Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Arroyo Toad (Bufo californicus, 7459-7467 [05-2846]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 29 (Monday, February 14, 2005)]
[Proposed Rules]
[Pages 7459-7467]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-2846]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT42


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revisions to proposed critical habitat, 
reopening of public comment period, and notice of availability of draft 
economic analysis.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
availability of a draft economic analysis for the proposed designation 
of critical habitat for the arroyo toad (Bufo californicus) under the 
Endangered Species Act of 1973, as amended (Act). We also announce that 
we have revised the methods for determining proposed essential and 
critical habitat areas for the arroyo toad. Additionally, we propose to 
exclude areas from the proposed designation from Units 1, 6, and 22 in 
Monterey, Los Angeles, and San Bernardino counties, under authority of 
section 4(b)(2) of the Act. Comments previously submitted on the 
proposed rule need not be resubmitted as they have been incorporated 
into the public record as a part of this reopening of the comment 
period, and will be fully considered in preparation of the final rule. 
Copies of the draft economic analysis and the proposed rule for 
critical habitat designation are available on the Internet at https://
ventura.fws.gov or from the Ventura Fish and Wildlife Office at the 
address and contact numbers below.

DATES: We will accept comments and information until 5 p.m. on March 
16, 2005. Any comments that we receive after the closing date may not 
be considered in the final decision on this proposal.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposed rule by any one of several methods:
    (1) You may submit written comments and information to Diane Noda, 
Field Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and 
Wildlife Office, 2493 Portola Road, Suite B, Ventura, California 93003.
    (2) You may hand-deliver written comments to our office, at the 
address given above.
    (3) You may fax your comments to 805/644-3958.
    (4) You may send comments by electronic mail (e-mail) to 
fw1artoch@r1.fws.gov. Please see the Public Comments Solicited section 
below for file format and other information about electronic filing. In 
the event that our internet connection is not functional, please submit 
your comments by the alternate methods described above.

FOR FURTHER INFORMATION CONTACT: Creed Clayton or Michael McCrary, 
Ventura Fish and Wildlife Office, at the address listed above 
(telephone 805/644-1766; facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited

    We intend any final action resulting from this proposal to be as 
accurate and as effective as possible. Therefore, we solicit comments 
and information from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning the proposed rule (69 FR 23254, April 28, 2004) and 
amendments, proposed exclusions, or the draft economic analysis for the 
arroyo toad. We particularly seek comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of exclusion outweigh the benefits of specifying 
such area as part of critical habitat;
    (2) Specific information on the amount and distribution of arroyo 
toad habitat, and what habitat is essential to the conservation of this 
species and why;
    (3) Land use designations and current or planned activities in the 
subject area and their possible impacts on proposed habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    (5) We request information on how many of the State and local 
environmental protection measures referenced in the draft economic 
analysis were adopted largely as a result of the listing of the arroyo 
toad, and how many were either already in place or enacted for other 
reasons;

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    (6) Whether the draft economic analysis identifies all State and 
local costs attributable to the proposed critical habitat designation. 
If not, what costs are overlooked;
    (7) Are the adjustments to local governments' economic data made by 
the draft economic analysis, as set out in its appendices, reasonable? 
If not, please provide alternative interpretations and the 
justification for the alternative and/or the reasons the interpretation 
in the draft economic analysis is not correct;
    (8) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely regulatory changes 
imposed as a result of the designation of critical habitat;
    (9) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with land use controls that derive 
from the designation;
    (10) Whether the designation will result in disproportionate 
economic impacts to specific areas that should be evaluated for 
possible exclusion from the final designation;
    (11) Whether the draft economic analysis appropriately identifies 
all costs that could result from the designation;
    (12) Whether the assumptions used in Appendix A of the draft 
economic analysis are valid; and
    (13) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    All previous comments and information submitted during the initial 
comment period on the proposed rule need not be resubmitted. If you 
wish to comment, you may submit your comments and materials concerning 
the draft economic analysis and the proposed rule by any one of several 
methods (see ADDRESSES section).
    Please submit internet comments to fw1artoch@r1.fws.gov in an ASCII 
file format and avoid the use of special characters and encryption. 
Please also include ``Attn: Arroyo Toad Critical Habitat'' in your e-
mail subject header, and your name and return address in the body of 
your message. If you do not receive a confirmation from the system that 
we have received your internet message, contact us directly by calling 
our Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT section).
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish for us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.
    Comments and materials received, as well as supporting 
documentation used in preparation of the proposal to designate critical 
habitat, will be available for inspection, by appointment, during 
normal business hours, in our Ventura Fish and Wildlife Office at the 
above address.
    Copies of the draft economic analysis and the proposed rule for 
critical habitat designation are available on the internet at https://
ventura.fws.gov or from the Ventura Fish and Wildlife Office at the 
address and contact numbers above. In the event that our internet 
connection is not functional, please obtain copies of documents 
directly from the Ventura Fish and Wildlife Office.

