52612 Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2009–0069; 

92210–1117–0000–B4] 

RIN 1018–AV89 

Endangered and Threatened Wildlife 

and Plants; Revised Critical Habitat for 

the Arroyo Toad (Anaxyrus 

californicus) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

revise designated critical habitat for the 

arroyo toad (Anaxyrus californicus), 

pursuant to the Endangered Species Act 

of 1973, as amended (Act). The previous 

final rule designated 11,695 acres (ac) 

(4,733 hectares (ha)) of critical habitat 

and was published in the Federal 

Register (FR) on April 13, 2005. We now 

propose to designate approximately 

109,110 ac (44,155 ha) of lands located 

in Santa Barbara, Ventura, Los Angeles, 

San Bernardino, Riverside, Orange, and 

San Diego Counties, California, which, 

if finalized as proposed, would result in 

an increase of approximately 97,415 ac 

(39,422 ha) of critical habitat. 

DATES: We will consider comments we 

receive on or before December 14, 2009. 

We must receive requests for public 

hearings, in writing, at the address 

shown in the FOR FURTHER INFORMATION

CONTACT section by November 27, 2009. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments to 

Docket No. FWS–R8–ES–2009–0069. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8– 

ES–2009–0069, Division of Policy and 

Directives Management, U.S. Fish and 

Wildlife Service, 4401 N. Fairfax Drive, 

Suite 222, Arlington, VA 22203. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: For 

general information on the proposed 

designation and information about the 

proposed revised designation in Santa 

Barbara and Ventura Counties, northern 

Los Angeles County, and the desert 

portion of San Bernardino County, 

contact Diane Noda, Field Supervisor, 

or Michael McCrary, Listing and 

Recovery Coordinator, Ventura Fish and 

Wildlife Office, U.S. Fish and Wildlife 

Service, 2493 Portola Road, Suite B, 

Ventura, CA 93003; telephone (805) 

644–1766; facsimile (805) 644–3958. 

For information about the proposed 

revised designation in the remaining 

portions of Los Angeles and San 

Bernardino Counties, as well as 

Riverside, Orange, and San Diego 

Counties, contact Jim Bartel, Field 

Supervisor, Carlsbad Fish and Wildlife 

Office, U.S. Fish and Wildlife Service, 

6010 Hidden Valley Road, Suite 101, 

Carlsbad, CA 92011; telephone (760) 

431–9440; facsimile (760) 431–9624. 

If you use a telecommunications 

device for the deaf (TDD), call the 

Federal Information Relay Service 

(FIRS) at (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend any final action resulting 

from this proposed revised rule to be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from the public, other 

government agencies, Tribes, the 

scientific community, industry, or other 

interested parties concerning this 

proposed rule. We particularly seek 

comments concerning: 

1. The reasons why we should or 

should not revise the designation of 

habitat as ‘‘critical habitat’’ under 

section 4 of the Endangered Species Act 

of 1973, as amended (Act; 16 U.S.C. 

1531 et seq.), including whether there 

are threats to the species from human 

activity, the degree of which can be 

expected to increase due to the 

designation, and whether that increase 

in threat outweighs the benefit of 

designation such that the designation of 

critical habitat is not prudent; 

2. Specific information on: 

• The amount and distribution of 

arroyo toad habitat included in this 

proposed revised rule, 

• What areas within the geographical 

area occupied by the species at the time 

of listing contain features essential to 

the conservation of the species and why, 

and 

• What areas outside the geographical 

area occupied by the species at the time 

of listing are essential for the 

conservation of the species and why; 

3. Land-use designations and current 

or planned activities in the subject areas 

and their possible effects on proposed 

revised critical habitat; 

4. Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation. We 

are particularly interested in any 

impacts on small entities, and the 

benefits of including or excluding areas 

that exhibit these impacts; 

5. Comments or information that may 

assist us in identifying or clarifying the 

primary constituent elements and the 

resulting physical and biological 

features essential to the conservation of 

the arroyo toad; 

6. How the proposed revised critical 

habitat boundaries could be refined to 

more closely circumscribe the 

landscapes identified as essential; 

7. Information regarding Trabuco 

Creek in Orange County and any special 

management considerations or 

protection that any essential physical or 

biological features in this area may 

require; 

8. Information regarding the San 

Diego River in San Diego County from 

just below El Capitan Reservoir 

downstream to the confluence with San 

Vicente Creek, and any special 

management considerations or 

protection that any essential physical or 

biological features in this area may 

require; 

9. Whether the potential exclusion 

under section 4(b)(2) of the Act of nonFederal lands covered by the Western 

Riverside County Multiple Species 

Habitat Conservation Plan from final 

revised critical habitat is or is not 

appropriate and why; 

10. Whether the potential exclusion 

under section 4(b)(2) of the Act of nonFederal lands covered by the San Diego 

Multiple Species Conservation 

Program–City and County of San Diego’s 

Subarea Plans from final revised critical 

habitat is or is not appropriate and why; 

11. Whether the potential exclusion 

under section 4(b)(2) of the Act of nonFederal lands covered by the Coachella 

Valley Multiple Species Habitat 

Conservation Plan from final revised 

critical habitat is or is not appropriate 

and why; 

12. Whether the potential exclusion 

under section 4(b)(2) of the Act of nonFederal lands covered by the Orange 

County Central–Coastal Subregional 

Habitat Conservation Plan/Natural 

Community Conservation Plan from 

final revised critical habitat is or is not 

appropriate and why; 

13. Whether the potential exclusion 

under section 4(b)(2) of the Act of nonFederal lands covered by the Southern 

Orange County Natural Community 

Conservation Plan/Master Streambed 

Alteration Agreement/Habitat 

Conservation Plan from final revised 

critical habitat is or is not appropriate 

and why; 


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14. Whether the conservation needs of 

the arroyo toad can be achieved or not 

by limiting the designation of final 

revised critical habitat to non-Tribal 

lands and why; 

15. Whether the potential exclusion 

under section 4(b)(2) of the Act of Tribal 

lands of the Rincon Band of Luisen ̃ o 

Mission Indians from final revised 

critical habitat is or is not appropriate 

and why; 

16. Whether the potential exclusion 

under section 4(b)(2) of the Act of Tribal 

lands of the Pala Band of Luisen ̃o 

Mission Indians from final revised 

critical habitat is or is not appropriate 

and why; 

17. Whether the potential exclusion 

under section 4(b)(2) of the Act of Tribal 

lands of the Sycuan Band of the 

Kumeyaay Nation from final revised 

critical habitat is or is not appropriate 

and why; 

18. Whether the potential exclusion 

under section 4(b)(2) of the Act of Tribal 

lands of the Capitan Grande Band of 

Diegueno Mission Indians from final 

revised critical habitat is or is not 

appropriate and why; 

19. Whether the potential exclusion 

under section 4(b)(2) of the Act of Tribal 

lands of the Mesa Grande Band of 

Diegueno Mission Indians from final 

revised critical habitat is or is not 

appropriate and why; 

20. Whether our exemption under 

section 4(a)(3)(B) of the Act of the lands 

on Department of Defense land at 

Marine Corps Base, Camp Pendleton, in 

San Diego County; Fallbrook Naval 

Weapons Station in San Diego County; 

and Fort Hunter Liggett Military 

Reservation in San Luis Obispo County 

is or is not appropriate, and why; 

21. Information on any quantifiable 

economic costs or benefits of the 

proposed revised designation of critical 

habitat; 

22. Whether the benefit of exclusion 

of any other particular area not 

specifically identified above outweighs 

the benefit of inclusion under section 

4(b)(2) of the Act; 

23. Information on the currently 

predicted effects of climate change on 

the arroyo toad and its habitat; 

24. Any foreseeable impacts on energy 

supplies, distribution, and use resulting 

from the proposed revised designation 

and, in particular, any impacts on 

electricity production, and the benefits 

of including or excluding any particular 

areas that exhibit these impacts; and 

25. Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

Our final determination concerning 

revised critical habitat for the arroyo 

toad will take into consideration all 

written comments received during the 

comment period, including comments 

requested from peer reviewers, 

comments received during a public 

hearing should one be requested, and 

any additional information we receive 

during the 60-day comment period. Our 

final determination will also consider 

all written comments and any 

additional information we receive 

during the comment period for the draft 

economic analysis. All comments will 

be included in the public record for this 

rulemaking. On the basis of peer 

reviewer and public comments, we may, 

during the development of our final 

determination, find that areas within 

those proposed do not meet the 

definition of critical habitat, that some 

modifications to the described 

boundaries are appropriate, or that areas 

are or are not appropriate for exclusion 

under section 4(b)(2) of the Act. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. 

We will post your entire comment— 

including your personal identifying 

information—on http:// 

www.regulations.gov. If you provide 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy comments on 

http://www.regulations.gov. Please 

include sufficient information with your 

comment to allow us to verify any 

scientific or commercial data you 

submit. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Ventura Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

You may obtain copies of the 

proposed revised rule by mail from the 

Ventura Fish and Wildlife Office (see 

FOR FURTHER INFORMATION CONTACT) or 

by visiting the Federal eRulemaking 

Portal at http://www.regulations.gov. 

Background 

It is our intent to discuss only those 

topics directly relevant to the revised 

designation of critical habitat in this 

proposed rule. Additional information 

on the arroyo toad may also be found in 

the final listing rule published in the 

Federal Register on December 16, 1994 

(59 FR 64859), the ‘‘Recovery Plan for 

the Arroyo Southwestern Toad’’ 

(recovery plan; Service 1999), and the 

designation of critical habitat for the 

arroyo toad published in the Federal 

Register on April 13, 2005 (70 FR 

19562). These documents are available 

on the Ventura Fish and Wildlife Office 

and Carlsbad Fish and Wildlife Office 

Web sites at http://www.fws.gov/ventura 

and http://www.fws.gov/carlsbad. 

However, please note that this proposed 

rule incorporates new information on 

the distribution of arroyo toads that 

became available since the 2005 final 

critical habitat designation for this 

species. 

Taxonomy and Nomenclature 

On December 16, 1994, we published 

a final rule listing the arroyo 

southwestern toad (Bufo microscaphus 

californicus) as endangered (59 FR 

64859). This animal, originally 

described as Bufo cognatus californicus 

(Camp 1915, p. 331), has consistently 

been treated as a distinct taxon. 

However, its rank as a subspecies or 

species and taxonomic affiliations with 

other species has changed several times 

since it was described. Myers (1930, 

p. 75) elevated it to species rank as Bufo 

californicus citing morphological, 

vocalization, and ecological data to 

distinguish it from B. cognatus. 

Subsequent to Myers’ paper, other 

authors again relegated the animal to 

subspecies rank aligned with various 

other species of Bufo. The name in use 

at the time of listing, Bufo microscaphus 

californicus, was published by Stebbins 

(1951, p. 275). 

Since the toad was listed, an analysis 

of allozyme data (Gergus 1998, p. 322) 

supports recognition of Bufo 

californicus as separate from B. 

microscaphus. In addition, a 

phylogenetic analysis of comparative 

anatomical and molecular genetic data 

for amphibians (Frost et al. 2006, p. 363) 

segregated the Nearctic taxa of Bufo as 

the genus Anaxyrus and published the 

combination Anaxyrus californicus, the 

arroyo toad. This treatment is accepted 

by the Committee on Standard English 

and Scientific Names of the American 

Society of Ichthyologists and 

Herpetologists, The Herpetologists’ 

League, and the Society for the Study of 

Amphibians and Reptiles (Frost et al. 

2008, p. 3). 

In light of these changes and their 

acceptance by the above scientific 

authorities, we are proposing to amend 

the List of Threatened and Endangered 

Wildlife at 50 CFR 17.11 to identify the 


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52614 Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / Proposed Rules 

listed entity as ‘‘arroyo toad (Anaxyrus 

californicus).’’ This change does not 

alter the description or distribution of 

the animals. 

Species Description 

The arroyo toad is a small, darkspotted toad of the family Bufonidae. Its 

coloration ranges from light olive green 

or gray to light brown with a distinctive 

light-colored, V-shaped stripe across the 

head and the eyelids. The belly is white 

or buff and often lacks dark blotches or 

spots (Stebbins 2003, p. 212). The 

species is endemic to the coastal plain 

and mountains of central and southern 

California, and northwestern Baja 

California, Mexico, from near sea level 

to about 8,000 feet (ft) (2,440 meters (m)) 

in elevation. For a detailed description 

of the species, see the recovery plan and 

references cited within the plan (Service 

1999, pp. 1–119), and information in 

previous Federal Register notices, 

proposed rules, and final rules (59 FR 

64859, December 16, 1994; 66 FR 9414, 

February 7, 2001; 69 FR 23254, April 28, 

2004; 70 FR 19562, April 13, 2005). In 

addition to the recovery plan, important 

sources for information on the biology 

of the arroyo toad include: Sweet (1992, 

pp. 1–198; 1993, pp. 1–73); Campbell et 

al. (1996, pp. 1–46); Griffin et al. (1998, 

pp. 1–66); Griffin and Case (2001, pp. 

633–644); Holland and Sisk (2001); and 

Ramirez (2002a, pp. 1–62; 2002b; 2002c; 

2003, pp. 1–101). 

Life History 

Breeding typically occurs from 

February to July on streams with 

persistent water (Griffin et al. 1999, 

p. 1). Males may breed with several 

females in a season; however, female 

arroyo toads release their entire clutch 

of eggs as a single breeding effort and 

probably do not produce a second 

clutch during the mating season. Eggs 

are deposited and tadpoles develop in 

shallow pools with minimal current and 

little or no emergent vegetation. The 

substrate in these pools is generally 

sand or fine gravel overlain with silt. 

The eggs hatch in 4 to 5 days and the 

tadpoles are immobile for an additional 

5 to 6 days. Tadpoles then begin to 

disperse from the pool margin into the 

surrounding shallow water, where they 

spend an average of 10 weeks. Peak 

metamorphosis occurs during June and 

July in the northern part of the arroyo 

toad’s range, and from late April 

through June farther south, although it 

could occur later, particularly at higher 

elevations (Holland 2000, in litt. p. 8). 

After metamorphosis, the juvenile 

arroyo toads remain on the bordering 

gravel bars until the pool dries out 

(usually from 8 to 12 weeks depending 

on the site and rainfall). Most 

individuals become sexually mature by 

the following spring (Sweet 1992, p. 52). 

Arroyo toad tadpoles feed on loose 

organic material such as interstitial 

algae, bacteria, and diatoms. They do 

not forage on macroscopic vegetation 

(Sweet 1992, p. 82; Jennings and Hayes 

1994, p. 56). Juvenile arroyo toads feed 

on ants almost exclusively (Service 

1999, p. 36). By the time they reach 0.7 

to 0.9 inch (in) (1.78 centimeters (cm)) 

in length, they consume beetles along 

with ants (Sweet 1992, p. 99; Service 

1999, p. 36). Adult arroyo toads 

probably consume a wide variety of 

insects and arthropods including (but 

not limited to) ants, beetles, spiders, 

larvae, and caterpillars. 

Geographic Range 

The historical and current range of the 

arroyo toad extends from the Salinas 

River Basin southward through the 

Santa Ynez, Santa Clara, and Los 

Angeles River basins (Sweet 1992, 

p. 18), to Orange, Riverside, and San 

Diego Counties (Jennings and Hayes 

1994, p. 54) and southward to the 

Arroyo San Simeon system, Baja 

California, Mexico (Service 1999, p. 12; 

Ramirez 2007, p. 5). Populations also 

occur on the desert slopes of both the 

San Gabriel Mountains (in Little Rock 

Creek in Los Angeles County) and the 

San Bernardino Mountains (in the 

Mojave River and in its tributaries, Little 

Horsethief and Deep Creeks, in San 

Bernardino County) (Sweet 1992, p. 18; 

Jennings and Hayes 1994, p. 54). 

At the time of listing (59 FR 64859; 

December 16, 1994), arroyo toads were 

believed to be extirpated from the 

Salinas River Basin. In 1996, arroyo 

toads were found during surveys on the 

Fort Hunter Liggett Military Reservation 

approximately 40 miles (mi) (64 

kilometers (km)) downstream of the 

historical Santa Margarita arroyo toad 

locality (U.S. Army Reserve 2004, pp. 5– 

10). In 1997, arroyo toads were detected 

along a 17-mi (27-km) stretch of the San 

Antonio River. The Army surveyed 

approximately 6 mi (9.6 km) of the San 

Antonio River on the Military 

Reservation in 2002 and estimated there 

were as many as 7,000 arroyo toad 

larvae (tadpoles) in the area (U.S. Army 

Reserve Command 2004, p. 12). We 

believe this population was present but 

undetected on Fort Hunter Liggett at the 

time of listing for the following reasons: 

(1) Annual surveys (U.S. Army Reserve 

2004, p. 38) indicate there is suitable 

breeding and upland habitats for this 

large, robust population; and (2) given 

that the nearest extant population of 

arroyo toads is 150 mi (240 km) 

southeast of Fort Hunter Liggett in Santa 

Barbara County, it is unlikely that 

arroyo toads could have dispersed and 

newly colonized the Fort Hunter Liggett 

area by 1996, just 2 years subsequent to 

the species being listed in 1994. 

Therefore, we consider the population 

on Fort Hunter Liggett to have existed 

in 1994 and to represent the 

northernmost limit of the species’ range 

at listing and currently. The 

geographical area occupied by the 

species at the time it was listed is the 

same as the species’ current range in the 

coastal streams extending from 

Monterey County southward to San 

Diego County, and extending eastward 

into the riparian (along the shore of a 

river, stream, or lake) environments of 

San Bernardino and Riverside Counties. 

Arroyo toads have been extirpated 

from approximately 75 percent of the 

habitat they originally occupied (Sweet 

1992, p. 189; Jennings and Hayes 1994, 

p. 57; Campbell et al. 1996, p. 2). At 

present, arroyo toads are limited to 

isolated populations primarily in the 

headwaters of coastal streams. The 

species is likely restricted naturally as a 

result of specific habitat requirements 

for breeding and development (Service 

1999, p. 39). These natural restrictions, 

coupled with the small sizes of many 

arroyo toad populations, make them 

particularly vulnerable to the negative 

effects of human-induced changes to 

their habitat (Jennings and Hayes 1994, 

p. 57). 

Habitat 

Stream order, elevation, and 

floodplain width appear to be important 

factors in determining habitat suitability 

(Sweet 1992, pp. 24–26; Griffin et al. 

1999, pp. 1–3). Stream order ranks the 

size and potential power of streams. The 

smallest channels in a watershed with 

no tributaries are referred to as firstorder streams. When two first-order 

streams unite, they form a second-order 

stream; when two second-order streams 

unite, they form a third-order stream, 

and so on. Fifth- and sixth-order streams 

are usually larger rivers, while first- and 

second-order streams are often small, 

steep, or intermittent. In the northern 

portion of the range, arroyo toads are 

found on third- to sixth-order streams 

(Sweet 1992, p. 24), while in the central 

and southern portion of the range, 

arroyo toads are found in first- to sixthorder streams (Service 1999, p. 32). 

Optimal breeding habitat consists of 

low-gradient sections of slow-moving 

streams with shallow pools, nearby 

sandbars, and adjacent stream terraces. 

Arroyo toads breed and deposit egg 

masses in the shallow, sandy pools of 

these streams, which are usually 


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bordered by sand-gravel flood-terraces. 

Breeding sites favored by adult arroyo 

toads have clear water in shallow (less 

than 12 in (30 cm) deep) pools (Sweet 

1992, p. 28). Optimal breeding sites also 

have flow rates less than 1.97 in (5 cm) 

per second and bottoms composed of 

sand or well-sorted, fine gravel, 

although a significant component of 

large gravel or cobble may also be 

present (Sweet 1992, p. 37). 

Stream terrace habitat consisting of 

alluvial bars and terraces that may have 

established cottonwoods (Populus spp.), 

oaks (Quercus spp.), or willows (Salix 

spp.) and almost no grass and 

herbaceous cover at ground level are 

extremely important for arroyo toads 

prior to, during, and after the breeding 

season (Griffin et al. 1999, p. 45; Sweet 

1992, pp. 28–49). Areas that are used by 

juveniles consist primarily of sand or 

fine gravel bars with varying amounts of 

large gravel or cobble and adjacent 

stable sandy terraces and oak flats. 

Juvenile arroyo toads favor areas that are 

damp and have some vegetation cover 

(less than 10 percent), which offer 

refugia and thermal characteristics that 

are needed for juvenile survival and 

rapid growth (Campbell et al. 1996, 

p. 12). Bare sand and gravel bars may 

support large numbers of juvenile toads, 

but survivorship can be reduced due to 

high levels of predation (Sweet 1992, 

p. 113). 

Adult arroyo toads are often found on 

sandy alluvial terraces adjacent to the 

stream that may be sparsely-to-heavily 

vegetated with brush and trees, such as 

mulefat (Baccharis spp.), California 

sycamore (Platanus racemosa), 

cottonwoods, coast live oak (Quercus 

agrifolia), and willow (Campbell et al. 

1996, pp. 12–13). The understory of 

stream terraces may consist of scattered 

short grasses, herbs, and leaf litter, with 

patches of bare or disturbed soil, or have 

no vegetation at all. When foraging, 

juvenile and adult arroyo toads are often 

found around the drip lines of oak trees 

(Sweet 1992, pp. 45–46; Campbell et al. 

1996, p. 10). When active at night, 

arroyo toads can often be observed near 

ant trails feeding on passing ants and 

other prey. 

Upland habitats used by arroyo toads 

during both the breeding and nonbreeding seasons include alluvial scrub, 

coastal sage scrub, chaparral (shrubby 

plants adapted to dry summers and 

moist winters), grassland, and oak 

woodland. Within terrace and upland 

habitats, arroyo toads aestivate (a state 

of dormancy similar to hibernation) in 

burrows during the non-breeding 

season, which usually starts in the late 

summer and extends from August to 

January (Ramirez 2003, p. 46). In habitat 

utilization studies conducted by 

Ramirez (2007, pp. 11–14) from 1999 to 

2006 in the West Fork Mojave River and 

Grass Valley Creek areas, arroyo toads 

were generally found burrowed within 

sandy or loamy substrates with no 

associated canopy cover, or within 

mulefat scrub or arroyo willow (Salix 

lasiolepis) patches. The majority of 

individuals tracked in these studies 

burrowed immediately adjacent to the 

active channel or on sandy terraces 

within riparian habitat located within 

flood-prone areas; however, toads were 

also found to use upland habitats up to 

1,063 ft (324 m) from the active channel 

(Ramirez 2007, p. 13). In his 2005 study, 

Ramirez (2007, p. 93) observed several 

arroyo toad individuals burrowed in 

stable terrace habitats dominated by 

Great Basin sage scrub and Utah 

junipers (Juniperus osteosperma). At 

Little Rock Creek on the desert slopes of 

the San Gabriel Mountains, arroyo toads 

burrowed in areas closest to the creek 

that retained higher soil saturation and 

were cooler (Ramirez 2002a, p. 50). 

Griffin et al. (1999, p. 45) noted that 

sands are the preferred burrowing 

substrate for both male and female 

arroyo toads, confirming the importance 

of natural hydrologic regimes that 

maintain sand and fine sediment 

deposition across the floodplain. 

Dispersal 

Arroyo toad movement patterns also 

vary between watersheds or river 

reaches in response to different 

hydrological regimes (Griffin et al. 1999, 

p. 11). In broad floodplain river systems, 

arroyo toads searching for suitable egglaying sites may have to move across 

parallel stream channels. Cristianitos 

Creek, Talega Creek, and the lower San 

Mateo River are examples of this type of 

river system because of their wide, 

sandy floodplains where the river flows 

into several channels during floods. 

Despite river depths of 24 in (60 cm) 

and swift currents, Griffin et al. (1999, 

p. 21) observed numerous toads crossing 

Talega Creek and the lower San Mateo 

River, confirming these river systems 

are not a barrier to arroyo toad dispersal. 

In their study of arroyo toad movement 

patterns, Griffin et al. (1999, pp. 18–21) 

tracked 10 female and 3 male arroyo 

toads in the lower San Mateo River and 

observed female arroyo toads regularly 

using riparian and upland habitats far 

from the river’s edge and returning to 

these areas after traveling far upstream 

for egg-laying. In one case, a female 

arroyo toad traveled 919 ft (280 m) 

across the San Mateo Campground into 

upland native habitat; in another 

instance, a female was found 558 ft (170 

m) from the San Mateo River under 

cover of mulefat scrub (Griffin et al. 

1999, p. 20). They also recorded arroyo 

toads moving in both up- and 

downstream directions, such as the 

female arroyo toad that traveled 

upstream more than 492 ft (150 m) in a 

single night to a breeding pool. The 

study found that both male and female 

arroyo toads moved more into upland 

habitats after completing individual 

breeding activity (Griffin et al. 1999, 

p. 46). 

In contrast, arroyo toads searching for 

breeding pools in watersheds with 

relatively narrower, steeper-sided 

drainages (such as the Piru and Sespe 

Creek Watersheds in Ventura County) 

tend to move in both up- and 

downstream directions along these 

channels with their structure of 

alternating riffles and pools (Griffin et 

al. 1999, p. 11). In his Mono Creek 

study, Sweet (1993, pp. 24–65), 

concluded that female arroyo toads 

became relatively sedentary as they 

matured whereas males tended to travel 

up- and downstream fairly often during 

the breeding season (Sweet 1993, p. 65). 

This study also suggested that most 

juvenile arroyo toads disperse away 

from their natal pools about a year after 

metamorphosis (Sweet 1993, p. 65). In 

fact, numerous juvenile and adult 

arroyo toads were observed moving upand downstream as much as 0.5 mi (0.8 

km) and over 0.6 mi (1 km) in some 

cases (Sweet 1993, p. 1). Arroyo toads 

in these watersheds also travel laterally 

away from the stream channel into 

terrace and upland native habitats. On 

lower Piru Creek, Sweet (1992, pp. 42– 

45) observed two adult males under 

oaks that were 200 ft (61 m) away. 

Reasons for Decline and Threats 

A variety of factors contribute to the 

decline of arroyo toads but nearly half 

of historical extirpations prior to listing 

are attributed to dam building and 

operation (Sweet 1992, pp. 4–5; Ramirez 

2003, p. 7). Suitable habitat is often 

flooded out by reservoir water, and 

downstream breeding and non-breeding 

habitat may be severely altered by 

reduced flows at some times and 

sudden excessive flows at others. 

Sudden excessive releases of water may 

destroy sand bars used during the 

breeding season, and reconfigure or 

destroy suitable breeding pools, thus 

disrupting clutch and larval 

development (Ramirez 2003, p. 7). 

Additionally, dams can interrupt the 

scouring and deposition processes 

needed to maintain arroyo toad pool 

and terrace habitats. Areas below dams 

can become unsuitable as fine sands are 

lost and not replaced (Service 1999, pp. 

42–43). 


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In addition to flood control projects, 

other threats include agriculture; sand 

and gravel mining; urban development; 

off-highway vehicle use; urbanization; 

recreational activities such as camping, 

fishing, hiking, picnicking; and natural 

factors, including drought and fire (59 

FR 64859; Service 1999, p. 39; Ramirez 

2003, p. 7). Conversion of stream terrace 

habitat for farming, road construction, 

and residential and commercial uses has 

eliminated substantial arroyo toad 

habitat in some areas. Suction dredge 

mining of sand and gravel causes 

substantial alteration of habitat by 

degrading water quality, altering stream 

morphology, increasing siltation 

downstream, and creating deep pools 

that hold water year-round for 

introduced predators of arroyo toad eggs 

and larvae (Campbell et al. 1996, p. 16). 

Natural disturbances, such as drought 

and fire, also threaten the arroyo toad 

(Campbell et al. 1996, p. 17). Prolonged 

drought can result in the loss of suitable 

breeding pools, foraging habitat, and 

prey availability (Sweet 1992, p. 190). 

Fire can affect arroyo toads by causing 

direct mortality and destruction of 

stream or terrace vegetation. 

The introduction of nonnative species 

that compete for resources or that prey 

on arroyo toads also poses a serious 

threat to arroyo toad existence. The 

introduction of aquatic species not 

native to southern California 

watercourses has been facilitated by 

construction of the California Aqueduct 

and other sources of inter-basin water 

transport (Service 1999, p. 48). 

Currently, the California Aqueduct is 

linked directly to the Santa Ynez River, 

Santa Clara River, San Jacinto River, and 

Mojave River Basins. Predatory species, 

many of which have used the aqueduct 

to colonize these river basins, include 

green sunfish (Lepomis cyanellus), 

largemouth bass (Micropterous 

salmoides), black bullhead (Ictalurus 

nebulosus), prickly sculpin (Cottus 

asper), stocked rainbow trout 

(Oncorhynchus mykiss), oriental gobies 

(Tridentiger spp.), red shiners (Notropis 

lutrensis), bullfrogs (Rana catesbeiana), 

African clawed frogs (Xenopus laevis), 

and crayfish (Procambarus clarkii) 

(Sweet 1992, pp. 118–122; Service 1999, 

p. 48). All of these species prey on 

arroyo toad tadpoles. 

Of the above introduced-predators, 

bullfrogs are probably the most serious 

threat to arroyo toads (Stephenson and 

Calcarone 1999, p. 82). Bullfrogs are 

well adapted to deep water conditions 

in ponded areas above dams, and dam 

releases can introduce them to 

downstream habitats (CDFG 2005, 

p. 178). A broad diet and an extended 

breeding season give bullfrogs a 

competitive advantage over native 

amphibians. Whereas arroyo toad 

breeding habitat requirements are highly 

specialized, in that they require 

shallow, slow-moving streams and 

riparian habitats that are disturbed on a 

regular basis, bullfrogs can tolerate 

elevated water temperatures and make 

use of standing pools resulting from 

urban runoff to complete their 2-year 

life cycle (CDFG 2005, p. 178). 

Introduced plants have also had a 

negative effect on arroyo toads and their 

habitat. Nonnative plant species, 

particularly tamarisk (Tamarix spp.) 

and giant reed (Arundo donax) alter the 

natural hydrology of stream drainages 

by eliminating sandbars, breeding pools, 

and upland habitats. Tamarisk is an 

aggressive, woody invasive plant 

species that can tolerate a variety of 

environmental conditions and has 

become established over as much as a 

million acres of floodplains, riparian 

areas, wetlands, and lake margins in the 

western United States (Carpenter 2004, 

pp. 1–30). Tamarisk can replace or 

displace native woody species such as 

cottonwood and willow which occupy 

similar habitats, especially when timing 

and amount of peak water discharge, 

salinity, temperature, and substrate 

texture have been altered by human 

activities (Carpenter 2004, pp. 1–30). 

Tamarisk also consumes large quantities 

of water, possibly more than woody 

native plant species occupying the same 

habitat (Carpenter 2004, p. 3). Highly 

resistant to removal by flooding, 

tamarisk has the potential to form dense 

corridors along most large streams. 

Where this has been allowed to occur, 

tamarisk has replaced native vegetation, 

invaded sand bars, and led to 

channelization by constricting flood 

flows. Arundo donax is a tall, grass-like 

plant that grows up to 20 ft (6.1 m) in 

height with jointed stems that resemble 

corn stalks. Arundo donax also invades 

stream banks and lakeshores, where it 

can completely displace native 

vegetation, reduce wildlife habitat, 

increase fire risks, and alter flow 

regimes which can cause flooding 

(Ventura County 2006, pp. 21–23). 

In summary, predation from 

introduced aquatic species and the loss 

of habitat, coupled with habitat 

modifications due to the establishment 

of nonnative plants and the 

manipulation of water levels in many 

central and southern California streams 

and rivers, have caused arroyo toads to 

disappear from a large portion of their 

previously occupied habitat in 

California. 

