 ac (482 ha))
    This unit is located in central Los Angeles County and encompasses: 
(1) Approximately 8 mi (13 km) of upper Big Tujunga Creek from 
immediately above Big Tujunga Reservoir upstream to approximately 1.2 
mi (2 km) above the confluence with Alder Creek, (2) almost 3.7 mi (6 
km) of Mill Creek from the Monte Cristo Creek confluence downstream to 
Big Tujunga Creek, and (3) approximately 1.9 mi (3 km) of Alder Creek 
from the Mule Fork confluence downstream to Big Tujunga Creek. The unit 
consists of 1,113 ac (451 ha) of Forest Service land and 77 ac (31 ha) 
of private land. This unit supports an important high-elevation arroyo 
toad population in the Big Tujunga Canyon watershed in the Upper Los 
Angeles River Basin within the Angeles National Forest, which is 
atypical for arroyo toads, and supports the only significant known 
population remaining in the coastal foothills of the San Gabriel 
Mountains. Unit 7 contains the physical and biological features that 
are essential to the conservation of the species, including aquatic 
habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and 
upland habitat for foraging and dispersal activities (PCE 4). The 
physical and biological features essential to the conservation of the 
species in this unit may require special management considerations or 
protection to address threats from nonnative predators, such as 
crayfish, bullfrogs, and nonnative plants such as Arundo donax. Please 
see the ``Special Management Considerations or Protection'' section of 
this proposed rule for a discussion of the threats to arroyo toad 
habitat and potential management considerations.

Southern Recovery Unit

    As described in the recovery plan (Service 1999, pp. 1-119), 
maintaining arroyo toad populations in the following 12 critical 
habitat units is necessary to conserve the species in the southern 
recovery unit. The units consist of a range of geographic locations 
from coastal regions to interior mountains. Arroyo toads likely 
occurred throughout each of these river and creek basins, but are now 
found only in segments of the rivers and creeks due to loss or change 
of habitat and nonnative predators. Conserving arroyo toad populations 
in these river basins is necessary for preserving the species' full 
range of genetic and phenotypic (observable characteristics produced by 
the interaction of the genotype and the environment) variation.
Unit 8: Lower Santa Ana River Basin (2,182 ac (883 ha))
    This unit is located in east-central Orange County and encompasses: 
(1) Approximately 6.6 mi (11 km) of Santiago Creek from just below the 
town of Modjeska downstream to Irvine Lake, (2) approximately 2 mi (3 
km) of Black Star Creek downstream to the

[[Page 52630]]

confluence with Santiago Creek, (3) an approximately 2.4 mi (4 km) 
stretch of lower Baker Canyon downstream to the confluence with 
Santiago Creek, and (4) approximately 7.3 mi (12 km) of Silverado Creek 
from the eastern edge of section 11 (T05S, R07W) in the Cleveland 
National Forest downstream to the confluence with Santiago Creek. The 
unit consists of 54 ac (22 ha) of Forest Service land and 2,128 ac (861 
ha) of private land. This unit contains a vital arroyo toad population 
in central Orange County that may represent one of the last remnants of 
a greater historical population from the Santa Ana River Basin that was 
mostly extirpated due to urbanization of the greater Los Angeles 
metropolitan area. It is also possible that this population belongs to 
a larger metapopulation that extends across the lower coastal mountain 
slopes of the Santa Ana Mountains from Santiago Creek to San Mateo 
Creek (including Units 10 and 11 discussed below). Unit 8 contains the 
physical and biological features that are essential to the conservation 
of the species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this unit may require 
special management considerations or protection to address threats from 
nearby residential activities and degrading habitat conditions due to 
past commercial sand and gravel removal operations. Please see the 
``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations. We are considering the 
exclusion of approximately 1,497 ac (606 ha) of lands in Unit 8 within 
the Orange County Central-Coastal NCCP/HCP from the final revised 
critical habitat designation under section 4(b)(2) of the Act (see 
``Application of Section 4(b)(2) of the Act'' section of this proposed 
revised rule for a detailed discussion).
Unit 9: San Jacinto River Basin (2,406 ac (974 ha))
    This unit is located in west-central Riverside County and consists 
of two subunits totaling 13 ac (5 ha) of Bureau of Land Management 
land, 492 ac (199 ha) of Forest Service land, 210 ac (85 ha) of State 
land, and 1,691 ac (684 ha) of private land. This unit supports the 
most northeastern arroyo toad populations within the coastal region of 
the species' range and is effectively isolated from other known toad 
populations to the south in the Santa Margarita Watershed, to the west 
in the San Juan Watershed, and from residual populations to the north 
in the Santa Ana Watershed due to geographic features. It is likely 
that this isolation occurred over a long geologic time period; 
therefore, toads in the San Jacinto Watershed may have evolved unique 
genetic, phenotypic, or behavioral characteristics that are important 
for the conservation of the species.
Subunit 9a
    Subunit 9a encompasses approximately 6.3 mi (10 km) of the San 
Jacinto River from the Sand Canyon confluence downstream to the Soboba 
Indian Reservation border. The subunit consists of 64 ac (26 ha) of 
Forest Service land, 8 ac (3 ha) of Bureau of Land Management land, and 
1,154 ac (467 ha) of private land. Subunit 9a contains the physical and 
biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from cumulative impacts from human activities, including direct 
mortality from vehicular traffic, trampling, trash dumping, and 
collection (Ortega 2009, in litt. p. 1; Wilcox 2009, pers. comm.). 
Please see the ``Special Management Considerations or Protection'' 
section of this proposed rule for a discussion of the threats to arroyo 
toad habitat and potential management considerations. We are 
considering the exclusion of approximately 678 ac (274 ha) of private 
lands in Subunit 9a within the Western Riverside County MSHCP from the 
final revised critical habitat designation under section 4(b)(2) of the 
Act (see ``Application of Section 4(b)(2) of the Act'' section of this 
proposed revised rule for a detailed discussion).
Subunit 9b
    Subunit 9b encompasses approximately 7.4 mi (12 km) of Bautista 
Creek from near the eastern edge of Section 20 (T6S, R2E) downstream to 
approximately the middle of Section 27 (T5S, R1E), where the stream 
enters a debris basin. The subunit consists of 428 ac (173 ha) of 
Forest Service land, 5 ac (2 ha) of Bureau of Land Management land, 210 
ac (85 ha) of State land, and 537 ac (217 ha) of private land. Subunit 
9b contains the physical and biological features that are essential to 
the conservation of the species, including aquatic habitat for breeding 
and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from recreation and vehicular traffic (USGS 2001, p. 8). Please 
see the ``Special Management Considerations or Protection'' section of 
this proposed rule for a discussion of the threats to arroyo toad 
habitat and potential management considerations. We are considering the 
exclusion of approximately 475 ac (192 ha) of private lands in Subunit 
9b within the Western Riverside County MSHCP from the final revised 
critical habitat designation under section 4(b)(2) of the Act (see 
``Application of Section 4(b)(2) of the Act'' section of this proposed 
revised rule for a detailed discussion).
Unit 10: San Juan Creek Basin (5,667 ac (2,293 ha))
    This unit is located in southern Orange County and southwestern 
Riverside County and consists of two subunits totaling 558 ac (225 ha) 
of Forest Service land, 1,909 ac (773 ha) of local government land, and 
3,200 ac (1,295 ha) of private land. This unit supports a vital arroyo 
toad population in the San Juan Creek Basin, and arroyo toad 
populations in this unit may function as an important linkage between 
toads in Santiago Creek (Unit 8) to the north and the San Mateo Creek 
Basin (Unit 11) to the south.
Subunit 10a
    This subunit is located in southern Orange County and southwestern 
Riverside County. Subunit 10a encompasses: (1) Approximately 5 mi (8 
km) of San Juan Creek from immediately above the Upper San Juan 
Campground downstream to Interstate 5, (2) approximately 9.9 mi (16 km) 
of Bell Canyon from the southern half of section 8 (T06S, R06W) in the 
Cleveland National Forest downstream to the confluence with San Juan 
Creek, and (3) approximately 1.2 mi (2 km) of an unnamed tributary to 
the west of Bell Canyon in sections 8 and 18 (T06S, R06W) downstream to 
the confluence with Bell Creek. The subunit consists of 547 ac (221 ha) 
of Forest Service land, 1,406 ac (569 ha) of local government land, and 
2,775 ac (1,123 ha) of private land. Subunit 10a contains the physical 
and biological features that are essential to the conservation of the 
species,

[[Page 52631]]

including aquatic habitat for breeding and non-breeding activities 
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal 
activities (PCE 4). The physical and biological features essential to 
the conservation of the species in this subunit may require special 
management considerations or protection to address threats from 
nonnative predators (bullfrogs), increased water diversions, and 
residual effects of recent gravel mining operations (Bloom 1998, p. 2). 
Please see the ``Special Management Considerations or Protection'' 
section of this proposed rule for a discussion of the threats to arroyo 
toad habitat and potential management considerations. We are 
considering the exclusion of approximately 3,405 ac (1,378 ha) of 
permittee-owned or controlled lands in Subunit 10a within the Southern 
Orange County NCCP/Master Streambed Alteration Agreement/HCP from the 
final revised critical habitat designation under section 4(b)(2) of the 
Act (see ``Application of Section 4(b)(2) of the Act'' section of this 
proposed revised rule for a detailed discussion).
Subunit 10b
    This subunit is located in southern Orange County. Subunit 10b 
encompasses 5.2 mi (8 km) of Trabuco Creek downstream from 
approximately the middle of section 6 (T06S, R06W) in the Cleveland 
National Forest. The subunit consists of 11 ac (4 ha) of Forest Service 
land, 503 ac (204 ha) of local government land, and 425 ac (172 ha) of 
private land. Subunit 10b contains the physical and biological features 
that are essential to the conservation of the species, including 
aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, 
and 3) and upland habitat for foraging and dispersal activities (PCE 
4). The physical and biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative 
predators (bullfrogs), increased water diversions, and residual effects 
of recent gravel mining operations (Bloom 1998, p. 2). Please see the 
``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
Unit 11: San Mateo Creek Basin (1,068 ac (432 ha))
    This unit is located in northwestern San Diego County, southern 
Orange County, and southwestern Riverside County and consists of two 
subunits totaling 34 ac (14 ha) of Forest Service land and 1,034 ac 
(418 ha) of private land. This unit supports large arroyo toad 
populations in close proximity to the coast. Nearly all of the other 
near-coastal, historical populations of arroyo toad were extirpated due 
to extensive urbanization and river channelization along the coastal 
regions of southern California. Distinctive climatic conditions near 
the coast may provide different selective pressures on toads in this 
area, and favor specific genetic characteristics that help maintain the 
genetic diversity of the species. We are exempting from designation 
approximately 5,994 ac (2,426 ha) of military land that fall within the 
boundaries of this proposed revised critical habitat unit under section 
4(a)(3)(B) of the Act because the lands are subject to the 2007 INRMP 
for MCB Camp Pendleton, and the INRMP provides a benefit to the arroyo 
toad (see the ``Application of Section 4(a)(3) of the Act'' section of 
this proposed revised rule for a detailed discussion).
Subunit 11a
    Subunit 11a encompasses: (1) Approximately 1.7 mi (3 km) of 
Cristianitos Creek from just above Gabino Creek downstream to the MCB 
Camp Pendleton boundary; (2) approximately 3.1 mi (5 km) of Gabino 
Creek upstream from its confluence with Cristianitos Creek, including 
about 0.6 mi (1 km) of La Paz Creek; and (3) approximately 4 mi (6 km) 
of Talega Creek upstream from its confluence with Cristianitos Creek 
and beyond the boundaries of MCB Camp Pendleton. The subunit consists 
of 1,034 ac (418 ha) of private land. Subunit 11a contains the physical 
and biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from cumulative impacts from human activities, including direct 
mortality from vehicle collisions and vehicular crossings of 
streambeds, grazing, and nonnative predators (Bloom 1996, pp. 4-5; 
Bloom 1998, in litt., pp. 1, 3). Please see the ``Special Management 
Considerations or Protection'' section of this proposed rule for a 
discussion of the threats to arroyo toad habitat and potential 
management considerations. We are considering the exclusion of 
approximately 963 ac (390 ha) of permittee-owned or controlled lands in 
Subunit 11a within the Southern Orange County NCCP/Master Streambed 
Alteration Agreement/HCP from the final revised critical habitat 
designation under section 4(b)(2) of the Act (see ``Application of 
Section 4(b)(2) of the Act'' section of this proposed revised rule for 
a detailed discussion).
Subunit 11b
    Subunit 11b encompasses approximately 1 mi (2 km) of San Mateo 
Creek beyond the boundaries of MCB Camp Pendleton within the Cleveland 
National Forest near Devil Canyon. The subunit consists of 34 ac (14 
ha) of Forest Service land. Subunit 11b contains the physical and 
biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from nonnative predators (ECORP 2004, p. 16). Please see the 
``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
Unit 12: Lower Santa Margarita River Basin (1,009 ac (408 ha))
    This unit is located in northwestern San Diego County and consists 
of two subunits totaling 5 ac (2 ha) of State land and 1,004 ac (406 
ha) of private land. This unit supports large arroyo toad populations 
in proximity to other large populations to the north (Unit 11), and 
provides potential connectivity to populations in the upper Santa 
Margarita River Basin (Unit 13). We are exempting from designation 
approximately 7,239 ac (2,929 ha) of military land (7,016 ac (2,839 ha) 
on MCB Camp Pendleton and 223 ac (90 ha) on Fallbrook Naval Weapons 
Station) that fall within the boundaries of this critical habitat unit 
from the proposed revised designation of critical habitat under section 
4(a)(3)(B) of the Act because the lands are subject to the 2007 INRMP 
for MCB Camp Pendleton and the 2006 INRMP for the Fallbrook Naval 
Weapons Station, and each INRMP provides a benefit to the arroyo toad 
(see the ``Application of Section 4(a)(3) of the Act'' section of this 
proposed revised rule for a detailed discussion).

[[Page 52632]]

Subunit 12a
    Subunit 12a encompasses approximately 2.1 mi (3 km) of De Luz Creek 
from the town of De Luz downstream to the MCB Camp Pendleton boundary. 
The subunit consists of 394 ac (159 ha) of private land. Subunit 12a 
contains the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from cumulative impacts to the species' habitat from 
recreation, nonnative predators, and nonnative plants (CNDDB 2008 EO 
26). Please see the ``Special Management Considerations or Protection'' 
section of this proposed rule for a discussion of the threats to arroyo 
toad habitat and potential management considerations.
Subunit 12b
    Subunit 12b encompasses approximately 5.5 mi (9 km) of the Santa 
Margarita River upstream from the MCB Camp Pendleton boundary. The 
subunit consists of 5 ac (2 ha) of State land and 610 ac (247 ha) of 
private land. Subunit 12b contains the physical and biological features 
that are essential to the conservation of the species, including 
aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, 
and 3) and upland habitat for foraging and dispersal activities (PCE 
4). The physical and biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from cumulative impacts 
to the species' habitat from nonnative predators, nonnative plants, and 
vehicular traffic (Varanus Biological Services, Inc. 1999, pp. 34-35). 
Please see the ``Special Management Considerations or Protection'' 
section of this proposed rule for a discussion of the threats to arroyo 
toad habitat and potential management considerations.
Unit 13: Upper Santa Margarita River Basin (8,137 ac (3,293 ha))
    This unit is located in southern Riverside County and northern San 
Diego County and consists of three subunits totaling 23 ac (9 ha) of 
Bureau of Land Management land, 434 ac (176 ha) of Forest Service land, 
and 7,682 ac (3,109 ha) of private land. This unit provides potential 
links to arroyo toad populations in the lower Santa Margarita River 
Basin and other nearby drainages containing suitable habitat.
Subunit 13a
    Subunit 13a encompasses approximately 7.3 mi (12 km) of Arroyo Seco 
Creek from just south of the San Diego-Riverside County boundary 
downstream to Vail Lake. The subunit consists of 343 ac (139 ha) of 
Forest Service land and 813 ac (329 ha) of private land. Subunit 13a 
contains the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from nonnative predators and campground activities (USGS 2000, 
p. 3). Please see the ``Special Management Considerations or 
Protection'' section of this proposed rule for a discussion of the 
threats to arroyo toad habitat and potential management considerations. 
We are considering the exclusion of approximately 690 ac (279 ha) of 
private land in Subunit 13a within the Western Riverside County MSHCP 
from the final revised critical habitat designation under section 
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act'' 
section of this proposed revised rule for a detailed discussion).
Subunit 13b
    Subunit 13b encompasses approximately 16.3 mi (26 km) of Temecula 
Creek from Dodge Valley downstream to Vail Lake. The subunit consists 
of 91 ac (37 ha) of Forest Service land, 23 ac (9 ha) of Bureau of Land 
Management land, and 4,643 ac (1,879 ha) of private land. Subunit 13b 
contains the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from road maintenance and sand-mining operations (HELIX 2004, 
p. 1). Please see the ``Special Management Considerations or 
Protection'' section of this proposed rule for a discussion of the 
threats to arroyo toad habitat and potential management considerations. 
We are considering the exclusion of approximately 2,318 ac (938 ha) of 
private land in Subunit 13b within the Western Riverside County MSHCP 
from the final revised critical habitat designation under section 
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act'' 
section of this proposed revised rule for a detailed discussion).
Subunit 13c
    Subunit 13c encompasses approximately 6.5 mi (10 km) of Wilson 
Creek from the confluence with Cahuilla Creek downstream to Vail Lake. 
The subunit consists of 2,226 ac (901 ha) of private land. Subunit 13c 
contains the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from direct mortality and habitat degradation from off-highway 
vehicular traffic, and upstream sedimentation caused by urbanization, 
agriculture, or wildfire (R. Haase, MCAS Camp Pendleton, in litt. 
2009b, p. 1). Please see the ``Special Management Considerations or 
Protection'' section of this proposed rule for a discussion of the 
threats to arroyo toad habitat and potential management considerations. 
We are considering the exclusion of approximately 2,225 ac (900 ha) of 
private land in Subunit 13c within the Western Riverside County MSHCP 
from the final revised critical habitat designation under section 
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act'' 
section of this proposed revised rule for a detailed discussion).
Unit 14: Lower and Middle San Luis Rey River Basin (12,906 ac (5,223 
ha))
    This unit is located in northern San Diego County and encompasses 
approximately 30 mi (48 km) of the San Luis Rey River from the western 
edge of the La Jolla Indian Reservation downstream to the confluence 
with Guajome Creek near the City of Oceanside. It also includes 
approximately 3.4 mi (5.5 km) of Pala Creek and 1.7 mi (2.7 km) of Keys 
Creek upstream from their confluence with the San Luis Rey River. The 
unit consists of approximately 5 ac (2 ha) of Bureau of Land Management 
land, 10 ac (4 ha) of State land, 3,540 ac (1,432 ha) of tribal land, 
and 9,351 ac (3,785 ha) of private land, and supports one of the 
largest

