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					                                                                                                    Vol. 76                           Wednesday,
                                                                                                    No. 27                            February 9, 2011




                                                                                                    Part II


                                                                                                    Department of the Interior

                                                                                                    Fish and Wildlife Service
                                                                                                    50 CFR Part 17
                                                                                                    Endangered and Threatened Wildlife and Plants; Revised Critical Habitat
                                                                                                    for the Arroyo Toad; Final Rule
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                                               7246             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               DEPARTMENT OF THE INTERIOR                              (TDD), call the Federal Information                   Life History
                                                                                                       Relay Service (FIRS) at 800–877–8339.                     The following additional information
                                               Fish and Wildlife Service                               SUPPLEMENTARY INFORMATION:                            and clarifications on the life history of
                                                                                                       Background                                            the arroyo toad are based on comments
                                               50 CFR Part 17
                                                                                                                                                             from peer reviewers (see Peer Review
                                                                                                          We intend to discuss only those
                                               [Docket No. FWS–R8–ES–2009–0069; MO                                                                           section below) received on the proposed
                                               92210–0–0009–B4]                                        topics directly relevant to the
                                                                                                                                                             revised rule (74 FR 52612; October 13,
                                                                                                       designation of revised critical habitat for
                                               RIN 1018–AV89                                                                                                 2009).
                                                                                                       the arroyo toad under the Endangered
                                                                                                                                                                 We stated in the revised proposed
                                                                                                       Species Act, as amended (16 U.S.C.
                                               Endangered and Threatened Wildlife                                                                            rule that most arroyo toads become
                                                                                                       1531 et seq.), in this final rule. For more
                                               and Plants; Revised Critical Habitat for                                                                      sexually mature in the spring following
                                                                                                       information on the taxonomy, biology,
                                               the Arroyo Toad                                                                                               metamorphosis. However, we should
                                                                                                       and ecology of the arroyo toad, refer to
                                                                                                                                                             clarify that unlike males, female arroyo
                                               AGENCY:   Fish and Wildlife Service,                    the final listing rule published in the
                                                                                                                                                             toads generally do not become sexually
                                               Interior.                                               Federal Register on December 16, 1994
                                                                                                                                                             mature until 2 years of age (Sweet 1992,
                                               ACTION: Final rule.                                     (59 FR 64859); the final critical habitat
                                                                                                       rule published in the Federal Register                p. 52).
                                                                                                                                                                 In the proposed revised rule, we
                                               SUMMARY:    We, the U.S. Fish and                       on February 7, 2001 (66 FR 9414); the
                                                                                                       final revised critical habitat rule                   stated that arroyo toads need breeding
                                               Wildlife Service (Service), are
                                                                                                       published in the Federal Register on                  pools that are less than 12 inches (in.)
                                               designating final revised critical habitat
                                                                                                       April 13, 2005 (70 FR 19562); and the                 (30 centimeters (cm)) deep. However, a
                                               for the arroyo toad (Anaxyrus
                                                                                                       proposed revised critical habitat rule                peer reviewer pointed out that pools
                                               californicus, Bufo californicus). We are
                                                                                                       published in the Federal Register on                  ‘‘less than 12 in. (30 cm) deep’’ may not
                                               designating approximately 98,366 acres
                                                                                                       October 13, 2009 (74 FR 52612).                       include any suitable breeding habitat in
                                               (ac) (39,807 hectares (ha)) of habitat in
                                                                                                       Additionally, information on this                     some cases. Breeding pools need a band
                                               Santa Barbara, Ventura, Los Angeles,
                                                                                                       species can be found in the Recovery                  of current-free water near the shoreline
                                               San Bernardino, Riverside, Orange, and
                                                                                                       Plan for the Arroyo Southwestern Toad                 that is 2 to 4 feet (ft) (0.6 to 1.2 meters
                                               San Diego Counties, California, as
                                                                                                       (Bufo microscaphus californicus)                      (m)) wide and less than 4 in. (10 cm)
                                               critical habitat for the arroyo toad. This
                                                                                                       finalized on July 24, 1999 (Service                   deep. The peer reviewer has found that
                                               final revised designation constitutes an
                                                                                                       1999). The nomenclature for the listed                arroyo toad egg clutches are laid entirely
                                               increase of approximately 86,671 ac
                                                                                                       entity has changed to ‘‘arroyo toad                   or mostly in water less than 4 in. (10
                                               (35,074 ha) from the 2005 designation of
                                                                                                       (Anaxyrus californicus)’’ but this change             cm) deep with minimal current velocity
                                               critical habitat for the arroyo toad. A
                                                                                                       does not alter the description or                     because egg strands are not attached to
                                               taxonomic name change has occurred
                                                                                                       distribution of the animals.                          any substrate features and can be swept
                                               and been accepted for the arroyo toad.
                                                                                                                                                             away by even very small currents.
                                               Throughout the remainder of this                        Change in Taxonomic Nomenclature                      Additionally, egg strands or portions of
                                               document we will use the currently
                                                                                                          When we made the proposed revised                  strands that end up in water over about
                                               recognized name for the listed entity,
                                                                                                       critical habitat for the arroyo toad                  6 in. (15 cm) deep are often attacked by
                                               Anaxyrus californicus, for references to
                                                                                                       available on October 13, 2009 (74 FR                  fungus and fail to hatch (Sweet 1992, p.
                                               the arroyo toad.
                                                                                                       52612), we proposed a nomenclature                    57). Based on the above information, we
                                               DATES: This rule becomes effective on
                                                                                                       change to the arroyo toad from Bufo                   now specify that arroyo toads need
                                               March 11, 2011.                                                                                               breeding pools that are no more than 6
                                                                                                       californicus to Anaxyrus californicus
                                               ADDRESSES: The final rule, final                        and for that change to be published in                in. (15 cm) deep. We have also made
                                               economic analysis, and map of critical                  the Code of Federal Regulations (CFR).                changes as appropriate to the primary
                                               habitat will be available on the Internet               Based on the information presented in                 constituent elements (PCEs) in this final
                                               at http://www.regulations.gov at Docket                 the proposed revised rule (see                        rule (see the ‘‘Primary Constituent
                                               No. FWS–R8–ES–2009–0069, http://                        Taxonomy and Nomenclature of the                      Elements for the Arroyo Toad’’ section
                                               www.fws.gov/ventura/, and http://                       proposed rule (74 FR 52612; October 13,               below). For more life history
                                               www.fws.gov/carlsbad/. Comments and                     2009)) and acceptance by the scientific               information, please see the ‘‘Life
                                               materials received, as well as supporting               community, we make that change and                    History’’ section in the proposed revised
                                               documentation used in preparing this                    are amending the List of Endangered                   critical habitat designation published in
                                               final rule, will be available for public                and Threatened Wildlife at 50 CFR                     the Federal Register on October 13,
                                               inspection, by appointment, during                      17.11(h) to identify the listed entity as             2009 (74 FR 52612).
                                               normal business hours, at the U.S. Fish                 ‘‘arroyo toad (Anaxyrus californicus).’’
                                               and Wildlife Service, Ventura Fish and                                                                        Reasons for Decline and Threats
                                               Wildlife Office, 2493 Portola Road,                     New Information on Species’                              Comments we received on the
                                               Suite B, Ventura, CA 93003; telephone                   Description, Life History, Ecology,                   proposed revised rule (74 FR 52612;
                                               805–644–1766; facsimile 805–644–3958.                   Habitat and Range                                     October 13, 2009) provided additional
                                               FOR FURTHER INFORMATION CONTACT:                          We did not receive any new                          information and clarifications on threats
                                               Diane Noda, Field Supervisor, U.S. Fish                 information pertaining to the                         to the arroyo toad.
                                               and Wildlife Service, Ventura Fish and                  description, ecology, or habitat of the                  In the 2009 proposed rule under the
                                               Wildlife Office (see ADDRESSES section)                 arroyo toad following the 2009 proposed               ‘‘Reasons for Decline and Threats’’
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                                               or Jim Bartel, Field Supervisor, U.S.                   rule to revise critical habitat (74 FR                section, we stated that the introduction
                                               Fish and Wildlife Service, Carlsbad Fish                52612; October 13, 2009). However, the                of aquatic species not native to southern
                                               and Wildlife Office, 6010 Hidden Valley                 following paragraphs discuss new                      California watercourses has been
                                               Road, Suite 101, Carlsbad, CA 92011;                    information that we received regarding                facilitated by construction of the
                                               telephone 760–431–9440; facsimile                       the species’ life history and status, and             California Aqueduct and other sources
                                               760–431–9624. If you use a                              the areas needed for arroyo toad                      of inter-basin water transport (Service
                                               telecommunications device for the deaf                  conservation.                                         1999, p. 48). We also stated that


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                                                                Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                        7247

                                               currently, the California Aqueduct is                   species. In a modified system with deep               bulldozed in several areas, including the
                                               linked directly to the Santa Ynez River,                pools that persist year-round, both                   lower portions of Mono and Indian
                                               Santa Clara River, San Jacinto River, and               species must rely on the same habitat                 Creeks (Sweet 2007a, pp. 1–9; 2007b, p.
                                               Mojave River Basins. However, one peer                  for breeding, even though their                       1). Based on research along Mono and
                                               reviewer noted that the Santa Ynez                      biological needs differ, which allows                 Indian Creeks prior to the fire (Sweet
                                               River is connected to the California                    bullfrogs more opportunity to prey on                 1992, pp. 1–198; 1993, pp. 1–73),
                                               Aqueduct only via many tens of                          essentially all life stages of arroyo toads.          juvenile and adult arroyo toads were
                                               kilometers of buried pipeline, with                        We have also received new                          known to make extensive use of the
                                               numerous pump stations. It is far less                  information on the threat that feral pigs             stream terraces where several of the
                                               likely that macroscopic, nonnative                      (Sus scrofa) pose not only to                         fuelbreaks and safety zones were
                                               organisms will survive such transport                   amphibians in general, but in particular              constructed. In August and September
                                               than is the case for the Santa Clara, San               to arroyo toads in critical habitat units             of 2007 when construction occurred, a
                                               Jacinto and Mojave drainage connectors,                 15, 16, 17, and 18. The Forest Service                large proportion of the population
                                               so the threat posed to the San Ynez                     is studying the effects of feral pigs in the          would have been within burrows on the
                                               River populations from aqueduct                         San Diego River where pigs were                       terraces and any toads that were in
                                               transfer is not of the same order of                    released approximately 3 years ago on                 those burrows were very likely killed by
                                               magnitude as for the other systems.                     tribal lands. According to a forest                   the bulldozing (Sweet 2007a, p. 1). In
                                                  In the 2009 proposed rule under the                  biologist on the Cleveland National                   addition to causing direct mortality,
                                                                                                       Forest, feral pigs have now spread as far             Sweet (2007a, p. 1) reported that the
                                               ‘‘Reasons for Decline and Threats’’
                                                                                                       north as Lake Henshaw and east into                   bulldozing operations severely degraded
                                               section, we also noted that nonnative
                                                                                                       Cuyamaca State Park, possibly into the                essential upland habitat by removing
                                               species that compete for resources with
                                                                                                       San Luis Rey River, San Vincente Creek,               shade and the opportunity for toads to
                                               or prey on arroyo toads pose a serious
                                                                                                       and Sweetwater River (Winter in litt.                 select microclimates based on soil
                                               threat to arroyo toads. Nonnative
                                                                                                       2010). In a recent study by Jolley et al.             temperature, moisture content, and
                                               amphibians, such as bullfrogs
                                                                                                       (2010, p. 519), wild pigs were found to               ground cover. The bulldozing also
                                               (Lithobates catesbeianus) and African
                                                                                                       negatively affect almost all aspects of               created substantial barriers to toad
                                               clawed frogs (Xenopus laevis), are
                                                                                                       ecosystem structure and function. Their               movement through the placement of
                                               known to feed on arroyo toads at
                                                                                                       rooting disturbs soil layers and natural              large piles of woody debris between the
                                               various life stages (Ramirez 2007, p.                   decomposition cycles. Typically                       creek bed and the terraces. This formed
                                               102). Arroyo toad tadpoles are also                     traveling in groups, areas where pigs                 ideal conditions for the terraces to
                                               subject to predation by introduced fish                 have rooted appear as if rototilled,                  become invaded by nonnative weeds, in
                                               species, especially green sunfish                       leaving large areas of bare earth that can            particular yellow star thistle (Centaurea
                                               (Lepomis cyanellus) and prickly sculpin                 be easily colonized by invasive weeds.                solstitialis), and thus created unsuitable
                                               (Cottus asper), whereas mosquitofish                    In addition to rooting and habitat                    habitat for arroyo toads because they are
                                               (Gambusia affinis) and crayfish                         alteration, wild pigs prey on reptiles                unable to dig burrows for shelter or
                                               (Procambarus clarkii) have been                         and amphibians, although the extent of                aestivation in terraces where yellow star
                                               observed to prey on arroyo toad eggs in                 predation has not been quantified                     thistle is well-established (Sweet 2007a,
                                               addition to tadpoles. The presence of                   (Jolley et al. 2010, p. 520).                         p. 1). Based on the above information,
                                               deep and persistent pools during                           In recent decades, large fires in the              we believe arroyo toads suffer direct
                                               summer and fall constitute a threat to                  West have become more frequent, more                  mortality and habitat loss from fire
                                               arroyo toads because such pools provide                 widespread, and potentially more                      suppression activities.
                                               refuge and breeding habitat for                         deadly (Joint Fire Science Program
                                               nonnative predators such as crayfish,                   (JFSP) 2007, pp. 1–12). Wildfire has                  Previous Federal Action
                                               various warm-water fish species,                        always been a periodic visitor to                        On July 20, 2007 (Service 2007, pp. 1–
                                               African clawed frogs, and bullfrogs.                    southern California forests, as part of the           2), we announced that we would review
                                               Artificially sustained flow regimes and                 cycle of natural dynamics that                        the April 13, 2005, final rule after
                                               activities that create ponds (including                 influences the composition of our                     questions were raised about the integrity
                                               the introduction of beaver (Castor                      forests (JFSP 2007, p. 1). However,                   of scientific information used and
                                               canadensis) into central and southern                   recently there has been a shift to more               whether the decision made was
                                               coastal montane regions) make habitat                   severe fires in some locations and                    consistent with the appropriate legal
                                               more suitable for bullfrogs and African                 wildfire effects are often exacerbated by             standards. Based on our review of the
                                               clawed frogs than for arroyo toads                      drought and insect attack. In addition,               previous final critical habitat
                                               (Sweet 1992, p. 156). For example, the                  fire suppression activities such as fire              designation, we determined it was
                                               presence of bullfrogs is an indicator of                line construction, hand line                          necessary to revise critical habitat, and
                                               how the natural hydrology of a stream                   construction, bulldozing, water                       we published a proposal to revise the
                                               drainage has been altered. Bullfrog                     withdrawal using helicopters and                      designation on October 13, 2009 (74 FR
                                               tadpoles mature more slowly than                        pumps, backfiring, and fire camp and                  52612). Additionally, on December 19,
                                               arroyo toads and many other                             safety zone construction pose a threat to             2007, the Center for Biological Diversity
                                               amphibians and require permanent                        the arroyo toad.                                      filed a complaint in the U.S. District
                                               water for a full year (Hecnar and                          Direct mortality to arroyo toads can               Court for the Southern District of
                                               M’Closkey 1997, p.146), whereas arroyo                  result from construction of fuelbreaks                California challenging our 2005
                                               toads are essentially a terrestrial species             and safety zones in stream terraces                   designation of critical habitat for the
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                                               and need aquatic habitats with shallow                  where arroyo toads are burrowed.                      arroyo toad (Center for Biological
                                               pools and minimal current only during                   Bulldozing operations can also severely               Diversity v. U.S. Fish and Wildlife
                                               the breeding season. In stream habitats                 degrade other essential upland habitats.              Service, Case No. 07–2380–JM–AJB). On
                                               with pools that predominately persist                   For example, in response to the Zaca                  June 5, 2008, the court entered a consent
                                               through the summer and then dry up by                   Fire that occurred on the Los Padres                  decree requiring a proposed revised
                                               the fall, arroyo toads would be at an                   National Forest in 2007, a number of                  critical habitat rule to be submitted to
                                               advantage in comparison to nonnative                    broad fuelbreaks and safety zones were                the Federal Register by October 1, 2009,


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                                               7248                  Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               and a final revised critical habitat                                        (56,133 ha) of critical habitat for the                              revisions to that rule published on
                                               designation to be submitted to the                                          arroyo toad in 23 units. On April 13,                                October 13, 2009 (74 FR 52612). This
                                               Federal Register by October 1, 2010. On                                     2005 (70 FR 19562), we designated                                    final revised critical habitat designation
                                               June 29, 2010, we published in the                                          approximately 11,695 ac (4,733 ha) of                                includes approximately 98,366 ac
                                               Federal Register a notice reopening the                                     critical habitat for the arroyo toad in six                          (39,807 ha) of land in Santa Barbara,
                                               comment period on the proposed rule                                         units. We proposed to revise this                                    Ventura, Los Angeles, San Bernardino,
                                               and making available the draft economic                                     designation to approximately 109,110 ac                              Riverside, Orange, and San Diego
                                               analysis (75 FR 37358). On August 10,                                       (44,155 ha) in 22 units on October 13,                               Counties, California. Table 1 below
                                               2010, the U.S. District Court granted a                                     2009 (74 FR 52612). This final revised                               outlines the differences between the
                                               motion to modify the stipulated                                             critical habitat designation includes                                2005 final critical habitat rule (70 FR
                                               settlement agreement to submit the final                                    approximately 98,366 ac (39,807 ha) in                               19562; April 13, 2005), the 2009
                                               revised critical habitat determination to                                   21 units, after excluding portions of                                proposed revisions to the critical habitat
                                               the Federal Register on January 21,                                         Units/Subunits 6b, 8, 9, 10a, 10b, 11a,                              designation (74 FR 52612; October 13,
                                               2011. For more information on previous                                      13b, 13c, 14, 15, 16d, 17a, 18c, and 19a                             2009), and this final revised critical
                                               Federal actions concerning the arroyo                                       (approximately 11,697 ac (4,734 ha))                                 habitat designation for the arroyo toad.
                                               toad, refer to the proposed revisions to                                    based on consideration of economic,                                  For more information on the differences
                                               critical habitat published in the Federal                                   national security, and other relevant                                between the 2005 critical habitat rule
                                               Register on October 13, 2009 (74 FR                                         impacts (see Exclusions Under Section                                and the 2009 proposed revised critical
                                               52612).                                                                     4(b)(2) of the Act section below). The                               habitat rule, please see the Summary of
                                                                                                                           areas identified in this final revised rule                          Changes From Previously Designated
                                               Summary of Changes From the 2005
                                                                                                                           constitute revisions of areas excluded                               Critical Habitat section of the proposed
                                               Critical Habitat Designation
                                                                                                                           and designated as critical habitat for the                           revised critical habitat rule published in
                                                 On April 28, 2004 (69 FR 23254), we                                       arroyo toad on April 13, 2005 (70 FR                                 the Federal Register on October 13,
                                               proposed to designate 138,713 ac                                            19562; Figure 1), and proposed                                       2009 (74 FR 52612).

                                                TABLE 1—CHANGES BETWEEN THE APRIL 13, 2005, ARROYO TOAD REVISED CRITICAL HABITAT DESIGNATION; THE OC-
                                                   TOBER 13, 2009 AND THE JUNE 29, 2010, PROPOSED REVISED DESIGNATION; AND THIS REVISED FINAL DESIGNA-
                                                   TION. ACREAGE VALUES ARE APPROXIMATE AND MAY NOT TOTAL DUE TO ROUNDING

                                                                                                                                                                                2009 and 2010 Proposed            2010 Final revised critical
                                                       Critical habitat unit                                                 2005 Designation of revised                          revisions to the critical
                                                                                                      County                                                                                                      habitat designation and ac
                                                        in this final rule                                                    critical habitat and ac (ha)                      habitat designation and ac                   (ha)
                                                                                                                                                                                           (ha)

                                               1. San Antonio River .............               Monterey ........          Entire Unit excluded under                          Entire Unit exempted under        Entire Unit exempted under
                                                                                                                              4(b)(2) for national security                      4(a)(3).                          4(a)(3).
                                                                                                                              reasons.
                                               2. Sisquoc River ....................            Santa Barbara              Designated as Unit 2: 4,800                         Included as Unit 2: 3,775         Designated as Unit 2: 3,775
                                                                                                                              (1,942).                                           (1,528).                          (1,528).
                                               3. Upper Santa Ynez River                        Santa Barbara              Entire Unit excluded under                          Included as Unit 3: 3,032         Designated as Unit 3: 3,032
                                                 Basin.                                                                       4(b)(2) for economic rea-                          (1,227).                          (1,227).
                                                                                                                              sons.
                                               4. Sespe Creek ......................            Ventura ..........         Designated as Unit 4: 4,008                         Included as Unit 4: 2,760         Designated as Unit 4: 2,760
                                                                                                                              (1,622).                                           (1,117).                          (1,117).
                                               5. Piru Creek ..........................         Ventura ..........         Entire Unit excluded under                          Included as Unit 5: 2,507         Designated as Unit 5: 2,507
                                                                                                                              4(b)(2) for economic rea-                          (1,015).                          (1,015).
                                                                                                                              sons.
                                               5a. ..........................................   ........................   ................................................    Included as Subunit 5a: 1,358     Designated as Subunit 5a:
                                                                                                                                                                                 (550).                            1,358 (550).
                                               5b. ..........................................   ........................    ................................................   Included as Subunit 5b: 1,149     Designated as Subunit 5b:
                                                                                                                                                                                 (465).                            1,149 (465).
                                               6. Upper Santa Clara River                       Los Angeles ...            Entire Unit excluded under                          Included as Unit 6: 3,795         Designated as Unit 6: 2,802
                                                 Basin.                                                                       4(b)(2) for economic rea-                          (1,537).                          (1,134).
                                                                                                                              sons.
                                               6a. ..........................................   ........................   ................................................    Included   as Subunit 6a: 520     Designated as    Subunit 6a:
                                                                                                                                                                                 (210).                            520 (210).
                                               6b. ..........................................   ........................    ................................................   Included   as Subunit 6b: 1,995   Designated as    Subunit 6b:
                                                                                                                                                                                 (807).                            1,003 (406).
                                               6c. ..........................................   ........................    ................................................   Included   as subunit 6c: 1,279   Designated as    Subunit 6c:
                                                                                                                                                                                 (518).                            1,279 (518).
                                               7. Upper Los Angeles River                       Los Angeles ...            Entire Unit excluded under                          Included   as Unit 7: 1,190       Designated as    Unit 7: 1,190
                                                 Basin.                                                                       4(b)(2) for economic rea-                          (482).                            (482).
                                                                                                                              sons.
                                               8. Lower Santa Ana River                         Orange ...........         Entire Unit excluded under                          Included as Unit 8: 2,182         Designated as Unit 8: 737
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                                                 Basin.                                                                       4(b)(2) for economic rea-                          (883).                            (298).
                                                                                                                              sons.
                                               9. San Jacinto River Basin ....                  Riverside ........         Designated as Unit 9: 700                           Included as Unit 9: 2,406         Designated as Unit 9: 2,391
                                                                                                                              (283).                                             (974).                            (968).
                                               9a. ..........................................   ........................   ................................................    Included as Subunit 9a: 1,226     Designated as Subunit 9a:
                                                                                                                                                                                 (496).                            1,226 (496).
                                               9b. ..........................................   ........................    ................................................   Included as Subunit 9b: 1,180     Designated as Subunit 9b:
                                                                                                                                                                                 (478).                            1,166 (472).



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                                                                    Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                                                          7249

                                                TABLE 1—CHANGES BETWEEN THE APRIL 13, 2005, ARROYO TOAD REVISED CRITICAL HABITAT DESIGNATION; THE OC-
                                                   TOBER 13, 2009 AND THE JUNE 29, 2010, PROPOSED REVISED DESIGNATION; AND THIS REVISED FINAL DESIGNA-
                                                   TION. ACREAGE VALUES ARE APPROXIMATE AND MAY NOT TOTAL DUE TO ROUNDING—Continued

                                                                                                                                                                             2009 and 2010 Proposed re-       2010 Final revised critical
                                               Critical habitat unit in this final                                         2005 Designation of revised                          visions to the critical
                                                                                                     County                                                                                                   habitat designation and ac
                                                              rule                                                          critical habitat and ac (ha)                      Habitat designation and ac                 (ha)
                                                                                                                                                                                         (ha)

                                               10. San Juan Creek Basin .....                  Orange, River-             Entire Unit excluded under                         Included as Unit 10: 5,667      Designated as Unit 10: 3,496
                                                                                                 side.                       4(b)(2) for economic rea-                         (2,293).                        (1,415).
                                                                                                                             sons.
                                               10a. ........................................   ........................   ................................................   Included as Subunit 10a:        Designated as Subunit 10a:
                                                                                                                                                                               4,728 (1,913).                  3,096 (1,253).
                                               10b. ........................................   ........................   ................................................   Included as Subunit 10b: 939    Designated as Subunit 10b:
                                                                                                                                                                               (380).                          399 (161).
                                               11. San Mateo Creek Basin ..                    Orange, San                Entire Unit either excluded                        Included as Unit 11: 1,878      Designated as Unit 11: 1,820
                                                                                                 Diego.                      under 4(b)(2) for economic                        (758).                          (737).
                                                                                                                             reasons or exempted under
                                                                                                                             4(a)(3).
                                               11a. ........................................   ........................   ................................................   Included as Subunit 11a:        Designated as Subunit 11a:
                                                                                                                                                                               1,034 (418).                    975 (395).
                                               11b. ........................................   ........................   ................................................   Included as Subunit 11b: 844    Designated as Subunit 11b:
                                                                                                                                                                               (341).                          844 (341).
                                               12. Lower Santa Margarita                       San Diego ......           Entire Unit either excluded                        Included as Unit 12: 1,009      Designated as Unit 12: 1,009
                                                 River Basin.                                                                under 4(b)(2) for economic                        (408).                          (408).
                                                                                                                             reasons or exempted under
                                                                                                                             4(a)(3).
                                               12a. ........................................   ........................   ................................................   Included as Subunit 12a: 394    Designated as Subunit 12a:
                                                                                                                                                                               (159).                          394 (159).
                                               12b. ........................................   ........................   ................................................   Included as Subunit 12b: 615    Designated as Subunit 12b:
                                                                                                                                                                               (248).                          615 (248).
                                               13. Upper Santa Margarita                       Riverside, San             Entire Unit excluded under                         Included as Unit 13: 8,137      Designated as Unit 13: 7,863
                                                 River Basin.                                    Diego.                      4(b)(2) for economic rea-                         (3,293).                        (3,182).
                                                                                                                             sons.
                                               13a. ........................................   ........................   ................................................   Included as Subunit 13a:        Designated as Subunit 13a:
                                                                                                                                                                               1,155 (467).                    1,155 (467).
                                               13b. ........................................   ........................   ................................................   Included as Subunit 13b:        Designated as Subunit 13b:
                                                                                                                                                                               4,756 (1,925).                  4,731 (1,914).
                                               13c. ........................................   ........................   ................................................   Included as Subunit 13c:        Designated as Subunit 13c:
                                                                                                                                                                               2,226 (901).                    1,977 (800).
                                               14. Lower and Middle San                        San Diego ......           Entire Unit excluded under                         Included as Unit 14: 12,906     Designated as Unit 14:
                                                 Luis Rey River Basin.                                                       4(b)(2) for economic rea-                         (5,223).                        10,115 (4,093).
                                                                                                                             sons.
                                               15. Upper San Luis Rey River                    San Diego ......           Entire Unit excluded under                         Included as Unit 15: 12,977     Designated as Unit 15: 8,368
                                                 Basin.                                                                      4(b)(2) for economic rea-                         (5,252).                        (3,336).
                                                                                                                             sons.
                                               16. Santa Ysabel Creek Basin                    San Diego ......           Entire Unit excluded under                         Included as Unit 16: 15,494     Designated as Unit 16:
                                                                                                                             4(b)(2) for economic rea-                         (6,270).                        15,370 (6,220).
                                                                                                                             sons.
                                               16a. ........................................   ........................   ................................................   Included as Subunit 16a:        Designated as Subunit 16a:
                                                                                                                                                                               13,967 (5,652).                 13,865 (5,611).
                                               16d. ........................................   ........................   ................................................   Included as Subunit 16d:        Designated as Subunit 16d:
                                                                                                                                                                               1,527 (618).                    1,504 (609).
                                               17. San Diego River Basin/                      San Diego ......           Entire Unit excluded under                         Included as Unit 17: 4,263      Designated as Unit 17: 4,171
                                                 San Vicente Creek.                                                          4(b)(2) for economic rea-                         (1,725).                        (1,688).
                                                                                                                             sons.
                                               17a. ........................................   ........................   ................................................   Included as Subunit 17a:        Designated as    Subunit 17a:
                                                                                                                                                                               1,241 (502).                    1,149 (465).
                                               17b. ........................................   ........................   ................................................   Included as Subunit 17b:        Designated as    Subunit 17b:
                                                                                                                                                                               1,865 (755).                    1,865 (754).
                                               17d. ........................................   ........................   ................................................   Included as Subunit 17d:        Designated as    Subunit 17d:
                                                                                                                                                                               1,158 (469).                    1,158 (469).
                                               18. Sweetwater River Basin ..                   San Diego ......           Entire Unit excluded under                         Included as Unit 18: 4,783      Designated as    Unit 18: 4,624
                                                                                                                             4(b)(2) for economic rea-                         (1,936).                        (1,871).
                                                                                                                             sons.
                                               18a. ........................................   ........................   ................................................   Included as Subunit 18a:        Designated as Subunit 18a:
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                                                                                                                                                                               4,156 (1,682).                  4,156 (1,682).
                                               18c. ........................................   ........................   ................................................   Included as Subunit 18c: 627    Designated as Subunit 18c:
                                                                                                                                                                               (254).                          470 (189).
                                               19. Cottonwood Creek Basin                      San Diego ......           Entire Unit excluded under                         Included as Unit 19: 14,375     Designated as Unit 19:
                                                                                                                             4(b)(2) for economic rea-                         (5,817).                        14,344 (5,804).
                                                                                                                             sons.
                                               19a. ........................................   ........................   ................................................   Included as Subunit 19a:        Designated as Subunit 19a:
                                                                                                                                                                               5,847 (2,366).                  5,816 (2,353).



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                                               7250                 Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                                TABLE 1—CHANGES BETWEEN THE APRIL 13, 2005, ARROYO TOAD REVISED CRITICAL HABITAT DESIGNATION; THE OC-
                                                   TOBER 13, 2009 AND THE JUNE 29, 2010, PROPOSED REVISED DESIGNATION; AND THIS REVISED FINAL DESIGNA-
                                                   TION. ACREAGE VALUES ARE APPROXIMATE AND MAY NOT TOTAL DUE TO ROUNDING—Continued

                                                                                                                                                                              2009 and 2010 Proposed re-              2010 Final revised critical
                                               Critical habitat unit in this final                                          2005 Designation of revised                          visions to the critical
                                                                                                     County                                                                                                           habitat designation and ac
                                                              rule                                                           critical habitat and ac (ha)                      Habitat designation and ac                        (ha)
                                                                                                                                                                                          (ha)

                                               19b. ........................................   ........................    ................................................   Included as Subunit 19b:               Designated as Subunit 19b:
                                                                                                                                                                                5,129 (2,076).                         5,129 (2,076).
                                               19c. ........................................   ........................    ................................................   Included as Subunit 19c:               Designated as Subunit 19c:
                                                                                                                                                                                1,511 (611).                           1,511 (611).
                                               19d. ........................................   ........................    ................................................   Included as Subunit 19d: 938           Designated as Subunit 19d:
                                                                                                                                                                                (380).                                 938 (380).
                                               19e. ........................................   ........................    ................................................   Included as Subunit 19e: 950           Designated as Subunit 19e:
                                                                                                                                                                                (384).                                 950 (384).
                                               20. Upper Santa Ana River                       San                        Designated as Unit 20: 1,119                        Included as Unit 20: 1,775             Designated as Unit 20: 1,775
                                                 Basin/Cajon Wash.                               Bernardino.                 (453).                                             (718).                                 (718).
                                               21. Little Rock Creek Basin ...                 Los Angeles ...            Designated as Unit 21: 734                          Included as Unit 21: 612               Designated as Unit 21: 612
                                                                                                                             (297).                                             (248).                                 (248).
                                               22. Upper Mojave River Basin                    San                        Entire Unit excluded under                          Included as Unit 22: 5,919             Designated as Unit 22: 5,602
                                                                                                 Bernardino.                 4(b)(2) for economic rea-                          (2,395).                               (2,267).
                                                                                                                             sons.
                                               22a. ........................................   ........................   ................................................    Included as Subunit 22a:               Designated as Subunit 22a:
                                                                                                                                                                                5,684 (2,300).                         5,602 (2,267).
                                               22c. ........................................   ........................    ................................................   Included as Subunit 22c: 235           Entire Subunit removed—
                                                                                                                                                                                (95).                                  does not meet the definition
                                                                                                                                                                                                                       of critical habitat.
                                               23. Whitewater River Basin ...                  Riverside ........         Designated as Unit 23: 333                          Included as Unit 23: 1,355             Entire Unit removed—does
                                                                                                                            (135).                                              (548).                                 not meet the definition of
                                                                                                                                                                                                                       critical habitat.

                                                     Total * ..............................    ........................   11,695 (4,733) .......................              112,765 (45,634) ...................   98,366 (39,807)
                                                  * Values in table may not sum due to rounding.


                                               Summary of Changes From the 2009                                           to exclude approximately 330 ac (134                                   toads because water from Irvine Lake
                                               Proposed Rule To Revise Critical                                           ha) of private land in Unit 6 under                                    frequently backs up into this area and
                                               Habitat                                                                    section 4(b)(2) of the Act (see Exclusions                             creates conditions favorable for arroyo
                                                 The most significant changes between                                     Under Section 4(b)(2) of the Act section                               toad predators, and therefore it does not
                                               the October 2009 proposed revision and                                     below).                                                                contain the physical or biological
                                               this final revised rule are outlined in                                      (2) In the proposed revised critical                                 features essential to the conservation of
                                               Table 1 above and include:                                                 habitat rule (74 FR 52612), we                                         the arroyo toad. Additionally, we
                                                 (1) In the document making available                                     erroneously identified some of the                                     removed other areas that do not contain
                                               the draft economic analysis of revised                                     upland habitat areas bordering the river                               the physical or biological features such
                                               critical habitat designation for the                                       corridors of the Santa Clara River and                                 as developed areas and roads. Therefore,
                                               Arroyo toad (DEA) (75 FR 37358; June                                       Castaic Creek as critical habitat in                                   we removed approximately 185 ac (75
                                               29, 2010), we stated we were                                               Subunit 6b. Upon closer examination,                                   ha) from Unit 8.
                                               considering exclusion of the entirety of                                   we have found that little of these lands                                  (4) In the 2009 proposed revised rule,
                                               Subunit 6b from critical habitat based                                     remain as native habitats that would be                                we stated we were considering lands
                                               on the many conservation measures                                          useable as foraging areas by arroyo toads                              owned by or under the jurisdiction of
                                               included in the Natural River                                              because these lands are either                                         the permittees of the Orange County
                                               Management Plan that protect the                                           developed, used for intensive                                          Central-Coastal Subregional NCCP/HCP
                                               arroyo toad and its habitat on Newhall                                     agriculture, or inaccessible to arroyo                                 (Orange County Central-Coastal NCCP/
                                               Ranch lands in Subunit 6b, the                                             toads due to busy roads or steep slopes.                               HCP) and 670 ac (271 ha) of land in the
                                               conservation easement lands that have                                      We now find that these areas do not                                    associated North Ranch Policy Plan
                                               already been conveyed to California                                        contain the physical or biological                                     Area (NRPPA) for exclusion under
                                               Department of Fish and Game (CDFG)                                         features that are essential to the                                     section 4(b)(2) of the Act. We have now
                                               and are planned in the future in this                                      conservation of the arroyo toad, and                                   made a final determination that the
                                               subunit, and the valuable conservation                                     therefore we have removed                                              benefits of exclusion outweigh the
                                               partnership we have developed over the                                     approximately 662 ac (268 ha) from                                     benefits of inclusion of these lands and
                                               years with Newhall Ranch. We have                                          Subunit 6b.                                                            the exclusion will not result in
                                               now made a final determination that the                                      (3) In the 2009 proposed revised rule,                               extinction of the species. Therefore, the
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                                               benefits of exclusion outweigh the                                         we included lands that encompass                                       Secretary is exercising his discretion to
                                               benefits of inclusion for the lands                                        Santiago Creek from just below the                                     exclude a total of approximately 1,259
                                               covered by the conservation easements                                      confluence with Black Star Creek                                       ac (508 ha) of land covered by the
                                               already conveyed to the CDFG and                                           downstream to Irvine Lake in Unit 8.                                   Orange County Central-Coastal NCCP/
                                               exclusion of these lands will not result                                   Following public comment, we                                           HCP plan area (including those lands
                                               in extinction of the species. Therefore,                                   reevaluated this area and determined                                   associated with the NRPPA) in Unit 8 in
                                               the Secretary is exercising his discretion                                 that this area is unsuitable for arroyo                                this final designation. For a complete


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                                               discussion of the benefits of inclusion                 managed consistent with the Western                   tribal lands (i.e., tribal trust lands and
                                               and exclusion see Exclusions Under                      Riverside County MSHCP in Units 9 and                 those off-reservation lands (fee-owned)
                                               Section 4(b)(2) of the Act section below.               13 in this final designation. For a                   within the Sycuan Band of the
                                                 (5) In the 2009 proposed revised rule,                complete discussion of the benefits of                Kumeyaay Nation that are currently in
                                               we stated we were considering lands                     inclusion and exclusion, see Exclusions               the process of being transferred to trust)
                                               owned by or under the jurisdiction of                   Under Section 4(b)(2) of the Act section              and the exclusion will not result in
                                               the permittees of the Southern Orange                   below.                                                extinction of the species. We have not
                                               County Natural Community                                  (9) In the 2009 proposed revised rule,              concluded that the benefits of exclusion
                                               Conservation Plan (NCCP)/Master                         we included approximately 57 ac (23                   outweigh the benefits of inclusion for
                                               Streambed Alteration Agreement/HCP                      ha) of lands that fall within the                     the remaining 1,046 ac (423 ha) of off-
                                               (Southern Orange HCP), now known as                     Meadowwood project site (within Unit                  reservation, fee-owned lands, and these
                                               the Orange County Southern Subregion                    14) north of State Route 76 along the                 lands are included in this final revised
                                               HCP, for exclusion under section 4(b)(2)                San Luis Rey River in San Diego                       critical habitat designation (included in
                                               of the Act. We have now made a final                    County. Following public comment, we                  Table 2 within the private land
                                               determination that the benefits of                      reevaluated this area and determined                  ownership totals). Therefore, the
                                               exclusion outweigh the benefits of                      that it does not contain suitable                     Secretary is exercising his discretion
                                               inclusion of lands conserved and                        breeding or aestivation habitat and                   under section 4(b)(2) of the Act to
                                               managed by Orange County Southern                       therefore does not contain the physical               exclude a total of 3,000 ac (1,214 ha) as
                                               Subregion HCP permittees and the                        or biological features essential to the               follows: 2,733 ac (1,103 ha) of tribal
                                               exclusion will not result in extinction of              conservation of the arroyo toad. Thus,                lands in Unit 14; 23 ac (9 ha) in Unit
                                               the species. Therefore, the Secretary is                we removed these areas from critical                  16; 92 ac (37 ha) in Unit 17; and 152 ac
                                               exercising his discretion to exclude                    habitat. We did not remove all lands                  (62 ha) in Unit 18 based on our
                                               approximately 2,179 ac (882 ha) of lands                north of State Route 76, as arroyo toads              government-to-government relationship
                                               conserved and managed consistent with                   may access these other areas via Horse                with the tribes, and impacts to current
                                               the Orange County Southern Subregion                    Ranch Creek, which flows underneath                   and future partnerships with the
                                               HCP in Units 10 and 11 in this final                    State Route 76 and connects with the                  affected tribes and other tribes we
                                               designation. For a complete discussion                  San Luis Rey River.                                   coordinate with on threatened and
                                               of the benefits of inclusion and                          (10) In the 2009 proposed revised                   endangered species issues (see
                                               exclusion, see Exclusions Under Section                 rule, we erroneously identified some                  Exclusions Under Section 4(b)(2) of the
                                               4(b)(2) of the Act section below.                       areas as critical habitat in Subunit 16a.             Act—Tribal Lands section below).
                                                 (6) In the 2009 proposed revised rule,                Upon closer examination, we                              (12) In the 2009 proposed revised
                                               we erroneously identified some areas as                 determined that approximately 101 ac                  rule, we stated we were considering
                                               critical habitat in Subunit 10b. Upon                   (40 ha) do not contain the physical or                lands owned by or under the
                                               closer examination, we determined that                  biological features essential to the                  jurisdiction of the permittees of the San
                                               approximately 31 ac (13 ha) are                         conservation of the arroyo toad, as these             Diego Multiple Species Conservation
                                               developed (such as highways or                          lands are developed and, in one area,                 Program (MSCP) for exclusion under
                                               buildings) and do not contain the                       the mapping did not accurately follow                 section 4(b)(2) of the Act. After
                                               physical or biological features essential               the boundaries of the essential features              considering the relevant impacts, the
                                               to the conservation of the arroyo toad.                 and does not contain suitable habitat.                Secretary is declining to exercise his
                                               Therefore, we removed these areas from                  Therefore, we removed these areas from                discretion to exclude these lands.
                                               Subunit 10b.                                            Subunit 16a.                                          Therefore, we included approximately
                                                 (7) In the 2009 proposed revised rule,                  (11) In the proposed revised rule, we               9,339 ac (3,779 ha) of land owned by or
                                               we inadvertently included                               stated we were considering excluding                  under the jurisdiction of the permittees
                                               approximately 20 ac (8 ha) of land                      4,046 ac (1,636 ha) of arroyo toad                    of the San Diego MSCP in Units 16, 17,
                                               within Marine Corps Base Camp                           habitat in Units 14, 16, 17, and 18 under             18 and 19 in this final designation.
                                               Pendleton in Subunit 11a. We have now                   section 4(b)(2) of the Act. These areas                  (13) In the 2009 proposed revised
                                               exempted these areas from Subunit 11a.                  overlap with tribal lands that are owned              rule, we erroneously identified some
                                               For a complete discussion of                            or managed by the following tribes: The               areas as critical habitat in Subunit 18c.
                                               exemptions under section 4(a)(3)(B) of                                          ˜
                                                                                                       Rincon Band of Luiseno Mission                        Upon closer examination, we
                                               the Act, see Exemptions section below.                  Indians of the Rincon Reservation                     determined that a road exists on
                                                 (8) In the 2009 proposed revised rule,                                          ˜
                                                                                                       (Rincon Band of Luiseno Mission                       approximately 6 ac (2 ha), and we have
                                               we stated we were considering lands                     Indians); the Pala Band of Luiseno˜                   determined that these lands do not
                                               owned by or under the jurisdiction of                   Mission Indians of the Pala Reservation               contain the physical or biological
                                               the permittees of the Western Riverside                                      ˜
                                                                                                       (Pala Band of Luiseno Mission Indians);               features essential to the conservation of
                                               County Multiple Species Habitat                         Sycuan Band of the Kumeyaay Nation;                   the arroyo toad. Therefore, we removed
                                               Conservation Plan (Western Riverside                    the Mesa Grande Band of Diegueno                      these areas from Subunit 18c.
                                               County MSHCP) for exclusion under                       Mission Indians of the Mesa Grande                       (14) In the document that made
                                               section 4(b)(2) of the Act. We have now                 Reservation (Mesa Grande Band of                      available the draft economic analysis of
                                               made a final determination that the                     Diegueno Mission Indians); and the                    revised critical habitat designation for
                                               benefits of exclusion outweigh the                      Barona Group of Capitan Grande Band                   the Arroyo Toad (DEA) published in the
                                               benefits of inclusion of those lands                    of Mission Indians and the Viejas (Baron              Federal Register on June 29, 2010 (75
                                               owned by or under the jurisdiction of                   Long) Group of Capitan Grande Band of                 FR 37358), we stated we were
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                                               Western Riverside County MSHCP                          Mission Indians, which jointly manage                 considering exclusion of the Department
                                               permittees that are conserved and                       the Capitan Grande Band of Diegueno                   of Defense (DOD) Remote Training Site
                                               managed, and that the exclusion will                    Mission Indians Reservation (Capitan                  Warner Springs and Camp Morena from
                                               not result in extinction of the species.                Grande Reservation). We have now                      critical habitat designation for reasons
                                               Therefore, the Secretary is exercising his              made a final determination that the                   of national security. We have now made
                                               discretion to exclude approximately 289                 benefits of exclusion outweigh the                    a final determination that the benefits of
                                               ac (118 ha) of lands conserved and                      benefits of inclusion of some of these                exclusion outweigh the benefits of


