[Federal Register Volume 75, Number 124 (Tuesday, June 29, 2010)]
[Proposed Rules]
[Pages 37358-37370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15399]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0069]
[92210-0-0009-B4]
RIN 1018-AV89


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Arroyo Toad

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on our October 13, 2009, proposed 
revised designation of critical habitat for the arroyo toad (Anaxyrus 
californicus) under the Endangered Species Act of 1973, as amended 
(Act). We also announce the availability of a draft economic analysis 
(DEA) of the proposed revised designation of critical habitat for the 
arroyo toad; revisions to proposed critical habitat; and an amended 
required determinations section of the proposal. We are reopening the 
comment period for an additional 30 days to allow all interested 
parties an opportunity to comment on the items listed above. If you 
submitted comments previously, you do not need to resubmit them because 
we have already incorporated them into the public record and will fully 
consider them in preparation of the final rule.

DATES: We will consider public comments we receive on or before July 
29, 2010. Comments must be received by 11:59 p.m. Eastern Time on the 
closing date. Any comments that we receive after the closing date may 
not be considered in the final decision on this action.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on 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: Diane K. Noda, Field Supervisor, 
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, 
CA 93003; telephone (805) 644-1766; facsimile (805) 644-3958. Persons 
who use a telecommunications device for the deaf (TDD) may call the 
Federal Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from the proposed rule 
will be based on the best scientific data available and will be 
accurate and as effective as possible. Therefore, we request comments 
or information from other concerned government agencies, the scientific 
community, industry, or any other interested party during this reopened 
comment period on the proposed revised designation of critical habitat 
for the arroyo toad published in the Federal Register on October 13, 
2009 (74 FR 52612), including the changes to and considerations 
regarding proposed revised critical habitat in Unit 15 and Subunits 6b, 
11b, 16a, 16d and 19a; the draft economic analysis (DEA) of the 
proposed revised designation of critical habitat for the arroyo toad; 
and the amended required determinations provided in this document. We 
will consider information and recommendations from all interested 
parties. We are particularly interested in comments concerning:
    (1) The reasons why we should or should not revise the designation 
of habitat as ``critical habitat'' under section 4 of the 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 the proposed revised rule,
     What areas within the geographical area occupied by the 
species at the time of listing that contain physical and biological 
features essential to the conservation of the species we should include 
in the designation and why, and

[[Page 37359]]

     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 for the arroyo toad.
    (4) Any foreseeable 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) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed critical habitat designation.
    (6) 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.
    (7) How the proposed revised critical habitat boundaries could be 
refined to more closely circumscribe the landscapes identified as 
essential.
    (8) 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.
    (9) 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.
    (10) 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.
    (11) 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.
    (12) 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.
    (13) 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.
    (14) 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.
    (15) 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 (Southern Orange HCP) from final revised 
critical habitat is or is not appropriate and why. Please note that a 
portion of Subunit 10b was not discussed under our section on the 
Southern Orange HCP in the October 13, 2009, proposed revised critical 
habitat rule. This area is covered by the Southern Orange HCP and we 
are considering the area in Subunit 10b for exclusion (see ``Habitat 
Conservation Plans--Exclusions Under Section 4(b)(2) of the Act'' 
section in the proposed revised critical habitat designation (74 FR 
52612)).
    (16) 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.
    (17) 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.
    (18) 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.
    (19) 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.
    (20) 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.
    (21) 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.
    (22) Whether the potential exclusion, under section 4(b)(2) of the 
Act, of Subunit 6b from final revised critical habitat is or is not 
appropriate and why.
    (23) Whether the potential exclusion, under section 4(b)(2) of the 
Act, of Department of Defense lands at the Remote Training Site Warner 
Springs and Camp Morena from final revised critical habitat is or is 
not appropriate and why.
    (24) Information on the potential effects of climate change on the 
arroyo toad and its habitat.
    (25) 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.
    (26) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to better accommodate public 
concerns and comments.
    (27) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes that likely may 
occur if we designate proposed revised critical habitat for the arroyo 
toad.
    (28) Information on the accuracy of our methodology in the DEA for 
distinguishing baseline and incremental costs, and the assumptions 
underlying the methodology.
    (29) Information on whether the DEA correctly assesses the effect 
on regional costs associated with any land use controls that may result 
from the proposed revised designation of critical habitat for the 
arroyo toad.
    (30) Information on whether the proposed revised designation of 
critical habitat will result in disproportionate economic impacts to 
specific areas or small businesses, including small businesses in the 
land development sector in San Diego County.
    (31) Information on whether the DEA identifies all costs that could 
result from the proposed revised designation of critical habitat for 
the arroyo toad.
    (32) Economic data on the incremental costs of designating a 
particular area as revised critical habitat.

[[Page 37360]]

    (33) 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.
    If you submitted comments or information on the proposed revised 
rule (74 FR 52612) during the initial comment period from October 13, 
2009, to December 14, 2009, please do not resubmit them. We will 
incorporate them into the public record as part of this comment period, 
and we will fully consider them in the preparation of our final 
determination. Our final determination concerning revised critical 
habitat will take into consideration all written comments and any 
additional information we receive during both comment periods. On the 
basis of public comments, we may, during the development of our final 
determination, find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the Act, or are not 
appropriate for exclusion.
    You may submit your comments and materials concerning our proposed 
rule, the revisions to and considerations regarding proposed critical 
habitat described in this document, the associated DEA, and our amended 
required determinations by one of the methods listed in the ADDRESSES 
section. We will not consider comments sent by e-mail or fax or to an 
address not listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment, including any personal identifying information, will be posted 
on the Web site. If you submit a hard copy comment that includes 
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 
hard copy comments on http://www.regulations.gov.
    Comments and materials we receive (and have received), as well as 
supporting documentation we used in preparing this notice, will be 
available for public inspection on http://www.regulations.gov [Docket 
Number FWS-R8-ES-2009-0069], 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 rule and DEA by mail from the 
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT), 
by visiting the Federal eRulemaking Portal at http://www.regulations.gov, or on our Web site at http://www.fws.gov/ventura.