Previous Federal Action 

For more information on previous 

Federal actions concerning the arroyo 

toad, refer to our final designation of 

critical habitat published in the Federal 

Register on April 13, 2005 (70 FR 

19562). On July 20, 2007 (Service 2007, 

pp. 1–2), we announced that we would 

review the April 13, 2005, final rule 

after questions were raised about the 

integrity of scientific information used 

and whether the decision made was 

consistent with the appropriate legal 

standards. Based on our review of the 

previous final critical habitat 

designation, we determined it was 

necessary to revise critical habitat and 

this rule proposes those revisions. On 

December 19, 2007, the Center for 

Biological Diversity filed a complaint in 

the U.S. District Court for the Southern 

District of California challenging our 

designation of critical habitat for the 

arroyo toad (Center for Biological 

Diversity v. U.S. Fish and Wildlife 

Service, Case No. 07–2380–JM–AJB). On 

June 5, 2008, the court entered a consent 

decree requiring a proposed revised 

critical habitat rule to be submitted to 

the Federal Register by October 1, 2009, 

and a final revised critical habitat 

designation to be submitted to the 

Federal Register by October 1, 2010. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical 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; 

(a) Essential to the conservation of the 

species; and 

(b) That may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical 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. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Such methods and procedures include, 

but are not limited to, all activities 

associated with scientific resources 

management such as research, census, 

law enforcement, habitat acquisition 

and maintenance, propagation, live 

trapping and transplantation, and in the 

extraordinary case where population 


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pressures within a given ecosystem 

cannot otherwise be relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing 

activities that are likely to result in the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

private landowners. Where a landowner 

seeks or requests Federal agency 

funding or authorization of an activity 

that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) would 

apply, but even in the event of a 

destruction or adverse modification 

finding, the Federal action agency’s and 

the applicant’s obligation is not to 

restore or recover the species, but to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

To be considered for inclusion in a 

critical habitat designation, habitat 

within the geographical area occupied 

by the species at the time it was listed 

must contain the physical or biological 

features that are essential to the 

conservation of the species. Areas 

supporting the essential physical or 

biological features are identified, to the 

extent known using the best scientific 

data available, as the habitat areas that 

provide essential life cycle needs of the 

species; that is, areas on which are 

found the primary constituent elements 

laid out in the appropriate quantity and 

spatial arrangement essential to the 

conservation of the species. Habitat 

within the geographical area occupied 

by the species at the time of listing that 

contains features essential to the 

conservation of the species meets the 

definition of critical habitat only if these 

features may require special 

management considerations or 

protection. Under the Act and the 

regulations at 50 CFR 424.12, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed 

only when we determine that the best 

available scientific data demonstrate 

that the designation of those areas is 

essential for the conservation of the 

species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

to propose as revised critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the species 

and any previous designations of critical 

habitat. Additional information sources 

may include the recovery plan and 5- 

year reviews for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. In particular, we recognize that 

climate change may cause changes in 

the arrangement of occupied habitat 

patches. Current climate change 

predictions for terrestrial areas in the 

Northern Hemisphere indicate warmer 

air temperatures, more intense 

precipitation events, and increased 

summer continental drying (Field et al. 

1999, pp. 1–3; Hayhoe et al. 2004, 

p. 12422; Cayan et al. 2005, p. 6; 

Intergovernmental Panel on Climate 

Change 2007, p. 11; Cayan et al. 2009, 

p. xi). However, predictions of climatic 

conditions for smaller sub-regions such 

as California remain uncertain. It is 

unknown at this time if climate change 

in California will result in a warmer 

trend with localized drying, higher 

precipitation events, or other effects. 

Thus, the information currently 

available on the effects of global climate 

change and increasing temperatures 

does not make sufficiently precise 

estimates of the location and magnitude 

of the effects. Nor are we currently 

aware of any climate change 

information specific to the habitat of the 

arroyo toad that would indicate what 

areas may become important to the 

species in the future. Therefore, we are 

unable to determine what additional 

areas, if any, may be appropriate to 

include in the proposed revised critical 

habitat for this species; however, we 

specifically request information from 

the public on the currently predicted 

effects of climate change on the arroyo 

toad and its habitat. Additionally, we 

recognize that critical habitat designated 

at a particular point in time may not 

include all of the habitat areas that we 

may later determine are necessary for 

the recovery of the species. For these 

reasons, a critical habitat designation 

does not signal that habitat outside the 

designated critical habitat area is 

unimportant or may not be required for 

recovery of the species. 

Areas that support populations of the 

arroyo toad, but are outside the critical 

habitat designation, may continue to be 

subject to conservation actions we and 

other Federal agencies implement under 

section 7(a)(1) of the Act. They are also 

subject to the regulatory protections 

afforded by the section 7(a)(2) jeopardy 

standard, as determined on the basis of 

the best available information at the 

time of the agency action. Federally 

funded or permitted projects affecting 

listed species outside their designated 

critical habitat areas may still result in 

jeopardy findings in some cases. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), 

section 7 consultations, or other species 

conservation planning efforts if new 

information available to these planning 

efforts calls for a different outcome. 

Methods 

As required by section 4(b) of the Act, 

we used the best scientific and 

commercial data available in 

determining which areas within the 

geographic area occupied by the species 

at the time of listing contain the features 

essential to the conservation of the 

arroyo toad, and which areas outside the 

geographical area occupied at the time 

of listing are essential for the 

conservation of the species. We 

reviewed information used to prepare 

the 2004 proposed critical habitat rule 

(69 FR 23254); the approach to provide 

conservation for the arroyo toad 

provided in its recovery plan (Service 

1999, pp. 1–119); the 5-year review for 

the arroyo toad (Service 2009, pp. 1–51); 

the California Department of Fish and 

Game’s (CDFG) California Natural 

Diversity Database (CNDDB) records; 

published peer-reviewed articles; 


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unpublished papers and reports; 

academic theses; survey results; 

Geographic Information System (GIS) 

data (such as species occurrences, soil 

data, land use, topography, and 

ownership maps); and correspondence 

to the Service from recognized experts. 

We solicited new information collected 

since publication of the recovery plan 

and 2005 final critical habitat 

designation, including information from 

State, Federal, and Tribal governments, 

and from academia and private 

organizations that have collected 

scientific data on the arroyo toad. We 

also based our determination of areas 

meeting the definition of critical habitat 

for the arroyo toad in part on the 

approach in the recovery plan that 

focuses on protection and management 

of breeding and non-breeding habitat on 

a watershed basis for the conservation of 

the species (Service 1999, pp. 1–119). 

Physical and Biological Features 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

within the geographical area occupied at 

the time of listing to propose as revised 

critical habitat, we consider the physical 

and biological features that are essential 

to the conservation of the species that 

may require special management 

considerations or protection. Those 

features are the primary constituent 

elements (PCEs) laid out in the 

appropriate quantity and spatial 

arrangement for conservation of the 

species. The PCEs include, but are not 

limited to: 

(1) Space for individual and 

population growth, and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical, geographical, and ecological 

distributions of a species. 

We derive the specific PCEs required 

for conservation of the arroyo toad from 

its biological needs. The areas proposed 

for designation as revised critical habitat 

provide aquatic habitat for breeding 

activities and upland habitat for shelter, 

foraging, predator avoidance, and 

dispersal across the arroyo toad’s 

current range. The PCEs and the 

resulting physical and biological 

features essential to the conservation of 

the species are determined based on 

studies of arroyo toad ecology as 

described in the ‘‘Background’’ section 

of this proposed rule and in the final 

listing rule published in the Federal 

Register on December 16, 1994 (59 FR 

64859). 

Space for Individual and Population 

Growth, and for Normal Behavior 

The arroyo toad is found along 

medium-to-large streams in coastal and 

desert drainages in central and southern 

California, and Baja California, Mexico. 

It occupies aquatic, riparian, and upland 

habitats in a number of the remaining 

suitable drainages within its range. 

Suitable habitat for the arroyo toad is 

created and maintained by the 

fluctuating hydrological, geological, and 

ecological processes that naturally occur 

in riparian ecosystems and adjacent 

uplands (Campbell et al. 1996, pp. 13– 

15; Service 1999, p. 39). Periodic 

flooding that modifies stream channels, 

redistributes channel sediments, and 

alters pool location and form, coupled 

with upper terrace stabilization by 

vegetation, is required to keep a stream 

segment suitable for all life stages of the 

arroyo toad (Campbell et al. 1996, p. 13; 

Service 1999, p. 39). This natural 

flooding regime helps maintain areas of 

open, sparsely vegetated, sandy stream 

channels and terraces. 

The substrate in habitats preferred by 

arroyo toads consists primarily of sand, 

fine gravel, or pliable soil, with varying 

amounts of large gravel, cobble, and 

boulders. Areas that are damp and have 

less than 10 percent vegetation cover 

provide the best conditions for juvenile 

survival and rapid growth (Campbell et 

al. 1996, p. 12; Service 1999, pp. 32–34). 

Arroyo toads breed in the quiet margins 

of open streams and avoid sites with 

deep or swift water, tree canopy cover, 

or steeply incised banks. Larvae occupy 

shallow areas of open streambeds on 

substrates ranging from silt to cobble, 

with preferences for sand or gravel. 

Newly metamorphosed arroyo toads and 

juveniles remain on sparsely vegetated 

sand and gravel bars bordering the natal 

pool for 3 to 5 weeks (Sweet 1992, 

p. 52). 

Arroyo toads must be able to move 

between the stream and upland foraging 

sites, as well as up and down the stream 

corridor. Juveniles and adult arroyo 

toads require and spend much of their 

lives in riparian and upland habitats 

adjacent to breeding locations 

(Campbell et al. 1996, p. 12). Riparian 

habitats used for foraging and burrowing 

include sand bars, alluvial terraces, and 

streamside benches that lack vegetation, 

or are sparsely to moderately vegetated. 

Upland habitats used by arroyo toads 

during both the breeding and nonbreeding seasons include alluvial scrub, 

coastal sage scrub, chaparral, grassland, 

and oak woodland. 

Food, Water, and Physiological 

Requirements 

Arroyo toad tadpoles eat microscopic 

algae, bacteria, and protozoans 

consumed from the spaces among 

pebbles, gravel, and sand, or abraded 

from stones (Sweet 1992, p. 82). 

Juveniles and adults eat insects, 

although ants are preferred. When 

foraging, arroyo toads are often found 

around the drip lines of oak trees. These 

areas often lack vegetation, yet have 

levels of prey that will support arroyo 

toads. When active at night, toads often 

are observed near ant trails feeding on 

ants, beetles, and other prey. 

Cover or Shelter 

During the day and other periods of 

inactivity, arroyo toads seek shelter by 

burrowing into sand. Thus, areas of 

sandy or friable (readily crumbled) soils 

are necessary, but these soils can be 

interspersed with gravel or cobble 

deposits. Additionally, arroyo toads 

may seek temporary shelter under rocks 

or debris and have been found in 

mammal burrows on occasion. Upland 

sites with compact soils can also be 

used for foraging and dispersal (Holland 

2000, in litt.). 

Sites for Breeding, Reproduction, and 

Rearing of Offspring 

The arroyo toad has specialized 

breeding habitat requirements. They 

favor shallow pools (less than 12 in (30 

cm) deep) and open sand and gravel 

channels along low-gradient (typically 

less than 6 percent) reaches of medium 

to large streams (Service 1999, pp. 31– 

32). These streams can have either 

intermittent or perennial streamflow 

and typically experience periodic 

flooding that scours vegetation and 

replenishes fine sediments. In at least 

some portions of its range, the species 

also breeds in smaller streams and 

canyons where low-gradient breeding 

sites are more sporadically distributed. 

Breeding pools must persist long 

enough for the completion of larval 

development, which is generally March 

through June, depending on location 

and weather. Because the suitability of 

breeding pools may vary from year to 

year due to the dynamics of southern 

California riparian systems and flood 

regimes, adult arroyo toads may move 

up or down stream in search of suitable 

breeding pools, or not breed that year 

(Campbell et al. 1996, p. 14). 

Arroyo toads breed in rivers with 

intermittent, seasonal flow, with a 

breeding period that may range from 

late February through July. Breeding at 


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a given site may extend over several 

months (Griffin and Case 2001, p. 634). 

Breeding arroyo toads lay their eggs in 

water over substrates of sand, gravel, or 

cobble in open sites such as overflow 

pools, old flood channels, and shallow 

pools along streams. Such habitats 

rarely have closed canopies over the 

lower banks of the stream channel due 

to periodic flood events. Heavily shaded 

pools are generally unsuitable for larval 

and juvenile arroyo toads because of 

lower water and soil temperatures and 

poor algal mat development. Pools less 

than 12 in (30 cm) deep with clear 

water, flow rates less than 0.2 ft per 

second (5 cm per second), and bottoms 

composed of sand or well-sorted fine 

gravel are favored by adults for breeding 

and egg deposition (Sweet 1992, pp. 29– 

37). Although egg strings are laid in very 

slow-moving water, larvae (tadpoles) 

can be found in water velocities of up 

to 1.0 to 1.3 ft per second (30 to 40 cm 

per second) (Sweet 1992, p. 29). 

Breeding may occur on several dates at 

a single site, and eggs may be deposited 

over a period of 7 to 8 weeks (Campbell 

et al. 1996, p. 6). Breeding pools must 

persist a minimum of 2 months for the 

completion of larval development 

because changes in stream level or 

altering of the stream bed or breeding 

pool may cause high mortality to eggs 

and small larvae, sweeping them 

downstream, stranding and exposing 

them to desiccation, or burying and 

asphyxiating them with silt (Campbell 

et al. 1996, p. 6). Larvae usually hatch 

in 4 to 6 days at water temperatures of 

54 to 59 degrees Fahrenheit (12 to 16 

degrees Celsius). Tadpoles disperse 

from the pool margin into the 

surrounding shallow water, where they 

spend an average of 10 weeks. After 

metamorphosis, the juvenile arroyo 

toads remain on the bordering gravel 

bars until the pool dries out (usually 

from 8 to 12 weeks depending on the 

site and rainfall). 

Primary Constituent Elements (PCEs) for 

the Arroyo Toad 

Pursuant to the Act and its 

implementing regulations, when 

considering the designation of critical 

habitat, we must focus on the known 

principal primary constituent elements 

within the geographical area occupied 

by the arroyo toad at the time of listing 

that are essential to the conservation of 

the species. The essential physical and 

biological features are those PCEs laid 

out in an appropriate quantity and 

spatial arrangement determined to be 

essential to the conservation of the 

species. All areas proposed in this rule 

as revised critical habitat for the arroyo 

toad are currently occupied, are within 

the geographical area occupied by the 

species at the time of listing, and 

contain sufficient PCEs to support at 

least one life-history function. 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species, and 

the habitat requirements for sustaining 

the essential life-history functions of the 

species, we have determined that the 

PCEs specific to the arroyo toad are: 

(1) Rivers or streams with hydrologic 

regimes that supply water to provide 

space, food, and cover needed to sustain 

eggs, tadpoles, metamorphosing 

juveniles, and adult breeding toads. 

Breeding pools must persist a minimum 

of 2 months for the completion of larval 

development. However, due to the 

dynamic nature of southern California 

riparian systems and flood regimes, the 

location of suitable breeding pools may 

vary from year to year. Specifically, the 

conditions necessary to allow for 

successful reproduction of arroyo toads 

are: 

• Breeding pools with areas less than 

12 in (30 cm) deep; 

• Areas of flowing water with current 

velocities less than 1.3 ft per second (40 

cm per second); and 

• Surface water that lasts for a 

minimum of 2 months during the 

breeding season (a sufficient wet period 

in the spring months to allow arroyo 

toad larvae to hatch, mature, and 

metamorphose). 

(2) Riparian and adjacent upland 

habitats, particularly low-gradient 

(typically less than 6 percent) stream 

segments and alluvial streamside 

terraces with sandy or fine gravel 

substrates that support the formation of 

shallow pools and sparsely vegetated 

sand and gravel bars for breeding and 

rearing of tadpoles and juveniles; and 

adjacent valley bottomlands that 

include areas of loose soil where toads 

can burrow underground, to provide 

foraging and living areas for juvenile 

and adult arroyo toads. 

(3) A natural flooding regime, or one 

sufficiently corresponding to natural, 

characterized by intermittent or near 

perennial flow that contributes to the 

persistence of shallow pools into at least 

mid-summer, and that maintains areas 

of open, sparsely vegetated, sandy 

stream channels and terraces by 

periodically scouring riparian 

vegetation; and also that modifies 

stream channels and terraces and 

redistributes sand and sediment, such 

that breeding pools and terrace habitats 

with scattered vegetation are 

maintained. 

(4) Stream channels and adjacent 

upland habitats that allow for 

movement to breeding pools, foraging 

areas, overwintering sites, upstream and 

downstream dispersal, and connectivity 

to areas that contain suitable habitat. 

In summary, the need for space for 

individual and population growth and 

normal behavior is met by PCE (1); the 

need for food, water and physiological 

requirements is met by PCE (1); cover 

and shelter requirements are met by PCE 

(2); areas for breeding reproduction, and 

rearing of offspring are met by PCEs (1), 

(2), and (3); and habitats representative 

of the historical, geographical, and 

ecological distributions of a species are 

met by PCE (4). 

With this proposed revised 

designation of critical habitat, we intend 

to conserve the physical and biological 

features that are essential to the 

conservation of the species, through the 

identification of the appropriate 

quantity and spatial arrangement of the 

PCEs sufficient to support the lifehistory functions of the species. Because 

not all life-history functions require all 

the PCEs, not all areas designated as 

critical habitat will contain all the PCEs. 

Each of the areas proposed for 

designation in this rule has been 

determined to contain sufficient PCEs to 

provide for one or more of the lifehistory functions of the arroyo toad. 

Special Management Considerations or 

Protection 

In accordance with the definition of 

critical habitat in section 3(5)(A) of the 

Act, when designating critical habitat 

within the geographical area occupied 

by the species at the time of listing, we 

assess whether the physical and 

biological features essential to the 

conservation of the arroyo toad may 

require special management 

considerations or protection. All areas 

being proposed as critical habitat may 

require some level of management to 

address current and future threats to the 

arroyo toad, to maintain or enhance the 

physical and biological features 

essential to its conservation, and to 

ensure the recovery and survival of the 

species. 

A detailed discussion of threats 

impacting the physical and biological 

features essential to the conservation of 

the arroyo toad which may require 

special management considerations or 

protection, can be found in the final 

listing rule (59 FR 64859; December 16, 

1994), the 2001 critical habitat 

designation (66 FR 9414; February 7, 

2001), the 2005 critical habitat 

designation (70 FR 19561; April 13, 

2005), and the recovery plan (Service 

1999, pp. 1–119). In summary, these 

threats include habitat destruction and 

alteration due to short- and long-term 

changes in river hydrology, including 


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construction of dams and water 

diversions; alteration of riparian 

wetland habitats by agriculture and 

urbanization; construction of roads; sitespecific damage by off-highway vehicle 

use and other recreational activities; 

overgrazing; and mining activities. 

Arroyo toads and their habitats are also 

threatened by introduced nonnative 

predators (such as bullfrogs and 

predatory fish), drought, periodic fires, 

unseasonal water releases from dams, 

livestock grazing, and light and noise 

pollution from adjacent developments 

and campgrounds. Activities that may 

require special management 

considerations or protection of the 

features essential to the conservation of 

the arroyo toad include, but are not 

limited to: dam construction and 

operation, river diversion, conversion of 

riparian wetland habitat by agriculture 

and urbanization, road construction, offhighway vehicle use, campground 

development, grazing, and mining. In 

each proposed critical habitat unit, 

special management may be needed to 

ensure that aquatic and terrestrial 

habitat are able to provide abundant 

breeding and non-breeding habitat, prey 

habitat, shelter, and connectivity within 

the landscape. 

In summary, we find that each of the 

areas we are proposing as revised 

critical habitat contains features 

essential to the conservation of the 

arroyo toad, and that these features may 

require special management 

considerations or protection. Special 

management considerations or 

protection may be required to eliminate, 

or reduce to negligible level, the threats 

affecting each unit and to preserve and 

maintain the essential features that the 

proposed critical habitat units provide 

to the arroyo toad. A more 

comprehensive discussion of threats 

facing individual sites is in the 

individual unit descriptions. 

The designation of critical habitat 

does not imply that lands outside of 

critical habitat do not play an important 

role in the conservation of the arroyo 

toad. Activities with a Federal nexus 

that may affect those unprotected areas 

outside of critical habitat, such as 

development, agricultural activities, and 

road construction, are still subject to 

review under section 7 of the Act if they 

may affect the arroyo toad. The take 

prohibitions of section 9 of the Act also 

continue to apply both inside and 

outside of designated critical habitat. 

Take is broadly defined in the Act as to 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect a 

listed species, or to attempt to engage in 

any such conduct. 

Criteria Used To Identify Critical 

Habitat 

Using the best scientific and 

commercial data available as required 

by section 4(b)(1)(A) of the Act, we 

identified those areas to propose for 

revised designation as critical habitat 

that, within the geographical area 

occupied by the species at the time of 

listing (see ‘‘Geographic Range’’ 

section), possess those physical and 

biological features essential to the 

conservation of the arroyo toad and 

which may require special management 

considerations or protection. We also 

considered the area outside the 

geographical area occupied by the 

species at the time of listing for any 

areas that are essential for the 

conservation of the arroyo toad. The 

material we used included the 1994 

final listing rule (59 FR 64859), the 2004 

proposed critical habitat rule (69 FR 

23254), 2008 CNDDB records, the arroyo 

toad recovery plan, data in reports 

submitted during section 7 

consultations and by biologists holding 

section 10(a)(1)(A) recovery permits, 

research published in peer-reviewed 

articles and presented in academic 

theses and agency reports, the 5-year 

review for the arroyo toad (Service 2009, 

pp. 1–51), and regional GIS coverages. 

We analyzed this information to 

develop criteria for identifying areas 

that contain the PCEs in the appropriate 

quantity and spatial arrangement 

essential to the conservation of the 

arroyo toad that may require special 

management considerations or 

protection, or that are essential for the 

conservation of the arroyo toad. 

To begin our analysis, we first 

examined the CNDDB current and 

historical records to get an indication of 

the habitat where arroyo toads are 

present or absent. The CNDDB is a 

continually refined and updated 

inventory of location information 

gathered during species surveys and 

observations. We then examined the 

arroyo toad recovery plan (Service 1999, 

pp. 1–119), which has a recovery 

strategy focused on providing sufficient 

breeding and upland habitat to maintain 

self-sustaining populations of arroyo 

toads (defined as populations that 

require little or no direct human 

assistance such as captive breeding or 

rearing, or translocation between sites) 

throughout the historical range of the 

species, and on minimizing or 

eliminating impacts and threats to 

arroyo toad populations (Service 1999, 

p. 67). The recovery plan states that instream and riparian habitats that 

support breeding, as well as upland 

habitats that provide foraging and 

overwintering habitat, need to be 

managed to maintain and enhance 

populations throughout the range of the 

arroyo toad (Service 1999, p. 68). The 

recovery plan divides the range of the 

arroyo toad into three large recovery 

units—northern, southern, and desert— 

and we considered the recovery of each 

of these as well as the species as a whole 

in our analysis. Using the recovery plan 

as our guide, we analyzed areas within 

the geographical area occupied by the 

arroyo toad at the time of listing to 

determine which areas contained the 

PCEs laid out in the appropriate 

quantity and spatial arrangement 

essential to the conservation of the 

species (the physical and biological 

features). 

In determining the specific areas 

containing the essential physical and 

biological features, based on the 

recovery plan, 5-year review, previous 

critical habitat proposals for the arroyo 

toad, scientific literature, and results of 

studies that have been conducted since 

the species was listed, we made sure 

that we are proposing critical habitat 

that will provide for the conservation of 

the species. Criteria we evaluated to 

assist our process include units: (1) That 

are dispersed throughout the current 

geographical, elevational, and ecological 

distribution of the species; (2) that 

would maintain the appropriate 

population structure across the species’ 

range; (3) that retain or provide the 

connectivity between breeding sites that 

allows for the continued existence of 

essential metapopulations (a population 

of subpopulations in somewhat 

geographically isolated patches, 

interconnected through patterns of gene 

flow, extinction, and recolonization 

(Soule 1987, p. 7), despite fluctuations 

in the status of subpopulations); and (4) 

that contain upland habitat around each 

breeding location to allow for survival 

and recruitment to maintain a breeding 

population over the long term. 

We also evaluated the area outside the 

geographical area occupied by the 

species at the time of listing to identify 

any areas that are essential for the 

conservation of the arroyo toad. We 

looked at areas that may have been 

historically occupied by arroyo toads 

based on CNDDB records but were no 

longer occupied at the time of listing. 

We also considered areas that may have 

the physical and biological features 

essential for the conservation of the 

species but have never been occupied. 

However, based on the best available 

scientific information, including the 

recovery plan which does not identify 

any such areas as being important to the 

recovery of the species, we determined 

that there are no areas outside the 


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geographical area occupied by the 

species at the time of listing that are 

essential for the conservation of the 

arroyo toad. 

To identify and map areas that we 

determined meet the definition of 

critical habitat, we used data on known 

arroyo toad locations and data on 

movement distances by arroyo toads. 

The main source for arroyo toad 

locations was the CNDDB (2008); we 

also obtained locations that have not yet 

been entered into the CNDDB directly 

from the biologists that collected them. 

Areas meeting the definition of 

critical habitat for the arroyo toad 

include occupied areas on stream 

reaches containing suitable breeding 

and upland habitat. To determine the 

extent of suitable arroyo toad habitat as 

discussed in the ‘‘Habitat’’ section 

above, we used spatial data on stream 

gradients with grades less than 6 

percent, aerial photography, surveys of 

habitat suitability, and site visits. 

Additionally, we included higher 

gradient areas between breeding habitat 

because these areas are used by toads 

during the non-breeding period and 

allow toads to disperse between 

breeding areas. To delineate upland 

habitat areas, we used a GIS-based 

modeling procedure to identify alluvial 

terraces, valley bottomlands, and 

upland habitats adjacent to stream 

reaches occupied by the arroyo toad. 

Lacking spatially explicit data on 

geomorphology, we used elevation 

above the stream channel as an 

indicator of the extent of alluvial and 

upland foraging habitat. We determined 

that areas up to 82 ft (25 m) in elevation 

above the stream channel were most 

likely to contain the riparian and 

upland habitat elements essential to 

arroyo toads. Most arroyo toad activity 

and movement occurred within these 

areas; therefore, steeper slopes away 

from the stream were eliminated. 

However, we truncated the upland 

habitat delineation in flat areas at 4,921 

ft (1,500 m) from the stream channel (a 

distance based on known movement of 

arroyo toads, see below) 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 4,921 ft (1,500 m) from the 

mapped stream channel along the 

majority of the stream reaches, so the 

distance limit was often not a factor. 

These model parameters are based on 

the best scientific data available and are 

the same as those used in the 2004 

proposed critical habitat designation (69 

FR 23254). 

To evaluate our critical habitat model, 

we assessed its effectiveness at 

capturing documented toad locations 

from studies that focused specifically on 

surveying toads in upland habitats and 

studies involving radio telemetry. 

Holland and Sisk (2000, pp. 1–28) 

established extensive pitfall trap arrays 

at discrete distances from two stream 

courses and operated these arrays at 

various periods throughout the year. 

They had 466 captures of arroyo toads, 

35 (7.5 percent) of which were 

identified as being in upland areas. The 

low percentage of toads captured in 

upland areas may be because the vast 

majority of captures (98.7 percent) were 

during the months from January to 

September, when breeding and 

metamorphosis occurs and when toads 

would likely be in close proximity to 

the stream. Nevertheless, toads were 

captured at distances that ranged from 

49 to 3,855 ft (15 to 1,175 m) from the 

upland-riparian ecotone (boundary) 

(Holland and Sisk 2000, pp. 1–28). For 

the two areas sampled in that study 

(Cristianitos Creek and the upper Santa 

Margarita River, San Diego County), we 

found that our critical habitat 

boundaries encompassed all of the 

pitfall trapping stations where arroyo 

toads were detected. 

We also assessed studies that 

involved the tracking of arroyo toads 

with radio telemetry equipment. For 

example, in a number of studies by 

Ramirez (2002a, p. 10; 2002b, p. 50; 

2002c, p. 23; 2003, pp. 72–81), arroyo 

toads were tracked from the end of 

breeding activity until the 

commencement of aestivation, generally 

May through September. Cumulatively, 

these four studies involved tracking 77 

adult arroyo toads in three separate 

critical habitat units in Orange, San 

Bernardino, and Los Angeles Counties. 

All but one of the numerous burrow 

sites chosen by these arroyo toads fell 

within our proposed revised critical 

habitat boundaries. 

Upon completion of our analyses with 

our GIS modeling, we identified six 

tribes that own lands within areas 

identified as meeting the definition of 

critical habitat: Rincon Band of Luisen ̃ o 

Mission Indians; Pala Band of Luisen ̃ o 

Mission Indians; Sycuan Band of the 

Kumeyaay Nation; the Barona Group of 

Capitan Grande Band of Mission Indians 

and the Viejas (Baron Long) Group of 

Capitan Grande Band of Mission 

Indians, which jointly manage the 

Capitan Grande Band of Diegueno 

Mission Indians Reservation (Capitan 

Grande Reservation); and Mesa Grande 

Band of Diegueno Mission Indians. 

These areas are included in this 

proposed revised critical habitat, 

although we are requesting public 

comment on whether the conservation 

needs of the arroyo toad can be achieved 

or not by limiting the designation of 

final revised critical habitat to nonTribal lands, and are otherwise 

considering these Tribal lands for 

exclusion from the final critical habitat 

under section 4(b)(2) of the Act based on 

partnerships and habitat management 

plans and practices. We will evaluate 

any submitted plans in consideration of 

Secretarial Order 3206, ‘‘American 

Indian Tribal Rights, Federal Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’ (June 5, 1997); 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2) 

in relation to the conservation benefits 

to the arroyo toad, the features essential 

to the conservation of the species, and 

the appropriateness of excluding Tribal 

lands under section 4(b)(2) of the Act. 

Please see the ‘‘Tribal Lands— 

Exclusions Under Section 4(b)(2) of the 

Act’’ section for additional discussion. 

To provide legal boundaries for the 

critical habitat areas, critical habitat 

boundaries for all drainages were 

mapped as contiguous blocks of 98-ft by 

98-ft (30-m by 30-m) cells that conform 

to a Universal Transverse Mercator 

(UTM) grid. Due to the conversion of 

GIS data from two different geographic 

projections (UTM zone 10 and zone 11) 

and conversion of the data to acres and 

hectares, some rounding adjustments 

may be reflected in the total acreage of 

the units designated as critical habitat 

that are shown in the acreage tables and 

unit descriptions. 

After determining the criteria used to 

identify critical habitat, we made every 

effort to avoid developed areas such as 

lands covered by buildings, pavement, 

and other structures because such lands 

lack PCEs for the arroyo toad. We also 

avoided fragmented areas such as those 

surrounded by development. 

Agricultural lands may have been 

included if they were within areas 

identified as necessary for dispersal or 

connectivity between known 

occurrences. However, we avoided 

known areas of intensive agriculture 

that lacked the PCEs for the arroyo toad. 