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                                               7252             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               inclusion for these lands and exclusion                 Following examination of data used to                    (1) The specific areas within the
                                               of these lands will not result in                       map Unit 23 in the proposed rule and                  geographical area occupied by a species,
                                               extinction of the species. Therefore, the               discussions with species experts                      at the time it is listed in accordance
                                               Secretary is exercising his discretion to               regarding identification records, we                  with the Act, on which are found those
                                               exclude approximately 4,640 ac (1,878                   determined that these records are not                 physical or biological features
                                               ha) of Bureau of Land Management                        arroyo toads and do not support a                        (a) Essential to the conservation of the
                                               (BLM) and U.S. Forest Service (Forest                   determination that this area meets the                species and
                                               Service) lands leased to the DOD in Unit                definition of critical habitat. Therefore,               (b) Which may require special
                                               15 and Unit 19 for reasons of national                  Unit 23 is not included in this final                 management considerations or
                                               security under section 4(b)(2) of the Act               revised critical habitat rule.                        protection; and
                                               (see Exclusions Under Section 4(b)(2) of                   (18) A number of comments we                          (2) Specific areas outside the
                                               the Act—Impacts to National Security                    received suggested editorial changes                  geographical area occupied by a species
                                               section below).                                         and technical corrections to sections of              at the time it is listed, upon a
                                                  (15) Based on information submitted                  the rule pertaining to the Background                 determination that such areas are
                                               by Summit Valley Ranch during the                       and ‘‘Criteria Used To Identify Critical              essential for the conservation of the
                                               initial public comment period from                      Habitat’’ sections of our proposed                    species.
                                               October 13, 2009, to December 14, 2009,                 revised rule. These changes were                         Conservation, as defined under
                                               we removed approximately 82 ac (33 ha)                  recommended to improve clarity,                       section 3 of the Act, means the use of
                                               of private land from Subunit 22a. The                   include additional information, and                   all methods and procedures that are
                                               lands in question are located north of                  correct minor errors. They have been                  necessary to bring any endangered
                                               State Road 138 on Summit Valley                         incorporated into this final revised rule             species or threatened species to the
                                               Ranch, San Bernardino County. We                        where appropriate.                                    point at which the measures provided
                                               included this area in the proposed                         (19) In the document making available              under the Act are no longer necessary.
                                               revised critical habitat designation                    the draft economic analysis (75 FR                    Such methods and procedures include,
                                               because we believed it contained                        37358; June 29, 2010), we added                       but are not limited to, all activities
                                               suitable upland habitat for arroyo toads;               approximately 1,068 ac (432 ha) to                    associated with scientific resources
                                               however, it has come to our attention                   proposed Subunit 11b, approximately                   management, such as research; census;
                                               that: (1) Surveys have never detected                                                                         law enforcement; habitat acquisition
                                                                                                       951 ac (385 ha) to proposed Unit 15,
                                               arroyo toads in the area, (2) the area                                                                        and maintenance; propagation; live
                                                                                                       approximately 1,831 ac (741 ha) to
                                               lacks the PCEs for the arroyo toad, and                                                                       trapping and transplantation; and in the
                                                                                                       proposed Subunit 16a, and
                                               (3) State Route 138 serves as a barrier for                                                                   extraordinary case where population
                                                                                                       approximately 96 ac (39 ha) to proposed
                                               arroyo toads to disperse into the area.                                                                       pressures within a given ecosystem
                                                                                                       Subunit 16d. For a complete discussion
                                               Consequently, we determined that the                                                                          cannot otherwise be relieved, may
                                                                                                       of these revisions, see Changes to
                                               area north of State Route 138 does not                                                                        include regulated taking.
                                                                                                       Proposed Revised Critical Habitat in                     Critical habitat receives protection
                                               contain the physical or biological                      the document making available the draft
                                               features essential to the conservation of                                                                     under section 7 of the Act through the
                                                                                                       economic analysis (75 FR 37358; June                  prohibition against Federal agencies
                                               arroyo toads and, therefore, does not                   29, 2010).
                                               meet the definition of critical habitat for                                                                   carrying out, funding, or authorizing
                                                                                                          (20) To prepare final critical habitat             activities that are likely to result in the
                                               the arroyo toad.                                        maps, we overlay maps of those lands
                                                  (16) We removed Subunit 22c                                                                                destruction or adverse modification of
                                                                                                       we are excluding from this critical                   critical habitat. Section 7(a)(2) of the Act
                                               (approximately 234 ac (95 ha)) from the                 habitat designation on polygons that
                                               final revised critical habitat designation.                                                                   requires consultation on Federal actions
                                                                                                       were used to delineate the areas                      that may affect critical habitat. The
                                               Subunit 22c is within the geographical                  proposed as critical habitat. This
                                               area occupied by the species at the time                                                                      designation of critical habitat does not
                                                                                                       process can leave small fragments                     affect land ownership or establish a
                                               of listing; however, this subunit was                   (generally less than an acre and not
                                               erroneously included in the 2009                                                                              refuge, wilderness, reserve, preserve, or
                                                                                                       contiguous with designated critical                   other conservation area. Such
                                               revised proposed rule (74 FR 52612;                     habitat) of a proposed critical habitat
                                               October 13, 2009). Although we were                                                                           designation does not allow the
                                                                                                       unit or subunit that are not included in              government or public to access private
                                               not aware of this issue when we
                                                                                                       the excluded acreage but are instead                  lands. Such designation does not
                                               published the proposed rule, the
                                                                                                       removed due to discrepancies in the                   require implementation of restoration,
                                               existence of Cedar Springs Dam
                                                                                                       mapping process (such as differences in               recovery, or enhancement measures by
                                               upstream of this subunit has altered the
                                                                                                       GIS layers that are mapped at different               private landowners. Where a landowner
                                               hydrology of the 1-mile (1.6 km) reach
                                                                                                       scales). These fragments in Unit 8,                   seeks or requests Federal agency
                                               of the upper West Fork of the Mojave
                                                                                                       Subunit 10a, and Unit 14 were not                     funding or authorization of an activity
                                               River to the upper end of Silverwood
                                                                                                       included in the final revised critical                that may affect a listed species or
                                               Lake to such an extent that it does not
                                                                                                       habitat designation. As a result, the sum             critical habitat, the consultation
                                               contain the features essential to the
                                               conservation of the species and,                        of the areas designated and excluded is               requirements of section 7(a)(2) would
                                               therefore, does not meet the definition                 slightly reduced in this final revised                apply, but even in the event of a
                                               of critical habitat for the arroyo toad.                critical habitat designation compared to              destruction or adverse modification
                                                  (17) We removed lands within the                     the size of the total proposed                        finding, the Federal action agency’s and
                                               jurisdiction of the Coachella Valley                    designation due to removal of these                   the applicant’s obligation under section
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                                               Multiple Species Conservation Plan                      small artifacts or fragments created by               7(a)(2) of the Act is not to restore or
                                               (Coachella Valley MSHCP; Unit 23                        the mapping discrepancies.                            recover the species, but to implement
                                               (approximately 1,355 ac (548 ha)) from                  Critical Habitat                                      reasonable and prudent alternatives to
                                               the final revised critical habitat                                                                            avoid destruction or adverse
                                               designation. This unit was erroneously                  Background                                            modification of critical habitat.
                                               included in the proposed revised rule                     Critical habitat is defined in section 3               For inclusion in a critical habitat
                                               (74 FR 52612; October 13, 2009).                        of the Act as:                                        designation, habitat within the


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                                               geographical area occupied by the                       the extent consistent with the Act and                determine are necessary for the recovery
                                               species at the time it was listed must                  with the use of the best scientific data              of the species. For these reasons, a
                                               contain the physical or biological                      available, to use primary and original                critical habitat designation does not
                                               features that are essential to the                      sources of information as the basis for               signal that habitat outside the
                                               conservation of the species and which                   recommendations to designate critical                 designated critical habitat area is
                                               may require special management                          habitat.                                              unimportant or may not be required for
                                               considerations or protection. Critical                     When we are determining which areas                recovery of the species.
                                               habitat designations identify, to the                   should be designated as critical habitat,                Areas that are important to the
                                               extent known using the best scientific                  our primary source of information is                  conservation of the arroyo toad, both
                                               and commercial data available, those                    generally the information developed                   inside and outside the critical habitat
                                               physical or biological features that are                during the listing process for the species            designation, will continue to be subject
                                               essential to the conservation of the                    and any previous designations of critical             to: (1) Conservation actions
                                               species (such as space, food, cover, and                habitat. Additional information sources               implemented under section 7(a)(1) of
                                               protected habitat), focusing on the                     may include the recovery plan for the                 the Act, (2) regulatory protections
                                               principal biological or physical                        species, 5-year reviews for the species,              afforded by the requirement in section
                                               constituent elements (primary                           articles in peer-reviewed journals,                   7(a)(2) of the Act for Federal agencies to
                                               constituent elements) within an area                    conservation plans developed by States                insure their actions are not likely to
                                               that are essential to the conservation of               and counties, scientific status surveys               jeopardize the continued existence of
                                               the species (such as roost sites, nesting               and studies, biological assessments, or               any endangered or threatened species,
                                               grounds, seasonal wetlands, water                       other unpublished materials and expert                and (3) the prohibitions of section 9 of
                                               quality, tide, soil type). Primary                      opinion or personal knowledge.                        the Act. Federally funded or permitted
                                               constituent elements are the elements of                   Habitat is dynamic, and species may                projects affecting listed species outside
                                               physical or biological features that,                   move from one area to another over                    their designated critical habitat areas
                                               when laid out in the appropriate                        time. Climate change will be a particular             may still result in jeopardy findings in
                                               quantity and spatial arrangement to                     challenge for biodiversity conservation               some cases. These protections and
                                               provide for a species’ life-history                     because the interaction of additional                 conservation tools will continue to
                                               processes, are essential to the                         stressors associated with climate change              contribute to recovery of this species.
                                               conservation of the species.                            and current stressors may push species                Similarly, critical habitat designations
                                                  Under the Act, we can designate                      beyond their ability to survive (Lovejoy              made on the basis of the best available
                                               critical habitat in areas outside the                   2005, pp. 325–326). The synergistic                   information at the time of designation
                                               geographical area occupied by the                       implications of climate change and                    will not control the direction and
                                               species at the time it is listed, upon a                habitat fragmentation are the most                    substance of future recovery plans,
                                               determination that such areas are                       threatening facet of climate change for               habitat conservation plans (HCPs), or
                                               essential for the conservation of the                   biodiversity (Hannah et al. 2005, p.4).               other species conservation planning
                                               species. We designate critical habitat in               Current climate change predictions for                efforts if new information available at
                                               areas outside the geographical area                     terrestrial areas in the Northern                     the time of these planning efforts calls
                                               occupied by a species only when a                       Hemisphere indicate warmer air                        for a different outcome.
                                               designation limited to its range would                  temperatures, more intense
                                               be inadequate to ensure the                             precipitation events, and increased                   Physical and Biological Features
                                               conservation of the species. When the                   summer continental drying (Field et al.                 In accordance with section 3(5)(A)(i)
                                               best available scientific data do not                   1999, pp. 1–3; Hayhoe et al. 2004, p.                 of the Act and regulations at 50 CFR
                                               demonstrate that the conservation needs                 12422; Cayan et al. 2005, p. 6;                       424.12 (b), in determining which areas
                                               of the species require such additional                  Intergovernmental Panel on Climate                    within the geographical area occupied at
                                               areas, we will not designate critical                   Change 2007, p. 11; Cayan et al. 2009,                the time of listing to designate as
                                               habitat in areas outside the geographical               p. xi). However, predictions of climatic              revised critical habitat, we consider the
                                               area occupied by the species. An area                   conditions for smaller sub-regions, such              physical and biological features that are
                                               currently occupied by the species but                   as California, remain uncertain. It is                essential to the conservation of the
                                               that was not occupied at the time of                    unknown at this time if climate change                species that may require special
                                               listing may, however, be essential for                  in California will result in a warmer                 management considerations or
                                               the conservation of the species and may                 trend with localized drying, higher                   protection. These include, but are not
                                               be included in the critical habitat                     precipitation events, or other                        limited to:
                                               designation.                                            conditions. Thus, the information                       (1) Space for individual and
                                                  Section 4 of the Act requires that we                currently available on the effects of                 population growth, and for normal
                                               designate critical habitat on the basis of              global climate change and increasing                  behavior;
                                               the best scientific and commercial data                 temperatures does not make sufficiently                 (2) Food, water, air, light, minerals, or
                                               available. Further, our Policy on                       precise estimates of the location and                 other nutritional or physiological
                                               Information Standards Under the                         magnitude of the effects. Nor are we                  requirements;
                                               Endangered Species Act (published in                    currently aware of any climate change                   (3) Cover or shelter;
                                               the Federal Register on July 1, 1994 (59                information specific to the habitat of the              (4) Sites for breeding, reproduction,
                                               FR 34271)), the Information Quality Act                 arroyo toad that would indicate what                  and rearing (or development) of
                                               (section 515 of the Treasury and General                areas may become important to the                     offspring; and
                                               Government Appropriations Act for                       species in the future. Therefore, we are                (5) Habitats that are protected from
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                                               Fiscal Year 2001 (Pub. L. 106–554; H.R.                 unable to determine what additional                   disturbance or are representative of the
                                               5658)), and our associated Information                  areas, if any, may be appropriate to                  historical, geographical, and ecological
                                               Quality Guidelines, provide criteria,                   include in the revised critical habitat for           distributions of a species.
                                               establish procedures, and provide                       this species. Additionally, we recognize                We derive the specific physical and
                                               guidance to ensure that our decisions                   that critical habitat designated at a                 biological features required for
                                               are based on the best scientific data                   particular point in time may not include              conservation of the arroyo toad from
                                               available. They require our biologists, to              all of the habitat areas that we may later            studies of this species’ habitat, ecology,


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                                               and life history, as described below and                or are sparsely to moderately vegetated.              more patchily distributed. Streams
                                               in proposed revisions to critical habitat               Upland habitats used by arroyo toads                  where arroyo toads breed can have
                                               published in the Federal Register on                    during both the breeding and non-                     either intermittent or perennial
                                               October 13, 2009 (74 FR 52612). We                      breeding seasons include alluvial scrub,              streamflow and typically experience
                                               have determined that the arroyo toad                    coastal sage scrub, chaparral, grassland,             periodic flooding that scours vegetation
                                               requires the following physical and                     and oak woodland.                                     and replenishes fine sediments. Such
                                               biological features:                                                                                          habitats rarely have closed canopies
                                                                                                       Food, Water, Air, Light, Minerals, or
                                                                                                                                                             over the lower banks of the stream
                                               Space for Individual and Population                     Other Nutritional or Physiological
                                                                                                                                                             channel due to periodic flood events.
                                               Growth, and for Normal Behavior                         Requirements
                                                                                                                                                             Heavily shaded pools are generally
                                                  The arroyo toad is found along                          Arroyo toad tadpoles eat microscopic               unsuitable for larval and juvenile arroyo
                                               medium-to-large streams in coastal and                  algae, bacteria, and protozoans                       toads because of lower water and soil
                                               desert drainages in central and southern                consumed from the spaces among                        temperatures and poor algal mat
                                               California, and Baja California, Mexico.                pebbles, gravel, and sand, or abraded                 development.
                                               It occupies aquatic, riparian, and upland               from stones (Sweet 1992, p. 82).                         Because the suitability of breeding
                                               habitats in a number of the remaining                   Juveniles and adults eat insects,                     pools may vary from year to year due to
                                               suitable drainages within its range.                    although ants are preferred. When                     the dynamics of southern California
                                               Suitable habitat for the arroyo toad is                 foraging, arroyo toads are often found                riparian systems and flood regimes,
                                               created and maintained by the                           around the drip lines of oak trees. These             adult arroyo toads may move up or
                                               fluctuating hydrological, geological, and               areas often lack vegetation, yet have                 down stream in search of suitable
                                               ecological processes that naturally occur               levels of prey that will support arroyo               breeding pools, or not breed in certain
                                               in riparian ecosystems and adjacent                     toads. When active at night, toads often              years (Campbell et al. 1996, p. 14). Pools
                                               uplands (Campbell et al. 1996, pp. 13–                  are observed near ant trails feeding on               less than 6 in. (15 cm) deep with clear
                                               15; Sweet 1992, 1993 in Service 1999, p.                ants, beetles, and other prey.                        water, flow rates less than 0.2 ft per
                                               39). Periodic flooding that modifies                                                                          second (5 cm per second), and bottoms
                                                                                                       Cover or Shelter
                                               stream channels, redistributes channel                                                                        composed of sand or well-sorted fine
                                               sediments, and alters pool location and                    During the day and other periods of                gravel are favored by adults for breeding
                                               form, coupled with upper terrace                        inactivity, arroyo toads seek shelter by              and egg deposition (Sweet 1992, pp. 29–
                                               stabilization by vegetation, is required                burrowing into sand. Thus, areas of                   37). Breeding pools, especially those
                                               to keep a stream segment suitable for all               sandy or friable (readily crumbled) soils             formed along intermittent streams, must
                                               life stages of the arroyo toad (Campbell                are necessary, but these soils can be                 persist a minimum of 2 months for the
                                               et al. 1996, p. 13; Sweet 1992, 1993 in                 interspersed with gravel or cobble                    completion of larval development
                                               Service 1999, p. 39). This natural                      deposits. Additionally, arroyo toads                  (Campbell et al. 1996, p. 6). When warm
                                               flooding regime helps maintain areas of                 may seek temporary shelter under rocks                rainy conditions occur in January,
                                               open, sparsely vegetated, sandy stream                  or debris and have been found in                      February, and March, arroyo toads
                                               channels and terraces.                                  mammal burrows on occasion. Upland                    become active and begin to forage on
                                                  The substrate in habitats preferred by               sites with compact soils can also be                  stream terraces and in channel margins.
                                               arroyo toads consists primarily of sand,                used for foraging and dispersal (Holland              Breeding usually begins in late March at
                                               fine gravel, or pliable soil, with varying              2000, in litt. p. 2).                                 lower elevations but male calling peaks
                                               amounts of large gravel, cobble, and                                                                          in early to mid-April and extends
                                                                                                       Sites for Breeding, Reproduction, and
                                               boulders. Areas that are damp and have                                                                        through late May, sometimes even into
                                                                                                       Rearing or Development of Offspring
                                               less than 10 percent vegetation cover                                                                         late June (Sweet 1992, p. 50). Breeding
                                               provide the best conditions for juvenile                   The arroyo toad has specialized                    may occur on several dates at a single
                                               survival and rapid growth of the arroyo                 breeding habitat requirements. Arroyo                 site, and eggs may be deposited over a
                                               toad (Campbell et al. 1996, p. 12; Sweet                toads are unusual in that females                     period of 7 to 8 weeks (Campbell et al.
                                               1992 in Service 1999, pp. 32–34).                       deposit their eggs at the male’s calling              1996, p. 6; Griffin and Case 2001, p.
                                               Arroyo toads breed in the quiet margins                 site, rather than the behavior common                 634). Although egg strings are laid in
                                               of open streams and avoid sites with                    in other toad species where the female                very slow-moving water, larvae
                                               deep or swift water, tree canopy cover,                 transports the male to a deposition site              (tadpoles) can be found in water
                                               or steeply incised banks. Larvae occupy                 of her choosing (Sweet 1992, p. 57).                  velocities of up to 1.0 to 1.3 ft per
                                               shallow areas of open streambeds on                     Because male toads stand on the                       second (30 to 40 cm per second) (Sweet
                                               substrates ranging from silt to cobble,                 substrate to call and their throats must              1992, p. 29). Larvae usually hatch in 4
                                               with preferences for sand or gravel.                    be above water, eggs are laid in very                 to 6 days at water temperatures of 54 to
                                               Newly metamorphosed arroyo toads and                    shallow water. Female arroyo toads lay                59 degrees Fahrenheit (12 to 16 degrees
                                               juveniles remain on sparsely vegetated                  their eggs in water less than 4 in. (10               Celsius) (Sweet 1992, p. 71). Tadpoles
                                               sand and gravel bars bordering the natal                cm) (Sweet 1992, p. 37) but not greater               disperse from the pool margin into the
                                               pool for 3 to 5 weeks (Sweet 1992, p.                   than 6 in. (15 cm) deep over substrates               surrounding shallow water, where they
                                               52).                                                    of sand, gravel, or cobble in open sites              spend an average of 10 weeks (Sweet
                                                  Arroyo toads must be able to move                    such as overflow pools, old flood                     1992, p. 50). After metamorphosis, the
                                               between the stream and upland foraging                  channels, and shallow pools along                     juvenile arroyo toads remain on the
                                               sites, as well as up and down the stream                streams. These shallow pools are                      bordering gravel bars until the pool
                                               corridor. Juveniles and adult arroyo                    associated with open sand and gravel                  dries out (usually from 8 to 12 weeks
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                                               toads require and spend much of their                   channels along low-gradient (typically                depending on the site and rainfall)
                                               lives in riparian and upland habitats                   less than 6 percent) reaches of medium-               (Sweet 1992, p. 52).
                                               adjacent to breeding locations                          to-large streams (Campbell et al. 1996, p.
                                               (Campbell et al. 1996, p. 12). Riparian                 12; Sweet 1992, p. 28). In at least some   Primary Constituent Elements for the
                                               habitats used for foraging and burrowing                portions of its range, the species also    Arroyo Toad
                                               include sand bars, alluvial terraces, and               breeds in smaller streams and canyons        Under the Act and its implementing
                                               streamside benches that lack vegetation,                where low-gradient breeding sites are      regulations, we are required to identify


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                                               the physical or biological features                     periodically scouring riparian                        hydrology, including construction of
                                               essential to the conservation of the                    vegetation; and (C) Also modifies stream              dams and water diversions that alter
                                               arroyo toad in areas occupied at the                    channels and terraces and redistributes               natural water flow regimes; agriculture
                                               time of listing (including areas currently              sand and sediment, such that breeding                 and urbanization; construction of roads;
                                               occupied that based on biology we                       pools and terrace habitats with scattered             off-highway vehicle use and other
                                               believe were likely occupied at the time                vegetation are maintained.                            recreational activities; mining activities;
                                               of listing), focusing on the features’                     (4) Stream channels and adjacent                   introduced nonnative predators (such as
                                               primary constituent elements. We                        upland habitats that allow for                        bullfrogs and predatory fish); drought;
                                               consider primary constituent elements                   movement to breeding pools, foraging                  periodic fires and fire suppression
                                               to be the elements of physical or                       areas, overwintering sites, upstream and              activities; unseasonal water releases
                                               biological features that, when laid out in              downstream dispersal, and connectivity                from dams; livestock grazing; and light
                                               the appropriate quantity and spatial                    to areas that contain suitable habitat.               and noise pollution from adjacent
                                               arrangement to provide for a species’                      In summary, the need for space for                 developments and campgrounds. These
                                               life-history processes, are essential to                individual and population growth and                  threats may cause habitat alteration,
                                               the conservation of the species.                        normal behavior is met by PCEs 1 and                  degradation, or fragmentation and the
                                                  Based on our current knowledge of                    4; the need for food, water, and                      direct or indirect loss of arroyo toad
                                               the biology, and ecology of the species,                physiological requirements is met by                  eggs, juveniles, or adults.
                                               and the habitat requirements for                        PCE 1; cover and shelter requirements
                                               sustaining the essential life-history                   are met by PCE 2; areas for breeding,                 Criteria Used To Identify Critical
                                               functions of the species, we determined                 reproduction, and rearing of offspring                Habitat
                                               the arroyo toad’s PCEs are:                             are met by PCEs 1, 2, and 3; and habitats                As required by section 4(b) of the Act,
                                                  (1) Rivers or streams with hydrologic                representative of the historical,                     we used the best scientific and
                                               regimes that supply water to provide                    geographical, and ecological                          commercial data available in
                                               space, food, and cover needed to sustain                distributions of a species are met by                 determining those areas that, within the
                                               eggs, tadpoles, metamorphosing                          PCE 4.                                                geographical area occupied by the
                                               juveniles, and adult breeding toads.                                                                          species at the time of listing (see
                                                                                                       Special Management Considerations or
                                               Breeding pools must persist a minimum                                                                         ‘‘Geographic Range’’ section in the 2009
                                                                                                       Protection
                                               of 2 months for the completion of larval                                                                      proposed revised critical habitat rule (74
                                               development. However, due to the                           When designating critical habitat, we              FR 52612)), possess those physical or
                                               dynamic nature of southern California                   assess whether the specific areas within              biological features essential to the
                                               riparian systems and flood regimes, the                 the geographical area occupied at the                 conservation of the arroyo toad and
                                               location of suitable breeding pools may                 time of listing contain the physical or               which may require special management
                                               vary from year to year. Specifically, the               biological features essential to the                  considerations or protection. We also
                                               conditions necessary to allow for                       conservation of the arroyo toad that may              considered the area outside the
                                               successful reproduction of arroyo toads                 require special management                            geographical area occupied by the
                                               are:                                                    considerations or protection.                         species at the time of listing for any
                                                  • Breeding pools that are less than 6                   The area designated as revised critical            areas that are essential for the
                                               in (15 cm) deep;                                        habitat may require some level of                     conservation of the arroyo toad. In
                                                  • Areas of flowing water with current                management or protection to address                   designating critical habitat for the
                                               velocities less than 1.3 ft per second (40              current and future threats to the arroyo              arroyo toad, we reviewed the relevant
                                               cm per second); and                                     toad and maintain the physical and                    information available, including peer-
                                                  • Surface water that lasts for a                     biological features essential to the                  reviewed journal articles, unpublished
                                               minimum of 2 months during the                          conservation of the species. Special                  reports and materials (such as survey
                                               breeding season (a sufficient wet period                management may be required in all                     results and expert opinions), the final
                                               in the spring months to allow arroyo                    units to ensure that aquatic and riparian             listing rule, the 2004 proposed critical
                                               toad larvae to hatch, mature, and                       upland habitats provide abundant                      habitat rule, the arroyo toad recovery
                                               metamorphose).                                          breeding and non-breeding areas, prey                 plan (Service 1999, pp. 1–119), the 5-
                                                  (2) Riparian and adjacent upland                     species, shelter, and connectivity within             year review for the arroyo toad (Service
                                               habitats, particularly low-gradient                     the landscape.                                        2009, pp. 1–51), and regional GIS
                                               (typically less than 6 percent) stream                     A detailed discussion of threats to the            coverages. We analyzed this information
                                               segments and alluvial streamside                        arroyo toad and its habitat can be found              to develop criteria for identifying areas
                                               terraces with sandy or fine gravel                      in the final listing rule (59 FR 64859,               that contain the PCEs in the appropriate
                                               substrates that support the formation of                December 16, 1994); the first critical                quantity and spatial arrangement
                                               shallow pools and sparsely vegetated                    habitat designation (66 FR 9414,                      essential to the conservation of the
                                               sand and gravel bars for breeding and                   February 7, 2001); the previous revised               arroyo toad that may require special
                                               rearing of tadpoles and juveniles; and                  critical habitat designation (70 FR                   management considerations or
                                               adjacent valley bottomlands that                        19562, April 13, 2005); the proposed                  protection, or that are essential for the
                                               include areas of loose soil where toads                 revised critical habitat designation (74              conservation of the arroyo toad. The
                                               can burrow underground, to provide                      FR 52612, October 13, 2009); and the                  process we used is described below.
                                               foraging and living areas for juvenile                  1999 recovery plan (Service 1999, pp.                    (1) To begin our analysis, we first
                                               and adult arroyo toads.                                 1–119). Maintaining the physical and                  examined the California Natural
                                                  (3) A natural flooding regime, or one                biological features essential to the                  Diversity Database (CNDDB) current and
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                                               sufficiently corresponding to natural,                  conservation of the arroyo toad may                   historical records to get an indication of
                                               that: (A) Is characterized by intermittent              require special management                            the habitat where arroyo toads are
                                               or near-perennial flow that contributes                 considerations or protection to reduce                present; the CNDDB is a continually
                                               to the persistence of shallow pools into                effects that may result from the                      refined and updated inventory of
                                               at least mid-summer; (B) Maintains                      following threats, among others: Habitat              location information gathered during
                                               areas of open, sparsely vegetated, sandy                destruction and alteration due to short-              species surveys and observations. We
                                               stream channels and terraces by                         and long-term changes in river                        then examined the arroyo toad recovery


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                                               plan (Service 1999, pp. 1–119), which                     We also evaluated the area outside the              determined that areas up to 82 ft (25 m)
                                               has a recovery strategy focused on                      geographical area occupied by the                     in elevation above the stream channel
                                               providing sufficient breeding and                       species at the time of listing to identify            were most likely to contain the riparian
                                               upland habitat to maintain self-                        any areas that are essential for the                  and upland habitat elements essential to
                                               sustaining populations of arroyo toads                  conservation of the arroyo toad. We                   arroyo toads. Most arroyo toad activity
                                               (defined as populations that require                    looked at areas that may have been                    and movement occurred within these
                                               little or no direct human assistance such               historically occupied by arroyo toads                 areas; therefore, steeper slopes away
                                               as captive breeding or rearing, or                      based on CNDDB records but were no                    from the stream were eliminated.
                                               translocation between sites) throughout                 longer occupied at the time of listing.               However, we truncated the upland
                                               the historical range of the species, and                We considered areas that may have the                 habitat delineation in flat areas at 4,921
                                               on minimizing or eliminating impacts                    physical and biological features                      ft (1,500 m) from the stream channel (a
                                               and threats to arroyo toad populations                  essential for the conservation of the                 distance based on known movement of
                                               (Service 1999, p. 67). The recovery plan                species but have never been occupied.                 arroyo toads, see below) if the 82-ft
                                               states that in-stream and riparian                      Based on our evaluation, we believe that              (25-m) elevation limit had not yet been
                                               habitats that support breeding, as well                 areas currently occupied by arroyo toads              reached at that point. The 82-ft (25-m)
                                               as upland habitats that provide foraging                are sufficient for the recovery of the                elevation limit was reached at distances
                                               and overwintering habitat, need to be                   species. The recovery plan for the                    less than 4,921 ft (1,500 m) from the
                                               managed to maintain and enhance                         arroyo toad also determined that                      mapped stream channel along the
                                               populations throughout the range of the                 occupied areas are sufficient for                     majority of the stream reaches, so the
                                               arroyo toad (Service 1999, p. 68). The                  recovery and did not include any                      distance limit was often not a factor.
                                               recovery plan divides the range of the                  unoccupied areas. Therefore, based on                 These model parameters are based on
                                               arroyo toad into three large recovery                   available scientific information, we                  the best scientific data available and are
                                               units—northern, southern, and desert—                   determined that there are no areas                    the same as those used in the 2004
                                               and we considered the conservation of                   outside the geographical area occupied                proposed critical habitat designation (69
                                               the arroyo toad in each of these as well                by the species at the time of listing that            FR 23254; April 28, 2004), which was
                                               as the species as a whole in our                        are essential for the conservation of the             also included in the review process for
                                               analysis. Using the recovery plan as our                arroyo toad.                                          the 2009 proposed critical habitat
                                               guide, we analyzed areas within the                       (3) To identify and map areas that we               designation (74 FR 52612; October 13,
                                               geographical area occupied by the                       determined meet the definition of                     2009).
                                               arroyo toad at the time of listing to                   critical habitat, we used data on known                  (4) To evaluate our critical habitat
                                               determine which areas contained the                     arroyo toad locations and data on                     model, we assessed its effectiveness at
                                               PCEs laid out in the appropriate                        movement distances by arroyo toads.                   capturing documented toad locations
                                               quantity and spatial arrangement                        The main source for arroyo toad                       from studies that focused specifically on
                                               essential to the conservation of the                    locations was the CNDDB (2008); we                    surveying toads in upland habitats and
                                               species (the physical and biological                    also obtained data on locations that                  studies involving radio telemetry.
                                               features).                                              have not yet been entered into the                    Holland and Sisk (2000, pp. 1–28)
                                                                                                       CNDDB directly from the biologists that               established extensive pitfall trap arrays
                                                  (2) In determining the specific areas                collected them.                                       at discrete distances from two stream
                                               containing the essential physical and                     Areas meeting the definition of                     courses and operated these arrays at
                                               biological features, based on the                       critical habitat for the arroyo toad                  various periods throughout the year.
                                               recovery plan, 5-year review, previous                  include occupied areas on stream                      They had 466 captures of arroyo toads,
                                               critical habitat proposals for the arroyo               reaches containing suitable breeding                  35 (7.5 percent) of which were
                                               toad, scientific literature, and results of             and upland habitat. To determine the                  identified as being in upland areas. The
                                               studies that have been conducted since                  extent of suitable arroyo toad habitat as             low percentage of toads captured in
                                               the species was listed, we made sure                    discussed in the ‘‘Habitat’’ section of the           upland areas may be because the vast
                                               that we proposed critical habitat that                  2009 proposed revised critical habitat                majority of captures (98.7 percent) were
                                               would provide for the conservation of                   rule (74 FR 52612; October 13, 2009),                 during the months from January to
                                               the species. Criteria for critical habitat              we used spatial data on stream gradients              September, when breeding and
                                               units we used to assist our process                     with grades less than 6 percent, aerial               metamorphosis occurs and when toads
                                               included: (1) Representation of locations               photography, surveys of habitat                       would likely be in close proximity to
                                               throughout the current geographical,                    suitability, and site visits. Additionally,           the stream. Nevertheless, toads were
                                               elevational, and ecological distribution                we included higher gradient areas                     captured at distances that ranged from
                                               of the species; (2) maintenance of the                  between breeding habitat because these                49 to 3,855 ft (15 to 1,175 m) from the
                                               appropriate population structure across                 areas are used by toads during the non-               upland-riparian ecotone (boundary)
                                               the species’ range; (3) retention or                    breeding period and allow toads to                    (Holland and Sisk 2000, pp. 1–28). For
                                               provision of the connectivity between                   disperse between breeding areas. To                   the two areas sampled in that study
                                               breeding sites that allows for the                      delineate upland habitat areas, we used               (Cristianitos Creek and the upper Santa
                                               continued existence of essential                        a GIS-based modeling procedure to                     Margarita River, San Diego County), we
                                               metapopulations (a group of                             identify alluvial terraces, valley                    found that our critical habitat
                                               subpopulations in somewhat                              bottomlands, and upland habitats                      boundaries encompassed all of the
                                               geographically isolated patches,                        adjacent to stream reaches occupied by                pitfall trapping stations where arroyo
                                               interconnected through patterns of gene                 the arroyo toad. Lacking spatially                    toads were detected.
srobinson on DSKHWCL6B1PROD with RULES2




                                               flow, extinction, and recolonization                    explicit data on geomorphology, we                       We also assessed studies that
                                               (Soule 1987, p. 7), despite fluctuations                used elevation above the stream channel               involved the tracking of arroyo toads
                                               in the status of subpopulations); and (4)               as an indicator of the extent of alluvial             with radio telemetry equipment. For
                                               presence of upland habitat around each                  and upland foraging habitat. Based on                 example, in a number of studies by
                                               breeding location to allow for survival                 the results of the GIS habitat model that             Ramirez (2002a, p. 10; 2002b, p. 50;
                                               and recruitment to maintain a breeding                  incorporated average movement                         2002c, p. 23; 2003, pp. 72–81), arroyo
                                               population over the long term.                          distances of arroyo toads, we                         toads were tracked from the end of


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                                                                     Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                                                  7257

                                               breeding activity until the                                                     by buildings, pavement, and other                      Therefore, Federal action involving
                                               commencement of aestivation, generally                                          structures, because such lands lack                    these lands would not trigger section 7
                                               May through September. Cumulatively,                                            PCEs for the arroyo toad. We did not                   consultation with respect to critical
                                               these four studies involved tracking 77                                         designate some areas if habitat was                    habitat and the requirement of no
                                               adult arroyo toads in three separate                                            highly degraded and not likely                         adverse modification, unless the
                                               critical habitat units in Orange, San                                           restorable, nor did we designate areas                 specific action may affect adjacent
                                               Bernardino, and Los Angeles Counties.                                           that were highly fragmented or isolated.               critical habitat.
                                               All but one of the numerous burrow                                              Such areas provide little or no long-term
                                               sites chosen by these arroyo toads fell                                                                                                Final Revised Critical Habitat
                                                                                                                               conservation value and do not support
                                               within our proposed revised critical                                                                                                   Designation
                                                                                                                               the physical and biological features
                                               habitat boundaries.                                                             essential to the conservation of the
                                                  (5) To provide legal boundaries for the                                                                                                We are designating approximately
                                                                                                                               arroyo toad. Agricultural lands may                    98,366 ac (39,807 ha) as critical habitat
                                               critical habitat areas, critical habitat
                                                                                                                               have been included if they were within                 for the arroyo toad within 21 units,
                                               boundaries for all drainages were
                                               mapped as contiguous blocks of 98-ft by                                         areas identified as necessary for                      identified as Units 2 through 22. The
                                               98-ft (30-m by 30-m) cells that conform                                         dispersal or connectivity between                      area identified as critical habitat Unit 1
                                               to a Universal Transverse Mercator                                              known occurrences. However, we                         (6,453 ac (2,612 ha)) was exempted in
                                               (UTM) grid. Due to the conversion of                                            avoided known areas of intensive                       its entirety under section 4(a)(3) of the
                                               GIS data from two different geographic                                          agriculture that lacked the PCEs for the               Act and, therefore, was not proposed.
                                               projections (UTM zone 10 and zone 11)                                           arroyo toad. The scale of the maps we                  Table 2 outlines the areas included and
                                               and conversion of the data to acres and                                         prepared under the parameters for                      excluded from this final revised critical
                                               hectares, some rounding adjustments                                             publication within the Code of Federal                 habitat designation by land ownership.
                                               may be reflected in the total acreage of                                        Regulations may not reflect the                        Units designated as critical habitat are
                                               the units.                                                                      exclusion of such developed lands. Any                 discussed in detail below. The areas we
                                                  When determining revisions to                                                such lands inadvertently left inside                   describe below constitute our current
                                               critical habitat boundaries for this final                                      critical habitat boundaries shown on the               best assessment of areas that meet the
                                               rule, we made every effort to avoid                                             maps of this revised critical habitat are              definition of critical habitat for the
                                               developed areas, such as lands covered                                          excluded by text in this final rule.                   arroyo toad.