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed revised designation of critical habitat for arroyo toad in 
this document. For more information on previous Federal actions 
concerning the arroyo toad, refer to the proposed revised designation 
of critical habitat published in the Federal Register on October 13, 
2009 (74 FR 52612). 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) (the nomenclature for 
the listed entity has changed to ``arroyo toad (Anaxyrus 
californicus),'' but this change does not alter the description or 
distribution of the animals), 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 websites at 
http://www.fws.gov/ventura and http://www.fws.gov/carlsbad. However, 
please note that the October 13, 2009 (74 FR 52612) proposed rule 
incorporates new information on the distribution of arroyo toads that 
became available since the 2005 final critical habitat designation for 
this species.
    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; thus, our 
October 13, 2009, proposed rule (74 FR 52612) and this document 
collectively propose 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.
    Section 3 of the Act defines critical habitat as 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 essential to the conservation of the species and 
that may require special management considerations or protection, and 
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. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting areas designated as critical habitat must consult with us on 
the effects of their proposed actions, under section 7(a)(2) of the 
Act.
    Under section 4(b)(2) of the Act, we may exclude an area from 
critical habitat if we determine that the benefits of such exclusion 
outweigh the benefits of including that particular area as critical 
habitat, unless failure to designate that specific area as critical 
habitat will result in the extinction of the species. We may exclude an 
area from designated critical habitat based on economic impacts, 
national security, or any other relevant impact, including but not 
limited to the value and contribution of continued, expanded, or newly 
forged conservation partnerships.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping areas 
containing essential features that aid in the recovery of the listed 
species; and any benefits that may result from designation due to State 
or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
the arroyo toad, the benefits of critical habitat include public 
awareness of arroyo toad presence and the importance of habitat 
protection, and, where a Federal nexus exists, increased habitat 
protection for arroyo toad due to protection from adverse modification 
or destruction of critical habitat. In practice, situations with a 
Federal nexus exist primarily on

[[Page 37361]]

Federal lands or for projects undertaken by Federal agencies.
    When we evaluate the benefits of excluding an area being managed 
under an existing conservation plan, we consider a variety of factors, 
including but not limited to whether the plan is finalized; how it 
provides for the conservation of the essential physical and biological 
features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After evaluating the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to determine whether the 
benefits of exclusion outweigh those of inclusion. If we determine that 
they do, we then determine whether the exclusion of the specific area 
would result in extinction of the species. If exclusion of an area from 
critical habitat will result in extinction, we cannot exclude it from 
the designation.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat. We prepared a DEA of our October 
13, 2009 (74 FR 52612), proposed revised designation of critical 
habitat for the arroyo toad.
    The intent of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revised designation of 
critical habitat for the arroyo toad. Additionally, the economic 
analysis looks retrospectively at costs incurred since the December 16, 
1994 (59 FR 64859), listing of the arroyo toad as an endangered 
species. The DEA quantifies the economic impacts of all potential 
conservation efforts for the arroyo toad; some of these costs will 
likely be incurred regardless of whether we designate revised critical 
habitat. The economic impact of the proposed revised designation of 
critical habitat for the arroyo toad is analyzed by comparing scenarios 
both ``with critical habitat'' and ``without critical habitat.'' The 
``without critical habitat'' scenario represents the baseline for the 
analysis, considering protections already in place for the species (for 
example, under the Federal listing and other Federal, State, and local 
regulations). The baseline, therefore, represents the costs incurred 
regardless of whether critical habitat is designated and may include 
costs incurred in the future. The ``with critical habitat'' scenario 
describes the incremental impacts associated specifically with the 
designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts are those not expected to 
occur absent the designation of critical habitat for the species. In 
other words, the incremental costs are those attributable solely to the 
designation of critical habitat above and beyond the baseline costs; 
these are the costs we may consider in the final designation of 
critical habitat. The analysis looks retrospectively at baseline 
impacts incurred since we listed the species, and forecasts both 
baseline and incremental impacts likely to occur if we finalize the 
proposed revised designation of critical habitat for the arroyo toad. 
For a further description of the methodology of the analysis, see 
Chapter 1, ``Approach to Estimating Economic Effects,'' of the DEA.
    The current DEA estimates the foreseeable economic impacts of the 
proposed revised designation of critical habitat for the arroyo toad by 
identifying the potential resulting incremental costs. The DEA 
describes economic impacts of arroyo toad conservation efforts 
associated with the following categories: (1) Real estate development; 
(2) changes in water supply; (3) grazing activities; (4) mining 
activities; (5) road construction projects; (6) utility and other 
infrastructure projects; (7) application of the California 
Environmental Quality Act (CEQA); and (8) uncertainty and delay.
    Baseline economic impacts are those impacts that result from 
listing and other conservation efforts for arroyo toad not attributable 
to designation of critical habitat and thus are expected to occur 
regardless of whether we designate critical habitat. Total future 
baseline impacts over the next 25 years (2010 to 2035) are estimated to 
be $385 million (approximately $33 million annualized) in present value 
terms using a 7 percent discount rate. Overall, the real estate 
industry (real estate development, CEQA, and delay impacts) is 
estimated to experience the highest cost, followed by water consumers 
and road construction projects. Of the 22 proposed critical habitat 
units, 3 are expected to incur more than $50 million each in total 
baseline economic costs between 2010 and 2035. Critical habitat Unit 16 
(Santa Ysabel Creek Basin) in San Diego County has the largest total 
baseline impacts ($74 million) of the units considered for designation.
    The DEA estimates total potential incremental economic impacts in 
areas proposed as revised critical habitat over the next 25 years (2010 
to 2035) to be $789 million ($68 million annualized) in present value 
terms using a 7 percent discount rate. Overall, the real estate 
industry (real estate development, CEQA, and delay impacts) is 
estimated to experience the highest cost, followed by utilities and 
infrastructure projects. Of the 22 proposed critical habitat units, 4 
are expected to incur incremental economic costs greater than $50 
million each between 2010 and 2035. Critical habitat Unit 16 (Santa 
Ysabel Creek Basin) in San Diego County has the largest incremental 
impacts ($211 million) of the units considered for designation.
    We are also including an additional 3,655 ac (1,479 ha) in the 
proposed revised critical habitat designation compared to the October 
13, 2009, proposed revised critical habitat designation, bringing the 
total to 112,765 ac (45,634 ha) of proposed revised critical habitat 
for the arroyo toad. The additional area has not been assessed in this 
DEA; however, an initial evaluation reveals that approximately 70 
percent of the additional area would be evaluated under the baseline 
scenario because it contains an overlapping 100-year flood plain or 
existing habitat conservation plan (HCP) boundary and is primarily 
publicly owned or otherwise undevelopable. The remaining 30 percent of 
the additional area is privately owned and does not contain an 
overlapping 100-year flood plain or existing HCP boundary, and survey 
data indicate this area is not within the 1500-meter (m) (4,921-foot 
(ft)) buffer surrounding known arroyo toad sites. The habitat areas 
most likely to involve a Federal nexus and section 7 consultation are 
within riparian areas, and we are using the 100-year flood plain 
and1500-m (4,921-ft) buffer surrounding known arroyo toad sites to 
identify those riparian areas. Therefore the inclusion of this area in 
the proposed revised critical habitat is not anticipated to 
substantially increase the incremental impacts or alter the ranking of 
critical habitat units (in terms of total economic impacts per unit). 
The final economic analysis will reflect the baseline and incremental 
economic impacts of the additional 3,655 ac (1,479 ha).
    The DEA considered both economic efficiency and distributional 
effects. In