The scale of the maps we prepared 

under the parameters for publication 

within the Code of Federal Regulations 

may not reflect the exclusion of such 

developed lands. Any such lands 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

proposed revised critical habitat are 

excluded by text in this rule and are not 

proposed for critical habitat designation. 

Therefore, if the critical habitat is 


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finalized as proposed, a Federal action 

involving these lands would not trigger 

section 7 consultation with respect to 

critical habitat and the requirement of 

no adverse modification, unless the 

specific action may affect adjacent 

critical habitat. 

We propose to designate 22 critical 

habitat units within the geographic area 

occupied by the species at the time of 

listing based on the criteria presented 

above. A brief discussion of each area 

proposed for designation as critical 

habitat is provided in the unit 

descriptions below. Additional detailed 

documentation concerning the essential 

nature of these areas is contained in our 

supporting record for this rulemaking. 

Summary of Changes From Previously 

Designated Critical Habitat 

In this proposal to revise critical 

habitat for the arroyo toad, we 

determined that it would be appropriate 

to begin our analysis of critical habitat 

using the previous proposed critical 

habitat designation (69 FR 23254; April 

28, 2004) as a base from which to make 

changes. We are not using the previous 

final critical habitat designation (70 FR 

19562, April 13, 2005) after questions 

were raised about the integrity of the 

scientific information used and whether 

the decision made was consistent with 

appropriate legal standards. This new 

analysis based on the best scientific 

information currently available has 

resulted in an overall decrease in the 

amount and distribution of habitat 

identified as meeting the definition of 

critical habitat, as compared to the 

previous 2004 proposed designation (69 

FR 23254). In this revised rule, we are 

proposing to designate 109,110 ac 

(44,155 ha) of land in Los Angeles, 

Orange, Riverside, San Bernardino, San 

Diego, Santa Barbara, and Ventura 

Counties, California, as critical habitat, 

which is a decrease of approximately 

29,603 ac (11,978 ha) as proposed in 

2004 (69 FR 23254). However, it should 

be noted that this does not reflect a 

decrease in every proposed unit 

compared to the previous proposal. In 

fact, the area included in some proposed 

revised critical habitat units is larger 

than it was in the 2004 proposed critical 

habitat designation (69 FR 23254) 

because in some cases new information 

has identified additional arroyo toad 

areas that meet the definition of critical 

habitat and these areas are now 

included. 

The main differences between the 

2004 proposed critical habitat rule (69 

FR 23254) and this 2009 proposed 

revised critical habitat rule for the 

arroyo toad include the following: 

(1) Our analysis of new and updated 

information received since the 2004 

proposed critical habitat designation (69 

FR 23254) resulted in the identification 

of areas meeting the definition of critical 

habitat that differs from the areas 

identified in 2004. 

(2) We modified the mapping 

methodology from our previous 

proposed critical habitat designation (69 

FR 23254). For the 2004 proposed 

designation, unit boundaries were 

snapped to points on a grid conforming 

to the Universal Transverse Mercator 

(UTM) projection. The reason for using 

a grid, which consisted of 100-meter by 

100-meter cells, was to decrease the 

number of coordinate pairs and thereby 

simplify the description of unit 

boundaries. However, for this revised 

proposed designation, we use a more 

detailed description of unit boundaries. 

Although the change in area resulting 

from this modification is relatively 

minor (about 5 percent), this change 

affects all units. 

(3) We did not exclude any areas in 

this proposed rule pursuant to section 

4(b)(2) of the Act. In accordance with 50 

CFR 424.19, in making our final 

determination regarding the revised 

designation, we will consider the 

impacts of designating lands (such as 

tribal and HCP lands) as critical habitat 

and may exclude such lands in the final 

rule pursuant to section 4(b)(2) of the 

Act. 

The following paragraphs provide 

explanations of how the proposed 

revised critical habitat units differ from 

those in the 2004 proposed critical 

habitat designation (69 FR 23254), 

except for those units where the only 

change was from the modification in 

mapping methodology described above 

(units 2, 3, 4, 5, 6, 14, and 21). The unit 

names used in the subsection headings 

refer to the unit names as proposed in 

2004. 

Unit 1: San Antonio River 

In the current proposal, we are now 

exempting areas within the Department 

of Defense’s Fort Hunter Liggett Military 

Reservation from designation as revised 

critical habitat under section 4(a)(3)(B) 

of the Act. This unit is within the 

geographical area occupied at the time 

of listing (see ‘‘Geographical Range’’ 

section) and contains the physical or 

biological features essential to the 

conservation of the species which may 

require special management 

considerations or protection. In the 

previous 2004 proposed designation (69 

FR 23254), Fort Hunter Liggett had not 

yet completed its Integrated Natural 

Resources Management Plan (INRMP) 

and, therefore, was not exempted under 

section 4(a)(3)(B) of the Act. However, 

Fort Hunter Liggett was excluded under 

section 4(b)(2) of the Act for reasons of 

national security and because existing 

management plans provided a benefit to 

the arroyo toad. Fort Hunter Liggett’s 

first INRMP was approved in 2005, and 

an updated version was approved in 

2007, which includes management 

actions that benefit the arroyo toad. Unit 

1 as proposed in 2004 (69 FR 23254) 

encompassed approximately 6,546 ac 

(2,649 ha). For this proposed revised 

critical habitat designation, the 

modified mapping methodology we 

used resulted in a 1.4 percent decrease 

in acres in Unit 1, for a total of 6,453 

ac (2,612 ha). With our current 

exemption of all areas within Fort 

Hunter Liggett (see ‘‘Application of 

Section 4(a)(3) of the Act’’ section), the 

entire unit has been exempted from 

designation as revised critical habitat. 

Unit 7: Upper Los Angeles River Basin 

We have removed Subunit 7a 

(approximately 2,262 ac (915 ha)) 

within Unit 7 from our proposed 

revision of critical habitat. Subunit 7a is 

within the geographical area occupied at 

the time of listing; however, this subunit 

was erroneously included in the 

previous proposed rule (69 FR 23254). 

Although we were not aware of this 

issue when we published the previous 

proposed rule, high-flow water releases 

from the Big Tujunga Dam upstream of 

this subunit have likely altered the 

hydrology such that arroyo toad 

breeding habitat is not maintained (that 

is, lack of PCEs 1 and 3) (Hitchcock et 

al. 2004, p. 8; Backlin 2009, pers. 

comm.). The loss of the PCEs from this 

area has resulted in the extirpation of 

arroyo toads (Backlin et al. 2002, pp. 6, 

12; Hitchcock et al. 2004, pp. 8–9, 29). 

Furthermore, the presence of the Big 

Tujunga Dam blocks dispersal from 

occupied areas upstream. Therefore, we 

have determined that the area does not 

contain the physical and biological 

features essential to the conservation of 

the arroyo toad and therefore does not 

meet the definition of critical habitat for 

the arroyo toad. 

Unit 8: Lower Santa Ana River Basin 

Areas meeting the definition of 

critical habitat that were excluded in the 

2004 proposed critical habitat 

designation (69 FR 23254) within the 

Orange County Central–Coastal NCCP/ 

HCP are now being proposed in this 

rule, and we are considering them for 

exclusion in the final rule (see ‘‘Habitat 

Conservation Plans—Exclusions Under 

Section 4(b)(2) of the Act’’ section). 

These areas include: (1) Black Star 

Creek from the NCCP/HCP boundary 


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downstream to the confluence with 

Santiago Creek, (2) Baker Canyon from 

the NCCP/HCP boundary downstream to 

the confluence with Santiago Creek, and 

(3) Santiago Creek from the confluence 

with Silverado Creek downstream to 

Irvine Lake. Information received since 

our previous 2004 proposed critical 

habitat designation (69 FR 23254) 

indicates that areas within Santiago 

Creek upstream of the confluence with 

Silverado Creek contain occupied 

suitable habitat on which are found the 

physical and biological features 

essential to the conservation of the 

species. Therefore, we also added areas 

to Unit 8 encompassing approximately 

6.6 mi (11 km) of Santiago Creek from 

just below the town of Modjeska 

downstream to Irvine Lake. 

Additionally, new information indicates 

that Silverado Creek contains occupied 

suitable habitat on which are found the 

features essential to the conservation of 

the species (Haase 2005, p. 2; Haase 

2008, pp. 2–3; Thomas 2009, pers. 

comm.). Therefore, we added areas to 

Unit 8 encompassing approximately 7.3 

mi (12 km) of Silverado Creek from the 

eastern edge of section 11 (T05S, R07W) 

in the Cleveland National Forest 

downstream to the confluence with 

Santiago Creek. With the exception of 

areas that were excluded within the 

Orange County Central–Coastal NCCP/ 

HCP, this unit encompassed 

approximately 172 ac (69 ha) in the 

2004 proposed critical habitat 

designation (69 FR 23254). With the 

proposed addition of areas within the 

Orange County Central–Coastal NCCP/ 

HCP and other areas described above, it 

now encompasses approximately 2,182 

ac (883 ha). 

Unit 9: San Jacinto River Basin 

Areas meeting the definition of 

critical habitat that were excluded in the 

2004 proposed critical habitat 

designation (69 FR 23254) within the 

Western Riverside County MSHCP are 

now being proposed in this rule, and we 

are considering them for exclusion in 

the final rule (see ‘‘Habitat Conservation 

Plans—Exclusions Under Section 4(b)(2) 

of the Act’’ section). These areas 

include: (1) The San Jacinto River from 

the Sand Canyon confluence 

downstream to the Soboba Indian 

Reservation border, and (2) Bautista 

Creek from areas outside of the San 

Bernardino National Forest downstream 

to near the middle of Section 27 (T5S, 

R1E) where the stream enters a debris 

basin. Unit 9 encompassed 

approximately 683 ac (277 ha) along 

Bautista Creek in the 2004 proposed 

critical habitat designation (69 FR 

23254); with the addition of the areas 

described above, areas along the San 

Jacinto River and Bautista Creek are 

now proposed as separate subunits. 

Subunit 9a along the San Jacinto River 

encompasses approximately 1,226 ac 

(496 ha)) and Subunit 9b along Bautista 

Creek encompasses approximately 1,180 

ac (478 ha). 

Unit 10: San Juan Creek Basin 

Information received since our 

previous 2004 proposed critical habitat 

designation (69 FR 23254) indicates that 

areas upstream of Subunit 10a in Bell 

Canyon, up to the southern half of 

section 8 (T06S, R06W) in the Cleveland 

National Forest, contain occupied 

suitable habitat on which are found the 

physical and biological features 

essential to the conservation of the 

species (Haase 2009a, in litt.). In the 

previous 2004 proposed critical habitat 

designation (69 FR 23254), Subunit 10a 

encompassed approximately 5,143 ac 

(2,076 ha) of Bell Canyon from just 

below Crow Canyon downstream to the 

confluence with San Juan Creek, in 

addition to areas along San Juan Creek. 

We added these upstream areas to 

Subunit 10a, which now totals 4,728 ac 

(1,913 ha). Although we added 

upstream areas to Subunit 10a, the total 

area of this subunit decreases from the 

2004 proposed critical habitat 

designation (69 FR 23254) because of 

our change in mapping methodology. 

Unit 11: San Mateo Creek and San 

Onofre Creek Basins 

In the 2004 proposed critical habitat 

designation (69 FR 23254), areas in 

Subunits 11a and 11c within Marine 

Corps Base (MCB) Camp Pendleton were 

exempted from critical habitat under 

section 4(a)(3)(B) of the Act, except 

areas leased to outside parties for other 

land uses (such as San Onofre State Park 

and private agricultural lands). We are 

now exempting all lands within MCB 

Camp Pendleton from designation as 

revised critical habitat, including the 

leased lands (which are subject to the 

approved Integrated Natural Resources 

Management Plan (INRMP) for MCB 

Camp Pendleton), due to the benefits 

afforded to the arroyo toad by the 

management described in the approved 

INRMP for MCB Camp Pendleton (see 

‘‘Application of Section 4(a)(3) of the 

Act’’ section). Subunit 11a encompassed 

approximately 4,112 ac (1,664 ha) in the 

2004 proposed critical habitat 

designation (69 FR 23254); with the 

exemption of all areas within MCB 

Camp Pendleton, it now encompasses 

approximately 1,034 ac (418 ha). 

Subunit 11c encompassed 

approximately 399 ac (161 ha) as 

proposed in 2004; with the exemption 

of all areas within MCB Camp 

Pendleton (including the lands leased to 

other parties), the entire subunit is 

removed. 

Unit 12: Lower Santa Margarita River 

Basin 

In the 2004 proposed critical habitat 

designation (69 FR 23254), we exempted 

a portion of Unit 12 within MCB Camp 

Pendleton under section 4(a)(3)(B) of the 

Act. In this proposed rule, we are 

exempting all lands within both MCB 

Camp Pendleton and the Fallbrook 

Naval Weapons Station from 

designation as revised critical habitat 

(see ‘‘Application of Section 4(a)(3) of 

the Act’’ section). Unit 12 encompassed 

approximately 1,840 ac (744 ha) in the 

2004 proposed critical habitat 

designation (69 FR 23254); with the 

exemption of all areas within MCB 

Camp Pendleton and the Fallbrook 

Naval Weapons Station, it now 

encompasses approximately 1,009 ac 

(408 ha). 

Unit 13: Upper Santa Margarita River 

Basin 

Areas meeting the definition of 

critical habitat that were excluded in the 

2004 proposed critical habitat 

designation within the Western 

Riverside County MSHCP are now being 

proposed in this rule, and we are 

considering them for exclusion in the 

final rule (see ‘‘Habitat Conservation 

Plans—Exclusions Under Section 4(b)(2) 

of the Act’’ section). These areas 

include: (1) Areas around Subunit 13a 

along Arroyo Seco Creek, (2) areas 

downstream of Subunit 13b along 

Temecula Creek to Vail Lake, and (3) 

Wilson Creek from Lancaster Valley 

downstream to Vail Lake. Subunit 13a 

encompassed approximately 704 ac (285 

ha) in the 2004 proposed critical habitat 

designation (69 FR 23254); with the 

addition of surrounding areas in Arroyo 

Seco Creek, it now encompasses 

approximately 1,155 ac (467 ha). 

Subunit 13b encompassed 

approximately 2,924 ac (1,183 ha) as 

proposed in 2004; with the addition of 

downstream areas of Temecula Creek, it 

now encompasses approximately 4,756 

ac (1,925 ha). Information received since 

our previous critical habitat designation 

indicates that areas upstream of 

Lancaster Valley along Wilson Creek 

(included in this proposed rule as 

Subunit 13c) to the confluence with 

Cahuilla Creek contain occupied 

suitable habitat on which are found the 

physical and biological features 

essential to the conservation of the 

species (Haase 2009a, in litt.). This new 

subunit encompasses approximately 

2,226 ac (901 ha). 


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Unit 15: Upper San Luis Rey River Basin 

Information received since our 

previous 2004 proposed critical habitat 

designation (69 FR 23254) indicates that 

the area downstream of Barker Valley 

(formerly Subunit 15b) along the West 

Fork of the San Luis Rey River, which 

is within the geographical area occupied 

by the species at the time of listing, 

contains suitable habitat on which are 

found the physical and biological 

features essential to the conservation of 

the species, and provides for dispersal 

between populations in this area and 

populations in Lake Henshaw (formerly 

Subunit 15a) (Haase 2009, pers. comm.). 

In the 2004 proposed critical habitat 

designation (69 FR 23254), Subunits 15a 

and 15b together encompassed 

approximately 11,725 ac (4,745 ha). We 

are including the area between Barker 

Valley and Lake Henshaw in this 

proposed revised designation and have 

merged the two subunits into a single 

unit (Unit 15), which now totals 12,026 

ac (4,867 ha). 

Unit 16: Santa Ysabel Creek Basin 

Areas meeting the definition of 

critical habitat that were excluded in the 

2004 proposed critical habitat 

designation (69 FR 23254) within the 

San Diego MSCP–City and County of 

San Diego Subarea Plans are now being 

proposed in this rule, and we are 

considering them for exclusion in the 

final rule (see ‘‘Habitat Conservation 

Plans—Exclusions Under Section 4(b)(2) 

of the Act’’ section). In the previous 

2004 proposed critical habitat 

designation (69 FR 23254), Subunits 

16a, 16b, and 16c were three separate 

areas due to our exclusion in the 2004 

proposed rule of downstream habitat 

along Santa Ysabel Creek. Subunit 16a 

encompassed approximately 2,758 ac 

(1,116 ha) along Santa Ysabel Creek 

from just below Sutherland Reservoir, 

Temescal Creek, and Boden Canyon; 

Subunit 16b encompassed 

approximately 2,727 ac (1,104 ha) along 

Guejito Creek; and Subunit 16c 

encompassed approximately 3,749 ac 

(1,517 ha) along Santa Maria Creek. We 

merged these three subunits into a 

single subunit (16a) in this proposed 

revised critical habitat rule; thus, 

Subunit 16a now totals 12,136 ac (4,911 

ha). 

In this proposed revised critical 

habitat designation, we removed areas 

within Subunit 16a that encompass 

Santa Ysabel Creek from just below 

Sutherland Reservoir downstream to the 

confluence with Temescal Creek. When 

we published our previous 2004 

proposed critical habitat designation (69 

FR 23254), we believed this area, which 

is within the geographical area occupied 

at the time of listing, met the definition 

of critical habitat. However, information 

we received since then indicates that 

breeding habitat is not available due to 

the absence of a natural flooding regime 

downstream of Sutherland Dam and the 

steepness of the stream corridor (lack of 

PCEs 1, 2, and 3). Furthermore, this area 

does not provide connectivity to 

upstream areas occupied by the species 

due to the presence of the dam. Survey 

information indicates arroyo toads have 

been extirpated from this area as a result 

of the loss of PCEs (Service 2006, p. 2). 

Therefore, we determined that this area, 

which is within the geographical area 

occupied by the species at the time of 

listing, does not contain features 

essential to the conservation of the 

species and therefore does not meet the 

definition of critical habitat for the 

arroyo toad. 

Unit 17: San Diego River Basin/San 

Vicente Creek 

Information received since our 

previous 2004 proposed critical habitat 

designation (69 FR 23254) indicates that 

areas upstream of Subunit 17a along the 

San Diego River to Temescal Creek, 

which are within the geographical area 

occupied by the species at the time of 

listing, contain occupied suitable 

habitat on which are found the physical 

and biological features essential to the 

conservation of the species (HELIX 

2008, pp. 2, 7; Brown and Rochester 

2009, pers. comm.). Subunit 17a as 

proposed in 2004 encompassed 

approximately 1,003 ac (406 ha) along 

the San Diego River from Ritchie Creek 

downstream to the upper edge of El 

Capitan Reservoir. In this proposed rule, 

we added these upstream areas to 

Subunit 17a, which now totals 1,241 ac 

(502 ha). 

Areas meeting the definition of 

critical habitat that were excluded in the 

2004 proposed critical habitat 

designation within the San Diego 

MSCP–City and County of San Diego 

Subarea Plans are now being proposed 

in this rule, and we are considering 

them for exclusion in the final rule (see 

‘‘Habitat Conservation Plans— 

Exclusions Under Section 4(b)(2) of the 

Act’’ section). In the previous 2004 

proposed critical habitat designation (69 

FR 23254), Subunits 17b and 17c were 

two separate areas due to our exclusion 

in the 2004 proposed rule of 

downstream habitat along the San Diego 

River. Subunit 17b encompassed 

approximately 174 ac (70 ha) and 

Subunit 17c approximately 707 ac (286 

ha) along the San Diego River as 

proposed in 2004. We merged the two 

subunits into a single subunit (17b) in 

this proposed revised critical habitat 

rule; thus Subunit 17b now totals 1,865 

ac (755 ha). 

Unit 18: Sweetwater River Basin 

Areas meeting the definition of 

critical habitat that were excluded in the 

2004 proposed critical habitat 

designation (69 FR 23254) within the 

San Diego MSCP–City and County of 

San Diego Subarea Plans are now being 

proposed in this rule, and we are 

considering them for exclusion in the 

final rule (see ‘‘Habitat Conservation 

Plans—Exclusions Under Section 4(b)(2) 

of the Act’’ section). In the previous 

2004 proposed critical habitat 

designation (69 FR 23254), Subunits 

18a, 18b, and 18d were three separate 

areas due to our exclusion in the 2004 

proposed rule of downstream habitat 

along the Sweetwater River. As 

proposed in 2004, Subunit 18a 

encompassed approximately 4,196 ac 

(1,698 ha) along the Sweetwater River 

from the top of Upper Green Valley in 

Cuyamaca Rancho State Park, Subunit 

18b encompassed approximately 583 ac 

(236 ha) along Peterson Canyon, and 

Subunit 18d encompassed 

approximately 474 ac (192 ha) along 

Viejas Creek. In this proposed rule, we 

merged these three subunits into a 

single subunit (18a), which now totals 

4,156 ac (1,682 ha). Although we added 

areas that were excluded from the 2004 

proposed critical habitat designation (69 

FR 23254), the total area of the new 

Subunit 18a is smaller than the areas 

proposed in Subunits 18a, 18b, and 18d 

in the 2004 proposed rule because of 

our change in mapping methodology. 

In this proposed revised critical 

habitat designation, we removed areas 

within Subunit 18c that encompass the 

Sweetwater River from just above 

Sycuan Resort downstream to the upper 

edge of Sweetwater Reservoir. These 

areas were erroneously included in the 

previous 2004 proposed rule. We now 

know that sand mining operations and 

channelization of the river through two 

golf courses have likely altered the 

hydrology in this area such that 

breeding habitat is not maintained (that 

is, lack of PCEs 1 and 3) (Brown and 

Rochester 2009, pers. comm.). 

Furthermore, information received since 

our previous 2004 proposed critical 

habitat designation (69 FR 23254) 

indicates that this area is no longer 

occupied by arroyo toads (MaddenSmith et al. 2005, p. 22; Brown and 

Rochester 2009, pers. comm.; Martin 

2009, pers. comm.) because of the loss 

of PCEs. Therefore, we have determined 

that this area does not contain features 

essential to the conservation of the 

species and therefore does not meet the 


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definition of critical habitat for the 

arroyo toad. As proposed in 2004, 

Subunit 18c encompassed 

approximately 3,982 ac (1,611 ha) along 

the Sweetwater River from immediately 

below Loveland Dam downstream to the 

upper edge of Sweetwater Reservoir; 

with the proposed removal of the areas 

described above, Subunit 18c now totals 

627 ac (254 ha). 

Unit 19: Cottonwood Creek Basin 

In this proposed revised critical 

habitat designation, we removed areas 

within Subunit 19b that encompass 9.9 

mi (16 km) of Cottonwood Creek from 

approximately 2.5 mi (4 km) below 

Morena Reservoir downstream to Barrett 

Reservoir. These areas were erroneously 

included in the previous 2004 proposed 

rule. Information received since our 

previous 2004 proposed critical habitat 

designation (69 FR 23254) indicates that 

the hydrology in this area was altered 

since the construction of the Morena 

Dam in the early 1900s such that 

breeding habitat is not maintained (lack 

of PCEs 1 and 3), and therefore this area 

is no longer occupied by arroyo toads 

(Jennings 2009, pers. comm.). Moreover, 

the presence of Morena and Barrett 

reservoirs block arroyo toad dispersal 

from occupied areas upstream and 

downstream along Cottonwood Creek 

(lack of PCE 5). Therefore, we 

determined that this area, which is 

within the geographical area occupied 

by the toad at the time of listing, does 

not contain features essential to the 

conservation of the species and 

therefore does not meet the definition of 

critical habitat for the arroyo toad. 

Areas meeting the definition of 

critical habitat downstream of Subunit 

19b to the U.S.-Mexico border that were 

excluded in the 2004 proposed rule 

within the San Diego MSCP–City and 

County of San Diego Subarea Plans are 

now being proposed in this rule, and we 

are considering them for exclusion in 

the final rule (see ‘‘Habitat Conservation 

Plans—Exclusions Under Section 4(b)(2) 

of the Act’’ section). Subunit 19b, which 

encompassed approximately 5,564 ac 

(2,252 ha) in the 2004 proposed critical 

habitat designation (69 FR 23254), now 

encompasses approximately 5,129 ac 

(2,076 ha). Additionally, data received 

since our previous 2004 proposed 

critical habitat designation (69 FR 

23254) indicate that Campo Creek, 

which is within the geographical area 

occupied by the species at the time of 

listing, has occupied suitable habitat on 

which are found the physical and 

biological features essential to the 

conservation of the species (LEI 2008, 

pp. 5, 8). Therefore, we added areas 

encompassing approximately 4.4 mi (7 

km) of Campo Creek from Campo Lake 

downstream to the U.S.-Mexico border 

as part of Subunit 19e. 

Unit 20: Upper Santa Ana River Basin/ 

Cajon Wash 

Information received since our 

previous 2004 proposed critical habitat 

designation (69 FR 23254) indicates that 

areas upstream of Unit 20 to just below 

Cajon Junction are within the 

geographical area occupied by the 

arroyo toad at the time of listing and 

contain the physical and biological 

features essential to the conservation of 

the species (Rathbun 2007, in litt.; 

Meyer 2009, in litt.). In the previous 

2004 proposed critical habitat 

designation (69 FR 23254), Unit 20 

encompassed approximately 1,262 ac 

(511 ha) of Cajon Wash from just south 

of Cajon campground. We added these 

upstream areas to Unit 20, which now 

totals 1,775 ac (718 ha). 

Unit 22: Upper Mojave River Basin 

We have removed Subunit 22b 

(approximately 8,631 ac (3,493 ha)) 

within Unit 22 from our proposed 

revision of critical habitat. Subunit 22b 

is within the geographical area occupied 

at the time of listing. However, new 

information received since our previous 

2004 proposed critical habitat 

designation (69 FR 23254) indicates that 

this area was erroneously proposed as 

critical habitat in 2004. Habitat in this 

area for the arroyo toad has been altered 

by steadily declining groundwater levels 

along the Upper Narrows to Lower 

Narrows reach of the Mojave River 

(Webb et al. 2001, p. 1) to such an extent 

that it does not contain features 

essential to the conservation of the 

species and therefore does not meet the 

definition of critical habitat for the 

arroyo toad. 

Unit 23: Whitewater River Basin 

In this proposed revised critical 

habitat designation, we removed areas 

within Unit 23 that encompass 

Whitewater River from the Colorado 

River Aqueduct downstream to 

Interstate Highway 10. When we 

published our previous 2004 proposed 

critical habitat designation (69 FR 

23254), we believed this area, which is 

within the geographical area occupied at 

the time of listing, met the definition of 

critical habitat. However, information 

received since our previous 2004 

proposed critical habitat designation (69 

FR 23254) indicates that high-flow 

water releases and channelization of the 

river downstream of the aqueduct has 

likely altered the habitat such that it no 

longer supports the physical and 

biological features essential to the 

conservation of the arroyo toad (Roberts 

2009, pers. comm.). We have 

determined that this area does not meet 

the definition of critical habitat for the 

arroyo toad and should not have been 

proposed in 2004. As proposed in 2004, 

Unit 23 encompassed approximately 

1,997 ac (808 ha) along the Whitewater 

River from near Red Dome downstream 

to Interstate 10; with the removal of the 

areas described above, Unit 23 now 

totals 1,355 ac (548 ha). 

Proposed Revisions to Critical Habitat 

Designation 

We are proposing to designate 22 

units (Units 2 through 23) as critical 

habitat for the arroyo toad. The total 

area identified as Unit 1 is exempted 

from critical habitat designation under 

section 4(a)(3)(B) of the Act, and 

therefore is not proposed. All proposed 

units are within the geographical area 

occupied by the species at the time of 

listing and contain the physical and 

biological features essential to the 

conservation of the arroyo toad which 

may require special management 

considerations or protection. Although 

not a prerequisite for designation as 

critical habitat, all units are currently 

occupied. The proposed revised critical 

habitat areas described below constitute 

our best assessment at this time of areas 

that meet the definition of critical 

habitat for the arroyo toad. Approximate 

area encompassing the proposed revised 

critical habitat by county and land 

ownership is shown in Table 1, and the 

overall area of proposed revised critical 

habitat units for the arroyo toad are 

shown by unit in Table 2. The 

designation of these units, if finalized, 

would replace the existing critical 

habitat designation for the arroyo toad 

in 50 CFR 17.95(d). 

TABLE 1—APPROXIMATE PROPOSED REVISED CRITICAL HABITAT FOR THE ARROYO TOAD, IN ACRES (AC) (HECTARES

(HA)) BY COUNTY (ORDERED FROM NORTH TO SOUTH) AND LAND OWNERSHIP

County Federal State/local Tribal Private Total 

Santa Barbara ............................................................ 3,914 0 0 2,892 6,806 


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TABLE 1—APPROXIMATE PROPOSED REVISED CRITICAL HABITAT FOR THE ARROYO TOAD, IN ACRES (AC) (HECTARES

(HA)) BY COUNTY (ORDERED FROM NORTH TO SOUTH) AND LAND OWNERSHIP—Continued 

County Federal State/local Tribal Private Total 

(1,584 ) .......................... .......................... (1,171 ) (2,755 ) 

Ventura ....................................................................... 4,392 0 0 639 5,031 

(1,778 ) .......................... .......................... (259 ) (2,036 ) 

Los Angeles ............................................................... 2,382 0 0 3,453 5,835 

(964 ) .......................... .......................... (1,398 ) (2,362 ) 

San Bernardino .......................................................... 3,964 132 0 3,599 7,695 

(1,604 ) (53 ) .......................... (1,456 ) (3,113 ) 

Riverside .................................................................... 1,789 210 0 7,504 9,503 

(724 ) (85 ) .......................... (3,037 ) (3,846 ) 

Orange ....................................................................... 434 1,909 0 6,362 8,705 

(176 ) (773 ) .......................... (2,575 ) (3,524 ) 

San Diego .................................................................. 6,843 3,481 4,046 51,165 65,535 

(2,769 ) (1,409 ) (1,636 ) (20,707 ) (26,521 ) 

Total .................................................................... 23,718 5,732 4,046 76,951 109,110 

(9,598 ) (2,320 ) (1,636 ) (31,141 ) (44,155 ) 

Values in table may not sum due to rounding. 