                                                TABLE 2—CRITICAL HABITAT UNITS FOR THE ARROYO TOAD BY LAND OWNERSHIP NOTING THE AREAS DESIGNATED AND
                                                                            EXCLUDED FROM THE CRITICAL HABITAT DESIGNATION
                                                                                                                                                                                                                         Total area
                                                                                                                                     Land                 Total area            Total area           Total area
                                                           Critical habitat units and subunits                                                                                                                         designated ac
                                                                                                                                   ownership           proposed ac (ha)      removed ac (ha)      excluded ac (ha)          (ha)

                                               1. San Antonio River—exempt .............................                        Federal ..........                      0                   0                      0                  0
                                               2. Sisquoc River ...................................................             Federal ..........            1,700 (688)                   0                      0       1,700 (688)
                                                                                                                                Private ...........           2,073 (839)                   0                      0       2,073 (839)
                                               3. Upper Santa Ynez River Basin ........................                         Federal ..........            2,214 (896)                   0                      0       2,214 (896)
                                                                                                                                Private ...........             818 (331)                   0                      0         818 (331)
                                               4. Sespe Creek ....................................................              Federal ..........          2,498 (1,011)                   0                      0     2,498 (1,011)
                                                                                                                                Private ...........             262 (106)                   0                      0         262 (106)
                                               5. Piru Creek ........................................................           Federal ..........            2,105 (852)                   0                      0       2,105 (852)
                                                                                                                                Private ...........             402 (163)                   0                      0         402 (163)
                                               5a. .........................................................................    Federal ..........            1,277 (517)                   0                      0       1,277 (517)
                                                                                                                                Private ...........               81 (33)                   0                      0           81 (33)
                                               5b. .........................................................................    Federal ..........              828 (335)                   0                      0         828 (335)
                                                                                                                                Private ...........             321 (130)                   0                      0         321 (130)
                                               6. Upper Santa Clara River Basin .......................                         Federal ..........              443 (179)                   0                      0         443 (179)
                                                                                                                                Private ...........         3,351 (1,356)           662 (268)              330 (134)       2,359 (955)
                                               6a. .........................................................................    Federal ..........              284 (115)                   0                      0         284 (115)
                                                                                                                                Private ...........              236 (96)                   0                      0          236 (96)
                                               6b. .........................................................................    Private ...........           1,995 (807)           662 (268)              330 (134)       1,003 (406)
                                               6c. .........................................................................    Federal ..........               159 (64)                   0                      0          159 (64)
                                                                                                                                Private ...........           1,120 (453)                   0                      0       1,120 (453)
                                               7. Upper Los Angeles River Basin .......................                         Federal ..........            1,113 (451)                   0                      0       1,113 (451)
                                                                                                                                Private ...........               77 (31)                   0                      0           77 (31)
                                               8.Lower Santa Ana River Basin ...........................                        Federal ..........                54 (22)                   0                      0           54 (22)
                                                                                                                                Private ...........           2,128 (861)            185 (75)            1,259 (508)         683 (276)
                                               9. San Jacinto River Basin ...................................                   Federal ..........              505 (204)                   0                      0         545 (221)
                                                                                                                                State ..............             210 (85)                   0                      0          232 (94)
                                                                                                                                Private ...........           1,691 (684)                   0                 14 (6)       1,614 (653)
                                               9a. .........................................................................    Federal ..........                72 (29)                   0                      0           72 (29)
                                                                                                                                Private ...........           1,154 (467)                   0                      0       1,154 (467)
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                                               9b. .........................................................................    Federal ..........              433 (175)                   0                      0         473 (191)
                                                                                                                                State ..............             210 (85)                   0                      0          232 (94)
                                                                                                                                Private ...........             537 (217)                   0                 14 (6)          461 (187
                                               10. San Juan Creek Basin ...................................                     Federal ..........              558 (225)                   0                      0         558 (225)
                                                                                                                                Local .............           1,909 (773)              16 (6)             1,854 (750           38 (15)
                                                                                                                                Private ...........         3,200 (1,295)              15 (6)              285 (115)     2,900 (1,174)
                                               10a. .......................................................................     Federal ..........              547 (221)                   0                      0         547 (221)
                                                                                                                                Local .............           1,406 (569)                   0            1,403 (568)              3 (1)



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                                               7258                  Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                                TABLE 2—CRITICAL HABITAT UNITS FOR THE ARROYO TOAD BY LAND OWNERSHIP NOTING THE AREAS DESIGNATED AND
                                                                      EXCLUDED FROM THE CRITICAL HABITAT DESIGNATION—Continued
                                                                                                                                                                                                                       Total area
                                                                                                                                   Land                 Total area            Total area           Total area
                                                           Critical habitat units and subunits                                                                                                                       designated ac
                                                                                                                                 ownership           proposed ac (ha)      removed ac (ha)      excluded ac (ha)          (ha)

                                                                                                                              Private ...........       2,775 (1,123)                1 (<1)             228 (92)       2,547 (1,031)
                                               10b. .......................................................................   Federal ..........               11 (4)                     0                    0              11 (4)
                                                                                                                              Local .............           503 (204)                16 (6)            452 (183)             35 (14)
                                                                                                                              Private ...........           425 (172)                14 (6)              57 (23)           353 (143)
                                               11. San Mateo Creek Basin .................................                    Federal ..........            844 (341)                     0                    0           844 (341)
                                                                                                                              Private ...........         1,034 (418)                     0              39 (16)           975 (395)
                                               11a. .......................................................................   Private ...........         1,034 (418)                     0              39 (16)           975 (395)
                                               11b. .......................................................................   Federal ..........            844 (341)                     0                    0           844 (341)
                                               12. Lower Santa Margarita River Basin ...............                          State ..............               5 (2)                    0                    0                5 (2)
                                                                                                                              Private ...........         1,004 (406)                     0                    0         1,004 (406)
                                               12a. .......................................................................   Private ...........           394 (159)                     0                    0           394 (159)
                                               12b. .......................................................................   State ..............               5 (2)                    0                    0                5 (2)
                                                                                                                              Private ...........           610 (247)                     0                    0           610 (247)
                                               13. Upper Santa Margarita River Basin * .............                          Federal ..........            454 (184)                     0                    0           454 (184)
                                                                                                                              Private ...........       7,682 (3,109)                     0            275 (111)       7,409 (2,998)
                                               13a. .......................................................................   Federal ..........            337 (136)                     0                    0           337 (136)
                                                                                                                              Private ...........           813 (329)                     0                    0           818 (331)
                                               13b. .......................................................................   Federal ..........             117 (47)                     0                    0            117 (47)
                                                                                                                              Private ...........       4,640 (1,878)                     0              26 (11)       4,614 (1,867)
                                               13c. .......................................................................   Private ...........         2,226 (901)                     0            249 (101)         1,977 (800)
                                               14. Lower and Middle San Luis Rey River Basin                                  Federal ..........                 4 (2)                    0                    0                4 (2)
                                                                                                                              State ..............             10 (4)                     0                    0              10 (4)
                                                                                                                              Pala Tribe .....            2,385 (963)                     0          1,662 (673)                  **0
                                                                                                                              Rincon Tribe                1,155 (467)                     0          1,071 (433)                  **0
                                                                                                                              Private ...........       9,351 (3,785)               58 (23)                    0      10,101 (4,088)
                                               15. Upper San Luis Rey River Basin ...................                         Federal ..........          1,467 (594)                     0            771 (312)           695 (281)
                                                                                                                              Private ...........      11,511 (4,658)                     0        3,838 (1,553)       7,673 (3,105)
                                               16. Santa Ysabel Creek Basin .............................                     Federal ..........             190 (77)                     0                    0            190 (77)
                                                                                                                              State ..............           182 (74)                1 (<1)                    0            175 (71)
                                                                                                                              Local .............            143 (58)                     0                    0            143 (58)
                                                                                                                              Tribal .............             23 (9)                     0               23 (9)                    0
                                                                                                                              Private ...........      14,956 (6,053)              100 (40)                    0      14,862 (6,014)
                                               16a. .......................................................................   Federal ..........             190 (77)                     0                    0            190 (77)
                                                                                                                              State ..............           182 (74)                1 (<1)                    0            175 (71)
                                                                                                                              Local .............            143 (58)                     0                    0            143 (58)
                                                                                                                              Private ...........      13,452 (5,444)              100 (40)                    0      13,357 (5,405)
                                               16d. .......................................................................   Mesa Grande                      23 (9)                     0               23 (9)                    0
                                                                                                                                Tribe.
                                                                                                                              Private ...........           1,504 (609)                   0                      0       1,504 (609)
                                               17. San Diego River Basin/San Vicente Creek ...                                Federal ..........              425 (172)                   0                      0         425 (172)
                                                                                                                              Tribal .............              92 (37)                   0              92   (37)                 0
                                                                                                                              Private ...........         3,746 (1,516)                   0                      0     3,746 (1,516)
                                               17a. .......................................................................   Federal ..........              354 (143)                   0                      0         354 (143)
                                               Capitan Grande Tribe ...........................................               92 (37) ..........                       0            92 (37)                      0
                                                                                                                              Private ...........             795 (322)                   0                      0         795 (322)
                                               17b. .......................................................................   Federal ..........                48 (19)                   0                      0           48 (19)
                                                                                                                              Private ...........           1,817 (735)                   0                      0       1,817 (735)
                                               17d. .......................................................................   Federal ..........                  23 (9)                  0                      0             23 (9)
                                                                                                                              Private ...........           1,134 (459)                   0                      0       1,134 (459)
                                               18. Sweetwater River Basin .................................                   Federal ..........              556 (225)                   0                      0         556 (225)
                                                                                                                              State ..............          1,659 (671)                   0                      0       1,659 (671)
                                                                                                                              Tribal .............            391 (158)                   0             152   (62)                **0
                                                                                                                              Private ...........           2,178 (882)               6 (2)                      0       2,410 (975)
                                               18a. .......................................................................   Federal ..........              553 (224)                   0                      0         553 (224)
                                                                                                                              State ..............          1,554 (629)                   0                      0       1,554 (629)
                                                                                                                              Private ...........           2,049 (829)                   0                      0       2,049 (829)
                                               18c. .......................................................................   Federal ..........                   3 (1)                  0                      0              3 (1)
                                                                                                                              State ..............             105 (42)                   0                      0          105 (42)
                                                                                                                              Sycuan Tribe                    391 (158)                   0             152   (62)                **0
                                                                                                                              Private ...........              129 (53)               6 (2)                      0         362 (146)
                                               19. Cottonwood Creek Basin ...............................                     Federal ..........          4,118 (1,666)                   0                      0     4,118 (1,666)
srobinson on DSKHWCL6B1PROD with RULES2




                                                                                                                              Local .............           1,482 (600)                   0              31   (13)       1,476 (597)
                                                                                                                              Private ...........         8,778 (3,551)                   0                      0     8,751 (3,541)
                                               19a. .......................................................................   Federal ..........            2,128 (861)                   0                      0       2,128 (861)
                                                                                                                              Local .............           1,482 (600)                   0              31   (13)       1,476 (597)
                                                                                                                              Private ...........           2,237 (905)                   0                      0       2,212 (895)
                                               19b. .......................................................................   Federal ..........               209 (84)                   0                      0          209 (84)
                                                                                                                              Private ...........          4,921 (1991)                   0                      0      4,921 (1991)
                                               19c. .......................................................................   Federal ..........              809 (327)                   0                      0         809 (327)



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                                                                     Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                                                    7259

                                                TABLE 2—CRITICAL HABITAT UNITS FOR THE ARROYO TOAD BY LAND OWNERSHIP NOTING THE AREAS DESIGNATED AND
                                                                      EXCLUDED FROM THE CRITICAL HABITAT DESIGNATION—Continued
                                                                                                                                                                                                                           Total area
                                                                                                                                     Land                    Total area            Total area            Total area
                                                           Critical habitat units and subunits                                                                                                                           designated ac
                                                                                                                                   ownership              proposed ac (ha)      removed ac (ha)       excluded ac (ha)        (ha)

                                                                                                                                Private ...........                703 (284)                   0                     0         703 (284)
                                               19d. .......................................................................     Federal ..........                 910 (368)                   0                     0         910 (368)
                                                                                                                                Private ...........                  28 (11)                   0                     0           28 (11)
                                               19e. .......................................................................     Federal ..........                   61 (25)                   0                     0           61 (25)
                                                                                                                                Private ...........                889 (360)                   0                     0         889 (360)
                                               20. Upper Santa Ana River Basin/Cajon Wash ...                                   Federal ..........                 711 (288)                   0                     0         711 (288)
                                                                                                                                Private ...........              1,065 (431)                   0                     0       1,065 (431)
                                               21. Little Rock Creek Basin .................................                    Federal ..........                 612 (248)                   0                     0         612 (248)
                                               22. Upper Mojave River Basin* ............................                       Federal ..........               2,186 (885)             43 (17)                     0       2,143 (867)
                                                                                                                                State ..............                238 (96)            191 (77)                     0           47 (19)
                                                                                                                                Private ...........            3,494 (1,414)             82 (33)                     0     3,412 (1,381)
                                               22a. .......................................................................     Federal ..........               2,143 (867)                   0                     0       2,143 (867)
                                                                                                                                State ..............                 47 (19)                   0                     0           47 (19)
                                                                                                                                Private ...........            3,494 (1,414)             82 (33)                     0     3,412 (1,381)
                                               22c. .......................................................................     Federal ..........                   43 (17)             43 (17)                     0                 0
                                                                                                                                State ..............                191 (77)            191 (77)                     0                 0
                                               23. Whitewater River Basin ..................................                    Federal ..........                 783 (317)           783 (317)                     0                 0
                                                                                                                                Private ...........                572 (231)           572 (231)                     0                 0

                                                     Total *** ..........................................................       .......................            112,765                  2,702              11,697    98,366 (39,807)
                                                                                                                                                                   (45,634)               (1,091)              (4,734)
                                                  * Land ownership values differ from the proposed rule due to updated ownership data.
                                                  ** Off-reservation lands (fee-owned) were not excluded and are included within the Private land ownership total.
                                                  *** Values in table may not sum due to rounding.


                                                  We present brief descriptions of all                                        under section 4(a)(3)(B) of the Act in the                 (839 ha) of private land. This long,
                                               units and reasons why they meet the                                            October 2009 proposed revised                              undammed river is one of the few
                                               definition of critical habitat for the                                         designation for the arroyo toad (74 FR                     remaining major rivers in southern
                                               arroyo toad below. The units are                                               52612; October 13, 2009) because they                      California with a natural flow regime,
                                               grouped by recovery unit as described                                          are subject to the 2007 Service-approved                   and supports a core population of
                                               in the recovery plan (Service 1999) and                                        Integrated Natural Resources                               arroyo toads that is important for
                                               listed in order geographically north to                                        Management Plan (INRMP) for Fort                           maintaining the genetic diversity of the
                                               south and west to east within each                                             Hunter Liggett. The INRMP provides a                       species. Unit 2 contains the physical
                                               recovery unit. For more information                                            benefit to the arroyo toad, including                      and biological features that are essential
                                               about the areas excluded from critical                                         monitoring arroyo toad population                          to the conservation of the species,
                                               habitat, please see Exclusions Under                                           status, reducing public and military                       including breeding pools in low-
                                               Section 4(b)(2) of the Act section of this                                     vehicle encroachment into arroyo toad                      gradient stream segments with sandy or
                                               final rule.                                                                    habitats, reducing bullfrogs and other                     fine gravel substrates (PCEs 1 and 2),
                                                                                                                              invasive species, and integrating species                  seasonal flood flows (PCE 3), and
                                               Northern Recovery Unit
                                                                                                                              management and conservation with Fort                      relatively undisturbed riparian and
                                                  As described in the recovery plan                                           Hunter Liggett training and maintenance                    upland habitat for foraging and
                                               (Service 1999, pp. 1–119), maintaining                                         activities. Please refer to the                            dispersal (PCE 4). The physical and
                                               arroyo toad populations in the areas                                           Application of Section 4(a)(3) of the Act                  biological features essential to the
                                               described by the following seven unit                                          section below for details on the INRMP                     conservation of the species in this unit
                                               descriptions is necessary to conserve the                                      and the benefits it provides to the arroyo                 may require special management
                                               species in the northern recovery unit.                                         toad.                                                      considerations or protection to address
                                               Because the toad populations in this                                                                                                      threats from the removal and alteration
                                                                                                                              Unit 2: Sisquoc River (3,775 ac (1,528
                                               recovery unit have been reduced in size                                                                                                   of habitat due to sand and gravel
                                                                                                                              ha))
                                               and their habitat fragmented by road                                                                                                      mining, livestock overgrazing of riparian
                                               construction, dams, agriculture, and                                              This unit is located in Santa Barbara                   habitats, and limited recreational
                                               urbanization, it is important to protect                                       County and encompasses approximately                       activities.
                                               all of them and safeguard against the                                          33 miles (mi) (54 kilometers (km)) of the
                                                                                                                                                                                         Unit 3: Upper Santa Ynez River Basin
                                               loss of any one population due to                                              Sisquoc River and adjacent uplands
                                                                                                                                                                                         (3,032 ac (1,227 ha))
                                               random natural or human-caused                                                 from Sycamore Campground
                                               events. The Forest Service is the                                              downstream to just below the                                 This unit is located in Santa Barbara
                                               primary landowner of revised critical                                          confluence with La Brea Creek. Upper                       County upstream of Gibraltar Reservoir
srobinson on DSKHWCL6B1PROD with RULES2




                                               habitat within the northern recovery                                           stretches of the river are within the Los                  and encompasses approximately 27 mi
                                               unit.                                                                          Padres National Forest and mostly                          (43 km) of the upper Santa Ynez River,
                                                                                                                              within the San Rafael Wilderness Area.                     Indian Creek, Mono Creek, and adjacent
                                               Unit 1: San Antonio River: (6,453 ac
                                                                                                                              Below the National Forest boundary, the                    uplands. The unit consists of 2,214 ac
                                               (2,612 ha))
                                                                                                                              river and adjacent uplands are on rural                    (896 ha) of Federal land and 818 ac (331
                                                 All lands in Unit 1 (approximately                                           private lands. The unit consists of 1,700                  ha) of private land within the Los
                                               6,453 ac (2,612 ha)) were exempted                                             ac (688 ha) of Federal land and 2,073 ac                   Padres National Forest, and supports a


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                                               7260             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               large and well-studied arroyo toad                      4). The physical and biological features              and dispersal (PCE 4). Because lower
                                               population that likely experiences                      essential to the conservation of the                  Piru Creek in Subunit 5b is downstream
                                               precipitation and soil moisture                         species in this unit may require special              of a large dam, the habitat there has
                                               conditions not faced by toads at drier                  management considerations or                          experienced some degradation over the
                                               sites (Sweet 1992, pp. 1–198; 1993, pp.                 protection to address threats from                    years from perennial water releases,
                                               1–73). Potential adaptations to these                   recreational activities and nonnative                 rapid changes in flow volume, excessive
                                               conditions make this unit important for                 predators.                                            flows during the breeding season, and
                                               maintaining the genetic diversity of the                                                                      an increased presence of nonnative
                                                                                                       Unit 5: Piru Creek (2,507 ac (1,015 ha))
                                               species. Unit 3 contains the physical                                                                         predators. However, in 2005, the
                                               and biological features that are essential                This unit is located in Ventura and                 California Department of Water
                                               to the conservation of the species,                     Los Angeles Counties and consists of                  Resources proposed to permanently
                                               including breeding pools in low-                        two subunits totaling 2,105 ac (852 ha)               change the water release schedule for
                                               gradient stream segments with sandy or                  of Federal land and 402 ac (163 ha) of                Pyramid Dam to one that more closely
                                               fine gravel substrates (PCEs 1 and 2),                  private inholdings.                                   mimics the pre-dam hydrograph and
                                               seasonal flood flows (PCE 3), and                       Subunit 5a                                            benefitted downstream habitat for the
                                               relatively undisturbed riparian and                                                                           arroyo toad (State Water Board 2008, p.
                                               upland habitat for foraging and                            Subunit 5a encompasses                             3). The physical and biological features
                                               dispersal (PCE 4). The physical and                     approximately 17 mi (27 km) of Piru                   essential to the conservation of the
                                               biological features essential to the                    Creek and adjacent uplands from the                   species in this subunit may require
                                               conservation of the species in this unit                confluence with Lockwood Creek                        special management considerations or
                                               may require special management                          downstream to Pyramid Reservoir. The                  protection to address threats from
                                               considerations or protection to address                 subunit consists of 1,277 ac (517 ha) of              nonnative predators and recreational
                                               threats, primarily along the lower Santa                Federal land and 81 ac (33 ha) of private             activities.
                                               Ynez River and lower Mono Creek, from                   land. As recently as 2003, the upper
                                                                                                       portion of Subunit 5a was documented                  Unit 6: Upper Santa Clara River Basin
                                               nonnative species, recreation, and
                                                                                                       to be free of nonnative vertebrate                    (2,802 ac (1,134 ha))
                                               problems associated with an upstream
                                               dam (such as sediment trapping, altered                 predators, and the substantial arroyo                   This unit is located in northwestern
                                               hydrological regime, and temperature                    toad population supported by this                     Los Angeles County and consists of
                                               changes).                                               subunit was documented to be                          three subunits totaling 443 ac (179 ha)
                                                                                                       increasing and expanding over the                     of Federal land and 2,359 ac (955 ha) of
                                               Unit 4: Sespe Creek (2,760 ac (1,117 ha))               course of several years (Uyehara 2003,                private land.
                                                  This unit is located in Ventura County               pers. comm.). Subunit 5a contains the
                                               and encompasses approximately 27 mi                     physical and biological features that are             Subunit 6a
                                               (43 km) of Sespe Creek and adjacent                     essential to the conservation of the                    Subunit 6a encompasses
                                               uplands, from the lower end of Sespe                    species, including breeding pools in                  approximately 7 mi (12 km) of Castaic
                                               Gorge (elevation approximately 3,530 ft                 low-gradient stream segments with                     Creek from Bear Canyon downstream to
                                               (1,076 m)) downstream to the                            sandy substrates (PCEs 1 and 2),                      Castaic Lake, and 0.7 mi (1.2 km) of Fish
                                               confluence with Alder Creek. The unit                   seasonal flood flows (PCE 3), and                     Creek from Cienaga Spring to the
                                               consists of 2,498 ac (1,011 ha) of Federal              riparian habitat and upland benches for               confluence with Castaic Creek. The
                                               land and 262 ac (106 ha) of private land.               foraging and dispersal (PCE 4). The                   subunit consists of 284 ac (115 ha) of
                                               This unit supports one of the largest                   physical and biological features                      Federal land and 236 ac (96 ha) of
                                               arroyo toad populations on the Los                      essential to the conservation of the                  private land. Subunit 6a contains the
                                               Padres National Forest along Sespe                      species in this subunit may require                   physical and biological features that are
                                               Creek, which is undammed and retains                    special management considerations or                  essential to the conservation of the
                                               its natural flooding regime. Up to                      protection to address threats from                    species, including breeding pools in
                                               several hundred adult arroyo toads                      livestock grazing and recreational                    low-gradient stream segments with
                                               inhabit this reach of the Sespe Creek                   activities.                                           sandy substrates (PCEs 1 and 2),
                                               (Sweet 1992, p. 192), and during years                                                                        seasonal flood flows (PCE 3), and
                                                                                                       Subunit 5b
                                               of successful reproduction, such as                                                                           riparian habitat and upland benches for
                                               2003, thousands of juveniles can be                        Subunit 5b is primarily within the                 foraging and dispersal (PCE 4). The
                                               found as well (Murphy 2008, pers.                       Sespe Wilderness and encompasses                      physical and biological features
                                               comm.). Arroyo toads have been found                    approximately 15 mi (24 km) of Piru                   essential to the conservation of the
                                               up to 3,300 ft (1,000 m) in elevation in                Creek from the confluence with Fish                   species in this subunit may require
                                               this area, which is one of the highest                  Creek downstream to Lake Piru, as well                special management considerations or
                                               known occurrences in the northern                       as Agua Blanca Creek from Devil’s                     protection to address threats from urban
                                               recovery unit. Unit 4 contains the                      Gateway downstream to the confluence                  development, agriculture, recreation,
                                               physical and biological features that are               with Piru Creek. The subunit supports                 mining, and nonnative predators.
                                               essential to the conservation of the                    a substantial arroyo toad population and
                                               species, including numerous suitable                    consists of 828 ac (335 ha) of Federal                Subunit 6b
                                               breeding pools (shallow, sand- or gravel-               land and 321 ac (130 ha) of private land.               Subunit 6b encompasses: (1)
                                               based pools with a minimum of                           Subunit 5b contains the physical and                  Approximately 2.6 mi (4.2 km) of
                                               vegetation along one or both margins                    biological features that are essential to             Castaic Creek from the downstream edge
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                                               during the breeding season from late                    the conservation of the species,                      of The Old Road right-of-way (adjacent
                                               March to June (Sweet 1992, p. 28)) and                  including breeding pools in low-                      to Interstate 5) down to the confluence
                                               an abundance of sandy substrates (PCEs                  gradient stream segments with sandy                   with the Santa Clara River; and (2) 4 mi
                                               1 and 2), unimpeded seasonal flood                      substrates (PCEs 1 and 2), seasonal flood             (6.4 km) of the Santa Clara River from
                                               flows (PCE 3), and relatively                           flows (modified to some extent below                  the confluence with San Francisquito
                                               undisturbed riparian habitat and upland                 Pyramid Dam) (PCE 3), and riparian                    Creek down to the confluence with
                                               benches for foraging and dispersal (PCE                 habitat and upland benches for foraging               Castaic Creek. Subunit 6b consists of


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                                               1,003 ac (406 ha) of private land. This                 population of arroyo toads (Farris 2001,              descriptions is necessary to conserve the
                                               subunit allows for natural population                   pers. comm.; Hovore 2001, in litt.;                   species in the southern recovery unit.
                                               expansion and fluctuation of the Santa                  Sandburg 2001, in litt.) that has the                 These critical habitat units consist of a
                                               Clara River population by connecting                    potential to greatly increase in size.                range of geographic locations from
                                               arroyo toad habitat in Castaic Creek                    Subunit 6c contains the physical and                  coastal regions to interior mountains.
                                               with San Francisquito Creek and the                     biological features that are essential to             Arroyo toads likely occurred throughout
                                               occupied reach of the Santa Clara River.                the conservation of the species,                      each of these river and creek basins, but
                                               Subunit 6b contains the physical and                    including breeding pools in low-                      are now found only in segments of the
                                               biological features that are essential to               gradient stream segments with sandy                   rivers and creeks due to loss or change
                                               the conservation of the species,                        substrates (PCEs 1 and 2), seasonal flood             of habitat and nonnative predators.
                                               including breeding pools in low-                        flows (PCE 3), and riparian habitat and               Conserving arroyo toad populations in
                                               gradient stream segments with sandy                     upland benches for foraging and                       these river basins is necessary for
                                               substrates (PCEs 1 and 2), seasonal flood               dispersal (PCE 4). The physical and                   preserving the species’ full range of
                                               flows (PCE 3), and riparian habitat and                 biological features essential to the                  genetic and phenotypic variation.
                                               upland benches for foraging and                         conservation of the species in this
                                                                                                                                                             Unit 8: Lower Santa Ana River Basin
                                               dispersal (PCE 4). The physical and                     subunit may require special
                                                                                                                                                             (737 ac (298 ha))
                                               biological features essential to the                    management considerations or
                                               conservation of the species in this                     protection to address threats from urban                 This unit is located in east-central
                                               subunit may require special                             development, agriculture, recreation,                 Orange County and encompasses:
                                               management considerations or                            mining, and nonnative predators.                      (1) Approximately 5.8 mi (9 km) of
                                               protection to address threats from urban                                                                      Santiago Creek from just below the town
                                                                                                       Unit 7: Upper Los Angeles River Basin                 of Modjeska downstream to the
                                               development, agriculture, recreation,
                                                                                                       (1,190 ac (482 ha))                                   confluence with Black Star Creek, (2)
                                               mining, and nonnative predators.
                                                  The Secretary is exercising his                         This unit is located in central Los                approximately 2 mi (3 km) of Black Star
                                               discretion under section 4(b)(2) of the                 Angeles County and encompasses: (1)                   Creek downstream to the confluence
                                               Act to exclude 330 ac (134 ha) of                       Approximately 8 mi (13 km) of upper                   with Santiago Creek, (3) an
                                               Subunit 6b that we proposed as revised                  Big Tujunga Creek from immediately                    approximately 2.4-mi (4-km) stretch of
                                               critical habitat. This exclusion is based               above Big Tujunga Reservoir upstream                  lower Baker Canyon downstream to the
                                               on our determination that the benefits of               to approximately 1.2 mi (2 km) above                  confluence with Santiago Creek, and
                                               exclusion outweigh the benefits of                      the confluence with Alder Creek, (2)                  (4) approximately 7.3 mi (12 km) of
                                               inclusion, and that exclusion of these                  almost 3.7 mi (6 km) of Mill Creek from               Silverado Creek from the eastern edge of
                                               areas will not result in extinction of the              the Monte Cristo Creek confluence                     section 11 (T05S, R07W) in the
                                               species (see Exclusions Under Section                   downstream to Big Tujunga Creek, and                  Cleveland National Forest downstream
                                               4(b)(2) of the Act—Other Relevant                       (3) approximately 1.9 mi (3 km) of Alder              to the confluence with Santiago Creek.
                                               Impacts section below).                                 Creek from the Mule Fork confluence                   As proposed, Unit 8 included a total of
                                                  Additionally, based on closer                        downstream to Big Tujunga Creek. The                  2,182 ac (883 ha). Of these lands, we
                                               examination of some upland areas that                   unit consists of 1,113 ac (451 ha) of                 have now removed approximately 185
                                               we proposed in the revised critical                     Forest Service land and 77 ac (31 ha) of              ac (75 ha), as we determined that these
                                               habitat proposal (74 FR 52612, October                  private land. This unit supports an                   lands do not contain the physical or
                                               13, 2009) and that we believed met the                  arroyo toad population in the Big                     biological features essential to the
                                               definition of critical habitat, we have                 Tujunga Creek Canyon watershed in the                 conservation of the arroyo toad (see
                                               found that these lands are either                       Upper Los Angeles River Basin within                  numbers 3 and 20 in Summary of
                                               developed, used for intensive                           the Angeles National Forest. This                     Changes from the 2009 Proposed Rule
                                               agriculture, or are inaccessible to arroyo              population is important because it                    To Revise Critical Habitat section above
                                               toads due to busy roads or steep slopes.                occurs at a relatively high elevation that            for a detailed discussion). The Secretary
                                               We now find that little of these lands                  is atypical for arroyo toads, and it is the           is exercising his discretion to exclude
                                               remain as native habitats that would be                 only known substantial population                     from this final revised critical habitat
                                               useable as foraging areas by arroyo                     remaining in the coastal foothills of the             designation, under section 4(b)(2) of the
                                               toads, do not contain the physical and                  San Gabriel Mountains. Unit 7 contains                Act, portions of Unit 8 totaling 1,259 ac
                                               biological features that are essential to               the physical and biological features that             (508 ha). The portion of Unit 8 we are
                                               the conservation of the arroyo toad, and                are essential to the conservation of the              designating as critical habitat consists of
                                               therefore, do not meet the definition of                species, including aquatic habitat for                54 ac (22 ha) of Forest Service land and
                                               critical habitat. Therefore, we have                    breeding and non-breeding activities                  683 ac (276 ha) of private land. This
                                               removed approximately 662 ac (268 ha)                   (PCEs 1, 2, and 3) and upland habitat for             unit contains a vital arroyo toad
                                               from Subunit 6b.                                        foraging and dispersal activities (PCE 4).            population in central Orange County
                                                                                                       The physical and biological features                  that may represent one of the last
                                               Subunit 6c                                                                                                    remnants of a greater historical
                                                                                                       essential to the conservation of the
                                                  Subunit 6c encompasses                               species in this unit may require special              population from the Santa Ana River
                                               approximately 11 mi (18 km) of upper                    management considerations or                          Basin that was mostly extirpated due to
                                               Santa Clara River from Arrastre Canyon                  protection to address threats from                    urbanization of the greater Los Angeles
                                               downstream to the confluence with Bee                   nonnative predators, such as crayfish,                metropolitan area. It is also possible that
                                               Canyon Creek. The subunit consists of                   bullfrogs, and nonnative plants, such as              this population belongs to a larger
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                                               159 ac (64 ha) of Federal land and 1,120                Arundo donax (giant reed grass).                      metapopulation that extends across the
                                               ac (453 ha) of private land. This subunit                                                                     lower coastal mountain slopes of the
                                               is important for maintaining the arroyo                 Southern Recovery Unit                                Santa Ana Mountains from Santiago
                                               toad metapopulation in the upper Santa                    As described in the recovery plan                   Creek to San Mateo Creek (including
                                               Clara River Basin. Additionally, the                    (Service 1999, pp. 1–119), maintaining                Units 10 and 11 discussed below). Unit
                                               upper portion of the Santa Clara River                  arroyo toad populations in the areas                  8 contains the physical and biological
                                               in this subunit supports a breeding                     described by the following 12 unit                    features that are essential to the


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                                               7262             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               conservation of the species, including                  species in this subunit may require                   in the San Juan Creek Basin, and arroyo
                                               aquatic habitat for breeding and non-                   special management considerations or                  toad populations in this unit may
                                               breeding activities (PCEs 1, 2, and 3)                  protection to address threats from                    function as an important linkage
                                               and upland habitat for foraging and                     human activities, including direct                    between toads in Santiago Creek (Unit
                                               dispersal activities (PCE 4). The                       mortality from vehicular traffic,                     8) to the north and the San Mateo Creek
                                               physical and biological features                        trampling by people during recreational               Basin (Unit 11) to the south.
                                               essential to the conservation of the                    activities or trash dumping, and
                                                                                                                                                             Subunit 10a
                                               species in this unit may require special                collection (Ortega 2009, in litt. p. 1;
                                               management considerations or                            Wilcox 2009, pers. comm.).                              This subunit is located in southern
                                               protection to address threats from                                                                            Orange County and southwestern
                                                                                                       Subunit 9b                                            Riverside County. Subunit 10a
                                               nearby residential activities and
                                               degraded habitat conditions due to past                   Subunit 9b encompasses                              encompasses: (1) Approximately 5 mi (8
                                               commercial sand and gravel removal                      approximately 7.4 mi (12 km) of                       km) of San Juan Creek from immediately
                                               operations.                                             Bautista Creek from near the eastern                  above the Upper San Juan Campground
                                                 As indicated above, the Secretary is                  edge of section 20 (T6S, R2E)                         downstream to Interstate 5, (2)
                                               exercising his discretion to exclude                    downstream to approximately the                       approximately 9.9 mi (16 km) of Bell
                                               approximately 1,259 ac (508 ha) that are                middle of section 27 (T5S, R1E), where                Canyon from the southern half of
                                               owned by or are under the jurisdiction                  the stream enters a debris basin. As                  section 8 (T06S, R06W) in the Cleveland
                                               of the permittees of the Orange County                  proposed, Subunit 9b included a total of              National Forest downstream to the
                                               Central–Coastal NCCP/HCP and the                        1,180 ac (478 ha). The Secretary is                   confluence with San Juan Creek, and (3)
                                               associated NRPPA. This exclusion is                     exercising his discretion to exclude                  approximately 1.2 mi (2 km) of an
                                               based on our determination that the                     from this final revised critical habitat              unnamed tributary to the west of Bell
                                               benefits of exclusion outweigh the                      designation, under section 4(b)(2) of the             Canyon in sections 8 and 18 (T06S,
                                               benefits of inclusion and that exclusion                Act, portions of Subunit 9b totaling 14               R06W) downstream to the confluence
                                               of these areas will not result in                       ac (6 ha). The portion of Subunit 9b we               with Bell Creek. As proposed, Subunit
                                               extinction of the species (see Exclusions               are designating as critical habitat                   10a included a total of 4,728 ac (1,913
                                               Under Section 4(b)(2) of the Act—Other                  consists of 467 ac (189 ha) of Forest                 ha). Of these lands, we have now
                                               Relevant Impacts section below for a                    Service land, 6 ac (2 ha) of BLM land,                removed approximately 1 ac (<1 ha), as
                                               detailed discussion).                                   232 ac (94 ha) of State land, and 461 ac              we determined that these lands do not
                                                                                                       (187 ha) of private land. Subunit 9b                  contain the physical or biological
                                               Unit 9: San Jacinto River Basin (2,391 ac               contains the physical and biological                  features essential to the conservation of
                                               (968 ha))                                               features that are essential to the                    the arroyo toad (see number 20 in
                                                 This unit is located in west-central                  conservation of the species, including                Summary of Changes from the 2009
                                               Riverside County and consists of two                    aquatic habitat for breeding and non-                 Proposed Rule To Revise Critical
                                               subunits totaling 14 ac (5 ha) of BLM                   breeding activities (PCEs 1, 2, and 3)                Habitat section above for a detailed
                                               land, 531 ac (215 ha) of Forest Service                 and upland habitat for foraging and                   discussion). The Secretary is exercising
                                               land, 232 ac (94 ha) of State land, and                 dispersal activities (PCE 4). The                     his discretion to exclude from this final
                                               1,614 ac (653 ha) of private land. This                 physical and biological features                      revised critical habitat designation,
                                               unit supports the most northeastern                     essential to the conservation of the                  under section 4(b)(2) of the Act,
                                               arroyo toad populations within the                      species in this subunit may require                   portions of Subunit 10a totaling 1,631 ac
                                               coastal region of the species’ range. This              special management considerations or                  (660 ha). The portions of Subunit 10a
                                               unit also is geographically isolated from               protection to address threats from                    we are designating as critical habitat
                                               other known toad populations to the                     recreation and vehicular traffic (U.S.                consist of 547 ac (221 ha) of Forest
                                               south in the Santa Margarita Watershed,                 Geological Survey (USGS) 2001, p. 8).                 Service land, 3 ac (1 ha) of local
                                               to the west in the San Juan Watershed,                    As indicated above, the Secretary is                government land, and 2,547 ac (1,031
                                               and from residual populations to the                    exercising his discretion to exclude                  ha) of private land. Subunit 10a
                                               north in the Santa Ana Watershed.                       approximately 14 ac (6 ha) that are                   contains the physical and biological
                                               Therefore, this location is important to                owned by or are under the jurisdiction                features that are essential to the
                                               maintain the current geographic extent                  of the permittees of the Western                      conservation of the species, including
                                               of the species.                                         Riverside County MSHCP. This                          aquatic habitat for breeding and non-
                                                                                                       exclusion is based on our determination               breeding activities (PCEs 1, 2, and 3)
                                               Subunit 9a                                                                                                    and upland habitat for foraging and
                                                                                                       that the benefits of exclusion outweigh
                                                 Subunit 9a encompasses                                the benefits of inclusion and that                    dispersal activities (PCE 4). The
                                               approximately 6.3 mi (10 km) of the San                 exclusion of these areas will not result              physical and biological features
                                               Jacinto River from the Sand Canyon                      in extinction of the species (see                     essential to the conservation of the
                                               confluence downstream to the Soboba                     Exclusions Under Section 4(b)(2) of the               species in this subunit may require
                                               Indian Reservation border. The subunit                  Act—Other Relevant Impacts section                    special management considerations or
                                               consists of 64 ac (26 ha) of Forest                     below for a detailed discussion).                     protection to address threats from
                                               Service land, 8 ac (3 ha) of BLM land,                                                                        nonnative predators (bullfrogs), water
                                               and 1,154 ac (467 ha) of private land.                  Unit 10: San Juan Creek Basin (3,496 ac               diversions, and residual effects of recent
                                               Subunit 9a contains the physical and                    (1,415 ha))                                           gravel mining operations (Bloom 1998,
                                               biological features that are essential to                 This unit is located in southern                    p. 2).
srobinson on DSKHWCL6B1PROD with RULES2




                                               the conservation of the species,                        Orange County and southwestern                          As indicated above, the Secretary is
                                               including aquatic habitat for breeding                  Riverside County and consists of two                  exercising his discretion to exclude
                                               and non-breeding activities (PCEs 1, 2,                 subunits totaling 558 ac (226 ha) of                  approximately 1,631 ac (660 ha) that are
                                               and 3) and upland habitat for foraging                  Forest Service land, 38 ac (15 ha) of                 owned by or are under the jurisdiction
                                               and dispersal activities (PCE 4). The                   local government land, and 2,900 ac                   of the permittees of the Southern Orange
                                               physical and biological features                        (1,174 ha) of private land. This unit                 County NCCP/Master Streambed
                                               essential to the conservation of the                    supports a large arroyo toad population               Alteration Agreement/HCP. This