[[Page 37362]]

the case of habitat conservation, efficiency effects generally reflect 
the ``opportunity costs'' associated with the commitment of resources 
to comply with habitat protection measures (e.g., lost economic 
opportunities associated with restrictions on land use). The DEA also 
addresses how potential economic impacts are likely to be distributed, 
including an assessment of any local or regional impacts of habitat 
conservation and the potential effects of conservation activities on 
government agencies, private businesses, and individuals. The DEA 
measures lost economic efficiency associated with real estate 
development, changes in water supply, grazing and mining activities, 
road construction projects, utility and other infrastructure projects, 
CEQA, uncertainty, and delay, and the effects of this lost economic 
efficiency on Federal lands, small entities, and the energy industry. 
We can use this information to assess whether the effects of the 
revised designation might unduly burden a particular group or economic 
sector.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as on all aspects of the proposed revised 
designation of critical habitat, our revisions to proposed critical 
habitat described in this document, and our amended required 
determinations. We may revise the proposed rule and/or the economic 
analysis to incorporate or address information we receive during this 
public comment period. In particular, we may exclude an area from 
critical habitat if we determine that the benefits of excluding the 
area outweigh the benefits of including the area as critical habitat, 
provided the exclusion will not result in the extinction of the 
species.

Changes to Proposed Revised Critical Habitat

    In this document, we are proposing further revisions to the 
proposed revised critical habitat in Unit 15 and Subunits 11b, 16a, and 
16d, as identified and described in the proposed rule that we published 
in the Federal Register on October 13, 2009 (74 FR 52612). We received 
new information in the form of survey reports, survey data, and public 
comments indicating that we should re-evaluate the proposed boundaries 
of these areas. The purpose of the revisions described below is to 
better delineate the areas that meet the definition of critical habitat 
for the arroyo toad and to ensure that all areas proposed are 
consistent with the criteria outlined in the proposed revised rule (see 
``Criteria Used To Identify Critical Habitat'' section in the proposed 
revised critical habitat designation (74 FR 52620 - 52622)). All areas 
added to the proposed units are within the geographical area occupied 
by the species at the time it was listed and contain the physical and 
biological features essential to the conservation of the species. 
Revised maps are included in the Proposed Regulation Promulgation 
section of this document. Below, we briefly describe the changes made 
for each of these units. As a result of these revisions, the overall 
area proposed for designation as critical habitat is 112,765 ac (45,634 
ha), an increase of 3,655 ac (1,479 ha) from 109,110 ac (44,155 ha) in 
the October 13, 2009, proposal (74 FR 52612).
    We are considering for exclusion all or part of Subunit 6b, and 
portions of Unit 15 and Subunit 19a from critical habitat under section 
4(b)(2) of the Act (see Additional Areas Currently Considered For 
Exclusion Under Section 4(b)(2) of the Act below).

