This rule designates 11,695 acres of critical habitat for the arroyo toad in Santa Barbara, Ventura, Los Angeles, San Bernardino and Riverside counties in California.  FWS had to designate critical habitat for the arroyo toad as a result of a settlement agreement in Center for Biological Diversity v. United States Fish and Wildlife Service.  The critical habitat was designated in accordance with the Endangered Species Act of 1973 and its amendments.  This specific critical habitat is a revision of the final rule on arroyo toad critical habitat designation of 2/1/01 (69 FR 9414), which was deemed deficient and was overruled.  The current habitat is designated pursuant to court order stemming from Building Industry Legal Defense Foundation v. Gale Norton, Secretary of the Interior, which ordered FWS to publish a new critical habitat designation for the arroyo toad.

RULES and REGULATIONS

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT42

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

Wednesday, April 13, 2005

AGENCY: Fish and Wildlife Service, Interior.

*19562 ACTION: Final rule.

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

DATES: Effective Date: May 13, 2005.

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

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

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

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

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

Procedural and Resource Difficulties in Designating Critical Habitat

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

Background

Background information on the arroyo toad can be found in our previous final designation of critical habitat for this *19563 species, published in the Federal Register (FR) on February 7, 2001 (66 FR 9414). Additional background information is also available in our recent proposal of critical habitat for the arroyo toad, published on April 28, 2004 (69 FR 23253). That information is incorporated by reference into this final rule. This rule, which becomes effective on the date listed under Effective Date at the beginning of this document, replaces the February 7, 2001, critical habitat designation for this species.

Previous Federal Actions

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

Summary of Comments and Recommendations

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

Peer Review

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

Peer Review Comments

(1) Comment: A peer reviewer who conducts research on a variety of toad species at an academic institution found our proposal to be based on natural history studies that range in quality from perfectly adequate to superior. He commended us for basing much of our proposed rule on competent, truly scientific research. It was his opinion that the basic biology of the arroyo toad had been adequately reviewed and competently applied to the selection, delimitation, and designation of proposed sites. He endorsed the proposal and found it to be based on adequate research.
Our Response: As noted by the peer reviewer, we have considered and applied every important study involving arroyo toads that is relevant to its ecology and protection that we could obtain.
(2) Comment: A peer reviewer who has extensive experience studying the dispersal of arroyo toads, and has conducted studies within nearly one-third of the critical habitat units across the range of the species, commented that our proposed critical habitat units are accurately characterized, appropriately referenced, do not exclude any local arroyo toad populations in the specific units he is familiar with, and include all breeding and upland habitats necessary for the long-term survival of the local populations.
Our Response: We have identified all habitats that have the essential features, or primary constituent elements (PCEs) (see Primary Constituent Element section below), necessary for the conservation of the species. A portion of these essential areas are included in this final designation of critical habitat for the arroyo toad. Some essential areas have been excluded from critical habitat designation under section 4(b)(2) of the Act, primarily for economic reasons (see Application of Section 3(5)(A) and *19564 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below for a detailed discussion). After receipt of public and peer review comments, we revised the model we used to delineate essential and critical habitat, which is outlined in the February 14, 2005, Federal Register Notice (70 FR 7459) and this final rule (see Summary of Changes and Criteria Used to Identify Critical Habitat sections).
(3) Comment: A peer reviewer expressed concern that our choice of words in the Background section might imply that arroyo toads located at higher elevations move shorter distances than those found at lower elevations near the coast.
Our Response: The studies we cited in the proposed rule (e.g., Griffin 1999; Holland and Sisk 2000; Ramirez 2002a, 2002b, 2002c, 2003) indicate that arroyo toads found along streams with broad floodplains in coastal areas move farther into the uplands than those found along streams away from the coast with steeper slopes bordering the stream corridor. Although coastal areas may be at lower elevations, we suspect that it is the moderating effect of the ocean on coastal climates, including frequent fog, that may allow arroyo toads to disperse farther from a source of water without dehydrating, and that moderate slopes adjacent to a coastal stream corridor do not inhibit dispersal. More extreme temperatures and arid conditions away from the coast may inhibit dispersal by arroyo toads from a water source. Although arroyo toads can ascend and descend rather steep slopes, a sustained, steep gradient would likely inhibit dispersal. The elevation at which arroyo toads are found should have no influence on their willingness or ability to disperse from a water source.
(4) Comment: A peer reviewer suggested that we clarify our use of critical habitat regional classification units (northern, southern, and desert regions).
Our Response: We have organized the critical habitat units for the arroyo toad into three regions (northern, southern, and desert regions) that reflect both the range of the species and the distinct ecological environments in which the species is found, similar to the system used in the recovery plan for the arroyo toad (Service 1999).
(5) Comment: A peer reviewer suggested that we clarify our statement about the use of areas with compact soils by arroyo toads.
Our Response: Arroyo toads typically dig their own burrows in sandy soils or soft substrates where they remain underground during periods of inactivity (Service 1999). However, they have also been found in areas with harder, compact soils where they cannot burrow. In these cases, arroyo toads are likely using preexisting mammal burrows, or they are temporarily using these areas for foraging and dispersal at night and returning to areas where they can burrow prior to sunrise.
(6) Comment: A peer reviewer suggested that, in addition to agricultural fields, toads are found in orchards.
Our Response: Although toad may use orchards, the likelihood of long-term persistence in this altered habitat is unknown and would depend on the level of agricultural activity. To the extent that heavy equipment and pesticides are used in an orchard, along with periods of intense human activity, mortality rates could exceed reproductive rates in and around a stream segment bordered by orchards. However, it is possible that resident toads may be able to survive in orchard areas set back from the floodplain that do not require intensive management or harvest practices.
(7) Comment: A peer reviewer stated that our discussion concerning the value of designating critical habitat, and the procedural and resource difficulties involved, should be addressed in a different forum, not in a critical habitat rule.
Our Response: As discussed in the sections "Designation of Critical Habitat Provides Little Additional Protection to Species," "Role of Critical Habitat in Actual Practice of Administering and Implementing the Act," and "Procedural and Resource Difficulties in Designating Critical Habitat" and other sections of this and other critical habitat designations, we believe that, in most cases, conservation mechanisms provided through section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative programs with private and public landholders and tribal nations provide greater incentives and conservation benefits than does the designation of critical habitat.
(8) Comment: After examining the changes to our proposal published in the Federal Register on February 14, 2005 (70 FR 7459), one peer reviewer stated that the training activities of the military at Fort Hunter Liggett may have resulted in riparian habitat modifications that may be beneficial to the arroyo toad. The peer reviewer further noted that the military also prevents nonmilitary personnel from visiting the area which helps prevent the introduction of nonnative predatory aquatic vertebrates.
Our Response: We agree that although some toads would be killed outright by ordinance, crushing by vehicles, prescribed burning, channel clearing, or other actions undertaken by the military, in some instances the resulting habitat modifications may enhance arroyo toad habitat, which favor more open habitats. It is unclear to what extent habitat modifications resulting from military actions have affected arroyo toad numbers at Fort Hunter Liggett, either positively or negatively. We also agree that minimizing human access to arroyo toad habitat is generally beneficial and can prevent the introduction of nonnative predatory aquatic vertebrates. However, certain nonnative predatory aquatic vertebrates have already become established at Fort Hunter Liggett, including bullfrogs. All military actions affecting arroyo toad habitat at Fort Hunter Liggett have been addressed in the Army's Endangered Species Management Plan for the arroyo toad at Fort Hunter Liggett, which is one of the primary reasons why we have excluded Fort Hunter Liggett from critical habitat designation (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section).