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                                                                Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                       7263

                                               exclusion is based on our determination                 Unit 11: San Mateo Creek Basin (1,820                 physical and biological features
                                               that the benefits of exclusion outweigh                 ac (737 ha))                                          essential to the conservation of the
                                               the benefits of inclusion and that                        This unit is located in northwestern                species in this subunit may require
                                               exclusion of these areas will not result                San Diego County, southern Orange                     special management considerations or
                                               in extinction of the species (see                       County, and southwestern Riverside                    protection to address threats from
                                               Exclusions Under Section 4(b)(2) of the                 County and consists of two subunits                   human activities, including direct
                                               Act—Other Relevant Impacts section                      totaling 844 ac (341 ha) of Forest Service            mortality from vehicle collisions and
                                               below for a detailed discussion).                       land and 975 ac (395 ha) of private land.             vehicular crossings of streambeds,
                                                                                                       This unit supports large arroyo toad                  grazing, and nonnative predators
                                               Subunit 10b                                                                                                   (Bloom 1996, pp. 4–5; Bloom 1998, in
                                                                                                       populations in close proximity to the
                                                                                                                                                             litt., pp. 1, 3).
                                                  This subunit is located in southern                  coast. Nearly all of the other near-
                                                                                                                                                                As indicated above, the Secretary is
                                               Orange County. Subunit 10b                              coastal, historical populations of arroyo             exercising his discretion to exclude
                                               encompasses 5.2 mi (8 km) of Trabuco                    toad were extirpated due to extensive                 approximately 39 ac (16 ha) that are
                                               Creek downstream from approximately                     urbanization and river channelization                 owned by or are under the jurisdiction
                                               the middle of section 6 (T06S, R06W) in                 along the coastal regions of southern                 of the permittees of the Southern Orange
                                               the Cleveland National Forest. As                       California. Distinctive climatic                      County NCCP/Master Streambed
                                               proposed, Subunit 10b included a total                  conditions near the coast may provide                 Alteration Agreement/HCP. This
                                               of 939 ac (380 ha). Of these lands, we                  different selective pressures on toads in             exclusion is based on our determination
                                               have now removed approximately 31 ac                    this area, and favor specific genetic                 that the benefits of exclusion outweigh
                                               (13 ha), as we determined that these                    characteristics that help maintain the                the benefits of inclusion and that
                                               lands do not contain the physical or                    genetic diversity of the species.                     exclusion of these areas will not result
                                               biological features essential to the                      We exempted approximately 6,014 ac                  in extinction of the species (see
                                               conservation of the arroyo toad (see                    (2,427 ha) of military land under section             Exclusions Under Section 4(b)(2) of the
                                               number 6 in Summary of Changes from                     4(a)(3)(B) of the Act because the lands               Act—Other Relevant Impacts section
                                               the 2009 Proposed Rule To Revise                        are subject to the 2007 INRMP for                     below for a detailed discussion).
                                               Critical Habitat section above for a                    Marine Corps Base Camp Pendleton,
                                               detailed discussion). The Secretary is                  and the INRMP provides a benefit to the               Subunit 11b
                                               exercising his discretion to exclude                    arroyo toad (see the Application of                     Subunit 11b encompasses: (1)
                                               from this final revised critical habitat                Section 4(a)(3) of the Act section below              Approximately 9.3 mi (15 km) of San
                                               designation, under section 4(b)(2) of the               for details on the INRMP and the                      Mateo Creek from Los Alamos Canyon
                                               Act, portions of Subunit 10b totaling                   benefits it provides to the arroyo toad).             downstream to MCB Camp Pendleton,
                                               509 ac (206 ha). The portion of Subunit                 Subunit 11a                                           and (2) approximately 2.4 mi (4 km) of
                                               10b we are designating as critical habitat                                                                    Los Alamos Canyon downstream to the
                                               consists of 11 ac (4 ha) of Forest Service                 Subunit 11a encompasses: (1)                       confluence with San Mateo Creek. The
                                               land, 35 ac (14 ha) of local government                 Approximately 1.7 mi (3 km) of                        subunit consists of 844 ac (341 ha) of
                                               land, and 353 ac (143 ha) of private                    Cristianitos Creek from just above                    Forest Service land. Subunit 11b
                                               land. Subunit 10b contains the physical                 Gabino Creek downstream to the MCB                    contains the physical and biological
                                               and biological features that are essential              Camp Pendleton boundary; (2)                          features that are essential to the
                                                                                                       approximately 3.1 mi (5 km) of Gabino                 conservation of the species, including
                                               to the conservation of the species,
                                                                                                       Creek upstream from its confluence                    aquatic habitat for breeding and non-
                                               including aquatic habitat for breeding
                                                                                                       with Cristianitos Creek, including about              breeding activities (PCEs 1, 2, and 3)
                                               and non-breeding activities (PCEs 1, 2,
                                                                                                       0.6 mi (1 km) of La Paz Creek; and (3)                and upland habitat for foraging and
                                               and 3) and upland habitat for foraging
                                                                                                       approximately 4 mi (6 km) of Talega                   dispersal activities (PCE 4). The
                                               and dispersal activities (PCE 4). The
                                                                                                       Creek upstream from its confluence                    physical and biological features
                                               physical and biological features
                                                                                                       with Cristianitos Creek and beyond the                essential to the conservation of the
                                               essential to the conservation of the
                                                                                                       boundaries of MCB Camp Pendleton. As                  species in this subunit may require
                                               species in this subunit may require
                                                                                                       proposed, Subunit 11a included a total                special management considerations or
                                               special management considerations or
                                                                                                       of 1,034 ac (418 ha). Of these lands, we              protection to address threats from
                                               protection to address threats from
                                                                                                       have now exempted approximately 20                    habitat conditions favorable for
                                               nonnative predators (bullfrogs), water                  ac (8 ha) (see number 7 in Summary of
                                               diversions, and residual effects of recent                                                                    nonnative predators (ECORP 2004, p.
                                                                                                       Changes from the 2009 Proposed Rule                   16).
                                               gravel mining operations (Bloom 1998,                   To Revise Critical Habitat section above
                                               p. 2).                                                  for a detailed discussion). The Secretary             Unit 12: Lower Santa Margarita River
                                                  As indicated above, the Secretary is                 is exercising his discretion to exclude               Basin (1,009 ac (408 ha))
                                               exercising his discretion to exclude                    from this final revised critical habitat                This unit is located in northwestern
                                               approximately 509 ac (206 ha) that are                  designation, under section 4(b)(2) of the             San Diego County and consists of two
                                               owned by or are under the jurisdiction                  Act, a portion of Subunit 11a totaling 39             subunits totaling 5 ac (2 ha) of State
                                               of the permittees of the Southern Orange                ac (16 ha). The portion of Subunit 11a                land and 1,004 ac (406 ha) of private
                                               County NCCP/Master Streambed                            we are designating as critical habitat                land. This unit supports large arroyo
                                               Alteration Agreement/HCP. This                          totals 975 ac (395 ha), and is comprised              toad populations in proximity to other
                                               exclusion is based on our determination                 entirely of private land. Subunit 11a                 large arroyo toad populations to the
srobinson on DSKHWCL6B1PROD with RULES2




                                               that the benefits of exclusion outweigh                 contains the physical and biological                  north (Unit 11), and provides potential
                                               the benefits of inclusion and that                      features that are essential to the                    connectivity to populations in the upper
                                               exclusion of these areas will not result                conservation of the species, including                Santa Margarita River Basin (Unit 13).
                                               in extinction of the species (see                       aquatic habitat for breeding and non-                 We exempted approximately 7,239 ac
                                               Exclusions Under Section 4(b)(2) of the                 breeding activities (PCEs 1, 2, and 3)                (2,929 ha) of military land (7,016 ac
                                               Act—Other Relevant Impacts section                      and upland habitat for foraging and                   (2,839 ha) on MCB Camp Pendleton and
                                               below for a detailed discussion).                       dispersal activities (PCE 4). The                     223 ac (90 ha) on Fallbrook Naval


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                                               7264             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               Weapons Station) in this unit under                     subunits totaling 22 ac (9 ha) of BLM                 that the benefits of exclusion outweigh
                                               section 4(a)(3)(B) of the Act in the                    land, 432 ac (174 ha) of Forest Service               the benefits of inclusion and that
                                               October 2009 proposed revised                           land, and 7,409 ac (2,998 ha) of private              exclusion of these areas will not result
                                               designation for the arroyo toad (74 FR                  land. This unit provides potential links              in extinction of the species (see
                                               52612) because the lands are subject to                 to arroyo toad populations in the lower               Exclusions Under Section 4(b)(2) of the
                                               the 2007 INRMP for MCB Camp                             Santa Margarita River Basin (Unit 12)                 Act—Other Relevant Impacts section
                                               Pendleton and the 2006 INRMP for the                    and other nearby drainages containing                 below for a detailed discussion).
                                               Fallbrook Naval Weapons Station, and                    suitable habitat.
                                                                                                                                                             Subunit 13c
                                               each INRMP provides a benefit to the
                                                                                                       Subunit 13a                                              Subunit 13c encompasses
                                               arroyo toad. Please refer to the
                                               Application of Section 4(a)(3) of the Act                 Subunit 13a encompasses                             approximately 6.5 mi (10 km) of Wilson
                                               section below for details on the INRMPs                 approximately 7.3 mi (12 km) of Arroyo                Creek from the confluence with Cahuilla
                                               and the benefits they provide to the                    Seco Creek from just south of the San                 Creek downstream to Vail Lake. As
                                               arroyo toad.                                            Diego-Riverside County boundary                       proposed, Subunit 13c included a total
                                                                                                       downstream to Vail Lake. The subunit                  of 2,226 ac (901 ha). The Secretary is
                                               Subunit 12a                                             consists of 337 ac (136 ha) of Forest                 exercising his discretion to exclude
                                                 Subunit 12a encompasses                               Service land and 818 ac (331 ha) of                   from this final revised critical habitat
                                               approximately 2.1 mi (3 km) of De Luz                   private land. Subunit 13a contains the                designation, under section 4(b)(2) of the
                                               Creek from the town of De Luz                           physical and biological features that are             Act, portions of Subunit 13c totaling
                                               downstream to the MCB Camp                              essential to the conservation of the                  249 ac (101 ha). The portion of Subunit
                                               Pendleton boundary. The subunit                         species, including aquatic habitat for                13c we are designating as critical habitat
                                               consists of 394 ac (159 ha) of private                  breeding and non-breeding activities                  totals 1,977 ac (800 ha), and is
                                               land. Subunit 12a contains the physical                 (PCEs 1, 2, and 3) and upland habitat for             comprised entirely of private land.
                                               and biological features that are essential              foraging and dispersal activities (PCE 4).            Subunit 13c contains the physical and
                                               to the conservation of the species,                     The physical and biological features                  biological features that are essential to
                                               including aquatic habitat for breeding                  essential to the conservation of the                  the conservation of the species,
                                               and non-breeding activities (PCEs 1, 2,                 species in this subunit may require                   including aquatic habitat for breeding
                                               and 3) and upland habitat for foraging                  special management considerations or                  and non-breeding activities (PCEs 1, 2,
                                               and dispersal activities (PCE 4). The                   protection to address threats from                    and 3) and upland habitat for foraging
                                               physical and biological features                        nonnative predators and campground                    and dispersal activities (PCE 4). The
                                               essential to the conservation of the                    activities (USGS 2000, p. 3).                         physical and biological features
                                               species in this subunit may require                                                                           essential to the conservation of the
                                                                                                       Subunit 13b
                                               special management considerations or                                                                          species in this subunit may require
                                               protection to address threats from                        Subunit 13b encompasses                             special management considerations or
                                               cumulative impacts to the species’                      approximately 16.3 mi (26 km) of                      protection to address threats from direct
                                               habitat from recreation, nonnative                      Temecula Creek from Dodge Valley                      mortality and habitat degradation from
                                               predators, and nonnative plants                         downstream to Vail Lake. As proposed,                 off-highway vehicular traffic, and
                                               (CNDDB 2008, EO 26).                                    Subunit 13b included a total of 4,756 ac              upstream sedimentation caused by
                                                                                                       (1,925 ha). The Secretary is exercising               urbanization, agriculture, or wildfire (R.
                                               Subunit 12b                                             his discretion to exclude from this final             Haase, MCAS Camp Pendleton, in litt.
                                                 Subunit 12b encompasses                               revised critical habitat designation,                 2009b, p. 1).
                                               approximately 5.5 mi (9 km) of the                      under section 4(b)(2) of the Act,                        As indicated above, the Secretary is
                                               Santa Margarita River upstream from the                 portions of Subunit 13b totaling 26 ac                exercising his discretion to exclude
                                               MCB Camp Pendleton boundary. The                        (11 ha). The portion of Subunit 13b we                approximately 249 ac (101 ha) that are
                                               subunit consists of 5 ac (2 ha) of State                are designating as critical habitat                   owned by or are under the jurisdiction
                                               land and 610 ac (247 ha) of private land.               consists of 95 ac (38 ha) of Forest                   of the permittees of the Western
                                               Subunit 12b contains the physical and                   Service land, 22 ac (9 ha) of BLM land,               Riverside County MSHCP. This
                                               biological features that are essential to               and 4,614 ac (1,867 ha) of private land.              exclusion is based on our determination
                                               the conservation of the species,                        Subunit 13b contains the physical and                 that the benefits of exclusion outweigh
                                               including aquatic habitat for breeding                  biological features that are essential to             the benefits of inclusion and that
                                               and non-breeding activities (PCEs 1, 2,                 the conservation of the species,                      exclusion of these areas will not result
                                               and 3) and upland habitat for foraging                  including aquatic habitat for breeding                in extinction of the species (see
                                               and dispersal activities (PCE 4). The                   and non-breeding activities (PCEs 1, 2,               Exclusions Under Section 4(b)(2) of the
                                               physical and biological features                        and 3) and upland habitat for foraging                Act—Other Relevant Impacts section
                                               essential to the conservation of the                    and dispersal activities (PCE 4). The                 below for a detailed discussion).
                                               species in this subunit may require                     physical and biological features
                                                                                                       essential to the conservation of the                  Unit 14: Lower and Middle San Luis
                                               special management considerations or
                                                                                                       species in this subunit may require                   Rey River Basin (10,115 ac (4,093 ha))
                                               protection to address threats from
                                               cumulative impacts to the species’                      special management considerations or                    This unit is located in northern San
                                               habitat from nonnative predators,                       protection to address threats from road               Diego County and encompasses
                                               nonnative plants, and vehicular traffic                 maintenance and sand-mining                           approximately 30 mi (48 km) of the San
                                               (Varanus Biological Services, Inc. 1999,                operations (HELIX 2004, p. 1).                        Luis Rey River from the western edge of
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                                               pp. 34–35).                                               As indicated above, the Secretary is                the La Jolla Indian Reservation
                                                                                                       exercising his discretion to exclude                  downstream to the confluence with
                                               Unit 13: Upper Santa Margarita River                    approximately 26 ac (11 ha) that are                  Guajome Creek near the City of
                                               Basin (7,863 ac (3,182 ha))                             owned by or are under the jurisdiction                Oceanside. It also includes
                                                 This unit is located in southern                      of the permittees of the Western                      approximately 3.4 mi (5.5 km) of Pala
                                               Riverside County and northern San                       Riverside County MSHCP. This                          Creek and 1.7 mi (2.7 km) of Keys Creek
                                               Diego County and consists of three                      exclusion is based on our determination               upstream from the confluence with the


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                                               San Luis Rey River. As proposed, Unit                   downstream to the upper end of Lake                   Subunit 16a
                                               14 included a total of 12,906 ac (5,223                 Henshaw, and (4) approximately 6.9 mi                   Subunit 16a encompasses: (1)
                                               ha). Of these lands, we have now                        (11 km) of Agua Caliente Creek from the               Approximately 16.9 mi (27 km) of Santa
                                               removed approximately 58 ac (23 ha), as                 western edge of section 13 (T10S, R3E)                Ysabel Creek from the northwestern
                                               we determined that these lands do not                   to the confluence with the San Luis Rey               quarter of section 24 (T12S, R01E) in the
                                               contain the physical or biological                      River. As proposed, Unit 15 included a                Cleveland National Forest downstream
                                               features essential to the conservation of               total of 12,977 ac (5,252 ha). The                    to the confluence with the San Dieguito
                                               the arroyo toad (see numbers 9 and 20                   Secretary is exercising his discretion to             River, (2) approximately 10 mi (16.1 km)
                                               in Summary of Changes from the 2009                     exclude from this final revised critical              of Guejito Creek from the 2,000 ft (610
                                               Proposed Rule To Revise Critical                        habitat designation, under section                    m)-elevation contour downstream to the
                                               Habitat section above for a detailed                    4(b)(2) of the Act, portions of Unit 15               confluence with Santa Ysabel Creek, (3)
                                               discussion). The Secretary is exercising                totaling 4,609 ac (1,865 ha). The portion
                                                                                                                                                             approximately 2.5 mi (4.0 km) of Boden
                                               his discretion to exclude from this final               of Unit 15 we are designating as critical
                                                                                                                                                             Canyon upstream from the Santa Ysabel
                                               revised critical habitat designation,                   habitat consists of 695 ac (281 ha) of
                                                                                                                                                             Creek confluence, (4) approximately 4.3
                                               under section 4(b)(2) of the Act,                       Forest Service land and 7,673 ac (3,105
                                                                                                                                                             mi (7 km) of Temescal Creek from the
                                               portions of Unit 14 totaling 2,733 ac                   ha) of private land. This unit supports
                                                                                                                                                             northern edge of Pamo Valley to the
                                               (1,106 ha). The portion of Unit 14 we                   a unique assemblage of small, disjunct,
                                                                                                                                                             confluence with Santa Ysabel Creek, (5)
                                               are designating as critical habitat                     high-elevation arroyo toad populations
                                                                                                                                                             approximately 9.1 mi (15 km) of Santa
                                               consists of approximately 4 ac (2 ha) of                and one significant population on Agua
                                                                                                                                                             Maria Creek from the west side of
                                               BLM land, 10 ac (4 ha) of State land,                   Caliente Creek (Gergus 1992, in litt., p.
                                                                                                                                                             Ramona to the confluence with Santa
                                               and 10,101 ac (4,088 ha) of private land.               1; Ervin 2000, in litt., pp. 2–3, 5; CNDDB
                                               This unit supports one of the largest                   2008, Element Occurrences (EOs) 27,                   Ysabel Creek, and (6) approximately 1
                                               contiguous river reaches that is                        32) in an area where in-stream and                    mi (2 km) of the San Dieguito River
                                               occupied by the species. Unit 14                        overland dispersal between populations                upstream from the confluence with
                                               contains the physical and biological                    likely still is possible. Unit 15 contains            Santa Ysabel Creek. As proposed,
                                               features that are essential to the                      the physical and biological features that             Subunit 16a included a total of 13,967
                                               conservation of the species, including                  are essential to the conservation of the              ac (5,653 ha). Of these lands, we have
                                               aquatic habitat for breeding and non-                   species, including aquatic habitat for                now removed approximately 101 ac (40
                                               breeding activities (PCEs 1, 2, and 3)                  breeding and non-breeding activities                  ha), as we determined that these lands
                                               and upland habitat for foraging and                     (PCEs 1, 2, and 3) and upland habitat for             do not contain the physical or biological
                                               dispersal activities (PCE 4). The                       foraging and dispersal activities (PCE 4).            features essential to the conservation of
                                               physical and biological features                        The physical and biological features                  the arroyo toad (see number 10 in
                                               essential to the conservation of the                    essential to the conservation of the                  Summary of Changes from the 2009
                                               species in this unit may require special                species in this unit may require special              Proposed Rule To Revise Critical
                                               management considerations or                            management considerations or                          Habitat section above for a detailed
                                               protection to address threats from dams                 protection to address threats from                    discussion). The subunit consists of 184
                                               and water diversions, intensive                         groundwater pumping on private lands,                 ac (74 ha) of Forest Service land, 6 ac
                                               urbanization, agriculture, and nonnative                nonnative predators, feral pigs, and                  (2 ha) of BLM land, 175 ac (71 ha) of
                                               predators and plants.                                   grazing (Winter in litt. 2010).                       State land, 143 ac (58 ha) of local
                                                 As indicated above, the Secretary is                     As indicated above, the Secretary is               government land, and 13,357 ac (5,405
                                               exercising his discretion to exclude                    exercising his discretion to exclude                  ha) of private land. Subunit 16a
                                               approximately 1,071 ac (433 ha) of                      approximately 4,609 ac (1,865 ha)                     contains the physical and biological
                                                                       ˜
                                               Rincon Band of Luiseno Mission                          within the existing and proposed                      features that are essential to the
                                               Indians Tribal Lands and approximately                  Remote Training Site Warner Springs.                  conservation of the species, including
                                               1,662 ac (673 ha) of Pala Band of                       This exclusion is based on our                        aquatic habitat for breeding and non-
                                                     ˜
                                               Luiseno Mission Indians Tribal Lands.                   determination that the benefits of                    breeding activities (PCEs 1, 2, and 3)
                                               These exclusions are based on our                       exclusion outweigh the benefits of                    and upland habitat for foraging and
                                               determination that the benefits of                      inclusion and that exclusion of these                 dispersal activities (PCE 4). The
                                               exclusion outweigh the benefits of                      areas will not result in extinction of the            physical and biological features
                                               inclusion, and that exclusion of these                  species (see Exclusions Under Section                 essential to the conservation of the
                                               areas will not result in extinction of the              4(b)(2) of the Act—Impacts to National                species in this subunit may require
                                               species (See Exclusions Under Section                   Security section below for a detailed                 special management considerations or
                                               4(b)(2) of the Act—Tribal Lands section                 discussion).                                          protection to address threats from
                                               below.                                                                                                        grazing, nonnative predators, feral pigs,
                                                                                                       Unit 16: Santa Ysabel Creek Basin
                                                                                                                                                             and urbanization (Tierra Environmental
                                               Unit 15: Upper San Luis Rey River                       (15,370 ac (6,220 ha))
                                                                                                                                                             Services 2001, in litt.; CNDDB 2008, EOs
                                               Basin (8,368 ac (3,386 ha))                               This unit is located in north-central               59, 61; Winter in litt. 2010).
                                                  This unit is located in northern San                 San Diego County and consists of two
                                               Diego County and encompasses: (1)                       subunits totaling 6 ac (2 ha) of BLM                  Subunit 16d
                                               Approximately 8.6 mi (14 km) of the                     land, 184 ac (74 ha) of Forest Service                  Subunit 16d encompasses
                                               West Fork of the San Luis Rey River                     land, 175 ac (71 ha) of State land, 143               approximately 6.2 mi (10 km) of Santa
                                               from Barker Valley downstream to the                    ac (58 ha) of local government land, and              Ysabel Creek about 0.5 mi (0.8 km) east
srobinson on DSKHWCL6B1PROD with RULES2




                                               upper end of Lake Henshaw, (2)                          14,862 ac (6,014 ha) of private land.                 of Highway 79 downstream to
                                                                                   ˜
                                               approximately 3.5 mi (6 km) of Canada                   This unit supports large amounts of                   Sutherland Reservoir. As proposed,
                                               Aguanga from just below Lake Jean                       suitable habitat connecting large                     Subunit 16d included a total of 1,527 ac
                                               downstream to the confluence with the                   populations with several additional                   (609 ha). The Secretary is exercising his
                                               San Luis Rey River, (3) approximately                   populations, thereby promoting the                    discretion to exclude from this final
                                               11.4 mi (18 km) of the upper San Luis                   long-term persistence of the species in               revised critical habitat designation,
                                               Rey River from the Indian Flats area                    the area.                                             under section 4(b)(2) of the Act, a


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                                               7266             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               portion of Subunit 16d totaling 23 ac (9                The physical and biological features                  Inc. 1999, p. 20; RECON 2008, pp. 1, 3–
                                               ha). The portion of Subunit 16b we are                  essential to the conservation of the                  4; Winter in litt. 2010).
                                               designating as critical habitat totals                  species in this subunit may require
                                                                                                                                                             Unit 18: Sweetwater River Basin (4,624
                                               1,504 ac (609 ha), and is comprised                     special management considerations or
                                                                                                                                                             ac (1,871 ha))
                                               entirely of private land. Subunit 16d                   protection to address threats from
                                               contains the physical and biological                    urbanization, nonnative predators, and                  This unit is located in south-central
                                               features that are essential to the                      feral pigs (Winter in litt. 2010).                    San Diego County and consists of two
                                               conservation of the species, including                    As indicated above, the Secretary is                subunits totaling 553 ac (224 ha) of
                                               aquatic habitat for breeding and non-                   exercising his discretion to exclude                  Forest Service land, 3 ac (1 ha) of San
                                               breeding activities (PCEs 1, 2, and 3)                  approximately 92 ac (37 ha) of Capitan                Diego National Wildlife Refuge land,
                                               and upland habitat for foraging and                     Grande Band of Diegueno Mission                       1,659 ac (671 ha) of State land, and
                                               dispersal activities (PCE 4). The                       Indians Tribal Lands. This exclusion is               2,410 ac (975 ha) of private land. This
                                               physical and biological features                        based on our determination that the                   unit supports several large populations
                                               essential to the conservation of the                    benefits of exclusion outweigh the                    over large stretches of rivers and streams
                                               species in this subunit may require                     benefits of inclusion, and that exclusion             (Gergus 1992, in litt., p. 1; Ervin 1997,
                                               special management considerations or                    of these areas will not result in                     in litt., pp. 3–5; Varanus Biological
                                               protection to address threats from                      extinction of the species (See Exclusions             Services, Inc. 1999, pp. 4–16; CNDDB
                                               grazing and feral pigs (CNDDB 2008, EO                  Under Section 4(b)(2) of the Act—Tribal               2008, EOs 38, 43, 67, 73, 77, 85, 99,
                                               62; Winter in litt. 2010).                              Lands section below.                                  100). These populations may function as
                                                 As indicated above, the Secretary is                                                                        an important linkage between toads in
                                                                                                       Subunit 17b                                           the San Diego River Basin (Unit 17) to
                                               exercising his discretion to exclude
                                               approximately 23 ac (9 ha) of Mesa                        Subunit 17b encompasses                             the north and Cottonwood Creek Basin
                                               Grande Band of Diegueno Mission                         approximately 7.2 mi (12 km) of the San               (Unit 19) to the south.
                                               Indians Tribal Land. This exclusion is                  Diego River downstream from El
                                                                                                       Capitan Reservoir. The subunit consists               Subunit 18a
                                               based on our determination that the
                                               benefits of exclusion outweigh the                      of 12 ac (5 ha) of BLM land, 36 ac (15                   Subunit 18a encompasses: (1)
                                               benefits of inclusion, and that exclusion               ha) of Forest Service land, and 1,817 ac              Approximately 26.6 mi (43 km) of the
                                               of these areas will not result in                       (735 ha) of private land. Subunit 17b                 Sweetwater River from the top of Upper
                                               extinction of the species (See Exclusions               contains the physical and biological                  Green Valley in Cuyamaca Rancho State
                                               Under Section 4(b)(2) of the Act—Tribal                 features that are essential to the                    Park downstream to the top of Loveland
                                               Lands section below.                                    conservation of the species, including                Reservoir, (2) approximately 4.3 mi (7
                                                                                                       aquatic habitat for breeding and non-                 km) of Viejas Creek from the western
                                               Unit 17: San Diego River Basin/San                      breeding activities (PCEs 1, 2, and 3)                border of the Viejas Indian Reservation
                                               Vicente Creek (4,171 ac (1,688 ha))                     and upland habitat for foraging and                   downstream to the confluence with the
                                                 This unit is located in central San                   dispersal activities (PCE 4). The                     Sweetwater River, and (3)
                                               Diego County and consists of three                      physical and biological features                      approximately 1.5 mi (2 km) of Peterson
                                               subunits totaling 35 ac (14 ha) of BLM                  essential to the conservation of the                  Canyon from just east of the Taylor
                                               land, 390 ac (158 ha) of Forest Service                 species in this subunit may require                   Creek confluence downstream to the top
                                               land, and 3,746 ac (1,516 ha) of private                special management considerations or                  of Loveland Reservoir. The subunit
                                               land. This unit supports suitable habitat               protection to address threats from                    consists of 553 ac (224 ha) of Forest
                                               for population expansion, thus                          urbanization, agriculture, nonnative                  Service land, 1,554 ac (629 ha) of State
                                               increasing the probability of the long-                 predators, and harmful water releases                 land, and 2,049 ac (829 ha) of private
                                               term persistence of these populations.                  (based on timing or amount) from the El               land. Subunit 18a contains the physical
                                                                                                       Capitan Reservoir.                                    and biological features that are essential
                                               Subunit 17a
                                                                                                                                                             to the conservation of the species,
                                                 Subunit 17a encompasses: (1)                          Subunit 17d
                                                                                                                                                             including aquatic habitat for breeding
                                               Approximately 8.7 mi (14 km) of the                       Subunit 17d encompasses                             and non-breeding activities (PCEs 1, 2,
                                               San Diego River from Temescal Creek                     approximately 7.6 mi (12 km) of San                   and 3) and upland habitat for foraging
                                               downstream to the upper edge of El                      Vicente Creek upstream from San                       and dispersal activities (PCE 4). The
                                               Capitan Reservoir, and (2)                              Vicente Reservoir. The subunit consists               physical and biological features
                                               approximately 1 mi (2 km) of lower                      of 23 ac (9 ha) of BLM land and 1,134                 essential to the conservation of the
                                               Cedar Creek. As proposed, Subunit 17a                   ac (459 ha) of private land. Subunit 17d              species in this subunit may require
                                               included a total of 1,241 ac (502 ha).                  contains the physical and biological                  special management considerations or
                                               The Secretary is exercising his                         features that are essential to the                    protection to address threats from
                                               discretion to exclude from this final                   conservation of the species, including                vehicular traffic, including off- highway
                                               revised critical habitat designation,                   aquatic habitat for breeding and non-                 vehicular traffic; horse-riding activities;
                                               under section 4(b)(2) of the Act,                       breeding activities (PCEs 1, 2, and 3)                nonnative predators; reservoir
                                               portions of Subunit 17a totaling 92 ac                  and upland habitat for foraging and                   inundation; feral pigs; and direct
                                               (37 ha). The portion of Subunit 17a we                  dispersal activities (PCE 4). The                     mortality from trampling or dumping
                                               are designating as critical habitat                     physical and biological features                      trash (Varanus Biological Services, Inc.
                                               consists of 354 ac (143 ha) of Forest                   essential to the conservation of the                  1999, p. 14; Mendelsohn et al. 2005, pp.
                                               Service land, and 795 ac (322 ha) of                    species in this subunit may require                   10–11; Winter in litt. 2010).
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                                               private land. Subunit 17a contains the                  special management considerations or
                                               physical and biological features that are               protection to address threats from                    Subunit 18c
                                               essential to the conservation of the                    urbanization, agriculture, nonnative                    Subunit 18c encompasses
                                               species, including aquatic habitat for                  predators, feral pigs, and harmful water              approximately 5.8 mi (9.3 km) of the
                                               breeding and non-breeding activities                    releases (based on timing or amount)                  Sweetwater River from immediately
                                               (PCEs 1, 2, and 3) and upland habitat for               from the Sutherland/San Vicente                       below Loveland Dam downstream to
                                               foraging and dispersal activities (PCE 4).              Aqueduct (Varanus Biological Services,                just above the Sycuan Resort. As


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                                                                Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                         7267

                                               proposed, Subunit 18c included a total                  an important linkage between toads in                 Cottonwood Creek from immediately
                                               of 627 ac (254 ha). Of these lands, we                  the Sweetwater River Basin (Unit 18) to               below Barrett Lake downstream to the
                                               have now removed approximately 6 ac                     the north and populations to the south                U.S.–Mexico border and includes 10.3
                                               (2 ha), as we determined that these                     in Mexico, as populations in this unit                mi (17 km) of Potrero Creek from
                                               lands do not contain the physical or                    represent the most southern arroyo toad               approximately the 2,466-ft (752-m)
                                               biological features essential to the                    populations in the species’ range within              elevation benchmark downstream to the
                                               conservation of the arroyo toad (see                    the United States.                                    confluence with Cottonwood Creek. The
                                               number 13 in Summary of Changes                                                                               subunit consists of 80 ac (32 ha) of
                                                                                                       Subunit 19a
                                               from the 2009 Proposed Rule To Revise                                                                         Forest Service land, 129 ac (52 ha) of
                                               Critical Habitat section above for a                      Subunit 19a encompasses: (1)                        BLM land, and 4,921 ac (1,991 ha) of
                                               detailed discussion). The Secretary is                  Approximately 7 mi (11.2 km) of                       private land. Subunit 19b contains the
                                               exercising his discretion to exclude                    Cottonwood Creek from Buckman                         physical and biological features that are
                                               from this final revised critical habitat                Springs (near Interstate 8) downstream                essential to the conservation of the
                                               designation, under section 4(b)(2) of the               to Morena Reservoir, (2) approximately                species, including aquatic habitat for
                                               Act, portions of Subunit 18c totaling                   2.8 mi (4.5 km) of Morena Creek                       breeding and non-breeding activities
                                               152 ac (62 ha). The portion of Subunit                  downstream to the Cottonwood Creek                    (PCEs 1, 2, and 3) and upland habitat for
                                               18c we are designating as critical habitat              confluence, (3) approximately 0.5 mi (1               foraging and dispersal activities (PCE 4).
                                               consists of 3 ac (1 ha) of San Diego                    km) of an unnamed tributary of Morena                 The physical and biological features
                                               National Wildlife Refuge land, 105 ac                   Creek in section 35 (T16S, R04E)                      essential to the conservation of the
                                               (42 ha) of State land, and 362 ac (146                  downstream to the confluence with                     species in this subunit may require
                                               ha) of private land. Subunit 18c                        Morena Creek, (4) approximately 5 mi (8               special management considerations or
                                               contains the physical and biological                    km) of Kitchen Creek downstream to the                protection to address threats from
                                               features that are essential to the                      Cottonwood Creek confluence, and (5)                  grazing, and nonnative plants and
                                               conservation of the species, including                  approximately 3.8 mi (6 km) of La Posta               predators (Ervin 1997, in litt.; TAIC
                                               aquatic habitat for breeding and non-                   Creek downstream to the Cottonwood                    2005, pp. 1, 3; CNDDB 2008, EOs 40, 64,
                                               breeding activities (PCEs 1, 2, and 3)                  Creek confluence. As proposed, Subunit                65, 79).
                                               and upland habitat for foraging and                     19a included a total of 5,847 ac (2,366
                                                                                                       ha). The Secretary is exercising his                  Subunit 19c
                                               dispersal activities (PCE 4). The
                                               physical and biological features                        discretion to exclude from this final                   Subunit 19c encompasses: (1)
                                               essential to the conservation of the                    revised critical habitat designation,                 Approximately 7.6 mi (12 km) of Pine
                                               species in this subunit may require                     under section 4(b)(2) of the Act,                     Valley Creek from the north edge of
                                               special management considerations or                    portions of Subunit 19a totaling 31 ac                section 12 (T15S, R4E) downstream to
                                               protection to address threats from                      (13 ha). The portion of Subunit 19a we                approximately 0.6 mi (1 km) south of
                                               harmful water releases (based on timing                 are designating as critical habitat                   Interstate 8, (2) approximately 0.6 mi (1
                                               or amount) from the Loveland Reservoir                  consists of 2,128 ac (861 ha) of Forest               km) of Noble Creek downstream to the
                                               and gravel mining operations (Madden-                   Service land, 1,476 ac (597 ha) of local              confluence with Pine Valley Creek, (3)
                                               Smith et al. 2003, pp. 15, 17).                         government land, and 2,212 ac (895 ha)                approximately 2.4 mi (4 km) of Scove
                                                  As indicated above, the Secretary is                 of private land. Subunit 19a contains                 Canyon downstream to the confluence
                                               exercising his discretion to exclude                    the physical and biological features that             with Pine Valley Creek, and (4)
                                               approximately 152 ac (62 ha) of Sycuan                  are essential to the conservation of the              approximately 1.3 mi (2 km) of an
                                               Band of the Kumeyaay Nation Tribal                      species, including aquatic habitat for                unnamed tributary upstream of Scove
                                               Lands. This exclusion is based on our                   breeding and non-breeding activities                  Canyon in sections 25 and 36 (T15S,
                                               determination that the benefits of                      (PCEs 1, 2, and 3) and upland habitat for             R04E). The subunit consists of 809 ac
                                               exclusion outweigh the benefits of                      foraging and dispersal activities (PCE 4).            (327 ha) of Forest Service land and 703
                                               inclusion, and that exclusion of these                  The physical and biological features                  ac (284 ha) of private land. Subunit 19c
                                               areas will not result in extinction of the              essential to the conservation of the                  contains the physical and biological
                                               species (see Exclusions Under Section                   species in this subunit may require                   features that are essential to the
                                               4(b)(2) of the Act—Tribal Lands section                 special management considerations or                  conservation of the species, including
                                               below).                                                 protection to address threats from                    aquatic habitat for breeding and non-
                                                                                                       grazing, recreational activities, and                 breeding activities (PCEs 1, 2, and 3)
                                               Unit 19: Cottonwood Creek Basin
                                                                                                       nonnative plants and predators (Ervin                 and upland habitat for foraging and
                                               (14,344 ac (5,804 ha))
                                                                                                       2000, in litt.; TAIC 2005, p. 1; CNDDB                dispersal activities (PCE 4). The
                                                  Unit 19 is located in southern San                   2008, EOs 20, 44, 69).                                physical and biological features
                                               Diego County and consists of five                         As indicated above, the Secretary is                essential to the conservation of the
                                               subunits totaling 190 ac (77 ha) of BLM                 exercising his discretion to exclude                  species in this subunit may require
                                               land, 3,927 ac (1,588 ha) of Forest                     approximately 31 ac (13 ha) within                    special management considerations or
                                               Service land, 1,476 ac (597 ha) of local                Camp Morena. This exclusion is based                  protection to address threats from
                                               government land, and 8,751 ac (3,541                    on our determination that the benefits of             urbanization, vehicular traffic, and
                                               ha) of private land. This unit                          exclusion outweigh the benefits of                    nonnative predators (Holland and Sisk
                                               encompasses a large number of arroyo                    inclusion and that exclusion of these                 2001, p. 9; CNDDB 2008, EOs 21, 22,
                                               toad occurrences (Gergus 1992, in litt.;                areas will not result in extinction of the            30).
                                               Varanus Biological Services, Inc. 1999,                 species (see Exclusions Under Section
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                                               pp. 2–3; Gergus 2000, in litt.; CNDDB                                                                         Subunit 19d
                                                                                                       4(b)(2) of the Act—Impacts to National
                                               2008, EOs 20–22, 30, 40, 44, 63–65, 69,                 Security section below for a detailed                   Subunit 19d encompasses
                                               79) in an area where in-stream and                      discussion).                                          approximately 8 mi (13 km) of Pine
                                               overland dispersal between populations                                                                        Valley Creek from the Nelson Canyon
                                               likely still is possible and where there                Subunit 19b                                           confluence downstream to Barrett
                                               is room for population expansion.                         Subunit 19b encompasses                             Reservoir and approximately 1.6 mi (3
                                               Additionally, this unit may function as                 approximately 12.7 mi (20 km) of                      km) of Horsethief Canyon downstream