Changes to Critical Habitat Unit Descriptions

Unit 11: San Mateo Creek Basin; Subunit 11b
    We received a comment from the U.S. Forest Service indicating that 
areas upstream of Subunit 11b along San Mateo Creek contain habitat 
suitable for arroyo toad. We reevaluated survey data in our files from 
1999 and 2004 along San Mateo Creek and within Los Alamos Canyon (Ervin 
2000, in litt.; ECORP 2004). We added an area to the upstream end of 
Subunit 11b because it contains the physical and biological features 
that are essential to the conservation of the species, including 
aquatic habitat for breeding and nonbreeding activities and upland 
habitat for foraging and dispersal activities. These additional areas 
may require the same special management considerations or protection 
discussed for this Unit in the October 2009 proposed rule. 
Additionally, adding occupied areas on stream reaches containing 
suitable breeding and upland habitat is consistent with our criteria 
used to identify critical habitat, as outlined in the proposed rule (74 
FR 52612). The northeastern expansion of the critical habitat 
designation boundary for Subunit 11b encompasses (1) approximately 8.3 
mi (13 km) upstream along San Mateo Creek to Los Alamos Canyon, and (2) 
approximately 2.4 mi (4 km) of Los Alamos Canyon upstream from the 
confluence with San Mateo Creek. The revised subunit consists of 844 ac 
(341 ha) of U.S. Forest Service land, an increase of 810 ac (327 ha) 
from 34 ac (14 ha) proposed in the October 13, 2009, proposed rule (74 
FR 52612). Unit 11 now totals 1,878 ac (758 ha)--an increase from 1,068 
ac (432 ha) in the October 13, 2009, proposed rule (74 FR 52612).
Unit 15: Upper San Luis Rey Basin
    We received new information in the form of a survey report 
indicating that areas upstream of Unit 15 along Ca[ntilde]ada Aguanga 
contain habitat occupied by arroyo toad (Tierra Data Inc. 2007, pp. 
112-113, 118-119, and 121). We added an area to the upstream end of 
this unit because it contains the physical and biological features that 
are essential to the conservation of the species, including aquatic 
habitat for breeding and nonbreeding activities and upland habitat for 
foraging and dispersal activities. These additional areas may require 
the same special management considerations or protection discussed for 
this Unit in the October 2009 proposed rule. Adding occupied areas on 
stream reaches containing suitable breeding and upland habitat is 
consistent with our criteria used to identify critical habitat, as 
outlined in the proposed revised rule (74 FR 52612). The northern 
expansion of the critical habitat designation boundary for Unit 15 
encompasses approximately 3.5 mi (6 km) along Ca[ntilde]ada Aguanga and 
extends to just below Lake Jean. The revised unit consists of 1,467 ac 
(594 ha) of U.S. Forest Service land and 11,511 ac (4,658 ha) of 
private land--an increase of 951 ac (385 ha) from what we proposed in 
the October 13, 2009, proposed rule (74 FR 52612). Unit 15 now totals 
12,977 ac (5,252 ha).
Unit 16: Santa Ysabel Creek Basin
    We received information from two sources that resulted in our re-
evaluation of Subunit 16a. First, we received survey data indicating 
that areas upstream of Subunit 16a along Santa Ysabel Creek contain 
habitat occupied by arroyo toad (Ramirez in litt. 2009). We added an 
area to the upstream end of this subunit because it contains the 
physical and biological features that are essential to the conservation 
of the species, including aquatic habitat for breeding and nonbreeding 
activities and upland habitat for foraging and dispersal activities. 
These additional areas may require the same special management 
considerations or protection discussed for this Unit in the October 
2009 proposed rule. Adding occupied areas on stream reaches containing 
suitable breeding and upland habitat is consistent with our criteria 
used to identify critical habitat, as outlined in the proposed revised 
rule (74 FR 52612). This northeastern expansion of the critical habitat 
designation boundary for

[[Page 37363]]

Subunit 16a encompasses approximately 1.3 mi (2.1 km) along Santa 
Ysabel Creek upstream from the confluence with Temescal Creek. Second, 
we received survey data indicating that areas downstream of Subunit 16a 
along Santa Ysabel Creek and portions of the San Dieguito River contain 
habitat occupied by arroyo toad (Haas in litt. 2009; U.S. Geological 
Survey (USGS) 2009, unpublished data). We added an area to the 
downstream end of this subunit because it contains the physical and 
biological features that are essential to the conservation of the 
species, including aquatic habitat for breeding and nonbreeding 
activities and upland habitat for foraging and dispersal activities. 
Adding occupied areas on stream reaches containing suitable breeding 
and upland habitat is consistent with our criteria used to identify 
critical habitat, as outlined in the proposed revised rule (74 FR 
52612). The southwestern expansion of the critical habitat designation 
boundary for Subunit 16a encompasses: (1) Approximately 3.7 mi (6 km) 
downstream along Santa Ysabel Creek to the confluence with the San 
Dieguito River; and (2) approximately 1 mi (2 km) of the San Dieguito 
River upstream from the confluence with Santa Ysabel Creek. The revised 
subunit consists of 184 ac (74 ha) of U.S. 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 13,452 ac (5,444 ha) of 
private land--an increase of 1,831 ac (741 ha) from 12,136 ac (4,911 
ha) proposed in the October 13, 2009, proposed rule (74 FR 52612). 
Subunit 16a now totals 13,967 ac (5,652 ha).
    We also received survey data indicating that areas downstream of 
Subunit 16d along Santa Ysabel Creek contain habitat occupied by arroyo 
toad (Haas 2009, in litt.; USGS 2009, unpublished data). We added an 
area to the downstream end of this subunit because it contains the 
physical and biological features that are essential to the conservation 
of the species, including aquatic habitat for breeding and nonbreeding 
activities and upland habitat for foraging and dispersal activities. 
These additional areas may require the same special management 
considerations or protection discussed for this Unit in the October 
2009 proposed rule. Adding occupied areas on stream reaches containing 
suitable breeding and upland habitat is consistent with our criteria 
used to identify critical habitat, as outlined in the proposed revised 
rule (74 FR 52612). The western expansion of the critical habitat 
designation boundary for Subunit 16d encompasses approximately 1.1 mi 
(2 km) downstream along Santa Ysabel Creek to Sutherland Reservoir. The 
revised subunit consists of 1,504 ac (609 ha) of private land and 23 ac 
(9 ha) of Tribal land--an increase of 96 ac (39 ha) from 1,431 ac (579 
ha) proposed in the October 13, 2009, proposed rule (74 FR 52612). 
Subunit 16d now totals 1,527 ac (618 ha).
    In summary, Unit 16 now totals 15,494 ac (6,270 ha)--an increase of 
1,927 ac (780 ha) from 13,567 ac (5,490 ha) in the October 13, 2009, 
proposed rule (74 FR 52612).