[[Page 52633]]

contiguous river reaches that is occupied by the species. Unit 14 
contains the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats from dams and water diversions, intensive urbanization, 
agriculture, and nonnative predators and plants. Please see the 
``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
    As discussed in the ``Application of Section 4(b)(2) of the Act'' 
section of this proposed revised rule, we recognize the importance of 
government-to-government relationships with Tribes; therefore, we are 
considering the exclusion of approximately 1,155 ac (467 ha) of Rincon 
Band of Luise[ntilde]o Mission Indians Tribal Lands and approximately 
2,385 ac (963 ha) of Pala Band of Luise[ntilde]o Mission Indians Tribal 
Lands in Unit 14 from the final revised critical habitat designation 
under section 4(b)(2) of the Act. We are seeking public comment on the 
appropriateness of the inclusion or exclusion of these lands from final 
designation of revised critical habitat and whether the conservation 
needs of the arroyo toad can be achieved by limiting the designation to 
non-tribal lands (see Public Comments section).
Unit 15: Upper San Luis Rey River Basin (12,026 ac (4,867 ha))
    This unit is located in northern San Diego County and encompasses: 
(1) Approximately 8.6 mi (14 km) of the West Fork of the San Luis Rey 
River from Barker Valley downstream to the upper end of Lake Henshaw, 
(2) approximately 11.4 mi (18 km) of the upper San Luis Rey River from 
the Indian Flats area downstream to the upper end of Lake Henshaw, and 
(3) approximately 6.9 mi (11 km) of Agua Caliente Creek from the 
western edge of section 13 (T10S, R3E) to the confluence with the San 
Luis Rey River. The unit consists of 1,428 ac (578 ha) of Forest 
Service land and 10,598 ac (4,289 ha) of private land. This unit 
supports a unique assemblage of several small, disjunct, high-elevation 
arroyo toad populations and one significant population on Agua Caliente 
Creek (Gergus 1992, in litt.; Ervin 2000, in litt.; CNDDB 2008, Element 
Occurrences (EOs) 27, 32) in an area where in-stream and overland 
dispersal between populations is likely still possible. Unit 15 
contains the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats from groundwater pumping on private lands, nonnative predators, 
and grazing. Please see the ``Special Management Considerations or 
Protection'' section of this proposed rule for a discussion of the 
threats to arroyo toad habitat and potential management considerations.
Unit 16: Santa Ysabel Creek Basin (13,567 ac (5,490 ha))
    This unit is located in north-central San Diego County and consists 
of two subunits totaling 6 ac (2 ha) of Bureau of Land Management land, 
138 ac (56 ha) of Forest Service land, 182 ac (74 ha) of State land, 
143 ac (58 ha) of local government land, 23 ac (9 ha) of tribal land, 
and 13,074 ac (5,291 ha) of private land. This unit supports large 
amounts of suitable habitat connecting large populations with several 
additional populations.
Subunit 16a
    Subunit 16a encompasses: (1) Approximately 12 mi (19 km) of Santa 
Ysabel Creek from the confluence with Temescal Creek downstream to the 
confluence with Santa Maria Creek, (2) approximately 10 mi (16.1 km) of 
Guejito Creek from the 2,000 ft (610 m) elevation contour downstream to 
the confluence with Santa Ysabel Creek, (3) approximately 2.5 mi (4.0 
km) of Boden Canyon upstream from the Santa Ysabel Creek confluence, 
(4) approximately 4.3 mi (7 km) of Temescal Creek from the northern 
edge of Pamo Valley to the confluence with Santa Ysabel Creek, and (5) 
approximately 9.1 mi (15 km) of Santa Maria Creek from the west side of 
Ramona to the confluence with Santa Ysabel Creek. The subunit consists 
of 138 ac (56 ha) of Forest Service land, 6 ac (2 ha) of Bureau of Land 
Management land, 182 ac (74 ha) of State land, 143 ac (58 ha) of local 
government land, and 11,667 ac (4,721 ha) of private land. Subunit 16a 
contains the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from grazing, nonnative predators, and urbanization (Tierra 
Environmental Services 2001, in litt.; CNDDB 2008, EOs 59, 61). Please 
see the ``Special Management Considerations or Protection'' section of 
this proposed rule for a discussion of the threats to arroyo toad 
habitat and potential management considerations. We are considering the 
exclusion of approximately 3,915 ac (1,585 ha) of private lands in 
Subunit 16a within the San Diego MSCP-City and County of San Diego 
Subarea Plans from the final revised critical habitat designation under 
section 4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the 
Act'' section of this proposed revised rule for a detailed discussion).
Subunit 16d
    Subunit 16d encompasses approximately 5.2 mi (8.3 km) of Santa 
Ysabel Creek about 0.5 mi (0.8 km) east of Highway 79 downstream to 
approximately 0.25 mi (0.4 km) downstream of the confluence with Witch 
Creek. The subunit consists of 23 ac (9 ha) of Mesa Grande Reservation 
tribal land and 1,408 ac (570 ha) of private land. Subunit 16d contains 
the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from grazing (CNDDB 2008, EO 62). Please see the ``Special 
Management Considerations or Protection'' section of this proposed rule 
for a discussion of the threats to arroyo toad habitat and potential 
management considerations.
    As discussed in the ``Application of Section 4(b)(2) of the Act'' 
section of this proposed revised rule, we recognize the importance of 
government-to-government relationships with Tribes; therefore, we are 
considering the exclusion of approximately 23 ac (9 ha) of Mesa Grande 
Band of Diegueno Mission Indians Tribal Lands in Subunit 16d from the 
final revised critical habitat designation under section 4(b)(2) of the 
Act. We are seeking public comment on the appropriateness of the 
inclusion or exclusion of these lands from final designation of revised 
critical

[[Page 52634]]

habitat and whether the conservation needs of the arroyo toad can be 
achieved by limiting the designation to non-tribal lands (see Public 
Comments section).
Unit 17: San Diego River Basin/San Vicente Creek (4,263 ac (1,725 ha))
    This unit is located in central San Diego County and consists of 
three subunits totaling 35 ac (14 ha) of Bureau of Land Management 
land, 390 ac (158 ha) of Forest Service land, 93 ac (38 ha) of Capitan 
Grande Band of Diegueno Mission Indians tribal land, and 3,746 ac 
(1,516 ha) of private land. This unit supports suitable habitat for 
population expansion, thus increasing the probability of the long-term 
persistence of these populations.
Subunit 17a
    Subunit 17a encompasses: (1) Approximately 8.7 mi (14 km) of the 
San Diego River from Temescal Creek downstream through 0.5 mi (0.9 km) 
of the Capitan Grande Reservation to the upper edge of El Capitan 
Reservoir, and (2) approximately 1 mi (2 km) of lower Cedar Creek. The 
subunit consists of 354 ac (143 ha) of Forest Service land, 92 ac (37 
ha) of Capitan Grande Band of Diegueno Mission Indians tribal land, and 
795 ac (322 ha) of private land. Subunit 17a contains the physical and 
biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from urbanization and nonnative predators. Please see the 
``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
    As discussed in the ``Application of Section 4(b)(2) of the Act'' 
section of this proposed revised rule, we recognize the importance of 
government-to-government relationships with Tribes; therefore, we are 
considering the exclusion of approximately 92 ac (37 ha) of Capitan 
Grande Band of Diegueno Mission Indians Tribal Lands in Subunit 17a 
from the final revised critical habitat designation under section 
4(b)(2) of the Act. We are seeking public comment on the 
appropriateness of the inclusion or exclusion of these lands from final 
designation of revised critical habitat and whether the conservation 
needs of the arroyo toad can be achieved by limiting the designation to 
non-tribal lands (see Public Comments section).
Subunit 17b
    Subunit 17b encompasses approximately 7.2 mi (12 km) of the San 
Diego River downstream from San Vicente Reservoir. The subunit consists 
of 12 ac (5 ha) of Bureau of Land Management land, 36 ac (15 ha) of 
Forest Service land, and 1,817 ac (735 ha) of private land. Subunit 17b 
contains the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from urbanization, agriculture, nonnative predators, and 
adverse water releases (based on timing or amount) from the Sutherland/
San Vicente Aqueduct. Please see the ``Special Management 
Considerations or Protection'' section of this proposed rule for a 
discussion of the threats to arroyo toad habitat and potential 
management considerations. We are considering the exclusion of 
approximately 1,730 ac (700 ha) of private lands in Subunit 17b within 
the San Diego MSCP-City and County of San Diego Subarea Plans from the 
final revised critical habitat designation under section 4(b)(2) of the 
Act (see ``Application of Section 4(b)(2) of the Act'' section of this 
proposed revised rule for a detailed discussion).
Subunit 17d
    Subunit 17d encompasses approximately 7.6 mi (12 km) of San Vicente 
Creek upstream from San Vicente Reservoir. The subunit consists of 23 
ac (9 ha) of Bureau of Land Management land and 1,134 ac (459 ha) of 
private land. Subunit 17d contains the physical and biological features 
that are essential to the conservation of the species, including 
aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, 
and 3) and upland habitat for foraging and dispersal activities (PCE 
4). The physical and biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from urbanization, 
agriculture, nonnative predators, and adverse water releases (based on 
timing or amount) from the Sutherland/San Vicente Aqueduct (Varanus 
Biological Services, Inc. 1999, p. 20; RECON 2008, pp. 1, 3-4). Please 
see the ``Special Management Considerations or Protection'' section of 
this proposed rule for a discussion of the threats to arroyo toad 
habitat and potential management considerations. We are considering the 
exclusion of approximately 931 ac (377 ha) of private lands in Subunit 
17d within the San Diego MSCP-City and County of San Diego Subarea 
Plans from the final revised critical habitat designation under section 
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act'' 
section of this proposed revised rule for a detailed discussion).
Unit 18: Sweetwater River Basin (4,783 ac (1,936 ha))
    This unit is located in south-central San Diego County and consists 
of two subunits totaling 553 ac (224 ha) of Forest Service land, 3 ac 
(1 ha) of San Diego National Wildlife Refuge land, 1,659 ac (671 ha) of 
State land, 391 ac (158 ha) of tribal land, and 2,178 ac (882 ha) of 
private land. This unit supports several significant populations over 
large stretches of rivers and streams (Gergus 1992, in litt.; Ervin 
1997, in litt.; Varanus Biological Services, Inc. 1999, pp. 4-16; CNDDB 
2008, EOs 38, 43, 67, 73, 77, 85, 99, 100).
Subunit 18a
    Subunit 18a encompasses: (1) Approximately 26.6 mi (43 km) of the 
Sweetwater River from the top of Upper Green Valley in Cuyamaca Rancho 
State Park downstream to the top of Loveland Reservoir, (2) 
approximately 4.3 mi (7 km) of Viejas Creek from the western border of 
the Viejas Indian Reservation downstream to the confluence with the 
Sweetwater River, and (3) approximately 1.5 mi (2 km) of Peterson 
Canyon from just east of the Taylor Creek confluence downstream to the 
top of Loveland Reservoir. The subunit consists of 553 ac (224 ha) of 
Forest Service land, 1,554 ac (629 ha) of State land, and 2,049 ac (829 
ha) of private land. Subunit 18a contains the physical and biological 
features that are essential to the conservation of the species, 
including aquatic habitat for breeding and non-breeding activities 
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal 
activities (PCE 4). The physical and biological features essential to 
the conservation of the species in this subunit may require special 
management considerations or protection to address threats from 
vehicular traffic, including off- highway vehicular traffic; horse-
riding activities; nonnative predators; reservoir inundation; and 
cumulative impacts from human activities, including direct mortality 
from trampling and trash

[[Page 52635]]

