Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Arroyo Toad (Bufo californicus, 19562-19633 [05-6824]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 70 (Wednesday, April 13, 2005)]
[Rules and Regulations]
[Pages 19562-19633]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6824]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / 
Rules and Regulations

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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; Final Designation 
of Critical Habitat for the Arroyo Toad (Bufo californicus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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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 https://Ventura.fws.gov or https://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

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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

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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)).

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    (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

[[Page 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

[[Page 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

[[Page 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

[[Page 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

[[Page 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 ar