Additional Areas Currently Considered For Exclusion Under 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. 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 the October 13, 2009, proposed rule and new 
areas identified in this document) 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.
    We consider a number of factors, in addition to economic impacts, 
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. Additionally, 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 significant social 
impacts that might occur because of the designation.
    In our October 13, 2009, proposed revised critical habitat 
designation (74 FR 52612), we identified lands in Subunit 6b, Unit 15, 
and Subunit 19a as meeting the definition of critical habitat for the 
arroyo toad. Based on comments submitted during the initial public 
comment period from October 13, 2009, to December 14, 2009, we are 
considering the following areas for exclusion from critical habitat 
under section 4(b)(2) of the Act: All of Subunit 6b, the portion of 
Unit 15 within Remote Training Site Warner Springs, and the portion of 
Subunit 19a within Camp Morena.
Unit 6: Upper Santa Clara River Basin; Subunit 6b
    In the October 13, 2009, proposed revised critical habitat 
designation (74 FR 52612), we erroneously reported that Subunit 6b 
consists of 159 ac (65 ha) of Federal land and 1,995 ac (807 ha) of 
private land. In actuality, Subunit 6b consists entirely of private 
land owned by the Newhall Land and Farming Company (Newhall LFC). 
Newhall LFC developed the Natural River Management Plan (``NRMP'') 
(Valencia Company 1998) for the long-term conservation and management 
of the biological resources within their lands, including the arroyo 
toad and its habitat; the NRMP was approved by the U.S. Army Corps of 
Engineers and California Department of Fish and Game (CDFG) in 1998. 
The NRMP provides management measures designed to protect, restore, 
monitor, manage, and enhance habitat for multiple species, including 
the arroyo toad, that occur along the Santa Clara River (River), 
Castaic Creek, and San Francisquito Creek within Subunit 6b. Of 
particular importance to the conservation of the arroyo toad and its 
habitat within Subunit 6b was the inclusion in the NRMP of substantial 
conservation easements, which when fully implemented, will protect 
almost all of the arroyo toad's breeding habitat and riparian river 
corridor within Subunit 6b. At the present time, approximately 1,011 ac 
(409 ha) of conservation easements on Newhall LFC lands near the City 
of Santa Clarita in Los Angeles County within Subunit 6b have been

[[Page 37364]]

conveyed to the CDFG and additional easements totaling approximately 28 
ac (11 ha) are awaiting approval by CDFG. The conservation easements 
that have been conveyed to the California Department of Fish and Game 
over the Santa Clara River corridor, San Francisquito Creek, and 
Castaic Creek will ensure that habitat within the easements will remain 
in a natural condition in perpetuity. Use of the property covered by 
the easements is confined to the preservation and enhancement of native 
species and their habitats, including the arroyo toad and its habitat. 
These conservation easements provide greater protection of crucial 
arroyo toad breeding and foraging habitat in this area than could be 
gained through the designation of critical habitat. Additionally, we 
have already completed section 7 consultation on the effects of the 
NRMP on the arroyo toad and found that it would not jeopardize the 
continued existence of the species.
    Newhall LFC has committed to implement other protective measures 
for arroyo toad habitat in the NRMP, including: (1) The creation of new 
riverbed areas, including planting wetland mitigation sites; (2) 
revegetation of riparian areas; (3) removal of invasive plants such as 
arundo (Arundo donax) and tamarisk (Tamarix sp.); (4) protecting 
wetlands from urban runoff by establishing a revegetated upland buffer 
between developed areas and the River; (5) implementing a Drainage 
Quality Management Plan with Best Management Practices to ensure water 
quality within the River corridor; and (6) implementing the biological 
mitigation measures for the Newhall Ranch Specific Plan that include 
restricting pets and off-road vehicles from the area and restricting 
access to the River corridor by limiting hiking and biking to the River 
trail system.
    Based on the many conservation measures included in the NRMP that 
protect the arroyo toad and its habitat on Newhall Ranch lands in 
Subunit 6b, the conservation easement lands that have already been 
conveyed to CDFG and are planned in the future in this subunit, and 
because of the valuable conservation partnership we have developed over 
the years with Newhall Ranch, we are considering the entire Subunit 6b 
for exclusion under section 4(b)(2) of the Act.
Unit 15 and Subunit 19a
    In our October 13, 2009, proposed revised critical habitat 
designation (74 FR 52612), we identified lands in Unit 15 and Subunit 
19a as meeting the definition of critical habitat for the arroyo toad. 
Based on comments submitted by the U.S. Navy during the initial public 
comment period from October 13, 2009, to December 14, 2009, we are 
considering for exclusion the portion of Unit 15 within Remote Training 
Site Warner Springs and the portion of Subunit 19a within Camp Morena 
from critical habitat under section 4(b)(2) of the Act.