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

(9) Comment: One commenter stated that, according to the Tenth Circuit Court of Appeals finding in Catron County Board of Commerce, New Mexico v. United States Fish and Wildlife Service, 75F.3d 1429 (10th Cir 1996) (Catron v. FWS), we are required to prepare an environmental assessment or environmental impact statement before designating critical habitat.
Our Response: The commenter is correct in that the Tenth Circuit Court of Appeals determined that an environmental assessment or environmental impact statement as part of NEPA should be prepared before designating critical habitat. However, it is our position that, outside the jurisdictional area of the Tenth Circuit Court, we do not need to comply with NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This assertion was upheld by the Ninth Circuit Court (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)).
*19565 (10) Comment: Several commenters stated that the arroyo toad is everywhere in California and Mexico and that there is not enough scientific evidence proving that this species is really endangered, and therefore does not need protection under the Act.
Our Response: The commenters may be confusing the arroyo toad with several other species of toads in the genus Bufo occurring in California and Mexico. The arroyo toad is just one species of toad, and the distribution of the arroyo toad is limited to central and southern California and northwestern Baja California, Mexico. While our knowledge of the arroyo toad's distribution in southern California has increased since it was listed in 1994, the species continues to be threatened by habitat destruction and alteration, over-collection, predation by introduced predatory fish, and inadequacy of existing regulatory mechanisms (59 FR 64859).
(11) Comment: One commenter stated that critical habitat will unnecessarily burden the regulated public and has overloaded Service staff.
Our Response: Critical habitat designations do not by themselves constitute a burden in terms of Federal laws and regulations on private landowners carrying out private activities, but in California they may trigger additional State regulatory reviews and other requirements under the California Environmental Quality Act and other State laws and regulations. When a Federal approval or permit is required, or Federal funds are involved with a project proposed on private property, the critical habitat designation does impose a Federal regulatory burden for private landowners; absent this, the designation should not affect farming and ranching activities on private lands. Similarly, a Federal nexus could result in the designation affecting future land use plans, and the designation may trigger State requirements which could impact such plans.

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

(12) Comment: Two commenters questioned the scientific evidence used to determine critical habitat.
Our Response: In designating critical habitat for the arroyo toad, we have used the best available scientific and commercial information, including results of numerous surveys, peer-reviewed literature, unpublished reports by scientists and biological consultants, potential habitat maps developed by the Forest Service (Forest Service 2000), and expert opinion from biologists with extensive experience studying the arroyo toad. Further, information provided in comments on the proposed designation and the draft economic analysis were evaluated and taken into consideration in the development of this final designation, as appropriate. Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection, by appointment, during normal business hours at the Ventura Fish and Wildlife Office (see ADDRESSES section above).
(13) Comment: One commenter stated that at least 24 additional habitat areas should be designated as critical habitat in the final rule, including all populations and metapopulations identified in Table 1 of the arroyo toad recovery plan.
Our Response: The Act states, at section 3(5)(C), that except in particular circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. It is not the intent of the Act to designate critical habitat for every population and every documented historic location of a species. We have designated habitat that contain features essential for the conservation of the species.
(14) Comment: One commenter stated that the proposed designation of critical habitat was overly broad and that we included areas that are not essential to the conservation of the species. Another commenter expressed a similar concern and stated that we proposed more areas than what is suitable for the toad in an attempt to make up for the limited precipitation in southern California.
Our Response: As a result of revisions to the methodology used to delineate critical habitat, areas that do not contain the features essential to the conservation of the species have been removed from the final designation (see Summary of Changes and Criteria Used to Identify Critical Habitat sections below). Only areas that contain features essential to the conservation of the species were designated critical habitat; precipitation levels did not directly effect this designation.
(15) Comment: One commenter stated that the Service failed to identify the physical or biological features essential to the conservation and recovery of the species or the methods that would be used in the identification of such features.
Our Response: In our "Primary Constituent Elements" section we have outlined as specifically as possible all of the physical and biological features essential to the conservation of the species. In our "Methods" and "Criteria Used to Identify Critical Habitat" sections we outlined the methods we used to identify and delineate critical habitat.
(16) Comment: Several commenters stated that we included areas where the arroyo toad and their primary constituent elements were absent, such as roads, developed areas, and particular natural features (i.e., steep slopes), or where their status is uncertain. Another commenter acknowledged our attempts to remove these types of areas, but requested that we examine the units even more closely, particularly in San Diego County, and more finely remove areas that do not contain primary constituent elements.
Our Response: As described below, we have revised the methodology used to determine critical habitat, and therefore have removed areas that did not contain features essential to the conservation of the species (see Summary of Changes and Criteria Used to Identify Critical Habitat sections below). We made an effort to exclude all developed areas, such as towns, housing developments, and other lands unlikely to contain primary constituent elements essential for arroyo toad conservation. However, as it is not possible to remove each and every one of these features, even at the refined mapping scale used, the maps of the proposed designation may still include areas that do not contain primary constituent elements (see Criteria Used to Identify Critical Habitat below). These areas are not being designated as critical habitat.
As to the comment about units in San Diego County, all units in San Diego County have been excluded under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for detailed discussion of exclusions).
(17) Comment: One commenter stated that the revised criteria used to identify upland use by arroyo toads, which resulted in the reduction of the maximum distance from the stream to which critical habitat extended from 4,921 feet to 1,640 feet, is not supported in the proposed rule. Other commenters expressed opposition to our reduction in the amount of upland habitat included in our revised model and expressed concern that some of the upland habitat used by arroyo toads has been removed from consideration as critical habitat. In contrast, one commenter stated that the proposed designation of upland habitat was overly broad in mountainous areas away from the coast and we should have used *19566 a shorter upland movement distance than 4,921 ft (1,500 m).
Our Response: We based our decision to revise the model of what constitutes essential upland habitat on the best available science and data on arroyo toad upland habitat use. The study by Holland and Sisk (2000) demonstrated that 88% of the adult and subadult arroyo toad population was found within the riparian wash area. Of the remaining 12% of the arroyo toads in the upland areas, 68% of the arroyo toads were found within 1,640 ft (500 m) of the riparian wash area. Although some upland habitats shown to be used by arroyo toads in coastal areas are no longer within the critical habitat boundary, we believe the amount of upland habitat included in this final rule is enough to allow for the long-term persistence of the arroyo toad population in a given area and captures all areas essential for the conservation of the species.
(18) Comment: One commenter stated that in light of a recent court decision regarding the Alameda whipsnake final critical habitat, Home Builders Association of Northern California v. U.S. Fish & Wildlife Service, 268 F. Supp. 2d, we did not sufficiently explain why the designation of unoccupied linkage areas are essential for the conservation of the arroyo toad pursuant to 16 U.S.C. 1532(5)(A)(ii). The commenter stated that this approach threatens to eliminate the distinction between "areas within the geographic area occupied by the species at the time it is listed," and "specific areas outside the geographic area occupied by the species at the time it is listed that are essential to the conservation of the species."
Our Response: We have not designated any critical habitat units outside the geographical area currently or historically occupied by the species. Arroyo toad breeding habitat is patchily distributed along stream courses. Linkage areas between breeding habitat are essential for the conservation of the species because they provide habitat for toads moving to and from breeding areas and habitat for foraging, breeding, and burrowing. Since these linkage areas are occupied by the species during some period of their life cycle, they were designated as critical habitat (see Summary of Changes from the Proposed Rule section for the definition of "occupied").
(19) Comment: Several commenters generally stated that we should not rely on survey efforts when they are funded by landowners with an interest in obtaining negative results.
Our Response: As per section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, we used the best available scientific and commercial information available in the designation of critical habitat for the arroyo toad, which includes information from all valid survey efforts by all qualified biologists. If we receive evidence that survey results have been falsified or survey methods were unacceptable, we would not use those results. We have no evidence that any of the data we have referenced or used in formulating this rule has been falsified or based on unacceptable survey methods.
(20) Comment: One commenter stated that our 30-day comment period following the proposed rule was inadequate to allow the public to understand and comment meaningfully on the proposed rule and that this should have been extended to no less than 60 days.
Our Response: The proposed critical habitat rule for the arroyo toad was available to the public for review and comment for 60 days. The first 30-day comment period opened on April 28, 2004 (60 FR 23254). On February 14, 2005, we reopened the public comment period for the proposed rule for an additional 30-day period upon publication of the Notice of Availability of the Draft Economic Analysis (70 FR 7459). We believe these two public comment periods provided adequate opportunity for public comment.
(21) Comment: One commenter stated that the Service did not adequately notify landowners where proposed critical habitat was located. Another commenter expressed concern that the revisions we made to critical habitat proposed for the arroyo toad (70 FR 7459) were not accompanied by revised maps, nor were revised maps available on any website. Without maps showing where revisions were made, the description of the changes made to the proposed rule was difficult to understand. This made it difficult for the public to adequately comment on the proposed revisions.
Our Response: We issued a widely disseminated news release regarding our proposal and published legal notices in all major newspapers within the range of the species in California, including the Monterey Herald on May 1, Ventura County Star on May 4, the Orange County Register on May 7, the San Diego Union Tribune on May 8, and the Santa Barbara News Press on May 12, 2004. General maps delineating the boundaries of critical habitat were included in the April 28, 2004, proposed rule. Due to operational time constraints and a looming court-ordered deadline, we were unable to produce maps of the subsequent revisions and make them available to the general public. However, points of contact were given in the proposed rule for landowners needing assistance in determining whether their property was within designated critical habitat were able to contact the Ventura or Carlsbad Fish and Wildlife Office, and specific maps were provided upon request. We attempted to carefully describe in the Federal Register (70 FR 7459) all of the ways in which revisions were made to the proposed rule.