Background

    The arroyo toad is a small (adult length 2-3 inches (55-82 
millimeters)), dark-spotted toad, with females larger than males (59 FR 
64859). The arroyo toad is found in coastal and desert drainages from 
Monterey County, California, south into northwestern Baja California, 
Mexico. These systems are inherently dynamic, with marked seasonal and 
annual fluctuations in climatic regimes, particularly rainfall. Arroyo 
toad populations annually fluctuate due to natural climactic variations 
as well as other random events, such as fires and floods, coupled with 
the species specialized habitat requirements. Extensive habitat loss as 
a result of agriculture and urbanization, and the construction, 
operation, and maintenance of water storage reservoirs, flood control 
structures, roads, and recreational facilities such as campgrounds and 
off-highway vehicle parks, have caused many arroyo toad populations to 
be reduced in size or extirpated (eliminated) (59 FR 64859, December 
16, 1994). Threats to the species survival include loss of habitat, 
habitat modifications due to the manipulation of water levels in many 
central and southern California streams and rivers, predation from 
introduced aquatic species, and habitat degradation from introduced 
plant species. These threats have caused arroyo toads to be extirpated 
from about 75 percent of the previously occupied habitat in California.
    Pursuant to the Act, the species was federally-listed as endangered 
on December 16, 1994, due to habitat degradation, small population 
sizes, and predation (59 FR 64859). 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, building industry representatives filed a lawsuit 
against the Service challenging the designation of arroyo toad critical 
habitat (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. The court subsequently extended the 
deadline to March 31, 2005. On April 28, 2004, we proposed 
approximately 138,713 acres (ac) (56,133 hectares (ha)) as critical 
habitat for the arroyo toad (69 FR 23254) in compliance with the court 
order. Since our April 28, 2004, proposed designation, we have revised 
our methods as described below to identify 132,282 ac (53,533 ha) of 
essential habitat areas. Of the essential habitat, we also propose to 
exclude approximately 36,738 ac (14,867 ha) from the proposed 
designation. Therefore, after using our new methods, in addition to the 
proposed exclusions, we propose approximately 95,544 ac (38,668 ha) as 
critical habitat for the arroyo toad. Proposed critical habitat is 
located in Santa Barbara, Ventura, Los Angeles, Orange, San Bernardino, 
Riverside, and San Diego counties, California, as described in the 
proposed designation.
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographic area occupied by a species, at the time it 
is listed in accordance with the Act, on which are found those physical 
or biological features essential to the conservation of the species and 
that may require special management considerations or protection; and 
specific areas outside the geographic area occupied by a species at the 
time it is listed, upon a determination that such areas are essential 
for the conservation of the species. If the proposed rule is made 
final, section 7 of the Act will prohibit

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destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency. Federal 
agencies proposing actions affecting areas designated as critical 
habitat must consult with us on the effects of their proposed actions, 
pursuant to section 7(a)(2) of the Act.

Summary of Changes to the Proposed Rule

    As part of our proposed designation of critical habitat for the 
arroyo toad, we have made the following changes to our proposed 
designation:
    (1) We mapped critical habitat more precisely by eliminating 
habitat areas of marginal quality that we do not expect to be used by 
arroyo toads. In certain upland locations, we determined that busy, 
paved roads and railroads constituted barriers to toad movement into 
the uplands. These roads and railroads were found in areas of 
relatively steep slopes and were supported by steeply-constructed 
embankments. Where marginal upland habitat was found behind these 
barriers, it was removed from critical habitat because we do not 
consider it essential to the arroyo toad population. More precisely 
mapping critical habitat in this way led to a modest reduction in total 
acreage from the proposed rule.
    (2) Although we attempted to remove as many developed areas as 
possible before publishing the proposed rule (areas that have no value 
as arroyo toad habitat such as buildings and roads), we were not able 
to eliminate all developed areas. Since publication of the proposed 
rule, we were able to further eliminate a small amount of developed 
area, which has resulted in a more precise delineation of essential 
habitat containing one or more of the primary constituent elements. 
This resulted in a minor reduction in the total acreage published in 
the proposed rule. However, as it is not possible to remove each and 
every one of these features even at the refined mapping scale used, 
therefore the maps of the proposed designation still includes areas 
that do not contain primary constituent elements. These areas are not 
being proposed as critical habitat.
    (3) In some cases, an upstream or downstream boundary was expanded 
as a result of the 82-foot (ft) (25-meter (m)) elevational limit in the 
model we used to determine the extent of the essential upland habitat 
arroyo toads use for foraging. We changed this upland boundary to our 
original starting and ending points along a stream, leading to a minor 
reduction in the total acreage published in the proposed rule.
    (4) In subunit 6b, we have determined that San Francisquito Creek 
above the Newhall Ranch Road bridge does not contain the primary 
constituent elements to be considered arroyo toad critical habitat. 
This is because this area is drier than we had originally understood 
and lacks surface water for a sufficient duration during the spring 
time during most years to allow for arroyo toad tadpole development. 
Thus, this portion of San Francisquito Creek, which was included in the 
proposed rule, does not provide breeding habitat for arroyo toads, and 
we no longer consider it to be essential for the conservation of the 
species. Below the Newhall Ranch Road bridge, arroyo toads inhabiting 
the Santa Clara River may disperse into lower San Francisquito Creek to 
forage and aestivate; we still consider this reach of San Francisquito 
Creek to be essential habitat.
    (5) We no longer consider the arroyo toad habitat within subunit 
22b, a stretch of the Mojave River running through Victorville in San 
Bernardino County, to be essential to the conservation of the species. 
Although we do not have new data concerning arroyo toads in this area, 
we further analyzed and reevaluated the existing data (and lack 
thereof) to arrive at this decision. This subunit runs through the 
relatively urbanized area of Victorville and involves numerous private 
landowners. Much of the upland habitats along the Mojave River in this 
area have been developed, and even areas within the floodplain have 
been developed, which are protected by levees. Exotic predators of the 
arroyo toad have also invaded this portion of the river. Additionally, 
the occupancy of subunit 22b by arroyo toads is questionable at best. 
Arroyo toads were rumored to be calling in the Victorville area 
sometime during the 1990's, probably associated with the last 
significant El Nino event, but there have been no confirmed reports 
from this area since 1982. The recovery plan (Service 1999) states that 
arroyo toads are presumed extinct in this reach.
    (6) We revised the criteria we used to identify essential habitat. 
We truncated the upland habitat delineation at a distance of 1,640 ft 
(500 m) from streams, instead of 4,921 ft (1,500 m) from streams, if 
the 82-ft (25-m) elevation limit had not yet been reached at that 
point. The 82-ft (25-m) elevation limit was reached at distances less 
than 1,640 ft (500 m) from the mapped stream channel along the majority 
of the stream reaches, so the distance limit was often not a factor. We 
based this distance on the results of an arroyo toad study on Camp 
Pendleton in San Diego County (Holland and Sisk 2000), which is the 
most in-depth, complete study of the distribution and use of upland 
habitat by arroyo toads. Holland and Sisk (2000) used extensive pitfall 
trap arrays at different distances and locations, and operated the 
traps at different times of year over several years. Eighty-eight 
percent of the adult and sub-adult toads were captured in the riparian 
wash area. Although a few toads were caught at distances of 3,281 ft 
(1,000 m) or more from the riparian wash area, approximately 68 percent 
of the arroyo toads captured in upland habitats were within 1,640 ft 
(500 m). No arroyo toads have been located farther than 1,640 ft (500 
m) from a stream in any other study to our knowledge.
    (7) For a variety of reasons, we propose to exclude areas of 
essential habitat from the proposed critical habitat designation in 
units 1, 6, and 22. In these areas we believe the benefits of exclusion 
outweigh the benefits of inclusion, as further described below under 
Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act. In all cases, arroyo toad habitat proposed for exclusion is 
being protected through other plans, agreements, conservation 
agreements, or legal instruments. This exclusion would result in the 
reduction of 9,513 ac (3850 ha) of essential habitat from the 
designation. We request public comment on whether these areas should be 
excluded in the final designation, or whether they should be included 
in the designation.