Remote Training Site Warner Springs

    The U.S. Navy conducts training activities within the Remote 
Training Site Warner Springs complex, which is comprised of 6,158 ac 
(2,486 ha) of lands owned by, and leased from, the Vista Irrigation 
District and the Cleveland National Forest. Additionally, the U.S. Navy 
is proposing to expand its training activities onto another 6,326 ac 
(2,554 ha) of lands owned by the Bureau of Land Management, Cleveland 
National Forest, and the Vista Irrigation District, expanding the total 
training area to approximately 12,484 ac (5,040 ha).
    The Remote Training Site Warner Springs serves as the principal 
venue for SERE (Survival, Evasion, Resistance, and Escape) training on 
the west coast. It also supports training activities for Naval Special 
Warfare, 1\st\ Marine Special Operations Battalion, Naval Construction 
Force Amphibious Construction Battalion One Seabees, 1\st\ Marine 
Expeditionary Force Training and Experimentation Group/Tactical 
Exercise Group, and other nonroutine training.
    The U.S. Navy is currently revising the 2002 Naval Base Coronado 
Integrated Natural Resources Management Plan (INRMP), which we received 
a draft of in September 2009, to address management of the arroyo toad 
and its habitat at the Remote Training Site Warner Springs. 
Additionally, the U.S. Navy is currently implementing measures to avoid 
or minimize impacts to the arroyo toad, as identified in a biological 
opinion we issued on October 30, 2009, on the proposed expansion and 
realignment of training areas at Remote Training Site Warner Springs 
(Service 2009). These measures include, but are not limited to: (1) 
Avoid and minimize impacts to the on-site population of the arroyo toad 
within an ``Arroyo Toad Management Area''; (2) permanently close two 
stream crossings on the San Luis Rey River; (3) educate personnel on 
how to avoid adverse impacts to the species; (4) prioritize nonnative, 
invasive plant species searches and spot treatment control efforts in 
riparian zones and areas of higher levels of training activity; and (5) 
conduct surveys for arroyo toads at least every 3 years to determine 
status and location.
    We received a public comment from the U.S. Navy expressing concern 
that designation of these lands would cause mission-critical activities 
to be delayed if they were required to conduct consultation due to a 
critical habitat designation. Mission-critical activities not 
previously analyzed that would likely be delayed by section 7 
consultation and that directly affect national security include 
training activities and supporting facility construction. Delays in 
construction and training schedules could disrupt the ability to 
acquire and perform unique, tactical, special warfare skills required 
for personnel readiness. We will consider several factors, including 
impacts to national security associated with a critical habitat 
designation as described by the U.S. Navy, existing consultations, and 
conservation measures in place at this facility that benefit the arroyo 
toad. Of the 12,977 ac (5,252 ha) in Unit 15 proposed as critical 
habitat, 4,609 ac (1,865 ha) are part of the existing and proposed 
Remote Training Site Warner Springs that we are considering for 
exclusion under section 4(b)(2) of the Act.

Camp Morena

    Camp Morena is a small parcel of approximately 71 ac (29 ha) used 
by the U.S. Navy under a year-to-year license with the City of San 
Diego that serves as a support facility for the nearby Camp Michael 
Monsoor (formerly called La Posta Mountain Warfare Training Facility). 
In support of Camp Michael Monsoor, the U.S. Navy requires significant 
base operations and logistical support at Camp Morena, including 
administration activities, classrooms, conference rooms, mission 
planning capabilities, and berthing space. Future planned use of Camp 
Morena includes increased training functions with more frequent 
training and possible construction of new facilities.
    The U.S. Navy is currently revising the 2002 Naval Base Coronado 
INRMP, which will address management of the arroyo toad and its habitat 
at Camp Morena.
    We received a public comment from the U.S. Navy expressing concern 
that designation of these lands would cause mission-critical activities 
to be delayed if they were required to conduct consultation due to a 
critical habitat designation. The U.S. Navy asserted that delays in 
construction and training schedules could disrupt the ability to 
acquire and perform unique, tactical, special warfare skills required 
for

[[Page 37365]]

personnel readiness. We will consider several factors, including 
impacts to national security associated with a critical habitat 
designation as described by the U.S. Navy, existing consultations, and 
conservation measures in place at this facility that benefit the arroyo 
toad. Of the 5,847 ac (2,366 ha) in Subunit 19a proposed as critical 
habitat, 31 ac (13 ha) are part of Camp Morena that are we considering 
for exclusion under section 4(b)(2) of the Act.
    The following table presents all of the areas we are considering 
for exclusion under section 4(b)(2) of the Act from the revised 
critical habitat designation:

------------------------------------------------------------------------
                                                 Area Considered for
               Unit/Subunit                   Exclusion  Under Section
                                                 4(b)(2) of the Act
------------------------------------------------------------------------
Subunit 6b. [Upper Santa Clara River        1,995 ac (807 ha)
 Basin]
------------------------------------------------------------------------
                     Western Riverside County MSHCP
------------------------------------------------------------------------
Unit 9. [San Jacinto River Basin]           1,153 ac (466 ha)
------------------------------------------------------------------------
Unit 13. [Upper Santa Margarita River       5,233 ac (2,117 ha)
 Basin]
------------------------------------------------------------------------
        Subtotal Western Riverside County   6,386 ac (2,583 ha)
         MSHCP
------------------------------------------------------------------------
              City of San Diego Subarea Plan under the MSCP
------------------------------------------------------------------------
Subunit 16a. [Santa Ysabel Creek Basin]     4,486 ac (1,815 ha)
------------------------------------------------------------------------
Subunit 17d. [San Diego River Basin/San     106 ac (43 ha)
 Vicente Creek]
------------------------------------------------------------------------
Subunit 19b. [Cottonwood Creek Basin]       858 ac (347 ha)
------------------------------------------------------------------------
        Subtotal County of San Diego        5,450 ac (2,205 ha)
         Subarea Plan under the MSCP
------------------------------------------------------------------------
             County of San Diego Subarea Plan under the MSCP
------------------------------------------------------------------------
Subunit 16a. [Santa Ysabel Creek Basin]     1,081 ac (437 ha)
------------------------------------------------------------------------
Subunit 17b. [San Diego River Basin/San     1,070 ac (433 ha)
 Vicente Creek]
------------------------------------------------------------------------
Subunit 17d. [San Diego River Basin/San     825 ac (334 ha)
 Vicente Creek]
------------------------------------------------------------------------
Subunit 18a. [Sweetwater River Basin]       545 ac (221 ha)
------------------------------------------------------------------------
Subunit 19b. [Cottonwood Creek Basin]       368 ac (149 ha)
------------------------------------------------------------------------
        Subtotal for County of San Diego    3,889 ac (1,574 ha)
         Subarea Plan under the MSCP
------------------------------------------------------------------------
                 Orange County Central-Coastal NCCP/HCP
------------------------------------------------------------------------
Unit 8. [Lower Santa Ana River Basin]       647 ac (262 ha)
------------------------------------------------------------------------
        Subtotal for Orange County Central- 647 ac (262 ha)
         Coastal NCCP/HCP
------------------------------------------------------------------------
                  Orange County Southern Subregion HCP
------------------------------------------------------------------------
Subunit 10a. [San Juan Creek Basin]         3,405 ac (1,378 ha)
------------------------------------------------------------------------
Subunit 10b. [San Juan Creek Basin]         509 ac (206 ha)
------------------------------------------------------------------------
Subunit 11a. [San Mateo Creek Basin]        1,002 ac (405 ha)
------------------------------------------------------------------------
        Subtotal for Orange County          4,916 ac (1,989 ha)
         Southern Subregion HCP
------------------------------------------------------------------------
                              Tribal Lands
------------------------------------------------------------------------
Unit 14. [Lower and Middle San Luis Rey     2,572 ac (1,041 ha)
 Basin], Rincon Reservation, Pala
 Reservation
------------------------------------------------------------------------
Subunit 16. [Santa Ysabel Creek Basin],     23 ac (9 ha)
 Mesa Grande Reservation
------------------------------------------------------------------------
Subunit 17. [San Diego River Basin/San      92 ac (37 ha)
 Vicente Creek], Capitan Grande
 Reservation
------------------------------------------------------------------------
Subunit 18. [Sweetwater River Basin],       22 ac (9 ha)
 Sycuan Reservation
------------------------------------------------------------------------
        Subtotal for Tribes                 2,709 ac (1,096 ha)
------------------------------------------------------------------------
                             Military Lands
------------------------------------------------------------------------
Unit 15. [Upper San Luis Rey River Basin],  4,609 ac (1,865 ha)
 Remote Training Site Warner Springs
------------------------------------------------------------------------
Subunit 19a. [Cottonwood Creek Basin],      31 ac (13 ha)
 Camp Morena
------------------------------------------------------------------------

[[Page 37366]]

 
        Subtotal for Military Lands         4,640 ac (1,878 ha)
------------------------------------------------------------------------
                  Total                     30,632 ac (12,396 ha)*
------------------------------------------------------------------------
* Values in this table may not sum due to rounding.

Required Determinations---Amended

    In our proposed rule dated October 13, 2009 (74 FR 52612), we 
indicated that we would defer our determination of compliance with 
several statues and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the DEA. We have now 
made use of the DEA to make these determinations. In this document, we 
affirm the information in our proposed rule concerning Executive Order 
(E.O.) 12866 (Regulatory Planning and Review), E.O. 13132 (Federalism), 
E.O. 12988 (Civil Justice Reform), the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on the DEA data, we are 
amending our required determinations concerning the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy, Supply, 
Distribution, and Use), E.O. 12630 (Takings), and the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.).

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

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. Based on our DEA of the proposed 
revised designation, we provide our analysis for determining whether 
the proposed rule would result in a significant economic impact on a 
substantial number of small entities. Based on comments we receive, we 
may revise this determination as part of a final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the proposed revised designation of critical 
habitat for arroyo toad would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as residential and 
commercial development. In order to determine whether it is appropriate 
for our agency to certify that this rule would not have a significant 
economic impact on a substantial number of small entities, we 
considered each industry or category individually. In estimating the 
numbers of small entities potentially affected, we also considered 
whether their activities have any Federal involvement. Critical habitat 
designation will not affect activities that do not have any Federal 
involvement; designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. Some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by critical habitat designation. In areas where 
the species is present, Federal agencies already are required to 
consult with us under section 7 of the Act on activities they fund, 
permit, or implement that may affect the arroyo toad. Federal agencies 
also must consult with us if their activities may affect critical 
habitat.
    In the DEA of the proposed revised designation of critical habitat, 
we evaluated the potential economic effects resulting from 
implementation of conservation actions related to the proposed revised 
designation of critical habitat. The DEA identified the estimated 
incremental impacts associated with the proposed revised designation of 
critical habitat as described in sections 2 through 6, and evaluated 
the potential for economic impacts related to activity categories 
including real estate development, changes in water supply, grazing and 
mining activities, road construction projects, utility and other 
infrastructure projects, CEQA, uncertainty, and delay. The DEA 
concluded that the incremental impacts resulting from this rulemaking 
that may be borne by small businesses will be associated with land 
development, cattle ranching, and farming. Incremental impacts are 
either not expected for the other types of activities considered, or, 
if expected, will not be borne by small entities.
    As discussed in Appendix A of the DEA, the potential impacts of the 
proposed revised designation of critical habitat on land developers 
over the next 25 years would result from lost land value, project 
modification costs, CEQA costs, delay costs, and administrative costs. 
Small land developers with projects in the proposed revised critical 
habitat designation are expected to bear an annual incremental impact 
per project of between roughly $800 and $857,000. The number of small 
business in the land development industry affected annually ranges from 
zero to approximately 1.0 percent per county. Of those small land 
developers that are affected, the average annualized cost per project 
ranges from less than 0.1 percent to 40.5 percent of the typical annual 
sales. However, the annualized cost per project for affected small land 
developers in each county other than San Diego County is less than 1.6