dumping (Varanus Biological Services, Inc. 1999, p. 14; Mendelsohn et 
al. 2005, pp. 10-11). Please see the ``Special Management 
Considerations or Protection'' section of this proposed rule for a 
discussion of the threats to arroyo toad habitat and potential 
management considerations. We are considering the exclusion of 
approximately 545 ac (221 ha) of private lands in Subunit 18a within 
the San Diego MSCP-City and County of San Diego Subarea Plans from the 
final revised critical habitat designation under section 4(b)(2) of the 
Act (see ``Application of Section 4(b)(2) of the Act'' section of this 
proposed revised rule for a detailed discussion).
Subunit 18c
    Subunit 18c encompasses approximately 5.8 mi (9.3 km) of the 
Sweetwater River from immediately below Loveland Dam downstream to just 
above the Sycuan Resort. The subunit consists of 3 ac (1 ha) of San 
Diego National Wildlife Refuge land, 391 ac (158 ha) of Sycuan Band of 
the Kumeyaay Nation tribal land, 105 ac (42 ha) of State land, and 129 
ac (53 ha) of private land. Subunit 18c contains the physical and 
biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from adverse water releases (based on timing or amount) from 
the Loveland Reservoir and gravel mining operations (Madden-Smith et 
al. 2003, pp. 15, 17). Please see the ``Special Management 
Considerations or Protection'' section of this proposed rule for a 
discussion of the threats to arroyo toad habitat and potential 
management considerations.
    As discussed in the ``Application of Section 4(b)(2) of the Act'' 
section of this proposed revised rule, we recognize the importance of 
government-to-government relationships with Tribes; therefore, we are 
considering the exclusion of approximately 391 ac (158 ha) of Sycuan 
Band of the Kumeyaay Nation Tribal Lands in Subunit 18c from the final 
revised critical habitat designation under section 4(b)(2) of the Act. 
We are seeking public comment on the appropriateness of the inclusion 
or exclusion of these lands from final designation of revised critical 
habitat and whether the conservation needs of the arroyo toad can be 
achieved by limiting the designation to non-tribal lands (see Public 
Comments section).
    We are also considering the exclusion of approximately 595 ac (241 
ha) of private lands in Subunit 18c within the San Diego MSCP-City and 
County of San Diego Subarea Plans from the final revised critical 
habitat designation under section 4(b)(2) of the Act (see ``Application 
of Section 4(b)(2) of the Act'' section of this proposed revised rule 
for a detailed discussion).
Unit 19: Cottonwood Creek Basin (14,375 ac (5,817 ha))
    Unit 19 is located in southern San Diego County and consists of 
five subunits totaling 190 ac (77 ha) of Bureau of Land Management 
land, 3,928 ac (1,589 ha) of Forest Service land, 1,482 ac (600 ha) of 
local government land, and 8,778 ac (3,551 ha) of private land. This 
unit encompasses a large number of distinct arroyo toad occurrences 
(Gergus 1992, in litt.; Varanus Biological Services, Inc. 1999, pp. 2-
3; Gergus 2000, in litt.; CNDDB 2008, EOs 20-22, 30, 40, 44, 63-65, 69, 
79) in an area where in-stream and overland dispersal between 
populations is likely still possible and where there is room for 
population expansion.
Subunit 19a
    Subunit 19a encompasses: (1) Approximately 7 mi (11.2 km) of 
Cottonwood Creek from Buckman Springs (near Interstate 8) downstream to 
Morena Reservoir, (2) approximately 2.8 mi (4.5 km) of Morena Creek 
downstream to the Cottonwood Creek confluence, (3) approximately 0.5 mi 
(1 km) of an unnamed tributary of Morena Creek in section 35 (T16S, 
R04E) downstream to the confluence with Morena Creek, (4) approximately 
5 mi (8 km) of Kitchen Creek downstream to the Cottonwood Creek 
confluence, and (5) approximately 3.7 mi (6 km) of La Posta Creek 
downstream to the Cottonwood Creek confluence. The subunit consists of 
2,129 ac (862 ha) of Forest Service land, 1,482 ac (600 ha) of local 
government land, and 2,237 ac (905 ha) of private land. Subunit 19a 
contains the physical and biological features that are essential to the 
conservation of the species, including aquatic habitat for breeding and 
non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from grazing, recreational activities, and nonnative plants and 
predators (Ervin 2000, in litt.; TAIC 2005, p. 1; CNDDB 2008, EOs 20, 
44, 69). Please see the ``Special Management Considerations or 
Protection'' section of this proposed rule for a discussion of the 
threats to arroyo toad habitat and potential management considerations.
Subunit 19b
    Subunit 19b encompasses approximately 12.7 mi (20 km) of Cottonwood 
Creek from immediately below Barrett Lake downstream to the U.S.-Mexico 
border and includes 10.3 mi (17 km) of Potrero Creek from approximately 
the 2,466-ft (752-m) elevation benchmark downstream to the confluence 
with Cottonwood Creek. The subunit consists of 80 ac (32 ha) of Forest 
Service land, 129 ac (52 ha) of Bureau of Land Management land, and 
4,921 ac (1,991 ha) of private land. Subunit 19b contains the physical 
and biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from grazing, and nonnative plants and predators (Ervin 1997, 
in litt.; TAIC 2005, pp. 1, 3; CNDDB 2008, EOs 40, 64, 65, 79). Please 
see the ``Special Management Considerations or Protection'' section of 
this proposed rule for a discussion of the threats to arroyo toad 
habitat and potential management considerations. We are considering the 
exclusion of approximately 1,226 ac (496 ha) of private lands in 
Subunit 19b within the San Diego MSCP-City and County of San Diego 
Subarea Plans from the final revised critical habitat designation under 
section 4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the 
Act'' section of this proposed revised rule for a detailed discussion).
Subunit 19c
    Subunit 19c encompasses: (1) Approximately 7.6 mi (12 km) of Pine 
Valley Creek from the north edge of section 12 (T15S, R4E) downstream 
to approximately 0.6 mi (1 km) south of Interstate 8, (2) approximately 
0.6 mi (1 km) of Noble Creek downstream to the confluence with Pine 
Valley Creek, (3) approximately 2.4 mi (4 km) of Scove Canyon 
downstream to the confluence with Pine Valley Creek, and (4) 
approximately 1.3 mi (2 km) of an unnamed tributary upstream of Scove 
Canyon in sections 25 and 36 (T15S, R04E). The subunit consists of 809 
ac (327 ha) of Forest Service land and 703 ac (284 ha) of private land. 
Subunit 19c contains the physical and biological

[[Page 52636]]

features that are essential to the conservation of the species, 
including aquatic habitat for breeding and non-breeding activities 
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal 
activities (PCE 4). The physical and biological features essential to 
the conservation of the species in this subunit may require special 
management considerations or protection to address threats from 
urbanization, grazing, vehicular traffic, and nonnative predators 
(Holland and Sisk 2001, p. 9; CNDDB 2008, EOs 21, 22, 30). Please see 
the ``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
Subunit 19d
    Subunit 19d encompasses approximately 8 mi (13 km) of Pine Valley 
Creek from the Nelson Canyon confluence downstream to Barrett Reservoir 
and approximately 1.6 mi (3 km) of Horsethief Canyon downstream to the 
confluence with Pine Valley Creek. The subunit consists of 910 ac (368 
ha) of Forest Service land and 28 ac (11 ha) of private land. Subunit 
19d contains the physical and biological features that are essential to 
the conservation of the species, including aquatic habitat for breeding 
and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for 
foraging and dispersal activities (PCE 4). The physical and biological 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
threats from grazing and U.S. Border Patrol activities (Varanus 
Biological Services, Inc. 1999, p. 2; CNDDB 2008, EO 63). Please see 
the ``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
Subunit 19e
    Subunit 19e encompasses approximately 4.4 mi (7 km) of Campo Creek 
from Campo Lake downstream to the U.S.-Mexico border. The subunit 
consists of 61 ac (25 ha) of Bureau of Land Management land and 889 ac 
(360 ha) of private land. Subunit 19e contains the physical and 
biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from fire management activities along the U.S.-Mexico border 
(LEI 2008, p. 2). Please see the ``Special Management Considerations or 
Protection'' section of this proposed rule for a discussion of the 
threats to arroyo toad habitat and potential management considerations.

Desert Recovery Unit

    As described in the recovery plan (Service 1999, pp. 1-119), 
maintaining arroyo toad populations in the following 4 critical habitat 
units is necessary to conserve the species in the desert recovery unit. 
Each of these units is isolated from each other and from any other 
recovery units, making the issues of inbreeding, fragmentation, and 
random negative impacts of great concern. However, this recovery unit 
also represents unique ecological conditions for arroyo toads, and 
likely harbors important genetic diversity.
Unit 20: Upper Santa Ana River Basin/Cajon Wash (1,775 ac (718 ha))
    This unit is located in southwestern San Bernardino County and 
encompasses approximately 7.9 mi (13 km) of Cajon Wash upstream from 
the San Bernardino National Forest boundary. The unit consists of 711 
ac (288 ha) of Forest Service land and 1,065 ac (431 ha) of private 
land. This unit supports a population that may represent some of the 
last vestiges of a much greater population that historically existed 
along the upper Santa Ana River Basin, but was almost entirely 
extirpated due to urbanization of the greater Los Angeles area, and 
helps preserve a critical outlier segment of the genetic, phenotypic, 
or behavioral variation of the species. Unit 20 contains the physical 
and biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this unit may require 
special management considerations or protection to address threats from 
recreational activities. Please see the ``Special Management 
Considerations or Protection'' section of this proposed rule for a 
discussion of the threats to arroyo toad habitat and potential 
management considerations.
Unit 21: Little Rock Creek Basin (612 ac (248 ha))
    This unit is located in central Los Angeles County and encompasses: 
(1) Approximately 5.9 mi (9.5 km) of Little Rock Creek from the South 
Fork confluence downstream to the upper end of Little Rock Reservoir 
(in the vicinity of Rocky Point Picnic Ground), and (2) approximately 
1.1 mi (1.8 km) of Santiago Creek upstream from the confluence with 
Little Rock Creek in the Little Rock Creek Basin. The unit consists of 
612 ac (248 ha) of Forest Service land. This unit is on the periphery 
of the species' range in the Mojave Desert and geographically isolated 
from other known toad populations; therefore, it is possible that 
arroyo toads in this area possess unique genetic and phenotypic 
variation. Unit 21 contains the physical and biological features that 
are essential to the conservation of the species, including aquatic 
habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and 
upland habitat for foraging and dispersal activities (PCE 4). The 
physical and biological features essential to the conservation of the 
species in this unit may require special management considerations or 
protection to address threats from recreational activities. Please see 
the ``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
Unit 22: Upper Mojave River Basin (5,919 ac (2,395 ha))
    This unit is located in San Bernardino County and consists of two 
subunits totaling 3,253 ac (1,316 ha) of Federal land, 2,534 ac (1,025 
ha) of private land, and 132 ac (54 ha) of State land.
Subunit 22a
    Subunit 22a includes: (1) Approximately 9.3 mi (18 km) of Deep 
Creek from near Holcomb Creek downstream to the confluence with the 
West Fork; (2) approximately 4 mi (6 km) of Little Horsethief Creek 
upstream from its confluence with Horsethief Creek; (3) approximately 4 
mi (6 km) of Horsethief Creek from approximately 1 mi (1.6 km) above 
the Little Horsethief Creek confluence downstream to the West Fork 
confluence; (4) approximately 6 mi (10 km) of the West Fork of the 
Mojave River from Highway 173 downstream to Mojave River Forks Dam; (5) 
approximately 1 mi (1.6 km) of the Mojave River below Mojave River 
Forks Dam; (6) approximately 1.4 mi (2.2 km) of Grass Valley Creek 
upstream

[[Page 52637]]

from the confluence with the West Fork; and (7) approximately 2.8 mi 
(4.5 km) of Kinley Creek upstream from the Deep Creek confluence. The 
subunit consists of 3,209 ac (1,299 ha) of Federal land and 2,474 ac 
(1,001 ha) of private land. This subunit supports the largest 
population of the species on the desert side of the San Bernardino 
Mountains and is important for maintaining the range of genetic and 
phenotypic diversity of the species. Subunit 22a contains the physical 
and biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and non-breeding 
activities (PCEs 1, 2, and 3) and upland habitat for foraging and 
dispersal activities (PCE 4). The physical and biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from nonnative species, urban development, and recreation. 
Please see the ``Special Management Considerations or Protection'' 
section of this proposed rule for a discussion of the threats to arroyo 
toad habitat and potential management considerations.
Subunit 22c
    Subunit 22c includes approximately 1 mi (1.6 km) of the upper West 
Fork of the Mojave River, above Silverwood Lake, from near the 3,613 ft 
(1,462 m) elevation benchmark downstream to the upper end of the lake. 
The subunit consists of 43 ac (17 ha) of Federal land, 132 ac (54 ha) 
of county land, and 60 ac (24 ha) of private land. This subunit 
contains Summit Valley, which encompasses the lower portions of 
Horsethief Creek and the West Fork of the Mojave River, a broad, flat, 
alluvial valley that supports a substantial arroyo toad population 
(Ramirez 2003, pp. 16-17). Additionally, the downstream portion of this 
subunit contains the driest conditions of any unit proposed for arroyo 
toad critical habitat (Teale Data Center 1998, p. 1; CIMS 2000, p. 1), 
which suggests that this population may possess unique physiological 
adaptations, such as a reduced rate of evaporative water loss, and is 
important for maintaining the range of genetic and phenotypic diversity 
of the species. Subunit 22c contains the physical and biological 
features that are essential to the conservation of the species, 
including aquatic habitat for breeding and non-breeding activities 
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal 
activities (PCE 4). The physical and biological features essential to 
the conservation of the species in this subunit may require special 
management considerations or protection to address threats from 
nonnative species, urban development, and recreation. Please see the 
``Special Management Considerations or Protection'' section of this 
proposed rule for a discussion of the threats to arroyo toad habitat 
and potential management considerations.
Unit 23: Whitewater River Basin (1,355 ac (548 ha))
    This unit is located in northern Riverside County and encompasses 
approximately 6.4 mi (10 km) of the Whitewater River from near Red Dome 
downstream to the Colorado River Aqueduct. The unit consists of 783 ac 
(317 ha) of Bureau of Land Management land and 572 ac (231 ha) of 
private land. This unit supports an isolated desert population on the 
easternmost periphery of the species' range in the Colorado Desert that 
may possess unique phenotypic and genetic variation that are distinct 
from other desert populations in the Mojave Desert (including Units 21 
and 22 discussed above). Unit 23 contains the physical and biological 
features that are essential to the conservation of the species, 
including aquatic habitat for breeding and non-breeding activities 
(PCEs 1, 2, and 3) and upland habitat for foraging and dispersal 
activities (PCE 4). The physical and biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats from 
unsuitable water flow for breeding and off-highway vehicular traffic. 
Please see the ``Special Management Considerations or Protection'' 
section of this proposed rule for a discussion of the threats to arroyo 
toad habitat and potential management considerations. We are 
considering the exclusion of approximately 538 ac (218 ha) of private 
lands in Unit 23 within the Coachella Valley MSHCP from the final 
revised critical habitat designation under section 4(b)(2) of the Act 
(see ``Application of Section 4(b)(2) of the Act'' section of this 
proposed revised rule for a detailed discussion).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the Fifth and Ninth Circuit Courts of Appeal have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al., 245 F.3d 434, 442F (5th Cir. 2001)), and we do not rely 
on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the affected critical habitat would remain 
functional (or retain the current ability for the PCEs to be 
functionally established) to serve its intended conservation role for 
the species. Section 7(a)(2) of the Act requires Federal agencies, 
including the Service, to evaluate their actions with respect to any 
species that is endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. Conference reports provide 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. We may issue a 
formal conference report if requested by a Federal agency. Formal 
conference reports on proposed critical habitat contain an opinion that 
is prepared according to 50 CFR 402.14, as if critical habitat were 
designated. We may adopt the formal conference report as the biological 
opinion when the critical habitat is designated, if no substantial new 
information or changes in the action alter the content of the opinion 
(see 50 CFR 402.10(d)). The conservation recommendations in a 
conference report or opinion are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) of the 
Act through our issuance of:

[[Page 52638]]

    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    An exception to the concurrence process referred to in (1) above 
occurs in consultations involving National Fire Plan projects. In 2004, 
the U.S. Forest Service and the Bureau of Land Management reached 
agreements with the Service to streamline a portion of the section 7 
consultation process (BLM-ACA 2004, pp. 1-8; FS-ACA 2004, pp. 1-8). The 
agreements allow the U.S. Forest Service and the Bureau of Land 
Management the opportunity to make ``not likely to adversely affect'' 
determinations for projects implementing the National Fire Plan. Such 
projects include prescribed fire, mechanical fuels treatments (thinning 
and removal of fuels to prescribed objectives), emergency 
stabilization, burned area rehabilitation, road maintenance and 
operation activities, ecosystem restoration, and culvert replacement 
actions. The U.S. Forest Service and the Bureau of Land Management will 
insure staff is properly trained and both agencies will submit 
monitoring reports to the Service to determine if the procedures are 
being implemented properly and effects on endangered species and their 
habitats are being properly evaluated. As a result we do not believe 
the alternative consultation processes being implemented as a result of 
the National Fire Plan will differ significantly from those 
consultations being conducted by the Service.
    If we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected, and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect the arroyo toad or its 
designated critical habitat will require section 7(a)(2) consultation 
under the Act. Activities on State, Tribal, local, or private lands 
requiring a Federal permit (such as a permit from the U.S. Army Corps 
of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 
et seq.) or a permit under section 10 of the Act from the Service) or 
involving some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also be subject to the section 
7(a)(2) consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, Tribal, local, or 
private lands that are not federally funded, authorized, or permitted, 
do not require section 7(a)(2) consultations.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species, or would retain its current ability 
for the PCEs to be functionally established. Activities that may 
destroy or adversely modify critical habitat are those that alter the 
physical and biological features (PCEs) to an extent that appreciably 
reduces the conservation value of critical habitat for the arroyo toad.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may adversely affect critical habitat and, therefore, 
should result in consultation for the arroyo toad include, but are not 
limited to, the following:
    (1) Actions that alter water chemistry or temperature. Such 
activities include, but are not limited to: Release of chemicals, 
biological pollutants, or heated effluents into the surface water or 
into connected groundwater at a point source or by dispersed release 
(non-point source). These activities can alter water conditions beyond 
the tolerances of the arroyo toad and result in direct or cumulative 
adverse effects to these individuals and their life cycles.
    (2) Actions that increase sediment deposition within the stream 
channel or disturb upland foraging and dispersal habitat. Such 
activities include, but are not limited to: Excessive sedimentation 
from livestock overgrazing, road construction, commercial or urban 
development, channel alteration, timber harvest, off-highway vehicle or 
recreational use, and other watershed and floodplain disturbances. 
These activities could eliminate or reduce the habitat necessary for 
the growth and reproduction of the arroyo toad by increasing the 
sediment deposition to levels that would adversely affect their ability 
to complete their life cycles.
    (3) Actions that alter channel morphology or geometry. Such 
activities include, but are not limited to: Flood control and water 
diversion structures, such as dams and reservoirs, that regulate stream 
flows and trap sediments, direct groundwater extraction, 
channelization, impoundment, road and bridge construction, development, 
mining, dredging, and destruction of riparian vegetation. These 
activities may lead to changes to the hydrologic functioning of the 
stream and alter the timing, duration, water flows, and levels that 
would degrade or eliminate the arroyo toad and its habitat. These 
actions can also lead to increased sedimentation and degradation in 
water quality to levels that are beyond the tolerances of the arroyo 
toad and provide habitat for

[[Page 52639]]

nonnative species that prey on arroyo toads.
    (4) Actions that eliminate upland foraging, aestivating, or 
dispersal habitat for the arroyo toad. Such activities include, but are 
not limited to: Road construction, commercial or urban development, 
timber harvest, off-highway vehicle or recreational use, and other 
watershed and floodplain disturbances. These actions could affect the 
species' habitat through erosion, siltation, soil compaction, water 
quality degradation from urban runoff containing contaminants, 
fertilizers and pesticides, and the spread of introduced nonnative 
plants.
    (5) Actions that lead to introducing, spreading, or augmenting 
nonnative aquatic species in stream segments used by arroyo toad. 
Possible actions include, but are not limited to: Introduction of 
chytrid fungus or other diseases, fish stocking for sport, nonnative 
aquatic plant species for aesthetics, or other related actions. These 
activities could affect the growth and reproduction of the arroyo toad 
by subjecting eggs, larvae, tadpoles, and adult arroyo toads to 
increased predation pressure or limit the amount of habitat available 
for the species, which would adversely affect the arroyo toad's ability 
to complete its life cycle.
    Note that the scale of these activities is a crucial factor in 
determining whether, in any instance, they would directly or indirectly 
alter critical habitat to the extent that the value of the critical 
habitat would be appreciably diminished in providing for the physical 
or biological features essential to the conservation of the arroyo 
toad.
    We consider all of the units and subunits proposed as critical 
habitat to contain features essential to the conservation of the arroyo 
toad. All units are within the geographical area occupied by the 
species at the time it was listed, and are currently occupied by arroyo 
toads. To ensure that their actions do not jeopardize the continued 
existence of the arroyo toad, Federal agencies already consult with us 
on activities in areas currently occupied by the arroyo toad, or in 
unoccupied areas if the species may be affected by their actions.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Endangered Species Act to limit areas eligible 
for designation as critical habitat. Specifically, section 
4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: 
``The Secretary shall not designate as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an integrated 
natural resources management plan prepared under section 101 of the 
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that 
such plan provides a benefit to the species for which critical habitat 
is proposed for designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with federally listed species. INRMPs 
developed by military installations located within the range of the 
arroyo toad and which contain those features essential to the species' 
conservation were analyzed for exemption under the authority of section 
4(a)(3)(B) of the Act.