Comments Related to Site-Specific Areas

(22) Comment: One commenter stated that local land use controls provide sufficient protection for the arroyo toad in Santa Barbara County.
Our Response: Although there are other State, local, and Federal laws that offer some protection to endangered species and their habitats (e.g., Clean Water Act and California Environmental Quality Act), none provide the same level of protection and review for threatened and endangered species as does the Endangered Species Act. These laws are not redundant and work in concert to provide protection for environmental resources.
(23) Comment: One commenter stated that Rancho Sisquoc (unit 2) has not been surveyed for arroyo toads and the Service does not know that arroyo toads occupy this portion of the Sisquoc River.
Our Response: We agree that much of the Sisquoc River as it flows through the privately-owned Sisquoc Ranch has not been surveyed for arroyo toads. However, there are two reports of arroyo toads occupying the Sisquoc River within the Sisquoc Ranch; arroyo toads were observed there by M. Hanson in 1992 (CNDDB 1992) and also by LSA associates in 1993 (LSA Associates, Inc. 2000). Arroyo toads have also been reported along the Sisquoc River both upstream and downstream from the Sisquoc Ranch (CNDDB 1992, 1994).
(24) Comment: One commenter stated that the Service failed to explain its rationale regarding the need for special management considerations and protection on lands proposed for designation as critical habitat in unit 2. Specifically, it did not consider those already in place in the Mining and Reclamation Plan for mining activities on the Sisquoc River.
Our Response: The Mining and Reclamation Plan for mining activities on the Sisquoc River outlines measures to reduce harm to the arroyo toad and its habitat, but it was written prior to the *19567 designation of critical habitat for this species. Thus, neither designated, nor proposed, critical habitat for the arroyo toad is addressed in the Mining and Reclamation Plan. Additionally, the Mining and Reclamation Plan pertains only to those areas contemplated for sand and gravel mining, but does not cover a large portion of the Sisquoc River upstream from the mining area, which we have designated as critical habitat.
(25) Comment: Several commenters stated that the Santa Clara River is occupied by arroyo toads and should be protected as critical habitat.
Our Response: Critical habitat was proposed along portions of the Santa Clara River known to be occupied by the arroyo toad (subunits 6b and 6c). However, unit 6 is excluded from critical habitat designation under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for detailed discussion of exclusions).
(26) Comment: One commenter stated that the Army Corps of Engineers 404 permit granted to Valencia Company and associated Natural River Management Plan does not adequately protect arroyo toad habitat along the Santa Clara River in and around Valencia (subunit 6b), and therefore should not be excluded from the critical habitat designation.
Our Response: Although we believe the Natural River Management Plan does protect arroyo toad habitat (see 70 FR 7459 for a detailed discussion), unit 6 is excluded from critical habitat under section 4(b)(2) of the Act for economic reasons.
(27) Comment: One commenter stated that land within subunit 6b is already, or will be, protected through conservation easements and other management measures. This commenter also stated that this area is not truly essential to the conservation of the species due to limited arroyo toad observations, and would generate considerable costs for private landowners, and therefore should be excluded. During the second comment period this commenter offered support for our proposed exclusion of subunit 6b.
Our Response: Although this area currently contains a small arroyo toad population, arroyo toad numbers likely were much larger in the past, and the number of arroyo toads has the potential to greatly increase once again throughout suitable habitat in this subunit. Therefore, we believe it is essential habitat for the arroyo toad. Although we agree that the protection provided by the conservation easements conveyed or proposed on lands within this subunit will benefit the arroyo toad, unit 6 is excluded under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).
(28) Comment: One commenter stated that we should have included the portion of the Santa Clara River downstream of proposed subunit 6b between Castaic Creek and Piru Creek.
Our Response: Although much of the habitat may be suitable for arroyo toads, they have never been reported from this portion of the Santa Clara River despite surveys (San Marino Environmental Associates 1995; RECON 1999; Impact Sciences 2002; Compliance Biology 2004). Habitat within the river corridor along this reach appears to be suitable for arroyo toads, but much of the upland habitats adjacent to the river corridor are unsuitable for arroyo toads because they consist of intensive agriculture. Also, most of the river corridor in the Los Angeles County portion of this reach will be or is proposed to be protected by a conservation easement associated with the Newhall Ranch Specific Plan.
(29) Comment: One commenter supported our inclusion of Castaic Creek and the Santa Clara River in the vicinity of the Castaic Creek confluence with the Santa Clara River. However, they felt that we should have also included the portion of Castaic Creek that is just downstream of the Castaic Dam and lagoon.
Our Response: We have determined that this area should not be designated as critical habitat for the following reasons: (1) Surveys have indicated that arroyo toads do not occupy this portion of Castaic Creek; (2) suitable habitat extends along Castaic Creek for only a short distance (perhaps less than a mile) in this area; (3) it is isolated from upper Castaic Creek by Castaic Dam, which serves as a geographic barrier; and (4) it is isolated from suitable habitat along lower Castaic Creek by several miles of rather dry, marginal habitat lacking sufficient cover for upland migrating arroyo toads.
(30) Comment: Two commenters asserted that there is insufficient evidence to support our conclusion that the upper portion of the Santa Clara River (Soledad Canyon) supports a breeding population of arroyo toads. Another commenter stated just the opposite, that there is a breeding population of arroyo toads in this area.
Our Response: Although it does not appear to be a large population, the best available science and survey results indicate arroyo toad presence and evidence of successful reproduction in the upper Santa Clara River (subunit 6b in this rule). As stated in a letter to the City of Santa Clarita by Frank Hovore & Associates (F. Hovore, in litt. 2001, p. 1), "There can be no doubt whatsoever that the arroyo toad maintains a breeding metapopulation unit on the TMC site, and that the upland areas around the river are essential to its out-of-channel biology, and ultimately, survival." At least 70 arroyo toad tadpoles have been documented from the upper Santa Clara River in three different locations (N. Sandburg, in litt. 2001). We are also aware of at least three metamorphosed arroyo toads observed in two separate locations. These arroyo toad tadpoles and juveniles were observed and identified by at least five qualified biologists on a number of different occasions, although all sightings were made in the spring of 2001. The presence of arroyo toad tadpoles is, by itself, evidence of breeding. Arroyo toads in this area may have been missed prior to 2001 due to the lack of night surveys, surveys being conducted during a drought year when reproduction may not have taken place (1990), and because surveys were conducted late in the season (July of 1994) when this portion of the Santa Clara River may have already dried.
(31) Comment: A commenter further stated that the tadpoles and recently metamorphosed arroyo toads ("metamorphs") found within the upper Santa Clara River [subunit 6c] are equivalent to "lone wolves" dispersing through an area, and do not constitute a population. The commenter cited the 2000 10th Circuit Court case, Wyoming Farm Bureau Federation v. Babbitt (199 F.3d 1224, 1234), which ruled that lone wolves do not constitute a population.