Draft Economic Analysis

    Section 4 of the Act requires that we consider economic impacts, 
the impact on national security, and other relevant impacts prior to 
making a final decision on what areas to designate as critical habitat. 
We have prepared a draft economic analysis for the proposal to 
designate certain areas as critical habitat for the arroyo toad.
    Approximately 54 percent of the proposed critical habitat 
designation is privately owned land, 39 percent is under Federal 
ownership, six percent is State and locally owned, and two percent is 
Tribal. The draft economic analysis addresses the impacts of arroyo 
toad conservation efforts on activities occurring on lands proposed for 
designation as well as those proposed for exclusion. The analysis 
measures lost economic efficiency associated with real estate 
development; changes in water supply; grazing activities; mining 
activities; road construction projects; utility and other 
infrastructure projects;

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military activities; the California Environmental Quality Act (CEQA); 
uncertainty; delay; and habitat conservation plan creation. 
Additionally, impacts to regional economic output and jobs associated 
with possible increases in water prices borne by water consumers are 
considered.
    The draft economic analysis considers the potential economic 
effects of actions relating to the conservation of the arroyo toad, 
including costs associated with sections 4, 7, and 10 of the Act, and 
including those attributable to designating critical habitat. It 
further considers the economic effects of protective measures taken as 
a result of other Federal, State, and local laws that aid habitat 
conservation for the arroyo toad in essential habitat areas. The 
analysis considers both economic efficiency and distributional effects. 
In the case of habitat conservation, efficiency effects generally 
reflect the ``opportunity costs'' associated with the commitment of 
resources to comply with habitat protection measures (e.g., lost 
economic opportunities associated with restrictions on land use). This 
analysis also addresses how potential economic impacts are likely to be 
distributed, including an assessment of any local or regional impacts 
of habitat conservation and the potential effects of conservation 
activities on small entities and the energy industry. This information 
can be used by decision-makers to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
Finally, this analysis looks retrospectively at costs that have been 
incurred since the date the species was listed as an endangered species 
and considers those costs that may occur in the 20 years following the 
designation of critical habitat.
    Based on our draft economic analysis and comments received on the 
proposed rule, we are proposing to exclude from designation arroyo toad 
habitat in Monterey, Los Angeles, and San Bernardino Counties from all 
or portions of units 1, 6b, and 22a. See Application of Section 3(5)(A) 
and Exclusions Under Section 4(b)(2) of the Act.
    We solicit data and comments from the public on these draft 
documents, as well as on all aspects of the proposal. We may revise the 
proposal, or its supporting documents, to incorporate or address new 
information received during the comment period. In particular, we may 
exclude an area from critical habitat if we determine that the benefits 
of excluding the area outweigh the benefits of including the area as 
critical habitat, provided such exclusion will not result in the 
extinction of the species.
    Costs related to conservation activities for the arroyo toad 
pursuant to sections 4, 7, and 10 of the Act are estimated to be 
approximately $1 billion from 2004 to 2025. Overall, the real estate 
industry is calculated to experience the vast majority of estimated 
costs (primarily those associated with offsetting compensation or loss 
in land value), followed by water consumers and road construction 
projects. Of the 22 proposed critical habitat units (numbers 2 through 
23 in the proposed rule (69 FR 23254)), seven are expected to incur 
economic costs of greater than $50 million between 2004 and 2025. 
Annualized impacts of costs attributable to the designation are 
projected to be approximately $94 million. Because the majority of the 
costs are due to real estate development, the draft economic analysis 
focused on revising real estate costs associated with the current 
proposed critical habitat designation. We did not revise the non-real 
estate costs associated with the current proposed designation because 
of the time allotted to revise the draft economic analysis and the 
majority of costs are due to real estate development. Therefore, the 
costs to non-real estate sectors reflect the previous proposed critical 
habitat designation.