Approved INRMPS

    Fort Hunter Liggett Military Reservation, MCB Camp Pendleton, and 
Fallbrook Naval Weapons Station have approved INRMPs. The U.S. Army 
Reserve and Marine Corps (on both MCB Camp Pendleton and Fallbrook 
Naval Weapons Station) committed to working closely with us and 
California Department of Fish and Game (as well as California 
Department of Parks and Recreation (California State Parks) with 
regards to lands leased by MCB Camp Pendleton) to continually refine 
the existing INRMPs as part of the Sikes Act's INRMP review process. 
Based on our review of the INRMPs for these military installations, and 
in accordance with section 4(a)(3)(B)(i) of the Act, we have determined 
that the lands within these installations identified as meeting the 
definition of critical habitat are subject to the INRMPs, and that 
conservation efforts identified in these INRMPs will provide a benefit 
to the arroyo toad (see the following sections that detail this 
determination for each installation). Therefore, lands within these 
installations are exempt from critical habitat designation under 
section 4(a)(3)(B) of the Act. We are not including approximately 
19,686 ac (7,967 ha) of habitat on Fort Hunter Liggett, MCB Camp 
Pendleton, and Fallbrook Naval Weapons Station in this proposed revised 
critical habitat designation because of this exemption.
Fort Hunter Liggett Military Reservation
    Fort Hunter Liggett was established in 1940 as Hunter Liggett 
Military Reservation, when the Army purchased lands belonging to 
William Randolph Hearst and other private landowners. The installation 
was used intensively to prepare troops for World War II, the Korean and 
Vietnam conflicts, and the Cold War, as a training ground for the 7th 
Infantry Division formerly stationed at Fort Ord, and as a Test and 
Experimentation Command Center. Fort Hunter Liggett occupies 
approximately 163,000 ac (66,000 ha) of varied habitats within the 
Santa Lucia Mountains in southern Monterey County. Currently, the 
installation is used for training by the 40th Mechanized Infantry 
Division of the California Army National Guard; reserve units from 
several branches of the Armed Forces; active components of the Army 
Rangers, Special Forces, Navy Seabees, and Marines; and other 
government agencies.
    The Fort Hunter Liggett INRMP is a planning document that guides 
the management and conservation of natural resources under the 
installation's control. The INRMP was prepared to ensure that natural 
resources are managed in support of the Fort Hunter Liggett military 
training mission and that all activities are consistent with Federal 
stewardship requirements. The Fort Hunter Liggett INRMP was completed 
in 2005, followed by a revised and updated version in 2007, to address 
conservation and management of its natural resources, including 
conservation measures for the arroyo toad (U.S. Army Reserve Command 
2007, pp. 171-174).

[[Page 52640]]

The INRMP is Fort Hunter Liggett's adaptive plan for managing natural 
resources to support and be consistent with the military mission while 
protecting and enhancing the biological integrity of lands under its 
use (U.S. Army 2004, p. iv). Fort Hunter Liggett is committed to an 
ecosystem management approach for its natural resources program by 
integrating all components of natural resource management into a 
comprehensive and coordinated effort. An integrated approach to 
ecosystem management will help protect the biological diversity found 
at Fort Hunter Liggett.
    The INRMP identifies the following management and protection 
measures for the arroyo toad: (1) Implement monitoring that will meet 
the Service's criteria to demonstrate population status of arroyo toads 
on Fort Hunter Liggett; (2) reduce public and military vehicle 
encroachment into sandy riverine habitat, particularly during the 
breeding season for the arroyo toad; (3) minimize adverse effects to 
arroyo toads from roads and borrow sites (sites where soil and other 
material is removed for construction purposes); (4) gain an 
understanding of the timing of arroyo toad upland use, extent of upland 
use and distance traveled from breeding sites, characteristics of 
preferred upland habitat to include micro- and macro-habitats and 
substrate of burrowing sites, and use of rodent burrows; (5) identify 
threat posed by noxious weeds and reduce noxious weed presence to 
improve native habitat and site diversity; (6) obtain geomorphology 
information that will provide a foundation for development of 
management strategies for arroyo toad habitat and a better idea of 
habitat sustainability for arroyo toads; (7) identify threat posed by 
nonnative beavers in the San Antonio River in arroyo toad breeding 
habitat and outlying areas and implement control if threats warrant; 
(8) reduce bullfrog abundance in areas most likely to benefit arroyo 
toads; (9) prevent introduction and spread of disease at Fort Hunter 
Liggett; (10) maintain a viable population of arroyo toads and suitable 
habitat on Fort Hunter Liggett; (11) evaluate current management goals 
and actions and adapt to meet species management requirements; (12) 
integrate species management and conservation with Fort Hunter Liggett 
training and maintenance activities; (13) provide for adaptive 
management in accordance with the Fort Hunter Liggett INRMP; and (14) 
monitor mortality in order to augment the Service's ability to 
determine effects of Fort Hunter Liggett activities on arroyo toad and 
identify mortality factors at Fort Hunter Liggett.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2005 INRMP and 2007 updated INRMP for Fort Hunter 
Liggett provide a benefit to the arroyo toad and features essential to 
its conservation, and will benefit arroyo toads occurring in habitats 
on the installation. This includes habitat located in the Salinas River 
Basin (Service 1999, p. 14). Therefore, lands subject to the INRMP for 
the Fort Hunter Liggett Military Reservation are exempt from critical 
habitat designation under section 4(a)(3)(B) of the Act, and we are not 
including approximately 6,453 ac (2,612 ha) of habitat in this proposed 
revised critical habitat designation because of this exemption.
Marine Corps Base (MCB) Camp Pendleton
    MCB Camp Pendleton is the Marine Corps' premier amphibious training 
installation and its only west coast amphibious assault training 
center. The installation has been conducting air, sea, and ground 
assault training since World War II. MCB Camp Pendleton occupies over 
125,000 ac (50,586 ha) of coastal southern California in the northwest 
corner of San Diego County. Aside from nearly 10,000 ac (4,047 ha) that 
is developed, most of the installation is largely undeveloped land that 
is used for training. MCB Camp Pendleton is situated between two major 
metropolitan areas: Los Angeles, 82 miles (132 kilometers) to the 
north, and San Diego, 38 miles (61 kilometers) to the south. Nearby 
communities include Oceanside to the south, Fallbrook to the east, and 
San Clemente to the northwest. Aside from a portion of the 
installation's border that is shared with the San Mateo Wilderness Area 
and the Fallbrook Naval Weapons Station, surrounding land use is urban 
development, rural residential development, and agricultural farming 
and ranching. The largest single leaseholder on the installation is 
California State Parks, which includes a 50-year real estate lease 
granted on September 1, 1971, for 2,000 ac (809 ha) that encompasses 
San Onofre State Beach.
    The MCB Camp Pendleton INRMP is a planning document that guides the 
management and conservation of natural resources under the 
installation's control. The INRMP was prepared to assist installation 
staff and users in their efforts to conserve and rehabilitate natural 
resources consistent with the use of MCB Camp Pendleton to train 
Marines and set the agenda for managing natural resources on MCB Camp 
Pendleton. MCB Camp Pendleton completed its INRMP in 2001, followed by 
a revised and updated version in 2007 to address conservation and 
management recommendations within the scope of the installation's 
military mission, including conservation measures for the arroyo toad 
(MCB Camp Pendleton 2007, Appendix F, Section F.1, pp. F1-F5). 
Additionally, according to the 2007 INRMP, California State Parks is 
required to conduct its natural resources management consistent with 
the philosophies and supportive of the objectives of the revised 2007 
INRMP (MCB Camp Pendleton 2007, Chapter 2, p. 31).
    The arroyo toad receives programmatic protection from training and 
other installation activities within the riparian component of its 
habitat, as outlined and required in the Riparian Ecosystem 
Conservation Plan (MCB Camp Pendleton 2007, Appendix C). Management and 
protection measures for the arroyo toad identified in Appendix C of the 
INRMP include, but are not limited to, the following: (1) Eliminating 
nonnative, invasive species (such as Arundo donax) on the installation 
and off the installation in partnership with upstream landowners to 
enhance ecosystem value; (2) providing viable riparian corridors and 
promoting connectivity of native riparian habitats; (3) maintaining 
natural floodplain processes and extent of these areas by avoiding and 
minimizing further permanent loss of floodplain habitats; (4) 
maintaining to the extent practicable stream and river flows needed to 
support riparian habitat; (5) monitoring and maintaining groundwater 
levels and basin withdrawals to avoid loss and degradation of habitat 
quality; (6) restoring areas to their original condition after 
disturbance, such as following project construction or fire damage; and 
(7) promoting increased arroyo toad populations in watersheds through 
perpetuation of natural ecosystem processes and programmatic 
instruction application for avoidance and minimization of impacts (MCB 
Camp Pendleton 2007, Appendix C, pp. C5-C8).
    Current environmental regulations and restrictions apply to all 
threatened and endangered species on the installation (including the 
arroyo toad) and are provided to all users of ranges and training areas 
to guide activities and protect the species and its habitat. First, 
specific conservation measures are applied to arroyo toad and its 
habitat

[[Page 52641]]

that include: (1) Controlling nonnative animal species (such as 
bullfrogs) and nonnative plant species (such as Arundo donax and 
Rorippa spp. (watercress)); and (2) restricting military-related 
traffic use within riparian areas to existing roads, trails, and 
crossings. Second, MCB Camp Pendleton's environmental security staff 
review projects and enforce existing regulations and orders that, 
through their implementation, avoid and minimize impacts to natural 
resources, including the arroyo toad and its habitat. Third, MCB Camp 
Pendleton provides training to personnel on environmental awareness for 
sensitive resources on the base, including the arroyo toad and its 
habitat. As a result of these regulations and restrictions, activities 
occurring on MCB Camp Pendleton are currently conducted in a manner 
that minimizes impacts to arroyo toad habitat.
    MCB Camp Pendleton's INRMP also benefits the arroyo toad through 
ongoing monitoring and research efforts. The installation conducts 
annual monitoring to track arroyo toad populations and has conducted a 
study to examine arroyo toad use of habitat dominated by Arundo donax 
(although analysis of this study is not yet complete). Data are 
provided to all necessary personnel through MCB Camp Pendleton's GIS 
database on sensitive resources and in their published resource atlas. 
Additionally, MCB Camp Pendleton collaborated with the U.S. Geological 
Survey's Biological Resources Division to develop and implement a 
rigorous, science-based monitoring protocol for arroyo toad populations 
throughout the installation, including surveying for presence of eggs 
and larvae (Atkinson et al. 2003, pp. 4-5).
    We are consulting with the Marine Corps under section 7 of the Act 
to programmatically address potential upland impacts to the arroyo toad 
(and several other species) as a result of military training and other 
activities on MCB Camp Pendleton. Upon completion of this consultation, 
we expect additional measures that benefit the arroyo toad will be 
incorporated into the INRMP for MCB Camp Pendleton. This consultation 
is currently in progress, and we did not rely on any proposed measures 
in our consideration of the INRMP under section 4(a)(3)(B) of the Act. 
However, upland habitat conservation measures being considered include, 
but are not limited to: (1) Implementing programmatic measures to avoid 
and minimize impacts to upland habitats adjacent to riparian habitats 
occupied by arroyo toads, and (2) compensating for impacts to upland 
habitats used by arroyo toads by implementing ongoing installation-wide 
upland habitat enhancement programs (such as nonnative vegetation 
control, erosion control, and upland habitat restoration).
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2007 INRMP for MCB Camp Pendleton provide a benefit 
to the arroyo toad and its habitat. This includes habitat located in 
the following areas: San Mateo Creek, San Onofre Creek, and Santa 
Margarita River Basins (names of areas used follow those used in the 
recovery plan (Service 1999, pp. 25-27). Therefore, lands subject to 
the INRMP for MCB Camp Pendleton, which includes the lands leased from 
the Department of Defense by other parties, are exempt from critical 
habitat designation under section 4(a)(3)(B) of the Act, and we are not 
including approximately 13,010 ac (5,265 ha) of habitat in this 
proposed revised critical habitat designation because of this 
exemption.
Fallbrook Naval Weapons Station
    The Naval Weapons Station Seal Beach, Detachment Fallbrook 
(Fallbrook Naval Weapons Station), is the primary west coast supply 
point of ordinance for the U.S. Marine Corps and the large deck 
amphibious assault ships of the Pacific Fleet. The Fallbrook Naval 
Weapons Station also has the only west coast maintenance facility for 
air-launched missiles for the Pacific Fleet. The installation 
encompasses approximately 8,852 acres (3,582 ha) and is located within 
the southern foothills of the Santa Ana Mountains of northern San Diego 
County, adjacent to the city of Fallbrook, California. It is bounded to 
the north, west, and much of the south by MCB Camp Pendleton, with the 
Santa Margarita River forming the common border on the north between 
the two properties. Other than training lands on MCB Camp Pendleton, 
surrounding land use includes semi-rural agricultural lands that 
include plant nurseries, avocado and citrus groves, vineyards, and 
limited urban development.
    The Fallbrook Naval Weapons Station INRMP is a planning document 
that guides the management and conservation of natural resources under 
the installation's control. The INRMP was prepared to assist 
installation staff and users in their efforts to support mission 
operations and accommodate increased military mission requirements for 
national security and emergency homeland security, while meeting all 
environmental compliance responsibilities. The INRMP also provides 
ecosystem-based management to preserve, protect, and enhance natural 
resources on the installation, and provides the organizational support 
and communication links necessary for effective planning, 
implementation, and administration of the installation's natural 
resources. The Fallbrook Naval Weapons Station completed its INRMP in 
2006 (which was updated from an INRMP developed by the Naval Ordnance 
Center Pacific Division in 1996) to address conservation and management 
of its natural resources, including conservation measures for the 
arroyo toad (Fallbrook Naval Weapons Station 2006, Chapter 3, pp. 108-
110).
    The arroyo toad primarily receives protection from installation 
activities because no training occurs on the installation, and 
maintenance and potential development activities typically do not occur 
in arroyo toad habitat due to the steep sloping topography along the 
Santa Margarita River that immediately surrounds the suitable habitat. 
However, some impacts could occur associated with activities (such as 
fuel break grading, fire management, and possible infrastructure) that 
may impact the arroyo toad and thus require implementation of specified 
protection measures. The INRMP identifies the following management and 
protection measures for the arroyo toad: (1) Avoidance and minimization 
measures applied to infrastructure development and maintenance to 
protect the arroyo toad that are part of the National Environmental 
Policy Act approval process; (2) placement of riparian filter strip and 
buffer along firebreaks that lead into riparian zones where arroyo 
toads may be active; (3) avoidance of firebreak maintenance and fire 
suppression activities (where possible); (4) avoidance of discing for 
firebreaks leading to the Santa Margarita River during arroyo toad 
dispersal periods; (5) implementation of erosion and sediment control; 
(6) timing and location protections associated with prescribed burns; 
(7) implementation of nonnative vegetation control measures, including 
removal of Arundo donax; (8) implementation of standardized survey 
methods; (9) evaluation and control of nonnative bullfrogs; and (10) 
implementation of long-term monitoring activities, including upland 
sites (Fallbrook Naval Weapons Station 2006, Chapter 3, pp. 108-110).
    The ongoing monitoring efforts outlined in the INRMP (as listed 
above) include surveys of sites at two or more locations along the 
Santa Margarita