Our Response: Movements of arroyo toad tadpoles, and even adults, are limited as they cannot disperse across the landscape like wolves. The nearest observations of the upper Santa Clara River arroyo toads would be those found at least 12 miles (mi) (19.3 kilometers (km)) downstream. According to the best available information, this is beyond the upstream dispersal capability of an adult arroyo toad. Given that most of the intervening habitat along the Santa Clara River between these two populations is typically dry, like adults, small, recently transformed individuals are certainly not capable of dispersing 12 miles upstream. Tadpoles do not disperse far from the pool where they were deposited as eggs, except for the possibility of being washed downstream during a flood event. We *19568 are unaware of any arroyo toads existing in the Santa Clara River watershed upstream of this subunit (6c). Even if there was a population further upstream, it would be unlikely for the 70 arroyo toad tadpoles to have been washed downstream as a group to this point in Soledad Canyon and be found in good condition.
(32) Comment: Two commenters generally asserted that the upper Santa Clara River does not contain the primary constituent elements for arroyo toad and constitutes poor habitat for this species. In direct contrast to these comments, two other commenters stated that this area does contain suitable habitat and is important for the preservation of the arroyo toad.
Our Response: Direct observations by Service biologists and that of other biologists conducting arroyo toad surveys show that the upper Santa Clara River within proposed subunit 6c does contain all of the primary constituent elements of arroyo toad critical habitat. Sandburg (in litt. 2001, p.3) states, "* * * the stream channel [of the Santa Clara River] widens with flat terraces, cottonwood overstory, extensive alluvial deposits and stream velocities suitable for arroyo toad clutches * * * A side tributary, referred to as Bear Creek, delineates another large area of optimal arroyo toad habitat with slower water velocities and wide alluvial terraces devoid of dense vegetation." Thus, observations by the Service and independent biologists confirm the presence of arroyo toad habitat and the species' primary constituent elements.
(33) Comment: One commenter asserted that the upper Santa Clara River does not meet any of our criteria to be designated as critical habitat.
Our Response: In the proposed rule we stated that the criteria we used to identify critical habitat are identical to the criteria outlined in the final designation previously published in the Federal Register on February 7, 2001 (66 FR 9414). In that rule, we outlined five criteria, which if any is found on a site, would warrant it to be designated as critical habitat. The second of those five criteria states that, if a site "supports at least a small toad population and possesses favorable habitat conditions for population expansion and persistence," then this area would be considered critical habitat. Subunit 6c along the upper Santa Clara River meets this criterion. However, unit 6 is excluded under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).
(34) Comment: Two commenters referenced a letter from the Service stating that a project area on Rasmussen Company land in Soledad Canyon along the upper Santa Clara River has little habitat value for the arroyo toad. These commenters are concerned that this area, which lacks suitable habitat for the arroyo toad, has been proposed as critical habitat.
Our Response: Unit 6, where the land referenced by the commenters is located, is excluded from critical habitat designation under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).
(35) Comment: One commenter stated that our revisions to proposed critical habitat in subunit 6c (70 FR 7459) are unwarranted. The commenter argued that we should have included the entire original Santa Clara River channel (below Agua Dulce Canyon) as critical habitat, as originally proposed, rather than removing the portion north of the railroad tracks, which traverse portions of the original river channel in some locations. The commenter stated that water extraction wells installed for mining purposes might now be installed in these areas resulting in adverse impacts to surface flows in the Santa Clara River.
Our Response: We removed the areas in question north of the railroad tracks from critical habitat designation because some of these areas have been degraded by past mining activities. Also, the railroad tracks, which are often raised on rather steep banks, pose a likely barrier to arroyo toad movements in these areas. Thus, although arroyo toads may be able to cross the railroad tracks in some locations, both access and quality of these areas is limited. Therefore, we determined their inclusion into critical habitat was not warranted at this time. Additionally, any effects to the surface hydrology of the Santa Clara River from water withdrawal projects involving a federal nexus that adversely affect the arroyo toad or its critical habitat, whether they originate outside of critical habitat or not, would be subject to the section 7 consultation process under the Act.
(36) Comment: Two commenters opposed the designation of critical habitat on Rancho Las Flores Planned Community (Rancho Las Flores) land in Summit Valley, San Bernardino County, which surrounds the West Fork of the Mojave River. They pointed out that many acres in this area will be designated as open space or protected by conservation easement to protect the toad. They also stated that two biological opinions have been issued for projects in this area and a Habitat Conservation Plan (HCP) is being developed to cover lands not addressed in the biological opinions. Additionally, one of the commenters expressed concern that new housing, jobs, and other social benefits provided by the planned community may be jeopardized or constrained by a critical habitat designation.
Our Response: We agree that greater conservation benefits to arroyo toad habitat on private property can result from carefully designed plans formulated cooperatively between the Service and private conservation partners. However, unit 22, which is the only proposed unit that includes Rancho Las Flores lands, is excluded under section 4(b)(2) of the Act for economic reasons under (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section).
(37) Comment: One commenter stated that we should have included the following additional areas in the critical habitat designation, which are listed in Table 1 of the recovery plan for the arroyo toad (Service 1999) and are found in the Northern Recovery Unit. These areas are the following: Upper Salinas River; Agua Caliente Creek in the upper Santa Ynez River Basin; and Agua Blanca, Bouquet, and Castaic Creeks in the Santa Clara River Basin.
Our Response: We are unaware of any recent observations of arroyo toads in the upper Salinas River watershed or anywhere within San Luis Obispo County. Many of the other areas not considered for designation as critical habitat, which are identified in Table 1 of the recovery plan, are tributaries to larger streams where arroyo toads occur. We do not currently have information suggesting that these tributaries are occupied by arroyo toad or that these tributaries contribute a significant amount of habitat that would be used by the toads. Although arroyo toads are not known to occupy Agua Caliente Creek and we have not included Agua Caliente Creek as part of the critical habitat designation for the toad, we have included the confluence of Agua Caliente Creek and the Santa Ynez River because arroyo toads occupy the Santa Ynez River. Agua Blanca Creek is a tributary to Piru Creek; the portion of Agua Blanca Creek occupied by arroyo toads is included in critical habitat. When the recovery plan was published, it was thought that habitat suitable for the arroyo toad may be found along Bouquet Creek. However, more recent surveys have found Bouquet Creek to be *19569 largely unsuitable for arroyo toads, and they have never been observed in this tributary.