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

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species, at the time 
of listing, on which are found those physical and biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations and protection. Therefore, 
areas within the geographic area occupied by the species that do not 
contain the features essential for the conservation of the species are 
not, by definition, critical habitat. Similarly, areas within the 
geographic area occupied by the species that do not require special 
management also are not, by definition, critical habitat. To determine 
whether an area requires special management, we first determine if the 
essential features located there generally require special management 
to address applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the area does not require special management.
    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact of specifying any 
particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    In our critical habitat designations, we use both the provisions 
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those 
specific areas that we are proposing as critical habitat as well as for 
those areas that are formally proposed for designation as critical 
habitat. Lands we have found do not meet the definition of critical 
habitat under section 3(5)(A) or have excluded pursuant to section 
4(b)(2) include those covered by the following types of plans if they 
provide assurances that the conservation measures they outline will be 
implemented and effective: (1) Legally operative habitat conservation 
plans (HCPs) that cover the species; (2) draft HCPs that cover the 
species and have undergone public review and comment (i.e., pending 
HCPs); (3) Tribal conservation plans that cover the species; (4) State 
conservation plans that cover the species; (5) National Wildlife Refuge 
System Comprehensive Conservation Plans; (6) Endangered Species 
Management Plans prepared by the Army (where a 4(a)(3)(B) exclusion is 
not possible due to an unsigned Integrated Natural Resource Management 
Plan (INRMP)); and (7) adequate management plans or agreements that 
protect the primary constituent elements of the habitat.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species population, or the 
enhancement or restoration of its habitat within the area covered by 
the plan); (2) the plan provides assurances that the conservation 
management strategies and actions will be implemented (i.e., those 
responsible for implementing the plan are capable of accomplishing the 
objectives, and have an implementation schedule or adequate funding for 
implementing the management plan); and (3) the plan provides assurances

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that the conservation strategies and measures will be effective (i.e., 
it identifies biological goals, has provisions for reporting progress, 
and is of a duration sufficient to implement the plan and achieve the 
plan's goals and objectives).
    The proposed rule to designate critical habitat for the arroyo toad 
outlined various exclusions from critical habitat on military lands and 
lands protected by an HCP. In this notice we further propose to exclude 
from critical habitat for the arroyo toad the following areas under 
sections 3(5)(A) and/or 4(b)(2): unit 1 in its entirety encompassing 
6,771 ac (2,740 ha) (Fort Hunter-Liggett), subunit 6b in its entirety 
encompassing 2,363 ac (956 ha) (private lands), and a portion of 
subunit 22a encompassing 380 ac (154 ha) (private lands).

Fort Hunter-Liggett and Exclusion Under Sections 3(5)(A) and 4(b)(2)