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                                               to the confluence with Pine Valley                      The unit consists of 711 ac (288 ha) of               Subunit 22a
                                               Creek. The subunit consists of 910 ac                   Forest Service land and 1,065 ac (431                    Subunit 22a includes: (1)
                                               (368 ha) of Forest Service land and 28                  ha) of private land. This unit supports               Approximately 9.3 mi (18 km) of Deep
                                               ac (11 ha) of private land. Subunit 19d                 a population that may represent some of               Creek from near Holcomb Creek
                                               contains the physical and biological                    the last vestiges of a much greater                   downstream to the confluence with the
                                               features that are essential to the                      population that historically existed                  West Fork; (2) approximately 4 mi (6
                                               conservation of the species, including                  along the upper Santa Ana River Basin,                km) of Little Horsethief Creek upstream
                                               aquatic habitat for breeding and non-                   but was almost entirely extirpated due                from its confluence with Horsethief
                                               breeding activities (PCEs 1, 2, and 3)                  to urbanization of the greater Los                    Creek; (3) approximately 4 mi (6 km) of
                                               and upland habitat for foraging and                     Angeles area. Therefore, this location is             Horsethief Creek from approximately 1
                                               dispersal activities (PCE 4). The                       important to maintain the current                     mi (1.6 km) above the Little Horsethief
                                               physical and biological features                        geographic extent of the species. Unit 20             Creek confluence downstream to the
                                               essential to the conservation of the                    contains the physical and biological                  West Fork confluence; (4)
                                               species in this subunit may require                     features that are essential to the                    approximately 6 mi (10 km) of the West
                                               special management considerations or                    conservation of the species, including                Fork of the Mojave River from Highway
                                               protection to address threats from U.S.                 aquatic habitat for breeding and non-                 173 downstream to Mojave River Forks
                                               Border Patrol activities (Varanus                       breeding activities (PCEs 1, 2, and 3)                Dam; (5) approximately 1 mi (1.6 km) of
                                               Biological Services, Inc. 1999, p. 2).                  and upland habitat for foraging and                   the Mojave River below Mojave River
                                               Subunit 19e                                             dispersal activities (PCE 4). The                     Forks Dam; (6) approximately 1.4 mi
                                                 Subunit 19e encompasses                               physical and biological features                      (2.2 km) of Grass Valley Creek upstream
                                               approximately 4.4 mi (7 km) of Campo                    essential to the conservation of the                  from the confluence with the West Fork;
                                               Creek from Campo Lake downstream to                     species in this unit may require special              and (7) approximately 2.8 mi (4.5 km)
                                               the U.S.-Mexico border. The subunit                     management considerations or                          of Kinley Creek upstream from the Deep
                                               consists of 61 ac (25 ha) of BLM land                   protection to address threats from                    Creek confluence. Subunit 22a consists
                                               and 889 ac (360 ha) of private land.                    recreational activities.                              of 2,143 ac (867 ha) of Federal land,
                                               Subunit 19e contains the physical and                                                                         3,412 ac (1,381 ha) of private land, and
                                                                                                       Unit 21: Little Rock Creek Basin (612 ac
                                               biological features that are essential to                                                                     47 ac (19 ha) of State land. This subunit
                                                                                                       (248 ha))                                             contains Summit Valley, which
                                               the conservation of the species,
                                               including aquatic habitat for breeding                    This unit is located in central Los                 encompasses the lower portions of
                                               and non-breeding activities (PCEs 1, 2,                 Angeles County and encompasses: (1)                   Horsethief Creek and the West Fork of
                                               and 3) and upland habitat for foraging                  Approximately 5.9 mi (9.5 km) of Little               the Mojave River, a broad, flat, alluvial
                                               and dispersal activities (PCE 4). The                   Rock Creek from the South Fork                        valley that supports a substantial arroyo
                                               physical and biological features                        confluence downstream to the upper                    toad population (Ramirez 2003, pp. 16–
                                               essential to the conservation of the                    end of Little Rock Reservoir (in the                  17). Additionally, the downstream
                                               species in this subunit may require                     vicinity of Rocky Point Picnic Ground),               portion of this subunit contains the
                                               special management considerations or                    and (2) approximately 1.1 mi (1.8 km)                 driest conditions of any unit proposed
                                               protection to address threats from fire                 of Santiago Creek upstream from the                   for arroyo toad critical habitat (Teale
                                               management activities along the U.S.–                   confluence with Little Rock Creek in the              Data Center 1998, p. 1; CIMS 2000, p.
                                               Mexico border (LEI 2008, p. 2).                         Little Rock Creek Basin. The unit                     1), Subunit 22a contains the physical
                                                                                                       consists of 612 ac (248 ha) of Forest                 and biological features that are essential
                                               Desert Recovery Unit                                                                                          to the conservation of the species,
                                                                                                       Service land. This unit is on the
                                                  As described in the recovery plan                    periphery of the species’ range in the                including aquatic habitat for breeding
                                               (Service 1999, pp. 1–119), maintaining                  Mojave Desert and geographically                      and non-breeding activities (PCEs 1, 2,
                                               arroyo toad populations in the areas                    isolated from other known arroyo toad                 and 3) and upland habitat for foraging
                                               described by the following four unit                    populations; therefore, it is important               and dispersal activities (PCE 4). The
                                               descriptions is necessary to conserve the               for maintaining the current geographic                physical and biological features
                                               species in the desert recovery unit. Each                                                                     essential to the conservation of the
                                                                                                       extent of the species. Unit 21 contains
                                               of these units is isolated from each other                                                                    species in this subunit may require
                                                                                                       the physical and biological features that
                                               and from any other recovery units,                                                                            special management considerations or
                                                                                                       are essential to the conservation of the
                                               making the issues of inbreeding,                                                                              protection to address threats from
                                                                                                       species, including aquatic habitat for
                                               fragmentation, and random negative                                                                            nonnative species, urban development,
                                                                                                       breeding and non-breeding activities
                                               impacts of great concern. However, this                                                                       and recreation.
                                                                                                       (PCEs 1, 2, and 3) and upland habitat for                Based on information submitted by
                                               recovery unit also represents unique                    foraging and dispersal activities (PCE 4).
                                               ecological conditions for arroyo toads,                                                                       Summit Valley Ranch during the initial
                                                                                                       The physical and biological features                  public comment period from October
                                               such as extremes in aridity, heat, and                  essential to the conservation of the
                                               cold, and likely harbors important                                                                            13, 2009, to December 14, 2009, we
                                                                                                       species in this unit may require special              removed approximately 82 ac (33 ha) of
                                               genetic diversity.                                      management considerations or                          private land from Subunit 22a. The
                                               Unit 20: Upper Santa Ana River Basin/                   protection to address threats from                    lands in question are located north of
                                               Cajon Wash (1,775 ac (718 ha))                          recreational activities.                              State Road 138 on Summit Valley
                                                 This unit is located in southwestern                  Unit 22: Upper Mojave River Basin                     Ranch, San Bernardino County. We
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                                               San Bernardino County and                               (5,602 ac (2,267 ha))                                 included this area in the proposed
                                               encompasses approximately 7.9 mi (13                                                                          revised critical habitat designation
                                               km) of Cajon Wash from approximately                      This unit is located in San Bernardino              because we believed it contained
                                               0.2 mi (0.3 km) north of United States                  County and consists of one subunit                    suitable upland habitat for arroyo toads;
                                               Highway 138 downstream to                               totaling 2,143 ac (867 ha) of Federal                 however, it has come to our attention
                                               approximately 0.3 mi (0.5 km)                           land, 47 ac (19 ha) of State land, and                that (1) surveys have never detected
                                               northwest of the Interstate 15 crossing.                3,412 ac (1,381 ha) of private land.                  arroyo toads in the area, (2) the area


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                                               lacks the PCEs for the arroyo toad, and                 destruction or adverse modification of                adversely affect, listed species or critical
                                               (3) State Route 138 serves as a barrier for             proposed critical habitat.                            habitat.
                                               arroyo toads to disperse into the area.                    Decisions by the Fifth and Ninth                      An exception to the concurrence
                                               Consequently, we determined that the                    Circuit Courts of Appeal have                         process referred to in (1) above occurs
                                               area north of State Route 138 does not                  invalidated our definition of                         in consultations involving National Fire
                                               contain the physical and biological                     ‘‘destruction or adverse modification’’               Plan projects. In 2004, the Forest
                                               features essential to the conservation of               (50 CFR 402.02) (see Gifford Pinchot                  Service and the BLM reached
                                               arroyo toads and therefore does not                     Task Force v. U.S. Fish and Wildlife                  agreements with the Service to
                                               meet the definition of critical habitat for             Service, 378 F.3d 1059 (9th Cir. 2004)                streamline a portion of the section 7
                                               the arroyo toad.                                        and Sierra Club v. U.S. Fish and                      consultation process (BLM–ACA 2004,
                                                 Additionally, we removed Subunit                      Wildlife Service et al., 245 F.3d 434,                pp. 1–8; FS–ACA 2004, pp. 1–8). The
                                               22c (approximately 234 ac (915 ha))                     442F (5th Cir. 2001)), and we do not rely             agreements allow the Forest Service and
                                               within Unit 22 from our revised critical                on this regulatory definition when                    the BLM the opportunity to make ‘‘not
                                               habitat designation. Subunit 22c is                     analyzing whether an action is likely to              likely to adversely affect’’
                                               within the geographical area occupied at                destroy or adversely modify critical                  determinations for projects
                                               the time of listing; however, this subunit              habitat. Under the statutory provisions               implementing the National Fire Plan.
                                               was erroneously included in the                         of the Act, we determine destruction or               Such projects include prescribed fire,
                                               proposed revised rule (74 FR 52612;                     adverse modification on the basis of                  mechanical fuels treatments (thinning
                                               October 13, 2009). Although we were                     whether, with implementation of the                   and removal of fuels to prescribed
                                               not aware of this issue when we                         proposed Federal action, the affected                 objectives), emergency stabilization,
                                               published the proposed rule, the                        critical habitat would remain functional              burned area rehabilitation, road
                                               existence of Cedar Springs Dam                          (or retain the current ability for the PCEs           maintenance and operation activities,
                                               upstream of this subunit has altered the                to be functionally established) to serve              ecosystem restoration, and culvert
                                               hydrology of the 1-mi (1.6-km) reach of                 its intended conservation role for the                replacement actions. The Forest Service
                                               the upper West Fork of the Mojave River                 species. Section 7(a)(2) of the Act                   and the BLM will insure staff is
                                               above Silverwood Lake that extends to                   requires Federal agencies, including the              properly trained and both agencies will
                                               the upper end of the lake to such an                    Service, to evaluate their actions with               submit monitoring reports to the Service
                                               extent that it does not contain the                     respect to any species that is                        to determine if the procedures are being
                                               features essential to the conservation of               endangered or threatened and with                     implemented properly and effects to
                                               the species and therefore does not meet                 respect to its critical habitat, if any is            endangered species and their habitats
                                               the definition of critical habitat for the              proposed or designated. Regulations                   are being properly evaluated. As a result
                                               arroyo toad.                                            implementing this interagency                         we do not believe the alternative
                                                                                                       cooperation provision of the Act are                  consultation processes being
                                               Unit 23: Whitewater River Basin                                                                               implemented as a result of the National
                                                                                                       codified at 50 CFR part 402.
                                                 We removed Unit 23 (approximately                        If a Federal action may affect a listed            Fire Plan will differ significantly from
                                               1,355 ac (548 ha)) from the final revised               species or its critical habitat, the                  those consultations being conducted by
                                               critical habitat designation. This unit                 responsible Federal agency (action                    the Service.
                                               was erroneously included in the                                                                                  If we issue a biological opinion
                                                                                                       agency) must enter into consultation
                                               proposed revised rule (74 FR 52612;                                                                           concluding that a project is likely to
                                                                                                       with us. Examples of actions that are
                                               October 13, 2009). Following                                                                                  jeopardize the continued existence of a
                                                                                                       subject to the section 7 consultation
                                               examination of data used to map Unit                                                                          listed species and/or destroy or
                                                                                                       process are actions on State, tribal,
                                               23 in the proposed rule and discussions                                                                       adversely modify critical habitat, we
                                                                                                       local, or private lands that require a
                                               with species experts regarding                                                                                also provide reasonable and prudent
                                                                                                       Federal permit (such as a permit from
                                               identification records, we determined                                                                         alternatives to the project, if any are
                                                                                                       the U.S. Army Corps of Engineers under
                                               that these records are not arroyo toads                                                                       identifiable, that would avoid the
                                                                                                       section 404 of the Clean Water Act (33
                                               and do not support a determination that                                                                       likelihood of jeopardy and/or
                                                                                                       U.S.C. 1251 et seq.) or a permit from the
                                               this area meets the definition of critical                                                                    destruction or adverse modification of
                                                                                                       Service under section 10 of the Act) or
                                               habitat. Therefore, Unit 23 is not                                                                            critical habitat. We define ‘‘reasonable
                                                                                                       that involve some other Federal action
                                               included in this final revised critical                                                                       and prudent alternatives’’ at 50 CFR
                                                                                                       (such as funding from the Federal
                                               habitat rule.                                                                                                 402.02 as alternative actions identified
                                                                                                       Highway Administration, Federal
                                                                                                                                                             during consultation that:
                                               Effects of Critical Habitat Designation                 Aviation Administration, or the Federal                  • Can be implemented in a manner
                                                                                                       Emergency Management Agency).                         consistent with the intended purpose of
                                               Section 7 Consultation                                  Federal actions not affecting listed                  the action,
                                                  Section 7(a)(2) of the Act requires                  species or critical habitat, and actions                 • Can be implemented consistent
                                               Federal agencies, including the Service,                on State, tribal, local, or private lands             with the scope of the Federal agency’s
                                               to ensure that any action they fund,                    that are not federally funded or                      legal authority and jurisdiction,
                                               authorize, or carry out is not likely to                authorized, do not require section 7                     • Are economically and
                                               jeopardize the continued existence of                   consultation.                                         technologically feasible, and
                                               any endangered species or threatened                       As a result of this consultation, we                  • Would, in the Director’s opinion,
                                               species or result in the destruction or                 document compliance with the                          avoid jeopardizing the continued
                                               adverse modification of designated                      requirements of section 7(a)(2) of the                existence of the listed species or
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                                               critical habitat of such species. In                    Act through our issuance of:                          destroying or adversely modifying
                                               addition, section 7(a)(4) of the Act                       (1) A concurrence letter for Federal               critical habitat.
                                               requires Federal agencies to confer with                actions that may affect, but are not                     Reasonable and prudent alternatives
                                               the Service on any agency action which                  likely to adversely affect, listed species            can vary from slight project
                                               is likely to jeopardize the continued                   or critical habitat; or                               modifications to extensive redesign or
                                               existence of any species proposed to be                    (2) A biological opinion for Federal               relocation of the project. Costs
                                               listed under the Act or result in the                   actions that may affect, and are likely to            associated with implementing a


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                                               reasonable and prudent alternative are                  to these individuals and their life                   subjecting eggs, larvae, tadpoles, and
                                               similarly variable.                                     cycles.                                               adult arroyo toads to increased
                                                  Regulations at 50 CFR 402.16 require                    (2) Actions that increase sediment                 predation pressure or limit the amount
                                               Federal agencies to reinitiate                          deposition within the stream channel or               of habitat available for the species
                                               consultation on previously reviewed                     disturb upland foraging and dispersal                 through competition, which would
                                               actions in instances where we have                      habitat. Such activities include, but are             adversely affect the arroyo toad’s ability
                                               listed a new species or subsequently                    not limited to: Excessive sedimentation               to complete its life cycle.
                                               designated critical habitat that may be                 from livestock overgrazing, road                         Note that the scale of these activities
                                               affected, and the Federal agency has                    construction, commercial or urban                     is a crucial factor in determining
                                               retained discretionary involvement or                   development, channel alteration, timber               whether, in any instance, they would
                                               control over the action (or the agency’s                harvest, off-highway vehicle use or                   directly or indirectly alter critical
                                               discretionary involvement or control is                 recreational activity, and other                      habitat to the extent that the value of the
                                               authorized by law). Consequently,                       watershed and floodplain disturbances.                critical habitat would be appreciably
                                               Federal agencies may sometimes need to                  These activities could eliminate or                   diminished in providing for the
                                               request reinitiation of consultation with               reduce the habitat necessary for the                  physical or biological features essential
                                               us on actions for which formal                          growth and reproduction of the arroyo                 to the conservation of the arroyo toad.
                                               consultation has been completed, if                     toad by increasing the sediment                          We consider all of the final revised
                                               those actions with discretionary                        deposition to levels that would                       critical habitat units and subunits to
                                               involvement or control may affect                       adversely affect the arroyo toad’s ability            contain features essential to the
                                               subsequently listed species or                          to complete its life cycles.                          conservation of the arroyo toad. All
                                               designated critical habitat.                               (3) Actions that alter channel                     units are within the geographical area
                                                                                                       morphology or geometry. Such activities               occupied by the species at the time it
                                               Application of the ‘‘Adverse                            include, but are not limited to:                      was listed, and are currently occupied
                                               Modification’’ Standard                                 Construction and operation of flood                   by arroyo toads. To ensure that their
                                                  The key factor related to the adverse                control and water diversion structures,               actions do not jeopardize the continued
                                               modification determination is whether,                  such as dams and reservoirs that                      existence of the arroyo toad, Federal
                                               with implementation of the proposed                     regulate stream flows and trap                        agencies already consult with us on
                                               Federal action, the affected critical                   sediments, direct groundwater                         activities in areas currently occupied by
                                               habitat would continue to serve its                     extraction, channelization,                           the arroyo toad, or in unoccupied areas
                                                                                                       impoundment, road and bridge                          if the species may be affected by their
                                               intended conservation role for the
                                                                                                       construction, development, mining,                    actions.
                                               species, or would retain its current
                                                                                                       dredging, and destruction of riparian
                                               ability for the PCEs to be functionally                                                                       Exemptions
                                                                                                       vegetation. These activities may lead to
                                               established. Activities that may destroy
                                                                                                       changes to the hydraulic functioning of               Application of Section 4(a)(3) of the Act
                                               or adversely modify critical habitat are
                                                                                                       the stream by altering the timing,
                                               those that alter the physical and                                                                                The Sikes Act Improvement Act of
                                                                                                       duration, quantity and levels of water
                                               biological features (PCEs) to an extent                                                                       1997 (Sikes Act) (16 U.S.C. 670a)
                                                                                                       flows and may result in degradation or
                                               that appreciably reduces the                                                                                  required each military installation that
                                                                                                       elimination of the arroyo toad and its
                                               conservation value of critical habitat for                                                                    includes land and water suitable for the
                                                                                                       habitat. These actions can also lead to
                                               the arroyo toad. As discussed above, the                increased sedimentation and                           conservation and management of
                                               role of critical habitat is to support life-            degradation in water quality to levels                natural resources to complete an
                                               history needs of the species and to                     that are beyond the tolerances of the                 integrated natural resources
                                               provide for the conservation of the                     arroyo toad and provide habitat for                   management plan (INRMP) by
                                               species.                                                nonnative species that prey on arroyo                 November 17, 2001. An INRMP
                                                  Section 4(b)(8) of the Act requires us               toads.                                                integrates implementation of the
                                               to briefly evaluate and describe in any                    (4) Actions that eliminate upland                  military mission of the installation with
                                               proposed or final regulation that                       foraging, aestivating, or dispersal habitat           stewardship of the natural resources
                                               designates critical habitat those                       for the arroyo toad. Such activities                  found on the base. Each INRMP
                                               activities involving a Federal action that              include, but are not limited to: Road                 includes:
                                               may destroy or adversely modify such                    construction, commercial or urban                        (1) An assessment of the ecological
                                               habitat, or that may be affected by such                development, timber harvest, off-                     needs on the installation, including the
                                               designation.                                            highway vehicle use or recreational                   need to provide for the conservation of
                                                  Activities that, when carried out,                   activity, and other watershed and                     listed species;
                                               funded, or authorized by a Federal                      floodplain disturbances. These actions                   (2) A statement of goals and priorities;
                                               agency, may adversely affect critical                   could affect the species’ habitat through                (3) A detailed description of
                                               habitat and, therefore, should result in                erosion; siltation; soil compaction;                  management actions to be implemented
                                               consultation for the arroyo toad include,               water quality degradation from urban                  to provide for these ecological needs;
                                               but are not limited to, the following:                  runoff containing contaminants,                       and
                                                  (1) Actions that alter water chemistry               fertilizers, and pesticides; and the                     (4) A monitoring and adaptive
                                               or temperature. Such activities include,                spread of introduced nonnative plants.                management plan.
                                               but are not limited to: Release of                         (5) Actions that lead to introducing,                 Among other things, each INRMP
                                               chemicals, biological pollutants, or                    spreading, or augmenting nonnative                    must, to the extent appropriate and
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                                               heated effluents into the surface water                 aquatic species in stream segments used               applicable, provide for fish and wildlife
                                               or into connected groundwater at a                      by arroyo toad. Possible actions include,             management; fish and wildlife habitat
                                               point source or by dispersed release                    but are not limited to: Fish stocking for             enhancement or modification; wetland
                                               (non-point source). These activities can                sport, nonnative aquatic plant species                protection, enhancement, and
                                               alter water conditions beyond the                       for aesthetics, or other related actions.             restoration where necessary to support
                                               tolerances of the arroyo toad and result                These activities could affect the growth              fish and wildlife; and enforcement of
                                               in direct or cumulative adverse effects                 and reproduction of the arroyo toad by                applicable natural resource laws.


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                                                                Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                        7271

                                                  The National Defense Authorization                   military facilities under section 4(b)(2)             monitoring that will meet the Service’s
                                               Act for Fiscal Year 2004 (Pub. L. 108–                  of the Act for reasons of national                    criteria to demonstrate population status
                                               136) amended the Act to limit areas                     security (see Exclusions Under Section                of arroyo toads on Fort Hunter Liggett;
                                               eligible for designation as critical                    4(b)(2) of the Act—Impacts to National                (2) reduce public and military vehicle
                                               habitat. Specifically, section 4(a)(3)(B)(i)            Security section below).                              encroachment into sandy riverine
                                               of the Act (16 U.S.C. 1533(a)(3)(B)(i))                                                                       habitat, particularly during the breeding
                                                                                                       Fort Hunter Liggett Military Reservation
                                               now provides: ‘‘The Secretary shall not                                                                       season for the arroyo toad; (3) minimize
                                               designate as critical habitat any lands or                 Fort Hunter Liggett was established in             adverse effects to arroyo toads from
                                               other geographical areas owned or                       1940 as Hunter Liggett Military                       roads and borrow sites (sites where soil
                                               controlled by the Department of                         Reservation, when the Army purchased                  and other material is removed for
                                               Defense, or designated for its use, that                lands belonging to William Randolph                   construction purposes); (4) gain an
                                               are subject to an integrated natural                    Hearst and other private landowners.                  understanding of the timing of arroyo
                                               resources management plan prepared                      The installation was used intensively to              toad upland use, extent of upland use
                                               under section 101 of the Sikes Act (16                  prepare troops for World War II, the                  and distance traveled from breeding
                                               U.S.C. 670a), if the Secretary determines               Korean and Vietnam conflicts, and the                 sites, characteristics of preferred upland
                                               in writing that such plan provides a                    Cold War; as a training ground for the                habitat to include micro- and macro-
                                               benefit to the species for which critical               7th Infantry Division formerly stationed              habitats and substrate of burrowing
                                               habitat is proposed for designation.’’                  at Fort Ord; and as a Test and                        sites, and use of rodent burrows; (5)
                                                  We consult with the military on the                  Experimentation Command Center. Fort                  identify threat posed by noxious weeds
                                               development and implementation of                       Hunter Liggett occupies approximately                 and reduce noxious weed presence to
                                               INRMPs for installations with federally                 163,000 ac (66,000 ha) of varied habitats             improve native habitat and site
                                               listed species. Any INRMPs developed                    within the Santa Lucia Mountains in                   diversity; (6) obtain geomorphology
                                               by military installations located within                southern Monterey County, California.                 information that will provide a
                                               the range of the arroyo toad and that                   Currently, the installation is used for               foundation for development of
                                               contain those features essential to the                 training by the 40th Mechanized                       management strategies for arroyo toad
                                               species’ conservation were to ensure                    Infantry Division of the California Army              habitat and a better idea of habitat
                                               they provided a benefit to the arroyo                   National Guard; reserve units from                    sustainability for arroyo toads; (7)
                                               toad in order to allow us to determine                  several branches of the Armed Forces;                 identify the threats posed by nonnative
                                               if those military installations qualified               active components of the Army Rangers,                beavers in the San Antonio River in
                                               for exemption under section 4(a)(3)(B)                  Special Forces, Navy Seabees, and
                                                                                                                                                             arroyo toad breeding habitat and
                                               of the Act.                                             Marines; and other government
                                                                                                                                                             outlying areas and implement control if
                                                  Fort Hunter Liggett Military                         agencies.
                                                                                                          The Fort Hunter Liggett INRMP is a                 threats warrant; (8) reduce bullfrog
                                               Reservation, Marine Corps Base Camp
                                                                                                       planning document that guides the                     abundance in areas most likely to
                                               Pendleton (MCB Camp Pendleton), and
                                                                                                       management and conservation of                        benefit arroyo toads; (9) prevent
                                               Naval Weapons Station Seal Beach—
                                                                                                       natural resources under the                           introduction and spread of disease at
                                               Detachment Fallbrook (Fallbrook Naval
                                                                                                       installation’s control. The INRMP was                 Fort Hunter Liggett; (10) maintain a
                                               Weapons Station) have Service-
                                                                                                       prepared to ensure that natural                       viable population of arroyo toads and
                                               approved INRMPs that address the
                                                                                                       resources are managed in support of the               suitable habitat on Fort Hunter Liggett;
                                               arroyo toad, and these DOD installations
                                                                                                       Fort Hunter Liggett military training                 (11) evaluate current management goals
                                               have committed to work closely with us
                                                                                                       mission and that all activities are                   and actions and adapt to meet species
                                               and the CDFG to continually refine the
                                                                                                       consistent with Federal stewardship                   management requirements; (12)
                                               existing INRMPs as part of the Sikes
                                               Act’s INRMP review process. Based on                    requirements. The Fort Hunter Liggett                 integrate species management and
                                               the above considerations and rationales                 INRMP was completed in 2005,                          conservation with Fort Hunter Liggett
                                               provided below, and in accordance with                  followed by a revised and updated                     training and maintenance activities; (13)
                                               section 4(a)(3)(B)(i) of the Act, we have               version in 2007, to address conservation              provide for adaptive management in
                                               determined that conservation efforts                    and management of its natural                         accordance with the Fort Hunter Liggett
                                               identified in the INRMPs will provide a                 resources, including conservation                     INRMP; and (14) monitor mortality in
                                               benefit to the arroyo toad occurring in                 measures for the arroyo toad (U.S. Army               order to augment the Service’s ability to
                                               habitats within or adjacent to these                    Reserve Command 2007, pp. 171–174).                   determine effects of Fort Hunter Liggett
                                               installations. Therefore, approximately                 The INRMP is Fort Hunter Liggett’s                    activities on arroyo toad and identify
                                               19,706 ac (7,956 ha) of habitat subject to              adaptive plan for managing natural                    mortality factors at Fort Hunter Liggett.
                                               the Service-approved INRMPs on Fort                     resources to support and be consistent                   Based on the above considerations,
                                               Hunter Liggett Military Reservation,                    with the military mission while                       and in accordance with section
                                               MCB Camp Pendleton, and Fallbrook                       protecting and enhancing the biological               4(a)(3)(B)(i) of the Act, we have
                                               Naval Weapons Station are exempt from                   integrity of lands under its use (U.S.                determined that conservation efforts
                                               this revised critical habitat designation               Army 2004, p. iv). Fort Hunter Liggett                identified in the 2005 INRMP and 2007
                                               for the arroyo toad under section 4(a)(3)               is committed to an ecosystem                          updated INRMP for Fort Hunter Liggett
                                               of the Act. See the following individual                management approach for its natural                   provide a benefit to the arroyo toad and
                                               military sections below for information                 resources program by integrating all                  features essential to its conservation,
                                               on the history of the INRMPs and how                    components of natural resource                        and will benefit arroyo toads occurring
                                               each INRMP provides a benefit to arroyo                 management into a comprehensive and                   in habitats on the installation. This
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                                               toad and its habitat.                                   coordinated effort. An integrated                     includes habitat located in the Salinas
                                                  Although Remote Training Site                        approach to ecosystem management will                 River Basin (Service 1999, p. 14).
                                               Warner Springs and Camp Morena had                      help protect the biological diversity                 Therefore, lands subject to the INRMP
                                               not completed the INRMP process by                      found at Fort Hunter Liggett.                         for the Fort Hunter Liggett Military
                                               the time this critical habitat rule was                    The INRMP identifies the following                 Reservation are exempt from critical
                                               finalized, the Secretary is exercising his              management and protection measures                    habitat designation under section
                                               discretion to exclude lands within these                for the arroyo toad: (1) Implement                    4(a)(3)(B) of the Act, and we are not


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                                               including approximately 6,453 ac (2,612                 revised 2007 INRMP (MCB Camp                          arroyo toad and its habitat. As a result
                                               ha) of habitat in this final revised                    Pendleton 2007, Chapter 2, p. 31).                    of these regulations and restrictions,
                                               critical habitat designation because of                    The arroyo toad receives                           activities occurring on MCB Camp
                                               this exemption.                                         programmatic protection from training                 Pendleton are currently conducted in a
                                                                                                       and other installation activities within              manner that minimizes impacts to
                                               Marine Corps Base (MCB) Camp                            the riparian component of its habitat, as             arroyo toad habitat.
                                               Pendleton                                               outlined and required in the Riparian                   MCB Camp Pendleton’s INRMP also
                                                  MCB Camp Pendleton is the Marine                     Ecosystem Conservation Plan (MCB                      benefits the arroyo toad through ongoing
                                               Corps’ premier amphibious training                      Camp Pendleton 2007, Appendix C).                     monitoring and research efforts. The
                                               installation and its only west coast                    Management and protection measures                    installation conducts annual monitoring
                                               amphibious assault training center. The                 for the arroyo toad identified in                     to track arroyo toad populations and has
                                               installation has been conducting air,                   Appendix C of the INRMP include, but                  conducted a study to examine arroyo
                                               sea, and ground assault training since                  are not limited to, the following: (1)                toad use of habitat dominated by
                                               World War II. MCB Camp Pendleton                        Eliminating nonnative, invasive species               Arundo donax (although analysis of this
                                               occupies over 125,000 ac (50,586 ha) of                 (such as Arundo donax) on the                         study is not yet complete). Data are
                                               coastal southern California in the                      installation and off the installation in              provided to all necessary personnel
                                               northwest corner of San Diego County.                   partnership with upstream landowners                  through MCB Camp Pendleton’s GIS
                                               Aside from nearly 10,000 ac (4,047 ha)                  to enhance ecosystem value; (2)                       database on sensitive resources and in
                                               that is developed, most of the                          providing viable riparian corridors and               their published resource atlas.
                                               installation is largely undeveloped land                promoting connectivity of native                      Additionally, MCB Camp Pendleton
                                               that is used for training. MCB Camp                     riparian habitats; (3) maintaining                    collaborated with the U.S. Geological
                                               Pendleton is situated between two major                 natural floodplain processes and extent               Survey’s Biological Resources Division
                                               metropolitan areas: Los Angeles, 82                     of these areas by avoiding and                        to develop and implement a rigorous,
                                               miles (132 kilometers) to the north, and                minimizing further permanent loss of                  science-based monitoring protocol for
                                               San Diego, 38 miles (61 kilometers) to                  floodplain habitats; (4) maintaining to               arroyo toad populations throughout the
                                               the south. Nearby communities include                   the extent practicable stream and river               installation, including surveying for
                                               Oceanside to the south, Fallbrook to the                flows needed to support riparian                      presence of eggs and larvae (Atkinson et
                                               east, and San Clemente to the                           habitat; (5) monitoring and maintaining               al. 2003, pp. 4–5).
                                                                                                       groundwater levels and basin                            We are consulting with the Marine
                                               northwest. Aside from a portion of the
                                                                                                       withdrawals to avoid loss and                         Corps under section 7 of the Act to
                                               installation’s border that is shared with
                                                                                                       degradation of habitat quality; (6)                   programmatically address potential
                                               the San Mateo Wilderness Area and the
                                                                                                       restoring areas to their original                     upland impacts to the arroyo toad (and
                                               Fallbrook Naval Weapons Station,
                                                                                                       condition after disturbance, such as                  several other species) as a result of
                                               surrounding land use is urban
                                                                                                       following project construction or fire                military training and other activities on
                                               development, rural residential
                                                                                                       damage; and (7) promoting increased                   MCB Camp Pendleton. Upon
                                               development, and agricultural farming
                                                                                                       arroyo toad populations in watersheds                 completion of this consultation, we
                                               and ranching. The largest single                                                                              expect additional measures that benefit
                                                                                                       through perpetuation of natural
                                               leaseholder on the installation is                                                                            the arroyo toad will be incorporated into
                                                                                                       ecosystem processes and programmatic
                                               California State Parks, which includes a                                                                      the INRMP for MCB Camp Pendleton.
                                                                                                       instruction application for avoidance
                                               50-year real estate lease granted on                                                                          This consultation is currently in
                                                                                                       and minimization of impacts (MCB
                                               September 1, 1971, for 2,000 ac (809 ha)                                                                      progress, and we did not rely on any
                                                                                                       Camp Pendleton 2007, Appendix C, pp.
                                               that encompasses San Onofre State                                                                             proposed measures in our consideration
                                                                                                       C5–C8).
                                               Beach.                                                     Current environmental regulations                  of the INRMP under section 4(a)(3)(B) of
                                                  The MCB Camp Pendleton INRMP is                      and restrictions apply to all endangered              the Act. However, upland habitat
                                               a planning document that guides the                     and threatened species on the                         conservation measures being considered
                                               management and conservation of                          installation (including the arroyo toad)              include, but are not limited to: (1)
                                               natural resources under the                             and are provided to all users of ranges               Implementing programmatic measures
                                               installation’s control. The INRMP was                   and training areas to guide activities and            to avoid and minimize impacts to
                                               prepared to assist installation staff and               protect the species and its habitat. First,           upland habitats adjacent to riparian
                                               users in their efforts to conserve and                  specific conservation measures are                    habitats occupied by arroyo toads, and
                                               rehabilitate natural resources consistent               applied to arroyo toad and its habitat                (2) compensating for impacts to upland
                                               with the use of MCB Camp Pendleton to                   that include: (1) Controlling nonnative               habitats used by arroyo toads by
                                               train Marines and set the agenda for                    animal species (such as bullfrogs) and                implementing ongoing installation-wide
                                               managing natural resources on MCB                       nonnative plant species (such as                      upland habitat enhancement programs
                                               Camp Pendleton. MCB Camp Pendleton                      Arundo donax and Rorippa spp.                         (such as nonnative vegetation control,
                                               completed its INRMP in 2001, followed                   (watercress)); and (2) restricting                    erosion control, and upland habitat
                                               by a revised and updated version in                     military-related traffic use within                   restoration).
                                               2007 to address conservation and                        riparian areas to existing roads, trails,               Based on the above considerations,
                                               management recommendations within                       and crossings. Second, MCB Camp                       and in accordance with section
                                               the scope of the installation’s military                Pendleton’s environmental security staff              4(a)(3)(B)(i) of the Act, we have
                                               mission, including conservation                         reviews projects and enforces existing                determined that conservation efforts
                                               measures for the arroyo toad (MCB                       regulations and orders that, through                  identified in the 2007 INRMP for MCB
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                                               Camp Pendleton 2007, Appendix F,                        their implementation, avoid and                       Camp Pendleton provide a benefit to the
                                               Section F.1, pp. F1–F5). Additionally,                  minimize impacts to natural resources,                arroyo toad and its habitat. This
                                               according to the 2007 INRMP, California                 including the arroyo toad and its                     includes habitat located in the following
                                               State Parks is required to conduct its                  habitat. Third, MCB Camp Pendleton                    areas: San Mateo Creek, San Onofre
                                               natural resources management                            provides training to personnel on                     Creek, and Santa Margarita River Basins
                                               consistent with the philosophies and                    environmental awareness for sensitive                 (names of areas used follow those used
                                               supportive of the objectives of the                     resources on the base, including the                  in the recovery plan (Service 1999, pp.


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                                                                Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                          7273

                                               25–27)). Therefore, lands subject to the                including conservation measures for the               (including the arroyo toad) and are
                                               INRMP for MCB Camp Pendleton,                           arroyo toad (Fallbrook Naval Weapons                  provided to all users of the installation
                                               which includes the lands leased from                    Station 2006, Chapter 3, pp. 108–110).                to guide activities and protect the
                                               the Department of Defense by other                         The arroyo toad primarily receives                 species and its habitat (Fallbrook Naval
                                               parties, are exempt from critical habitat               protection from installation activities               Weapons Station 2006, Chapter 5, p.
                                               designation under section 4(a)(3)(B) of                 because no training occurs on the                     25). Biennial meetings are held with the
                                               the Act, and we are not including                       installation, and maintenance and                     Service to evaluate all management
                                               approximately 13,030 ac (5,273 ha) of                   potential development activities                      items associated with endangered and
                                               habitat in this final revised critical                  typically do not occur in arroyo toad                 threatened species, including the arroyo
                                               habitat designation because of this                     habitat due to the steep sloping                      toad.
                                               exemption.                                              topography along the Santa Margarita                     Based on the above considerations,
                                                                                                       River that immediately surrounds the                  and in accordance with section
                                               Naval Weapons Station Seal Beach—                       suitable habitat. However, some impacts               4(a)(3)(B)(i) of the Act, we have
                                               Detachment Fallbrook (Fallbrook Naval                   could occur associated with activities                determined that conservation efforts
                                               Weapons Station)                                        (such as fuel break grading, fire                     identified in the 2006 INRMP for the
                                                  The Naval Weapons Station Seal                       management, and possible                              Fallbrook Naval Weapons Station
                                               Beach, Detachment Fallbrook (Fallbrook                  infrastructure) that may impact the                   provide a benefit to the arroyo toad, and
                                               Naval Weapons Station), is the primary                  arroyo toad and thus require                          will benefit arroyo toads occurring on
                                               west coast supply point of ordnance for                 implementation of specified protection                the installation, which includes habitat
                                               the U.S. Marine Corps and the large                     measures. The INRMP identifies the                    located in the Santa Margarita River
                                               deck amphibious assault ships of the                    following management and protection                   Basin (as identified in the recovery plan
                                               Pacific Fleet. The Fallbrook Naval                      measures for the arroyo toad: (1)                     (Service 1999, pp. 26–27)). Therefore,
                                               Weapons Station also has the only west                  Avoidance and minimization measures,                  lands subject to the INRMP for the
                                               coast maintenance facility for air-                     applied to infrastructure development                 Fallbrook Naval Weapons Station are
                                               launched missiles for the Pacific Fleet.                and maintenance to protect the arroyo                 exempt from critical habitat designation
                                               The installation encompasses                            toad, that are part of the National                   under section 4(a)(3)(B) of the Act, and
                                               approximately 8,852 acres (3,582 ha)                    Environmental Policy Act (42 U.S.C.                   we are not including approximately 223
                                               and is located within the southern                      4321 et seq.) approval process; (2)                   ac (90 ha) of habitat in this final revised
                                               foothills of the Santa Ana Mountains of                 placement of riparian filter strip and                critical habitat designation because of
                                               northern San Diego County, adjacent to                  buffer along firebreaks that lead into                this exemption.
                                               the city of Fallbrook, California. It is                riparian zones where arroyo toads may
                                               bounded to the north, west, and much                                                                          Exclusions Under Section 4(b)(2) of the
                                                                                                       be active; (3) avoidance of firebreak
                                               of the south by MCB Camp Pendleton,                                                                           Act
                                                                                                       maintenance and fire suppression
                                               with the Santa Margarita River forming                  activities (where possible); (4)                        Section 4(b)(2) of the Act states that
                                               the common border on the north                          avoidance of discing for firebreaks                   the Secretary must designate and make
                                               between the two properties. Other than                  leading to the Santa Margarita River                  revisions to critical habitat on the basis
                                               training lands on MCB Camp Pendleton,                   during arroyo toad dispersal periods; (5)             of the best available scientific data after
                                               surrounding land use includes semi-                     implementation of erosion and sediment                taking into consideration the economic
                                               rural agricultural lands that include                   control; (6) timing and location                      impact, national security impact, and
                                               plant nurseries, avocado and citrus                     protections associated with prescribed                any other relevant impact of specifying
                                               groves, vineyards, and limited urban                    burns; (7) implementation of nonnative                any particular area as critical habitat.
                                               development.                                            vegetation control measures, including                The Secretary may exclude an area from
                                                  The Fallbrook Naval Weapons Station                  removal of Arundo donax; (8)                          critical habitat if he determines that the
                                               INRMP is a planning document that                       implementation of standardized survey                 benefits of such exclusion outweigh the
                                               guides the management and                               methods; (9) evaluation and control of                benefits of specifying such area as part
                                               conservation of natural resources under                 nonnative bullfrogs; and (10)                         of the critical habitat, unless he
                                               the installation’s control. The INRMP                   implementation of long-term monitoring                determines, based on the best scientific
                                               was prepared to assist installation staff               activities, including upland sites                    data available, that the failure to
                                               and users in their efforts to support                   (Fallbrook Naval Weapons Station 2006,                designate such area as critical habitat
                                               mission operations and accommodate                      Chapter 3, pp. 108–110).                              will result in the extinction of the
                                               increased military mission requirements                    The ongoing monitoring efforts                     species. In making that determination,
                                               for national security and emergency                     outlined in the INRMP (as listed above)               the statute on its face, as well as the
                                               homeland security, while meeting all                    include surveys of sites at two or more               legislative history, are clear that the
                                               environmental compliance                                locations along the Santa Margarita                   Secretary has broad discretion regarding
                                               responsibilities. The INRMP also                        River, which includes upland surveys                  which factor(s) to use and how much
                                               provides ecosystem-based management                     conducted every 5 years, offset from                  weight to give to any factor.
                                               to preserve, protect, and enhance                       breeding surveys by 2 years. Surveys are                In the following paragraphs, we
                                               natural resources on the installation,                  also conducted after major alteration of              address a number of general issues that
                                               and provides the organizational support                 the flow regime (natural or                           are relevant to our analysis under
                                               and communication links necessary for                   anthropogenic). Finally, the installation             section 4(b)(2) of the Act.
                                               effective planning, implementation, and                 conducts annual monitoring to track                     Under section 4(b)(2) of the Act, we
                                               administration of the installation’s                    arroyo toad populations as part of the                may exclude an area from designated
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                                               natural resources. The Fallbrook Naval                  fire plan activities, with survey data                critical habitat based on economic
                                               Weapons Station completed its INRMP                     available since 2001 (Fallbrook Naval                 impacts, impacts on national security,
                                               in 2006 (which was updated from an                      Weapons Station 2006, Chapter 3, p.                   or any other relevant impacts. In
                                               INRMP developed by the Naval                            109).                                                 considering whether to exclude a
                                               Ordnance Center Pacific Division in                        Environmental regulations and                      particular area from the designation, we
                                               1996) to address conservation and                       restrictions apply to all endangered and              must identify the benefits of including
                                               management of its natural resources,                    threatened species on the installation                the area in the designation, identify the