(38) Comment: One commenter requested that their First and Second San Diego Aqueducts and proposed Moreno Lakes pipeline right-of-ways (ROWs) in the San Luis Rey River (Unit 14) and San Diego River (Unit 17c), respectively, be excluded from critical habitat so that their mission of providing water to their member agencies is not hindered. They state that their permits for facility operations would need to be modified to address a critical habitat designation.
Our Response: After closer review of available information and comments, we have determined that areas on the San Diego River downstream from El Capitan Reservoir (Subunit 17c) are not essential to the conservation of the toad and are therefore removed from critical habitat. Accordingly, the Moreno Lakes ROW in Subunit 17c is no longer in critical habitat. Unit 14, the location of the First and Second aqueduct of concern to the commenter, is excluded from critical habitat designation under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).
(39) Comment: The same commenter asked whether their existing Section 7 permit that covers the coastal California gnatcatcher could be amended to cover the arroyo toad critical habitat for Units 14 and 17c.
Our Response: Assuming the Federal agency that was subject to consultation under section 7 of the Act for another listed species still retains discretionary jurisdiction over the action, the Federal agency must reinitiate section 7 consultation if its action "may affect" designated critical habitat for the arroyo toad. See Section 7 Consultation below.
(40) Comment: One commenter stated several reasons why they believe that arroyo toad critical habitat rule improperly includes portions of Pardee's Meadowbrook project site north of Highway 76 along the San Luis Rey River in Unit 14. They state that this area does not contain suitable habitat, is not, and will never be occupied by toads because of the barrier created by Highway 76, that we did not provide special management considerations for Unit 14, and Unit 14 is outside the geographic area occupied by the species.
Our Response: As a result of revisions to our methodology to delineate critical habitat (see the Criteria Used to Identify Critical Habitat section below), more than half of the critical habitat located north of Highway 76 was removed. The remaining areas were reevaluated using the best available information, including an upland habitat pitfall study in 2003. The results of this study indicate that the primary constituent elements, including soil type, are marginal on the property north of the highway. Based on these results and the spatial relation of this area to nearby areas of critical habitat, we are removing Pardee's Meadowbrook project site north of Highway 76 from critical habitat. The remainder of unit 14 is excluded from critical habitat designation under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).
(41) Comment: A couple of commenters stated that the portion of Whitewater River downstream of the Colorado River Aqueduct lacks the primary constituent elements, and therefore should be removed as essential habitat for the arroyo toad.
Our Response: We have reevaluated all the available information and have concurred with the commenters that this area does not contain essential habitat.
(42) Comment: One commenter stated that lands owned by the Sweetwater Authority, Helix Water District, and Padre Dam Municipal District in San Diego County (portions of Units 17 and 18) should be excluded from designated critical habitat for the arroyo toad because the benefits of exclusion based on economic considerations far outweigh the benefits of inclusion.
Our Response: We have excluded these essential areas from critical habitat based on economic considerations (see the Relationship of Critical Habitat to Economic Impacts--Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion). Lands downstream of El Capitan Reservoir in subunit 17b and 17c were removed from critical habitat because they were not known to be occupied, and therefore were not considered to be essential for the conservation of the species (see the Summary of Changes and Criteria Used to Identify Critical Habitat sections for detailed discussions).
(43) Comment: One commenter stated that the Service failed to identify special management considerations related to lands owned by the Sweetwater Authority, Helix Water District, and Padre Dam Municipal District in San Diego County in Units 17 and 18.
Our Response: We disagree with commenters and did identify special management considerations for these Units in the proposed arroyo toad critical habitat rule published on April 28, 2004 (69 FR 23254). We cited threats from development, exotic predators, timing and amount of water transfer as some of the threats that require special management considerations.
(44) Comment: One commenter stated that we should reconsider revising essential upland habitat in San Juan Creek for the arroyo toad to only capture the floodplain because adjacent alluvial flats and uplands are of questionable suitability for toad use, some upland areas included industrial land uses and are beyond busy paved roads that are not accessible to toads.
Our Response: Even though all essential areas in San Juan Creek have been excluded from designated critical habitat due to economic reasons (see the Relationship of Critical Habitat to Economic Impacts--Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion), we still believe that upland areas containing primary constituent elements adjacent to riparian habitat are essential for the conservation of the toad. It has been well documented that the use upland areas by arroyo toads for burrowing, foraging, and aestivating is a normal part of their life history (Sweet 1993; Griffin and Case 2001; Holland and Sisk 2001). Therefore, protecting these upland areas is necessary for adequate conservation of the arroyo toad. In some cases, we agreed with the commenter and removed upland areas where there was heavy industrial land uses. We also examined whether all areas beyond paved roads were essential and removed areas where toads did not have stream undercrossings.
(45) Comment: A couple of commenters stated that we should reconsider revising the essential reach of San Juan Creek for the arroyo toad because we did not provide evidence that certain portions of the Creek are occupied, it lacks primary constituent elements, such as breeding pools, and contains exotic predators. One of these commenters also stated that some portions of San Mateo Watershed should be removed because they lack primary constituent elements, such as suitable sandy friable soils and contain exotic predators.
Our Response: Even though all essential areas in San Juan Creek have been excluded from designated critical habitat due to economic reasons (see the Relationship of Critical Habitat to Economic Impacts--Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion), we still believe that all essential reaches of San Juan Creek are occupied because of several reports of toad occurrences in these *19570 areas in the past 15 years as well the possibility for tadpoles to be washed downstream into less densely occupied areas (P. Bloom in litt. 1998). We agree that the density of occupancy along the Creek varies, but low density areas are still essential for arroyo toad conservation because they contain the primary constituent elements, are occupied, and contain special management considerations, such as exotic predator and plant control. If these special management considerations were applied, it would be likely that population densities would increase. All essential reaches of San Juan Creek and San Mateo Watershed in Units 10 and 11 have the primary constituent elements, which may include stream channels and upland areas adjacent to riparian areas that allow for migration between foraging, burrowing, or aestivating sites.