TABLE 2—APPROXIMATE PROPOSED REVISED CRITICAL HABITAT UNITS FOR THE ARROYO TOAD

Unit Critical habitat units and subunits County Acres Hectares 

Northern Recovery Unit 

1 ................................. San Antonio River—exempt ..................... Monterey ................................................... 0 0 

2 ................................. Sisquoc River ........................................... Santa Barbara .......................................... 3,775 1,528 

3 ................................. Upper Santa Ynez River .......................... Santa Barbara .......................................... 3,032 1,227 

4 ................................. Sespe Creek ............................................. Ventura ..................................................... 2,760 1,117 

5 ................................. Piru Creek ................................................ Ventura ..................................................... 2,507 1,015 

5a ............................... ................................................................... ................................................................... 1,358 550 

5b ............................... ................................................................... ................................................................... 1,149 465 

6 ................................. Upper Santa Clara River .......................... Los Angeles .............................................. 3,795 1,537 

6a ............................... ................................................................... ................................................................... 520 210 

6b ............................... ................................................................... ................................................................... 1,995 807 

6c ............................... ................................................................... ................................................................... 1,279 518 

7 ................................. Upper Los Angeles River Basin ............... Los Angeles .............................................. 1,190 482 

Subtotal ............... ................................................................... ................................................................... 17,059 6,904 

Southern Recovery Unit 

8 ................................. Lower Santa Ana River Basin .................. Orange ...................................................... 2,182 883 

9 ................................. San Jacinto River Basin ........................... Riverside ................................................... 2,406 974 

9a ............................... ................................................................... ................................................................... 1,226 496 

9b ............................... ................................................................... ................................................................... 1,180 478 

10 ............................... San Juan Creek Basin ............................. Orange, Riverside .................................... 5,667 2,293 

10a ............................. ................................................................... ................................................................... 4,728 1,913 

10b ............................. ................................................................... ................................................................... 939 380 

11 ............................... San Mateo Basin ...................................... Orange, San Diego .................................. 1,068 432 

11a ............................. ................................................................... ................................................................... 1,034 418 

11b ............................. ................................................................... ................................................................... 34 14 

12 ............................... Lower Santa Margarita, Basin .................. San Diego ................................................. 1,009 408 

12a ............................. ................................................................... ................................................................... 394 159 

12b ............................. ................................................................... ................................................................... 615 248 

13 ............................... Upper Santa Margarita Basin ................... Riverside, San Diego ............................... 8,137 3,293 

13a ............................. ................................................................... ................................................................... 1,155 467 

13b ............................. ................................................................... ................................................................... 4,756 1,925 

13c ............................. ................................................................... ................................................................... 2,226 901 

14 ............................... Lower and Middle San Luis Rey Basin .... San Diego ................................................. 12,906 5,223 

15 ............................... Upper San Luis Rey Basin ....................... San Diego ................................................. 12,026 4,867 

16 ............................... Santa Ysabel Creek ................................. San Diego ................................................. 13,567 5,490 

16a ............................. ................................................................... ................................................................... 12,136 4,911 

16d ............................. ................................................................... ................................................................... 1,431 579 

17 ............................... San Diego River Basin ............................. San Diego ................................................. 4,263 1,725 

17a ............................. ................................................................... ................................................................... 1,241 502 

17b ............................. ................................................................... ................................................................... 1,865 755 

17d ............................. ................................................................... ................................................................... 1,158 469 

18 ............................... Sweetwater River Basin ........................... San Diego ................................................. 4,783 1,936 

18a ............................. ................................................................... ................................................................... 4,156 1,682 

18c ............................. ................................................................... ................................................................... 627 254 


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TABLE 2—APPROXIMATE PROPOSED REVISED CRITICAL HABITAT UNITS FOR THE ARROYO TOAD—Continued 

Unit Critical habitat units and subunits County Acres Hectares 

19 ............................... Cottonwood Creek Basin ......................... San Diego ................................................. 14,375 5,817 

19a ............................. ................................................................... ................................................................... 5,847 2,366 

19b ............................. ................................................................... ................................................................... 5,129 2,076 

19c ............................. ................................................................... ................................................................... 1,511 611 

19d ............................. ................................................................... ................................................................... 938 380 

19e ............................. ................................................................... ................................................................... 950 384 

Subtotal ............... ................................................................... ................................................................... 82,389 33,342 

Desert Recovery Unit 

20 ............................... Upper Santa Ana River Basin/Cajon 

Wash.

San Bernardino ........................................ 1,775 718 

21 ............................... Little Rock Creek Basin ............................ Los Angeles .............................................. 612 248 

22 ............................... Upper Mojave River Basin ....................... San Bernardino ........................................ 5,919 2,395 

22a ............................. ................................................................... ................................................................... 5,684 2,300 

22c ............................. ................................................................... ................................................................... 235 95 

23 ............................... Whitewater River Basin ............................ Riverside ................................................... 1,355 548 

Subtotal ............... ................................................................... 9,661 ......................................................... ........................ 3,909 

Total ............. ................................................................... 109,110 ..................................................... ........................ 44,155 

Values in table may not sum due to rounding. 

Presented below are brief descriptions 

of all units. The units are grouped by 

recovery unit as described in the 

recovery plan (Service 1999) and listed 

in order geographically north to south 

and west to east within each recovery 

unit. A brief description of each unit 

and the reasons it meets the definition 

of critical habitat are presented below. 

Northern Recovery Unit 

As described in the recovery plan 

(Service 1999, pp. 1–119), maintaining 

arroyo toad populations in the areas 

described by the following 7 unit 

descriptions is necessary to conserve the 

species in the northern recovery unit. 

Because the toad populations in this 

recovery unit have been reduced in size 

and their habitat fragmented by road 

construction, dams, agriculture, and 

urbanization, it is important to protect 

all of them and safeguard against the 

loss of any one population due to 

random natural or human-caused 

events. The U.S. Forest Service is the 

primary landowner of proposed revised 

critical habitat within the northern 

recovery unit. 

Unit 1: San Antonio River 

Although the lands in this unit are 

exempt from critical habitat designation 

under section 4(a)(3)(B) of the Act, we 

provide the following information to 

explain why these lands meet the 

definition of critical habitat. This unit is 

located in Monterey County and 

encompasses: (1) San Antonio River and 

adjacent uplands from about 2 mi (3 km) 

upstream of the confluence with 

Mission Creek downstream to San 

Antonio Reservoir, a distance of about 

17 mi (27 km); and (2) small portions of 

Mission Creek and other tributaries. The 

unit consists of 6,453 ac (2,612 ha) of 

Federal (Department of Defense) land 

and is entirely contained within Fort 

Hunter Liggett Military Reservation 

boundaries. Arroyo toads can be found 

along the entire length of this segment 

of the San Antonio River, which is still 

in a relatively natural state, consists of 

high-quality arroyo toad habitat, and 

supports probably one of the largest 

populations within the northern 

recovery unit (U.S. Army Reserve 

Command 2004, p. 38). The 

northernmost known population of 

arroyo toads is located here and is 

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 farther south. Unit 1 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

breeding pools in low-gradient stream 

segments with sandy or fine gravel 

substrates (PCEs 1 and 2), seasonal flood 

flows (PCE 3), and relatively 

undisturbed riparian and upland habitat 

for foraging and dispersal (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this unit may require special 

management considerations or 

protection to address threats from 

nonnative vertebrate predators such as 

bullfrogs and beavers (Castor 

canadensis). These lands on Fort Hunter 

Liggett are exempt from critical habitat 

designation under section 4(a)(3)(B) of 

the Act because they are subject to the 

2007 Integrated Natural Resources 

Management Plan (INRMP) for Fort 

Hunter Liggett, and the INRMP provides 

a benefit to the arroyo toad (see the 

‘‘Application of Section 4(a)(3) of the 

Act’’ section of this proposed rule for a 

detailed discussion). 

Unit 2: Sisquoc River (3,775 ac (1,528 

ha)) 

This unit is located in Santa Barbara 

County and encompasses approximately 

33 mi (54 km) of the Sisquoc River and 

adjacent uplands from Sycamore 

Campground downstream to just below 

the confluence with La Brea Creek. 

Upper stretches of the river are within 

the Los Padres National Forest and 

mostly within the San Rafael 

Wilderness Area. Below the National 

Forest boundary, the river and adjacent 

uplands are on rural private lands. The 

unit consists of 1,700 ac (688 ha) of 

Federal land and 2,073 ac (839 ha) of 

private land. This long, undammed river 

is one of the few remaining major rivers 

in southern California with a natural 

flow regime, and supports a core 

population of arroyo toad that is 

important for maintaining the genetic 

diversity of the species. Unit 2 contains 

the physical and biological features that 

are essential to the conservation of the 

species, including breeding pools in 

low-gradient stream segments with 

sandy or fine gravel substrates (PCEs 1 

and 2), seasonal flood flows (PCE 3), 

and relatively undisturbed riparian and 

upland habitat for foraging and 

dispersal (PCE 4). The physical and 

biological features essential to the 


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conservation of the species in this unit 

may require special management 

considerations or protection to address 

threats from the removal and alteration 

of habitat due to sand and gravel 

mining, livestock overgrazing of riparian 

habitats, and limited recreational 

activities. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Unit 3: Upper Santa Ynez River Basin 

(3,032 ac (1,227 ha)) 

This unit is located in Santa Barbara 

County upstream of Gibraltar Reservoir 

and encompasses approximately 27 mi 

(43 km) of the upper Santa Ynez River, 

Indian Creek, Mono Creek, and adjacent 

uplands. The unit consists of 2,214 ac 

(896 ha) of Federal land and 818 ac (331 

ha) of private land within the Los 

Padres National Forest, and supports a 

large and well-studied arroyo toad 

population (Sweet 1992, pp. 1–198; 

1993, pp. 1–73) that likely experiences 

precipitation and soil moisture 

conditions not faced by toads at drier 

sites. Potential adaptations to these 

conditions make this unit important for 

maintaining the genetic diversity of the 

species. Unit 3 contains the physical 

and biological features that are essential 

to the conservation of the species, 

including breeding pools in lowgradient stream segments with sandy or 

fine gravel substrates (PCEs 1 and 2), 

seasonal flood flows (PCE 3), and 

relatively undisturbed riparian and 

upland habitat for foraging and 

dispersal (PCE 4). The physical and 

biological features essential to the 

conservation of the species in this unit 

may require special management 

considerations or protection to address 

threats, primarily along the lower Santa 

Ynez River and lower Mono Creek, from 

nonnative species, recreation, and 

problems associated with an upstream 

dam (such as sediment trapping, altered 

hydrological regime, and temperature 

changes). Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Unit 4: Sespe Creek (2,760 ac (1,117 ha)) 

This unit is located in Ventura County 

and encompasses approximately 27 mi 

(43 km) of Sespe Creek and adjacent 

uplands, from the lower end of Sespe 

Gorge (elevation approximately 3,530 ft 

(1,076 m)) downstream to the 

confluence with Alder Creek. The unit 

consists of 2,498 ac (1,011 ha) of Federal 

land and 262 ac (106 ha) of private land. 

This unit supports one of the largest 

arroyo toad populations on the Los 

Padres National Forest along Sespe 

Creek, which is undammed and retains 

its natural flooding regime. Up to 

several hundred adult arroyo toads 

inhabit this reach of the Sespe River 

(Sweet 1992, p. 192), and during years 

of successful reproduction, such as 

2003, thousands of juveniles can be 

found as well (Murphy 2008, pers. 

comm.). Arroyo toads have been found 

up to 3,300 ft (1,000 m) in elevation in 

this area, which is one of the highest 

known occurrences in the northern 

recovery unit. The arroyo toads in this 

unit likely experience temperature 

extremes or other environmental 

conditions not faced by toads at lower 

elevations so that potential adaptations 

to these conditions make this unit 

important for maintaining the genetic 

diversity of the species. Unit 4 contains 

the physical and biological features that 

are essential to the conservation of the 

species, including numerous suitable 

breeding pools (shallow, sand- or gravelbased pools with a minimum of 

vegetation along one or both margins 

during the breeding season from late 

March to June (Sweet 1992, p. 28)) and 

an abundance of sandy substrates (PCEs 

1 and 2), unimpeded seasonal flood 

flows (PCE 3), and relatively 

undisturbed riparian habitat and upland 

benches for foraging and dispersal (PCE 

4). The physical and biological features 

essential to the conservation of the 

species in this unit may require special 

management considerations or 

protection to address threats from 

recreational activities and nonnative 

predators. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Unit 5: Piru Creek (2,507 ac (1,015 ha)) 

This unit is located in Ventura and 

Los Angeles Counties and consists of 

two subunits totaling 2,105 ac (852 ha) 

of Federal land and 402 ac (163 ha) of 

private inholdings. 

Subunit 5a 

Subunit 5a encompasses 

approximately 17 mi (27 km) of Piru 

Creek and adjacent uplands from the 

confluence with Lockwood Creek 

downstream to Pyramid Reservoir. The 

subunit consists of 1,277 ac (517 ha) of 

Federal land and 81 ac (33 ha) of private 

land. The upper portion of Subunit 5a 

is free of nonnative vertebrate predators, 

and the substantial arroyo toad 

population supported by this subunit 

has been increasing and expanding in 

this area over the past several years 

(Uyehara 2003, pers. comm.). Subunit 

5a contains the physical and biological 

features that are essential to the 

conservation of the species, including 

breeding pools in low-gradient stream 

segments with sandy substrates (PCEs 1 

and 2), seasonal flood flows (PCE 3), 

and riparian habitat and upland benches 

for foraging and dispersal (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from horse 

and cattle grazing and recreational 

activities. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Subunit 5b 

Subunit 5b is primarily within the 

Sespe Wilderness and encompasses 

approximately 15 mi (24 km) of Piru 

Creek from the confluence with Fish 

Creek downstream to Lake Piru, as well 

as Agua Blanca Creek from Devil’s 

Gateway downstream to the confluence 

with Piru Creek. The subunit supports 

a substantial arroyo toad population and 

consists of 828 ac (335 ha) of Federal 

land and 321 ac (130 ha) of private land. 

Subunit 5b contains the physical and 

biological features that are essential to 

the conservation of the species, 

including breeding pools in lowgradient stream segments with sandy 

substrates (PCEs 1 and 2), seasonal flood 

flows (modified to some extent below 

Pyramid Dam) (PCE 3), and riparian 

habitat and upland benches for foraging 

and dispersal (PCE 4). Because lower 

Piru Creek in Subunit 5b is downstream 

of a large dam, the habitat there has 

experienced some degradation over the 

years from perennial water releases, 

rapid changes in flow volume, excessive 

flows during the breeding season, and 

an increased presence of nonnative 

predators. However, Pyramid Dam has 

permanently changed the water release 

schedule to one that will more closely 

mimic natural flows and will benefit the 

arroyo toad (State Water Board 2008, p. 

3). The physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

nonnative predators and recreational 

activities. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 


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toad habitat and potential management 

considerations. 

Unit 6: Upper Santa Clara River Basin 

(3,795 ac (1,537 ha)) 

This unit is located in northwestern 

Los Angeles County and consists of 

three subunits totaling 443 ac (179 ha) 

of Federal land and 3,351 ac (1,356 ha) 

of private land. 

Subunit 6a 

Subunit 6a encompasses 

approximately 7 mi (12 km) of Castaic 

Creek from Bear Canyon downstream to 

Castaic Lake, and 0.7 mi (1.2 km) of Fish 

Creek from Cienaga Spring to the 

confluence with Castaic Creek. Subunit 

6a encompasses approximately 11 mi 

(18 km) of upper Santa Clara River from 

Arrastre Canyon downstream to the 

confluence with Bee Canyon Creek. The 

subunit consists of 284 ac (115 ha) of 

Federal land and 236 ac (96 ha) of 

private land. Subunit 6a contains the 

physical and biological features that are 

essential to the conservation of the 

species, including breeding pools in 

low-gradient stream segments with 

sandy substrates (PCEs 1 and 2), 

seasonal flood flows (PCE 3), and 

riparian habitat and upland benches for 

foraging and dispersal (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from urban 

development, agriculture, recreation, 

mining, and nonnative predators. Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

Subunit 6b 

Subunit 6b encompasses: (1) 

Approximately 2.6 mi (4.2 km) of 

Castaic Creek from the downstream edge 

of The Old Road right-of-way (adjacent 

to Interstate 5) down to the confluence 

with the Santa Clara River, (2) 6 mi (10 

km) of the Santa Clara River from the 

confluence with Bouquet Creek down to 

the confluence with Castaic Creek, and 

(3) 1.1 mi (2 km) of San Francisquito 

Creek from Newhall Ranch Road 

downstream to the confluence with the 

Santa Clara River. The subunit consists 

of 159 ac (65 ha) of Federal land and 

1,995 ac (807 ha) of private land. This 

subunit allows for natural population 

expansion and fluctuation of the Santa 

Clara River population by connecting 

arroyo toad habitat in Castaic Creek 

with San Francisquito Creek and the 

occupied reach of the Santa Clara River. 

Subunit 6b contains the physical and 

biological features that are essential to 

the conservation of the species, 

including breeding pools in lowgradient stream segments with sandy 

substrates (PCEs 1 and 2), seasonal flood 

flows (PCE 3), and riparian habitat and 

upland benches for foraging and 

dispersal (PCE 4). The physical and 

biological features essential to the 

conservation of the species in this 

subunit may require special 

management considerations or 

protection to address threats from urban 

development, agriculture, recreation, 

mining, and nonnative predators. Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

Subunit 6c 

Subunit 6c encompasses 

approximately 11 mi (18 km) of upper 

Santa Clara River from Arrastre Canyon 

downstream to the confluence with Bee 

Canyon Creek. The subunit consists of 

159 ac (64 ha) of Federal land and 1,120 

ac (453 ha) of private land. This subunit 

is important for maintaining the arroyo 

toad metapopulation in the upper Santa 

Clara River Basin. Additionally, the 

upper portion of the Santa Clara River 

in this subunit supports a breeding 

population of arroyo toads (Sandburg 

2001, in litt.; Farris 2001, pers. comm.; 

Hovore 2001, in litt.) that has the 

potential to greatly increase in size. 

Subunit 6c contains the physical and 

biological features that are essential to 

the conservation of the species, 

including breeding pools in lowgradient stream segments with sandy 

substrates (PCEs 1 and 2), seasonal flood 

flows (PCE 3), and riparian habitat and 

upland benches for foraging and 

dispersal (PCE 4). The physical and 

biological features essential to the 

conservation of the species in this 

subunit may require special 

management considerations or 

protection to address threats from urban 

development, agriculture, recreation, 

mining, and nonnative predators. Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

Unit 7: Upper Los Angeles River Basin 

(1,190 ac (482 ha)) 

This unit is located in central Los 

Angeles County and encompasses: (1) 

Approximately 8 mi (13 km) of upper 

Big Tujunga Creek from immediately 

above Big Tujunga Reservoir upstream 

to approximately 1.2 mi (2 km) above 

the confluence with Alder Creek, (2) 

almost 3.7 mi (6 km) of Mill Creek from 

the Monte Cristo Creek confluence 

downstream to Big Tujunga Creek, and 

(3) approximately 1.9 mi (3 km) of Alder 

Creek from the Mule Fork confluence 

downstream to Big Tujunga Creek. The 

unit consists of 1,113 ac (451 ha) of 

Forest Service land and 77 ac (31 ha) of 

private land. This unit supports an 

important high-elevation arroyo toad 

population in the Big Tujunga Canyon 

watershed in the Upper Los Angeles 

River Basin within the Angeles National 

Forest, which is atypical for arroyo 

toads, and supports the only significant 

known population remaining in the 

coastal foothills of the San Gabriel 

Mountains. Unit 7 contains the physical 

and biological features that are essential 

to the conservation of the species, 

including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this unit may require special 

management considerations or 

protection to address threats from 

nonnative predators, such as crayfish, 

bullfrogs, and nonnative plants such as 

Arundo donax. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Southern Recovery Unit 

As described in the recovery plan 

(Service 1999, pp. 1–119), maintaining 

arroyo toad populations in the following 

12 critical habitat units is necessary to 

conserve the species in the southern 

recovery unit. The units consist of a 

range of geographic locations from 

coastal regions to interior mountains. 

Arroyo toads likely occurred throughout 

each of these river and creek basins, but 

are now found only in segments of the 

rivers and creeks due to loss or change 

of habitat and nonnative predators. 

Conserving arroyo toad populations in 

these river basins is necessary for 

preserving the species’ full range of 

genetic and phenotypic (observable 

characteristics produced by the 

interaction of the genotype and the 

environment) variation. 

Unit 8: Lower Santa Ana River Basin 

(2,182 ac (883 ha)) 

This unit is located in east-central 

Orange County and encompasses: (1) 

Approximately 6.6 mi (11 km) of 

Santiago Creek from just below the town 

of Modjeska downstream to Irvine Lake, 

(2) approximately 2 mi (3 km) of Black 

Star Creek downstream to the 


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confluence with Santiago Creek, (3) an 

approximately 2.4 mi (4 km) stretch of 

lower Baker Canyon downstream to the 

confluence with Santiago Creek, and (4) 

approximately 7.3 mi (12 km) of 

Silverado Creek from the eastern edge of 

section 11 (T05S, R07W) in the 

Cleveland National Forest downstream 

to the confluence with Santiago Creek. 

The unit consists of 54 ac (22 ha) of 

Forest Service land and 2,128 ac (861 

ha) of private land. This unit contains 

a vital arroyo toad population in central 

Orange County that may represent one 

of the last remnants of a greater 

historical population from the Santa 

Ana River Basin that was mostly 

extirpated due to urbanization of the 

greater Los Angeles metropolitan area. It 

is also possible that this population 

belongs to a larger metapopulation that 

extends across the lower coastal 

mountain slopes of the Santa Ana 

Mountains from Santiago Creek to San 

Mateo Creek (including Units 10 and 11 

discussed below). Unit 8 contains the 

physical and biological features that are 

essential to the conservation of the 

species, including aquatic habitat for 

breeding and non-breeding activities 

(PCEs 1, 2, and 3) and upland habitat for 

foraging and dispersal activities (PCE 4). 

The physical and biological features 

essential to the conservation of the 

species in this unit may require special 

management considerations or 

protection to address threats from 

nearby residential activities and 

degrading habitat conditions due to past 

commercial sand and gravel removal 

operations. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. We are considering the 

exclusion of approximately 1,497 ac 

(606 ha) of lands in Unit 8 within the 

Orange County Central–Coastal NCCP/ 

HCP from the final revised critical 

habitat designation under section 4(b)(2) 

of the Act (see ‘‘Application of Section 

4(b)(2) of the Act’’ section of this 

proposed revised rule for a detailed 

discussion). 

Unit 9: San Jacinto River Basin (2,406 ac 

(974 ha)) 

This unit is located in west-central 

Riverside County and consists of two 

subunits totaling 13 ac (5 ha) of Bureau 

of Land Management land, 492 ac (199 

ha) of Forest Service land, 210 ac (85 ha) 

of State land, and 1,691 ac (684 ha) of 

private land. This unit supports the 

most northeastern arroyo toad 

populations within the coastal region of 

the species’ range and is effectively 

isolated from other known toad 

populations to the south in the Santa 

Margarita Watershed, to the west in the 

San Juan Watershed, and from residual 

populations to the north in the Santa 

Ana Watershed due to geographic 

features. It is likely that this isolation 

occurred over a long geologic time 

period; therefore, toads in the San 

Jacinto Watershed may have evolved 

unique genetic, phenotypic, or 

behavioral characteristics that are 

important for the conservation of the 

species. 

Subunit 9a 

Subunit 9a encompasses 

approximately 6.3 mi (10 km) of the San 

Jacinto River from the Sand Canyon 

confluence downstream to the Soboba 

Indian Reservation border. The subunit 

consists of 64 ac (26 ha) of Forest 

Service land, 8 ac (3 ha) of Bureau of 

Land Management land, and 1,154 ac 

(467 ha) of private land. Subunit 9a 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

cumulative impacts from human 

activities, including direct mortality 

from vehicular traffic, trampling, trash 

dumping, and collection (Ortega 2009, 

in litt. p. 1; Wilcox 2009, pers. comm.). 

Please see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

We are considering the exclusion of 

approximately 678 ac (274 ha) of private 

lands in Subunit 9a within the Western 

Riverside County MSHCP from the final 

revised critical habitat designation 

under section 4(b)(2) of the Act (see 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this proposed revised 

rule for a detailed discussion). 

Subunit 9b 

Subunit 9b encompasses 

approximately 7.4 mi (12 km) of 

Bautista Creek from near the eastern 

edge of Section 20 (T6S, R2E) 

downstream to approximately the 

middle of Section 27 (T5S, R1E), where 

the stream enters a debris basin. The 

subunit consists of 428 ac (173 ha) of 

Forest Service land, 5 ac (2 ha) of 

Bureau of Land Management land, 210 

ac (85 ha) of State land, and 537 ac (217 

ha) of private land. Subunit 9b contains 

the physical and biological features that 

are essential to the conservation of the 

species, including aquatic habitat for 

breeding and non-breeding activities 

(PCEs 1, 2, and 3) and upland habitat for 

foraging and dispersal activities (PCE 4). 

The physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

recreation and vehicular traffic (USGS 

2001, p. 8). Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. We are considering the 

exclusion of approximately 475 ac (192 

ha) of private lands in Subunit 9b 

within the Western Riverside County 

MSHCP from the final revised critical 

habitat designation under section 4(b)(2) 

of the Act (see ‘‘Application of Section 

4(b)(2) of the Act’’ section of this 

proposed revised rule for a detailed 

discussion). 

Unit 10: San Juan Creek Basin (5,667 ac 

(2,293 ha)) 

This unit is located in southern 

Orange County and southwestern 

Riverside County and consists of two 

subunits totaling 558 ac (225 ha) of 

Forest Service land, 1,909 ac (773 ha) of 

local government land, and 3,200 ac 

(1,295 ha) of private land. This unit 

supports a vital arroyo toad population 

in the San Juan Creek Basin, and arroyo 

toad populations in this unit may 

function as an important linkage 

between toads in Santiago Creek (Unit 

8) to the north and the San Mateo Creek 

Basin (Unit 11) to the south. 

Subunit 10a 

This subunit is located in southern 

Orange County and southwestern 

Riverside County. Subunit 10a 

encompasses: (1) Approximately 5 mi (8 

km) of San Juan Creek from immediately 

above the Upper San Juan Campground 

downstream to Interstate 5, (2) 

approximately 9.9 mi (16 km) of Bell 

Canyon from the southern half of 

section 8 (T06S, R06W) in the Cleveland 

National Forest downstream to the 

confluence with San Juan Creek, and (3) 

approximately 1.2 mi (2 km) of an 

unnamed tributary to the west of Bell 

Canyon in sections 8 and 18 (T06S, 

R06W) downstream to the confluence 

with Bell Creek. The subunit consists of 

547 ac (221 ha) of Forest Service land, 

1,406 ac (569 ha) of local government 

land, and 2,775 ac (1,123 ha) of private 

land. Subunit 10a contains the physical 

and biological features that are essential 

to the conservation of the species, 


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including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

nonnative predators (bullfrogs), 

increased water diversions, and residual 

effects of recent gravel mining 

operations (Bloom 1998, p. 2). Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

We are considering the exclusion of 

approximately 3,405 ac (1,378 ha) of 

permittee-owned or controlled lands in 

Subunit 10a within the Southern Orange 

County NCCP/Master Streambed 

Alteration Agreement/HCP from the 

final revised critical habitat designation 

under section 4(b)(2) of the Act (see 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this proposed revised 

rule for a detailed discussion). 

Subunit 10b 

This subunit is located in southern 

Orange County. Subunit 10b 

encompasses 5.2 mi (8 km) of Trabuco 

Creek downstream from approximately 

the middle of section 6 (T06S, R06W) in 

the Cleveland National Forest. The 

subunit consists of 11 ac (4 ha) of Forest 

Service land, 503 ac (204 ha) of local 

government land, and 425 ac (172 ha) of 

private land. Subunit 10b contains the 

physical and biological features that are 

essential to the conservation of the 

species, including aquatic habitat for 

breeding and non-breeding activities 

(PCEs 1, 2, and 3) and upland habitat for 

foraging and dispersal activities (PCE 4). 

The physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

nonnative predators (bullfrogs), 

increased water diversions, and residual 

effects of recent gravel mining 

operations (Bloom 1998, p. 2). Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

Unit 11: San Mateo Creek Basin (1,068 

ac (432 ha)) 

This unit is located in northwestern 

San Diego County, southern Orange 

County, and southwestern Riverside 

County and consists of two subunits 

totaling 34 ac (14 ha) of Forest Service 

land and 1,034 ac (418 ha) of private 

land. This unit supports large arroyo 

toad populations in close proximity to 

the coast. Nearly all of the other nearcoastal, historical populations of arroyo 

toad were extirpated due to extensive 

urbanization and river channelization 

along the coastal regions of southern 

California. Distinctive climatic 

conditions near the coast may provide 

different selective pressures on toads in 

this area, and favor specific genetic 

characteristics that help maintain the 

genetic diversity of the species. We are 

exempting from designation 

approximately 5,994 ac (2,426 ha) of 

military land that fall within the 

boundaries of this proposed revised 

critical habitat unit under section 

4(a)(3)(B) of the Act because the lands 

are subject to the 2007 INRMP for MCB 

Camp Pendleton, and the INRMP 

provides a benefit to the arroyo toad (see 

the ‘‘Application of Section 4(a)(3) of 

the Act’’ section of this proposed 

revised rule for a detailed discussion). 

Subunit 11a 

Subunit 11a encompasses: (1) 

Approximately 1.7 mi (3 km) of 

Cristianitos Creek from just above 

Gabino Creek downstream to the MCB 

Camp Pendleton boundary; (2) 

approximately 3.1 mi (5 km) of Gabino 

Creek upstream from its confluence 

with Cristianitos Creek, including about 

0.6 mi (1 km) of La Paz Creek; and (3) 

approximately 4 mi (6 km) of Talega 

Creek upstream from its confluence 

with Cristianitos Creek and beyond the 

boundaries of MCB Camp Pendleton. 

The subunit consists of 1,034 ac (418 

ha) of private land. Subunit 11a 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

cumulative impacts from human 

activities, including direct mortality 

from vehicle collisions and vehicular 

crossings of streambeds, grazing, and 

nonnative predators (Bloom 1996, pp. 

4–5; Bloom 1998, in litt., pp. 1, 3). 

Please see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

We are considering the exclusion of 

approximately 963 ac (390 ha) of 

permittee-owned or controlled lands in 

Subunit 11a within the Southern Orange 

County NCCP/Master Streambed 

Alteration Agreement/HCP from the 

final revised critical habitat designation 

under section 4(b)(2) of the Act (see 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this proposed revised 

rule for a detailed discussion). 

Subunit 11b 

Subunit 11b encompasses 

approximately 1 mi (2 km) of San Mateo 

Creek beyond the boundaries of MCB 

Camp Pendleton within the Cleveland 

National Forest near Devil Canyon. The 

subunit consists of 34 ac (14 ha) of 

Forest Service land. Subunit 11b 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

nonnative predators (ECORP 2004, p. 

16). Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Unit 12: Lower Santa Margarita River 

Basin (1,009 ac (408 ha)) 

This unit is located in northwestern 

San Diego County and consists of two 

subunits totaling 5 ac (2 ha) of State 

land and 1,004 ac (406 ha) of private 

land. This unit supports large arroyo 

toad populations in proximity to other 

large populations to the north (Unit 11), 

and provides potential connectivity to 

populations in the upper Santa 

Margarita River Basin (Unit 13). We are 

exempting from designation 

approximately 7,239 ac (2,929 ha) of 

military land (7,016 ac (2,839 ha) on 

MCB Camp Pendleton and 223 ac (90 

ha) on Fallbrook Naval Weapons 

Station) that fall within the boundaries 

of this critical habitat unit from the 

proposed revised designation of critical 

habitat under section 4(a)(3)(B) of the 

Act because the lands are subject to the 

2007 INRMP for MCB Camp Pendleton 

and the 2006 INRMP for the Fallbrook 

Naval Weapons Station, and each 

INRMP provides a benefit to the arroyo 

toad (see the ‘‘Application of Section 

4(a)(3) of the Act’’ section of this 

proposed revised rule for a detailed 

discussion). 


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Subunit 12a 

Subunit 12a encompasses 

approximately 2.1 mi (3 km) of De Luz 

Creek from the town of De Luz 

downstream to the MCB Camp 

Pendleton boundary. The subunit 

consists of 394 ac (159 ha) of private 

land. Subunit 12a contains the physical 

and biological features that are essential 

to the conservation of the species, 

including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

cumulative impacts to the species’ 

habitat from recreation, nonnative 

predators, and nonnative plants 

(CNDDB 2008 EO 26). Please see the 

‘‘Special Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Subunit 12b 

Subunit 12b encompasses 

approximately 5.5 mi (9 km) of the 

Santa Margarita River upstream from the 

MCB Camp Pendleton boundary. The 

subunit consists of 5 ac (2 ha) of State 

land and 610 ac (247 ha) of private land. 