[[Page 52642]]

River, which includes upland surveys conducted every 5 years, offset 
from breeding surveys by 2 years. Surveys are also conducted after 
major alteration of the flow regime (natural or anthropogenic). 
Finally, the installation conducts annual monitoring to track arroyo 
toad populations as part of the fire plan activities, with survey data 
available since 2001 (Fallbrook Naval Weapons Station 2006, Chapter 3, 
p. 109).
    Environmental regulations and restrictions apply to all threatened 
and endangered species on the installation (including the arroyo toad) 
and are provided to all users of the installation to guide activities 
and protect the species and its habitat (Fallbrook Naval Weapons 
Station 2006, Chapter 5, p. 25). Biennial meetings are held with the 
Service to evaluate all management items associated with threatened and 
endangered species, including the arroyo toad.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2006 INRMP for the Fallbrook Naval Weapons Station 
provide a benefit to the arroyo toad, and will benefit arroyo toads 
occurring on the installation, which includes habitat located in the 
Santa Margarita River Basin (as identified in the recovery plan 
(Service 1999, pp. 26-27). Therefore, lands subject to the INRMP for 
the Fallbrook Naval Weapons Station are exempt from critical habitat 
designation under section 4(a)(3)(B) of the Act, and we are not 
including approximately 223 ac (90 ha) of habitat in this proposed 
revised critical habitat designation because of this exemption.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the legislative history is clear that the Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor.
    Under section 4(b)(2) of the Act, we consider all relevant impacts, 
including economic impacts. In compliance with section 4(b)(2) of the 
Act, we are preparing a new analysis of the economic impacts of this 
proposed revision to critical habitat for the arroyo toad, to evaluate 
the potential economic impact of the proposed revised designation. We 
will announce the availability of the draft economic analysis as soon 
as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Ventura Fish and Wildlife 
Office or Carlsbad Fish and Wildlife Office directly (see FOR FURTHER 
INFORMATION CONTACT). During the development of the final revised 
designation, we will consider economic impacts, public comments, and 
other new information, and areas, including those identified for 
potential exclusion in this proposed rule, may be excluded from the 
final critical habitat designation under section 4(b)(2) of the Act and 
our implementing regulations at 50 CFR 424.19.
    In addition to economic impacts, we consider a number of factors in 
a section 4(b)(2) analysis. For example, we consider whether there are 
lands owned by the Department of Defense where a national security 
impact might exist. We also consider whether landowners have developed 
any habitat conservation plans (HCPs) or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged or discouraged by designation of, or exclusion from, 
critical habitat in an area. In addition, we look at the presence of 
Tribal lands or Tribal Trust resources that might be affected, and 
consider the government-to-government relationship of the United States 
with the Tribal entities. We also consider any social impacts that 
might occur because of the designation.
    As discussed in further detail in the ``Habitat Conservation Plan 
Lands--Exclusions under Section 4(b)(2) of the Act'' and ``Tribal 
Lands--Exclusions Under Section 4(b)(2) of the Act'' sections below, we 
have preliminarily identified certain areas that we are considering 
excluding from the final revised critical habitat designation for the 
arroyo toad under section 4(b)(2) of the Act. However, we specifically 
solicit comments on the inclusion or exclusion of such areas (see 
Public Comments section).
    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995, p. 2), and at least 80 percent of endangered or threatened 
species occur either partially or solely on private lands (Crouse et 
al. 2002, p. 720). Stein et al. (1995, p. 400) found that only about 12 
percent of listed species were found almost exclusively on Federal 
lands (90 to 100 percent of their known occurrences restricted to 
Federal lands) and that 50 percent of federally listed species are not 
known to occur on Federal lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998; p. 1407; Crouse et al. 2002; p. 720; James 
2002, p. 271). Building partnerships and promoting voluntary 
cooperation of landowners are essential to our understanding the status 
of species on non-Federal lands, and necessary for us to implement 
recovery actions such as reintroducing listed species and restoring and 
protecting habitat.
    Many private landowners, however, are wary of the possible 
consequences of attracting endangered species to their property. 
Mounting evidence suggests that some regulatory actions by the Federal 
Government, while well-intentioned and required by law, can (under 
certain circumstances) have unintended negative consequences for the 
conservation of species on private lands (Wilcove et al. 1996; pp. 5-6; 
Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp. 
270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-1643). Many 
landowners fear a decline in their property value due to real or 
perceived restrictions on land-use options where threatened or 
endangered species are found. Consequently, harboring endangered 
species is viewed by many landowners as a liability. This perception 
results in anti-conservation incentives, because maintaining habitats 
that harbor endangered species represents a risk to future economic 
opportunities (Main et al. 1999, pp. 1264-1265; Brook et al. 2003, pp. 
1644-1648).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome

[[Page 52643]]

of the designation, triggering regulatory requirements for actions 
funded, authorized, or carried out by Federal agencies under section 
7(a)(2) of the Act, can sometimes be counterproductive to its intended 
purpose on non-Federal lands. Thus, the benefits of excluding areas 
that are covered by effective partnerships or other conservation 
commitments can often be high.

Habitat Conservation Plans--Exclusions Under Section 4(b)(2) of the Act

    Section 10(a)(1)(B) of the Act authorizes us to issue permits to 
non-Federal entities for the take of listed species incidental to 
otherwise lawful activities. An incidental take permit application must 
be supported by a habitat conservation plan (HCP) that identifies 
conservation measures that the permittee agrees to implement for the 
species to minimize and mitigate the impacts of the requested 
incidental take. We may exclude from critical habitat designation non-
Federal public lands and private lands that are covered by an existing 
operative HCP and any applicable implementation agreement under section 
10(a)(1)(B) of the Act, if we make a determination that the benefits of 
exclusion outweigh the benefits of inclusion as discussed in section 
4(b)(2) of the Act. We are considering whether to exclude lands covered 
by the Western Riverside County Multiple Species HCP (Western Riverside 
County MSHCP), San Diego Multiple Species Conservation Program (MSCP), 
Coachella Valley Multiple-Species HCP (Coachella Valley MSHCP), the 
Southern Orange County Natural Community Conservation Plan (NCCP)/
Master Streambed Alteration Agreement/HCP (Southern Orange HCP), and 
the Orange County Central-Coastal Subregional NCCP/HCP (Orange County 
Central-Coastal NCCP/HCP) (see the ``Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act'' section below).
    If the Secretary decides to exercise his discretion under section 
4(b)(2) of the Act, the following areas of habitat are being considered 
for possible exclusion from final revised critical habitat for the 
arroyo toad: 6,386 ac (2,583 ha) in the Western Riverside County MSHCP 
(Units 9 and 13); 8,942 ac (3,620 ha) in the San Diego MSCP-City and 
County of San Diego's Subarea Plans (Subunits 16a, 17b, 17d, 18a, 18c, 
and 19b); 538 ac (218 ha) in the Coachella Valley MSHCP (Unit 23); 
1,497 ac (606 ha) in the Orange County Central-Coastal NCCP/HCP; and 
4,407 ac (1,784 ha) in the Southern Orange HCP (Subunit 10a and Subunit 
11a).
    Table 3 below provides approximate areas (in acres and hectares) of 
lands that meet the definition of critical habitat but are exempt from 
designation under section 4(a)(3) of the Act (see ``Application of 
Section 4(a)(3) of the Act'' section above) or the Service is 
considering for possible exclusion under section 4(b)(2) of the Act 
from the final revised critical habitat rule.

   Table 3--Exemptions and Potential Exclusions From Proposed Revised
                  Critical Habitat for the Arroyo Toad
------------------------------------------------------------------------
                                               Acres         Hectares
------------------------------------------------------------------------
               Exemptions Under Section 4(a)(3) of the Act
------------------------------------------------------------------------
Military Lands:
    Fort Hunter Liggett Military                   6,453           2,612
     Reservation........................
    Marine Corps Base, Camp Pendleton...          13,010           5,265
    Fallbrook Naval Weapons Station.....             223              90
                                         -------------------------------
        Total...........................          19,686           7,967
------------------------------------------------------------------------
    Potential Exclusions Considered Under Section 4(b)(2) of the Act
------------------------------------------------------------------------
Habitat Conservation Plans:
    Western Riverside County Multiple              6,386           2,583
     Species Habitat Conservation Plan
     (MSHCP)............................
    City of San Diego and County of San            8,942           3,620
     Diego Subarea Plans under the San
     Diego Multiple Species Conservation
     Program (MSCP).....................
    Coachella Valley Multiple Species                538             218
     Habitat Conservation Plan
     (Coachella Valley MSHCP)...........
    Southern Orange Natural Community              4,407           1,784
     Conservation Plan/Master Streambed
     Alteration Agreement/Habitat
     Conservation Plan (Southern Orange
     HCP)...............................
    Orange County-Coastal Subregional              1,497             606
     Habitat Conservation Plan/Natural
     Community Conservation Plan (Orange
     County Central-Coastal NCCP/HCP )..
                                         -------------------------------
        Total...........................          21,770           8,811
------------------------------------------------------------------------
Tribal Lands:
    Rincon Band of Luise[ntilde]o                  1,155             467
     Mission Indians Tribal Lands.......
    Pala Band of Luise[ntilde]o Mission            2,385             963
     Indians............................
    Sycuan Band of the Kumeyaay Nation               391             158
     Tribal Lands.......................
    Capitan Grande Band of Diegueno                   92              37
     Mission Indians....................
    Mesa Grande Band of Diegueno Mission              23               9
     Indians............................
                                         -------------------------------
        Total...........................           4,046           1,634
------------------------------------------------------------------------
Values in table may not sum due to rounding.


[[Page 52644]]

Western Riverside County Multiple Species Habitat Conservation Plan 
(Western Riverside County MSHCP)
    The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional HCP encompassing about 1.26 million ac (510,000 ha) in 
western Riverside County (including lands within Units 9 and 13). The 
Western Riverside County MSHCP addresses 146 listed and unlisted 
``covered species,'' including the arroyo toad. Participants in the 
Western Riverside County MSHCP include 14 cities; the County of 
Riverside, including the Riverside County Flood Control and Water 
Conservation Agency (County Flood Control), Riverside County 
Transportation Commission, Riverside County Parks and Open Space 
District, and Riverside County Waste Department; California State 
Parks; and the California Department of Transportation. The Western 
Riverside County MSHCP was designed to establish a multi-species 
conservation program that minimizes and mitigates the expected loss of 
habitat and the incidental take of covered species. On June 22, 2004, 
the Service issued a single incidental take permit (Service 2004, p. 
140) under section 10(a)(1)(B) of the Act to 22 permittees under the 
Western Riverside County MSHCP for a period of 75 years. For the 
reasons discussed under the ``Application of Section 4(b)(2) of the 
Act'' section of this rule, if the Secretary decides to exercise his 
discretion under section 4(b)(2) of the Act, we are considering the 
possible exclusion of non-Federal lands that meet the definition of 
critical habitat within the Western Riverside County MSHCP from the 
final designation. Specifically, we are considering the exclusion of 
6,386 ac (2,583 ha) in Units 9 and 13.
    The Western Riverside County MSHCP will establish approximately 
153,000 ac (61,917 ha) of new conservation lands (Additional Reserve 
Lands) to complement the approximately 347,000 ac (140,426 ha) of pre-
existing natural and open space areas (Public/Quasi-Public lands). 
These Public/Quasi-Public lands include those under Federal ownership, 
primarily Forest Service and Bureau of Land Management lands, and also 
permittee-owned or controlled open-space areas (such as wildlife 
habitat within State and County parks). Collectively, the Additional 
Reserve Lands and Public/Quasi-Public lands form the overall Western 
Riverside County MSHCP Conservation Area. The configuration of the 
153,000 ac (61,916 ha) of Additional Reserve Lands is not mapped or 
precisely identified (``hard-lined'') in the Western Riverside County 
MSHCP, but rather is based on textual descriptions of the type of 
habitat conservation necessary to meet the conservation goals for all 
covered species within the bounds of the approximately 310,000-ac 
(125,453-ha) Criteria Area as implementation of the Western Riverside 
County MSHCP takes place. We internally mapped a ``Conceptual Reserve 
Design'' that illustrates existing Public/Quasi-Public lands and 
predicts the geographic distribution of the Additional Reserve Lands 
based on our interpretation of the textual descriptions of habitat 
conservation necessary to meet conservation goals.
    Specific conservation objectives in the Western Riverside County 
MSHCP for the arroyo toad include conserving 9,695 ac (3,914 ha) of 
occupied habitat or suitable habitat for the species in the Western 
Riverside County MSHCP Conservation Area (Service 2004, p. 163). This 
acreage goal can be attained through acquisition or other dedications 
of land assembled from within the Criteria Area (the Additional Reserve 
Lands) and through coordinated management of existing Public/Quasi-
Public lands. (See paragraph below for discussion of amount of habitat 
expected to be conserved on Additional Reserve Lands.) Preservation and 
management of arroyo toad habitat under the Western Riverside County 
MSHCP will contribute to the conservation and ultimate recovery of this 
species. The arroyo toad is threatened primarily by: Alterations of 
stream hydrology and geomorphology; development; agriculture, including 
livestock grazing; recreational activities; and nonnative species 
(Service 2004, pp. 156-158). The Western Riverside County MSHCP removes 
or reduces threats to this species and its PCEs by placing large blocks 
of occupied and unoccupied habitat into preservation throughout the 
Conservation Area. Areas identified for preservation and conservation 
include nine of the known occurrences along portions of San Juan Creek, 
Los Alamos Creek, San Jacinto River, Indian Creek, Bautista Creek, 
Wilson Creek, Temecula Creek, Arroyo Seco, and Vail Lake. The Western 
Riverside County MSHCP will maintain ecological processes within the 
MSHCP Conservation Area given existing constraints and activities 
covered under the MSHCP along portions of San Juan Creek, San Jacinto 
River, Indian Creek, Bautista Creek, Wilson Creek, Temecula Creek, 
Arroyo Seco, and Vail Lake. Additionally, the Western Riverside County 
MSHCP requires surveys for the arroyo toad as part of the project 
review process for public and private projects where suitable habitat 
is present within defined survey areas (see Amphibian Species Survey 
Area Map, Figure 6-3 of the Western Riverside County MSHCP, Volume I in 
Dudek and Associates, Inc. 2003). For locations with positive survey 
results, 90 percent of those portions of the property that provide 
long-term conservation value for the species will be avoided until it 
is demonstrated that the conservation objectives for the species are 
met (see Additional Survey Needs and Procedures, Western Riverside 
County MSHCP, Volume 1, section 6.3.2 in Dudek and Associates, Inc. 
2003). Once the species-specific objectives are met, avoided areas 
would be evaluated to determine whether they should be released for 
development or included in the MSHCP Conservation Area.
    The survey requirements, avoidance and minimization measures, and 
management for the arroyo toad--(and its PCEs) provided for in the 
Western Riverside County MSHCP are expected to benefit this species on 
public and private lands covered by the plan. We are considering the 
exclusion of approximately 6,386 ac (2,583 ha) of private lands in 
Units 9 and 13 within the Western Riverside County MSHCP Plan Area from 
the final revised critical habitat designation under section 4(b)(2) of 
the Act. Projects in the areas proposed as critical habitat that occur 
on these lands are subject to approval by Western Riverside County 
MSHCP permittees, therefore the conservation requirements of the MSHCP 
would apply. At this time, approximately 43 ac (38 ha) within Units 9 
and 13 have been acquired for conservation under the Western Riverside 
County MSHCP. Our Conceptual Reserve Design indicates that another 68 
percent (4,359 ac (1,764 ha)) of the lands in Units 9 and 13 that we 
are considering for exclusion will likely be acquired for conservation 
as Additional Reserve Lands. Of the remaining 31 percent of lands in 
Units 9 and 13 that we are considering for exclusion, 1,814 ac (728 
ha), or 91 percent, of these lands are within the Western Riverside 
County MSHCP survey area for the arroyo toad and are subject to the 
Additional Survey Needs and Procedures Policy described above.
    The Western Riverside County MSHCP incorporates processes that 
allow for Service oversight and participation in program 
implementation. These processes include: (1) Consultation with the 
Service on a long-term management and monitoring plan; (2) submission 
of