Comments Related to Military Lands

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

Comments Related to Tribal Lands

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

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

(54) Comment: Several commenters were supportive of the policy that lands covered by approved and nearly completed HCPs that provide take authorization for the arroyo toad should be excluded from critical habitat. Several of these commenters also requested that HCP exclusions should also apply to draft HCPs, lands enrolled in the NCCP program, and lands covered by the Joint Water Agency (JWA) draft plan.
*19571 Our Response: While we trust that jurisdictions will attempt to fulfill their commitment to complete conservation plans, this voluntary enrollment does not assure that such plans will be finalized. Protections for arroyo toad habitat provided through participating jurisdiction's enrollment in the NCCP processes are temporary and are not assured; such protections may be lost if the jurisdiction elects to withdraw from the NCCP program. Guidelines for the NCCP program direct habitat loss to areas with low long-term conservation potential that will not preclude the development of adequate NCCP plans and ensure that connectivity between areas of high habitat value will be maintained. We will consider excluding lands within pending HCP areas where we have received a permit application from the participants and an environmental analysis has been completed and released for public review and comment under the authority of NEPA. By completing these criteria, jurisdictions demonstrate their intent to finalize their HCP/NCCPs.
(55) Comment: Several commenters stated that the designation of critical habitat removes incentives to participate in NCCP and HCP processes, in part because of added regulatory uncertainty, increased costs to plan development and implementation, weakened stakeholder support, delayed approval and development of the plan, and greater vulnerability to legal challenge.
Our Response: HCPs are one of the most important tools for reconciling land use with the conservation of listed species on non-Federal lands. We look forward to working with HCP applicants to ensure that their plans meet the issuance criteria and that the designation of critical habitat on lands where an HCP is in development does not delay the approval and implementation of their HCP.
(56) Comment: Some commenters stated that our policy to exclude the pending Western Riverside Multiple Species Habitat Conservation Plan (MSHCP), but not other pending HCPs or NCCPs, may amount to arbitrary and capricious administrative conduct.
Our Response: As stated above, we will consider excluding lands within pending HCPs where we have received a permit application from the participants and an environmental analysis has been completed and released for public review and comment under the authority of NEPA. The Western Riverside MSHCP, for which a section 10(a)(1)(B) permit was issued on June 22, 2004, was proposed for exclusion in the proposed rule because it met these criteria.
(57) Comment: One commenter asked whether the designation of critical habitat would be considered a changed and unforeseen circumstance with respect to the various subarea plans presently approved or pending.
Our Response: All approved or pending HCPs that were determined to provide a benefit to the conservation of the arroyo toad were excluded from the critical habitat designation (see Application of Sections 3(5)(A), 4(a)(3), and Exclusions Under Section 4(b)(2)of the Act). Therefore, there would be no changed or unforeseen circumstance resulting from this designation.
(58) Comment: One commenter stated multiple reasons for why essential arroyo toad habitat within several HCPs (including a draft HCP) and military installations should not be excluded from critical habitat. They stated that the benefit of designating these areas as critical habitat outweighs excluding them because exclusions are based partly on speculative and unproven future activities and critical habitat provides a greater benefit than measures contained in draft and approved conservation plans. They also stated that the Service unlawfully predetermined the benefits of excluding essential habitat because our determination was made prior to soliciting public review.
Our Response: We agree that critical habitat designation is only one part-- often the least important element--in the conservation of a species. In many cases, partnerships with individual landowners and conservation agreements with a variety of stakeholders can provide a much greater conservation benefit for arroyo toad and other species, as they offer positive management actions that cannot be achieved through a critical habitat designation. We have determined that the exclusion of lands covered by HCPs or INRMPs from critical habitat designation will not result in the extinction of the arroyo toad and that the HCPs and INRMPs we evaluated for exclusion will provide a greater benefit to the toad than critical habitat (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).
However, we did not reach this conclusion prior to receipt of public comment as contended in this comment; areas excluded from the draft proposal because of their inclusion in HCPs or coverage by INRMPs were identified as such, proposed justifications offered for public review, and notice was provided that these areas might be included in the final designation based on public comments.
(59) Comment: One commenter asked whether areas covered under existing Section 7 permits can be excluded from critical habitat in manner similar to areas under existing Section 10 permits.
Our Response: Consultation under Section 7 of the Act does not result in the issuance of a Section 7 "permit" per se. Federal actions that we conclude are not likely to jeopardize the continued existence of a listed species are exempted from the prohibition against take of listed animal species under Section 9 of the Act so long as the Federal agency and any permittee comply with the terms and conditions of the incidental take statement accompanying the Service's biological opinion. Typically HCPs provide greater conservation benefits to a covered species by assuring the long-term protection and management of a covered species and its habitat, and funding for such management through the standards found in the 5-Point Policy for HCPs (64 FR 35242), the HCP No Surprises regulation (63 FR 8859), and relevant regulations governing the issuance and implementation of HCPs, such as those requiring the permittee to minimize and mitigate the taking to the maximum extent practicable. However, such assurances are typically not provided in connection with Federal projects subject to section 7 consultations which, in contrast to activities on non-Federal lands covered by HCPs, often do not commit to long-term special management or protections. Thus, a consultation unrelated to an HCP typically does not accord the lands it covers the extensive benefits an HCP provides. However, some landowners have agreed to provide extensive, permanent protection of arroyo toad habitat in conjunction with a section 7 consultation. In cases where we have determined that a conservation strategy agreed to by a private landowner provides a substantial, long-term benefit to the species, we have excluded these private lands from the critical habitat designation (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below).
(60) Comment: One commenter stated that all Coachella Valley Water District (CVWD) lands be excluded from critical habitat designation within the draft Coachella Valley MSHCP boundaries.
Our Response: The draft Coachella Valley MSHCP has been in development for several years. In contrast to other HCPs under development, which contain essential arroyo toad habitat, the Coachella Valley MSHCP is near its *19572 completion. As a result, the Service is very close to taking final action on the Coachella Valley Association of Government's incidental take permit application. On November 5th, 2004, the Service published a Notice of Availability of a Final Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the draft MSHCP. Although not yet completed, the draft Coachella Valley MSHCP plans on conserving 96% of the modeled arroyo toad habitat in the Whitewater River, acquiring private lands from willing sellers, minimize activities on public lands that threaten toads, and conserve other areas of potential habitat outside of Whitewater River. This plan will provide some level of conservation benefit to the arroyo toad and the habitat that it is known to occupy. CVWD is one of the permittees to the draft Plan. As result, we have excluded all CVWD lands within the draft Coachella Valley MSHCP from designated critical habitat for the arroyo toad. (see the Relationship of Critical Habitat to the Draft Coachella Valley Multiple Species Habitat Conservation Plan (MSHCP)--Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).
(61) Comment: One commenter asked whether on-going activities, such as routine inspections, road grading, and construction adjacent to designated critical habitat are considered to appreciably decrease habitat values or quality through indirect effects.
Our Response: The effects of any such activities on critical habitat must be considered by the Federal agency planning to conduct such activities. The action agency determines whether their action(s) "may affect" the arroyo toad or its primary constituent elements within the adjacent critical habitat based on their analyses. If so, the action agency would enter into consultation with us under Section 7.