    The arroyo toad occupies an approximately 17-mile (mi) (27-
kilometer (km)) segment of the San Antonio River at Fort Hunter 
Liggett. This arroyo toad population is essential to the conservation 
of the species because it is the northernmost known population located 
approximately 100 mi (160 km) north of the nearest documented extant 
population. Arroyo toads in this unit may experience climatic 
conditions not faced by toads at sites farther south. The protection of 
this area is essential to maintaining the complete genetic variability 
of the species and the full range of ecological settings within which 
it is found. This stretch of the San Antonio River is not dammed, 
provides excellent habitat for the arroyo toad, and supports one of the 
largest populations within the species northern region. We expect Fort 
Hunter Liggett to complete an INRMP, which is in a final draft form, 
during 2005 as described below. Because the INRMP is not signed and 
finalized, we are not considering non-inclusion of Arroyo toad habitat 
areas under 4(a)(3) of the Act.
    In the proposed rule, we considered but did not propose to include 
mission-essential training areas on Fort Hunter Liggett as critical 
habitat for the arroyo toad under section 4(b)(2) of the Act, because 
designation of critical habitat could adversely impact national 
security. The Army conducts training operations using landing fields, 
tanks, machine guns, grenade launchers, and other weapons at Fort 
Hunter Liggett. The Army has stated that it considers critical habitat 
to conflict with mission-essential training tasks, and that critical 
habitat designation would adversely affect Fort Hunter Liggett's 
training mission. The Army submitted a map to us of the mission-
essential training areas that are found within lands we determined to 
be essential to the conservation of the arroyo toad (Army, in litt. 
2003). During the public comment period for the proposal, the Army 
stated that we had incorrectly concluded that the only mission-
essential areas are the individual training sites. Rather, all Fort 
Hunter Liggett lands are essential for realistic and effective 
training. Thus, the designation of the areas we proposed as critical 
habitat would seriously limit their ability to conduct critical 
training activities.
    The Army recognizes the need for protection and conservation of 
sensitive species, including the arroyo toad, on military lands and has 
identified conservation measures to protect and conserve arroyo toads 
and their habitat. The Army has coordinated with us to finalize the 
development of their Endangered Species Management Plan (ESMP) for the 
arroyo toad at Fort Hunter Liggett, which currently guides management 
of all lands occupied by arroyo toads along the San Antonio River. The 
ESMP includes measures to minimize harm to the arroyo toad from 
training activities and outlines actions to ensure the persistence of 
arroyo toads on the installation. The ESMP is an appendix to, and part 
of, the INRMP for Fort Hunter Liggett. We expect the INRMP, which is in 
a final draft form, to be finalized and signed in 2005. We have 
reviewed Fort Hunter Liggett's ESMP in relation to the three criteria 
listed above for evaluating management plans, and we find that the ESMP 
meets the criteria.
(1) Benefits of Inclusion
    The primary benefit of any critical habitat with regard to 
activities that require consultation pursuant to section 7 of the Act 
is to ensure that the activity will not destroy or adversely modify 
designated critical habitat. The educational benefits of critical 
habitat include informing the Army of areas that are important to the 
conservation of listed species. However, because the Army has worked 
cooperatively with the Service to develop an ESMP that protects the 
toad and its essential habitat on Fort Hunter Liggett, and the nearly 
finalized INRMP is expected to be completed in 2005 (for which we will 
complete a Section 7 consultation), we do not believe that designation 
of critical habitat on the fort will significantly benefit the arroyo 
toad beyond the protection already afforded the species under the Act. 
In addition, through the INRMP development process and development of 
the ESMP for the arroyo toad, the Army is already aware of essential 
arroyo toad habitat areas on the installation.
(2) Benefits of Exclusion
    Substantial benefits are expected to result from the exclusion of 
Fort Hunter Liggett from critical habitat. The Army has stated that all 
training and non-training areas together are integral to their mission 
of ensuring troop readiness. If we designate critical habitat on the 
base, the Army would be required to engage in consultation with us on 
activities that may affect designated critical habitat. The requirement 
to consult on activities occurring on the base could delay and impair 
the ability of the Army to conduct effective training activities and 
limit Fort Hunter Liggett's utility as a military training 
installation, thereby adversely affecting national security.
    In addition, exclusion of Fort Hunter Liggett lands from the final 
designation will allow us to continue working with the Army in a spirit 
of cooperation and partnership. In the past the Army has generally 
viewed the designation of critical habitat as having a negative 
regulatory effect that discourages cooperative and proactive efforts by 
the Army to conserve listed species and their habitats. The Department 
of Defense generally views designation of critical habitat on military 
lands as an indication that their actions to protect the species and 
its habitat are inadequate. Excluding these areas from the perceived 
negative consequences of critical habitat will facilitate cooperative 
efforts between the Service and the Army to formulate the best possible 
INRMP and ESMP and continue effective management of the arroyo toad at 
Fort Hunter Liggett.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We met with the Army on December 12, 2003, at Fort Hunter Liggett 
to discuss essential arroyo toad habitat, and possible impacts to the 
base. We also received extensive comments from the Army during the 
public comment period. In light of national security interests and the 
Army's need to maintain a high level of readiness and fighting 
capabilities, and in light of the Army's completed ESMP for the arroyo 
toad, we propose to exclude from proposed critical habitat designation 
all lands on Fort Hunter Liggett. We find that the benefits of 
excluding these lands from critical habitat outweigh the benefits of 
including them. We further find that the exclusion of these areas

[[Page 7464]]

will not lead to the extinction of the arroyo toad because Army 
training activities are conducted primarily outside of the riparian 
corridor where toads are concentrated and the ESMP is expected to 
effectively manage for the persistence of the San Antonio River 
population.

Private Land and Exclusion Under Sections 3(5)(A) and 4(b)(2)

