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

Krista Cotter


Animal Legal & Historical Center
Publish Date:
2005
Place of Publication: Michigan State University College of Law
Printable Version

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

 

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

 

Vol. 70, No. 070United States Fish and Wildlife Service (FWS), 50 CFR Part 17, RIN 1018-AT42, 70 FR 19562

 

Action:  FINAL RULE

Effective:  5/13/05

 

Overview

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.

 

Case Law

1. In Center for Biological Diversity v. United States Fish and Wildlife Service, Nov. 5, 1999, the center brought a suit against the FWS for failing to designate critical habitat for seven species, one of which being the arroyo toad.  The court dismissed the centerís claim due to a settlement agreement reach by both parties.  Under the settlement, FWS agreement to submit a notice of proposed rulemaking in the Federal Register no later than 6/1/00.

 

2. In Building Industry Legal Defense Foundation (BILD) v. Norton, 231 F.Supp2d  100 (2002), BILD brought the case under the Endangered Species Act of 1973, challenging the adoption of critical habitat for the arroyo toad due to the allegation of numerous errors by the FWS in promulgating the final rule.  In response, FWS petitioned the court to abandon the 2/1/01 final rule and to allow time for the promulgation of a new final rule.  The court concluded that the 2/1/01 FWS final rule designating critical habitat for the arroyo toad was erroneous and vacation was warranted by seriousness of the orderís deficiencies.  The economic analysis completed by the FWS pursuant to the rule was arbitrary, capricious, and otherwise not in accordance with the law.  Additionally, the court found that vacation of the original final rule would not cause serious problems and granted the FWS an opportunity to revise and reissue the rule.

 

Why Does the Arroyo Toad Need Critical Habitat Protection?

-         Many arroyo toad populations have been hindered or eliminated due to agriculture, urbanization, and the construction of roads, campgrounds, flood control structures and water storage reservoirs that have continually destroyed its habitat since the 1920ís.

-         It is also believed that as a result of manipulation of water levels, the introduction of new aquatic predators, and habitat degradation from introduced plant species, coupled with the loss of habitat from the previous industrial harms has lead to the toadís elimination 76% of its previous habitat.

-         The arroyo toad was listed as endangered on December 16, 1994 (59 FR 64895).

 

Differences Between the 2/01 Final Rule and the Current Final Rule

2/01 Final Rule (66 FR 9414)

Current Final Rule (70 FR 19562)

1. Granted the arroyo toad 182,360 acres of critical habitat.

1.  Grants the arroyo toad 11,695 acres of critical habitat.

Reason:  the acreage was reduced because the FWS eliminated the areas of marginal quality in the critical habitat that they did not expect the toad to use, including developed areas, roads and busy thoroughfares, areas of too high of an altitude, and inaccessible streams. Also, FWS modified the distance away from a stream that is necessary to the toad as critical habitat, from a 4,921 ft. distance to a 1,640 distance, which drastically reduced the amount of acreage necessary for critical habitat.  Lastly, FWS identified some areas previously considered to be essential to the critical habitat of the toad as no longer essential.

2. The area designated as critical habitat are within Monterey, Santa Barbara, Ventura, Los Angeles, San Bernardino, Riverside, Orange, and San Diego counties in California.

2. The area designated as critical habitat is within Santa Barbara, Ventura, Los Angeles, San Bernardino and Riverside counties in California.

Reason:  as explained above, the acreage from the initial final rule to the current final rule has been greatly reduced, and as a result, there is no longer critical habitat in Monterey, Orange, and San Diego counties in California under the new designation.

3. The economic impact and negative impact analysis were found to be erroneous and invalid by the District Court for the District of Colombia.

3.  The economic and negative impact analysis was completed in compliance with the court order in BILD v. Norton.

 

 


 

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