Subunit 12b contains the physical and 

biological features that are essential to 

the conservation of the species, 

including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

cumulative impacts to the species’ 

habitat from nonnative predators, 

nonnative plants, and vehicular traffic 

(Varanus Biological Services, Inc. 1999, 

pp. 34–35). Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Unit 13: Upper Santa Margarita River 

Basin (8,137 ac (3,293 ha)) 

This unit is located in southern 

Riverside County and northern San 

Diego County and consists of three 

subunits totaling 23 ac (9 ha) of Bureau 

of Land Management land, 434 ac (176 

ha) of Forest Service land, and 7,682 ac 

(3,109 ha) of private land. This unit 

provides potential links to arroyo toad 

populations in the lower Santa 

Margarita River Basin and other nearby 

drainages containing suitable habitat. 

Subunit 13a 

Subunit 13a encompasses 

approximately 7.3 mi (12 km) of Arroyo 

Seco Creek from just south of the San 

Diego-Riverside County boundary 

downstream to Vail Lake. The subunit 

consists of 343 ac (139 ha) of Forest 

Service land and 813 ac (329 ha) of 

private land. Subunit 13a contains the 

physical and biological features that are 

essential to the conservation of the 

species, including aquatic habitat for 

breeding and non-breeding activities 

(PCEs 1, 2, and 3) and upland habitat for 

foraging and dispersal activities (PCE 4). 

The physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

nonnative predators and campground 

activities (USGS 2000, p. 3). Please see 

the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

We are considering the exclusion of 

approximately 690 ac (279 ha) of private 

land in Subunit 13a within the Western 

Riverside County MSHCP from the final 

revised critical habitat designation 

under section 4(b)(2) of the Act (see 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this proposed revised 

rule for a detailed discussion). 

Subunit 13b 

Subunit 13b encompasses 

approximately 16.3 mi (26 km) of 

Temecula Creek from Dodge Valley 

downstream to Vail Lake. The subunit 

consists of 91 ac (37 ha) of Forest 

Service land, 23 ac (9 ha) of Bureau of 

Land Management land, and 4,643 ac 

(1,879 ha) of private land. Subunit 13b 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from road 

maintenance and sand-mining 

operations (HELIX 2004, p. 1). Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

We are considering the exclusion of 

approximately 2,318 ac (938 ha) of 

private land in Subunit 13b within the 

Western Riverside County MSHCP from 

the final revised critical habitat 

designation under section 4(b)(2) of the 

Act (see ‘‘Application of Section 4(b)(2) 

of the Act’’ section of this proposed 

revised rule for a detailed discussion). 

Subunit 13c 

Subunit 13c encompasses 

approximately 6.5 mi (10 km) of Wilson 

Creek from the confluence with Cahuilla 

Creek downstream to Vail Lake. The 

subunit consists of 2,226 ac (901 ha) of 

private land. Subunit 13c contains the 

physical and biological features that are 

essential to the conservation of the 

species, including aquatic habitat for 

breeding and non-breeding activities 

(PCEs 1, 2, and 3) and upland habitat for 

foraging and dispersal activities (PCE 4). 

The physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from direct 

mortality and habitat degradation from 

off-highway vehicular traffic, and 

upstream sedimentation caused by 

urbanization, agriculture, or wildfire (R. 

Haase, MCAS Camp Pendleton, in litt. 

2009b, p. 1). Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. We are considering the 

exclusion of approximately 2,225 ac 

(900 ha) of private land in Subunit 13c 

within the Western Riverside County 

MSHCP from the final revised critical 

habitat designation under section 4(b)(2) 

of the Act (see ‘‘Application of Section 

4(b)(2) of the Act’’ section of this 

proposed revised rule for a detailed 

discussion). 

Unit 14: Lower and Middle San Luis 

Rey River Basin (12,906 ac (5,223 ha)) 

This unit is located in northern San 

Diego County and encompasses 

approximately 30 mi (48 km) of the San 

Luis Rey River from the western edge of 

the La Jolla Indian Reservation 

downstream to the confluence with 

Guajome Creek near the City of 

Oceanside. It also includes 

approximately 3.4 mi (5.5 km) of Pala 

Creek and 1.7 mi (2.7 km) of Keys Creek 

upstream from their confluence with the 

San Luis Rey River. The unit consists of 

approximately 5 ac (2 ha) of Bureau of 

Land Management land, 10 ac (4 ha) of 

State land, 3,540 ac (1,432 ha) of tribal 

land, and 9,351 ac (3,785 ha) of private 

land, and supports one of the largest 


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contiguous river reaches that is 

occupied by the species. Unit 14 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this unit may require special 

management considerations or 

protection to address threats from dams 

and water diversions, intensive 

urbanization, agriculture, and nonnative 

predators and plants. Please see the 

‘‘Special Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

As discussed in the ‘‘Application of 

Section 4(b)(2) of the Act’’ section of 

this proposed revised rule, we recognize 

the importance of government-togovernment relationships with Tribes; 

therefore, we are considering the 

exclusion of approximately 1,155 ac 

(467 ha) of Rincon Band of Luisen ̃ o 

Mission Indians Tribal Lands and 

approximately 2,385 ac (963 ha) of Pala 

Band of Luisen ̃ o Mission Indians Tribal 

Lands in Unit 14 from the final revised 

critical habitat designation under 

section 4(b)(2) of the Act. We are 

seeking public comment on the 

appropriateness of the inclusion or 

exclusion of these lands from final 

designation of revised critical habitat 

and whether the conservation needs of 

the arroyo toad can be achieved by 

limiting the designation to non-tribal 

lands (see Public Comments section). 

Unit 15: Upper San Luis Rey River 

Basin (12,026 ac (4,867 ha)) 

This unit is located in northern San 

Diego County and encompasses: (1) 

Approximately 8.6 mi (14 km) of the 

West Fork of the San Luis Rey River 

from Barker Valley downstream to the 

upper end of Lake Henshaw, (2) 

approximately 11.4 mi (18 km) of the 

upper San Luis Rey River from the 

Indian Flats area downstream to the 

upper end of Lake Henshaw, and (3) 

approximately 6.9 mi (11 km) of Agua 

Caliente Creek from the western edge of 

section 13 (T10S, R3E) to the confluence 

with the San Luis Rey River. The unit 

consists of 1,428 ac (578 ha) of Forest 

Service land and 10,598 ac (4,289 ha) of 

private land. This unit supports a 

unique assemblage of several small, 

disjunct, high-elevation arroyo toad 

populations and one significant 

population on Agua Caliente Creek 

(Gergus 1992, in litt.; Ervin 2000, in litt.; 

CNDDB 2008, Element Occurrences 

(EOs) 27, 32) in an area where in-stream 

and overland dispersal between 

populations is likely still possible. Unit 

15 contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this unit may require special 

management considerations or 

protection to address threats from 

groundwater pumping on private lands, 

nonnative predators, and grazing. Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

Unit 16: Santa Ysabel Creek Basin 

(13,567 ac (5,490 ha)) 

This unit is located in north-central 

San Diego County and consists of two 

subunits totaling 6 ac (2 ha) of Bureau 

of Land Management land, 138 ac (56 

ha) of Forest Service land, 182 ac (74 ha) 

of State land, 143 ac (58 ha) of local 

government land, 23 ac (9 ha) of tribal 

land, and 13,074 ac (5,291 ha) of private 

land. This unit supports large amounts 

of suitable habitat connecting large 

populations with several additional 

populations. 

Subunit 16a 

Subunit 16a encompasses: (1) 

Approximately 12 mi (19 km) of Santa 

Ysabel Creek from the confluence with 

Temescal Creek downstream to the 

confluence with Santa Maria Creek, (2) 

approximately 10 mi (16.1 km) of 

Guejito Creek from the 2,000 ft (610 m) 

elevation contour downstream to the 

confluence with Santa Ysabel Creek, (3) 

approximately 2.5 mi (4.0 km) of Boden 

Canyon upstream from the Santa Ysabel 

Creek confluence, (4) approximately 4.3 

mi (7 km) of Temescal Creek from the 

northern edge of Pamo Valley to the 

confluence with Santa Ysabel Creek, 

and (5) approximately 9.1 mi (15 km) of 

Santa Maria Creek from the west side of 

Ramona to the confluence with Santa 

Ysabel Creek. The subunit consists of 

138 ac (56 ha) of Forest Service land, 6 

ac (2 ha) of Bureau of Land Management 

land, 182 ac (74 ha) of State land, 143 

ac (58 ha) of local government land, and 

11,667 ac (4,721 ha) of private land. 

Subunit 16a contains the physical and 

biological features that are essential to 

the conservation of the species, 

including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

grazing, nonnative predators, and 

urbanization (Tierra Environmental 

Services 2001, in litt.; CNDDB 2008, EOs 

59, 61). Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. We are considering the 

exclusion of approximately 3,915 ac 

(1,585 ha) of private lands in Subunit 

16a within the San Diego MSCP–City 

and County of San Diego Subarea Plans 

from the final revised critical habitat 

designation under section 4(b)(2) of the 

Act (see ‘‘Application of Section 4(b)(2) 

of the Act’’ section of this proposed 

revised rule for a detailed discussion). 

Subunit 16d 

Subunit 16d encompasses 

approximately 5.2 mi (8.3 km) of Santa 

Ysabel Creek about 0.5 mi (0.8 km) east 

of Highway 79 downstream to 

approximately 0.25 mi (0.4 km) 

downstream of the confluence with 

Witch Creek. The subunit consists of 23 

ac (9 ha) of Mesa Grande Reservation 

tribal land and 1,408 ac (570 ha) of 

private land. Subunit 16d contains the 

physical and biological features that are 

essential to the conservation of the 

species, including aquatic habitat for 

breeding and non-breeding activities 

(PCEs 1, 2, and 3) and upland habitat for 

foraging and dispersal activities (PCE 4). 

The physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

grazing (CNDDB 2008, EO 62). Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

As discussed in the ‘‘Application of 

Section 4(b)(2) of the Act’’ section of 

this proposed revised rule, we recognize 

the importance of government-togovernment relationships with Tribes; 

therefore, we are considering the 

exclusion of approximately 23 ac (9 ha) 

of Mesa Grande Band of Diegueno 

Mission Indians Tribal Lands in Subunit 

16d from the final revised critical 

habitat designation under section 4(b)(2) 

of the Act. We are seeking public 

comment on the appropriateness of the 

inclusion or exclusion of these lands 

from final designation of revised critical 


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52634 Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / Proposed Rules 

habitat and whether the conservation 

needs of the arroyo toad can be achieved 

by limiting the designation to non-tribal 

lands (see Public Comments section). 

Unit 17: San Diego River Basin/San 

Vicente Creek (4,263 ac (1,725 ha)) 

This unit is located in central San 

Diego County and consists of three 

subunits totaling 35 ac (14 ha) of Bureau 

of Land Management land, 390 ac (158 

ha) of Forest Service land, 93 ac (38 ha) 

of Capitan Grande Band of Diegueno 

Mission Indians tribal land, and 3,746 

ac (1,516 ha) of private land. This unit 

supports suitable habitat for population 

expansion, thus increasing the 

probability of the long-term persistence 

of these populations. 

Subunit 17a 

Subunit 17a encompasses: (1) 

Approximately 8.7 mi (14 km) of the 

San Diego River from Temescal Creek 

downstream through 0.5 mi (0.9 km) of 

the Capitan Grande Reservation to the 

upper edge of El Capitan Reservoir, and 

(2) approximately 1 mi (2 km) of lower 

Cedar Creek. The subunit consists of 

354 ac (143 ha) of Forest Service land, 

92 ac (37 ha) of Capitan Grande Band of 

Diegueno Mission Indians tribal land, 

and 795 ac (322 ha) of private land. 

Subunit 17a contains the physical and 

biological features that are essential to 

the conservation of the species, 

including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

urbanization and nonnative predators. 

Please see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

As discussed in the ‘‘Application of 

Section 4(b)(2) of the Act’’ section of 

this proposed revised rule, we recognize 

the importance of government-togovernment relationships with Tribes; 

therefore, we are considering the 

exclusion of approximately 92 ac (37 ha) 

of Capitan Grande Band of Diegueno 

Mission Indians Tribal Lands in Subunit 

17a from the final revised critical 

habitat designation under section 4(b)(2) 

of the Act. We are seeking public 

comment on the appropriateness of the 

inclusion or exclusion of these lands 

from final designation of revised critical 

habitat and whether the conservation 

needs of the arroyo toad can be achieved 

by limiting the designation to non-tribal 

lands (see Public Comments section). 

Subunit 17b 

Subunit 17b encompasses 

approximately 7.2 mi (12 km) of the San 

Diego River downstream from San 

Vicente Reservoir. The subunit consists 

of 12 ac (5 ha) of Bureau of Land 

Management land, 36 ac (15 ha) of 

Forest Service land, and 1,817 ac (735 

ha) of private land. Subunit 17b 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

urbanization, agriculture, nonnative 

predators, and adverse water releases 

(based on timing or amount) from the 

Sutherland/San Vicente Aqueduct. 

Please see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

We are considering the exclusion of 

approximately 1,730 ac (700 ha) of 

private lands in Subunit 17b within the 

San Diego MSCP–City and County of 

San Diego Subarea Plans from the final 

revised critical habitat designation 

under section 4(b)(2) of the Act (see 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this proposed revised 

rule for a detailed discussion). 

Subunit 17d 

Subunit 17d encompasses 

approximately 7.6 mi (12 km) of San 

Vicente Creek upstream from San 

Vicente Reservoir. The subunit consists 

of 23 ac (9 ha) of Bureau of Land 

Management land and 1,134 ac (459 ha) 

of private land. Subunit 17d contains 

the physical and biological features that 

are essential to the conservation of the 

species, including aquatic habitat for 

breeding and non-breeding activities 

(PCEs 1, 2, and 3) and upland habitat for 

foraging and dispersal activities (PCE 4). 

The physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

urbanization, agriculture, nonnative 

predators, and adverse water releases 

(based on timing or amount) from the 

Sutherland/San Vicente Aqueduct 

(Varanus Biological Services, Inc. 1999, 

p. 20; RECON 2008, pp. 1, 3–4). Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

We are considering the exclusion of 

approximately 931 ac (377 ha) of private 

lands in Subunit 17d within the San 

Diego MSCP–City and County of San 

Diego Subarea Plans from the final 

revised critical habitat designation 

under section 4(b)(2) of the Act (see 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this proposed revised 

rule for a detailed discussion). 

Unit 18: Sweetwater River Basin (4,783 

ac (1,936 ha)) 

This unit is located in south-central 

San Diego County and consists of two 

subunits totaling 553 ac (224 ha) of 

Forest Service land, 3 ac (1 ha) of San 

Diego National Wildlife Refuge land, 

1,659 ac (671 ha) of State land, 391 ac 

(158 ha) of tribal land, and 2,178 ac (882 

ha) of private land. This unit supports 

several significant populations over 

large stretches of rivers and streams 

(Gergus 1992, in litt.; Ervin 1997, in litt.; 

Varanus Biological Services, Inc. 1999, 

pp. 4–16; CNDDB 2008, EOs 38, 43, 67, 

73, 77, 85, 99, 100). 

Subunit 18a 

Subunit 18a encompasses: (1) 

Approximately 26.6 mi (43 km) of the 

Sweetwater River from the top of Upper 

Green Valley in Cuyamaca Rancho State 

Park downstream to the top of Loveland 

Reservoir, (2) approximately 4.3 mi (7 

km) of Viejas Creek from the western 

border of the Viejas Indian Reservation 

downstream to the confluence with the 

Sweetwater River, and (3) 

approximately 1.5 mi (2 km) of Peterson 

Canyon from just east of the Taylor 

Creek confluence downstream to the top 

of Loveland Reservoir. The subunit 

consists of 553 ac (224 ha) of Forest 

Service land, 1,554 ac (629 ha) of State 

land, and 2,049 ac (829 ha) of private 

land. Subunit 18a contains the physical 

and biological features that are essential 

to the conservation of the species, 

including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

vehicular traffic, including off- highway 

vehicular traffic; horse-riding activities; 

nonnative predators; reservoir 

inundation; and cumulative impacts 

from human activities, including direct 

mortality from trampling and trash 


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dumping (Varanus Biological Services, 

Inc. 1999, p. 14; Mendelsohn et al. 2005, 

pp. 10–11). Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. We are considering the 

exclusion of approximately 545 ac (221 

ha) of private lands in Subunit 18a 

within the San Diego MSCP–City and 

County of San Diego Subarea Plans from 

the final revised critical habitat 

designation under section 4(b)(2) of the 

Act (see ‘‘Application of Section 4(b)(2) 

of the Act’’ section of this proposed 

revised rule for a detailed discussion). 

Subunit 18c 

Subunit 18c encompasses 

approximately 5.8 mi (9.3 km) of the 

Sweetwater River from immediately 

below Loveland Dam downstream to 

just above the Sycuan Resort. The 

subunit consists of 3 ac (1 ha) of San 

Diego National Wildlife Refuge land, 

391 ac (158 ha) of Sycuan Band of the 

Kumeyaay Nation tribal land, 105 ac (42 

ha) of State land, and 129 ac (53 ha) of 

private land. Subunit 18c contains the 

physical and biological features that are 

essential to the conservation of the 

species, including aquatic habitat for 

breeding and non-breeding activities 

(PCEs 1, 2, and 3) and upland habitat for 

foraging and dispersal activities (PCE 4). 

The physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

adverse water releases (based on timing 

or amount) from the Loveland Reservoir 

and gravel mining operations (MaddenSmith et al. 2003, pp. 15, 17). Please see 

the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

As discussed in the ‘‘Application of 

Section 4(b)(2) of the Act’’ section of 

this proposed revised rule, we recognize 

the importance of government-togovernment relationships with Tribes; 

therefore, we are considering the 

exclusion of approximately 391 ac (158 

ha) of Sycuan Band of the Kumeyaay 

Nation Tribal Lands in Subunit 18c 

from the final revised critical habitat 

designation under section 4(b)(2) of the 

Act. We are seeking public comment on 

the appropriateness of the inclusion or 

exclusion of these lands from final 

designation of revised critical habitat 

and whether the conservation needs of 

the arroyo toad can be achieved by 

limiting the designation to non-tribal 

lands (see Public Comments section). 

We are also considering the exclusion 

of approximately 595 ac (241 ha) of 

private lands in Subunit 18c within the 

San Diego MSCP–City and County of 

San Diego Subarea Plans from the final 

revised critical habitat designation 

under section 4(b)(2) of the Act (see 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this proposed revised 

rule for a detailed discussion). 

Unit 19: Cottonwood Creek Basin 

(14,375 ac (5,817 ha)) 

Unit 19 is located in southern San 

Diego County and consists of five 

subunits totaling 190 ac (77 ha) of 

Bureau of Land Management land, 3,928 

ac (1,589 ha) of Forest Service land, 

1,482 ac (600 ha) of local government 

land, and 8,778 ac (3,551 ha) of private 

land. This unit encompasses a large 

number of distinct arroyo toad 

occurrences (Gergus 1992, in litt.; 

Varanus Biological Services, Inc. 1999, 

pp. 2–3; Gergus 2000, in litt.; CNDDB 

2008, EOs 20–22, 30, 40, 44, 63–65, 69, 

79) in an area where in-stream and 

overland dispersal between populations 

is likely still possible and where there 

is room for population expansion. 

Subunit 19a 

Subunit 19a encompasses: (1) 

Approximately 7 mi (11.2 km) of 

Cottonwood Creek from Buckman 

Springs (near Interstate 8) downstream 

to Morena Reservoir, (2) approximately 

2.8 mi (4.5 km) of Morena Creek 

downstream to the Cottonwood Creek 

confluence, (3) approximately 0.5 mi (1 

km) of an unnamed tributary of Morena 

Creek in section 35 (T16S, R04E) 

downstream to the confluence with 

Morena Creek, (4) approximately 5 mi (8 

km) of Kitchen Creek downstream to the 

Cottonwood Creek confluence, and (5) 

approximately 3.7 mi (6 km) of La Posta 

Creek downstream to the Cottonwood 

Creek confluence. The subunit consists 

of 2,129 ac (862 ha) of Forest Service 

land, 1,482 ac (600 ha) of local 

government land, and 2,237 ac (905 ha) 

of private land. Subunit 19a contains 

the physical and biological features that 

are essential to the conservation of the 

species, including aquatic habitat for 

breeding and non-breeding activities 

(PCEs 1, 2, and 3) and upland habitat for 

foraging and dispersal activities (PCE 4). 

The physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

grazing, recreational activities, and 

nonnative plants and predators (Ervin 

2000, in litt.; TAIC 2005, p. 1; CNDDB 

2008, EOs 20, 44, 69). Please see the 

‘‘Special Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Subunit 19b 

Subunit 19b encompasses 

approximately 12.7 mi (20 km) of 

Cottonwood Creek from immediately 

below Barrett Lake downstream to the 

U.S.-Mexico border and includes 10.3 

mi (17 km) of Potrero Creek from 

approximately the 2,466-ft (752-m) 

elevation benchmark downstream to the 

confluence with Cottonwood Creek. The 

subunit consists of 80 ac (32 ha) of 

Forest Service land, 129 ac (52 ha) of 

Bureau of Land Management land, and 

4,921 ac (1,991 ha) of private land. 

Subunit 19b contains the physical and 

biological features that are essential to 

the conservation of the species, 

including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

grazing, and nonnative plants and 

predators (Ervin 1997, in litt.; TAIC 

2005, pp. 1, 3; CNDDB 2008, EOs 40, 64, 

65, 79). Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. We are considering the 

exclusion of approximately 1,226 ac 

(496 ha) of private lands in Subunit 19b 

within the San Diego MSCP–City and 

County of San Diego Subarea Plans from 

the final revised critical habitat 

designation under section 4(b)(2) of the 

Act (see ‘‘Application of Section 4(b)(2) 

of the Act’’ section of this proposed 

revised rule for a detailed discussion). 

Subunit 19c 

Subunit 19c encompasses: (1) 

Approximately 7.6 mi (12 km) of Pine 

Valley Creek from the north edge of 

section 12 (T15S, R4E) downstream to 

approximately 0.6 mi (1 km) south of 

Interstate 8, (2) approximately 0.6 mi (1 

km) of Noble Creek downstream to the 

confluence with Pine Valley Creek, (3) 

approximately 2.4 mi (4 km) of Scove 

Canyon downstream to the confluence 

with Pine Valley Creek, and (4) 

approximately 1.3 mi (2 km) of an 

unnamed tributary upstream of Scove 

Canyon in sections 25 and 36 (T15S, 

R04E). The subunit consists of 809 ac 

(327 ha) of Forest Service land and 703 

ac (284 ha) of private land. Subunit 19c 

contains the physical and biological 


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features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

urbanization, grazing, vehicular traffic, 

and nonnative predators (Holland and 

Sisk 2001, p. 9; CNDDB 2008, EOs 21, 

22, 30). Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Subunit 19d 

Subunit 19d encompasses 

approximately 8 mi (13 km) of Pine 

Valley Creek from the Nelson Canyon 

confluence downstream to Barrett 

Reservoir and approximately 1.6 mi (3 

km) of Horsethief Canyon downstream 

to the confluence with Pine Valley 

Creek. The subunit consists of 910 ac 

(368 ha) of Forest Service land and 28 

ac (11 ha) of private land. Subunit 19d 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

grazing and U.S. Border Patrol activities 

(Varanus Biological Services, Inc. 1999, 

p. 2; CNDDB 2008, EO 63). Please see 

the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

Subunit 19e 

Subunit 19e encompasses 

approximately 4.4 mi (7 km) of Campo 

Creek from Campo Lake downstream to 

the U.S.-Mexico border. The subunit 

consists of 61 ac (25 ha) of Bureau of 

Land Management land and 889 ac (360 

ha) of private land. Subunit 19e 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from fire 

management activities along the U.S.- 

Mexico border (LEI 2008, p. 2). Please 

see the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

Desert Recovery Unit 

As described in the recovery plan 

(Service 1999, pp. 1–119), maintaining 

arroyo toad populations in the following 

4 critical habitat units is necessary to 

conserve the species in the desert 

recovery unit. Each of these units is 

isolated from each other and from any 

other recovery units, making the issues 

of inbreeding, fragmentation, and 

random negative impacts of great 

concern. However, this recovery unit 

also represents unique ecological 

conditions for arroyo toads, and likely 

harbors important genetic diversity. 

Unit 20: Upper Santa Ana River Basin/ 

Cajon Wash (1,775 ac (718 ha)) 

This unit is located in southwestern 

San Bernardino County and 

encompasses approximately 7.9 mi (13 

km) of Cajon Wash upstream from the 

San Bernardino National Forest 

boundary. The unit consists of 711 ac 

(288 ha) of Forest Service land and 

1,065 ac (431 ha) of private land. This 

unit supports a population that may 

represent some of the last vestiges of a 

much greater population that 

historically existed along the upper 

Santa Ana River Basin, but was almost 

entirely extirpated due to urbanization 

of the greater Los Angeles area, and 

helps preserve a critical outlier segment 

of the genetic, phenotypic, or behavioral 

variation of the species. Unit 20 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this unit may require special 

management considerations or 

protection to address threats from 

recreational activities. Please see the 

‘‘Special Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Unit 21: Little Rock Creek Basin (612 ac 

(248 ha)) 

This unit is located in central Los 

Angeles County and encompasses: (1) 

Approximately 5.9 mi (9.5 km) of Little 

Rock Creek from the South Fork 

confluence downstream to the upper 

end of Little Rock Reservoir (in the 

vicinity of Rocky Point Picnic Ground), 

and (2) approximately 1.1 mi (1.8 km) 

of Santiago Creek upstream from the 

confluence with Little Rock Creek in the 

Little Rock Creek Basin. The unit 

consists of 612 ac (248 ha) of Forest 

Service land. This unit is on the 

periphery of the species’ range in the 

Mojave Desert and geographically 

isolated from other known toad 

populations; therefore, it is possible that 

arroyo toads in this area possess unique 

genetic and phenotypic variation. Unit 

21 contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this unit may require special 

management considerations or 

protection to address threats from 

recreational activities. Please see the 

‘‘Special Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Unit 22: Upper Mojave River Basin 

(5,919 ac (2,395 ha)) 

This unit is located in San Bernardino 

County and consists of two subunits 

totaling 3,253 ac (1,316 ha) of Federal 

land, 2,534 ac (1,025 ha) of private land, 

and 132 ac (54 ha) of State land. 

Subunit 22a 

Subunit 22a includes: (1) 

Approximately 9.3 mi (18 km) of Deep 

Creek from near Holcomb Creek 

downstream to the confluence with the 

West Fork; (2) approximately 4 mi (6 

km) of Little Horsethief Creek upstream 

from its confluence with Horsethief 

Creek; (3) approximately 4 mi (6 km) of 

Horsethief Creek from approximately 1 

mi (1.6 km) above the Little Horsethief 

Creek confluence downstream to the 

West Fork confluence; (4) 

approximately 6 mi (10 km) of the West 

Fork of the Mojave River from Highway 

173 downstream to Mojave River Forks 

Dam; (5) approximately 1 mi (1.6 km) of 

the Mojave River below Mojave River 

Forks Dam; (6) approximately 1.4 mi 

(2.2 km) of Grass Valley Creek upstream 


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from the confluence with the West Fork; 

and (7) approximately 2.8 mi (4.5 km) 

of Kinley Creek upstream from the Deep 

Creek confluence. The subunit consists 

of 3,209 ac (1,299 ha) of Federal land 

and 2,474 ac (1,001 ha) of private land. 

This subunit supports the largest 

population of the species on the desert 

side of the San Bernardino Mountains 

and is important for maintaining the 

range of genetic and phenotypic 

diversity of the species. Subunit 22a 

contains the physical and biological 

features that are essential to the 

conservation of the species, including 

aquatic habitat for breeding and nonbreeding activities (PCEs 1, 2, and 3) 

and upland habitat for foraging and 

dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

nonnative species, urban development, 

and recreation. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Subunit 22c 

Subunit 22c includes approximately 1 

mi (1.6 km) of the upper West Fork of 

the Mojave River, above Silverwood 

Lake, from near the 3,613 ft (1,462 m) 

elevation benchmark downstream to the 

upper end of the lake. The subunit 

consists of 43 ac (17 ha) of Federal land, 

132 ac (54 ha) of county land, and 60 

ac (24 ha) of private land. This subunit 

contains Summit Valley, which 

encompasses the lower portions of 

Horsethief Creek and the West Fork of 

the Mojave River, a broad, flat, alluvial 

valley that supports a substantial arroyo 

toad population (Ramirez 2003, pp. 16– 

17). Additionally, the downstream 

portion of this subunit contains the 

driest conditions of any unit proposed 

for arroyo toad critical habitat (Teale 

Data Center 1998, p. 1; CIMS 2000, p. 

1), which suggests that this population 

may possess unique physiological 

adaptations, such as a reduced rate of 

evaporative water loss, and is important 

for maintaining the range of genetic and 

phenotypic diversity of the species. 

Subunit 22c contains the physical and 

biological features that are essential to 

the conservation of the species, 

including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this subunit may require 

special management considerations or 

protection to address threats from 

nonnative species, urban development, 

and recreation. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this proposed rule 

for a discussion of the threats to arroyo 

toad habitat and potential management 

considerations. 

Unit 23: Whitewater River Basin (1,355 

ac (548 ha)) 

This unit is located in northern 

Riverside County and encompasses 

approximately 6.4 mi (10 km) of the 

Whitewater River from near Red Dome 

downstream to the Colorado River 

Aqueduct. The unit consists of 783 ac 

(317 ha) of Bureau of Land Management 

land and 572 ac (231 ha) of private land. 

This unit supports an isolated desert 

population on the easternmost 

periphery of the species’ range in the 

Colorado Desert that may possess 

unique phenotypic and genetic variation 

that are distinct from other desert 

populations in the Mojave Desert 

(including Units 21 and 22 discussed 

above). Unit 23 contains the physical 

and biological features that are essential 

to the conservation of the species, 

including aquatic habitat for breeding 

and non-breeding activities (PCEs 1, 2, 

and 3) and upland habitat for foraging 

and dispersal activities (PCE 4). The 

physical and biological features 

essential to the conservation of the 

species in this unit may require special 

management considerations or 

protection to address threats from 

unsuitable water flow for breeding and 

off-highway vehicular traffic. Please see 

the ‘‘Special Management 

Considerations or Protection’’ section of 

this proposed rule for a discussion of 

the threats to arroyo toad habitat and 

potential management considerations. 

We are considering the exclusion of 

approximately 538 ac (218 ha) of private 

lands in Unit 23 within the Coachella 

Valley MSHCP from the final revised 

critical habitat designation under 

section 4(b)(2) of the Act (see 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this proposed revised 

rule for a detailed discussion). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the Fifth and 

Ninth Circuit Courts of Appeal have 

invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 

442F (5th Cir. 2001)), and we do not rely 

on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

its intended conservation role for the 

species. Section 7(a)(2) of the Act 

requires Federal agencies, including the 

Service, to evaluate their actions with 

respect to any species that is 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a species 

proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. Conference 

reports provide conservation 

recommendations to assist the agency in 

eliminating conflicts that may be caused 

by the proposed action. We may issue 

a formal conference report if requested 

by a Federal agency. Formal conference 

reports on proposed critical habitat 

contain an opinion that is prepared 

according to 50 CFR 402.14, as if critical 

habitat were designated. We may adopt 

the formal conference report as the 

biological opinion when the critical 

habitat is designated, if no substantial 

new information or changes in the 

action alter the content of the opinion 

(see 50 CFR 402.10(d)). The 

conservation recommendations in a 

conference report or opinion are 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, we document compliance 

with the requirements of section 7(a)(2) 

of the Act through our issuance of: 


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(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

An exception to the concurrence 

process referred to in (1) above occurs 

in consultations involving National Fire 

Plan projects. In 2004, the U.S. Forest 

Service and the Bureau of Land 

Management reached agreements with 

the Service to streamline a portion of 

the section 7 consultation process 

(BLM–ACA 2004, pp. 1–8; FS–ACA 

2004, pp. 1–8). The agreements allow 

the U.S. Forest Service and the Bureau 

of Land Management the opportunity to 

make ‘‘not likely to adversely affect’’ 

determinations for projects 

implementing the National Fire Plan. 