[[Page 52645]]

annual monitoring reports; (3) annual status meetings with the Service; 
and (4) submission of annual implementation reports to the Service 
(Service 2004, pp. 18-23).
    In summary, we are considering exclusion of 6,386 ac (2,583 ha) of 
arroyo toad habitat on private lands in Units 9 and 13 that meet the 
definition of critical habitat for arroyo toad within the Western 
Riverside County MSHCP under section 4(b)(2) of the Act. The 1994 final 
listing rule for arroyo toad identified the following primary threats 
to the arroyo toad: habitat degradation, predation, and small 
population size (59 FR 64866). The implementation of the Western 
Riverside County MSHCP helps to address these threats through a 
regional planning effort, and outlines species-specific objectives and 
criteria for the conservation of the arroyo toad. We will analyze the 
benefits of inclusion and exclusion of this area from proposed revised 
critical habitat under section 4(b)(2) of the Act. We encourage any 
public comment in relation to our consideration of the areas in Units 9 
and 13 for inclusion or exclusion (see Public Comments section above).
San Diego Multiple Species Conservation Plan (MSCP-City and County of 
San Diego's Subarea Plans
    The MSCP is a framework HCP that has been in place for more than a 
decade. The plan area encompasses approximately 582,243 ac (235,626 ha) 
(County of San Diego 1997, p. 1-1; City of San Diego 1998, pp. 2-1, and 
4-2 to 4-4) and provides for conservation of 85 federally listed and 
sensitive species (``covered species'') through the establishment and 
management of approximately 171,920 ac (69,574 ha) of preserve lands 
within the Multi-Habitat Planning Area (City of San Diego) and Pre-
Approved Mitigation Areas (County of San Diego). The MSCP was developed 
in support of applications for incidental take permits for several 
federally listed species by 12 participating jurisdictions and many 
other stakeholders in southwestern San Diego County. Under the umbrella 
of the MSCP, each of the 12 participating jurisdictions is required to 
prepare a subarea plan that implements the goals of the MSCP within 
that particular jurisdiction. Separate Subarea Plans for the County of 
San Diego and the City of San Diego have been completed and include 
evaluations of the arroyo toad. For the reasons discussed under the 
``Application of Section 4(b)(2) of the Act'' section of this rule, if 
the Secretary decides to exercise his discretion under section 4(b)(2) 
of the Act, we are considering the possible exclusion of lands that 
meet the definition of critical habitat within the City of San Diego 
Subarea Plan and County of San Diego Subarea Plan. Specifically, we are 
considering the exclusion of 8,942 ac (3,620 ha) in Subunits 16a, 17b, 
17d, 18a, 18c, and 19b.
    Upon completion of preserve assembly, approximately 171,920 ac 
(69,574 ha) of the 582,243-ac (235,626-ha) MSCP plan area will be 
preserved (City of San Diego 1998, pp. 2-1, and 4-2 to 4-4). The City 
of San Diego's preserve is delineated by mapped preserve boundaries 
referred to as ``hardline'' boundaries (the Multi-Habitat Planning 
Area). The County of San Diego has both ``hardline'' boundaries as well 
as preserve areas that do not have ``hardline'' boundaries. In areas 
where the ``hardlines'' are not defined, the County's subarea plan 
identifies areas where mitigation activities should be focused to 
assemble its preserve areas (the Pre-Approved Mitigation Areas). Those 
areas of the MSCP preserve that are already conserved, as well as those 
areas that are designated for inclusion in the preserve under the plan, 
are referred to as the ``preserve area'' in this proposed revised 
critical habitat designation. When the preserve is completed, the 
public sector (Federal, State, and local government, and the general 
public) will have contributed 108,750 ac (44,010 ha) (63.3 percent) to 
the preserve, of which 81,750 ac (33,083 ha) (48 percent) was existing 
public land when the MSCP was established and 27,000 ac (10,927 ha) (16 
percent) will have been acquired. At completion, the private sector 
will have contributed 63,170 ac (25,564 ha) (37 percent) to the 
preserve as part of the development process, either through avoidance 
of impacts or as compensatory mitigation for impacts to biological 
resources outside the preserve. Federal and State governments, local 
jurisdictions and special districts, and managers of privately owned 
lands currently and in the future will manage and monitor their lands 
in the preserve for species and habitat protection (City of San Diego 
1998, pp. 2-1, and 4-2 to 4-4).
    Private lands within the Multi-Habitat Planning Area and Pre-
Approved Mitigation Areas are subject to special restrictions on 
development, and lands that are dedicated to the preserve must be 
legally protected and permanently managed to conserve the covered 
species. Public lands owned by the City, County, State of California, 
and the Federal Government that are identified for conservation under 
the MSCP must also be protected and permanently managed to protect the 
covered species.
    Numerous processes are incorporated into the MSCP that allow our 
oversight of the MSCP implementation. For example, the MSCP imposes 
annual reporting requirements and provides for our review and approval 
of proposed subarea plan amendments and preserve boundary adjustments 
and for Service review and comment on projects during the California 
Environmental Quality Act review process. We also chair the MSCP 
Habitat Management Technical Committee and the Monitoring Subcommittee 
(City of San Diego 1998, pp. 5-11 to 5-23). Each MSCP subarea plan must 
account annually for the progress it is making in assembling 
conservation areas. We must receive annual reports that include, both 
by project and cumulatively, the habitat acreage destroyed and 
conserved within the subareas. This accounting process ensures that 
habitat conservation proceeds in rough proportion to habitat loss and 
in compliance with the MSCP subarea plans and the plans' associated 
implementing agreements.
    The subarea plans under the MSCP contain requirements to monitor 
and adaptively manage arroyo toad habitat and provide for the 
conservation of this species' PCEs. The framework and area-specific 
management plans are comprehensive and address a broad range of 
management needs at the preserve and species levels that are intended 
to reduce the threats to covered species and thereby contribute to the 
recovery of the species. These plans include the following: (1) Fire 
management, which includes deferring to the California Department of 
Forestry and Fire Protection for management activities; (2) public 
access control; (3) fencing and gates; (4) ranger patrol; (5) trail 
maintenance; (6) visitor, interpretive, and volunteer services; (7) 
hydrological management; (8) signage and lighting; (9) trash and litter 
removal; (10) access road maintenance; (11) enforcement of property or 
homeowner requirements; (12) removal of invasive species; (13) 
nonnative predator control; (14) species monitoring; (15) habitat 
restoration; (16) management for diverse age classes of covered 
species; (17) use of herbicides and rodenticides; (18) biological 
surveys; (19) research; and (20) species management conditions (City of 
San Diego 1998, pp. 6-7).
    Specific conservation objectives for the arroyo toad in the subarea 
plans under the MSCP include preservation of all known (breeding) 
locations of this species and minimization of impacts to uplands areas 
within the MSCP planning area. Additionally, impacts to

[[Page 52646]]

the species will be minimized within the preserve through required 
implementation of area-specific management directives, which must 
address maintenance of arroyo toad populations through control of 
nonnative predators, protection and maintenance of sufficient suitable 
low-gradient sandy stream habitat (including appropriate water quality) 
to meet breeding requirements, and preservation of sheltering and 
foraging habitat within 0.62 mi (1 km) of breeding habitat that 
supports or is likely to support the arroyo toad (City of San Diego 
1997, p. 142; Service 1997, pp. 80, 102).
    At this time, 10 years into the implementation of the City and 
County of San Diego's subarea plans, approximately 1,622 ac (656 ha), 
or 19 percent, of lands that we are considering for exclusion have been 
conserved. An additional 2,891 ac (1,170 ha), or 34 percent, are 
targeted for conservation in accordance with the subarea plans inside 
the Pre-Approved Mitigation Areas and Multi-Habitat Planning Area. 
Similarly, although some areas placed in conservation are not yet fully 
managed, such management will occur over time as the subarea plans 
continue to be implemented.
    In summary, we are considering exclusion of 8,942 ac (3,620 ha) of 
arroyo toad habitat on non-Federal lands in Subunits 16a, 17b, 17d, 
18a, 18c, and 19b that meet the definition of critical habitat for 
arroyo toad within the City of San Diego's Subarea Plan and the County 
of San Diego's Subarea Plan under section 4(b)(2) of the Act, of which 
19 percent (1,593 ac (644 ha)) have been conserved. The 1994 final 
listing rule for arroyo toad identified the following primary threats 
to the arroyo toad: habitat degradation, predation, and small 
population size (59 FR 64866). The implementation of both subarea plans 
helps to address these threats through a regional planning effort 
rather than through a project-by-project approach, and outlines 
species-specific objectives and criteria for the conservation of the 
arroyo toad. We will analyze the benefits of inclusion and exclusion of 
the areas within the jurisdictions of each subarea plan from critical 
habitat under section 4(b)(2) of the Act. We encourage any public 
comment in relation to our consideration of the areas in Subunits 16a, 
17d, 18a, 18c, and 19b for inclusion or exclusion (see Public Comments 
section above).
Coachella Valley Multiple Species Habitat Conservation Plan (Coachella 
Valley MSHCP)
    The Coachella Valley MSHCP is a large-scale, multi-jurisdictional 
habitat conservation plan encompassing about 1.1 million ac (445,156 
ha) in the Coachella Valley of Riverside County (including lands within 
Unit 23). An additional 69,000 ac (27,923) of Indian Reservation lands 
are not included in the Coachella Valley MSHCP, but are within the plan 
area boundary. The Coachella Valley MSHCP addresses 27 listed and 
unlisted ``covered species,'' including arroyo toad. Participants in 
the Coachella Valley MSHCP include eight cities (Cathedral City, 
Coachella, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, 
and Rancho Mirage); the County of Riverside, including the Riverside 
County Flood Control and Water Conservation District, Riverside County 
Parks and Open Space District, Riverside County Waste Management 
District; the Coachella Valley Association of Governments; Coachella 
Valley Water District; Imperial Irrigation District; California 
Department of Transportation; California State Parks; Coachella Valley 
Mountains Conservancy; and the Coachella Valley Conservation Commission 
(the created joint powers regional authority). The Coachella Valley 
MSHCP was designed to establish a multiple species habitat conservation 
program that minimizes and mitigates the expected loss of habitat and 
the incidental take of covered species. On October 1, 2008, the Service 
issued a single incidental take permit (TE-104604-0) under section 
10(a)(1)(B) of the Act to 19 permittees under the Coachella Valley 
MSHCP for a period of 75 years. For the reasons discussed under the 
``Application of Section 4(b)(2) of the Act'' section of this rule, if 
the Secretary decides to exercise his discretion under section 4(b)(2) 
of the Act, we are considering the possible exclusion of lands that 
meet the definition of critical habitat within the Coachella Valley 
MSHCP. Specifically, we are considering the exclusion of 538 ac (218 
ha) in Unit 23.
    The Coachella Valley MSHCP will establish an approximately 721,457-
ac (291,964-ha) Reserve System comprised of 557,100 ac (225,451 ha) of 
Existing Conservation Lands, up to 29,990 ac (12,137 ha) of 
Complementary Conservation, and up to 8,777 ac (3,552 ha) of Public and 
Quasi-Public lands. The permittees will mitigate for the impacts of the 
take on covered species by conserving 96,400 ac (39,012 ha) (7,500 ac 
(3,035 ha) of existing local permittee lands and 88,900 ac (35,977 ha) 
of new conservation) of habitat and perpetually managing 125,590 ac 
(50,825 ha) within the Reserve System. The location and configuration 
of the 88,900 ac (35,977 ha) of new local permittee mitigation lands 
and the 21,390 ac (8,656 ha) that will be acquired through State and 
Federal contributions are not precisely mapped, but will be assembled 
from the 21 conservation areas identified in the Coachella Valley 
MSHCP. Within each conservation area, 90 percent of each natural 
community within each jurisdiction will be conserved and no more than 
10 percent of the habitat will be lost. In general, the design of the 
overall Reserve System was intended to capture core habitats, 
ecological processes, and biological corridors and linkages. The 
permittees' collection and use of development mitigation fees, landfill 
tipping fees, and other funding specified in the Coachella Valley MSHCP 
and related documents will be used to acquire, protect, and manage the 
Reserve System in perpetuity. The permittees, the State, and Service 
will work cooperatively to enter into a Memorandum of Understanding or 
other appropriate agreements with Federal, State, and non-governmental 
organization land managers to cooperatively manage the Existing 
Conservation Lands in conformance with the MSHCP. In addition, the 
Coachella Valley MSHCP includes measures to avoid and minimize impacts 
on covered species resulting from covered activities.
    The Coachella Valley MSHCP plan area includes about 2,095 ac (846 
ha) of suitable arroyo toad habitat (Dudek and CVAG 2007, pp. 9-88) of 
which approximately 1,301 ac (526 ha) contain the physical and 
biological features essential to the conservation of the species. Of 
suitable habitat, 2,082 ac (841 ha) are identified in the Coachella 
Valley MSHCP as ``Core Habitat'' for the species. Core Habitat is 
defined as areas of habitat that: (1) Are of sufficient size to support 
a self-sustaining population for the species; (2) are not fragmented in 
a way to cause separation into isolated populations; (3) have 
functional essential ecological processes; and (4) have effective 
biological corridors or linkages to other habitats, where feasible, to 
allow gene flow among populations (Dudek and CVAG 2007, p. xxxi). 
Specific conservation goals, conservation objectives, and required 
measures for the arroyo toad in the Coachella Valley MSHCP include 
protection of 2,007 ac (810 ha) of arroyo toad habitat comprised of 
2,004 ac (809

[[Page 52647]]

ha) (96 percent) of Core Habitat along with 3 ac (1 ha) of Other 
Conserved Habitat (land that is permanently protected and managed for 
the benefit of the species) (Dudek and CVAG 2007, pp. xxxi, 9-88). Of 
the habitat identified for protection in the Reserve System, 
approximately 1,301 ac (525 ha) are on Bureau of Land Management lands 
(Existing Conservation Lands) and are anticipated to be managed pending 
a Memorandum of Understanding with the Bureau of Land Management 
(Service 2008, p. 176). The remaining 706 ac (285 ha) will be acquired 
from willing sellers on private lands (Dudek and CVAG 2007, pp. 9-87). 
We are considering for exclusion approximately 538 ac (218 ha) of non-
Federal lands that meet the definition of critical habitat for the 
arroyo toad within the Coachella Valley MSHCP. Of these lands, 
approximately 483 ac (195 ha), or 90 percent, are within Core Habitat 
areas.
    The Coachella Valley MSHCP Reserve System will protect and manage 
Core Habitat areas for the arroyo toad in perpetuity. The Coachella 
Valley MSHCP provides for management and monitoring programs to ensure 
the conservation of this species, including control of activities that 
adversely impact water quality and the hydrological regime, disturbance 
from recreational activity in sensitive areas, control of invasive 
species where necessary, and restoration and enhancement of degraded 
habitat as necessary (Dudek and CVAG 2007, pp. 9-89). Additionally, the 
Coachella Valley MSHCP includes an educational program for residents 
and visitors in Whitewater Canyon to inform them about the arroyo toad 
and its conservation needs (Dudek and CVAG 2007, pp. 9-89).
    At this time, approximately 481 ac (195 ha), or 89 percent, of 
lands that we are considering for exclusion have been acquired for 
conservation under the Coachella Valley MSHCP. In addition, 45 ac (18 
ha) that meet the definition of critical habitat are not identified as 
either Core or Other Conserved Habitat by the Coachella Valley MSHCP, 
but fall within Conservation Areas under the Coachella Valley MSHCP. We 
anticipate that 41 ac (17 ha), or 90 percent, of these lands will be 
conserved under the Coachella Valley MSHCP.
    In summary, we are considering exclusion of 538 ac (218 ha) of 
arroyo toad habitat on non-Federal lands in Unit 23 that meets the 
definition of critical habitat for arroyo toad within the Coachella 
Valley MSHCP under section 4(b)(2) of the Act, of which 89 percent (481 
ac (195 ha)) have been conserved. The 1994 final listing rule for 
arroyo toad identified the following primary threats to the arroyo 
toad: habitat degradation, predation, and small population size (59 FR 
64866). The implementation of the Coachella Valley MSHCP helps to 
address these threats through a regional planning effort, and outlines 
species-specific objectives and criteria for the conservation of the 
arroyo toad. We will analyze the benefits of inclusion and exclusion of 
this area from critical habitat under section 4(b)(2) of the Act. We 
encourage any public comment in relation to our consideration of the 
areas in Unit 23 for inclusion or exclusion (see Public Comments 
section above).
Orange County Central-Coastal Subregional Habitat Conservation Plan/
Natural Community Conservation Plan (Orange County Central-Coastal 
NCCP/HCP)
    The Orange County Central-Coastal NCCP/HCP in central Orange County 
(Unit 8) was developed in cooperation with numerous local and State 
jurisdictions and agencies, and participating landowners, including the 
cities of Anaheim, Costa Mesa, Irvine, Orange, and San Juan Capistrano; 
Southern California Edison; Transportation Corridor Agencies; The 
Irvine Company; California Department of Parks and Recreation; 
Metropolitan Water District of Southern California; and Orange County. 
Approved in 1996, the Orange County Central-Coastal NCCP/HCP provides 
for the establishment of approximately 38,738 ac (15,677 ha) of reserve 
lands for 39 covered species within the 208,713-ac (84,463-ha) planning 
area. We issued an incidental take permit under section 10(a)(1)(B) of 
the Act that provides conditional incidental take authorization for the 
arroyo toad for all areas within the Orange County Central-Coastal 
Subregion, except the North Ranch Policy Plan Area. This take 
authorization only applies to smaller arroyo toad populations, 
reintroduced populations, or populations that have expanded due to 
NCCP/HCP reserve management. It also requires implementation of a 
mitigation plan to relocate toads to protected areas within reserves, 
when necessary. For the reasons discussed under the ``Application of 
Section 4(b)(2) of the Act'' section of this rule, we are considering 
the possible exclusion of lands that meet the definition of critical 
habitat within the Orange County Central-Coastal NCCP/HCP. 
Specifically, we are considering the exclusion of 1,497 ac (606 ha) in 
Unit 8.
    The North Ranch Policy Plan Area was excluded from take 
authorization provided under the Orange County Central-Coastal NCCP/HCP 
due to a lack of detailed biological information and specific 
conservation commitments at the time of adoption of the NCCP/HCP. We 
have since determined that arroyo toad habitat within the North Ranch 
Policy Plan Area meets the definition of critical habitat for the 
arroyo toad in that it has the features essential to the conservation 
of the species and because it helps support a viable Santa Ana Mountain 
arroyo toad population. In 2002, the owner, The Irvine Company, granted 
a conservation easement to The Nature Conservancy over a portion of the 
North Ranch Policy Plan Area and has taken steps to conserve this area, 
including a $10 million management endowment. Approximately 761 ac (308 
ha), or 51 percent, of lands that we are considering for exclusion fall 
within the conservation easement.
    The Orange County Central-Coastal NCCP/HCP's reserve system 
includes approximately 592 ac (240 ha), or 40 percent, of lands that we 
are considering for exclusion. The Orange County Central-Coastal NCCP/
HCP provides for monitoring of covered species, including the arroyo 
toad, and adaptive management for covered species and their habitat 
within this reserve system. Adaptive management activities may include 
a program to control nonnative predators, such as bullfrogs, clawed 
frogs, and nonnative fishes. To date, monitoring related to arroyo toad 
has consisted of reserve-wide herpetofauna surveys conducted from 1997 
through 2001 and management activities with potential to benefit arroyo 
toad, which include ongoing control of invasive nonnative vegetation in 
the upland environment throughout the reserve system.
    The Orange County Central-Coastal NCCP/HCP requires the 
implementation of a mitigation plan if a planned activity results in 
take of arroyo toads. The mitigation plan will: (1) Address design 
modifications and other on-site measures that are consistent with the 
project's purposes, minimize impacts, and provide appropriate 
protections for the arroyo toad; (2) provide for arroyo toad relocation 
to a location acceptable to the Service and California Department of 
Fish and Game, coupled with compensatory habitat management/enhancement 
activities at the relocation site; and (3) provide for monitoring and 
adaptive management of arroyo toads and their habitat.
    In summary, we are considering exclusion of 1,497 ac (606 ha) of 
arroyo