[[Page 37367]]

percent of the typical annual sales (see Table A-1 in the DEA).
    As discussed in Appendix A of the DEA, the potential impacts of the 
proposed revised designation of critical habitat on cattle ranchers and 
farmers would result from future project modifications, such as 
fencing, water source development, and availability of water for 
irrigation and groundwater recharge. Small cattle ranching businesses 
and farms operating in the proposed revised critical habitat 
designation are expected to bear an incremental impact per project of 
between roughly $6,000 and $13,700. The number of small cattle ranching 
operations and farms affected annually ranges from about 0.2 percent to 
approximately 2.0 percent of the cattle ranching businesses and farms 
in each county. For those small cattle ranching businesses and farms 
that are impacted, the average cost per project (i.e., grazing 
allotment) ranges from less than 1.0 percent to approximately 2.0 
percent of the typical annual sales for a small business in the sector.
    In summary, we have considered whether the proposed revised 
designation of critical habitat would result in a significant economic 
impact on a substantial number of small entities. We have identified 
small businesses that may be affected within the ranching and farming 
sectors. However, we have determined that the proposed revised 
designation of critical habitat for the arroyo toad would not have a 
significant economic impact on a substantial number of small business 
entities in the ranching and farming sectors. While we recognize that 
the impacts to small businesses in the land development sector in San 
Diego County may be significant, we believe that the overall number of 
small businesses affected by the designation is not substantial.
    For the above reasons and based on currently available information, 
we certify that, if promulgated, the proposed revised designation of 
critical habitat for the arroyo toad would not have a significant 
economic impact on a substantial number of small business entities. 
Therefore, a regulatory flexibility analysis is not required. However, 
we do seek specific comment on the effects to small businesses in the 
land development sector, in particular those in San Diego County.

Executive Order 13211 - Energy Supply, Distribution, and Use

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. 
Executive Order 13211 requires an agency to prepare a Statement of 
Energy Effects when undertaking certain actions. OMB's guidance for 
implementing this Executive Order outlines nine outcomes that may 
constitute ``a significant adverse effect'' when compared to no 
regulatory action. As discussed in Appendix A of the DEA, two criteria 
are relevant to this analysis: (1) Reductions in electricity production 
in excess of 1 billion kilowatt-hours per year or in excess of 500 
megawatts of installed capacity, and (2) increases in the cost of 
energy production in excess of 1 percent. The DEA finds that this 
proposed revised critical habitat designation is expected to have 
minimal impacts on the energy industry.

Executive Order 12630 - Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing revised critical habitat for the arroyo toad in a takings 
implications assessment. Critical habitat designation does not affect 
landowner actions that do not require Federal funding or permits, nor 
does it preclude development of habitat conservation programs or 
issuance of incidental take permits to permit actions that do require 
Federal funding or permits to go forward. In conclusion, the proposed 
revision to critical habitat for the arroyo toad does not pose 
significant takings implications.

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

    In accordance with the Unfunded Mandates Reform Act, the Service 
makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, 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 Tribal governments,'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to state, 
local and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) as a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.''
    Critical habitat designation 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. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits, 
or that otherwise require approval or authorization from a Federal 
agency for an action that may be indirectly impacted by the designation 
of critical habitat. However, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency. Furthermore, to the extent that non-Federal 
entities are indirectly impacted because they receive Federal 
assistance or participate in a voluntary Federal aid program, the 
Unfunded Mandates Reform Act would not apply, nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) As discussed in the DEA of the proposed designation of critical 
habitat for arroyo toad, we do not believe that this rule would 
significantly or uniquely affect small governments because it would not 
produce a Federal mandate of $100 million or greater in any year; that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The DEA concludes that incremental impacts may 
occur due to project modifications and administrative actions that may 
need to be made for activities, including: Real estate development 
(comprising land value loss, other project modifications, CEQA 
compliance, and delay); grazing; mining; utilities and infrastructure; 
and administrative costs associated with future formal and informal 
consultations on real estate development, water, roads, grazing, 
mining, infrastructure, and other projects. However, these activities 
are not expected to affect small governments. Consequently, we do not 
believe that the revised critical habitat

[[Page 37368]]

designation would significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

References Cited

    A complete list of all references we cited in the proposed rule and 
in this document is available on the internet at http://www.regulations.gov or from the Ventura Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT section).

Authors

    The primary authors of this rulemaking are the staff members of the 
Ventura Fish and Wildlife Office and the Carlsbad Fish and Wildlife 
Office.

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 further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 74 FR 52612, October 13, 2009, as follows:

PART 17--[AMENDED]

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

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

    2. Critical habitat for the arroyo toad in Sec.  17.95(d), which 
was proposed to be revised on October 13, 2009, at 74 FR 52612, is 
proposed to be further amended by revising:
    a. Paragraph (d)(11)(ii), and the map for Units 8,10, and 11; and
    b. Paragraph (d)(13)(ii), and the map for Units 12, 13, 14, 15, 16, 
and 17, as set forth below.


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
    Arroyo Toad (Anaxyrus californicus)
* * * * *
    (11) * * *
    (ii) Note: Map of Critical Habitat for Arroyo Toad (Anaxyrus 
californicus), Units 8, 10, and 11, Orange, Riverside, and San Diego 
Counties, California, follows:
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    (13) * * *
    (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:

[[Page 37370]]

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    Dated: June 15, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-15399 Filed 6-28-10; 8:45 am]
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