Comments Related to Economic Impacts and Analysis; Other Relevant Impacts

(62) Comment: Several commenters expressed concern that commercial activities, such as mining, mineral prospecting, agriculture, and new home construction would be prohibited or severely restricted by a designation of critical habitat. Similarly, other commenters felt that critical habitat is a good way to stop activities that they do not agree with, such as some of the activities mentioned above.
Our Response: Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or result in the destruction or adverse modification of critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the action agency ensures that their actions do not destroy or adversely modify critical habitat. Section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, and critical habitat designation would not provide any additional protections under the Act for private or non-Federal activities. Critical habitat does not prohibit private or commercial activities from occurring.
(63) Comment: Some commenters stated that critical habitat should not have been proposed before an analysis of economic and other relevant impacts was completed.
Our Response: Pursuant to 50 CFR 424.19, we are not required to conduct an economic analysis at the time critical habitat is initially proposed. We evaluated and used comments received on the April 28, 2004, proposed critical habitat designation to develop the draft economic analysis, as appropriate. On February 14, 2005 (70 FR 7459), we published a notice in the Federal Register announcing the availability of the draft economic analysis and reopening the public comment period for 30 days. In making this final critical habitat designation, we used the economic analysis and considered all comments and information submitted during the public comment periods.
(64) Comment: Several private property owners commented that their property should be removed from critical habitat because the economic burden to them would be too great.
Our Response: Extensive exclusions have been made for economic reasons (See Relationship of Critical Habitat to Economic Impacts--Exclusions Under Section 4(b)(2) of the Act).
(65) Comment: A couple of commenters stated that the Service should exclude all essential lands subject to the Rancho Mission Viejo Ranch Plan because the plan provides a conservation benefit to the arroyo toad.
Our Response: We have excluded these essential areas from critical habitat based on economic considerations (see the Relationship of Critical Habitat to Economic Impacts--Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).
(66) Comment: One commenter stated that the Service should exclude all essential lands where the proposed Foothill-South Transportation Corridor may be developed in southern Orange County because of the importance of the Corridor as a regional transportation solution and as a component of the Air Quality Management Plan.
Our Response: We have excluded these essential areas from critical habitat based on economic considerations (see the Relationship of Critical Habitat to Economic Impacts--Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).
(67) Comment: Several commenters questioned the accuracy of the 1.25-to-1 offsetting compensation ratio used by the draft economic analysis to estimate the amount of land that would potentially be set-aside due to arroyo toad conservation activities.
Our Response: The Service has conducted four formal consultations concerning real estate development effects on the arroyo toad and arroyo toad habitat. The draft economic analysis relies on the average offsetting compensation ratio requested by the Service as part of these four historical consultations. The draft economic analysis notes that actual offsetting compensation ratio used in any particular case will depend on a variety of factors unique to the circumstance at hand. The 1.25-to-1 factor is used in the draft economic analysis as an average for the purpose of forecasting future set-aside acres across all proposed critical habitat. Given that this estimate is based on the full population of formal consultations concerning residential development and the arroyo toad, it represents the best information available during the preparation of the draft economic analysis.
(68) Comment: A number of comments state that the draft economic analysis does not rely on appropriate real estate values to estimate land value losses from critical habitat designations.
Our Response: The draft economic analysis estimates the per-acre value of raw, unimproved, and residentially zoned land at 11 percent of the built value. The Service recognizes that the value of raw land as a percent of home price will depend on a variety of factors and can differ significantly by region. In general, raw land values for single-family homes of equal density are higher in areas with high land supply constraints. However, raw land values as a percent of home price also declines as density and development costs increase.
The draft economic analysis calculates residual land value based on an analysis that subtracts hard and soft real estate development costs from home prices in Southern California counties. The average home prices per county is based on data from Rand in *19573 2002, the most recent year available, and inflated to 2004 dollars. Development cost estimates are based on data from Square Foot Costs by RSMeans. Rand reports the median price per square foot for single-family homes by county calculated from California Association of Realtors transaction records. Residential values are assumed to appreciate at a rate of 3.4 percent per year in real terms (i.e., adjusted for inflation) over the next 21 years, or through 2025. To the extent that actual residual land values are higher or lower than those projected, the economic impacts will change accordingly.
(69) Comment: One commenter stated that the draft economic analysis fails to account for the limited supply of developable land and the corresponding impact on the Southern California housing market.
Our Response: The draft economic analysis evaluates the potential for critical habitat designation to reduce consumer surplus by increasing real estate market prices. The analysis concludes that critical habitat designation will not affect regional real estate markets or prices, and thus consumer surplus, because the total reduction in land supply is expected to represent a very small component of total future market demand in the region. Specifically, the estimated amount of developable acres of habitat set-aside within critical habitat designation is estimated at about 0.7 percent of future market growth through 2025 in the eight counties where arroyo toad critical habitat designation is proposed. Supply adjustments by developers, including increased density and/or project reconfigurations, are likely to further cancel the market impact of the relatively small land supply reduction created by critical habitat designation.
(70) Comment: One commenter stated that the draft economic analysis should consider costs at the census tract level.
Our Response: The draft economic analysis relies on the official real estate growth projections provided by SCAG, SANDAG and other regional agencies supported by the governmental jurisdictions located within arroyo toad critical habitat designation. These projections reflect economic and demographic trends at the county and regional level and incorporate local zoning and land use data at the census tract level. The draft economic analysis assumes that county-wide economic and demographic trends are the primary determinant of real estate prices. The draft economic analysis also acknowledges that the regional land supply is scarce relative to projected growth in several counties within the critical habitat designation. However, since the reduction in land supply resulting from critical habitat designation represents such a small fraction of the total market, the draft economic analysis assumes that it will not alter these regional market dynamics, or increase market prices resulting in consumer surplus losses.