Such projects include prescribed fire, 

mechanical fuels treatments (thinning 

and removal of fuels to prescribed 

objectives), emergency stabilization, 

burned area rehabilitation, road 

maintenance and operation activities, 

ecosystem restoration, and culvert 

replacement actions. The U.S. Forest 

Service and the Bureau of Land 

Management will insure staff is properly 

trained and both agencies will submit 

monitoring reports to the Service to 

determine if the procedures are being 

implemented properly and effects on 

endangered species and their habitats 

are being properly evaluated. As a result 

we do not believe the alternative 

consultation processes being 

implemented as a result of the National 

Fire Plan will differ significantly from 

those consultations being conducted by 

the Service. 

If we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

also provide reasonable and prudent 

alternatives to the project, if any are 

identifiable. We define ‘‘reasonable and 

prudent alternatives’’ at 50 CFR 402.02 

as alternative actions identified during 

consultation that: 

• Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

• Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected, and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect the 

arroyo toad or its designated critical 

habitat will require section 7(a)(2) 

consultation under the Act. Activities 

on State, Tribal, local, or private lands 

requiring a Federal permit (such as a 

permit from the U.S. Army Corps of 

Engineers under section 404 of the 

Clean Water Act (33 U.S.C. 1251 et seq.) 

or a permit under section 10 of the Act 

from the Service) or involving some 

other Federal action (such as funding 

from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) will 

also be subject to the section 7(a)(2) 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7(a)(2) 

consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or would retain its current 

ability for the PCEs to be functionally 

established. Activities that may destroy 

or adversely modify critical habitat are 

those that alter the physical and 

biological features (PCEs) to an extent 

that appreciably reduces the 

conservation value of critical habitat for 

the arroyo toad. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may adversely affect critical 

habitat and, therefore, should result in 

consultation for the arroyo toad include, 

but are not limited to, the following: 

(1) Actions that alter water chemistry 

or temperature. Such activities include, 

but are not limited to: Release of 

chemicals, biological pollutants, or 

heated effluents into the surface water 

or into connected groundwater at a 

point source or by dispersed release 

(non-point source). These activities can 

alter water conditions beyond the 

tolerances of the arroyo toad and result 

in direct or cumulative adverse effects 

to these individuals and their life 

cycles. 

(2) Actions that increase sediment 

deposition within the stream channel or 

disturb upland foraging and dispersal 

habitat. Such activities include, but are 

not limited to: Excessive sedimentation 

from livestock overgrazing, road 

construction, commercial or urban 

development, channel alteration, timber 

harvest, off-highway vehicle or 

recreational use, and other watershed 

and floodplain disturbances. These 

activities could eliminate or reduce the 

habitat necessary for the growth and 

reproduction of the arroyo toad by 

increasing the sediment deposition to 

levels that would adversely affect their 

ability to complete their life cycles. 

(3) Actions that alter channel 

morphology or geometry. Such activities 

include, but are not limited to: Flood 

control and water diversion structures, 

such as dams and reservoirs, that 

regulate stream flows and trap 

sediments, direct groundwater 

extraction, channelization, 

impoundment, road and bridge 

construction, development, mining, 

dredging, and destruction of riparian 

vegetation. These activities may lead to 

changes to the hydrologic functioning of 

the stream and alter the timing, 

duration, water flows, and levels that 

would degrade or eliminate the arroyo 

toad and its habitat. These actions can 

also lead to increased sedimentation 

and degradation in water quality to 

levels that are beyond the tolerances of 

the arroyo toad and provide habitat for 


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nonnative species that prey on arroyo 

toads. 

(4) Actions that eliminate upland 

foraging, aestivating, or dispersal habitat 

for the arroyo toad. Such activities 

include, but are not limited to: Road 

construction, commercial or urban 

development, timber harvest, offhighway vehicle or recreational use, and 

other watershed and floodplain 

disturbances. These actions could affect 

the species’ habitat through erosion, 

siltation, soil compaction, water quality 

degradation from urban runoff 

containing contaminants, fertilizers and 

pesticides, and the spread of introduced 

nonnative plants. 

(5) Actions that lead to introducing, 

spreading, or augmenting nonnative 

aquatic species in stream segments used 

by arroyo toad. Possible actions include, 

but are not limited to: Introduction of 

chytrid fungus or other diseases, fish 

stocking for sport, nonnative aquatic 

plant species for aesthetics, or other 

related actions. These activities could 

affect the growth and reproduction of 

the arroyo toad by subjecting eggs, 

larvae, tadpoles, and adult arroyo toads 

to increased predation pressure or limit 

the amount of habitat available for the 

species, which would adversely affect 

the arroyo toad’s ability to complete its 

life cycle. 

Note that the scale of these activities 

is a crucial factor in determining 

whether, in any instance, they would 

directly or indirectly alter critical 

habitat to the extent that the value of the 

critical habitat would be appreciably 

diminished in providing for the 

physical or biological features essential 

to the conservation of the arroyo toad. 

We consider all of the units and 

subunits proposed as critical habitat to 

contain features essential to the 

conservation of the arroyo toad. All 

units are within the geographical area 

occupied by the species at the time it 

was listed, and are currently occupied 

by arroyo toads. To ensure that their 

actions do not jeopardize the continued 

existence of the arroyo toad, Federal 

agencies already consult with us on 

activities in areas currently occupied by 

the arroyo toad, or in unoccupied areas 

if the species may be affected by their 

actions. 

Exemptions 

Application of Section 4(a)(3) of the Act 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

(1) An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

(2) A statement of goals and priorities; 

(3) A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

(4) A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Endangered Species 

Act to limit areas eligible for 

designation as critical habitat. 

Specifically, section 4(a)(3)(B)(i) of the 

Act (16 U.S.C. 1533(a)(3)(B)(i)) now 

provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

We consult with the military on the 

development and implementation of 

INRMPs for installations with federally 

listed species. INRMPs developed by 

military installations located within the 

range of the arroyo toad and which 

contain those features essential to the 

species’ conservation were analyzed for 

exemption under the authority of 

section 4(a)(3)(B) of the Act. 

Approved INRMPS 

Fort Hunter Liggett Military 

Reservation, MCB Camp Pendleton, and 

Fallbrook Naval Weapons Station have 

approved INRMPs. The U.S. Army 

Reserve and Marine Corps (on both 

MCB Camp Pendleton and Fallbrook 

Naval Weapons Station) committed to 

working closely with us and California 

Department of Fish and Game (as well 

as California Department of Parks and 

Recreation (California State Parks) with 

regards to lands leased by MCB Camp 

Pendleton) to continually refine the 

existing INRMPs as part of the Sikes 

Act’s INRMP review process. Based on 

our review of the INRMPs for these 

military installations, and in accordance 

with section 4(a)(3)(B)(i) of the Act, we 

have determined that the lands within 

these installations identified as meeting 

the definition of critical habitat are 

subject to the INRMPs, and that 

conservation efforts identified in these 

INRMPs will provide a benefit to the 

arroyo toad (see the following sections 

that detail this determination for each 

installation). Therefore, lands within 

these installations are exempt from 

critical habitat designation under 

section 4(a)(3)(B) of the Act. We are not 

including approximately 19,686 ac 

(7,967 ha) of habitat on Fort Hunter 

Liggett, MCB Camp Pendleton, and 

Fallbrook Naval Weapons Station in this 

proposed revised critical habitat 

designation because of this exemption. 

Fort Hunter Liggett Military Reservation 

Fort Hunter Liggett was established in 

1940 as Hunter Liggett Military 

Reservation, when the Army purchased 

lands belonging to William Randolph 

Hearst and other private landowners. 

The installation was used intensively to 

prepare troops for World War II, the 

Korean and Vietnam conflicts, and the 

Cold War, as a training ground for the 

7th Infantry Division formerly stationed 

at Fort Ord, and as a Test and 

Experimentation Command Center. Fort 

Hunter Liggett occupies approximately 

163,000 ac (66,000 ha) of varied habitats 

within the Santa Lucia Mountains in 

southern Monterey County. Currently, 

the installation is used for training by 

the 40th Mechanized Infantry Division 

of the California Army National Guard; 

reserve units from several branches of 

the Armed Forces; active components of 

the Army Rangers, Special Forces, Navy 

Seabees, and Marines; and other 

government agencies. 

The Fort Hunter Liggett INRMP is a 

planning document that guides the 

management and conservation of 

natural resources under the 

installation’s control. The INRMP was 

prepared to ensure that natural 

resources are managed in support of the 

Fort Hunter Liggett military training 

mission and that all activities are 

consistent with Federal stewardship 

requirements. The Fort Hunter Liggett 

INRMP was completed in 2005, 

followed by a revised and updated 

version in 2007, to address conservation 

and management of its natural 

resources, including conservation 

measures for the arroyo toad (U.S. Army 

Reserve Command 2007, pp. 171–174). 


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The INRMP is Fort Hunter Liggett’s 

adaptive plan for managing natural 

resources to support and be consistent 

with the military mission while 

protecting and enhancing the biological 

integrity of lands under its use (U.S. 

Army 2004, p. iv). Fort Hunter Liggett 

is committed to an ecosystem 

management approach for its natural 

resources program by integrating all 

components of natural resource 

management into a comprehensive and 

coordinated effort. An integrated 

approach to ecosystem management will 

help protect the biological diversity 

found at Fort Hunter Liggett. 

The INRMP identifies the following 

management and protection measures 

for the arroyo toad: (1) Implement 

monitoring that will meet the Service’s 

criteria to demonstrate population status 

of arroyo toads on Fort Hunter Liggett; 

(2) reduce public and military vehicle 

encroachment into sandy riverine 

habitat, particularly during the breeding 

season for the arroyo toad; (3) minimize 

adverse effects to arroyo toads from 

roads and borrow sites (sites where soil 

and other material is removed for 

construction purposes); (4) gain an 

understanding of the timing of arroyo 

toad upland use, extent of upland use 

and distance traveled from breeding 

sites, characteristics of preferred upland 

habitat to include micro- and macrohabitats and substrate of burrowing 

sites, and use of rodent burrows; (5) 

identify threat posed by noxious weeds 

and reduce noxious weed presence to 

improve native habitat and site 

diversity; (6) obtain geomorphology 

information that will provide a 

foundation for development of 

management strategies for arroyo toad 

habitat and a better idea of habitat 

sustainability for arroyo toads; (7) 

identify threat posed by nonnative 

beavers in the San Antonio River in 

arroyo toad breeding habitat and 

outlying areas and implement control if 

threats warrant; (8) reduce bullfrog 

abundance in areas most likely to 

benefit arroyo toads; (9) prevent 

introduction and spread of disease at 

Fort Hunter Liggett; (10) maintain a 

viable population of arroyo toads and 

suitable habitat on Fort Hunter Liggett; 

(11) evaluate current management goals 

and actions and adapt to meet species 

management requirements; (12) 

integrate species management and 

conservation with Fort Hunter Liggett 

training and maintenance activities; (13) 

provide for adaptive management in 

accordance with the Fort Hunter Liggett 

INRMP; and (14) monitor mortality in 

order to augment the Service’s ability to 

determine effects of Fort Hunter Liggett 

activities on arroyo toad and identify 

mortality factors at Fort Hunter Liggett. 

Based on the above considerations, 

and in accordance with section 

4(a)(3)(B)(i) of the Act, we have 

determined that conservation efforts 

identified in the 2005 INRMP and 2007 

updated INRMP for Fort Hunter Liggett 

provide a benefit to the arroyo toad and 

features essential to its conservation, 

and will benefit arroyo toads occurring 

in habitats on the installation. This 

includes habitat located in the Salinas 

River Basin (Service 1999, p. 14). 

Therefore, lands subject to the INRMP 

for the Fort Hunter Liggett Military 

Reservation are exempt from critical 

habitat designation under section 

4(a)(3)(B) of the Act, and we are not 

including approximately 6,453 ac (2,612 

ha) of habitat in this proposed revised 

critical habitat designation because of 

this exemption. 

Marine Corps Base (MCB) Camp 

Pendleton 

MCB Camp Pendleton is the Marine 

Corps’ premier amphibious training 

installation and its only west coast 

amphibious assault training center. The 

installation has been conducting air, 

sea, and ground assault training since 

World War II. MCB Camp Pendleton 

occupies over 125,000 ac (50,586 ha) of 

coastal southern California in the 

northwest corner of San Diego County. 

Aside from nearly 10,000 ac (4,047 ha) 

that is developed, most of the 

installation is largely undeveloped land 

that is used for training. MCB Camp 

Pendleton is situated between two major 

metropolitan areas: Los Angeles, 82 

miles (132 kilometers) to the north, and 

San Diego, 38 miles (61 kilometers) to 

the south. Nearby communities include 

Oceanside to the south, Fallbrook to the 

east, and San Clemente to the 

northwest. Aside from a portion of the 

installation’s border that is shared with 

the San Mateo Wilderness Area and the 

Fallbrook Naval Weapons Station, 

surrounding land use is urban 

development, rural residential 

development, and agricultural farming 

and ranching. The largest single 

leaseholder on the installation is 

California State Parks, which includes a 

50-year real estate lease granted on 

September 1, 1971, for 2,000 ac (809 ha) 

that encompasses San Onofre State 

Beach. 

The MCB Camp Pendleton INRMP is 

a planning document that guides the 

management and conservation of 

natural resources under the 

installation’s control. The INRMP was 

prepared to assist installation staff and 

users in their efforts to conserve and 

rehabilitate natural resources consistent 

with the use of MCB Camp Pendleton to 

train Marines and set the agenda for 

managing natural resources on MCB 

Camp Pendleton. MCB Camp Pendleton 

completed its INRMP in 2001, followed 

by a revised and updated version in 

2007 to address conservation and 

management recommendations within 

the scope of the installation’s military 

mission, including conservation 

measures for the arroyo toad (MCB 

Camp Pendleton 2007, Appendix F, 

Section F.1, pp. F1–F5). Additionally, 

according to the 2007 INRMP, California 

State Parks is required to conduct its 

natural resources management 

consistent with the philosophies and 

supportive of the objectives of the 

revised 2007 INRMP (MCB Camp 

Pendleton 2007, Chapter 2, p. 31). 

The arroyo toad receives 

programmatic protection from training 

and other installation activities within 

the riparian component of its habitat, as 

outlined and required in the Riparian 

Ecosystem Conservation Plan (MCB 

Camp Pendleton 2007, Appendix C). 

Management and protection measures 

for the arroyo toad identified in 

Appendix C of the INRMP include, but 

are not limited to, the following: (1) 

Eliminating nonnative, invasive species 

(such as Arundo donax) on the 

installation and off the installation in 

partnership with upstream landowners 

to enhance ecosystem value; (2) 

providing viable riparian corridors and 

promoting connectivity of native 

riparian habitats; (3) maintaining 

natural floodplain processes and extent 

of these areas by avoiding and 

minimizing further permanent loss of 

floodplain habitats; (4) maintaining to 

the extent practicable stream and river 

flows needed to support riparian 

habitat; (5) monitoring and maintaining 

groundwater levels and basin 

withdrawals to avoid loss and 

degradation of habitat quality; (6) 

restoring areas to their original 

condition after disturbance, such as 

following project construction or fire 

damage; and (7) promoting increased 

arroyo toad populations in watersheds 

through perpetuation of natural 

ecosystem processes and programmatic 

instruction application for avoidance 

and minimization of impacts (MCB 

Camp Pendleton 2007, Appendix C, pp. 

C5–C8). 

Current environmental regulations 

and restrictions apply to all threatened 

and endangered species on the 

installation (including the arroyo toad) 

and are provided to all users of ranges 

and training areas to guide activities and 

protect the species and its habitat. First, 

specific conservation measures are 

applied to arroyo toad and its habitat 


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that include: (1) Controlling nonnative 

animal species (such as bullfrogs) and 

nonnative plant species (such as 

Arundo donax and Rorippa spp. 

(watercress)); and (2) restricting 

military-related traffic use within 

riparian areas to existing roads, trails, 

and crossings. Second, MCB Camp 

Pendleton’s environmental security staff 

review projects and enforce existing 

regulations and orders that, through 

their implementation, avoid and 

minimize impacts to natural resources, 

including the arroyo toad and its 

habitat. Third, MCB Camp Pendleton 

provides training to personnel on 

environmental awareness for sensitive 

resources on the base, including the 

arroyo toad and its habitat. As a result 

of these regulations and restrictions, 

activities occurring on MCB Camp 

Pendleton are currently conducted in a 

manner that minimizes impacts to 

arroyo toad habitat. 

MCB Camp Pendleton’s INRMP also 

benefits the arroyo toad through ongoing 

monitoring and research efforts. The 

installation conducts annual monitoring 

to track arroyo toad populations and has 

conducted a study to examine arroyo 

toad use of habitat dominated by 

Arundo donax (although analysis of this 

study is not yet complete). Data are 

provided to all necessary personnel 

through MCB Camp Pendleton’s GIS 

database on sensitive resources and in 

their published resource atlas. 

Additionally, MCB Camp Pendleton 

collaborated with the U.S. Geological 

Survey’s Biological Resources Division 

to develop and implement a rigorous, 

science-based monitoring protocol for 

arroyo toad populations throughout the 

installation, including surveying for 

presence of eggs and larvae (Atkinson et 

al. 2003, pp. 4–5). 

We are consulting with the Marine 

Corps under section 7 of the Act to 

programmatically address potential 

upland impacts to the arroyo toad (and 

several other species) as a result of 

military training and other activities on 

MCB Camp Pendleton. Upon 

completion of this consultation, we 

expect additional measures that benefit 

the arroyo toad will be incorporated into 

the INRMP for MCB Camp Pendleton. 

This consultation is currently in 

progress, and we did not rely on any 

proposed measures in our consideration 

of the INRMP under section 4(a)(3)(B) of 

the Act. However, upland habitat 

conservation measures being considered 

include, but are not limited to: (1) 

Implementing programmatic measures 

to avoid and minimize impacts to 

upland habitats adjacent to riparian 

habitats occupied by arroyo toads, and 

(2) compensating for impacts to upland 

habitats used by arroyo toads by 

implementing ongoing installation-wide 

upland habitat enhancement programs 

(such as nonnative vegetation control, 

erosion control, and upland habitat 

restoration). 

Based on the above considerations, 

and in accordance with section 

4(a)(3)(B)(i) of the Act, we have 

determined that conservation efforts 

identified in the 2007 INRMP for MCB 

Camp Pendleton provide a benefit to the 

arroyo toad and its habitat. This 

includes habitat located in the following 

areas: San Mateo Creek, San Onofre 

Creek, and Santa Margarita River Basins 

(names of areas used follow those used 

in the recovery plan (Service 1999, pp. 

25–27). Therefore, lands subject to the 

INRMP for MCB Camp Pendleton, 

which includes the lands leased from 

the Department of Defense by other 

parties, are exempt from critical habitat 

designation under section 4(a)(3)(B) of 

the Act, and we are not including 

approximately 13,010 ac (5,265 ha) of 

habitat in this proposed revised critical 

habitat designation because of this 

exemption. 

Fallbrook Naval Weapons Station 

The Naval Weapons Station Seal 

Beach, Detachment Fallbrook (Fallbrook 

Naval Weapons Station), is the primary 

west coast supply point of ordinance for 

the U.S. Marine Corps and the large 

deck amphibious assault ships of the 

Pacific Fleet. The Fallbrook Naval 

Weapons Station also has the only west 

coast maintenance facility for airlaunched missiles for the Pacific Fleet. 

The installation encompasses 

approximately 8,852 acres (3,582 ha) 

and is located within the southern 

foothills of the Santa Ana Mountains of 

northern San Diego County, adjacent to 

the city of Fallbrook, California. It is 

bounded to the north, west, and much 

of the south by MCB Camp Pendleton, 

with the Santa Margarita River forming 

the common border on the north 

between the two properties. Other than 

training lands on MCB Camp Pendleton, 

surrounding land use includes semirural agricultural lands that include 

plant nurseries, avocado and citrus 

groves, vineyards, and limited urban 

development. 

The Fallbrook Naval Weapons Station 

INRMP is a planning document that 

guides the management and 

conservation of natural resources under 

the installation’s control. The INRMP 

was prepared to assist installation staff 

and users in their efforts to support 

mission operations and accommodate 

increased military mission requirements 

for national security and emergency 

homeland security, while meeting all 

environmental compliance 

responsibilities. The INRMP also 

provides ecosystem-based management 

to preserve, protect, and enhance 

natural resources on the installation, 

and provides the organizational support 

and communication links necessary for 

effective planning, implementation, and 

administration of the installation’s 

natural resources. The Fallbrook Naval 

Weapons Station completed its INRMP 

in 2006 (which was updated from an 

INRMP developed by the Naval 

Ordnance Center Pacific Division in 

1996) to address conservation and 

management of its natural resources, 

including conservation measures for the 

arroyo toad (Fallbrook Naval Weapons 

Station 2006, Chapter 3, pp. 108–110). 

The arroyo toad primarily receives 

protection from installation activities 

because no training occurs on the 

installation, and maintenance and 

potential development activities 

typically do not occur in arroyo toad 

habitat due to the steep sloping 

topography along the Santa Margarita 

River that immediately surrounds the 

suitable habitat. However, some impacts 

could occur associated with activities 

(such as fuel break grading, fire 

management, and possible 

infrastructure) that may impact the 

arroyo toad and thus require 

implementation of specified protection 

measures. The INRMP identifies the 

following management and protection 

measures for the arroyo toad: (1) 

Avoidance and minimization measures 

applied to infrastructure development 

and maintenance to protect the arroyo 

toad that are part of the National 

Environmental Policy Act approval 

process; (2) placement of riparian filter 

strip and buffer along firebreaks that 

lead into riparian zones where arroyo 

toads may be active; (3) avoidance of 

firebreak maintenance and fire 

suppression activities (where possible); 

(4) avoidance of discing for firebreaks 

leading to the Santa Margarita River 

during arroyo toad dispersal periods; (5) 

implementation of erosion and sediment 

control; (6) timing and location 

protections associated with prescribed 

burns; (7) implementation of nonnative 

vegetation control measures, including 

removal of Arundo donax; (8) 

implementation of standardized survey 

methods; (9) evaluation and control of 

nonnative bullfrogs; and (10) 

implementation of long-term monitoring 

activities, including upland sites 

(Fallbrook Naval Weapons Station 2006, 

Chapter 3, pp. 108–110). 

The ongoing monitoring efforts 

outlined in the INRMP (as listed above) 

include surveys of sites at two or more 

locations along the Santa Margarita 


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River, which includes upland surveys 

conducted every 5 years, offset from 

breeding surveys by 2 years. Surveys are 

also conducted after major alteration of 

the flow regime (natural or 

anthropogenic). Finally, the installation 

conducts annual monitoring to track 

arroyo toad populations as part of the 

fire plan activities, with survey data 

available since 2001 (Fallbrook Naval 

Weapons Station 2006, Chapter 3, p. 

109). 

Environmental regulations and 

restrictions apply to all threatened and 

endangered species on the installation 

(including the arroyo toad) and are 

provided to all users of the installation 

to guide activities and protect the 

species and its habitat (Fallbrook Naval 

Weapons Station 2006, Chapter 5, p. 

25). Biennial meetings are held with the 

Service to evaluate all management 

items associated with threatened and 

endangered species, including the 

arroyo toad. 

Based on the above considerations, 

and in accordance with section 

4(a)(3)(B)(i) of the Act, we have 

determined that conservation efforts 

identified in the 2006 INRMP for the 

Fallbrook Naval Weapons Station 

provide a benefit to the arroyo toad, and 

will benefit arroyo toads occurring on 

the installation, which includes habitat 

located in the Santa Margarita River 

Basin (as identified in the recovery plan 

(Service 1999, pp. 26–27). Therefore, 

lands subject to the INRMP for the 

Fallbrook Naval Weapons Station are 

exempt from critical habitat designation 

under section 4(a)(3)(B) of the Act, and 

we are not including approximately 223 

ac (90 ha) of habitat in this proposed 

revised critical habitat designation 

because of this exemption. 

Exclusions 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary must designate and revise 

critical habitat 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. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

Under section 4(b)(2) of the Act, we 

consider all relevant impacts, including 

economic impacts. In compliance with 

section 4(b)(2) of the Act, we are 

preparing a new analysis of the 

economic impacts of this proposed 

revision to critical habitat for the arroyo 

toad, to evaluate the potential economic 

impact of the proposed revised 

designation. We will announce the 

availability of the draft economic 

analysis as soon as it is completed, at 

which time we will seek public review 

and comment. At that time, copies of 

the draft economic analysis will be 

available for downloading from the 

Internet at http://www.regulations.gov, 

or by contacting the Ventura Fish and 

Wildlife Office or Carlsbad Fish and 

Wildlife Office directly (see FOR

FURTHER INFORMATION CONTACT). During 

the development of the final revised 

designation, we will consider economic 

impacts, public comments, and other 

new information, and areas, including 

those identified for potential exclusion 

in this proposed rule, may be excluded 

from the final critical habitat 

designation under section 4(b)(2) of the 

Act and our implementing regulations at 

50 CFR 424.19. 

In addition to economic impacts, we 

consider a number of factors in a section 

4(b)(2) analysis. For example, we 

consider whether there are lands owned 

by the Department of Defense where a 

national security impact might exist. We 

also consider whether landowners have 

developed any habitat conservation 

plans (HCPs) or other management 

plans for the area, or whether there are 

conservation partnerships that would be 

encouraged or discouraged by 

designation of, or exclusion from, 

critical habitat in an area. In addition, 

we look at the presence of Tribal lands 

or Tribal Trust resources that might be 

affected, and consider the governmentto-government relationship of the 

United States with the Tribal entities. 

We also consider any social impacts that 

might occur because of the designation. 

As discussed in further detail in the 

‘‘Habitat Conservation Plan Lands— 

Exclusions under Section 4(b)(2) of the 

Act’’ and ‘‘Tribal Lands—Exclusions 

Under Section 4(b)(2) of the Act’’ 

sections below, we have preliminarily 

identified certain areas that we are 

considering excluding from the final 

revised critical habitat designation for 

the arroyo toad under section 4(b)(2) of 

the Act. However, we specifically solicit 

comments on the inclusion or exclusion 

of such areas (see Public Comments 

section). 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995, p. 

2), and at least 80 percent of endangered 

or threatened species occur either 

partially or solely on private lands 

(Crouse et al. 2002, p. 720). Stein et al. 

(1995, p. 400) found that only about 12 

percent of listed species were found 

almost exclusively on Federal lands (90 

to 100 percent of their known 

occurrences restricted to Federal lands) 

and that 50 percent of federally listed 

species are not known to occur on 

Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998; p. 

1407; Crouse et al. 2002; p. 720; James 

2002, p. 271). Building partnerships and 

promoting voluntary cooperation of 

landowners are essential to our 

understanding the status of species on 

non-Federal lands, and necessary for us 

to implement recovery actions such as 

reintroducing listed species and 

restoring and protecting habitat. 

Many private landowners, however, 

are wary of the possible consequences of 

attracting endangered species to their 

property. Mounting evidence suggests 

that some regulatory actions by the 

Federal Government, while wellintentioned and required by law, can 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; pp. 5–6; 

Bean 2002, pp. 2–3; Conner and 

Mathews 2002, pp. 1–2; James 2002, pp. 

270–271; Koch 2002, pp. 2–3; Brook et 

al. 2003, pp. 1639–1643). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability. This 

perception results in anti-conservation 

incentives, because maintaining habitats 

that harbor endangered species 

represents a risk to future economic 

opportunities (Main et al. 1999, pp. 

1264–1265; Brook et al. 2003, pp. 1644– 

1648). 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 


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of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7(a)(2) of the 

Act, can sometimes be 

counterproductive to its intended 

purpose on non-Federal lands. Thus, the 

benefits of excluding areas that are 

covered by effective partnerships or 

other conservation commitments can 

often be high. 

Habitat Conservation Plans—Exclusions 

Under Section 4(b)(2) of the Act 

Section 10(a)(1)(B) of the Act 

authorizes us to issue permits to nonFederal entities for the take of listed 

species incidental to otherwise lawful 

activities. An incidental take permit 

application must be supported by a 

habitat conservation plan (HCP) that 

identifies conservation measures that 

the permittee agrees to implement for 

the species to minimize and mitigate the 

impacts of the requested incidental take. 

We may exclude from critical habitat 

designation non-Federal public lands 

and private lands that are covered by an 

existing operative HCP and any 

applicable implementation agreement 

under section 10(a)(1)(B) of the Act, if 

we make a determination that the 

benefits of exclusion outweigh the 

benefits of inclusion as discussed in 

section 4(b)(2) of the Act. We are 

considering whether to exclude lands 

covered by the Western Riverside 

County Multiple Species HCP (Western 

Riverside County MSHCP), San Diego 

Multiple Species Conservation Program 

(MSCP), Coachella Valley MultipleSpecies HCP (Coachella Valley MSHCP), 

the Southern Orange County Natural 

Community Conservation Plan (NCCP)/ 

Master Streambed Alteration 

Agreement/HCP (Southern Orange 

HCP), and the Orange County Central– 

Coastal Subregional NCCP/HCP (Orange 

County Central–Coastal NCCP/HCP) (see 

the ‘‘Habitat Conservation Plan Lands— 

Exclusions Under Section 4(b)(2) of the 

Act’’ section below). 

If the Secretary decides to exercise his 

discretion under section 4(b)(2) of the 

Act, the following areas of habitat are 

being considered for possible exclusion 

from final revised critical habitat for the 

arroyo toad: 6,386 ac (2,583 ha) in the 

Western Riverside County MSHCP 

(Units 9 and 13); 8,942 ac (3,620 ha) in 

the San Diego MSCP–City and County of 

San Diego’s Subarea Plans (Subunits 

16a, 17b, 17d, 18a, 18c, and 19b); 538 

ac (218 ha) in the Coachella Valley 

MSHCP (Unit 23); 1,497 ac (606 ha) in 

the Orange County Central–Coastal 

NCCP/HCP; and 4,407 ac (1,784 ha) in 

the Southern Orange HCP (Subunit 10a 

and Subunit 11a). 

Table 3 below provides approximate 

areas (in acres and hectares) of lands 

that meet the definition of critical 

habitat but are exempt from designation 

under section 4(a)(3) of the Act (see 

‘‘Application of Section 4(a)(3) of the 

Act’’ section above) or the Service is 

considering for possible exclusion 

under section 4(b)(2) of the Act from the 

final revised critical habitat rule. 