    Approximately 80 percent of imperiled species in the United States 
occur partly or solely on private lands where the Service has little 
management authority (Wilcove et al. 1996). Proactive voluntary 
conservation efforts are necessary to prevent the extinction and 
promote the recovery of the arroyo toad on private lands in southern 
California. We believe that the arroyo toad population within subunit 
6b and 22a will benefit from landowner conservation actions due to the 
protection of arroyo toad breeding and foraging habitat. The 
conservation benefits of critical habitat are primarily regulatory or 
prohibitive in nature. Where consistent with the discretion provided by 
the Act, we believe it is necessary to implement policies that provide 
positive incentives to private landowners to voluntarily conserve 
natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1998). Thus, we believe it is essential 
for the recovery of the arroyo toad to build on continued conservation 
activities with private partners, and to provide positive incentives 
for other private landowners who might be considering implementing 
voluntary conservation activities, but have concerns about incurring 
incidental regulatory or economic impacts.
    The recovery of listed species is highly dependent on developing 
working partnerships with a wide variety of entities, and the voluntary 
cooperation of non-Federal landowners and others is essential to 
accomplishing recovery for listed species (Crouse et al. 2002). Much of 
the land within this designation that is suitable for conservation of 
the arroyo toad is owned by private landowners; therefore, successful 
recovery of the arroyo toad is especially dependent upon working 
partnerships and the voluntary cooperation of non-Federal landowners.
    Several private landowners provided extensive comments during the 
public comment period after learning that critical habitat had been 
proposed over some or all of their land. Some of these landowners have 
approached us and identified their efforts to protect arroyo toad 
habitat on their land and in some cases offered increased protection of 
arroyo toad habitat. Those cases where we believe adequate protection 
of arroyo toad habitat on private land warrants an exclusion from 
critical habitat are discussed below.

Subunit 6b

    As discussed above in the Summary of Changes section, we have 
determined that San Francisquito Creek above the Newhall Ranch Road 
bridge does not contain the primary constituent elements of arroyo toad 
critical habitat, and therefore, we no longer consider this portion of 
San Francisquito Creek to be essential for the conservation of the 
species. However, we consider the remainder of subunit 6b, including 
lower San Francisquito Creek below the Newhall Ranch Road bridge, to be 
essential habitat.
    The Natural River Management Plan (NRMP) (Valencia Company 1998) 
protects most of the river corridor areas considered essential for the 
arroyo toad along the Santa Clara River and San Francisquito Creek 
through subunit 6b with conservation easements, which total 
approximately 1,200 ac (486 ha). The NRMP was developed to allow for 
the development of upland areas along the Santa Clara River, while 
protecting the river corridor as wildlife habitat. We included this 
area in the critical habitat proposal because the NRMP does not require 
protection of all river corridor habitats in this area. We were also 
concerned because, as written in the NRMP, protection could be delayed 
for up to 20 years beyond initiation of the NRMP. Another concern was 
that upland habitats along the rivers are not protected under the NRMP.
    Since the proposal was published, it has also come to our attention 
that more of the river corridor and upland habitat is protected than we 
previously believed. Lands owned by the city of Santa Clarita (upstream 
from the Southern California Gas Company pipeline), which is adjacent 
to land covered by the NRMP and contains riparian habitat within the 
river corridors of the Santa Clara River and San Francisquito Creek and 
upland habitat adjacent to these river corridors, is protected from 
development as ``buffer lots.'' Additionally, the Newhall Ranch 
Specific Plan (separate from the NRMP) includes protection via 
conservation easement for the Santa Clara River corridor from just 
above the confluence of Castaic Creek down to the Los Angeles County 
border. The Castaic Creek river corridor below the I-5 bridge would be 
protected via conservation easement as well.
    Thus, most all of the breeding habitat and riparian river corridor 
within lands considered essential for the conservation of the species 
in this subunit is protected or designated for protection via 
conservation easement. Ultimately these easements will extend along 
every river mile of Castaic Creek, San Francisquito Creek, and the 
Santa Clara River within subunit 6b.
    It has also come to our attention that the conservation easements 
protecting these reaches of the river corridor are being conveyed much 
more rapidly than the 20-year deadline established in the NRMP. Two 
conservation easements totaling 427 ac (173 ha) protecting arroyo toad 
habitat have already been conveyed to the California Department of Fish 
and Game, one protecting lower San Francisquito Creek and the other 
protecting the Santa Clara River below Bouquet Canyon bridge.
    Upon closer examination of the upland habitats bordering the river 
corridors of the Santa Clara River, San Francisquito Creek, and Castaic 
Creek, we have found that very little of these lands remain as native 
habitats that would be useable as foraging areas by arroyo toads. The 
vast majority of these lands are either developed, used for intensive 
agriculture, or are inaccessible to arroyo toads due to busy roads or 
very steep slopes. Fortunately, much of the Santa Clara River corridor 
is rather broad in this area, providing arroyo toad foraging and 
burrowing habitat outside of the active river channel, yet still within 
the broader floodplain and riparian habitats that are protected within 
the river corridor.
    Finally, Newhall Land has offered to protect additional acres of 
prime arroyo toad habitat within the Santa Clara River corridor for the 
arroyo toad via conservation easement.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is that 
federally funded or authorized activities in such habitat that may 
affect it require consultation under section 7 of the Act. Such 
consultations ensure that adequate protection is provided to avoid 
adverse modification of critical habitat. All critical habitat units 
within this designation are occupied. In the absence of critical 
habitat, any section 7 consultation for potential adverse effects to 
the species would not ensure adverse modification of critical habitat 
is avoided; however, the consultation would ensure the proposed action 
would not jeopardize the continued existence of the species in the 
wild.
    Designation of critical habitat also provides important information 
on