(71) Comment: One commenter stated that the draft economic analysis focuses solely on the losses experienced by landowners as a result of critical habitat designation for the arroyo toad. In reality, housing projects generate a considerable amount of consumer surplus, and the temporary loss of this surplus is a major adverse effect of delay.
Our Response: The draft economic analysis does not calculate consumer surplus losses associated with delay for a variety of reasons. First, it is possible that consumers will not experience any delay in the consumption of housing given the negligible effect arroyo toad critical habitat designation is expected to have on overall housing markets (i.e., a variety of housing options exist and consumers may substitute between locations). Second, even if the real estate purchases of consumers are delayed, only a very small proportion of consumer surplus is likely to be lost as the delay period (estimated at six months in the first year after designation) is likely to be a small proportion of the ownership time horizon. Finally, consumer surplus losses due to delay, if any, are difficult to quantify.
(72) Comment: Several comments question the draft economic analysis estimates regarding the amount of land within arroyo toad critical habitat designation that would be developed absent arroyo toad conservation activities.
Our Response: The draft economic analysis relies primarily on development projections generated by SCAG and SANDAG to determine the number of acres slated for real estate development. The draft economic analysis only evaluates the impact of the proposed designation on land that is within the critical habitat designation and forecasted (by SCAG or SANDAG) to be developed by the year 2025. These projections suggest that absent critical habitat designation a significant portion of the proposed critical habitat designation will not be developed by 2025.
Though SCAG and SANDAG projections do rely on general plan and zoning information, these projections may not reflect very recent amendments and changes. In reality, specific projects not anticipated in the SCAG and SANDAG forecasts may be developed, just as other projects included in these forecasts may never materialize. An evaluation of every local land use plan or proposal that could potentially affect arroyo toad critical habitat designation, and its probability of success, is beyond the scope of the draft economic analysis and would not likely lead to more accurate results. SCAG and SANDAG represent the best publicly available data sources reporting future land development within the proposed arroyo toad critical habitat designation.
In addition, it is important to note that the draft economic analysis estimates future offsetting compensation (i.e., land set-aside) for arroyo toad impacts based on development projections and an offsetting compensation ratio. The estimated compensation for impacts to the arroyo toad is not in addition to specific measures already negotiated by regulators and project proponents. That is, in some cases, the draft economic analysis may estimate offsetting compensation when compensation has already been agreed upon by regulators and project proponents. The impacts estimated in the draft economic analysis should not be added to these existing agreements.
(73) Comment: One commenter stated that the draft economic analysis does not consider cumulative effects of the proposed rule.
Our Response: The draft economic analysis only evaluated potential effects of the rulemaking, however, we did take into consideration the potential efffects of overlaping designations while evaluating potential exclusions from the designation under section 4(b)(2) of the Act.
(74) Comment: One commenter stated that the draft economic analysis ignores arroyo toad-related delay impacts associated with transportation projects.
Our Response: Major road projects generally occur over a very long time horizon and require interaction with and support from variety of local, State, and Federal agencies, including environmental review (i.e., CEQA/NEPA). Arroyo toad critical habitat designation is one of many issues that will need to be addressed and resolved during the long time frame associated with the project approval, entitlement, and funding process. Although arroyo toad critical habitat designation may increase the costs associated with the construction or completion of a major road project, it is not expected to extend the normal time frame for a project of *19574 this nature. Consequently, the draft economic analysis does not estimate project delay costs associated with road construction projects.
(75) Comment: One commenter stated that the draft economic analysis ignores impacts on the Foothill Eastern Transportation Corridor Agency (TCA).
Our Response: While the draft economic analysis does not refer to TCA projects explicitly, the draft economic analysis does estimate future costs associated with road projects in critical habitat designation Units 10 and 11. These costs reflect estimated economic impacts borne by major road projects occurring within those areas. The costs of arroyo toad conservation activities on local (non-arterial) roads construction projects are not estimated separately in the draft economic analysis. Rather, these costs are assumed to be captured in the reduced land-value estimates.
The estimate of future road projects is based on an extrapolation of SANDAG transportation planning data to the entire study area. This approach was developed based on the best readily available data at the time of the draft economic analysis, given the resources allotted to the study. While it is possible that detailed information on specific planned or proposed road projects may be missed given this methodology, it is also possible that the draft economic analysis includes costs for projects that may in fact never materialize as projected. Overall, the Service believes that the approach utilized in the draft economic analysis represents a reasonable estimate of future road project costs.
The draft economic analysis also assumes that arroyo toad conservation activities are unlikely to have an appreciable affect on regional mobility. Consequently, the draft economic analysis does not attempt to measure the economic cost associated with reduced transportation accessibility.
(76) Comment: One commenter stated that the draft economic analysis should consider the implications of the Gifford Pinchot Task Force v. US Fish and Wildlife Service litigation.
Our Response: The draft economic analysis acknowledges that a recent Ninth Circuit judicial opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife Service, has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. The Service is currently reviewing the decision to determine what effect it (and to a limited extent Center for Biological Diveristy v. Bureau of Land Management (Case No. C-03-2509-SI, N.D. Cal.)) may have on the outcome of consultations pursuant to section 7 of the Act.
(77) Comment: One commenter stated that the draft economic analysis fails to estimate economic impacts of critical habitat designation on tribal reservation lands.
Our Response: The draft economic analysis estimates economic impacts attributable to arroyo toad critical habitat designation on tribal land. For example, development projections covering tribal lands are relied upon to estimate real estate development costs, infrastructure costs and road construction costs. However, due to data limitations, the impacts to tribal entities are not presented separately.
(78) Comment: The Service fails to use the proper baseline for the analysis.
Our Response: The draft economic analysis estimates the total cost of species conservation activities without subtracting the impact of pre-existing baseline regulations (i.e., the cost estimates are fully co-extensive). That is, th