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                                               benefits of excluding the area from the                 exclusion outweigh those of inclusion.                whether the landowners have developed
                                               designation, and evaluate whether the                   If our analysis indicates that the benefits           any HCPs or other management plans
                                               benefits of exclusion outweigh the                      of exclusion outweigh the benefits of                 for the area, or whether there are
                                               benefits of inclusion. If our analysis                  inclusion, we then determine whether                  conservation partnerships that would be
                                               indicates that the benefits of exclusion                exclusion would result in extinction. If              encouraged by designation of, or
                                               outweigh the benefits of inclusion, the                 exclusion of an area from critical habitat            exclusion from, critical habitat. In
                                               Secretary may exercise his discretion to                will result in extinction, we will not                addition, we look at any tribal issues,
                                               exclude the area only if such exclusion                 exclude it from the designation.                      and consider the government-to-
                                               would not result in the extinction of the                  In the case of the arroyo toad, based              government relationship of the United
                                               species.                                                on the detailed analyses presented                    States with tribal entities. We also
                                                  When considering the benefits of                     below, the Secretary is exercising his                consider any social impacts that might
                                               inclusion for an area, we consider the                  discretion to exclude the following areas             occur because of the designation.
                                               additional regulatory benefits that area                from this final revised critical habitat
                                               would receive from the protection from                  designation:                                          Benefits of Excluding Lands with HCPs
                                               adverse modification or destruction as a                   (1) Tribal lands or trust resources on                The benefits of excluding lands with
                                               result of actions with a Federal nexus;                 the following reservations: Rincon Band               approved HCPs from critical habitat
                                               the educational benefits of mapping                               ˜
                                                                                                       of Luiseno Mission Indians; Pala Band                 designation, such as HCPs that cover
                                               essential habitat for recovery of the                             ˜
                                                                                                       of Luiseno Mission Indians; Sycuan                    listed plant species, include relieving
                                               listed species; implementation of an                    Band of the Kumeyaay Nation; the                      landowners, communities, and counties
                                               existing conservation plan; and any                     Barona Group of Capitan Grande Band                   of any additional regulatory burden that
                                               benefits that may result from a                         of Mission Indians and the Viejas (Baron              might be imposed as a result of the
                                               designation due to State or Federal laws                Long) Group of Capitan Grande Band of                 critical habitat designation. Many HCPs
                                               that may apply to critical habitat. The                 Mission Indians, which jointly manage                 take years to develop, and upon
                                               designation of critical habitat may                     the Capitan Grande Band of Diegueno                   completion, are consistent with the
                                               strengthen or reinforce some of the                     Mission Indians Reservation (Capitan                  recovery objectives for listed species
                                               provisions in other State and Federal                   Grande Reservation); and Mesa Grande                  that are covered within the plan area.
                                               laws, such as the California                            Band of Diegueno Mission Indians.                     Many conservation plans also provide
                                               Environmental Quality Act (CEQA) or                        (2) Federal lands leased by the U.S.               conservation benefits to unlisted
                                               the National Environmental Policy Act                   Navy for Remote Training Site Warner                  sensitive species.
                                               (NEPA). These laws analyze the                          Springs and Camp Morena. Because                         A related benefit of excluding lands
                                               potential for projects to significantly                 Remote Training Site Warner Springs                   covered by approved HCPs from critical
                                               affect the environment. Critical habitat                and Camp Morena are part of Naval                     habitat designation is the unhindered,
                                               may signal the presence of sensitive                    Base Coronado, they are included in a                 continued ability it gives us to seek new
                                               habitat that could otherwise be missed                  2009 update to the Naval Base Coronado                partnerships with future plan
                                               in the review process for these other                   INRMP, which identifies measures that                 participants, including States, counties,
                                               environmental laws.                                     the Navy is currently implementing to                 local jurisdictions, conservation
                                                  When considering the benefits of                     provide conservation benefits to the                  organizations, and private landowners,
                                               exclusion, we consider, among other                     arroyo toad. As the 2009 update to the                which together can implement
                                               things, whether exclusion of a specific                 INRMP is still being reviewed by the                  conservation actions that we would be
                                               area is likely to result in long-term                   Service and is not yet approved, these                unable to accomplish otherwise. Habitat
                                               conservation; the continuation,                         lands are not exempt under section                    conservation plans often cover a wide
                                               strengthening, or encouragement of                      4(a)(3) of the Act. Thus, these lands                 range of species, including listed plant
                                               partnerships that result in conservation                were considered for exclusion under                   species and species that are not State or
                                               of listed species; or implementation of                 section 4(b)(2) of the Act.                           federally listed and would otherwise
                                               a management plan that provides equal                      (3) Certain lands covered by three                 receive little protection from
                                               or more conservation that a critical                    completed HCPs for the arroyo toad,                   development. By excluding these lands,
                                               habitat designation would provide.                      including the following: Western                      we preserve our current partnerships
                                                  When we evaluate a conservation                      Riverside County MSHCP, the Orange                    and encourage additional conservation
                                               plan, we consider a variety of factors,                 County Southern Subregion HCP, and                    actions in the future.
                                               including but not limited to, whether                   the Orange County Central—Coastal                        We also note that permit issuance in
                                               the plan is finalized; how it provides for              NCCP/HCP. No HCPs or conservation                     association with HCP applications
                                               the conservation of the essential                       plans covering the species in the                     requires consultation under section
                                               physical and biological features;                       proposed critical habitat areas have                  7(a)(2) of the Act, which would include
                                               whether there is a reasonable                           been approved since the publication of                the review of the effects of all HCP-
                                               expectation that the conservation                       the proposed revised designation in the               covered activities that might adversely
                                               management strategies and actions                       Federal Register on October 13, 2009                  impact the species under a jeopardy
                                               contained in a management plan will be                  (74 FR 52612).                                        standard, including possibly significant
                                               implemented into the future; whether                       (4) Certain lands in conservation                  habitat modification (see definition of
                                               the conservation strategies in the plan                 easement owned and managed by the                     ‘‘harm’’ at 50 CFR 17.3), even without
                                               are likely to be effective; and whether                 Newhall Land and Farming Company                      the critical habitat designation. In
                                               the plan contains a monitoring program                  for the conservation of the arroyo toad.              addition, all other Federal actions that
                                               or adaptive management to ensure that                                                                         may affect the listed species would still
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                                               the conservation measures are effective                 Exclusions Under Section 4(b)(2) of the               require consultation under section
                                               and can be adapted in the future in                     Act—Other Relevant Impacts                            7(a)(2) of the Act, and we would review
                                               response to new information.                              Under section 4(b)(2) of the Act, we                these actions for possibly significant
                                                  After identifying the benefits of                    consider any other relevant impacts, in               habitat modification in accordance with
                                               inclusion and the benefits of exclusion,                addition to economic impacts and                      the definition of harm referenced above.
                                               we carefully weigh the two sides to                     impacts on national security. We                         The information provided in the
                                               determine whether the benefits of                       consider a number of factors including                previous section applies to the


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                                               following discussions of exclusions of                                      tribal land management for arroyo toads                                      Federal lands managed by the Newhall
                                               HCP lands under section (4)(b)(2) of the                                                            ˜
                                                                                                                           by Rincon Band of Luiseno Mission                                            Land and Farming Company.
                                               Act. The arroyo toad is covered under                                                                  ˜
                                                                                                                           Indians, Pala Band of Luiseno Mission                                           The areas for which the Secretary is
                                               the Western Riverside County MSHCP,                                         Indians, Sycuan Band of the Kumeyaay                                         exercising his discretion to exclude
                                               the Orange County Southern Subregion                                        Nation, the Barona Group of Capitan                                          under section 4(b)(2) of the Act are
                                               HCP, and the Orange County Central—                                         Grande Band of Mission Indians and the                                       listed in Table 3 below and described in
                                               Coastal NCCP/HCP.                                                           Viejas (Baron Long) Group of Capitan                                         detail in the following sections. Below
                                                  Other conservation or management                                         Grande Band of Mission Indians, which                                        are brief descriptions of each plan and
                                               plans considered in the following                                           jointly manage the Capitan Grande Band                                       lands excluded from critical habitat
                                               discussions of exclusions include the                                       of Diegueno Mission Indians                                                  covered by each plan. Additional details
                                               2002 Naval Base Coronado INRMP that                                         Reservation (Capitan Grande                                                  on these areas can be found in the
                                               is being revised for Remote Training                                        Reservation), and Mesa Grande Band of                                        proposed rule (74 FR 52612; October 13,
                                               Site Warner Springs and Camp Morena;                                        Diegueno Mission Indians; and non-                                           2009).

                                                      TABLE 3—AREAS BEING EXCLUDED UNDER SECTION 4(b)(2) OF THE ACT FROM THIS REVISED CRITICAL HABITAT
                                                                                              DESIGNATION
                                                                                                                                                                                                                                         Area excluded under
                                                                                                                              Unit/subunit                                                                                             Section 4(b)(2) of the Act

                                                                                                                                Newhall Land and Farming Company

                                               Subunit 6b. [Upper Santa Clara River Basin] ................................................................................................................                           330 ac (134 ha)

                                                                                                                                   Western Riverside County MSHCP

                                               Unit 9. [San Jacinto River Basin] ...................................................................................................................................                  14 ac (6 ha)
                                               Unit 13. [Upper Santa Margarita River Basin] ................................................................................................................                          275 ac (112 ha)

                                                     Subtotal Western Riverside County MSHCP ..........................................................................................................                               289 ac (118 ha)

                                                                                                                           Orange County Central-Coastal NCCP/HCP

                                               Unit 8. [Lower Santa Ana River Basin] ..........................................................................................................................                       1,259 ac (508 ha)

                                                                                                                             Orange County Southern Subregion HCP

                                               Subunit 10a. [San Juan Creek Basin] ............................................................................................................................                       1,632 ac (660 ha)
                                               Subunit 10b. [San Juan Creek Basin] ............................................................................................................................                       509 ac (206 ha)
                                               Subunit 11a. [San Mateo Creek Basin] ..........................................................................................................................                        39 ac (16 ha)

                                                     Subtotal for Orange County Southern Subregion HCP ..........................................................................................                                     2,179 ac (882 ha)

                                                                                                                                                     Tribal Lands

                                               Unit 14. [Lower and Middle San Luis Rey River Basin], Rincon Reservation, Pala Reservation .................................                                                           2,733 ac (1,103 ha)
                                               Subunit 16d. [Santa Ysabel Creek Basin], Mesa Grande Reservation .........................................................................                                             23 ac (9 ha)
                                               Subunit 17a. [San Diego River Basin/San Vicente Creek], Capitan Grande Reservation ............................................                                                        92 ac (37 ha)
                                               Subunit 18c. [Sweetwater River Basin], Sycuan Reservation and future reservation land ...........................................                                                      152 ac (62 ha)

                                                     Subtotal for Tribes ...................................................................................................................................................          3,000 ac (1,214 ha)

                                                                                                                                                    Military Lands

                                               Unit 15. [Upper San Luis Rey River Basin], Remote Training Site Warner Springs .....................................................                                                   4,609 ac (1,865 ha)
                                               Subunit 19a. [Cottonwood Creek Basin], Camp Morena ...............................................................................................                                     31 ac (13 ha)

                                                     Subtotal for Military Lands .......................................................................................................................................              4,640 ac (1,878 ha)

                                                        Total .....................................................................................................................................................................   11,697 ac (4,734 ha)*
                                                  * Values in this table may not sum due to rounding.


                                               Newhall Land and Farming Company                                            been described as consisting only of                                         several factors, including our
                                               (Newhall LFC) Natural River                                                 1,995 ac (807 ha) of private land owned                                      relationships with the landowner and
                                               Management Plan                                                             by the Newhall Land and Farming                                              other stakeholders, conservation
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                                                 In the October 13, 2009, proposed                                         Company (Newhall LFC).                                                       measures and management that are in
                                               revised critical habitat designation (74                                      We determined that approximately                                           place on these lands, and impacts to
                                               FR 52612), we erroneously reported that                                     1,003 ac (405 ha) of land in Subunit 6b                                      current and future partnerships. Under
                                               Subunit 6b consists of 159 ac (65 ha) of                                    owned by Newhall LFC meet the                                                section 4(b)(2) of the Act, for the reasons
                                               Federal land and 1,995 ac (807 ha) of                                       definition of critical habitat under the                                     discussed in the following sections, the
                                               private land. In actuality, in the                                          Act. In making our final decision with                                       Secretary is exercising his discretion to
                                               proposed rule Subunit 6b should have                                        regard to these lands, we considered                                         exclude 330 ac (133 ha) of land


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                                               conserved and managed by Newhall                        conserved and managed under the                       the requirement of Federal agencies to
                                               LFC within Subunit 6b from this final                   NRMP. An additional conservation                      ensure actions they fund, authorize, or
                                               revised critical habitat designation. The               easement of 330 ac (133 ha) covering the              carry out are not likely to result in the
                                               Secretary is declining to exercise his                  Santa Clara River corridor and San                    destruction or adverse modification of
                                               discretion to exclude 672 ac (272 ha) of                Francisquito Creek is awaiting approval               any designated critical habitat, the
                                               Newhall LFC lands within Subunit 6b                     by CDFG, and 330 (133 ha) acres west                  regulatory standard of section 7(a)(2) of
                                               in this final revised critical habitat                  of Interstate 5 along the Santa Clara                 the Act under which consultation is
                                               designation. As described in our                        River and Castaic Creek will be part of               completed. Federal agencies must
                                               analysis below, this conclusion was                     future easement dedications to CDFG.                  consult with the Service on actions that
                                               reached after considering the relevant                  Ultimately, these easements will extend               may affect critical habitat and must
                                               impacts of specifying the area as critical              along every river mile of Castaic Creek,              avoid destroying or adversely modifying
                                               habitat.                                                San Francisquito Creek, and the Santa                 critical habitat. Federal agencies must
                                                  Newhall LFC developed the Natural                    Clara River within Subunit 6b (Valencia               also consult with us on actions that may
                                               River Management Plan (NRMP)                            Company 1998).                                        affect a listed species and refrain from
                                               (Valencia Company 1998) for the long-                      The 330 ac (133 ha) of the                         undertaking actions that are likely to
                                               term conservation and management of                     conservation easement within proposed                 jeopardize the continued existence of
                                               the biological resources within their                   Subunit 6b boundaries that has already                such species. The analysis of effects to
                                               lands, including the arroyo toad and its                been conveyed to the CDFG over                        critical habitat is a separate and
                                               habitat; the NRMP was approved by the                   portions of the Santa Clara River                     different analysis from that of the effects
                                               U.S. Army Corps of Engineers and                        corridor and Castaic Creek will ensure                to the species. Therefore, the difference
                                               CDFG in 1998. The NRMP provides                         that arroyo toad habitat within the                   in outcomes of these two analyses
                                               management measures designed to                         easement will remain in a natural                     represents the regulatory benefit of
                                               protect, restore, monitor, manage, and                  condition in perpetuity. Use of the                   critical habitat. For some species
                                               enhance habitat for multiple species,                   easement is limited to the preservation               (including the arroyo toad), and in some
                                               including the arroyo toad, that occur                   and enhancement of native species and                 locations, the outcome of these analyses
                                               along the mainstem of the Santa Clara                   their habitats, including the arroyo toad             will be similar, because effects to habitat
                                               River, Castaic Creek, and San                           and its habitat. Based on the placement               will often also result in effects to the
                                               Francisquito Creek including the                        of the conservation easement, the                     species. However, the regulatory
                                               portion within Subunit 6b. Protective                   physical and biological features that are             standard is different, as the jeopardy
                                               measures for arroyo toad habitat in the                 essential to the conservation of the                  analysis investigates the action’s impact
                                               NRMP include: (1) The creation of new                   species, including breeding pools in                  to survival and recovery of the species,
                                               riverbed areas, including planting                      low-gradient stream segments with                     while the adverse modification analysis
                                               wetland mitigation sites; (2)                           sandy substrates (PCEs 1 and 2),                      investigates the action’s effects to the
                                               revegetation of riparian areas; (3)                     seasonal flood flows (PCE 3), and                     designated habitat’s contribution to
                                               removal of invasive plants such as giant                riparian habitat and upland benches for               conservation. This will, in many
                                               reed (Arundo donax) and tamarisk                        foraging and dispersal (PCE 4), are                   instances, lead to different results and
                                               (Tamarix sp.); (4) protecting wetlands                  protected along Castaic Creek and the                 different regulatory requirements. Thus,
                                               from urban runoff by establishing a                     mainstem of the Santa Clara River                     critical habitat designations may
                                               revegetated upland buffer between                       within proposed Subunit 6b. This                      provide greater benefits to the recovery
                                               developed areas and the River; (5)                      conservation easement provides greater                of a species than would listing alone.
                                               implementing a Drainage Quality                         protection of crucial arroyo toad
                                               Management Plan with Best                               breeding and foraging habitat in this                    Any protections provided by critical
                                               Management Practices to ensure water                    area than could be gained through the                 habitat that are redundant with
                                               quality within the River corridor; and                  designation of critical habitat.                      protections already in place reduce the
                                               (6) implementing the biological                         Additionally, we have already                         benefits of inclusion in critical habitat.
                                               mitigation measures for the Newhall                     completed section 7 consultation on the               The consultation provisions under
                                               Ranch Specific Plan that includes                       effects of the NRMP on the arroyo toad                section 7(a)(2) of the Act constitute the
                                               restricting pets and off-road vehicles                  and found that it would not jeopardize                regulatory benefits of designating lands
                                               from the area and restricting access to                 the continued existence of the species.               as critical habitat. As discussed above,
                                               the River corridor by limiting hiking                      In summary, the conservation                       Federal agencies must consult with us
                                               and biking to the River trail system.                   easement under the NRMP provides                      on actions that may affect critical
                                                  Of particular importance to the                      permanent protection to approximately                 habitat and must avoid destroying or
                                               conservation of the arroyo toad and its                 330 ac (133 ha), or 33 percent, of                    adversely modifying critical habitat.
                                               habitat under the NRMP is the inclusion                 Newhall LFC lands within proposed                     Critical habitat may provide a regulatory
                                               of substantial conservation easements,                  Subunit 6b. Approximately 672 ac (272                 benefit for the arroyo toad when there
                                               which when completed will protect                       ha), or 67 percent, of Newhall LFC lands              is a Federal nexus present for a project
                                               almost all of the arroyo toad’s breeding                in Subunit 6b are not currently                       that might adversely modify critical
                                               habitat and riparian river corridor on                  conserved and managed.                                habitat. Specifically, we expect projects
                                               Newhall LFC lands and will eventually                      Below is an analysis of the relative               in wetland areas would require a 404
                                               total 1,201 ac (486 ha). At the present                 benefits of inclusion and exclusion of                permit under the Clean Water Act from
                                               time, Newhall LFC has finalized the                     330 ac (133 ha) in Subunit 6b for which               the U.S. Army Corps of Engineers.
                                               placing of a conservation easement on                   the Secretary is exercising his discretion            Therefore, critical habitat will have an
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                                               541 ac (219 ha) over portions of the                    to exclude from this final revised                    additional regulatory benefit to the
                                               Santa Clara River corridor and Castaic                  critical habitat designation.                         conservation of the arroyo toad by
                                               Creek, of which 330 ac (133 ha) were                                                                          prohibiting adverse modification of
                                               within proposed revised critical habitat                Benefits of Inclusion—Newhall LFC                     habitat essential to the conservation of
                                               in proposed Subunit 6b. This                            Natural River Management Plan                         this species. Approximately 33 percent
                                               conservation easement has been                            The principal benefit of including an               of lands we proposed for designation
                                               conveyed to CDFG and will be                            area in a critical habitat designation is             within Subunit 6b are conserved and


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                                               managed under Newhall LFC’s NRMP                        environment. In Los Angeles County,                   management plans on private lands.
                                               and associated conservation easement;                   the additional protections associated                 Exclusion of Newhall LFC lands that are
                                               therefore, Federal actions that could                   with critical habitat may be beneficial in            conserved and managed by the NRMP
                                               adversely affect the arroyo toad or its                 areas not currently conserved. Critical               and associated conservation easement
                                               habitat are unlikely to occur in these                  habitat may signal the presence of                    will also strengthen the partnership
                                               areas. If such actions do occur, it is                  sensitive habitat that could otherwise be             between the Service and Newhall LFC,
                                               likely that the protections provided the                missed in the review process for these                which may encourage other
                                               species and its habitat under section                   other environmental laws.                             conservation partnerships between our
                                               7(a)(2) of the Act would be largely                       In summary, we believe that                         two entities in the future.
                                               redundant with the protections offered                  designating critical habitat would                      In summary, we believe excluding
                                               by the NRMP and conservation                            provide minimal regulatory benefits                   land covered by the NRMP and
                                               easement. Thus, we expect the                           under section 7(a)(2) of the Act in areas             associated conservation easement from
                                               regulatory benefit of including these                   meeting the definition of critical habitat            critical habitat could provide the
                                               areas in critical habitat would be                      that are conserved and managed. We                    significant benefit of maintaining our
                                               minimal. In contrast, approximately 67                  further believe that few, if any,                     existing partnership and fostering new
                                               percent of land within Subunit 6b are                   additional educational benefits would                 ones.
                                               not conserved in easements, and we                      be realized under these circumstances.
                                                                                                                                                             Weighing Benefits of Exclusion Against
                                               believe there are regulatory benefits of                In areas that are not currently conserved
                                                                                                                                                             Benefits of Inclusion—Newhall LFC
                                               critical habitat designation in these                   and managed, we believe there are
                                                                                                                                                             Natural River Management Plan
                                               areas.                                                  regulatory and educational benefits of
                                                  Another possible benefit of including                critical habitat designation.                           We reviewed and evaluated the
                                               lands in critical habitat is public                                                                           benefits of inclusion and benefits of
                                                                                                       Benefits of Exclusion—Newhall LFC                     exclusion for all lands owned by
                                               education regarding the potential
                                                                                                       Natural River Management Plan                         Newhall LFC proposed as critical
                                               conservation value of an area that may
                                               help focus conservation efforts on areas                  We believe conservation benefits                    habitat for arroyo toad. The benefits of
                                               of high conservation value for certain                  would be realized by foregoing                        including conserved and managed lands
                                               species. Any information about the                      designation of critical habitat for the               in the critical habitat designation are
                                               arroyo toad and its habitat that reaches                arroyo toad on lands covered by the                   small. The conservation easement on
                                               a wide audience, including parties                      NRMP and associated conservation                      portions of the Santa Clara River
                                               engaged in conservation activities, is                  easement including: (1) Continuance                   mainstem and Castaic Creek that
                                               valuable. The inclusion of lands in the                 and strengthening of our effective                    encompass approximately 330 ac (133
                                               arroyo toad proposed and final revised                  working relationship with Newhall LFC                 ha), or 33 percent, of Subunit 6b, are
                                               critical habitat designation that are not               to promote voluntary, proactive                       already managed and conserved under
                                               conserved and managed is beneficial to                  conservation of the arroyo toad and its               the NRMP, and provide a benefit to
                                               the species because the proposed and                    habitat as opposed to reactive                        arroyo toad. There is also no
                                               final rules identify those lands that                   regulation; (2) allowance for continued               educational or ancillary benefit of
                                               require management for the                              meaningful collaboration and                          designating critical habitat in this
                                               conservation of the arroyo toad. The                    cooperation in working toward species                 conservation easement; education
                                               process of proposing and finalizing                     recovery, including conservation                      information regarding the importance of
                                               revised critical habitat provided the                   benefits that might not otherwise occur;              the easement was identified during the
                                               opportunity for peer review and public                  and (3) encouragement of additional                   development and implementation of
                                               comment on habitat we determined                        conservation easements and other                      Newhall LFC’s NRMP and potential
                                               meets the definition of critical habitat.               conservation and management plan                      ancillary benefits are negligible.
                                               This process is valuable to land owners                 development in the future on Newhall                  Similarly, the regulatory benefit
                                               and managers in prioritizing                            LFC’s other lands for this and other                  provided by a critical habitat
                                               conservation and management of                          federally listed and sensitive species.               designation is small because it is
                                               identified areas. Because 330 ac (133 ha)                 The NRMP and associated                             partially redundant with the existing
                                               of arroyo toad habitat within proposed                  conservation easement provides                        protection within the conservation
                                               Subunit 6b is conserved and managed                     substantial protection and management                 easement under the NRMP. Therefore,
                                               under the NRMP and associated                           for the arroyo toad and the physical and              we do not believe critical habitat
                                               conservation easement, no educational                   biological features essential to the                  designation for the arroyo toad within
                                               benefits would be realized in these                     conservation of the species, and                      the conservation easement will provide
                                               areas. The remaining 67 percent of                      addresses conservation issues from a                  significant regulatory, educational, or
                                               Newhall LFC land proposed as revised                    coordinated, integrated perspective                   ancillary benefits for these areas.
                                               critical habitat within Subunit 6b is not               rather than a piecemeal, project-by-                    In contrast, including Newhall LFC
                                               in easements, and there are educational                 project approach (as would occur under                lands within Subunit 6b in the final
                                               benefits of including these areas (such                 section 7 of the Act), thus resulting in              revised critical habitat designation for
                                               as informing the public about essential                 coordinated landscape-scale                           arroyo toad that are not conserved and
                                               habitat and potentially refining the                    conservation that can contribute to                   managed will provide additional
                                               broader conservation goals for arroyo                   genetic diversity by preserving covered               protection under section 7(a) of the Act
                                               toad under the NRMP by focusing                         species populations, habitat, and                     when there is a Federal nexus, and
                                               conservation in other areas essential to                interconnected linkage areas that                     designation may act as an educational
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                                               the recovery of the species).                           support recovery of the arroyo toad and               tool for the public regarding the
                                                  The designation of arroyo toad critical              other listed species. Additionally, many              conservation of arroyo toad and the
                                               habitat may also strengthen or reinforce                landowners perceive critical habitat as               physical and biological features
                                               some of the provisions in other State                   an unfair and unnecessary regulatory                  essential to the conservation of the
                                               and Federal laws, such as CEQA or                       burden given the expense and time                     species. Therefore designation of these
                                               NEPA. These laws analyze the potential                  involved in developing and                            areas will provide an educational
                                               for projects to significantly affect the                implementing conservation and                         benefit by focusing attention on the


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                                               specific lands covered by the NRMP that                 Exclusion Will Not Result in Extinction               County MSHCP is a multi-species
                                               are essential to the species’ recovery so               of the Species—Newhall LFC Natural                    conservation program designed to
                                               that conservation efforts are directed                  River Management Plan                                 minimize and mitigate the effects of
                                               toward those areas. We also anticipate a                  We determined that exclusion of 330                 expected habitat loss and associated
                                               potential regulatory benefit from                       ha (133 ha) of land in Subunit 6b from                incidental take of 146 ‘‘covered species’’,
                                               designation for activities on these lands               the final revised critical habitat                    including the arroyo toad. On June 22,
                                               with a Federal nexus, and some                          designation for the arroyo toad will not              2004, we issued a single incidental take
                                               ancillary benefit from other laws such as               result in extinction of the species. These            permit under section 10(a)(1)(B) of the
                                               CEQA and NEPA from designating these                    areas are permanently conserved and                   Act to 22 permittees under the Western
                                               areas as critical habitat.                                                                                    Riverside County MSHCP for a period of
                                                                                                       managed to provide a benefit to arroyo
                                                                                                                                                             75 years (Service 2004, TE–088609–0).
                                                  The exclusion of conserved areas in                  toad and its habitat, thus providing
                                                                                                                                                             We concluded in our biological opinion
                                               Subunit 6b will benefit the partnership                 assurances that the species will not go
                                                                                                                                                             (Service 2004, p. 164) that
                                               that we have with Newhall LFC and                       extinct as a result of exclusion from
                                                                                                                                                             implementation of the plan, as
                                               other participating property owners, and                critical habitat designation. Therefore,
                                                                                                                                                             proposed, was not likely to jeopardize
                                               encourage the conservation of lands                     based on the above discussion, the
                                                                                                                                                             the continued existence of the arroyo
                                               associated with the development and                     Secretary is exercising his discretion to
                                                                                                                                                             toad. Our determination was based on
                                               implementation of future conservation                   exclude approximately 330 ha (133 ha)
                                                                                                                                                             our conclusion that 48 percent of the
                                               management plans.                                       of land in Subunit 6b from this final
                                                                                                                                                             arroyo toad modeled habitat, including
                                                                                                       revised critical habitat designation.                 the majority of each known arroyo toad
                                                  In summary, we find that excluding
                                               from critical habitat areas that are                    Western Riverside County Multiple                     population in western Riverside County,
                                               receiving long-term conservation and                    Species Habitat Conservation Plan                     will be protected or will remain within
                                               management for the purpose of                           (Western Riverside County MSHCP)                      the Western Riverside County MSHCP
                                               protecting the arroyo toad in Subunit 6b                                                                      Conservation Area. In addition, required
                                                                                                         We determined that approximately
                                               will preserve our partnership with                                                                            surveys for the arroyo toad may result
                                                                                                       6,386 ac (2,583 ha) of land in Units 9
                                               Newhall LFC and encourage the                                                                                 in newly discovered occurrences being
                                                                                                       and 13 owned by or under the
                                               conservation of lands associated with                                                                         included in the Western Riverside
                                                                                                       jurisdiction of the permittees of the
                                               development. These partnership                                                                                County MSHCP Conservation Area
                                                                                                       Western Riverside County MSHCP meet
                                               benefits are significant and outweigh the                                                                     (Service 2004, p. 164).
                                                                                                       the definition of critical habitat under                 The Western Riverside County
                                               small potential regulatory, educational,                the Act. In making our final decision
                                               and ancillary benefits of including these                                                                     MSHCP, when fully implemented, will
                                                                                                       with regard to these lands, we                        establish approximately 153,000 ac
                                               portions of Subunit 6b in final revised                 considered several factors including our
                                               critical habitat for the arroyo toad. We                                                                      (61,917 ha) of new conservation lands
                                                                                                       relationships with participating                      (called the Additional Reserve Lands) to
                                               find that including lands as critical                   jurisdictions and other stakeholders,
                                               habitat that are not yet receiving long-                                                                      complement the approximately 347,000
                                                                                                       conservation measures and management                  ac (140,426 ha) of pre-existing natural
                                               term conservation and management                        that are in place on these lands, and
                                               within Subunit 6b will provide                                                                                and open space areas (Public/Quasi-
                                                                                                       impacts to current and future                         Public (PQP) lands). These PQP lands
                                               additional regulatory protection under                  partnerships. Under section 4(b)(2) of                include those under ownership of
                                               section 7(a) of the Act when there is a                 the Act, for the reasons discussed in the             public or quasi-public agencies,
                                               Federal nexus, and will provide an                      following sections, the Secretary is                  primarily the Forest Service and BLM,
                                               educational benefit by focusing                         exercising his discretion to exclude 289              as well as permittee-owned or
                                               conservation efforts by Newhall LFC on                  ac (118 ha) of conserved and managed                  controlled open-space areas managed by
                                               conservation and management of these                    land, or 5 percent of land within the                 the State of California and Riverside
                                               specific essential habitat areas for the                Western Riverside County MSHCP plan                   County. Collectively, the Additional
                                               arroyo toad and educating the public                    area in Units 9 and 13 from this final                Reserve Lands and PQP lands form the
                                               about the importance of these areas for                 revised critical habitat designation. The             overall Western Riverside County
                                               the conservation of this species.                       Secretary is declining to exercise his                MSHCP Conservation Area. The
                                               Designation may also result in some                     discretion to exclude 6,097 ac (2,467                 configuration of the 153,000 ac (61,916
                                               ancillary benefits under other laws.                    ha), or 95 percent, of land within the                ha) of Additional Reserve Lands (ARL)
                                               Therefore, designating these areas as                   Western Riverside County MSHCP plan                   is not mapped or precisely delineated
                                               critical habitat for the arroyo toad will               area in Units 9 and 13 in this final                  (‘‘hard-lined’’) in the Western Riverside
                                               provide educational as well as some                     revised critical habitat designation, as              County MSHCP. Instead, the ARL are
                                               regulatory and ancillary benefits to the                these areas contain features essential to             textual descriptions of habitat
                                               species. While we acknowledge that                      the conservation of the species that are              conservation necessary to meet the
                                               excluding these areas under section                     not permanently conserved and                         conservation goals for all covered
                                               4(b)(2) of the Act would provide a                      managed. As described in our analysis                 species within the bounds of the
                                               benefit to the partnership that we have                 below, this conclusion was reached after              approximately 310,000-ac (125,453-ha)
                                               with Newhall LFC, we have not                           considering the relevant impacts of                   Criteria Area and are determined as
                                               concluded that the benefits of exclusion                specifying these areas as critical habitat.           implementation of the Western
                                               outweigh the educational benefit along                    The Western Riverside County                        Riverside County MSHCP takes place.
                                               with the potential regulatory and                       MSHCP is a regional, multi-                              Specific conservation objectives in the
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                                               ancillary benefits to the conservation of               jurisdictional HCP encompassing                       Western Riverside County MSHCP for
                                               the species in these areas of Subunit 6b.               approximately 1.26 million ac (510,000                the arroyo toad include providing 9,695
                                               Therefore, the Secretary is declining to                ha) of land in western Riverside County.              ac (3,914 ha) of occupied or suitable
                                               exercise his discretion to exclude 672 ac               We proposed approximately 6,386 ac                    habitat for the species in the MSHCP
                                               (272 ha) of Newhall LFC lands within                    (2,583 ha) of critical habitat for the                Conservation Area along portions of San
                                               Subunit 6b from this final revised                      arroyo toad in Units 9 and 13 within the              Juan Creek (Subunit 10a), Los Alamos
                                               critical habitat designation.                           plan area. The Western Riverside                      Creek (Subunit 11b), San Jacinto River


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                                               (Subunit 9a), Indian Creek, Bautista                    The Western Riverside County MSHCP                    Western Riverside County MSHCP is
                                               Creek (Subunit 9b), Wilson Creek                        will remove and reduce threats to the                 covered by the 10-Year Habitat
                                               (Subunit 13c), Temecula Creek (Subunit                  arroyo toad and the physical and                      Management Plan for the Sage Habitat
                                               13b), Arroyo Seco (Subunit 13a), and                    biological features essential to the                  Management Unit (Sage Habitat
                                               Vail Lake, and including 93 percent of                  conservation of the species as the plan               Management Plan). These lands, known
                                               the known arroyo toad occurrences as of                 is implemented by preserving large                    as the Geller #2 Phase I, Odegaard,
                                               2004 (Service 2004, pp. 162–163).                       blocks of suitable habitat. Within the                Wilson Creek/J Street, and Mulder
                                               Approximately 3,793 ac (1,531 ha) of                    MSHCP Conservation Area, breeding                     properties, were transferred in 2006 and
                                               occupied or suitable habitat will remain                populations will be maintained at a                   2008 from the landowners to the County
                                               on existing PQP lands and 5,902 ac                      minimum of 80 percent of the conserved                of Riverside to be conserved and
                                               (2,383 ha) will be conserved within the                 breeding locations as measured by the                 managed in Western Riverside County
                                               Additional Reserve Lands. These 5,902                   presence/absence of juvenile toads,                   MSHCP’s Additional Reserve Lands.
                                               ac (2,383 ha) can be attained through                   tadpoles, or egg masses across any 5                  Additionally, the Sage Habitat
                                               acquisition or other dedications of land                consecutive years. Additionally, the                  Management Plan was developed in
                                               assembled from within the Criteria Area                 Western Riverside County MSHCP will                   conformance with the Western
                                               or the Arroyo Toad Survey Area (as                      maintain ecological processes within                  Riverside County MSHCP, and
                                               these lands are acquired they become                    the MSHCP Conservation Area given                     identifies management goals, including
                                               part of the Additional Reserve Lands).                  existing constraints and activities                   but not limited to: (1) Completion of
                                               Additionally, areas within the Western                  covered under the MSHCP along                         initial evaluations of acquired
                                               Riverside County MSHCP where there is                   portions of San Juan Creek, San Jacinto               properties within the first 4 years
                                               potential suitable habitat for arroyo toad              River, Indian Creek, Bautista Creek,                  following acquisition; (2) controlling
                                               that is not yet protected are subject to                Wilson Creek, Temecula Creek, Arroyo                  unauthorized public access; (3)
                                               the Additional Survey Needs and                         Seco, and Vail Lake. The plan also                    maintaining and enhancing upland
                                               Procedures Policy (see Additional                       generates funding for long-term                       habitats; (4) maintaining and enhancing
                                               Survey Needs and Procedures, Western                    management of conserved lands for the                 wetland habitats; (5) initiating adaptive
                                               Riverside County MSHCP, Volume 1,                       benefit of the species they protect.                  management should target species
                                               section 6.3.2 in Dudek and Associates,                     Approximately 14 ac (6 ha) of Subunit              locations fall below 75 percent of
                                               Inc. 2003). In these areas, surveys for the             9b within the Western Riverside County                locations indicated in the Western
                                               arroyo toad are required as part of the                 MSHCP is covered by the 10-Year                       Riverside County MSHCP species
                                               project review process for public and                   Habitat Management Plan for the Cactus                accounts; and (6) managing disturbance
                                               private projects where suitable habitat is              Valley Habitat Management Unit                        regimes, including but not limited to,
                                               present (see Amphibian Species Survey                   (Cactus Valley Habitat Management                     fire, exotic species invasions,
                                               Area Map, Figure 6–3 of the Western                     Plan). These lands, known as the                      sedimentation, and erosion (County of
                                               Riverside County MSHCP, Volume I in                     Kirchner/Searl property, were                         Riverside 2009b, pp. 1, 9). After 10
                                               Dudek and Associates, Inc. 2003). For                   transferred in 2007 from the landowner                years, if not sooner, the management
                                               locations with positive survey results,                 to the County of Riverside to be                      plan will be revised. Thus, these areas
                                               90 percent of those portions of the                     conserved and managed in Western                      within the Sage Habitat Management
                                               property that provide long-term                         Riverside County MSHCP’s Additional                   Unit are permanently protected and
                                                                                                       Reserve Lands. Additionally, the Cactus               managed within Additional Reserve
                                               conservation value for the species will
                                                                                                       Valley Habitat Management Plan was
                                               be avoided until it is demonstrated that                                                                      Lands under the Western Riverside
                                                                                                       developed in conformance with the
                                               the conservation objectives for the                                                                           County MSHCP.
                                                                                                       Western Riverside County MSHCP, and
                                               species are met (see Additional Survey                                                                           Approximately 158 ac (64 ha) of
                                                                                                       identifies management goals, including
                                               Needs and Procedures, Western                                                                                 Subunit 13c is covered by the
                                                                                                       but not limited to: (1) Completion of
                                               Riverside County MSHCP, Volume 1,                                                                             Management Plan for the Wilson Creek
                                                                                                       initial evaluations of acquired
                                               section 6.3.2 in Dudek and Associates,                                                                        Conservation Bank (Wilson Creek
                                                                                                       properties within the first 4 years
                                               Inc. 2003). Once species-specific                                                                             Management Plan) consistent with the
                                                                                                       following acquisition; (2) controlling
                                               objectives are met, avoided areas would                                                                       Western Riverside County MSHCP. The
                                                                                                       unauthorized public access; (3)
                                               be evaluated to determine whether they                  maintaining and enhancing upland                      Wilson Creek Conservation Bank, an
                                               should be released for development or                   habitats; (4) maintaining and enhancing               approximately 890 ac (360 ha)
                                               included in the MSHCP Conservation                      wetland habitats; (5) initiating adaptive             conserved property in the
                                               Area.                                                   management should target species                      unincorporated community of Aguanga,
                                                  Preservation and management of                       locations fall below 75 percent of                    was established as mitigation for
                                               approximately 5,902 ac (2,383 ha) of                    locations indicated in the Western                    development projects elsewhere in
                                               arroyo toad habitat under the Western                   Riverside County MSHCP species                        western Riverside County (CNLM 2006,
                                               Riverside County MSHCP within                           accounts; and (6) managing disturbance                p. 1). The Wilson Creek Management
                                               Additional Reserve Lands will                           regimes, including but not limited to,                Plan outlines specific long-term
                                               contribute to the conservation and                      fire, exotic species invasions,                       preserve management practices,
                                               ultimate recovery of this species.                      sedimentation, and erosion (County of                 including: (1) Annual biological
                                               Additionally, cooperative management                    Riverside 2009a, pp. 1, 7). After 10                  resource monitoring to identify changes
                                               and monitoring are anticipated on                       years, if not sooner, the management                  in habitat and trends in species
                                               existing PQP lands. The arroyo toad is                  plan will be revised. Thus, these areas               composition, diversity, and abundance;
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                                               threatened primarily by alterations of                  within the Cactus Valley Habitat                      (2) use of buffers and barriers to
                                               stream hydrology and geomorphology as                   Management Unit are permanently                       minimize the influence of neighboring
                                               a result of mining, reservoirs, and flood               protected and managed within                          properties that may reduce the quality
                                               control activities; development;                        Additional Reserve Lands pursuant to                  and integrity of the ecosystem; (3)
                                               agriculture, including livestock grazing;               the Western Riverside County MSHCP.                   maintenance and enhancement of
                                               recreational activities; and nonnative                     Approximately 117 ac (47 ha) of                    habitat; (4) identification of habitat
                                               species (Service 2004, pp. 156–158).                    Subunits 13b and 13c within the                       enhancement opportunities; and (5)