[[Page 7465]]

those habitats and their primary constituent elements that are 
essential to the conservation of the species. This information is 
particularly important to any Federal agency, State, county, local 
jurisdiction, conservation organization, or private landowner that may 
be evaluating adverse actions or implementing conservation measures 
that involve those habitats.
(2) Benefits of Exclusion
    The conservation easements that have been conveyed to the 
California Department of Fish and Game over the Santa Clara River 
corridor and San Francisquito Creek, and those that will be put in 
place over the next several years to extend protection along the Santa 
Clara River corridor and Castaic Creek, are designed to ensure that the 
property will forever remain in a natural condition. Use of the 
property is (or will be) confined to the preservation and enhancement 
of native species and their habitats, including the arroyo toad and its 
habitat. These conservation easements provide greater protection of the 
most crucial arroyo toad breeding and foraging habitat in this area 
than could be gained through the designation of critical habitat. And, 
as stated above, very little of the upland habitats remain in a natural 
condition and useable as foraging areas by arroyo toads. Additionally, 
we have already completed consultation on the effects of the NRMP on 
the arroyo toad and found that it would not jeopardize the continued 
existence of the species.
    Newhall Land has also indicated that they are willing to further 
protect arroyo toad habitat within the Santa Clara River corridor by 
increasing the size of one of the conservation easements required by 
the NRMP. They have offered to include in a future conservation 
easement a combined total of approximately 47 ac (19 ha) of currently 
unprotected riparian habitats along the Santa Clara River downstream 
from the Interstate 5 bridge. Newhall Land would likely withdraw their 
offer to protect these riparian habitats, which are useable by arroyo 
toads for foraging and burrowing, were we to designate critical habitat 
in this area. The protection of these riparian habitats, along with the 
areas protected under the NRMP, also provide conservation benefits to 
other listed and sensitive species (e.g., least Bell's vireo (Vireo 
bellii pusillus) and unarmored threespine stickleback (Gasterosteus 
aculeatus williamsoni)). Imposing an additional regulatory review after 
working cooperatively with landowners to increase protection in this 
area solely as a result of the designation of critical habitat may 
undermine existing and future conservation efforts and partnerships. 
Designation of critical habitat within the boundaries of the NRMP, or 
similar plans that include substantial conservation easements over 
wildlife habitat, could also be viewed as a disincentive to property 
owners contemplating future protection of arroyo toad or other wildlife 
habitat. By excluding these lands, we preserve our current partnerships 
and encourage additional conservation actions in the future.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of critical habitat designation on lands 
within subunit 6b are small while the benefits of excluding such lands 
from designation of critical habitat are greater. After weighing the 
small benefits of including these lands against the greater benefits 
derived from excluding them, including the protection via conservation 
easement of high-quality riparian habitats, relieving property owners 
of an additional layer of approvals and regulation, encouraging the 
pursuit of additional conservation partnerships, and reducing the 
overall cost of designating critical habitat for the arroyo toad, we 
have proposed to exclude the land within subunit 6b from proposed 
critical habitat designation. Because of protection provided for the 
toad and its habitat via conservation easement along the Santa Clara 
River, San Francisquito Creek, and Castaic Creek, and due to the 
various arroyo toad populations found elsewhere, the exclusion of 
essential arroyo toad habitat within subunit 6b will not result in the 
extinction of the species. Federal actions in areas occupied by the 
toad will still require consultation under section 7 of the Act.

Subunit 22a (in part)

    During the public comment period, Rancho Las Flores, LLC, submitted 
comments that included a description of their efforts to protect arroyo 
toad habitat in Summit Valley, San Bernardino County. The Rancho Las 
Flores Planned Community (Rancho Las Flores) consists of approximately 
9,800 ac (3,966 ha) in Summit Valley surrounding Horsethief Creek and 
the West Fork of the Mojave River. A portion of Rancho Las Flores falls 
within subunit 22a. Plans for phases 1, 2, and 3 of Village 1, which is 
within the larger Rancho Las Flores Planned Community, have been 
submitted to us, and we completed a section 7 consultation for the 
project. Included in the project proposal is the stipulation that a 
conservation easement will be placed over 290 ac (117 ha) of prime 
arroyo toad habitat within the river corridors of Horsethief Creek and 
the West Fork of the Mojave River. Conservation measures incorporated 
into the project description for Rancho Las Flores, along with the 
conservation easement that would be designed to maintain and enhance 
habitat quality for the arroyo toad, include measures to reduce impacts 
from humans, cattle, and arroyo toad predators, minimize impacts from 
development, monitor the status of the arroyo toad, and remove exotic 
species. The plan also contains requirements for the funding of arroyo 
toad habitat maintenance and improvement measures necessary for the 
conservation easement. Additionally, Rancho Las Flores has spent 
roughly $200,000 conducting a 3-year arroyo toad habitat usage study, 
which has already contributed significantly to our overall knowledge of 
arroyo toad ecology and movement patterns (Ramirez 2003). Of the Rancho 
Las Flores land in subunit 22a that is essential for the conservation 
of the species, the best breeding and foraging habitats within the 
river corridor are designated for protection via the conservation 
easement.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is that 
federally-funded or authorized activities in such habitat that may 
affect it require consultation under section 7 of the Act. Such 
consultations ensure that adequate protection is provided to avoid 
adverse modification of critical habitat. All critical habitat units 
within this designation are occupied. In the absence of critical 
habitat, any section 7 consultation for potential adverse effects to 
the species would not ensure adverse modification of critical habitat 
is avoided; however, the consultation would ensure the proposed action 
would not jeopardize the continued existence of the species in the 
wild.
    Designation of critical habitat also provides important information 
on those habitats and their primary constituent elements that are 
essential to the conservation of the species. This information is 
particularly important to any Federal agency, State, county, local 
jurisdiction, conservation organization, or private landowner that may 
be evaluating adverse actions or implementing conservation measures 
that involve those habitats.
(2) Benefits of Exclusion
    Rancho Las Flores plans to protect 290 ac (117 ha) of prime arroyo 
toad