TABLE 3—EXEMPTIONS AND POTENTIAL EXCLUSIONS FROM PROPOSED REVISED CRITICAL HABITAT FOR THE ARROYO

TOAD

Acres Hectares 

Exemptions Under Section 4(a)(3) of the Act 

Military Lands: 

Fort Hunter Liggett Military Reservation .......................................................................................................... 6,453 2,612 

Marine Corps Base, Camp Pendleton ............................................................................................................. 13,010 5,265 

Fallbrook Naval Weapons Station .................................................................................................................... 223 90 

Total ........................................................................................................................................................... 19,686 7,967 

Potential Exclusions Considered Under Section 4(b)(2) of the Act 

Habitat Conservation Plans: 

Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) ........................................ 6,386 2,583 

City of San Diego and County of San Diego Subarea Plans under the San Diego Multiple Species Conservation Program (MSCP) ........................................................................................................................... 8,942 3,620 

Coachella Valley Multiple Species Habitat Conservation Plan (Coachella Valley MSHCP) ........................... 538 218 

Southern Orange Natural Community Conservation Plan/Master Streambed Alteration Agreement/Habitat 

Conservation Plan (Southern Orange HCP) ................................................................................................ 4,407 1,784 

Orange County-Coastal Subregional Habitat Conservation Plan/Natural Community Conservation Plan 

(Orange County Central–Coastal NCCP/HCP ) ........................................................................................... 1,497 606 

Total ........................................................................................................................................................... 21,770 8,811 

Tribal Lands: 

Rincon Band of Luisen ̃o Mission Indians Tribal Lands .................................................................................... 1,155 467 

Pala Band of Luisen ̃o Mission Indians ............................................................................................................. 2,385 963 

Sycuan Band of the Kumeyaay Nation Tribal Lands ....................................................................................... 391 158 

Capitan Grande Band of Diegueno Mission Indians ........................................................................................ 92 37 

Mesa Grande Band of Diegueno Mission Indians ........................................................................................... 23 9 

Total ........................................................................................................................................................... 4,046 1,634 

Values in table may not sum due to rounding. 


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Western Riverside County Multiple 

Species Habitat Conservation Plan 

(Western Riverside County MSHCP) 

The Western Riverside County 

MSHCP is a large-scale, multijurisdictional HCP encompassing about 

1.26 million ac (510,000 ha) in western 

Riverside County (including lands 

within Units 9 and 13). The Western 

Riverside County MSHCP addresses 146 

listed and unlisted ‘‘covered species,’’ 

including the arroyo toad. Participants 

in the Western Riverside County 

MSHCP include 14 cities; the County of 

Riverside, including the Riverside 

County Flood Control and Water 

Conservation Agency (County Flood 

Control), Riverside County 

Transportation Commission, Riverside 

County Parks and Open Space District, 

and Riverside County Waste 

Department; California State Parks; and 

the California Department of 

Transportation. The Western Riverside 

County MSHCP was designed to 

establish a multi-species conservation 

program that minimizes and mitigates 

the expected loss of habitat and the 

incidental take of covered species. On 

June 22, 2004, the Service issued a 

single incidental take permit (Service 

2004, p. 140) under section 10(a)(1)(B) 

of the Act to 22 permittees under the 

Western Riverside County MSHCP for a 

period of 75 years. For the reasons 

discussed under the ‘‘Application of 

Section 4(b)(2) of the Act’’ section of 

this rule, if the Secretary decides to 

exercise his discretion under section 

4(b)(2) of the Act, we are considering 

the possible exclusion of non-Federal 

lands that meet the definition of critical 

habitat within the Western Riverside 

County MSHCP from the final 

designation. Specifically, we are 

considering the exclusion of 6,386 ac 

(2,583 ha) in Units 9 and 13. 

The Western Riverside County 

MSHCP will establish approximately 

153,000 ac (61,917 ha) of new 

conservation lands (Additional Reserve 

Lands) to complement the 

approximately 347,000 ac (140,426 ha) 

of pre-existing natural and open space 

areas (Public/Quasi-Public lands). These 

Public/Quasi-Public lands include those 

under Federal ownership, primarily 

Forest Service and Bureau of Land 

Management lands, and also permitteeowned or controlled open-space areas 

(such as wildlife habitat within State 

and County parks). Collectively, the 

Additional Reserve Lands and Public/ 

Quasi-Public lands form the overall 

Western Riverside County MSHCP 

Conservation Area. The configuration of 

the 153,000 ac (61,916 ha) of Additional 

Reserve Lands is not mapped or 

precisely identified (‘‘hard-lined’’) in 

the Western Riverside County MSHCP, 

but rather is based on textual 

descriptions of the type of habitat 

conservation necessary to meet the 

conservation goals for all covered 

species within the bounds of the 

approximately 310,000-ac (125,453-ha) 

Criteria Area as implementation of the 

Western Riverside County MSHCP takes 

place. We internally mapped a 

‘‘Conceptual Reserve Design’’ that 

illustrates existing Public/Quasi-Public 

lands and predicts the geographic 

distribution of the Additional Reserve 

Lands based on our interpretation of the 

textual descriptions of habitat 

conservation necessary to meet 

conservation goals. 

Specific conservation objectives in the 

Western Riverside County MSHCP for 

the arroyo toad include conserving 

9,695 ac (3,914 ha) of occupied habitat 

or suitable habitat for the species in the 

Western Riverside County MSHCP 

Conservation Area (Service 2004, p. 

163). This acreage goal can be attained 

through acquisition or other dedications 

of land assembled from within the 

Criteria Area (the Additional Reserve 

Lands) and through coordinated 

management of existing Public/QuasiPublic lands. (See paragraph below for 

discussion of amount of habitat 

expected to be conserved on Additional 

Reserve Lands.) Preservation and 

management of arroyo toad habitat 

under the Western Riverside County 

MSHCP will contribute to the 

conservation and ultimate recovery of 

this species. The arroyo toad is 

threatened primarily by: Alterations of 

stream hydrology and geomorphology; 

development; agriculture, including 

livestock grazing; recreational activities; 

and nonnative species (Service 2004, 

pp. 156–158). The Western Riverside 

County MSHCP removes or reduces 

threats to this species and its PCEs by 

placing large blocks of occupied and 

unoccupied habitat into preservation 

throughout the Conservation Area. 

Areas identified for preservation and 

conservation include nine of the known 

occurrences along portions of San Juan 

Creek, Los Alamos Creek, San Jacinto 

River, Indian Creek, Bautista Creek, 

Wilson Creek, Temecula Creek, Arroyo 

Seco, and Vail Lake. The Western 

Riverside County MSHCP will maintain 

ecological processes within the MSHCP 

Conservation Area given existing 

constraints and activities covered under 

the MSHCP along portions of San Juan 

Creek, San Jacinto River, Indian Creek, 

Bautista Creek, Wilson Creek, Temecula 

Creek, Arroyo Seco, and Vail Lake. 

Additionally, the Western Riverside 

County MSHCP requires surveys for the 

arroyo toad as part of the project review 

process for public and private projects 

where suitable habitat is present within 

defined survey areas (see Amphibian 

Species Survey Area Map, Figure 6–3 of 

the Western Riverside County MSHCP, 

Volume I in Dudek and Associates, Inc. 

2003). For locations with positive 

survey results, 90 percent of those 

portions of the property that provide 

long-term conservation value for the 

species will be avoided until it is 

demonstrated that the conservation 

objectives for the species are met (see 

Additional Survey Needs and 

Procedures, Western Riverside County 

MSHCP, Volume 1, section 6.3.2 in 

Dudek and Associates, Inc. 2003). Once 

the species-specific objectives are met, 

avoided areas would be evaluated to 

determine whether they should be 

released for development or included in 

the MSHCP Conservation Area. 

The survey requirements, avoidance 

and minimization measures, and 

management for the arroyo toad—(and 

its PCEs) provided for in the Western 

Riverside County MSHCP are expected 

to benefit this species on public and 

private lands covered by the plan. We 

are considering the exclusion of 

approximately 6,386 ac (2,583 ha) of 

private lands in Units 9 and 13 within 

the Western Riverside County MSHCP 

Plan Area from the final revised critical 

habitat designation under section 4(b)(2) 

of the Act. Projects in the areas 

proposed as critical habitat that occur 

on these lands are subject to approval by 

Western Riverside County MSHCP 

permittees, therefore the conservation 

requirements of the MSHCP would 

apply. At this time, approximately 43 ac 

(38 ha) within Units 9 and 13 have been 

acquired for conservation under the 

Western Riverside County MSHCP. Our 

Conceptual Reserve Design indicates 

that another 68 percent (4,359 ac (1,764 

ha)) of the lands in Units 9 and 13 that 

we are considering for exclusion will 

likely be acquired for conservation as 

Additional Reserve Lands. Of the 

remaining 31 percent of lands in Units 

9 and 13 that we are considering for 

exclusion, 1,814 ac (728 ha), or 91 

percent, of these lands are within the 

Western Riverside County MSHCP 

survey area for the arroyo toad and are 

subject to the Additional Survey Needs 

and Procedures Policy described above. 

The Western Riverside County 

MSHCP incorporates processes that 

allow for Service oversight and 

participation in program 

implementation. These processes 

include: (1) Consultation with the 

Service on a long-term management and 

monitoring plan; (2) submission of 


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annual monitoring reports; (3) annual 

status meetings with the Service; and (4) 

submission of annual implementation 

reports to the Service (Service 2004, pp. 

18–23). 

In summary, we are considering 

exclusion of 6,386 ac (2,583 ha) of 

arroyo toad habitat on private lands in 

Units 9 and 13 that meet the definition 

of critical habitat for arroyo toad within 

the Western Riverside County MSHCP 

under section 4(b)(2) of the Act. The 

1994 final listing rule for arroyo toad 

identified the following primary threats 

to the arroyo toad: habitat degradation, 

predation, and small population size (59 

FR 64866). The implementation of the 

Western Riverside County MSHCP helps 

to address these threats through a 

regional planning effort, and outlines 

species-specific objectives and criteria 

for the conservation of the arroyo toad. 

We will analyze the benefits of 

inclusion and exclusion of this area 

from proposed revised critical habitat 

under section 4(b)(2) of the Act. We 

encourage any public comment in 

relation to our consideration of the areas 

in Units 9 and 13 for inclusion or 

exclusion (see Public Comments section 

above). 

San Diego Multiple Species 

Conservation Plan (MSCP–City and 

County of San Diego’s Subarea Plans 

The MSCP is a framework HCP that 

has been in place for more than a 

decade. The plan area encompasses 

approximately 582,243 ac (235,626 ha) 

(County of San Diego 1997, p. 1–1; City 

of San Diego 1998, pp. 2–1, and 4–2 to 

4–4) and provides for conservation of 85 

federally listed and sensitive species 

(‘‘covered species’’) through the 

establishment and management of 

approximately 171,920 ac (69,574 ha) of 

preserve lands within the Multi-Habitat 

Planning Area (City of San Diego) and 

Pre-Approved Mitigation Areas (County 

of San Diego). The MSCP was developed 

in support of applications for incidental 

take permits for several federally listed 

species by 12 participating jurisdictions 

and many other stakeholders in 

southwestern San Diego County. Under 

the umbrella of the MSCP, each of the 

12 participating jurisdictions is required 

to prepare a subarea plan that 

implements the goals of the MSCP 

within that particular jurisdiction. 

Separate Subarea Plans for the County 

of San Diego and the City of San Diego 

have been completed and include 

evaluations of the arroyo toad. For the 

reasons discussed under the 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this rule, if the Secretary 

decides to exercise his discretion under 

section 4(b)(2) of the Act, we are 

considering the possible exclusion of 

lands that meet the definition of critical 

habitat within the City of San Diego 

Subarea Plan and County of San Diego 

Subarea Plan. Specifically, we are 

considering the exclusion of 8,942 ac 

(3,620 ha) in Subunits 16a, 17b, 17d, 

18a, 18c, and 19b. 

Upon completion of preserve 

assembly, approximately 171,920 ac 

(69,574 ha) of the 582,243-ac (235,626- 

ha) MSCP plan area will be preserved 

(City of San Diego 1998, pp. 2–1, and 4– 

2 to 4–4). The City of San Diego’s 

preserve is delineated by mapped 

preserve boundaries referred to as 

‘‘hardline’’ boundaries (the MultiHabitat Planning Area). The County of 

San Diego has both ‘‘hardline’’ 

boundaries as well as preserve areas that 

do not have ‘‘hardline’’ boundaries. In 

areas where the ‘‘hardlines’’ are not 

defined, the County’s subarea plan 

identifies areas where mitigation 

activities should be focused to assemble 

its preserve areas (the Pre-Approved 

Mitigation Areas). Those areas of the 

MSCP preserve that are already 

conserved, as well as those areas that 

are designated for inclusion in the 

preserve under the plan, are referred to 

as the ‘‘preserve area’’ in this proposed 

revised critical habitat designation. 

When the preserve is completed, the 

public sector (Federal, State, and local 

government, and the general public) 

will have contributed 108,750 ac 

(44,010 ha) (63.3 percent) to the 

preserve, of which 81,750 ac (33,083 ha) 

(48 percent) was existing public land 

when the MSCP was established and 

27,000 ac (10,927 ha) (16 percent) will 

have been acquired. At completion, the 

private sector will have contributed 

63,170 ac (25,564 ha) (37 percent) to the 

preserve as part of the development 

process, either through avoidance of 

impacts or as compensatory mitigation 

for impacts to biological resources 

outside the preserve. Federal and State 

governments, local jurisdictions and 

special districts, and managers of 

privately owned lands currently and in 

the future will manage and monitor 

their lands in the preserve for species 

and habitat protection (City of San 

Diego 1998, pp. 2–1, and 4–2 to 4–4). 

Private lands within the Multi-Habitat 

Planning Area and Pre-Approved 

Mitigation Areas are subject to special 

restrictions on development, and lands 

that are dedicated to the preserve must 

be legally protected and permanently 

managed to conserve the covered 

species. Public lands owned by the City, 

County, State of California, and the 

Federal Government that are identified 

for conservation under the MSCP must 

also be protected and permanently 

managed to protect the covered species. 

Numerous processes are incorporated 

into the MSCP that allow our oversight 

of the MSCP implementation. For 

example, the MSCP imposes annual 

reporting requirements and provides for 

our review and approval of proposed 

subarea plan amendments and preserve 

boundary adjustments and for Service 

review and comment on projects during 

the California Environmental Quality 

Act review process. We also chair the 

MSCP Habitat Management Technical 

Committee and the Monitoring 

Subcommittee (City of San Diego 1998, 

pp. 5–11 to 5–23). Each MSCP subarea 

plan must account annually for the 

progress it is making in assembling 

conservation areas. We must receive 

annual reports that include, both by 

project and cumulatively, the habitat 

acreage destroyed and conserved within 

the subareas. This accounting process 

ensures that habitat conservation 

proceeds in rough proportion to habitat 

loss and in compliance with the MSCP 

subarea plans and the plans’ associated 

implementing agreements. 

The subarea plans under the MSCP 

contain requirements to monitor and 

adaptively manage arroyo toad habitat 

and provide for the conservation of this 

species’ PCEs. The framework and areaspecific management plans are 

comprehensive and address a broad 

range of management needs at the 

preserve and species levels that are 

intended to reduce the threats to 

covered species and thereby contribute 

to the recovery of the species. These 

plans include the following: (1) Fire 

management, which includes deferring 

to the California Department of Forestry 

and Fire Protection for management 

activities; (2) public access control; (3) 

fencing and gates; (4) ranger patrol; (5) 

trail maintenance; (6) visitor, 

interpretive, and volunteer services; (7) 

hydrological management; (8) signage 

and lighting; (9) trash and litter removal; 

(10) access road maintenance; (11) 

enforcement of property or homeowner 

requirements; (12) removal of invasive 

species; (13) nonnative predator control; 

(14) species monitoring; (15) habitat 

restoration; (16) management for diverse 

age classes of covered species; (17) use 

of herbicides and rodenticides; (18) 

biological surveys; (19) research; and 

(20) species management conditions 

(City of San Diego 1998, pp. 6–7). 

Specific conservation objectives for 

the arroyo toad in the subarea plans 

under the MSCP include preservation of 

all known (breeding) locations of this 

species and minimization of impacts to 

uplands areas within the MSCP 

planning area. Additionally, impacts to 


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the species will be minimized within 

the preserve through required 

implementation of area-specific 

management directives, which must 

address maintenance of arroyo toad 

populations through control of 

nonnative predators, protection and 

maintenance of sufficient suitable lowgradient sandy stream habitat (including 

appropriate water quality) to meet 

breeding requirements, and preservation 

of sheltering and foraging habitat within 

0.62 mi (1 km) of breeding habitat that 

supports or is likely to support the 

arroyo toad (City of San Diego 1997, p. 

142; Service 1997, pp. 80, 102). 

At this time, 10 years into the 

implementation of the City and County 

of San Diego’s subarea plans, 

approximately 1,622 ac (656 ha), or 19 

percent, of lands that we are considering 

for exclusion have been conserved. An 

additional 2,891 ac (1,170 ha), or 34 

percent, are targeted for conservation in 

accordance with the subarea plans 

inside the Pre-Approved Mitigation 

Areas and Multi-Habitat Planning Area. 

Similarly, although some areas placed 

in conservation are not yet fully 

managed, such management will occur 

over time as the subarea plans continue 

to be implemented. 

In summary, we are considering 

exclusion of 8,942 ac (3,620 ha) of 

arroyo toad habitat on non-Federal 

lands in Subunits 16a, 17b, 17d, 18a, 

18c, and 19b that meet the definition of 

critical habitat for arroyo toad within 

the City of San Diego’s Subarea Plan and 

the County of San Diego’s Subarea Plan 

under section 4(b)(2) of the Act, of 

which 19 percent (1,593 ac (644 ha)) 

have been conserved. The 1994 final 

listing rule for arroyo toad identified the 

following primary threats to the arroyo 

toad: habitat degradation, predation, 

and small population size (59 FR 

64866). The implementation of both 

subarea plans helps to address these 

threats through a regional planning 

effort rather than through a project-byproject approach, and outlines speciesspecific objectives and criteria for the 

conservation of the arroyo toad. We will 

analyze the benefits of inclusion and 

exclusion of the areas within the 

jurisdictions of each subarea plan from 

critical habitat under section 4(b)(2) of 

the Act. We encourage any public 

comment in relation to our 

consideration of the areas in Subunits 

16a, 17d, 18a, 18c, and 19b for inclusion 

or exclusion (see Public Comments 

section above). 

Coachella Valley Multiple Species 

Habitat Conservation Plan (Coachella 

Valley MSHCP) 

The Coachella Valley MSHCP is a 

large-scale, multi-jurisdictional habitat 

conservation plan encompassing about 

1.1 million ac (445,156 ha) in the 

Coachella Valley of Riverside County 

(including lands within Unit 23). An 

additional 69,000 ac (27,923) of Indian 

Reservation lands are not included in 

the Coachella Valley MSHCP, but are 

within the plan area boundary. The 

Coachella Valley MSHCP addresses 27 

listed and unlisted ‘‘covered species,’’ 

including arroyo toad. Participants in 

the Coachella Valley MSHCP include 

eight cities (Cathedral City, Coachella, 

Indian Wells, Indio, La Quinta, Palm 

Desert, Palm Springs, and Rancho 

Mirage); the County of Riverside, 

including the Riverside County Flood 

Control and Water Conservation 

District, Riverside County Parks and 

Open Space District, Riverside County 

Waste Management District; the 

Coachella Valley Association of 

Governments; Coachella Valley Water 

District; Imperial Irrigation District; 

California Department of 

Transportation; California State Parks; 

Coachella Valley Mountains 

Conservancy; and the Coachella Valley 

Conservation Commission (the created 

joint powers regional authority). The 

Coachella Valley MSHCP was designed 

to establish a multiple species habitat 

conservation program that minimizes 

and mitigates the expected loss of 

habitat and the incidental take of 

covered species. On October 1, 2008, the 

Service issued a single incidental take 

permit (TE–104604–0) under section 

10(a)(1)(B) of the Act to 19 permittees 

under the Coachella Valley MSHCP for 

a period of 75 years. For the reasons 

discussed under the ‘‘Application of 

Section 4(b)(2) of the Act’’ section of 

this rule, if the Secretary decides to 

exercise his discretion under section 

4(b)(2) of the Act, we are considering 

the possible exclusion of lands that 

meet the definition of critical habitat 

within the Coachella Valley MSHCP. 

Specifically, we are considering the 

exclusion of 538 ac (218 ha) in Unit 23. 

The Coachella Valley MSHCP will 

establish an approximately 721,457-ac 

(291,964-ha) Reserve System comprised 

of 557,100 ac (225,451 ha) of Existing 

Conservation Lands, up to 29,990 ac 

(12,137 ha) of Complementary 

Conservation, and up to 8,777 ac (3,552 

ha) of Public and Quasi-Public lands. 

The permittees will mitigate for the 

impacts of the take on covered species 

by conserving 96,400 ac (39,012 ha) 

(7,500 ac (3,035 ha) of existing local 

permittee lands and 88,900 ac (35,977 

ha) of new conservation) of habitat and 

perpetually managing 125,590 ac 

(50,825 ha) within the Reserve System. 

The location and configuration of the 

88,900 ac (35,977 ha) of new local 

permittee mitigation lands and the 

21,390 ac (8,656 ha) that will be 

acquired through State and Federal 

contributions are not precisely mapped, 

but will be assembled from the 21 

conservation areas identified in the 

Coachella Valley MSHCP. Within each 

conservation area, 90 percent of each 

natural community within each 

jurisdiction will be conserved and no 

more than 10 percent of the habitat will 

be lost. In general, the design of the 

overall Reserve System was intended to 

capture core habitats, ecological 

processes, and biological corridors and 

linkages. The permittees’ collection and 

use of development mitigation fees, 

landfill tipping fees, and other funding 

specified in the Coachella Valley 

MSHCP and related documents will be 

used to acquire, protect, and manage the 

Reserve System in perpetuity. The 

permittees, the State, and Service will 

work cooperatively to enter into a 

Memorandum of Understanding or other 

appropriate agreements with Federal, 

State, and non-governmental 

organization land managers to 

cooperatively manage the Existing 

Conservation Lands in conformance 

with the MSHCP. In addition, the 

Coachella Valley MSHCP includes 

measures to avoid and minimize 

impacts on covered species resulting 

from covered activities. 

The Coachella Valley MSHCP plan 

area includes about 2,095 ac (846 ha) of 

suitable arroyo toad habitat (Dudek and 

CVAG 2007, pp. 9–88) of which 

approximately 1,301 ac (526 ha) contain 

the physical and biological features 

essential to the conservation of the 

species. Of suitable habitat, 2,082 ac 

(841 ha) are identified in the Coachella 

Valley MSHCP as ‘‘Core Habitat’’ for the 

species. Core Habitat is defined as areas 

of habitat that: (1) Are of sufficient size 

to support a self-sustaining population 

for the species; (2) are not fragmented in 

a way to cause separation into isolated 

populations; (3) have functional 

essential ecological processes; and (4) 

have effective biological corridors or 

linkages to other habitats, where 

feasible, to allow gene flow among 

populations (Dudek and CVAG 2007, p. 

xxxi). Specific conservation goals, 

conservation objectives, and required 

measures for the arroyo toad in the 

Coachella Valley MSHCP include 

protection of 2,007 ac (810 ha) of arroyo 

toad habitat comprised of 2,004 ac (809 


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ha) (96 percent) of Core Habitat along 

with 3 ac (1 ha) of Other Conserved 

Habitat (land that is permanently 

protected and managed for the benefit of 

the species) (Dudek and CVAG 2007, 

pp. xxxi, 9–88). Of the habitat identified 

for protection in the Reserve System, 

approximately 1,301 ac (525 ha) are on 

Bureau of Land Management lands 

(Existing Conservation Lands) and are 

anticipated to be managed pending a 

Memorandum of Understanding with 

the Bureau of Land Management 

(Service 2008, p. 176). The remaining 

706 ac (285 ha) will be acquired from 

willing sellers on private lands (Dudek 

and CVAG 2007, pp. 9–87). We are 

considering for exclusion approximately 

538 ac (218 ha) of non-Federal lands 

that meet the definition of critical 

habitat for the arroyo toad within the 

Coachella Valley MSHCP. Of these 

lands, approximately 483 ac (195 ha), or 

90 percent, are within Core Habitat 

areas. 

The Coachella Valley MSHCP Reserve 

System will protect and manage Core 

Habitat areas for the arroyo toad in 

perpetuity. The Coachella Valley 

MSHCP provides for management and 

monitoring programs to ensure the 

conservation of this species, including 

control of activities that adversely 

impact water quality and the 

hydrological regime, disturbance from 

recreational activity in sensitive areas, 

control of invasive species where 

necessary, and restoration and 

enhancement of degraded habitat as 

necessary (Dudek and CVAG 2007, pp. 

9–89). Additionally, the Coachella 

Valley MSHCP includes an educational 

program for residents and visitors in 

Whitewater Canyon to inform them 

about the arroyo toad and its 

conservation needs (Dudek and CVAG 

2007, pp. 9–89). 

At this time, approximately 481 ac 

(195 ha), or 89 percent, of lands that we 

are considering for exclusion have been 

acquired for conservation under the 

Coachella Valley MSHCP. In addition, 

45 ac (18 ha) that meet the definition of 

critical habitat are not identified as 

either Core or Other Conserved Habitat 

by the Coachella Valley MSHCP, but fall 

within Conservation Areas under the 

Coachella Valley MSHCP. We anticipate 

that 41 ac (17 ha), or 90 percent, of these 

lands will be conserved under the 

Coachella Valley MSHCP. 

In summary, we are considering 

exclusion of 538 ac (218 ha) of arroyo 

toad habitat on non-Federal lands in 

Unit 23 that meets the definition of 

critical habitat for arroyo toad within 

the Coachella Valley MSHCP under 

section 4(b)(2) of the Act, of which 89 

percent (481 ac (195 ha)) have been 

conserved. The 1994 final listing rule 

for arroyo toad identified the following 

primary threats to the arroyo toad: 

habitat degradation, predation, and 

small population size (59 FR 64866). 

The implementation of the Coachella 

Valley MSHCP helps to address these 

threats through a regional planning 

effort, and outlines species-specific 

objectives and criteria for the 

conservation of the arroyo toad. We will 

analyze the benefits of inclusion and 

exclusion of this area from critical 

habitat under section 4(b)(2) of the Act. 

We encourage any public comment in 

relation to our consideration of the areas 

in Unit 23 for inclusion or exclusion 

(see Public Comments section above). 

Orange County Central–Coastal 

Subregional Habitat Conservation Plan/ 

Natural Community Conservation Plan 

(Orange County Central–Coastal NCCP/ 

HCP) 

The Orange County Central–Coastal 

NCCP/HCP in central Orange County 

(Unit 8) was developed in cooperation 

with numerous local and State 

jurisdictions and agencies, and 

participating landowners, including the 

cities of Anaheim, Costa Mesa, Irvine, 

Orange, and San Juan Capistrano; 

Southern California Edison; 

Transportation Corridor Agencies; The 

Irvine Company; California Department 

of Parks and Recreation; Metropolitan 

Water District of Southern California; 

and Orange County. Approved in 1996, 

the Orange County Central–Coastal 

NCCP/HCP provides for the 

establishment of approximately 38,738 

ac (15,677 ha) of reserve lands for 39 

covered species within the 208,713-ac 

(84,463-ha) planning area. We issued an 

incidental take permit under section 

10(a)(1)(B) of the Act that provides 

conditional incidental take 

authorization for the arroyo toad for all 

areas within the Orange County 

Central–Coastal Subregion, except the 

North Ranch Policy Plan Area. This take 

authorization only applies to smaller 

arroyo toad populations, reintroduced 

populations, or populations that have 

expanded due to NCCP/HCP reserve 

management. It also requires 

implementation of a mitigation plan to 

relocate toads to protected areas within 

reserves, when necessary. For the 

reasons discussed under the 

‘‘Application of Section 4(b)(2) of the 

Act’’ section of this rule, we are 

considering the possible exclusion of 

lands that meet the definition of critical 

habitat within the Orange County 

Central–Coastal NCCP/HCP. 

Specifically, we are considering the 

exclusion of 1,497 ac (606 ha) in Unit 

8. 

The North Ranch Policy Plan Area 

was excluded from take authorization 

provided under the Orange County 

Central–Coastal NCCP/HCP due to a 

lack of detailed biological information 

and specific conservation commitments 

at the time of adoption of the NCCP/ 

HCP. We have since determined that 

arroyo toad habitat within the North 

Ranch Policy Plan Area meets the 

definition of critical habitat for the 

arroyo toad in that it has the features 

essential to the conservation of the 

species and because it helps support a 

viable Santa Ana Mountain arroyo toad 

population. In 2002, the owner, The 

Irvine Company, granted a conservation 

easement to The Nature Conservancy 

over a portion of the North Ranch Policy 

Plan Area and has taken steps to 

conserve this area, including a $10 

million management endowment. 

Approximately 761 ac (308 ha), or 51 

percent, of lands that we are considering 

for exclusion fall within the 

conservation easement. 

The Orange County Central–Coastal 

NCCP/HCP’s reserve system includes 

approximately 592 ac (240 ha), or 40 

percent, of lands that we are considering 

for exclusion. The Orange County 

Central–Coastal NCCP/HCP provides for 

monitoring of covered species, 

including the arroyo toad, and adaptive 

management for covered species and 

their habitat within this reserve system. 

Adaptive management activities may 

include a program to control nonnative 

predators, such as bullfrogs, clawed 

frogs, and nonnative fishes. To date, 

monitoring related to arroyo toad has 

consisted of reserve-wide herpetofauna 

surveys conducted from 1997 through 

2001 and management activities with 

potential to benefit arroyo toad, which 

include ongoing control of invasive 

nonnative vegetation in the upland 

environment throughout the reserve 

system. 

The Orange County Central–Coastal 

NCCP/HCP requires the implementation 

of a mitigation plan if a planned activity 

results in take of arroyo toads. The 

mitigation plan will: (1) Address design 

modifications and other on-site 

measures that are consistent with the 

project’s purposes, minimize impacts, 

and provide appropriate protections for 

the arroyo toad; (2) provide for arroyo 

toad relocation to a location acceptable 

to the Service and California 

Department of Fish and Game, coupled 

with compensatory habitat 

management/enhancement activities at 

the relocation site; and (3) provide for 

monitoring and adaptive management of 

arroyo toads and their habitat. 

In summary, we are considering 

exclusion of 1,497 ac (606 ha) of arroyo 


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52648 Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / Proposed Rules 

toad habitat on permittee-owned or 

controlled lands in Unit 8 that meets the 

definition of critical habitat for arroyo 

toad within the Orange County Central– 

Coastal Subregional NCCP/HCP under 

section 4(b)(2) of the Act. 

Approximately 51 percent (761 ac (308 

ha)) of these lands are conserved within 

the North Ranch Policy Plan Area and 

another 40 percent (592 ac (240 ha)) are 

conserved within this NCCP/HCP’s 

reserve system. The 1994 final listing 

rule for arroyo toad identified the 

following primary threats to the arroyo 

toad: habitat degradation, predation, 

and small population size (59 FR 

64866). The implementation of the 

Orange County Central–Coastal 

Subregional NCCP/HCP helps to address 

these threats through a regional 

planning effort, and outlines speciesspecific objectives and criteria for the 

conservation of the arroyo toad. We will 

analyze the benefits of inclusion and 

exclusion of this area from critical 

habitat under section 4(b)(2) of the Act. 

We encourage any public comment in 

relation to our consideration of the areas 

in Unit 8 for inclusion or exclusion (see 

Public Comments section above). 