[[Page 52648]]

toad habitat on permittee-owned or controlled lands in Unit 8 that 
meets the definition of critical habitat for arroyo toad within the 
Orange County Central-Coastal Subregional NCCP/HCP under section 
4(b)(2) of the Act. Approximately 51 percent (761 ac (308 ha)) of these 
lands are conserved within the North Ranch Policy Plan Area and another 
40 percent (592 ac (240 ha)) are conserved within this NCCP/HCP's 
reserve system. The 1994 final listing rule for arroyo toad identified 
the following primary threats to the arroyo toad: habitat degradation, 
predation, and small population size (59 FR 64866). The implementation 
of the Orange County Central-Coastal Subregional NCCP/HCP helps to 
address these threats through a regional planning effort, and outlines 
species-specific objectives and criteria for the conservation of the 
arroyo toad. We will analyze the benefits of inclusion and exclusion of 
this area from critical habitat under section 4(b)(2) of the Act. We 
encourage any public comment in relation to our consideration of the 
areas in Unit 8 for inclusion or exclusion (see Public Comments section 
above).
Southern Orange County Natural Community Conservation Plan/Master 
Streambed Alteration Agreement/Habitat Conservation Plan (Southern 
Orange HCP)
    The Southern Orange HCP is a large-scale multi-jurisdictional HCP 
encompassing approximately 86,021 ac (34,811 ha) in southern Orange 
County (including lands within Subunit 10a and Subunit 11a). The 
Southern Orange HCP was developed by the County of Orange (County), 
Rancho Mission Viejo, and the Santa Margarita Water District (Water 
District) to address impacts to 32 species, including the arroyo toad, 
resulting from residential and associated infrastructure development. 
On January 10, 2007, the Service issued incidental take permits 
(Service 2007, p. 431) under section 10(a)(1)(B) of the Act to the 
three permittees for a period of 75 years. For the reasons discussed 
under the ``Application of Section 4(b)(2) of the Act'' section of this 
rule, we are considering the possible exclusion of lands that meet the 
definition of critical habitat within the Southern Orange HCP. 
Specifically, we are considering the exclusion of 4,407 ac (1,784 ha) 
in Subunit 10a and Subunit 11a.
    The Southern Orange HCP will establish approximately 30,426 ac 
(12,313 ha) of habitat reserve (Service 2007, p. 19). The HCP provides 
for a large, biologically diverse and permanent habitat reserve that 
will protect: (1) Large blocks of natural vegetation communities that 
provide habitat for the covered species; (2) ``important'' and 
``major'' populations of the covered species in key locations; (3) 
wildlife corridors and habitat linkages that connect the large habitat 
blocks and covered species populations to each other, the Cleveland 
National Forest, and the adjacent Orange County Central-Coastal NCCP/
HCP; and (4) the underlying hydrogeomorphic processes that support the 
major vegetation communities providing habitat for the covered species 
(Service 2007, p. 10).
    Habitat for the arroyo toad was modeled during the Southern Orange 
HCP process. Specific conservation goals in the Southern Orange HCP for 
the arroyo toad include the conservation and management of 1,322 ac 
(534 ha) of HCP-modeled habitat within Rancho Mission Viejo (Service 
2007, p. 59), of which approximately 1,208 ac (489 ha), or 28 percent, 
meet the definition of critical habitat. An additional 2,297 ac (943 
ha), or 52 percent, of lands that we are considering for exclusion fall 
outside of the HCP-modeled habitat, but entirely within Southern Orange 
HCP's habitat reserve. Thus, Southern Orange HCP's habitat reserve 
encompasses 3,505 ac (1415 ha), or 80 percent, of lands that we are 
considering for exclusion. While not all habitat in the reserve will be 
conserved, the habitat reserve will contain habitat to support all of 
the known populations in Rancho Mission Viejo and County lands, 
including San Juan Creek, Talega Canyon, Bell Canyon, and Lower 
Cristianitos Creek/Lower Gabino Canyon (Service 2007, p. 62). Following 
implementation of the HCP, all of the known populations will be 
conserved as follows:
    (1) Almost all of the documented breeding habitat will be 
conserved;
    (2) Only a small portion (a maximum of 28 of 650 ac (11 of 263 ha), 
or 4 percent) of HCP-modeled habitat for arroyo toad in the San Mateo 
Creek watershed (Subunit 11a) will be impacted. The conservation and 
management of all breeding habitat and remaining upland habitat is 
anticipated to maintain the populations in Talega Creek and lower 
Cristianitos Creek/lower Gabino Canyon;
    (3) Implementation of the HCP will impact a substantial portion 
(402 of 1,074 ac (163 of 435 ha), or 37 percent) of HCP-modeled upland 
habitat for arroyo toad along San Juan Creek (Subunit 10a) on Rancho 
Mission Viejo. However, the conservation and management of breeding 
habitat and remaining upland habitat in San Juan Creek combined with 
the already-conserved habitat in Bell Canyon (Subunit 10a) on County 
land and restoration of 24 ac (10 ha) of breeding habitat in upper San 
Juan Creek on County land is anticipated to maintain the population 
along San Juan Creek; and
    (4) The population in Bell Canyon and the portion of the population 
in upper San Juan Creek (Subunit 10a) are already conserved on County 
land and will be cooperatively managed by the County (Service 2007, p. 
67).
    In addition to the creation of a habitat reserve, the following 
conservation measures specified in the Southern Orange HCP will 
contribute to the protection and management of arroyo toad habitat:
    (1) Potential impacts to arroyo toads associated with construction 
activities on Rancho Mission Viejo will be avoided and minimized 
through preparation of Biological Resources Construction Plans in 
coordination with the Service;
    (2) Potential impacts to arroyo toad habitat from grazing 
activities will be addressed through implementation of the Grazing 
Management Plan, which includes the management of grazing activities 
and restoration of upland habitat with native grasses and coastal sage 
scrub;
    (3) Implementation of the Invasive Species Control Plan on Rancho 
Mission Viejo will result in removal of nonnative plant species that 
degrade aquatic habitats and removal of aquatic predators of the arroyo 
toad;
    (4) Through Water Quality Management Plans, flow duration (which 
influences channel morphology) and water quality will be maintained 
such that hydrologic conditions of concern such as erosion or 
sedimentation or pollutants of concern will be addressed; and
    (5) A detailed monitoring program for the arroyo toad that includes 
monitoring conducted both at a species-specific level and also at a 
habitat-landscape level will be developed in coordination with the 
Service (Service 2007, pp. 62-64).
    In summary, we are considering exclusion of 4,407 ac (1,784 ha) of 
arroyo toad habitat on permittee-owned or controlled lands in Subunit 
10a and Subunit 11a that meets the definition of critical habitat for 
arroyo toad within the Southern Orange HCP under section 4(b)(2) of the 
Act. Although not all lands proposed as critical habitat that are 
targeted for preservation and management within the Southern Orange HCP 
have been officially dedicated to the preserve system, we believe that 
all conservation anticipated under the Southern Orange HCP will

[[Page 52649]]

occur. The 1994 final listing rule for arroyo toad identified the 
following primary threats to the arroyo toad: habitat degradation, 
predation, and small population size (59 FR 64866). The implementation 
of the Southern Orange HCP helps to address these threats through a 
regional planning effort, and outlines species-specific objectives and 
criteria for the conservation of the arroyo toad. We will analyze the 
benefits of inclusion and exclusion of this area from critical habitat 
under section 4(b)(2) of the Act. We encourage any public comment in 
relation to our consideration of the areas in Subunit 10a and Subunit 
11a for inclusion or exclusion (see Public Comments section above).

Tribal Lands--Exclusions Under Section 4(b)(2) of the Act

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and 
the relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2), we believe that fish, wildlife, and other 
natural resources on tribal lands are better managed under tribal 
authorities, policies, and programs than through Federal regulation 
wherever possible and practicable. Based on this philosophy, we believe 
that, in most cases, designation of tribal lands as critical habitat 
provides very little additional benefit to threatened and endangered 
species. Conversely, such designation is often viewed by tribes as 
unwarranted and an unwanted intrusion into tribal self-governance, thus 
compromising the government-to-government relationship essential to 
achieving our mutual goals of managing for healthy ecosystems upon 
which the viability of threatened and endangered species populations 
depend. We will take into consideration our partnerships and existing 
conservation actions that tribes have or are currently implementing 
when conducting our exclusion analysis in the final revised critical 
habitat designation. We will also take into consideration conservation 
actions that are planned (such as a Memorandum of Understanding 
addressing arroyo toad conservation that is under development between 
the Service, Bureau of Indian Affairs, and affected tribes (as 
discussed in detail below)) as part of our on-going commitment to the 
government-to-government relationship with tribes. If the Secretary 
decides to exercise his discretion under section 4(b)(2) of the Act, we 
are considering lands covered by the tribes identified below for 
possible exclusion from final critical habitat.
Considered Exclusion for Several Tribal Lands
    We are considering the exclusion of 4,046 ac (1,636 ha) of arroyo 
toad habitat proposed in Units 14, 16, 17, and 18 under section 4(b)(2) 
of the Act. These areas overlap with tribal lands that are owned or 
managed by the following tribes: (1) Rincon Band of Luise[ntilde]o 
Mission Indians; (2) Pala Band of Luise[ntilde]o Mission Indians; (3) 
Sycuan Band of the Kumeyaay Nation; (4) the Mesa Grande Band of 
Diegueno Mission Indians; and (5) the Barona Group of Capitan Grande 
Band of Mission Indians and the Viejas (Baron Long) Group of Capitan 
Grande Band of Mission Indians, which jointly manage the Capitan Grande 
Band of Diegueno Mission Indians Reservation (Capitan Grande 
Reservation). Conservation afforded (or currently being developed) for 
the arroyo toad and its habitat on each of these tribe's lands is 
addressed in the following paragraphs.
    The Rincon Band of Luise[ntilde]o Mission Indians of the Rincon 
Reservation (Rincon Band of Luise[ntilde]o Mission Indians) encompasses 
approximately 4,026 ac (1,625 ha) in northern San Diego County (Unit 
14), which includes approximately 910 ac (368 ha) of arroyo toad 
habitat proposed as critical habitat. Additionally, a total of 245 ac 
(99 ha) of off-reservation lands (such as fee-owned) are owned or 
managed by the Tribe and contain arroyo toad habitat proposed as 
critical habitat. The Rincon Band of Luise[ntilde]o Mission Indians 
developed a management plan for the arroyo toad in 2005 that provides 
guidelines for the protection and management of arroyo toad habitat 
within a 97-ac (39-ha) Habitat Management Plan area, which is within 
the area proposed as critical habitat. Specific tasks that will be 
implemented include: (1) Removal and monitoring of nonnative species 
within the plan area that pose a threat to the arroyo toad; (2) removal 
and monthly monitoring of trash and debris within the plan area; (3) 
maintenance and monitoring of oil and grease traps at the edge of 
facility parking lots; (4) assessment and monthly monitoring of 
vehicle, livestock, and other incursions (such as trespassing) into the 
plan area; (5) reporting of unauthorized activities within the plan 
area to the Service; (6) development of an arroyo toad education 
program; and (7) placement of signs at regular intervals along the plan 
area boundary.
    The Pala Band of Luise[ntilde]o Mission Indians of the Pala 
Reservation (Pala Band of Luise[ntilde]o Mission Indians) encompasses 
approximately 12,429 ac (5,018 ha) in northern San Diego County (Unit 
14), which includes approximately 1,662 ac (673 ha) of arroyo toad 
habitat proposed as critical habitat. Additionally, a total of 723 ac 
(293 ha) of off-reservation lands (such as fee-owned) are owned or 
managed by the Tribe and contain arroyo toad habitat proposed as 
critical habitat. The Reservation is located in the Middle San Luis Rey 
River basin approximately 6 miles (9.7 km) east of Interstate 15 on 
California Highway 76. The town of Pala is located along California 
Highway 76 in approximately the center of the Reservation. The 
Reservation was established for the Cupeno and Luise[ntilde]o Indians, 
who considered themselves to be one ``people''--Pala. The Pala Band of 
Luise[ntilde]o Mission Indians developed a Master Plan in 2005 that is 
currently being implemented to guide management and land use on the 
Reservation. Additionally, the Tribe has developed a management plan to 
address resource management and conservation of the arroyo toad, which 
outlines the following conservation goals to benefit the species: (1) 
Maintenance of designated open space and waterways for the arroyo toad 
along Pala Creek and the San Luis Rey River; (2) encouraging allottees 
(owners of individual allotments within reservation lands) to locate 
new construction away from inland allotment areas; (3) replacing the 
Lilac Extension vehicle crossing of the San Luis Rey River with a 
bridge; (4) reducing off-highway vehicle activity by establishing a 
designated area for these activities outside of arroyo toad habitat; 
(5) purchasing adjacent property known to be occupied by arroyo toads 
and placing occupied areas in reserve; (6) discouraging development of 
six allotments within the San Luis Rey River; and (7) removal of 
nonnative species within arroyo toad habitat corridors.
    The Sycuan Band of the Kumeyaay Nation own reservation lands that 
encompass approximately 806 ac (325 ha) in southern San Diego County 
(Unit 18), which includes approximately 22 ac (9 ha) of arroyo toad 
habitat proposed as critical habitat. Additionally, a total of 369 ac 
(149 ha) of off-reservation lands (such as fee-owned) are owned or 
managed by the Tribe and contain arroyo toad habitat proposed as 
critical habitat. The Sycuan Band of the

[[Page 52650]]