[[Page 7466]]

habitat via conservation easement within the river corridors of 
Horsethief Creek and the West Fork of the Mojave River. This land will 
forever remain in a natural condition, and its use will be confined to 
the preservation and enhancement of arroyo toad habitat and that of 
other native species. The conservation easement will provide greater 
protection of the most crucial arroyo toad breeding and foraging 
habitat in this area than could be gained through the designation of 
critical habitat. We have already completed consultation pursuant to 
Section 7 of the Act on the effects of Phases 1, 2, and 3 of Village 1 
on the arroyo toad and found that this project would not jeopardize the 
continued existence of the species. The protection of these aquatic and 
riparian habitats also provides conservation benefits to other listed 
and sensitive species (e.g., bald eagle (Haliaeetus leucocephalus)). 
Imposing an additional regulatory review after working cooperatively 
with landowners to increase protection in this area solely as a result 
of the designation of critical habitat may undermine existing and 
future conservation efforts and partnerships. Designation of critical 
habitat within the boundaries of Phases 1, 2, and 3 of Village 1, or 
similar plans that include substantial conservation easements over 
wildlife habitat, could also be viewed as a disincentive to property 
owners contemplating future protection of arroyo toad or other wildlife 
habitat. By excluding these lands, we preserve our current partnerships 
and encourage additional conservation actions in the future.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of critical habitat designation on lands 
in subunit 22a within Phases 1, 2, and 3 of Village 1 at Rancho Las 
Flores are small while the benefits of excluding such lands from 
designation of critical habitat are greater. After weighing the small 
benefits of including these lands against the greater benefits derived 
from excluding them, including the protection via conservation easement 
of high-quality arroyo toad breeding and foraging habitats, relieving 
property owners of an additional layer of approvals and regulation, 
encouraging the pursuit of additional conservation partnerships, and 
reducing the overall cost of designating critical habitat for the 
arroyo toad, we have proposed to exclude the land within Phases 1, 2, 
and 3 of Village 1 from the proposed critical habitat designation. 
Because of protection provided for the toad and its habitat via 
conservation easement along Horsethief Creek and the West Fork of the 
Mojave River, and due to the various arroyo toad populations found 
elsewhere, the exclusion of essential arroyo toad habitat within Phases 
1, 2, and 3 of Village 1 will not result in the extinction of the 
species. Federal actions in areas occupied by the toad still require 
consultation under section 7 of the Act.

Required Determinations--Amended

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, it is not anticipated to have an annual effect on the economy 
of $100 million or more or affect the economy in a material way. Due to 
the timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) has not formally reviewed the proposed 
rule.

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

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

[[Page 7467]]

An annual impact to less that one percent (17 projects and therefore 
businesses--assuming one project per business) of land development 
small businesses and that those businesses could realize an impact of 
approximately 20 percent of total annual sales; (2) an annual impact to 
less that one percent (one farm) of small fruit and nut farms and that 
that farm would realize an impact of less than three percent of total 
annual sales; (3) an annual impact to less that one percent of cattle 
ranches (one ranch) and that the ranch would realize an impact of less 
than approximately $100,000 of total annual sales; (4) an annual impact 
to less that one percent of small viticulture firms (one firm) and that 
the firm would realize an impact of less than approximately five 
percent of total annual sales; and (5) an annual impact to less that 
one percent of small governments as a percent of the county total and 
small governments would realize an impact of less than one percent of 
annual government budget. Based on this data we have determined that 
this proposed designation would not affect a substantial number of 
small land development companies, fruit and nut farms, or cattle 
ranches. Further, we have determined that this proposed designation 
would also not result in a significant effect to the annual sales of 
those small businesses impacted by this proposed designation. As such, 
we are certifying that this proposed designation of critical habitat 
would not result in a significant economic impact on a substantial 
number of small entities. Please refer to Appendix A of our draft 
economic analysis of this designation for a more detailed discussion of 
potential economic impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule is 
considered a significant regulatory action under E.O. 12866 due to it 
potentially raising novel legal and policy issues, but it is not 
expected to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant action and no Statement of 
Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. (At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for the arroyo toad, only two small 
local governments are located within the boundaries of the proposed 
designation that may be affected. Based on the analysis, it appears 
that these two governments may be required to consult with us on the 
designation over the next 20 years and that the cost of the 
consultations may result in an impact of less that one percent of the 
total annual budget of each of the cities. Consequently, we do not 
believe that the designation of critical habitat for the arroyo toad 
will significantly or uniquely affect these two small governmental 
entities. As such, a Small Government Agency Plan is not required.

Takings

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

Author

    The primary author of this notice is the Ventura Fish and Wildlife 
Office (see ADDRESSES section).

Authority

    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).

    Dated: February 7, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-2846 Filed 2-10-05; 10:18 am]
BILLING CODE 4310-55-P