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                                               7280             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               development of a fire management                        Federal agencies must consult with us                 meets the definition of critical habitat.
                                               program in consultation with the                        on actions that may affect critical                   This process is valuable to land owners
                                               Riverside County Fire Marshall and                      habitat and must avoid destroying or                  and managers in prioritizing
                                               appropriate wildlife agencies (CNLM                     adversely modifying critical habitat.                 conservation and management of
                                               2006, pp. 1–2). Thus, the Wilson Creek                  Critical habitat may provide a regulatory             identified areas. Because the habitat
                                               Management Plan provides protection to                  benefit for the arroyo toad when there                identified above in Additional Reserve
                                               the arroyo toad and its proposed critical               is a Federal nexus present for a project              Lands and Wilson Creek Conservation
                                               habitat through the conservation and                    that might adversely modify critical                  Bank within Units 9 and 13 is already
                                               management of an area that may                          habitat. Specifically, we expect projects             conserved and managed under the
                                               otherwise be left unprotected.                          in wetland areas would require a 404                  Western Riverside County MSHCP
                                                 Below is an analysis of the relative                  permit under the Clean Water Act                      (approximately 5 percent of land within
                                               benefits of inclusion and exclusion of                  (CWA) from the U.S. Army Corps of                     the Western Riverside County MSHCP
                                               lands within Units 9 and 13 for which                   Engineers (Corps). Therefore, critical                plan area meeting the definition of
                                               the Secretary is exercising his discretion              habitat will have an additional                       critical habitat), no educational benefits
                                               to exclude from this final revised                      regulatory benefit to the conservation of             would be realized in these areas. The
                                               critical habitat designation.                           the arroyo toad by prohibiting adverse                remaining 95 percent of land proposed
                                               Benefits of Inclusion—Western                           modification of habitat essential to the              as revised critical habitat within the
                                               Riverside County MSHCP                                  conservation of this species.                         Western Riverside County MSHCP plan
                                                                                                       Approximately 5 percent of lands                      area is not currently conserved and
                                                  The principal benefit of including an                proposed for designation in Units 9 and               managed, and there are educational
                                               area in a critical habitat designation is               13 within the plan area for the Western               benefits of including these areas.
                                               the requirement of Federal agencies to                  Riverside County MSHCP (Additional                       The designation of arroyo toad critical
                                               ensure actions they fund, authorize, or                                                                       habitat may also strengthen or reinforce
                                                                                                       Reserve Lands identified above and
                                               carry out are not likely to result in the                                                                     some of the provisions in other State
                                                                                                       Wilson Creek Conservation Bank) are
                                               destruction or adverse modification of                                                                        and Federal laws, such as the California
                                                                                                       conserved and managed under the
                                               any designated critical habitat, the                                                                          Environmental Quality Act (CEQA) or
                                                                                                       Western Riverside County MSHCP;
                                               regulatory standard of section 7(a)(2) of                                                                     National Environmental Policy Act
                                                                                                       therefore, Federal actions that could
                                               the Act under which consultation is                                                                           (NEPA). These laws analyze the
                                                                                                       adversely affect the arroyo toad or its
                                               completed. Federal agencies must                                                                              potential for projects to significantly
                                                                                                       habitat are unlikely to occur in these
                                               consult with the Service on actions that                                                                      affect the environment. In Riverside
                                                                                                       areas. If such actions do occur, it is
                                               may affect critical habitat and must                                                                          County, the additional protections
                                                                                                       likely that the protections provided the
                                               avoid destroying or adversely modifying                                                                       associated with critical habitat may be
                                               critical habitat. Federal agencies must                 species and its habitat under section
                                                                                                       7(a)(2) of the Act would be largely                   beneficial in areas not currently
                                               also consult with us on actions that may                                                                      conserved. Critical habitat may signal
                                               affect a listed species and refrain from                redundant with the protections offered
                                                                                                       by the Western Riverside County                       the presence of sensitive habitat that
                                               undertaking actions that are likely to                                                                        could otherwise be missed in the review
                                               jeopardize the continued existence of                   MSHCP. Thus, we expect the regulatory
                                                                                                       benefit of including these areas in                   process for these other environmental
                                               such species. The analysis of effects to                                                                      laws.
                                               critical habitat is a separate and                      critical habitat would be minimal.
                                                                                                                                                                In summary, we believe that
                                               different analysis from that of the effects             Approximately 95 percent of lands
                                                                                                                                                             designating critical habitat would
                                               to the species. Therefore, the difference               meeting the definition of critical habitat
                                                                                                                                                             provide minimal regulatory benefits
                                               in outcomes of these two analyses                       within the Western Riverside County                   under section 7(a)(2) of the Act in areas
                                               represents the regulatory benefit of                    MSHCP plan area are not currently                     meeting the definition of critical habitat
                                               critical habitat. For some species                      conserved and managed. Thus, we                       that are conserved and managed, nor
                                               (including the arroyo toad), and in some                believe there are regulatory benefits of              will any additional educational benefits
                                               locations, the outcome of these analyses                critical habitat designation in these                 be realized under these circumstances.
                                               will be similar, because effects to habitat             areas.                                                In areas that are not currently conserved
                                               will often also result in effects to the                   Another possible benefit of including              and managed, we believe there are
                                               species. However, the regulatory                        lands in critical habitat is public                   regulatory and educational benefits of
                                               standard is different, as the jeopardy                  education regarding the potential                     critical habitat designation.
                                               analysis investigates the action’s impact               conservation value of an area that may
                                               to survival and recovery of the species,                help focus conservation efforts on areas              Benefits of Exclusion—Western
                                               while the adverse modification analysis                 of high conservation value for certain                Riverside County MSHCP
                                               investigates the action’s effects to the                species. Any information about the                       We believe conservation benefits
                                               designated habitat’s contribution to                    arroyo toad and its habitat that reaches              would be realized by forgoing
                                               conservation. This will, in many                        a wide audience, including parties                    designation of critical habitat for the
                                               instances, lead to different results and                engaged in conservation activities, is                arroyo toad on lands covered by the
                                               different regulatory requirements. Thus,                valuable. The inclusion of lands in the               Western Riverside County MSHCP
                                               critical habitat designations may                       arroyo toad proposed and final revised                including: (1) Continuance and
                                               provide greater benefits to the recovery                critical habitat designation that are not             strengthening of our effective working
                                               of a species than would listing alone.                  conserved and managed is beneficial to                relationships with all Western Riverside
                                                  Any protections provided by critical                 the species because the proposed and                  County MSHCP jurisdictions and
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                                               habitat that are redundant with                         final rules identify those lands that                 stakeholders to promote conservation of
                                               protections already in place reduce the                 require management for the                            the arroyo toad, its habitat, and 145
                                               benefits of inclusion in critical habitat.              conservation of the arroyo toad. The                  other species covered by the HCP and
                                               The consultation provisions under                       process of proposing and finalizing                   their habitat; (2) allowance for
                                               section 7(a)(2) of the Act constitute the               revised critical habitat provided the                 continued meaningful collaboration and
                                               regulatory benefits of designating lands                opportunity for peer review and public                cooperation in working toward
                                               as critical habitat. As discussed above,                comment on habitat we determined                      protecting and recovering this species


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                                                                Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                        7281

                                               and the many other species covered by                   Additionally, many landowners                         when there is a Federal nexus, and
                                               the HCP, including conservation                         perceive critical habitat as an unfair and            designation may act as an educational
                                               benefits that might not otherwise occur;                unnecessary regulatory burden given the               tool for the public regarding the
                                               (3) encouragement for local jurisdictions               expense and time involved in                          conservation of arroyo toad and the
                                               to fully participate in the Western                     developing and implementing complex                   physical and biological features
                                               Riverside County MSHCP; and (4)                         regional and jurisdiction-wide HCPs,                  essential to the conservation of the
                                               encouragement of additional HCP and                     such as the Western Riverside County                  species. None of the remaining lands
                                               other conservation plan development in                  MSHCP. Exclusion of Western Riverside                 within the Western Riverside County
                                               the future on other private lands for this              County MSHCP lands would help                         MSHCP plan area in Units 9 and 13 are
                                               and other federally listed and sensitive                preserve the partnerships we developed                currently both conserved and managed
                                               species.                                                with the County of Riverside and other                to benefit the arroyo toad, and the broad
                                                  In the case of arroyo toad in Riverside              local jurisdictions in the development of             conservation goals for this species under
                                               County, the partnership and                             the HCP, and foster future partnerships               the Western Riverside County MSHCP
                                               commitment by the permittees of the                     and development of future HCPs.                       do not explicitly require and assure
                                               Western Riverside County MSHCP                            In summary, we believe excluding                    protection of the specific lands included
                                               resulted in lands being conserved and                   land covered by the Western Riverside                 in Units 9 and 13. Therefore designation
                                               managed for the long term that will                     County MSHCP from critical habitat                    of these units will provide an
                                               contribute to the recovery of the species.              could provide the significant benefit of              educational benefit by focusing
                                                  We developed a close partnership                     maintaining existing regional HCP                     attention on the specific lands within
                                               with the permittees of the Western                      partnerships and fostering new ones.                  the Western Riverside County MSHCP
                                               Riverside County MSHCP through the                                                                            plan area that are essential to the
                                               development of the HCP, which                           Weighing Benefits of Exclusion Against
                                                                                                       Benefits of Inclusion—Western                         species’ recovery so that conservation
                                               incorporates protections (conserved                                                                           efforts are directed toward those areas.
                                               lands) and management for the arroyo                    Riverside County MSHCP
                                                                                                                                                             We also anticipate a potential regulatory
                                               toad, its habitat, and the physical and                   We reviewed and evaluated the                       benefit from designation for activities on
                                               biological features essential to the                    benefits of inclusion and exclusion from              these lands with a Federal nexus and
                                               conservation of this species.                           critical habitat designation for the                  some ancillary benefit from other laws
                                               Additionally, many landowners                           arroyo toad for lands owned by or under               such as CEQA and NEPA from
                                               perceive critical habitat as an unfair and              the jurisdiction of Western Riverside                 designating these areas as critical
                                               unnecessary regulatory burden given the                 County MSHCP permittees. The benefits                 habitat.
                                               expense and time involved in                            of including conserved and managed                       Excluding those portions of lands
                                               developing and implementing complex                     lands in the critical habitat designation             within Units 9 and 13 that are
                                               regional and jurisdiction-wide HCPs,                    are small. Approximately 14 ac (6 ha) of              conserved and managed from critical
                                               such as the Western Riverside County                    land in Subunit 9b covered by the                     habitat designation will further our
                                               MSHCP (as discussed further in                          Cactus Valley Habitat Management Plan,                existing partnerships with permittees
                                               Comments 26 below in the Summary of                     approximately 117 ac (47 ha) of land in               under the Western Riverside County
                                               Comments and Recommendations                            Subunits 13b and 13c covered by the                   MSHCP and encourage future voluntary
                                               section of this rule). Exclusion of                     Sage Habitat Management Plan, and                     conservation efforts for this species by
                                               Western Riverside County MSHCP lands                    approximately 158 ac (64 ha) of land in               relieving landowners of any additional
                                               could help preserve the partnerships we                 Subunit 13c covered by the Wilson                     regulatory burden stemming from
                                               developed with the County of Riverside                  Creek Management Plan are already                     designation. We consider this a
                                               and other local jurisdictions in the                    managed and conserved, and provide a                  significant benefit of excluding these
                                               development of the HCP, foster future                   conservation benefit to the arroyo toad.              lands.
                                               partnerships and development of future                  There is also no educational or ancillary                In summary, we find that excluding
                                               HCPs, and encourage the establishment                   benefit of designating critical habitat in            from critical habitat areas that are
                                               of future conservation and management                   these conserved areas; educational                    receiving long-term conservation and
                                               of habitat for the arroyo toad and other                information regarding the importance of               management for the purpose of
                                               sensitive species.                                      these areas was identified during the                 protecting the arroyo toad in Units 9
                                                  The Western Riverside County                         development and implementation of the                 and 13 will help preserve our
                                               MSHCP provides substantial protection                   Western Riverside County MSHCP, and                   partnership with the County of
                                               and management for the arroyo toad and                  potential ancillary benefits are                      Riverside and other permittees in the
                                               the physical and biological features                    negligible. Similarly, the regulatory                 Western Riverside County MSHCP and
                                               essential to the conservation of the                    benefit provided by a critical habitat                encourage the conservation of lands
                                               species, and addresses conservation                     designation is small because it is                    associated with development and
                                               issues from a coordinated, integrated                   partially redundant with the existing                 implementation of future HCPs. These
                                               perspective rather than a piecemeal,                    protection of these areas under the                   partnership benefits are significant and
                                               project-by-project approach (as would                   Western Riverside County MSHCP.                       outweigh the small potential regulatory,
                                               occur under sections 7 of the Act or                    Therefore, we do not believe critical                 educational, and ancillary benefits of
                                               smaller HCPs), thus resulting in                        habitat designation for the arroyo toad               including conserved and managed lands
                                               coordinated landscape-scale                             within these areas will provide                       within Units 9 and 13 in critical habitat
                                               conservation that can contribute to                     significant regulatory, educational, or               for the arroyo toad. We find that
                                               genetic diversity by preserving covered                 ancillary benefits for these areas.                   including lands as critical habitat that
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                                               species populations, habitat, and                         In contrast, including lands within                 are not yet receiving long-term
                                               interconnected linkage areas that                       the Western Riverside County MSHCP                    conservation and management within
                                               support recovery of the arroyo toad and                 plan area in the final revised critical               Units 9 and 13 will provide additional
                                               other listed species. It is important that              habitat designation for arroyo toad that              regulatory protection under section 7(a)
                                               we encourage participation in such                      are not currently conserved and                       of the Act when there is a Federal
                                               plans and encourage voluntary coverage                  managed will provide additional                       nexus, and will provide an educational
                                               of listed plant species in such plans.                  protection under section 7(a) of the Act              benefit by focusing conservation efforts


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                                               7282             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               by the Western Riverside County                         Act. In making our final decision with                implementation of a project-specific
                                               MSHCP permittees on conservation and                    regard to these lands, we considered                  mitigation plan if a planned activity
                                               management of these specific essential                  several factors including our                         would result in take of arroyo toads. The
                                               habitat areas for the arroyo toad and                   relationships with participating                      HCP requires the mitigation plan to: (1)
                                               educating the public about importance                   jurisdictions and other stakeholders,                 Address design modifications, minimize
                                               of these areas for the conservation of                  conservation measures and management                  impacts, and provide appropriate
                                               this species. Designation may also result               that are in place on these lands, and                 protections for arroyo toad; (2) provide
                                               in some ancillary benefits under other                  impacts to current and future                         for arroyo toad relocation to an
                                               laws. Therefore, designating these areas                partnerships. Under section 4(b)(2) of                acceptable location where habitat will
                                               as critical habitat for the arroyo toad                 the Act, for the reasons discussed in the             be management and enhanced as
                                               will provide educational as well as                     following sections, the Secretary is                  needed; and (3) provide for monitoring
                                               some regulatory and ancillary benefits                  exercising his discretion to exclude a                and adaptive management of arroyo
                                               to the species. While we acknowledge                    total of 1,259 ac (508 ha), or 96 percent,            toads and their habitat.
                                               that excluding these areas under section                of land within the Orange County                         The Orange County Central-Coastal
                                               4(b)(2) of the Act would provide a                      Central-Coastal NCCP/HCP plan area                    NCCP/HCP provides for monitoring and
                                               benefit to the partnership that we have                 (including those lands associated with                adaptive management of covered
                                               with the County of Riverside and other                  the NRPPA) within Unit 8 from this                    species and their habitat, including the
                                               permittees under the Western Riverside                  final revised critical habitat designation.           arroyo toad, within this reserve system.
                                               County MSHCP, we have not concluded                     The Secretary is declining to exercise                To date, monitoring and management
                                               that the benefits of exclusion outweigh                 his discretion to exclude 52 ac (21 ha),              related to arroyo toad has included
                                               the educational benefit along with the                  or 4 percent, of land within the Orange               reserve-wide herpetofauna surveys
                                               potential regulatory and ancillary                      County Central-Coastal NCCP/HCP plan                  conducted from 1997 through 2001 and
                                               benefits to the conservation of the                     area within Unit 8 in this final revised              ongoing control of invasive nonnative
                                               species in these areas of Units 9 and 13.               critical habitat designation. As                      vegetation in the upland environment.
                                               Therefore, the Secretary is declining to                described in our analysis below, this                    Approximately 589 ac (238 ha) of the
                                               exercise his discretion to exclude 6,097                conclusion was reached after                          portion of Unit 8 within the Orange
                                               ac (2,467 ha) of land within the Western                considering the relevant impacts of                   County Central-Coastal NCCP/HCP plan
                                               Riverside County MSHCP plan area in                     specifying the area as critical habitat.              area is covered by the Irvine Ranch
                                               Units 9 and 13 from this final revised                                                                        Northern Open Space Recreation and
                                                                                                          The Orange County Central-Coastal                  Resource Management Plan (Irvine
                                               critical habitat designation.
                                                                                                       NCCP/HCP in central Orange County                     Ranch Northern Open Space
                                               Exclusion Will Not Result in Extinction                 (including lands within a portion of                  Management Plan). These lands were
                                               of the Species—Units 9 and 13, Western                  Unit 8) was developed in cooperation                  transferred in 2010 from the landowner
                                               Riverside County MSHCP                                  with numerous local and State                         (i.e., the Irvine Company, who is also a
                                                  We determined exclusion of 289 ac                    jurisdictions and agencies, and                       permittee of the Orange County Central-
                                               (118 ha) of land in Units 9 and 13                      participating landowners, including                   Coastal NCCP/HCP) to the County of
                                               within the Western Riverside County                     Southern California Edison;                           Orange to be conserved and managed in
                                               MSHCP plan area from the final revised                  Transportation Corridor Agencies; The                 Orange County Central-Coastal NCCP/
                                               critical habitat designation for the                    Irvine Company; California Department                 HCP’s reserve system. Additionally, the
                                               arroyo toad will not result in extinction               of Parks and Recreation; Metropolitan                 Irvine Ranch Northern Open Space
                                               of the species. These areas are                         Water District of Southern California;                Management Plan was developed in
                                               permanently conserved and managed to                    Orange County; and the cities of                      conformance with the Orange County
                                               provide a benefit to arroyo toad and its                Anaheim, Costa Mesa, Irvine, Orange,                  Central-Coastal NCCP/HCP, and
                                               habitat, thus providing assurances that                 and San Juan Capistrano. Approved in                  identifies actions needed to maintain
                                               the species will not go extinct as a result             1996, the Orange County Central-Coastal               long-term habitat value by addressing
                                               of exclusion from critical habitat                      NCCP/HCP provides for the                             key challenges such as management of
                                               designation. Therefore, based on the                    establishment of approximately 38,738                 increased wildfire frequency, nonnative
                                               above discussion, the Secretary is                      ac (15,677 ha) of reserve lands for 39                plants and animals, and unauthorized
                                               exercising his discretion to exclude                    covered species within the 208,713-ac                 activities by individuals or groups (LSA
                                               approximately 289 ac (118 ha) of land                   (84,463-ha) planning area. We                         and IRC 2010, pp. 66–67; Service 2010,
                                               in Units 9 and 13 owned by or under the                 concluded in our biological opinion                   p. 1).
                                               jurisdiction of Western Riverside                       (Service 1996, p. 66) that                               Approximately 670 ac (271 ha) of Unit
                                               County MSHCP permittees from this                       implementation of the plan, as                        8 within NRPPA is covered by the
                                               final revised critical habitat designation.             proposed, was not likely to jeopardize                Resource Plan for East Orange
                                                                                                       the continued existence of the arroyo                 Conservation Easement Property (East
                                               Orange County Central-Coastal                           toad. We also issued an incidental take               Orange Management Plan), the Resource
                                               Subregional Habitat Conservation Plan/                  permit to the permittes of the plan                   Plan for Fremont/Blind Easement
                                               Natural Community Conservation Plan                     under section 10(a)(1)(B) of the Act that             Property (Fremont/Blind Management
                                               (Orange County Central-Coastal NCCP/                    provides conditional incidental take                  Plan), and the Resource Plan for Silmod
                                               HCP)                                                    authorization for the arroyo toad for all             Conservation Easement Property
                                                 We determined that approximately                      areas within the Orange County Central-               (Silmod Management Plan). As noted
                                               641 ac (259 ha) of land in Unit 8 owned                 Coastal Subregion, except the NRPPA                   above, the NRPPA was not included in
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                                               by or under the jurisdiction of the                     which is addressed in more detail                     the Orange County Central-Coastal
                                               permittees of the Orange County                         below. This take authorization only                   NCCP/HCP based on a lack of biological
                                               Central-Coastal NCCP/HCP and                            applies to smaller arroyo toad                        information and a lack of specific
                                               approximately 670 ac (271 ha) of land                   populations, reintroduced populations,                conservation commitments at the time
                                               in Unit 8 in the associated North Ranch                 or populations that have expanded due                 of adoption of the plan. The landowner
                                               Policy Plan Area (NRPPA) meet the                       to NCCP/HCP reserve management. It                    (i.e., The Irvine Company) agreed to
                                               definition of critical habitat under the                also requires creation and                            continue to work with CDFG and the


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                                               Service to address the conservation                     (including the arroyo toad), and in some              critical habitat designation in these
                                               needs of multiple sensitive species in                  locations, the outcome of these analyses              areas.
                                               the NRPPA, including the arroyo toad.                   will be similar, because effects to habitat              Another possible benefit of including
                                               As a result, conservation easements held                will often also result in effects to the              lands in critical habitat is public
                                               by the Nature Conservancy and                           species. However, the regulatory                      education regarding the potential
                                               managed by the Irvine Company were                      standard is different, as the jeopardy                conservation value of an area that may
                                               established (which includes                             analysis investigates the action’s impact             help focus conservation efforts on areas
                                               approximately 670 ac (271 ha) of lands                  to survival and recovery of the species,              of high conservation value for certain
                                               within the arroyo toad proposed revised                 while the adverse modification analysis               species. Any information about the
                                               critical habitat area). Management and                  investigates the action’s effects to the              arroyo toad and its habitat that reaches
                                               monitoring of this area includes a $10                  designated habitat’s contribution to                  a wide audience, including parties
                                               million management endowment and                        conservation. This will, in many                      engaged in conservation activities, is
                                               addresses various adaptive management                   instances, lead to different results and              valuable. The inclusion of lands in the
                                               activities that provide a benefit to the                different regulatory requirements. Thus,              arroyo toad proposed and final revised
                                               arroyo toad and its habitat. The                        critical habitat designations may                     critical habitat designation that are not
                                               management program addresses                            provide greater benefits to the recovery              conserved and managed is beneficial to
                                               management from an ecosystem-based                      of a species than would listing alone.                the species because the proposed and
                                               approach, including activities such as                     Any protections provided by critical               final rules identify those lands that
                                               restoration of habitat through removal of                                                                     require management for the
                                                                                                       habitat that are redundant with
                                               invasive species, erosion control, and an                                                                     conservation of the arroyo toad. The
                                                                                                       protections already in place reduce the
                                               on-going biological monitoring program                                                                        process of proposing and finalizing
                                                                                                       benefits of inclusion in critical habitat.
                                               that benefits an adaptive management                                                                          revised critical habitat provided the
                                                                                                       The consultation provisions under
                                               strategy.                                                                                                     opportunity for peer review and public
                                                                                                       section 7(a)(2) of the Act constitute the
                                                  In summary, Orange County Central-                                                                         comment on habitat we determined
                                                                                                       regulatory benefits of designating lands
                                               Coastal NCCP/HCP’s reserve system and                                                                         meets the definition of critical habitat.
                                                                                                       as critical habitat. As discussed above,
                                               the conservation easement within the                                                                          This process is valuable to land owners
                                                                                                       Federal agencies must consult with us
                                               NRPPA provides permanent protection                                                                           and managers in prioritizing
                                                                                                       on actions that may affect critical
                                               to approximately 1,259 ac (508 ha), or                                                                        conservation and management of
                                                                                                       habitat and must avoid destroying or                  identified areas. Because the habitat
                                               96 percent, of land within the Orange
                                               County Central-Coastal NCCP/HCP plan                    adversely modifying critical habitat.                 identified in Orange County Central-
                                               area in Unit 8. Approximately 52 ac (21                 Critical habitat may provide a regulatory             Coastal NCCP/HCP’s reserve system and
                                               ha), or 4 percent, of land within the                   benefit for the arroyo toad when there                associated NRPPA within Unit 8 is
                                               Orange County Central-Coastal NCCP/                     is a Federal nexus present for a project              already conserved and managed under
                                               HCP plan area in Unit 8 are not                         that might adversely modify critical                  the Orange County Central-Coastal
                                               conserved and managed.                                  habitat. Specifically, we expect projects             NCCP/HCP and associated management
                                                  Below is an analysis of the relative                 in wetland areas would require a 404                  plans (approximately 96 percent of land
                                               benefits of inclusion and exclusion of                  permit under the Clean Water Act from                 proposed as critical habitat within the
                                               lands within Unit 8 for which the                       the U.S. Army Corps of Engineers.                     Orange County Central-Coastal NCCP/
                                               Secretary is exercising his discretion to               Therefore, critical habitat will have an              HCP plan area), no educational benefits
                                               exclude from this final revised critical                additional regulatory benefit to the                  would be realized in these areas. The
                                               habitat designation.                                    conservation of the arroyo toad by                    remaining 4 percent of land proposed as
                                                                                                       prohibiting adverse modification of                   revised critical habitat within the
                                               Benefits of Inclusion—Orange County                     habitat essential to the conservation of
                                               Central-Coastal NCCP/HCP                                                                                      Orange County Central-Coastal NCCP/
                                                                                                       this species. Approximately 96 percent                HCP plan area is not conserved and
                                                  The principal benefit of including an                of lands proposed for designation                     managed, and there are educational
                                               area in a critical habitat designation is               within Orange County Central-Coastal                  benefits of including these areas (such
                                               the requirement of Federal agencies to                  NCCP/HCP’s reserve system and                         as informing the public about essential
                                               ensure actions they fund, authorize, or                 associated NRPPA in Unit 8 are                        habitat and potentially refining the
                                               carry out are not likely to result in the               conserved and managed under the                       broader conservation goals for arroyo
                                               destruction or adverse modification of                  Orange County Central-Coastal NCCP/                   toad under the Orange County Central-
                                               any designated critical habitat, the                    HCP and associated management plans;                  Coastal NCCP/HCP by focusing
                                               regulatory standard of section 7(a)(2) of               therefore, Federal actions that could                 conservation on the specific areas
                                               the Act under which consultation is                     adversely affect the arroyo toad or its               essential to the recovery of the species).
                                               completed. Federal agencies must                        habitat are unlikely to occur in these                   The designation of arroyo toad critical
                                               consult with the Service on actions that                areas. If such actions do occur, it is                habitat may also strengthen or reinforce
                                               may affect critical habitat and must                    likely that the protections provided the              some of the provisions in other State
                                               avoid destroying or adversely modifying                 species and its habitat under section                 and Federal laws, such as CEQA or
                                               critical habitat. Federal agencies must                 7(a)(2) of the Act would be largely                   NEPA. These laws analyze the potential
                                               also consult with us on actions that may                redundant with the protections offered                for projects to significantly affect the
                                               affect a listed species and refrain from                by the Orange County Central-Coastal                  environment. In Orange County, the
                                               undertaking actions that are likely to                  NCCP/HCP and associated management                    additional protections associated with
                                               jeopardize the continued existence of                   plans. Thus, we expect the regulatory                 critical habitat may be beneficial in
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                                               such species. The analysis of effects to                benefit of including these areas in                   areas not currently conserved. Critical
                                               critical habitat is a separate and                      critical habitat would be minimal.                    habitat may signal the presence of
                                               different analysis from that of the effects             Approximately 4 percent of land within                sensitive habitat that could otherwise be
                                               to the species. Therefore, the difference               the Orange County Central-Coastal                     missed in the review process for these
                                               in outcomes of these two analyses                       NCCP/HCP plan area in Unit 8 are not                  other environmental laws.
                                               represents the regulatory benefit of                    conserved and managed. Thus, we                          In summary, we believe that
                                               critical habitat. For some species                      believe there are regulatory benefits of              designating critical habitat would


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                                               provide minimal regulatory benefits                     in the Summary of Comments and                        under the jurisdiction of Orange County
                                               under section 7(a)(2) of the Act in areas               Recommendations section of this rule).                Central-Coastal NCCP/HCP permittees,
                                               meeting the definition of critical habitat              Exclusion of lands under the Orange                   including the Irvine Company with
                                               that are conserved and managed, nor                     County Central-Coastal NCCP/HCP and                   regard to the NRPPA, proposed as
                                               will any additional educational benefits                associated NRPPA could help preserve                  critical habitat for arroyo toad. The
                                               be realized under these circumstances.                  the partnership we developed with                     benefits of including conserved and
                                               In areas that are not currently conserved               County of Orange and other participants               managed lands in the critical habitat
                                               and managed, we believe there are                       in the development of the HCP, and                    designation are small. The Orange
                                               regulatory and educational benefits of                  foster future partnerships and                        County Central-Coastal NCCP/HCP’s
                                               critical habitat designation.                           development of future HCPs, and                       reserve system and the conservation
                                                                                                       encourage the establishment of future                 easement within the NRPPA encompass
                                               Benefits of Exclusion—Orange County
                                                                                                       conservation and management of habitat                approximately 1,259 ac (508 ha), or 96
                                               Central-Coastal NCCP/HCP
                                                                                                       for the arroyo toad and other sensitive               percent, of the Orange County Central-
                                                  We believe conservation benefits                     species.                                              Coastal NCCP/HCP plan area within
                                               would be realized by forgoing                             The Orange County Central-Coastal                   Unit 8, are already managed and
                                               designation of critical habitat for the                 NCCP/HCP and associated conservation                  conserved, and provide a benefit to
                                               arroyo toad on lands covered by the                     with the NRPPA provides substantial                   arroyo toad. There is also no
                                               Orange County Central-Coastal NCCP/                     protection and management for the                     educational or ancillary benefit of
                                               HCP and associated NRPPA including:                     arroyo toad and the physical and                      designating critical habitat in these
                                               (1) Continuance and strengthening of                    biological features essential to the                  conserved areas; educational
                                               our effective working relationships with                conservation of the species, and                      information regarding the importance of
                                               all Orange County Central-Coastal                       addresses conservation issues from a                  these areas was identified during the
                                               NCCP/HCP jurisdictions and                              coordinated, integrated perspective                   development and implementation of the
                                               stakeholders (including the Irvine                      rather than a piecemeal, project-by-                  Orange County Central-Coastal NCCP/
                                               Company with relation to the NRPPA)                     project approach (as would occur under                HCP, and potential ancillary benefits are
                                               to promote voluntary, proactive                         sections 7 of the Act or smaller HCPs),               negligible. Similarly, the regulatory
                                               conservation of the arroyo toad and its                 thus resulting in coordinated landscape-              benefit provided by a critical habitat
                                               habitat as opposed to reactive                          scale conservation that can contribute to             designation is small because it is
                                               regulation; (2) allowance for continued                 genetic diversity by preserving covered               partially redundant with the existing
                                               meaningful collaboration and                            species populations, habitat, and                     protection of these areas under the
                                               cooperation in working toward species                   interconnected linkage areas that                     Orange County Central-Coastal NCCP/
                                               recovery, including conservation                        support recovery of the arroyo toad and               HCP. Therefore, we do not believe
                                               benefits that might not otherwise occur;                other listed species. It is important that            critical habitat designation for the
                                               (3) encouragement for local jurisdictions               we encourage participation in such                    arroyo toad within these areas will
                                               to fully participate in the Orange County               plans and encourage voluntary coverage                provide significant regulatory,
                                               Central-Coastal NCCP/HCP; and (4)                       of listed plant species in such plans.                educational, or ancillary benefits for
                                               encouragement of additional HCP and                     Additionally, many landowners                         these areas.
                                               other conservation plan development in                  perceive critical habitat as an unfair and              In contrast, including lands within
                                               the future on other private lands for this              unnecessary regulatory burden given the               the Orange County Central-Coastal
                                               and other federally listed and sensitive                expense and time involved in                          NCCP/HCP plan area in the final revised
                                               species.                                                developing and implementing complex                   critical habitat designation for arroyo
                                                  In the case of arroyo toad in Orange                 regional and jurisdiction-wide HCPs,                  toad that are not conserved and
                                               County, the partnership and                             such as the Orange County Central-                    managed will provide additional
                                               commitment by the Orange County                         Coastal NCCP/HCP and associated                       protection under section 7(a) of the Act
                                               Central-Coastal NCCP/HCP jurisdictions                  conservation with the NRPPA.                          when there is a Federal nexus, and
                                               and stakeholders resulted in lands being                Exclusion of Orange County Central-                   designation may act as an educational
                                               conserved and managed for the long                      Coastal NCCP/HCP and associated                       tool for the public regarding the
                                               term that will contribute to the recovery               conservation with the NRPPA lands                     conservation of arroyo toad and the
                                               of the species.                                         would help preserve the partnerships                  physical and biological features
                                                  We developed close partnerships with                 we developed with the County of                       essential to the conservation of the
                                               all participating entities through the                  Orange and other participating property               species. Therefore designation of these
                                               development of the Orange County                        owners in the development of the HCP,                 areas will provide an educational
                                               Central-Coastal NCCP/HCP and the                        and foster future partnerships and                    benefit by focusing attention on the
                                               associated conservation easement                        development of future HCPs.                           specific lands within Orange County
                                               established under the NRPPA, which                        In summary, we believe excluding                    Central-Coastal NCCP/HCP that are
                                               incorporates substantial protections and                land covered by the Orange County                     essential to the species’ recovery so that
                                               management for the arroyo toad, its                     Central-Coastal NCCP/HCP and closely                  conservation efforts are directed toward
                                               habitat, and the features essential to the              associated NRPPA from critical habitat                those areas. We also anticipate a
                                               conservation of this species.                           could provide the significant benefit of              potential regulatory benefit from
                                               Additionally, many landowners                           maintaining existing regional HCP and                 designation for activities on these lands
                                               perceive critical habitat as an unfair and              management plan partnerships, and                     with a Federal nexus and some ancillary
                                               unnecessary regulatory burden given the                 fostering new ones.                                   benefit from other laws such as CEQA
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                                               expense and time involved in                                                                                  and NEPA from designating these areas
                                               developing and implementing complex                     Weighing Benefits of Exclusion Against                as critical habitat.
                                               regional and jurisdiction-wide HCPs,                    Benefits of Inclusion—Orange County                     Approximately 1,259 ac (508 ha) are
                                               such as the Orange County Central-                      Central-Coastal NCCP/HCP                              currently being managed under
                                               Coastal NCCP/HCP and associated                           We reviewed and evaluated the                       management plans developed in part
                                               conservation with the NRPPA (as                         benefits of inclusion and benefits of                 because the area is a participating
                                               discussed further in Comment 27 below                   exclusion for all lands owned by or                   NCCP/HCP jurisdiction. The exclusion


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                                               of conserved areas in Unit 8 within the                 within Unit 8 will provide additional                 jurisdictions and other stakeholders,
                                               Orange County Central-Coastal NCCP/                     regulatory protection under section 7(a)              conservation measures and management
                                               HCP plan area will benefit the                          of the Act when there is a Federal                    that are in place on these lands, and
                                               partnership that we have with the                       nexus, and will provide an educational                impacts to current and future
                                               County of Orange and other                              benefit by focusing conservation efforts              partnerships. Under section 4(b)(2) of
                                               participating property owners, and                      by the Orange County Central-Coastal                  the Act, for the reasons discussed in the
                                               encourage the conservation of lands                     NCCP/HCP permittees on conservation                   following sections, the Secretary is
                                               associated with the development and                     and management of these specific                      exercising his discretion to exclude
                                               implementation of future HCPs.                          essential habitat areas for the arroyo                2,179 ac (882 ha), or 44 percent, of land
                                                  An example of a recognized benefit of                toad and educating the public about                   within the Orange County Southern
                                               the importance of the Orange County                     importance of these areas for the                     Subregion HCP plan area in Subunits
                                               Central-Coastal NCCP/HCP and the                        conservation of this species. Designation             10a, 10b, and 11a from this final revised
                                               partnerships with the permittees is the                 may also result in some ancillary                     critical habitat designation. The
                                               establishment of the conservation                       benefits under other laws. Therefore,                 Secretary is declining to exercise his
                                               easement in the NRPPA. During the                       designating these areas as critical                   discretion to exclude 2,736 ac (1,107
                                               development stage of the Orange County                  habitat for the arroyo toad will provide              ha), or 56 percent, of land within the
                                               Central-Coastal NCCP/HCP (as                            educational as well as some regulatory                Orange County Southern Subregion HCP
                                               described above), the permittees, CDFG,                 and ancillary benefits to the species.                plan area in Subunits 10a and 11a in
                                               and the Service recognized there was a                  While we acknowledge that excluding                   this final revised critical habitat
                                               lack of biological information and                      these areas under section 4(b)(2) of the              designation. As described in our
                                               conservation commitments to include                     Act would provide a benefit to the                    analysis below, this conclusion was
                                               the area now known as the NRPPA into                    partnership that we have with the                     reached after considering the relevant
                                               the HCP. The HCP permittees decided to                  permittees under the Orange County                    impacts of specifying these areas as
                                               address this area separately to prevent                 Central-Coastal NCCP/HCP, we have not                 critical habitat.
                                               stalling the anticipated conservation                   concluded that the benefits of exclusion                 The Orange County Southern
                                               afforded by the finalization of the                     outweigh the educational benefit along                Subregion HCP is a large-scale HCP
                                               Orange County Central-Coastal NCCP/                     with the potential regulatory and                     encompassing approximately 86,021 ac
                                               HCP. The participating permittee and                    ancillary benefits to the conservation of             (34,811 ha) in southern Orange County
                                               owner of the NRPPA, the Irvine                          the species in these areas of Unit 8.                 (including lands within portions of
                                               Company, agreed to not only commit to                   Therefore, the Secretary is declining to              Subunits 10a, 10b, and 11a). Originally
                                               the conservation strategy of the Orange                 exercise his discretion to exclude 52 ac              developed as the Southern Subregion
                                               County Central-Coastal NCCP/HCP, but                    (21 ha) of land within the Orange                     Natural Community Conservation Plan/
                                               also to continue to work with the CDFG                  County Central-Coastal NCCP/HCP plan                  Master Streambed Alteration
                                               and Service to develop an ecosystem-                    area in Unit 8 from this final revised                Agreement/Habitat Conservation Plan,
                                               based conservation plan for the NRPPA.                  critical habitat designation.                         we now refer to the plan as the Orange
                                               As a result of this commitment, a                                                                             County Southern Subregion HCP.
                                               conservation easement was established                   Exclusion Will Not Result in Extinction               Although the plan is intended to be a
                                               with management and monitoring of the                   of the Species—Unit 8, Orange County                  subregional plan under the State of
                                               area in perpetuity, which includes                      Central-Coastal NCCP/HCP                              California’s Natural Community
                                               protection of arroyo toad habitat                         We determined exclusion of 1,259 ac                 Conservation Planning (NCCP) Act of
                                               identified as essential to the                          (508 ha) of land in Unit 8 within the                 2001, the NCCP has not yet been
                                               conservation of the species. Therefore,                 Orange County Central-Coastal NCCP/                   permitted by the California Department
                                               conservation associated with the Orange                 HCP planning area from the final                      of Fish and Game. On January 10, 2007,
                                               County Central-Coastal NCCP/HCP                         revised critical habitat designation for              the Service approved the Habitat
                                               permittees, including the Irvine                        the arroyo toad will not result in                    Conservation Plan and issued incidental
                                               Company who committed to conserving                     extinction of the species. These areas                take permits (TE144105–0, TE144113–0,
                                               NRPPA lands, may not have been                          are permanently conserved and                         and TE144140–0) under section
                                               realized had it not been for the                        managed to provide a benefit to arroyo                10(a)(1)(B) of the Act to the three
                                               continued conservation commitment                       toad and its habitat, thus providing                  permittees for a period of 75 years. We
                                               made by the permittees.                                 assurances that the species will not go               concluded in our biological opinion
                                                  In summary, we find that excluding                   extinct as a result of exclusion from                 (Service 2007, p. 66) that
                                               from critical habitat areas that are                    critical habitat designation. Therefore,              implementation of the plan, as
                                               receiving long-term conservation and                    based on the above discussion, the                    proposed, was not likely to jeopardize
                                               management for the purpose of                           Secretary is exercising his discretion to             the continued existence of the arroyo
                                               protecting the arroyo toad (Unit 8) will                exclude approximately 1,259 ac (508 ha)               toad. Our determination was based on
                                               preserve our partnership with the                       of land in Unit 8 from this final critical            permanent protection of arroyo toad
                                               permittees in the Orange County                         habitat designation.                                  populations within the Orange County
                                               Central-Coastal NCCP/HCP and                                                                                  Southern Subregion HCP plan area
                                               encourage the conservation of lands                     Orange County Southern Subregion HCP
                                                                                                                                                             combined with long-term management
                                               associated with development and                           We determined that approximately                    and monitoring actions within its
                                               implementation of future HCPs. These                    4,915 ac (1,984 ha) of land in Subunits               habitat reserve that will help sustain
                                               partnership benefits are significant and                10a, 10b, and 11a owned by or under                   arroyo toad in the area and contribute to
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                                               outweigh the small potential regulatory,                the jurisdiction of the permittees of the             the range-wide conservation of the
                                               educational, and ancillary benefits of                  Orange County Southern Subregion HCP                  species (Service 2007, p. 67).
                                               including these portions of Unit 8 in                   meet the definition of critical habitat                  The Orange County Southern
                                               critical habitat for the arroyo toad. We                under the Act. In making our final                    Subregion HCP was developed by the
                                               find that including lands as critical                   decision with regard to these lands, we               County of Orange (County), Rancho
                                               habitat that are not yet receiving long-                considered several factors including our              Mission Viejo, LLC (Rancho Mission
                                               term conservation and management                        relationships with participating                      Viejo), and the Santa Margarita Water