Kumeyaay Nation has two land management plans in place relevant to 
their reservation that provide direct and indirect benefits to the 
arroyo toad and its habitat on the reservation: an Interim Land Use 
Master Plan that was adopted by the Sycuan General Council on January 
10, 2002 (BRG 2002), and the Sycuan Tribal Environmental Plan that was 
approved by the Tribal Council in June 2003 (Sycuan 2003). The Land Use 
Master Plan provides recommended land use planning for the reservation 
and additional surrounding properties that are to be brought into 
Trust, and is based on preservation of sensitive environmental and 
tribal resources (BRG 2002, p. 1). The Sycuan Tribal Environmental Plan 
includes policies, procedures, and guidance that are in compliance with 
the Tribal Environmental Policy Act (Sycuan 2003, p. 1). The Sycuan 
Tribal Environmental Plan outlines procedures for environmental 
planning, project implementation, and operations that minimize adverse 
considerations where potential negative impacts to human health and the 
environment could occur. Additionally, the Sycuan Tribal Environmental 
Plan promotes environmental protection through responsible management 
practices that will benefit conservation of threatened and endangered 
species, including the arroyo toad and its habitat. Conservation 
measures are organized into the following three categories that are 
outlined in more detail within the ``Sycuan Conservation Strategy and 
Conservation Measures Plan'' (Conservation Plan) portion of the Sycuan 
Tribal Environmental Plan: (1) Conservation area site selection, 
design, and management; (2) land cover type conservation measures; and 
(3) species-specific conservation measures (which protect and restore 
populations and habitat of each covered species) (Sycuan 2003, p. 5). 
The overall Conservation Plan includes the following types of 
conservation measures for arroyo toad and other covered species: (1) 
Protection of existing habitat for compliance and species recovery; (2) 
enhancement of existing habitat; (3) restoration to create new habitat; 
(4) management of habitat to maintain and preserve ecological 
functions; avoidance and minimization of direct impacts on individuals 
and habitat of covered species; (5) population enhancement measures 
that directly or indirectly increase abundance of covered species; and 
(6) research necessary to improve conservation measure effectiveness 
(Sycuan 2003, pp. 5-6).
    The Mesa Grande Reservation, which is owned and managed by the Mesa 
Grande Band of Diegueno Mission Indians, is situated in the hills above 
Sutherland Reservoir near the mountain community of Santa Ysabel, which 
is approximately 35 miles northeast of San Diego, San Diego County. The 
Reservation encompasses approximately 1,818 ac (734 ha) of land in Unit 
16, which includes approximately 23 ac (9 ha) of arroyo toad habitat 
proposed as critical habitat. Although an arroyo toad management plan 
currently does not exist for the Mesa Grande Reservation, the Service, 
Bureau of Indian Affairs, and Tribe are currently coordinating to 
discuss management of the arroyo toad and its habitat on the 
Reservation.
    The Capitan Grande Reservation lands fall within the Capitan Grande 
Canyon where the San Diego River once ran, which is approximately 35 
miles (56 km) east of San Diego, San Diego County. The Reservation 
encompasses approximately 15,619 ac (6,306 ha) of land in Unit 17, 
which includes approximately 92 ac (37 ha) of arroyo toad habitat 
proposed as critical habitat. Following an 1875 Presidential Executive 
Order, a number of small reservations (including the Capitan Grande 
Reservation) was formed. It was from this reservation that the 
following two tribes were formed: Barona Group of Capitan Grande Band 
of Mission Indians of the Barona Reservation, and the Viejas (Baron 
Long) Group of Capitan Grande Band of Mission Indians of the Viejas 
Reservation. Both the Barona Group of Capitan Grande Band of Mission 
Indians and the Viejas Group of Capitan Grande Band of Mission Indians 
jointly manage the Capitan Grande Reservation. Although an arroyo toad 
management plan currently does not exist for the Capitan Grande 
Reservation, the Service, Bureau of Indian Affairs, and both Tribes are 
currently coordinating to discuss management of the arroyo toad and its 
habitat on the Reservation.
    In summary, we are considering exclusion of the following lands 
under section 4(b)(2) of the Act: 1,155 ac (467 ha) in Unit 14 within 
the Rincon Band of Luise[ntilde]o Mission Indians Reservation and other 
associated tribal lands owned/managed by the Rincon Band of 
Luise[ntilde]o Mission Indians; 2,385 ac (963 ha) in Unit 14 within the 
Pala Band of Luise[ntilde]o Mission Indians Reservation and other 
associated tribal lands owned/managed by the Pala Band of 
Luise[ntilde]o Mission Indians; 391 ac (158 ha) in Unit 18 within the 
Sycuan Band of the Kumeyaay Nation's Reservation and other associated 
tribal lands owned/managed by the Sycuan Band of the Kumeyaay Nation; 
92 ac (37 ha) in Unit 17 within the Capitan Grande Reservation; and 23 
ac (9 ha) in Unit 16 within the Mesa Grande Reservation. We are seeking 
public comment on whether the conservation needs of the arroyo toad can 
be achieved by limiting the designation to non-Tribal lands and the 
appropriateness of the inclusion or exclusion of these lands from the 
final revised critical habitat designation (see Public Comments 
section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will be obtaining the expert 
opinions of at least three appropriate independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will invite these peer reviewers to 
comment during this public comment period on our specific assumptions 
and conclusions in this proposed revised designation of critical 
habitat.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, our final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if we receive any requests for hearings. We must 
receive your request for a public hearing within 45 days after the date 
of this Federal Register publication. Send your request to the 
addresses listed in FOR FURTHER INFORMATION CONTACT. We will schedule 
public hearings on this proposal, if any are requested, and announce 
the dates, times, and places of those hearings, as well as how to 
obtain reasonable accommodations, in the Federal Register and local 
newspapers at least 15 days before the first hearing.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) determines whether this 
rule is significant under Executive Order (E.O.) 12866. OMB bases its 
determination upon the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.

[[Page 52651]]

    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities.
    An analysis of the economic impacts of the 2004 proposed critical 
habitat designation was made available to the public on February 14, 
2005 (70 FR 7459), and finalized in the final rule to designate 
critical habitat published in the Federal Register on April 13, 2005 
(70 FR 19562). In our economic analysis of that designation (70 FR 
19562, p. 19613), we evaluated small business entities in three 
categories: Land development, fruit and nut farms, and cattle ranching. 
On the basis of our analysis we determined that the designation of 
critical habitat for the arroyo toad would result in: (1) An annual 
impact of less than one percent (17 projects and therefore businesses, 
assuming one project per business) of land development small businesses 
and that those businesses could realize an impact of approximately 20 
percent of total annual sales; (2) an annual impact to less than one 
percent (one farm) of small fruit and nut farms and that that farm 
would realize an impact of less than three percent of total annual 
sales; (3) an annual impact of less than one percent of cattle ranches 
(one ranch) and that the ranch would realize an impact of less than 
approximately $100,000 of total annual sales; (4) an annual impact of 
less than one percent of small viticulture firms (one firm) and that 
the firm would realize an impact of less than approximately five 
percent of total annual sales; and (5) an annual impact of less than 
one percent of small governments as a percent of the county total and 
small governments would realize an impact of less than one percent of 
annual government budget. Based on these data, the impacts on small 
business, small governments, and small nonprofits were expected to be 
negligible (Economic & Planning, Inc. 2005, pp. A-5--A-18). However, 
the economic analysis prepared for the 2005 critical habitat 
designation does not accurately reflect the full range of potential 
economic impacts that may result from this proposed revision to arroyo 
toad critical habitat.
    We will prepare a new economic analysis for this proposed revised 
critical habitat designation for the arroyo toad. At this time, we lack 
current economic information necessary to provide an updated factual 
basis for the required RFA finding with regard to this proposed 
revision to critical habitat. Therefore, we defer the RFA finding until 
completion of the draft economic analysis prepared under section 
4(b)(2) of the Act and E.O. 12866. The draft economic analysis will 
provide the required factual basis for the RFA finding. Upon completion 
of the draft economic analysis, we will announce its availability in 
the Federal Register and reopen the public comment period for the 
proposed revised designation. We will include with this announcement, 
as appropriate, an initial regulatory flexibility analysis or a 
certification that the rule will not have a significant economic impact 
on a substantial number of small entities accompanied by the factual 
basis for that determination. We have concluded that deferring the RFA 
finding until completion of the draft economic analysis is necessary to 
meet the purposes and requirements of the RFA. Deferring the RFA 
finding in this manner will ensure that we make a sufficiently informed 
determination based on adequate economic information and provide the 
necessary opportunity for public comment.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    1. This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal governments'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply, nor would critical 
habitat shift the costs of the large entitlement programs listed above 
onto State governments.
    2. Based in part on an analysis conducted for the previous 
designation of critical habitat and extrapolated to

[[Page 52652]]

this designation, we do not expect this rule to significantly or 
uniquely affect small governments. Small governments will be affected 
only to the extent that any programs having Federal funds, permits, or 
other authorized activities must ensure that their actions will not 
adversely affect the critical habitat. Therefore, a Small Government 
Agency Plan is not required. However, as we conduct our economic 
analysis for the revised rule, we will further evaluate this issue and 
revise this assessment if appropriate.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating revised critical habitat for the arroyo toad in a takings 
implications assessment. The takings implications assessment concludes 
that this designation of revised critical habitat for the arroyo toad 
does not pose significant takings implications for lands within or 
affected by the revised designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), the proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed revised critical habitat designation with 
appropriate State resource agencies in California. The designation may 
have some benefit to these governments because the areas that contain 
the features essential to the conservation of the species are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist these local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), it 
has been determined that the rule does not unduly burden the judicial 
system and meets the requirements of sections 3(a) and 3(b)(2) of the 
Order. We have proposed to revise critical habitat in accordance with 
the provisions of the Act. This proposed rule uses standard property 
descriptions and identifies the primary constituent elements within the 
designated areas to assist the public in understanding the habitat 
needs of the arroyo toad.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995. This 
rule will not impose recordkeeping or reporting requirements on State 
or local governments, individuals, businesses, or organizations. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the Circuit 
Court of Appeals of the United States for the Tenth Circuit, we do not 
need to prepare environmental analyses as defined by NEPA (42 U.S.C. 
4321 et seq.) in connection with designating critical habitat under the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244). This 
position was upheld by the Circuit Court of Appeals of the United 
States for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Clarity of the Rule

    We are required by E.O. 12866, E.O. 12988, and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    1. Be logically organized;
    2. Use the active voice to address readers directly;
    3. Use clear language rather than jargon;
    4. Be divided into short sections and sentences; and
    5. Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We are currently coordinating with affected Tribes regarding this 
proposed revised critical habitat designation, and have included Tribal 
lands in this revised proposal. We are requesting public comment on the 
appropriateness of including or excluding these lands in the final 
revised critical habitat rule. We will continue to coordinate with the 
Tribal governments during the designation process.

Energy Supply, Distribution, or Use--Executive Order 13211

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. Based on an analysis 
conducted for the previous designation of critical habitat and 
extrapolated to this designation, along with a further analysis of the 
additional areas included in this revision, we have determined that 
this proposed rule to revise critical habitat for the arroyo toad is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required. However, we will further

[[Page 52653]]

evaluate this issue as we conduct our economic analysis, and review and 
revise this assessment as warranted.

References Cited

    A complete list of all references cited in this rulemaking is 
available on http://www.regulations.gov and upon request from the Field 
Supervisor, Ventura Fish and Wildlife Office, or the Field Supervisor, 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Author(s)

    The primary authors of this notice are staff from the Ventura Fish 
and Wildlife Office and the Carlsbad Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

    2. In Sec.  17.11(h), revise the entry for ``Toad, arroyo (= arroyo 
southwestern)'' under ``Amphibians'' in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                       Vertebrate
----------------------------------------------------------                          population where                        When     Critical   Special
                                                               Historic range         endangered or          Status        listed    habitat     rules
            Common name                Scientific name                                 threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
            Amphibians
 
                                                                      * * * * * * *
Toad, arroyo (= arroyo              Anaxyrus californicus  U.S.A. (CA), Mexico..  Entire..............  E                      568   17.95(d)         NA
 southwestern.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.95(d), revise the entry for ``Arroyo Toad (Bufo 
californicus)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
    Arroyo Toad (Anaxyrus californicus)
    (1) Critical habitat units are depicted for Los Angeles, Orange, 
Riverside, San Bernardino, San Diego, Santa Barbara, and Ventura 
Counties, California, on the maps below.
    (2) Within these areas, the primary constituent elements for the 
arroyo toad consist of four components:
    (i) Rivers or streams with hydrologic regimes that supply water to 
provide space, food, and cover needed to sustain eggs, tadpoles, 
metamorphosing juveniles, and adult breeding toads. Breeding pools must 
persist a minimum of 2 months for the completion of larval development. 
However, due to the dynamic nature of southern California riparian 
systems and flood regimes, the location of suitable breeding pools may 
vary from year to year. Specifically, the conditions necessary to allow 
for successful reproduction of arroyo toads are:
    (A) Breeding pools with areas less than 12 in (30 cm) deep;
    (B) Areas of flowing water with current velocities less than 1.3 ft 
per second (40 cm per second); and
    (C) Surface water that lasts for a minimum of 2 months during the 
breeding season (i.e., a sufficient wet period in the spring months to 
allow arroyo toad larvae to hatch, mature, and metamorphose).
    (ii) Riparian and adjacent upland habitats, particularly low-
gradient (typically less than 6 percent) stream segments and alluvial 
streamside terraces with sandy or fine gravel substrates that support 
the formation of shallow pools and sparsely vegetated sand and gravel 
bars for breeding and rearing of tadpoles and juveniles; and adjacent 
valley bottomlands that include areas of loose soil where toads can 
burrow underground, to provide foraging and living areas for juvenile 
and adult arroyo toads.
    (iii) A natural flooding regime, or one sufficiently corresponding 
to natural, characterized by intermittent or near perennial flow that 
contributes to the persistence of shallow pools into at least mid-
summer, and that maintains areas of open, sparsely vegetated, sandy 
stream channels and terraces by periodically scouring riparian 
vegetation; and also that modifies stream channels and terraces and 
redistributes sand and sediment, such that breeding pools and terrace 
habitats with scattered vegetation are maintained.
    (iv) Stream channels and adjacent upland habitats that allow for 
movement to breeding pools, foraging areas, overwintering sites, 
upstream and downstream dispersal, and recolonization of areas that 
contain suitable habitat.
    (3) Critical habitat does not include manmade structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS 7.5' quadrangles using USDA National 
Agricultural Imagery Program (NAIP) county-wide MrSID compressed 
mosaics of 1 meter resolution and natural color aerial photography from 
summer 2005. Critical habitat units were then mapped using Universal 
Transverse Mercator (UTM) zone 10, North American Datum (NAD) 1983 
coordinates.
    (5) Note: Index map 1 of Units of Critical Habitat for Arroyo Toad 
(Anaxyrus californicus) follows:
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[[Page 52654]]

[GRAPHIC] [TIFF OMITTED] TP13OC09.000


[[Page 52655]]


    (6) Note: Index map 2 of Units of Critical Habitat for Arroyo Toad 
(Anaxyrus californicus) follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.001


[[Page 52656]]


    (7) Units 2 and 3, Santa Barbara County, California.
    (i) [Reserved for textual description of units.]
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Units 2 and 3, Santa Barbara County, California, 
follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.002


[[Page 52657]]


    (8) Units 4 and 5, Ventura and Los Angeles Counties, California.
    (i) [Reserved for textual description of units.]
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Units 4 and 5, Ventura and Los Angeles Counties, 
California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.003


[[Page 52658]]


    (9) Unit 6, Los Angeles County, California.
    (i) [Reserved for textual description of units.]
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Unit 6, Los Angeles County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.004


[[Page 52659]]


    (10) Units 7 and 21, Los Angeles County, California.
    (i) [Reserved for textual description of units.]
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Units 7 and 21, Los Angeles County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.005


[[Page 52660]]


    (11) Units 8, 10, and 11, Orange, Riverside, and San Diego 
Counties, California.
    (i) [Reserved for textual description of units.]
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Units 8, 10, and 11, Orange, Riverside, and San Diego 
Counties, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.006


[[Page 52661]]


    (12) Units 9 and 23, Riverside County, California.
    (i) [Reserved for textual description of units.]
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Units 9 and 23, Riverside County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.007


[[Page 52662]]


    (13) Units 12, 13, 14, 15, 16, and 17, Riverside and San Diego 
Counties, California.
    (i) [Reserved for textual description of units.]
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Units 12, 13, 14, 15, 16, and 17, Riverside and San 
Diego Counties, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.008


[[Page 52663]]


    (14) Units 18 and 19, San Diego County, California.
    (i) [Reserved for textual description of units.]
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Units 18 and 19, San Diego County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.009


[[Page 52664]]


    (15) Units 20 and 22, San Diego County, California.
    (i) [Reserved for textual description of units.]
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Units 20 and 22, San Diego County, California, follows:
[GRAPHIC] [TIFF OMITTED] TP13OC09.010

* * * * *

    Dated: September 28, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-24076 Filed 10-9-09; 8:45 am]
BILLING CODE 4310-55-C