Southern Orange County Natural 

Community Conservation Plan/Master 

Streambed Alteration Agreement/ 

Habitat Conservation Plan (Southern 

Orange HCP) 

The Southern Orange HCP is a largescale multi-jurisdictional HCP 

encompassing approximately 86,021 ac 

(34,811 ha) in southern Orange County 

(including lands within Subunit 10a 

and Subunit 11a). The Southern Orange 

HCP was developed by the County of 

Orange (County), Rancho Mission Viejo, 

and the Santa Margarita Water District 

(Water District) to address impacts to 32 

species, including the arroyo toad, 

resulting from residential and associated 

infrastructure development. On January 

10, 2007, the Service issued incidental 

take permits (Service 2007, p. 431) 

under section 10(a)(1)(B) of the Act to 

the three permittees for a period of 75 

years. For the reasons discussed under 

the ‘‘Application of Section 4(b)(2) of 

the Act’’ section of this rule, we are 

considering the possible exclusion of 

lands that meet the definition of critical 

habitat within the Southern Orange 

HCP. Specifically, we are considering 

the exclusion of 4,407 ac (1,784 ha) in 

Subunit 10a and Subunit 11a. 

The Southern Orange HCP will 

establish approximately 30,426 ac 

(12,313 ha) of habitat reserve (Service 

2007, p. 19). The HCP provides for a 

large, biologically diverse and 

permanent habitat reserve that will 

protect: (1) Large blocks of natural 

vegetation communities that provide 

habitat for the covered species; (2) 

‘‘important’’ and ‘‘major’’ populations of 

the covered species in key locations; (3) 

wildlife corridors and habitat linkages 

that connect the large habitat blocks and 

covered species populations to each 

other, the Cleveland National Forest, 

and the adjacent Orange County 

Central–Coastal NCCP/HCP; and (4) the 

underlying hydrogeomorphic processes 

that support the major vegetation 

communities providing habitat for the 

covered species (Service 2007, p. 10). 

Habitat for the arroyo toad was 

modeled during the Southern Orange 

HCP process. Specific conservation 

goals in the Southern Orange HCP for 

the arroyo toad include the conservation 

and management of 1,322 ac (534 ha) of 

HCP-modeled habitat within Rancho 

Mission Viejo (Service 2007, p. 59), of 

which approximately 1,208 ac (489 ha), 

or 28 percent, meet the definition of 

critical habitat. An additional 2,297 ac 

(943 ha), or 52 percent, of lands that we 

are considering for exclusion fall 

outside of the HCP-modeled habitat, but 

entirely within Southern Orange HCP’s 

habitat reserve. Thus, Southern Orange 

HCP’s habitat reserve encompasses 

3,505 ac (1415 ha), or 80 percent, of 

lands that we are considering for 

exclusion. While not all habitat in the 

reserve will be conserved, the habitat 

reserve will contain habitat to support 

all of the known populations in Rancho 

Mission Viejo and County lands, 

including San Juan Creek, Talega 

Canyon, Bell Canyon, and Lower 

Cristianitos Creek/Lower Gabino 

Canyon (Service 2007, p. 62). Following 

implementation of the HCP, all of the 

known populations will be conserved as 

follows: 

(1) Almost all of the documented 

breeding habitat will be conserved; 

(2) Only a small portion (a maximum 

of 28 of 650 ac (11 of 263 ha), or 4 

percent) of HCP-modeled habitat for 

arroyo toad in the San Mateo Creek 

watershed (Subunit 11a) will be 

impacted. The conservation and 

management of all breeding habitat and 

remaining upland habitat is anticipated 

to maintain the populations in Talega 

Creek and lower Cristianitos Creek/ 

lower Gabino Canyon; 

(3) Implementation of the HCP will 

impact a substantial portion (402 of 

1,074 ac (163 of 435 ha), or 37 percent) 

of HCP-modeled upland habitat for 

arroyo toad along San Juan Creek 

(Subunit 10a) on Rancho Mission Viejo. 

However, the conservation and 

management of breeding habitat and 

remaining upland habitat in San Juan 

Creek combined with the alreadyconserved habitat in Bell Canyon 

(Subunit 10a) on County land and 

restoration of 24 ac (10 ha) of breeding 

habitat in upper San Juan Creek on 

County land is anticipated to maintain 

the population along San Juan Creek; 

and 

(4) The population in Bell Canyon 

and the portion of the population in 

upper San Juan Creek (Subunit 10a) are 

already conserved on County land and 

will be cooperatively managed by the 

County (Service 2007, p. 67). 

In addition to the creation of a habitat 

reserve, the following conservation 

measures specified in the Southern 

Orange HCP will contribute to the 

protection and management of arroyo 

toad habitat: 

(1) Potential impacts to arroyo toads 

associated with construction activities 

on Rancho Mission Viejo will be 

avoided and minimized through 

preparation of Biological Resources 

Construction Plans in coordination with 

the Service; 

(2) Potential impacts to arroyo toad 

habitat from grazing activities will be 

addressed through implementation of 

the Grazing Management Plan, which 

includes the management of grazing 

activities and restoration of upland 

habitat with native grasses and coastal 

sage scrub; 

(3) Implementation of the Invasive 

Species Control Plan on Rancho Mission 

Viejo will result in removal of nonnative 

plant species that degrade aquatic 

habitats and removal of aquatic 

predators of the arroyo toad; 

(4) Through Water Quality 

Management Plans, flow duration 

(which influences channel morphology) 

and water quality will be maintained 

such that hydrologic conditions of 

concern such as erosion or 

sedimentation or pollutants of concern 

will be addressed; and 

(5) A detailed monitoring program for 

the arroyo toad that includes monitoring 

conducted both at a species-specific 

level and also at a habitat-landscape 

level will be developed in coordination 

with the Service (Service 2007, pp. 62– 

64). 

In summary, we are considering 

exclusion of 4,407 ac (1,784 ha) of 

arroyo toad habitat on permittee-owned 

or controlled lands in Subunit 10a and 

Subunit 11a that meets the definition of 

critical habitat for arroyo toad within 

the Southern Orange HCP under section 

4(b)(2) of the Act. Although not all lands 

proposed as critical habitat that are 

targeted for preservation and 

management within the Southern 

Orange HCP have been officially 

dedicated to the preserve system, we 

believe that all conservation anticipated 

under the Southern Orange HCP will 


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occur. The 1994 final listing rule for 

arroyo toad identified the following 

primary threats to the arroyo toad: 

habitat degradation, predation, and 

small population size (59 FR 64866). 

The implementation of the Southern 

Orange HCP helps to address these 

threats through a regional planning 

effort, and outlines species-specific 

objectives and criteria for the 

conservation of the arroyo toad. We will 

analyze the benefits of inclusion and 

exclusion of this area from critical 

habitat under section 4(b)(2) of the Act. 

We encourage any public comment in 

relation to our consideration of the areas 

in Subunit 10a and Subunit 11a for 

inclusion or exclusion (see Public 

Comments section above). 

Tribal Lands—Exclusions Under 

Section 4(b)(2) of the Act 

In accordance with the Secretarial 

Order 3206, ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’ (June 5, 1997); the 

President’s memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2), 

we believe that fish, wildlife, and other 

natural resources on tribal lands are 

better managed under tribal authorities, 

policies, and programs than through 

Federal regulation wherever possible 

and practicable. Based on this 

philosophy, we believe that, in most 

cases, designation of tribal lands as 

critical habitat provides very little 

additional benefit to threatened and 

endangered species. Conversely, such 

designation is often viewed by tribes as 

unwarranted and an unwanted intrusion 

into tribal self-governance, thus 

compromising the government-togovernment relationship essential to 

achieving our mutual goals of managing 

for healthy ecosystems upon which the 

viability of threatened and endangered 

species populations depend. We will 

take into consideration our partnerships 

and existing conservation actions that 

tribes have or are currently 

implementing when conducting our 

exclusion analysis in the final revised 

critical habitat designation. We will also 

take into consideration conservation 

actions that are planned (such as a 

Memorandum of Understanding 

addressing arroyo toad conservation that 

is under development between the 

Service, Bureau of Indian Affairs, and 

affected tribes (as discussed in detail 

below)) as part of our on-going 

commitment to the government-togovernment relationship with tribes. If 

the Secretary decides to exercise his 

discretion under section 4(b)(2) of the 

Act, we are considering lands covered 

by the tribes identified below for 

possible exclusion from final critical 

habitat. 

Considered Exclusion for Several Tribal 

Lands 

We are considering the exclusion of 

4,046 ac (1,636 ha) of arroyo toad 

habitat proposed in Units 14, 16, 17, 

and 18 under section 4(b)(2) of the Act. 

These areas overlap with tribal lands 

that are owned or managed by the 

following tribes: (1) Rincon Band of 

Luisen ̃ o Mission Indians; (2) Pala Band 

of Luisen ̃o Mission Indians; (3) Sycuan 

Band of the Kumeyaay Nation; (4) the 

Mesa Grande Band of Diegueno Mission 

Indians; and (5) the Barona Group of 

Capitan Grande Band of Mission Indians 

and the Viejas (Baron Long) Group of 

Capitan Grande Band of Mission 

Indians, which jointly manage the 

Capitan Grande Band of Diegueno 

Mission Indians Reservation (Capitan 

Grande Reservation). Conservation 

afforded (or currently being developed) 

for the arroyo toad and its habitat on 

each of these tribe’s lands is addressed 

in the following paragraphs. 

The Rincon Band of Luisen ̃ o Mission 

Indians of the Rincon Reservation 

(Rincon Band of Luisen ̃ o Mission 

Indians) encompasses approximately 

4,026 ac (1,625 ha) in northern San 

Diego County (Unit 14), which includes 

approximately 910 ac (368 ha) of arroyo 

toad habitat proposed as critical habitat. 

Additionally, a total of 245 ac (99 ha) of 

off-reservation lands (such as feeowned) are owned or managed by the 

Tribe and contain arroyo toad habitat 

proposed as critical habitat. The Rincon 

Band of Luisen ̃ o Mission Indians 

developed a management plan for the 

arroyo toad in 2005 that provides 

guidelines for the protection and 

management of arroyo toad habitat 

within a 97-ac (39-ha) Habitat 

Management Plan area, which is within 

the area proposed as critical habitat. 

Specific tasks that will be implemented 

include: (1) Removal and monitoring of 

nonnative species within the plan area 

that pose a threat to the arroyo toad; (2) 

removal and monthly monitoring of 

trash and debris within the plan area; 

(3) maintenance and monitoring of oil 

and grease traps at the edge of facility 

parking lots; (4) assessment and 

monthly monitoring of vehicle, 

livestock, and other incursions (such as 

trespassing) into the plan area; (5) 

reporting of unauthorized activities 

within the plan area to the Service; (6) 

development of an arroyo toad 

education program; and (7) placement of 

signs at regular intervals along the plan 

area boundary. 

The Pala Band of Luisen ̃ o Mission 

Indians of the Pala Reservation (Pala 

Band of Luisen ̃ o Mission Indians) 

encompasses approximately 12,429 ac 

(5,018 ha) in northern San Diego County 

(Unit 14), which includes 

approximately 1,662 ac (673 ha) of 

arroyo toad habitat proposed as critical 

habitat. Additionally, a total of 723 ac 

(293 ha) of off-reservation lands (such as 

fee-owned) are owned or managed by 

the Tribe and contain arroyo toad 

habitat proposed as critical habitat. The 

Reservation is located in the Middle San 

Luis Rey River basin approximately 6 

miles (9.7 km) east of Interstate 15 on 

California Highway 76. The town of Pala 

is located along California Highway 76 

in approximately the center of the 

Reservation. The Reservation was 

established for the Cupeno and Luisen ̃ o 

Indians, who considered themselves to 

be one ‘‘people’’—Pala. The Pala Band 

of Luisen ̃ o Mission Indians developed a 

Master Plan in 2005 that is currently 

being implemented to guide 

management and land use on the 

Reservation. Additionally, the Tribe has 

developed a management plan to 

address resource management and 

conservation of the arroyo toad, which 

outlines the following conservation 

goals to benefit the species: (1) 

Maintenance of designated open space 

and waterways for the arroyo toad along 

Pala Creek and the San Luis Rey River; 

(2) encouraging allottees (owners of 

individual allotments within reservation 

lands) to locate new construction away 

from inland allotment areas; (3) 

replacing the Lilac Extension vehicle 

crossing of the San Luis Rey River with 

a bridge; (4) reducing off-highway 

vehicle activity by establishing a 

designated area for these activities 

outside of arroyo toad habitat; (5) 

purchasing adjacent property known to 

be occupied by arroyo toads and placing 

occupied areas in reserve; (6) 

discouraging development of six 

allotments within the San Luis Rey 

River; and (7) removal of nonnative 

species within arroyo toad habitat 

corridors. 

The Sycuan Band of the Kumeyaay 

Nation own reservation lands that 

encompass approximately 806 ac (325 

ha) in southern San Diego County (Unit 

18), which includes approximately 22 

ac (9 ha) of arroyo toad habitat proposed 

as critical habitat. Additionally, a total 

of 369 ac (149 ha) of off-reservation 

lands (such as fee-owned) are owned or 

managed by the Tribe and contain 

arroyo toad habitat proposed as critical 

habitat. The Sycuan Band of the 


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Kumeyaay Nation has two land 

management plans in place relevant to 

their reservation that provide direct and 

indirect benefits to the arroyo toad and 

its habitat on the reservation: an Interim 

Land Use Master Plan that was adopted 

by the Sycuan General Council on 

January 10, 2002 (BRG 2002), and the 

Sycuan Tribal Environmental Plan that 

was approved by the Tribal Council in 

June 2003 (Sycuan 2003). The Land Use 

Master Plan provides recommended 

land use planning for the reservation 

and additional surrounding properties 

that are to be brought into Trust, and is 

based on preservation of sensitive 

environmental and tribal resources 

(BRG 2002, p. 1). The Sycuan Tribal 

Environmental Plan includes policies, 

procedures, and guidance that are in 

compliance with the Tribal 

Environmental Policy Act (Sycuan 2003, 

p. 1). The Sycuan Tribal Environmental 

Plan outlines procedures for 

environmental planning, project 

implementation, and operations that 

minimize adverse considerations where 

potential negative impacts to human 

health and the environment could 

occur. Additionally, the Sycuan Tribal 

Environmental Plan promotes 

environmental protection through 

responsible management practices that 

will benefit conservation of threatened 

and endangered species, including the 

arroyo toad and its habitat. Conservation 

measures are organized into the 

following three categories that are 

outlined in more detail within the 

‘‘Sycuan Conservation Strategy and 

Conservation Measures Plan’’ 

(Conservation Plan) portion of the 

Sycuan Tribal Environmental Plan: (1) 

Conservation area site selection, design, 

and management; (2) land cover type 

conservation measures; and (3) speciesspecific conservation measures (which 

protect and restore populations and 

habitat of each covered species) (Sycuan 

2003, p. 5). The overall Conservation 

Plan includes the following types of 

conservation measures for arroyo toad 

and other covered species: (1) Protection 

of existing habitat for compliance and 

species recovery; (2) enhancement of 

existing habitat; (3) restoration to create 

new habitat; (4) management of habitat 

to maintain and preserve ecological 

functions; avoidance and minimization 

of direct impacts on individuals and 

habitat of covered species; (5) 

population enhancement measures that 

directly or indirectly increase 

abundance of covered species; and (6) 

research necessary to improve 

conservation measure effectiveness 

(Sycuan 2003, pp. 5–6). 

The Mesa Grande Reservation, which 

is owned and managed by the Mesa 

Grande Band of Diegueno Mission 

Indians, is situated in the hills above 

Sutherland Reservoir near the mountain 

community of Santa Ysabel, which is 

approximately 35 miles northeast of San 

Diego, San Diego County. The 

Reservation encompasses approximately 

1,818 ac (734 ha) of land in Unit 16, 

which includes approximately 23 ac (9 

ha) of arroyo toad habitat proposed as 

critical habitat. Although an arroyo toad 

management plan currently does not 

exist for the Mesa Grande Reservation, 

the Service, Bureau of Indian Affairs, 

and Tribe are currently coordinating to 

discuss management of the arroyo toad 

and its habitat on the Reservation. 

The Capitan Grande Reservation lands 

fall within the Capitan Grande Canyon 

where the San Diego River once ran, 

which is approximately 35 miles (56 

km) east of San Diego, San Diego 

County. The Reservation encompasses 

approximately 15,619 ac (6,306 ha) of 

land in Unit 17, which includes 

approximately 92 ac (37 ha) of arroyo 

toad habitat proposed as critical habitat. 

Following an 1875 Presidential 

Executive Order, a number of small 

reservations (including the Capitan 

Grande Reservation) was formed. It was 

from this reservation that the following 

two tribes were formed: Barona Group 

of Capitan Grande Band of Mission 

Indians of the Barona Reservation, and 

the Viejas (Baron Long) Group of 

Capitan Grande Band of Mission Indians 

of the Viejas Reservation. Both the 

Barona Group of Capitan Grande Band 

of Mission Indians and the Viejas Group 

of Capitan Grande Band of Mission 

Indians jointly manage the Capitan 

Grande Reservation. Although an arroyo 

toad management plan currently does 

not exist for the Capitan Grande 

Reservation, the Service, Bureau of 

Indian Affairs, and both Tribes are 

currently coordinating to discuss 

management of the arroyo toad and its 

habitat on the Reservation. 

In summary, we are considering 

exclusion of the following lands under 

section 4(b)(2) of the Act: 1,155 ac (467 

ha) in Unit 14 within the Rincon Band 

of Luisen ̃o Mission Indians Reservation 

and other associated tribal lands owned/ 

managed by the Rincon Band of Luisen ̃ o 

Mission Indians; 2,385 ac (963 ha) in 

Unit 14 within the Pala Band of Luisen ̃ o 

Mission Indians Reservation and other 

associated tribal lands owned/managed 

by the Pala Band of Luisen ̃ o Mission 

Indians; 391 ac (158 ha) in Unit 18 

within the Sycuan Band of the 

Kumeyaay Nation’s Reservation and 

other associated tribal lands owned/ 

managed by the Sycuan Band of the 

Kumeyaay Nation; 92 ac (37 ha) in Unit 

17 within the Capitan Grande 

Reservation; and 23 ac (9 ha) in Unit 16 

within the Mesa Grande Reservation. 

We are seeking public comment on 

whether the conservation needs of the 

arroyo toad can be achieved by limiting 

the designation to non-Tribal lands and 

the appropriateness of the inclusion or 

exclusion of these lands from the final 

revised critical habitat designation (see 

Public Comments section). 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will be 

obtaining the expert opinions of at least 

three appropriate independent 

specialists regarding this proposed rule. 

The purpose of peer review is to ensure 

that our critical habitat designation is 

based on scientifically sound data, 

assumptions, and analyses. We will 

invite these peer reviewers to comment 

during this public comment period on 

our specific assumptions and 

conclusions in this proposed revised 

designation of critical habitat. 

We will consider all comments and 

information we receive during the 

comment period on this proposed rule 

during our preparation of a final 

determination. Accordingly, our final 

decision may differ from this proposal. 

Public Hearings 

Section 4(b)(5) of the Act provides for 

one or more public hearings on this 

proposal, if we receive any requests for 

hearings. We must receive your request 

for a public hearing within 45 days after 

the date of this Federal Register 

publication. Send your request to the 

addresses listed in FOR FURTHER

INFORMATION CONTACT. We will schedule 

public hearings on this proposal, if any 

are requested, and announce the dates, 

times, and places of those hearings, as 

well as how to obtain reasonable 

accommodations, in the Federal 

Register and local newspapers at least 

15 days before the first hearing. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) determines whether this rule is 

significant under Executive Order (E.O.) 

12866. OMB bases its determination 

upon the following four criteria: 

(1) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 


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(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency must 

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 effects of the rule on small 

entities (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. The SBREFA amended the RFA 

to require Federal agencies to provide a 

statement of factual basis for certifying 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. 

An analysis of the economic impacts 

of the 2004 proposed critical habitat 

designation was made available to the 

public on February 14, 2005 (70 FR 

7459), and finalized in the final rule to 

designate critical habitat published in 

the Federal Register on April 13, 2005 

(70 FR 19562). In our economic analysis 

of that designation (70 FR 19562, p. 

19613), 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 the 

designation of critical habitat for the 

arroyo toad would result in: (1) An 

annual impact of less than 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 than 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 of less than 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 of less than 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 of less than 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 these data, the impacts on 

small business, small governments, and 

small nonprofits were expected to be 

negligible (Economic & Planning, Inc. 

2005, pp. A–5—A–18). However, the 

economic analysis prepared for the 2005 

critical habitat designation does not 

accurately reflect the full range of 

potential economic impacts that may 

result from this proposed revision to 

arroyo toad critical habitat. 

We will prepare a new economic 

analysis for this proposed revised 

critical habitat designation for the 

arroyo toad. At this time, we lack 

current economic information necessary 

to provide an updated factual basis for 

the required RFA finding with regard to 

this proposed revision to critical habitat. 

Therefore, we defer the RFA finding 

until completion of the draft economic 

analysis prepared under section 4(b)(2) 

of the Act and E.O. 12866. The draft 

economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, we will announce its 

availability in the Federal Register and 

reopen the public comment period for 

the proposed revised designation. We 

will include with this announcement, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. We have concluded that 

deferring the RFA finding until 

completion of the draft economic 

analysis is necessary to meet the 

purposes and requirements of the RFA. 

Deferring the RFA finding in this 

manner will ensure that we make a 

sufficiently informed determination 

based on adequate economic 

information and provide the necessary 

opportunity for public comment. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, we make the 

following findings: 

1. 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 [T]ribal 

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 [T]ribal 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. While nonFederal entities who 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, 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 onto State 

governments. 

2. Based in part on an analysis 

conducted for the previous designation 

of critical habitat and extrapolated to 


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this designation, we do not expect this 

rule to significantly or uniquely affect 

small governments. Small governments 

will be affected only to the extent that 

any programs having Federal funds, 

permits, or other authorized activities 

must ensure that their actions will not 

adversely affect the critical habitat. 

Therefore, a Small Government Agency 

Plan is not required. However, as we 

conduct our economic analysis for the 

revised rule, we will further evaluate 

this issue and revise this assessment if 

appropriate. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

designating revised critical habitat for 

the arroyo toad in a takings implications 

assessment. The takings implications 

assessment concludes that this 

designation of revised critical habitat for 

the arroyo toad does not pose significant 

takings implications for lands within or 

affected by the revised designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), the proposed rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed revised critical habitat 

designation with appropriate State 

resource agencies in California. The 

designation may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist these local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) would be required. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), it has been 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We have 

proposed to revise critical habitat in 

accordance with the provisions of the 

Act. This proposed rule uses standard 

property descriptions and identifies the 

primary constituent elements within the 

designated areas to assist the public in 

understanding the habitat needs of the 

arroyo toad. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995. This rule will 

not impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the Circuit Court of 

Appeals of the United States for the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by NEPA (42 U.S.C. 4321 et 

seq.) 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 position was upheld by the 

Circuit Court of Appeals of the United 

States for the Ninth Circuit (Douglas 

County v. Babbitt, 48 F.3d 1495 (9th Cir. 

1995), cert. denied 516 U.S. 1042 

(1996)). 

Clarity of the Rule 

We are required by E.O. 12866, E.O. 

12988, and by the Presidential 

Memorandum of June 1, 1998, to write 

all rules in plain language. This means 

that each rule we publish must: 

1. Be logically organized; 

2. Use the active voice to address 

readers directly; 

3. Use clear language rather than 

jargon; 

4. Be divided into short sections and 

sentences; and 

5. Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

Government-to-Government Relations 

with Native American Tribal 

Governments (59 FR 22951), E.O. 13175, 

and the Department of the Interior’s 

manual at 512 DM 2, we readily 

acknowledge our responsibility to 

communicate meaningfully with 

recognized Federal tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to tribes. 

We are currently coordinating with 

affected Tribes regarding this proposed 

revised critical habitat designation, and 

have included Tribal lands in this 

revised proposal. We are requesting 

public comment on the appropriateness 

of including or excluding these lands in 

the final revised critical habitat rule. We 

will continue to coordinate with the 

Tribal governments during the 

designation process. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

E.O. 13211 requires agencies to 

prepare Statements of Energy Effects 

when undertaking certain actions. Based 

on an analysis conducted for the 

previous designation of critical habitat 

and extrapolated to this designation, 

along with a further analysis of the 

additional areas included in this 

revision, we have determined that this 

proposed rule to revise critical habitat 

for the arroyo toad is not expected to 

significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action, 

and no Statement of Energy Effects is 

required. However, we will further 


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evaluate this issue as we conduct our 

economic analysis, and review and 

revise this assessment as warranted. 

References Cited 

A complete list of all references cited 

in this rulemaking is available on 

http://www.regulations.gov and upon 

request from the Field Supervisor, 

Ventura Fish and Wildlife Office, or the 

Field Supervisor, Carlsbad Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

Author(s) 

The primary authors of this notice are 

staff from the Ventura Fish and Wildlife 

Office and the Carlsbad Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.11(h), revise the entry for 

‘‘Toad, arroyo (= arroyo southwestern)’’ 

under ‘‘Amphibians’’ in the List of 

Endangered and Threatened Wildlife to 

read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population 

where endangered or 

threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

AMPHIBIANS

* * * * * * * 

Toad, arroyo (= arroyo 

southwestern.

Anaxyrus californicus U.S.A. (CA), Mexico .. Entire ......................... E 568 17.95(d) NA 

* * * * * * * 

3. In § 17.95(d), revise the entry for 

‘‘Arroyo Toad (Bufo californicus)’’ to 

read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(d) Amphibians. 

* * * * * 

Arroyo Toad (Anaxyrus californicus) 

(1) Critical habitat units are depicted 

for Los Angeles, Orange, Riverside, San 

Bernardino, San Diego, Santa Barbara, 

and Ventura Counties, California, on the 

maps below. 

(2) Within these areas, the primary 

constituent elements for the arroyo toad 

consist of four components: 

(i) Rivers or streams with hydrologic 

regimes that supply water to provide 

space, food, and cover needed to sustain 

eggs, tadpoles, metamorphosing 

juveniles, and adult breeding toads. 

Breeding pools must persist a minimum 

of 2 months for the completion of larval 

development. However, due to the 

dynamic nature of southern California 

riparian systems and flood regimes, the 

location of suitable breeding pools may 

vary from year to year. Specifically, the 

conditions necessary to allow for 

successful reproduction of arroyo toads 

are: 

(A) Breeding pools with areas less 

than 12 in (30 cm) deep; 

(B) Areas of flowing water with 

current velocities less than 1.3 ft per 

second (40 cm per second); and 

(C) Surface water that lasts for a 

minimum of 2 months during the 

breeding season (i.e., a sufficient wet 

period in the spring months to allow 

arroyo toad larvae to hatch, mature, and 

metamorphose). 

(ii) Riparian and adjacent upland 

habitats, particularly low-gradient 

(typically less than 6 percent) stream 

segments and alluvial streamside 

terraces with sandy or fine gravel 

substrates that support the formation of 

shallow pools and sparsely vegetated 

sand and gravel bars for breeding and 

rearing of tadpoles and juveniles; and 

adjacent valley bottomlands that 

include areas of loose soil where toads 

can burrow underground, to provide 

foraging and living areas for juvenile 

and adult arroyo toads. 

(iii) A natural flooding regime, or one 

sufficiently corresponding to natural, 

characterized by intermittent or near 

perennial flow that contributes to the 

persistence of shallow pools into at least 

mid-summer, and that maintains areas 

of open, sparsely vegetated, sandy 

stream channels and terraces by 

periodically scouring riparian 

vegetation; and also that modifies 

stream channels and terraces and 

redistributes sand and sediment, such 

that breeding pools and terrace habitats 

with scattered vegetation are 

maintained. 

(iv) Stream channels and adjacent 

upland habitats that allow for 

movement to breeding pools, foraging 

areas, overwintering sites, upstream and 

downstream dispersal, and 

recolonization of areas that contain 

suitable habitat. 

(3) Critical habitat does not include 

manmade structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located. 

(4) Critical habitat map units. Data 

layers defining map units were created 

on a base of USGS 7.5’ quadrangles 

using USDA National Agricultural 

Imagery Program (NAIP) county-wide 

MrSID compressed mosaics of 1 meter 

resolution and natural color aerial 

photography from summer 2005. 

Critical habitat units were then mapped 

using Universal Transverse Mercator 

(UTM) zone 10, North American Datum 

(NAD) 1983 coordinates. 

(5) Note: Index map 1 of Units of 

Critical Habitat for Arroyo Toad 

(Anaxyrus californicus) follows: 

BILLING CODE 4310–55–P 


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(6) Note: Index map 2 of Units of 

Critical Habitat for Arroyo Toad 

(Anaxyrus californicus) follows: 


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(7) Units 2 and 3, Santa Barbara 

County, California. 

(i) [Reserved for textual description of 

units.] 

(ii) Note: Map of Critical Habitat for 

Arroyo Toad (Anaxyrus californicus), 

Units 2 and 3, Santa Barbara County, 

California, follows: 


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(8) Units 4 and 5, Ventura and Los 

Angeles Counties, California. 

(i) [Reserved for textual description of 

units.] 

(ii) Note: Map of Critical Habitat for 

Arroyo Toad (Anaxyrus californicus), 

Units 4 and 5, Ventura and Los Angeles 

Counties, California, follows: 


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(9) Unit 6, Los Angeles County, 

California. 

(i) [Reserved for textual description of 

units.] 

(ii) Note: Map of Critical Habitat for 

Arroyo Toad (Anaxyrus californicus), 

Unit 6, Los Angeles County, California, 

follows: 


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(10) Units 7 and 21, Los Angeles 

County, California. 

(i) [Reserved for textual description of 

units.] 

(ii) Note: Map of Critical Habitat for 

Arroyo Toad (Anaxyrus californicus), 

Units 7 and 21, Los Angeles County, 

California, follows: 


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(11) Units 8, 10, and 11, Orange, 

Riverside, and San Diego Counties, 

California. 

(i) [Reserved for textual description of 

units.] 

(ii) Note: Map of Critical Habitat for 

Arroyo Toad (Anaxyrus californicus), 

Units 8, 10, and 11, Orange, Riverside, 

and San Diego Counties, California, 

follows: 


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(12) Units 9 and 23, Riverside County, 

California. 

(i) [Reserved for textual description of 

units.] 

(ii) Note: Map of Critical Habitat for 

Arroyo Toad (Anaxyrus californicus), 

Units 9 and 23, Riverside County, 

California, follows: 


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(13) Units 12, 13, 14, 15, 16, and 17, 

Riverside and San Diego Counties, 

California. 

(i) [Reserved for textual description of 

units.] 

(ii) Note: Map of Critical Habitat for 

Arroyo Toad (Anaxyrus californicus), 

Units 12, 13, 14, 15, 16, and 17, 

Riverside and San Diego Counties, 

California, follows: 


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(14) Units 18 and 19, San Diego 

County, California. 

(i) [Reserved for textual description of 

units.] 

(ii) Note: Map of Critical Habitat for 

Arroyo Toad (Anaxyrus californicus), 

Units 18 and 19, San Diego County, 

California, follows: 


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(15) Units 20 and 22, San Diego 

County, California. 

(i) [Reserved for textual description of 

units.] 

(ii) Note: Map of Critical Habitat for 

Arroyo Toad (Anaxyrus californicus), 

Units 20 and 22, San Diego County, 

California, follows: 

* * * * * Dated: September 28, 2009. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E9–24076 Filed 10–9–09; 8:45 am] 

BILLING CODE 4310–55–C 


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