[Federal Register Volume 70, Number 29 (Monday, February 14, 2005)]
[Proposed Rules]
[Pages 7459-7467]
From the Federal Register Online via the Government Publishing 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 http://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
[email protected]. 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 [email protected] 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 http://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
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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