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                                               District (Water District) to address                      In addition to the creation of a habitat            of, at minimum: (1) An ongoing review
                                               impacts resulting from residential and                  reserve, the following conservation                   of sensitive habitat areas; and (2)
                                               associated infrastructure development                   measures specific to arroyo toad and its              identification of site specific operational
                                               to 32 species including the arroyo toad.                habitat include:                                      directives for the protection of habitats,
                                               The Orange County Southern Subregion                      (1) Potential impacts to arroyo toads               which include a mechanism for review
                                               HCP is a multi-species conservation                     associated with construction activities               and adjustment of directives in light of
                                               program that minimizes and mitigates                    on Rancho Mission Viejo will be                       new information (Lewis 1987, pp. 1–1
                                               expected habitat loss and associated                    avoided and minimized through                         and 2–11). Approximately 509 ac (206
                                               incidental take of covered species.                     preparation of Biological Resources                   ha) of County parks lands in Subunit
                                                  The Orange County Southern                           Construction Plans in coordination with               10b within O’Neill Regional Park is
                                               Subregion HCP addresses development                     the Service;                                          covered by the O’Neill Regional Park
                                               and associated infrastructure on Rancho                   (2) Potential impacts to arroyo toad                Resource Management Plan. The goals
                                               Mission Viejo lands, installation and                   habitat from grazing activities will be               of this plan are: (1) To insure the
                                               maintenance of infrastructure by the                    addressed through implementation of                   protection and preservation of the
                                               Water District, expansion of Prima                      the Grazing Management Plan, which                    natural and cultural resources within
                                               Deshecha Landfill by the County, and                    includes the management of grazing                    the park through the development of
                                               monitoring and adaptive management of                   activities and restoration of upland                  recommended management tools (such
                                               covered species on reserve lands.                       habitat with native grasses and coastal               as resource management checklists,
                                                                                                       sage scrub;                                           interpretive programs, mitigation
                                                  The Orange County Southern
                                                                                                         (3) Implementation of the Invasive                  programs, and the hiring of a resource
                                               Subregion HCP will establish
                                                                                                       Species Control Plan on Rancho Mission                monitor); and (2) to maintain a viable
                                               approximately 30,426 ac (12,313 ha) of
                                                                                                       Viejo will result in removal of nonnative             ecosystem, a recreational opportunity,
                                               habitat reserve, which will consist
                                                                                                       plant species that degrade aquatic                    and visual quality inherent to the park
                                               primarily of land owned by Rancho
                                                                                                       habitats and removal of aquatic                       by developing a comprehensive
                                               Mission Viejo and three pre-existing
                                                                                                       predators of the arroyo toad;                         understanding of park resource systems
                                               County parks (Service 2007, pp. 10 and                    (4) Through Water Quality
                                               19). The HCP provides for a large,                                                                            and interrelationships, and directing
                                                                                                       Management Plans, flow duration
                                               biologically diverse and permanent                                                                            future planning efforts to insure their
                                                                                                       (which influences channel morphology)
                                               habitat reserve that will protect:                                                                            protection (County of Orange 1989, pp.
                                                                                                       and water quality will be maintained
                                               (1) Large blocks of natural vegetation                                                                        1–1, 11–3 and 11–4). Therefore, the
                                                                                                       such that hydrologic conditions of
                                               communities that provide habitat for the                                                                      Caspers Wilderness Park Program and
                                                                                                       concern such as erosion or
                                               covered species; (2) ‘‘important’’ and                                                                        the O’Neill Regional Park Resource
                                                                                                       sedimentation or pollutants of concern
                                               ‘‘major’’ populations of the covered                                                                          Management Plan provide protection to
                                                                                                       will be addressed;
                                               species in key locations; (3) wildlife                    (5) A detailed monitoring program for               proposed arroyo toad critical habitat
                                               corridors and habitat linkages that                     the arroyo toad at a species-specific                 through the conservation and
                                               connect the large habitat blocks and                    level and also habitat-landscape level                management of these areas that may
                                               covered species populations to each                     will be developed in coordination with                otherwise be left unprotected.
                                               other, the Cleveland National Forest,                   the Service (Service 2007, pp. 62–64);                   Approximately 23 ac (9 ha) of the
                                               and the adjacent Orange County Central-                 and                                                   portion of Subunit 10a within the
                                               Coastal NCCP/HCP; and (4) the                             (6) Removal of nonnative plant                      Orange County Southern Subregion HCP
                                               underlying hydrogeomorphic processes                    species that degrade aquatic habitats                 plan area is conserved and managed in
                                               that support the major vegetation                       occupied by the arroyo toad will be                   Planning Area 1 Open Space. These
                                               communities providing habitat for the                   conducted on County lands to offset                   lands are owned by Rancho Mission
                                               covered species (Service 2007, p. 10).                  impacts to aquatic habitat associated                 Viejo and consist of two areas: (1) An
                                                  The overall habitat reserve will be                  with expansion of the County’s Prima                  area placed under a perpetual
                                               managed and monitored according to                      Deshecha Landfill.                                    conservation easement; and (2) an area
                                               the collective Habitat Reserve                            Below is a brief overview of the lands              subject to a declaration of irrevocable
                                               Management and Monitoring Program                       in Subunits 10a, 10b, and 11a that,                   covenant, both recorded on January 14,
                                               (Habitat Reserve Management Program).                   based on the reasoning provided in the                2010 (County of Orange 2010a, p. 1;
                                               The Habitat Reserve Management                          following sections, the Secretary is                  County of Orange 2010b, pp. 1–9;
                                               Program focuses on the development                      exercising his discretion to exclude                  County of Orange 2010c, pp. 1–32). The
                                               and implementation of a coordinated                     under section 4(b)(2) of the Act, and                 preservation of Rancho Mission Viejo
                                               monitoring and management program to                    how these areas are conserved and                     open space lands in the San Juan Creek
                                               sustain and enhance species                             managed consistent with the Orange                    watershed (Subunit 10a) is occurring
                                               populations, including arroyo toad, and                 County Southern Subregion HCP.                        under the Orange County Southern
                                               their habitats over the long term, while                  Approximately 1,608 ac (651 ha) of                  Subregion HCP under a phased
                                               adapting management actions to new                      County park lands in Subunit 10a                      dedication program consisting of a two-
                                               information and changing habitat                        within the Ronald W. Caspers                          step process including: (1) The phased
                                               conditions. The management program is                   Wilderness Park (Caspers Wilderness                   recordation of irrevocable covenants by
                                               comprised of two components: (1) An                     Park) is covered by the Ronald W.                     affected landowners on or before the
                                               ongoing management program on                           Caspers Wilderness Park General                       commencement of each new
                                               County park lands within the habitat                    Development Plan Phase III Habitat                    development phase, at which time the
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                                               reserve; and (2) an adaptive                            Conservation Program (Caspers                         areas subject to the irrevocable
                                               management program that will be                         Wilderness Park Program). The Caspers                 covenants will be enrolled in the habitat
                                               implemented on the Rancho Mission                       Wilderness Park Program functions as                  reserve and become subject to the
                                               Viejo portion of the habitat reserve and                an operational program to ensure                      Habitat Reserve Management Program,
                                               on selected portions of the County park                 protection of existing biological                     followed by (2) the phased recordation
                                               lands within the habitat reserve (Service               communities and sensitive plant and                   of conservation easements as soon as
                                               2007, p. 12).                                           animal species through implementation                 practicable but no later than 3 years


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                                               following recordation of the                            regulatory standard of section 7(a)(2) of             managed under the Orange County
                                               corresponding irrevocable covenants                     the Act under which consultation is                   Southern Subregion HCP; therefore,
                                               (Dudek and Associates 2007,                             completed. Federal agencies must                      Federal actions that could adversely
                                               Attachment 1, p. 1). Thus, these areas                  consult with the Service on actions that              affect the arroyo toad or its habitat are
                                               within Planning Area 1 Open Space are                   may affect critical habitat and must                  unlikely to occur in these areas. If such
                                               permanently protected and managed in                    avoid destroying or adversely modifying               actions do occur, it is likely that the
                                               the habitat reserve pursuant to the                     critical habitat. Federal agencies must               protections provided the species and its
                                               Orange County Southern Subregion HCP                    also consult with us on actions that may              habitat under section 7(a)(2) of the Act
                                               (Dudek and Associates 2007, pp. 20 and                  affect a listed species and refrain from              would be largely redundant with the
                                               71).                                                    undertaking actions that are likely to                protections offered by the Orange
                                                  Approximately 39 ac (16 ha) of                       jeopardize the continued existence of                 County Southern Subregion HCP. Thus,
                                               Subunit 11a within Orange County                        such species. The analysis of effects to              we expect the regulatory benefit of
                                               Southern Subregion HCP is conserved                     critical habitat is a separate and                    including these areas in critical habitat
                                               and managed in Donna O’Neill Land                       different analysis from that of the effects           would be minimal. Approximately 56
                                               Conservancy. The Donna O’Neill Land                     to the species. Therefore, the difference             percent of land proposed for designation
                                               Conservancy was established in 1990 to                  in outcomes of these two analyses                     within the Orange County Southern
                                               offset impacts associated with nearby                   represents the regulatory benefit of                  Subregion HCP plan area are not
                                               development in the City of San                          critical habitat. For some species                    conserved and managed. Thus, we
                                               Clemente. This approximately 1,200 ac                   (including the arroyo toad), and in some              believe there are regulatory benefits of
                                               (484 ha) property is owned by Rancho                    locations, the outcome of these analyses              critical habitat designation in these
                                               Mission Viejo and permanently                           will be similar, because effects to habitat           areas for the arroyo toad because it may
                                               conserved under a conservation                          will often also result in effects to the              provide a regulatory benefit when there
                                               easement deed held by the Donna                         species. However, the regulatory                      is a Federal nexus present for a project
                                               O’Neill Land Conservancy, a non-profit                  standard is different, as the jeopardy                that might adversely modify critical
                                               conservancy group. Management is                        analysis investigates the action’s impact             habitat.
                                               funded through a non-wasting                            to survival and recovery of the species,                 Another possible benefit of including
                                               endowment, grants, and membership                       while the adverse modification analysis               lands in critical habitat is public
                                               dues. Additionally, the conservation                    investigates the action’s effects to the              education regarding the potential
                                               easement will be transferred to the                     designated habitat’s contribution to                  conservation value of an area that may
                                               Rancho Mission Viejo Land                               conservation. This will, in many
                                               Conservancy (a non-profit entity                                                                              help focus conservation efforts on areas
                                                                                                       instances, lead to different results and              of high conservation value for certain
                                               responsible for collection, investment,                 different regulatory requirements. Thus,
                                               and distribution of funding for the                                                                           species. Any information about the
                                                                                                       critical habitat designations may                     arroyo toad and its habitat that reaches
                                               benefit, preservation, and enhancement                  provide greater benefits to the recovery
                                               of habitat reserve lands within Rancho                                                                        a wide audience, including parties
                                                                                                       of a species than would listing alone.                engaged in conservation activities, is
                                               Mission Viejo), pending approval by the
                                               San Clemente City Council. The city                        Any protections provided by critical               valuable. The inclusion of lands in the
                                               council recently voted 5–0 to approve                   habitat that are redundant with                       arroyo toad proposed and final revised
                                               the transfer in concept, subject to formal              protections already in place reduce the               critical habitat designation that are not
                                               documents being provided to the                         benefits of inclusion in critical habitat.            conserved and managed is beneficial to
                                               council for review and approval. Once                   The consultation provisions under                     the species because the proposed and
                                               transferred, these lands will be enrolled               section 7(a)(2) of the Act constitute the             final rules identify those lands that
                                               in the habitat reserve and therefore                    regulatory benefits of designating lands              require management for the
                                               become subject to the Habitat Reserve                   as critical habitat. As discussed above,              conservation of the arroyo toad. The
                                               Management Program under the Orange                     Federal agencies must consult with us                 process of proposing and finalizing
                                               County Southern Subregion HCP                           on actions that may affect critical                   revised critical habitat provided the
                                               (Dudek and Associates 2007, p. 35).                     habitat and must avoid destroying or                  opportunity for peer review and public
                                               Thus, the Donna O’Neill Land                            adversely modifying critical habitat.                 comment on habitat we determined
                                               Conservancy provides protection to the                  Critical habitat may provide a regulatory             meets the definition of critical habitat.
                                               arroyo toad and its proposed critical                   benefit for the arroyo toad when there                This process is valuable to land owners
                                               habitat through the conservation and                    is a Federal nexus present for a project              and managers in prioritizing
                                               management of an area that may                          that might adversely modify critical                  conservation and management of
                                               otherwise be left unprotected.                          habitat. Specifically, we expect projects             identified areas. Because the habitat
                                                  Below is an analysis of the relative                 in wetland areas would require a 404                  identified in County park lands,
                                               benefits of inclusion and exclusion of                  permit under the Clean Water Act from                 Planning Area 1 Open Space conserved
                                               lands within Subunits 10a, 10b, and 11a                 the U.S. Army Corps of Engineers.                     lands, and Donna O’Neill Land
                                               for which the Secretary is exercising his               Therefore, critical habitat would have                Conservancy within Subunits 10a, 10b,
                                               discretion to exclude from this final                   an additional regulatory benefit to the               and 11a is already conserved and
                                               revised critical habitat designation.                   conservation of the arroyo toad by                    managed under the Orange County
                                                                                                       prohibiting adverse modification of                   Southern Subregion HCP
                                               Benefits of Inclusion—Orange County                     habitat essential to the conservation of              (approximately 44 percent of land
                                               Southern Subregion HCP                                  this species. Approximately 44 percent                within the Orange County Southern
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                                                 The principal benefit of including an                 of lands proposed for designation                     Subregion HCP plan area that meets the
                                               area in a critical habitat designation is               within the Orange County Southern                     definition of critical habitat), no
                                               the requirement of Federal agencies to                  Subregion HCP plan area (i.e., County                 educational benefits would be realized
                                               ensure actions they fund, authorize, or                 park lands, Planning Area 1 Open Space                in this area. The remaining 56 percent
                                               carry out are not likely to result in the               conserved lands, and Donna O’Neill                    of land proposed as revised critical
                                               destruction or adverse modification of                  Land Conservancy lands) in Subunits                   habitat within the Orange County
                                               any designated critical habitat, the                    10a, 10b, and 11a are conserved and                   Southern Subregion HCP plan area is


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                                               not conserved and managed, and there                    Southern Subregion HCP, which                         HCP partnerships and fostering new
                                               are educational benefits of including                   incorporates substantial protections and              ones.
                                               these areas because designation may act                 management for the arroyo toad, its
                                                                                                                                                             Weighing Benefits of Exclusion Against
                                               as a tool for the public regarding the                  habitat, and the features essential to the
                                                                                                                                                             Benefits of Inclusion—Orange County
                                               conservation of arroyo toad and the                     conservation of this species.                         Southern Subregion HCP
                                               physical and biological features                        Additionally, many landowners
                                               essential to the conservation of the                    perceive critical habitat as an unfair and              We reviewed and evaluated the
                                               species.                                                unnecessary regulatory burden given the               benefits of inclusion and benefits of
                                                 The designation of arroyo toad critical               expense and time involved in                          exclusion for all lands owned by or
                                               habitat may also strengthen or reinforce                developing and implementing complex                   under the jurisdiction of Orange County
                                               some of the provisions in other State                   regional and jurisdiction-wide HCPs,                  Southern Subregion HCP permittees as
                                               and Federal laws, such as CEQA or                       such as the Orange County Southern                    critical habitat for the arroyo toad. The
                                               NEPA. These laws analyze the potential                  Subregion HCP (as discussed further in                benefits of including lands already
                                               for projects to significantly affect the                Comment 29 below in the Summary of                    conserved and managed in the critical
                                               environment. In Orange County, the                      Comments and Recommendations                          habitat designation are small.
                                               additional protections associated with                  section of this rule). Exclusion of                   Approximately 1,608 ac (651 ha) of land
                                               critical habitat may be beneficial in                   Orange County Southern Subregion HCP                  in Subunit 10a within Caspers
                                               areas not currently conserved. Critical                 lands could help preserve the                         Wilderness Park, approximately 509 ac
                                               habitat may signal the presence of                      partnership we developed with the                     (206 ha) of land in Subunit 10b within
                                               sensitive habitat that could otherwise be               County of Orange and other permittees                 O’Neill Regional Park, approximately 23
                                               missed in the review process for these                  in the development of the HCP, and                    ac (9 ha) of land in Subunit 10a within
                                               other environmental laws.                               foster future partnerships and                        Planning Area 1 Open Space, and
                                                 In summary, we believe that                           development of future HCPs, and                       approximately 39 ac (16 ha) of land in
                                               designating critical habitat would                      encourage the establishment of future                 Subunit 11a within Donna O’Neill Land
                                               provide minimal regulatory benefits                     conservation and management of habitat                Conservancy are already managed and
                                               under section 7(a)(2) of the Act in areas               for the arroyo toad and other sensitive               conserved, and provide a benefit to the
                                               meeting the definition of critical habitat              species.                                              arroyo toad. There is also no
                                               that are conserved and managed, nor                                                                           educational or ancillary benefit of
                                                                                                         The Orange County Southern                          designating critical habitat in these
                                               will any additional educational benefits
                                                                                                       Subregion HCP provides substantial                    conserved areas; educational
                                               be realized under these circumstances.
                                                                                                       protection and management for the                     information regarding the importance of
                                               In areas that are not currently conserved
                                                                                                       arroyo toad and the physical and                      these areas was identified during the
                                               and managed, we believe there are
                                               regulatory and educational benefits of                  biological features essential to the                  development and implementation of the
                                               critical habitat designation.                           conservation of the species, and                      Orange County Southern Subregion
                                                                                                       addresses conservation issues from a                  HCP, and potential ancillary benefits are
                                               Benefits of Exclusion—Orange County                     coordinated, integrated perspective                   negligible. Similarly, the regulatory
                                               Southern Subregion HCP                                  rather than a piecemeal, project-by-                  benefit provided by a critical habitat
                                                  We believe conservation benefits                     project approach (as would occur under                designation is small because it is
                                               would be realized by forgoing                           sections 7 of the Act or smaller HCPs),               partially redundant with the existing
                                               designation of critical habitat for the                 thus resulting in coordinated landscape-              protection of these areas under the
                                               arroyo toad on lands covered by the                     scale conservation that can contribute to             Orange County Southern Subregion
                                               Orange County Southern Subregion HCP                    genetic diversity by preserving covered               HCP. Therefore, we do not believe
                                               including: (1) Continuance and                          species populations, habitat, and                     critical habitat designation for the
                                               strengthening of our effective working                  interconnected linkage areas that                     arroyo toad within these areas will
                                               relationships with all Orange County                    support recovery of the arroyo toad and               provide significant regulatory,
                                               Southern Subregion HCP stakeholders                     other listed species. It is important that            educational, or ancillary benefits for
                                               to promote conservation of the arroyo                   we encourage participation in such                    these areas.
                                               toad and its habitat; (2) allowance for                 plans and encourage voluntary coverage                  In contrast, including lands within
                                               continued meaningful collaboration and                  of listed plant species in such plans.                the Orange County Southern Subregion
                                               cooperation in working toward species                   Additionally, many landowners                         HCP plan area in the final revised
                                               recovery, including conservation                        perceive critical habitat as an unfair and            critical habitat designation for arroyo
                                               benefits that might not otherwise occur;                unnecessary regulatory burden given the               toad that are not conserved and
                                               (3) encouragement of local jurisdictions                expense and time involved in                          managed will provide additional
                                               to fully participate in the Orange County               developing and implementing complex                   protection under section 7(a) of the Act
                                               Southern Subregion HCP; and (4)                         regional and jurisdiction-wide HCPs,                  when there is a Federal nexus, and
                                               encouragement of additional HCP and                     such as the Orange County Southern                    designation may act as an educational
                                               other conservation plan development in                  Subregion HCP. Exclusion of Orange                    tool for the public regarding the
                                               the future on other lands for this and                  County Southern Subregion HCP lands                   conservation of arroyo toad and the
                                               other federally listed and sensitive                    would help preserve the partnerships                  physical and biological features
                                               species. In the case of arroyo toad in                  we developed with the County of                       essential to the conservation of the
                                               Orange County, the partnership and                      Orange and other stakeholders in the                  species. Therefore designation of these
                                               commitment by the permittees of the                     development of the HCP, and foster                    areas will provide an educational
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                                               Orange County Southern Subregion HCP                    future partnerships and development of                benefit by focusing attention on the
                                               resulted in lands being conserved and                   future HCPs.                                          specific lands within Orange County
                                               managed for the long term that will                       In summary, we believe excluding                    Southern Subregion HCP plan area that
                                               contribute to the recovery of the species.              land covered by the Orange County                     are essential to the species’ recovery so
                                                  We developed close partnerships with                 Southern Subregion HCP from critical                  that conservation efforts are directed
                                               all participating entities through the                  habitat could provide the significant                 toward those areas. We also anticipate a
                                               development of the Orange County                        benefit of maintaining existing regional              potential regulatory benefit from


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                                                                Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                        7289

                                               designation for actions requiring a                     concluded that the benefits of exclusion              and endangered species populations
                                               Federal nexus in connection with                        outweigh the educational benefit along                depend. We take into consideration our
                                               activities on these lands and some                      with the potential regulatory and                     partnerships and existing conservation
                                               ancillary benefit from other laws such as               ancillary benefits to the conservation of             actions that tribes have implemented or
                                               CEQA and NEPA from designating these                    the species in these areas of Subunits                are currently implementing when
                                               areas as critical habitat.                              10a, 10b, and 11a. Therefore, the                     conducting our analysis under section
                                                  The lands in Subunit 10a within                      Secretary is declining to exercise his                4(b)(2) of the Act in the final revised
                                               Caspers Wilderness Park, in Subunit                     discretion to exclude 2,736 ac (1,107 ha)             critical habitat designation. We also take
                                               10b within O’Neill Regional Park, in                    of land within the Orange County                      into consideration conservation actions
                                               Subunit 10a within Planning Area 1                      Southern Subregion HCP plan area in                   that are planned (such as a
                                               Open Space, and in Subunit 11a within                   Subunits 10a and 11a in this final                    Memorandum of Understanding
                                               Donna O’Neill Land Conservancy are                      revised critical habitat designation.                 addressing arroyo toad conservation that
                                               currently being managed under                                                                                 is under development between the
                                               management plans developed in part                      Exclusion Will Not Result in Extinction
                                                                                                       of the Species—Subunits 10a, 10b, and                 Service, Bureau of Indian Affairs (BIA),
                                               because the areas are within a                                                                                and affected tribes (as discussed in
                                               participating HCP jurisdiction. The                     11a, Orange County Southern Subregion
                                                                                                       HCP                                                   detail below)) as part of our ongoing
                                               exclusion of conserved areas of                                                                               commitment to the government-to-
                                               Subunits 10a, 10b, and 11a will benefit                   We determined that the exclusion of                 government relationship with tribes.
                                               the partnership that we have with the                   approximately 2,179 ac (882 ha) of land               Section 4(b)(2) of the Act allows the
                                               County of Orange and other permittees                   in Subunits 10a, 10b, and 11a within the              Secretary to exclude areas from critical
                                               under the Orange County Southern                        Orange County Southern Subregion HCP                  habitat based on economic impacts,
                                               Subregion HCP, and encourage the                        planning area from the final revised                  impacts to National security, or other
                                               conservation of lands associated with                   critical habitat designation for the                  relevant impacts if the Secretary
                                               the development and implementation of                   arroyo toad will not result in extinction             determines that the benefits of such
                                               future HCPs.                                            of the species. These areas are                       exclusion outweigh the benefits of
                                                  In summary, we find that excluding                   permanently conserved and managed to                  designating the area as critical habitat.
                                               from critical habitat areas that are                    provide a benefit to arroyo toad and its              However, an exclusion cannot occur if
                                               receiving long-term conservation and                    habitat, thus providing assurances that               it will result in the extinction of the
                                               management for the purpose of                           the species will not go extinct as a result           species concerned.
                                               protecting the arroyo toad (Subunits                    of exclusion from critical habitat.
                                               10a, 10b, and 11a) will preserve our                    Therefore, based on the above                            We determined approximately 4,046
                                               partnership with the permittees in the                  discussion, the Secretary is exercising               ac (1,636 ha) of lands owned by or
                                               Orange County Southern Subregion HCP                    his discretion to exclude approximately               under the jurisdiction of six tribes
                                               and encourage the conservation of lands                 2,179 ac (882 ha) of land in Subunits                 contain the physical and biological
                                               associated with development and                         10a, 10b, and 11a from this final revised             features essential to the conservation of
                                               implementation of future HCPs. These                    critical habitat designation.                         arroyo toad, and therefore meet the
                                               partnership benefits are significant and                                                                      definition of critical habitat under the
                                                                                                       Exclusions Under Section 4(b)(2) of the               Act. These tribal lands are found within
                                               outweigh the small potential regulatory,
                                                                                                       Act—Tribal Lands                                      Units 14, 16, 17, and 18 and are owned
                                               educational, and ancillary benefits of
                                               including these portions of Subunits                      In accordance with the Secretarial                  by or under the jurisdiction of the
                                               10a, 10b, and 11a in critical habitat for               Order 3206, ‘‘American Indian Tribal                  following tribes: the Rincon Band of
                                               the arroyo toad. We find that including                 Rights, Federal-Tribal Trust                                 ˜
                                                                                                                                                             Luiseno Mission Indians; the Pala Band
                                               lands as critical habitat that are not yet              Responsibilities, and the Endangered                            ˜
                                                                                                                                                             of Luiseno Mission Indians; the Sycuan
                                               receiving long-term conservation and                    Species Act’’ (June 5, 1997); the                     Band of the Kumeyaay Nation; the Mesa
                                               management within Subunits 10a, 10b,                    President’s memorandum of April 29,                   Grande Band of Diegueno Mission
                                               and 11a will provide additional                         1994, ‘‘Government-to-Government                      Indians; and the Barona Group of
                                               regulatory protection under section 7(a)                Relations with Native American Tribal                 Capitan Grande Band of Mission Indians
                                               of the Act when there is a Federal                      Governments’’ (59 FR 22951); Executive                and the Viejas (Baron Long) Group of
                                               nexus, and will provide an educational                  Order 13175; and the relevant provision               Capitan Grande Band of Mission
                                               benefit by focusing conservation efforts                of the Departmental Manual of the                     Indians, which jointly manage the
                                               by the Orange County Southern                           Department of the Interior (512 DM 2),                Capitan Grande Band of Diegueno
                                               Subregion HCP permittees on                             we believe that fish, wildlife, and other             Mission Indians Reservation. In making
                                               conservation and management of these                    natural resources on tribal lands are                 our final decision with regard to these
                                               specific essential habitat areas for the                better managed under tribal authorities,              tribal lands, we considered several
                                               arroyo toad and educating the public                    policies, and programs than through                   factors, including Secretarial Order
                                               about importance of these areas for the                 Federal regulation wherever possible                  3206, Executive Order 13175, the
                                               conservation of this species. Designation               and practicable. Based on this                        President’s memorandum on
                                               may also result in some ancillary                       philosophy, we believe that, in most                  ‘‘Government-to-Government Relations
                                               benefits under other laws. Therefore,                   cases, designation of tribal lands as                 with Native American Tribal
                                               designating these areas as critical                     critical habitat provides very little                 Governments’’ (59 FR 22951; April 29,
                                               habitat for the arroyo toad will provide                additional benefit to the arroyo toad.                1994), conservation measures in place
                                               educational as well as some regulatory                  Conversely, such designation is often                 on these lands that may benefit arroyo
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                                               and ancillary benefits to the species.                  viewed by tribes as an unwarranted and                toad, economic impacts to the tribes,
                                               While we acknowledge that excluding                     unwanted intrusion into tribal self-                  our relationship with the tribes, and
                                               these areas under section 4(b)(2) of the                governance, thus compromising the                     impacts to current and future
                                               Act would provide a benefit to the                      government-to-government relationship                 partnerships with the affected tribes and
                                               partnership that we have with the                       essential to achieving our mutual goals               other tribes we coordinate with on
                                               permittees under the Orange County                      of managing for healthy ecosystems                    endangered and threatened species
                                               Southern Subregion HCP, we have not                     upon which the viability of threatened                issues. Under section 4(b)(2) of the Act,


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                                               7290             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               the Secretary is exercising his discretion              Master Plan in 2005 that is currently                 health and the environment could
                                               to exclude approximately 3,000 ac                       being implemented to guide                            occur. Additionally, the Sycuan Tribal
                                               (1,214 ha) of land comprised of all                     management and land use on the                        Environmental Plan promotes
                                               reservation lands and lands we                          reservation. Additionally, the tribe has              environmental protection through
                                               anticipate to be reservation lands in the               developed a management plan to                        responsible management practices that
                                               near future from this final revised                     address arroyo toad resource                          will benefit conservation of endangered
                                               critical habitat designation. The                       management and conservation, which                    and threatened species and their habitat,
                                               Secretary is declining to exercise his                  outlines the following conservation                   including arroyo toad. Conservation
                                               discretion to exclude approximately                     goals to benefit the species: (1)                     measures are organized into the
                                               1,046 ac (422 ha) of tribal fee-owned                   Maintenance of designated open space                  following categories outlined in more
                                               land that is off-reservation (not under                 and waterways for arroyo toad along                   detail in the ‘‘Sycuan Conservation
                                               the jurisdiction of tribal governments) in              Pala Creek and the San Luis Rey River;                Strategy and Conservation Measures
                                               Units 14 and 18 in this final revised                   (2) encouragement of allottees (owners                Plan’’ (Conservation Plan) portion of the
                                               critical habitat designation. As                        of individual allotments within                       Sycuan Tribal Environmental Plan: (1)
                                               described in our analysis below, this                   reservation lands) to locate new                      Conservation area site selection, design,
                                               conclusion was reached after                            construction away from inland areas; (3)              and management; (2) land cover type
                                               considering the relevant impacts of                     replacement of the Lilac Extension                    conservation measures; and (3) species-
                                               specifying these areas as critical habitat.             vehicle crossing of the San Luis Rey                  specific conservation measures (which
                                                                              ˜
                                                 The Rincon Band of Luiseno Mission                    River with a bridge; (4) reduction of off-            protect and restore populations and
                                               Indians Reservation encompasses                         highway vehicle activity by establishing              habitat of each covered species) (Sycuan
                                               approximately 4,026 ac (1,625 ha) in                    a designated area for these activities                2003, p. 5). The overall Conservation
                                               northern San Diego County, which                        outside arroyo toad habitat; (5)                      Plan includes the following types of
                                               includes approximately 1,071 ac (433                    purchasing adjacent property known to                 conservation measures for arroyo toad
                                               ha) that meet the definition of arroyo                  be occupied by arroyo toads and                       and other covered species: (1) Protection
                                               toad critical habitat in Unit 14. The                   conserving occupied areas; (6)                        of existing habitat for compliance and
                                                                       ˜
                                               Rincon Band of Luiseno Mission                          discouraging development of six                       species recovery; (2) enhancement of
                                               Indians developed an arroyo toad                        allotments within the San Luis Rey                    existing habitat; (3) restoration to create
                                               management plan in 2005 that provides                   River; and (7) removal of nonnative                   new habitat; (4) management of habitat
                                               guidelines for the protection and                       species within arroyo toad habitat                    to maintain and preserve ecological
                                               management of arroyo toad habitat                       corridors.                                            functions; (5) avoidance and
                                               within an approximately 97 ac (39 ha)                                                                         minimization of direct impacts on
                                               of the Habitat Management Plan area, all                   The Sycuan Band of the Kumeyaay
                                                                                                                                                             individuals and habitat of covered
                                               of which meet the definition of critical                Nation Reservation encompasses
                                                                                                                                                             species; (6) population enhancement
                                               habitat. Specific tasks that will be                    approximately 806 ac (325 ha) in
                                                                                                                                                             measures that directly or indirectly
                                               implemented include: (1) Removal and                    southern San Diego County, which
                                                                                                                                                             increase abundance of covered species;
                                               monitoring of nonnative species within                  includes approximately 22 ac (9 ha) that              and (7) research necessary to improve
                                               the plan area that pose an arroyo toad                  meet the definition of critical habitat in            conservation measure effectiveness
                                               threat; (2) monthly removal and                         Unit 18. Additionally, approximately                  (Sycuan 2003, pp. 5–6).
                                               monitoring of trash and debris within                   130 ac (53 ha) of lands within Unit 18                   The Mesa Grande Reservation, which
                                               the plan area; (3) maintenance and                      are anticipated to be transferred to the              is owned and managed by the Mesa
                                               monitoring of oil and grease traps at the               reservation in the near future. The                   Grande Band of Diegueno Mission
                                               edge of facility parking lots; (4)                      Sycuan Band of the Kumeyaay Nation                    Indians, is situated in the hills above
                                               assessment and monthly monitoring of                    has two land management plans in                      Sutherland Reservoir near the mountain
                                               vehicle, livestock, and other incursions                place relevant to their reservation that              community of Santa Ysabel, which is
                                               (such as trespassing) into the plan area;               provide direct and indirect arroyo toad               approximately 35 miles northeast of San
                                               (5) reporting of unauthorized activities                benefits on the reservation: an Interim               Diego, San Diego County. The
                                               within the plan area to the Service; (6)                Land Use Master Plan that was adopted                 reservation encompasses approximately
                                               development of an arroyo toad                           by the Sycuan General Council on                      1,818 ac (734 ha) of land, which
                                               education program; and (7) placement of                 January 10, 2002 (BRG 2002), and the                  includes approximately 23 ac (9 ha) that
                                               signs at regular intervals along the plan               Sycuan Tribal Environmental Plan that                 meet the definition of critical habitat in
                                               area boundary.                                          was approved by the Tribal Council in                 Unit 16. Although there is no arroyo
                                                                           ˜
                                                 The Pala Band of Luiseno Mission                      June 2003 (Sycuan 2003). The Land Use                 toad management plan for the Mesa
                                               Indians Reservation encompasses                         Master Plan provides recommended                      Grande Reservation, the Service, BIA,
                                               approximately 12,429 ac (5,018 ha) in                   land use planning for the reservation                 and tribe are currently working together
                                               northern San Diego County, which                        and additional surrounding properties                 to develop a conservation program for
                                               includes approximately 1,662 ac (673                    that are to be brought into Trust, and is             arroyo toad and its habitat.
                                               ha) that meet the definition of critical                based on preservation of sensitive                       The Capitan Grande Reservation lands
                                               habitat in Unit 14. The reservation is                  environmental and tribal resources                    fall within Capitan Grande Canyon
                                               located in the Middle San Luis Rey                      (BRG 2002, p. 1). The Sycuan Tribal                   where the San Diego River once ran,
                                               River basin approximately 6 miles (9.7                  Environmental Plan includes policies,                 which is approximately 35 miles (56
                                               km) east of Interstate 15 on California                 procedures, and guidance that are in                  km) east of San Diego, San Diego
                                               Highway 76. The town of Pala is located                 compliance with the Tribal                            County. The Reservation encompasses
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                                               along California Highway 76 in                          Environmental Policy Act (Sycuan 2003,                approximately 15,619 ac (6,306 ha) of
                                               approximately the center of the                         p. 1). The Sycuan Tribal Environmental                land, which includes approximately 92
                                               reservation. The reservation was                        Plan outlines procedures for                          ac (37 ha) that meet the definition of
                                               established for the Cupeno and Luiseno  ˜               environmental planning, project                       critical habitat in Unit 17. An 1875
                                               Indians, who considered themselves to                   implementation, and operations that                   Presidential Executive Order resulted in
                                               be one ‘‘people’’—Pala. The Pala Band of                minimize adverse considerations where                 the formation of a number of small
                                                      ˜
                                               Luiseno Mission Indians developed a                     potential negative impacts to human                   reservations, including the Capitan


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                                               Grande Reservation. From this                           analysis investigates the action’s impact             protecting species while also respecting
                                               reservation two tribes were formed: the                 to survival and recovery of the species,              tribal status, our Regional Director and
                                               Barona Group of Capitan Grande Band                     while the adverse modification analysis               staff of the Pacific Southwest Region
                                               of Mission Indians of the Barona                        investigates the action’s effects to the              met with tribes at a tribal listening
                                               Reservation, and the Viejas (Baron Long)                designated habitat’s contribution to                  session held on November 20, 2009, at
                                               Group of Capitan Grande Band of                         conservation. This will, in many                      the University of California, Riverside
                                               Mission Indians of the Viejas                           instances, lead to different results and              campus at Palm Desert. Carlsbad Fish
                                               Reservation. The tribes jointly manage                  different regulatory requirements. Thus,              and Wildlife Office (CFWO) staff is
                                               the Capitan Grande Reservation.                         critical habitat designations may                     conducting ongoing coordination with
                                               Although currently there is no arroyo                   provide greater benefits to the recovery              all the affected tribes. CFWO staff
                                               toad management plan for the Capitan                    of a species than would listing alone.                coordination includes meetings with
                                               Grande Reservation, the Service, BIA,                     Any protections provided by critical                representatives of the Barona Group of
                                               and both tribes are currently                           habitat that are redundant with                       Capitan Grande Band of Mission Indians
                                               coordinating to discuss arroyo toad                     protections already in place reduce the               and the Viejas (Baron Long) Group of
                                               management and its habitat on the                       benefits of inclusion in critical habitat.            Capitan Grande Band of Mission Indians
                                               reservation and will work together to                   The consultation provisions under                     on September 15, 2009, and
                                               promote conservation of arroyo toad and                 section 7(a) of the Act constitute the                representatives of the Pala Band of
                                               its habitat.                                            regulatory benefits of designating lands                     ˜
                                                                                                                                                             Luiseno Mission Indians on August 11,
                                                  Lands which meet the definition of                   as critical habitat. As discussed above,              2009 to discuss development of the
                                               critical habitat within the Rincon Band                 Federal agencies must consult with us                 proposed critical habitat designation.
                                                         ˜
                                               of Luiseno Mission Indians Reservation,                 on actions that may affect critical                   We believe our ongoing coordination
                                                                        ˜
                                               the Pala Band of Luiseno Mission                        habitat and must avoid destroying or                  with the tribes should provide sufficient
                                               Indians Reservation, the Mesa Grande                    adversely modifying critical habitat.                 future education, facilitate development
                                               Reservation, and the Capitan Grande                     Critical habitat may provide a regulatory             of management plans (for reservations
                                               Reservation include a streambed, or are                 benefit for arroyo toad when there is a               that do not currently have management
                                               on both sides of a streambed, and                       Federal nexus present for a project that              plans), and promote arroyo toad
                                               encompass arroyo toad breeding habitat.                 might adversely modify critical habitat.              conservation on tribal reservation lands.
                                               Activities on lands that meet the                       On tribal reservations there is potential                The designation of arroyo toad critical
                                               definition of critical habitat within these             for a Federal nexus through the BIA for               habitat may also strengthen or reinforce
                                               four tribal reservations could affect                   projects that could adversely modify                  some of the provisions in other State
                                               species breeding and also potentially                   critical habitat. Therefore, we anticipate            laws such as CEQA (on tribal fee-owned
                                               affect downstream hydrology and                         some projects on land that meets the                  lands) and Federal laws, such as NEPA
                                               habitat. Therefore it is important we                   definition of critical habitat within                 (on all tribal lands). These laws analyze
                                               build and maintain strong partnerships                  Units 14, 16, 17, and 18 will require                 the potential for projects to significantly
                                               with tribes and work cooperatively to                   consultation with the Service.                        affect the environment. The additional
                                               accomplish species recovery objectives.                   Another possible benefit of including               protections associated with critical
                                                                                                       lands in critical habitat is public                   habitat may be beneficial in areas not
                                               Benefits of Inclusion—Tribal Lands                      education regarding the potential                     currently conserved on tribal lands.
                                                  The principle benefit of including an                conservation value of an area that may                Critical habitat may signal the presence
                                               area in a critical habitat designation is               help focus conservation efforts on areas              of sensitive habitat that could otherwise
                                               the requirement of Federal agencies to                  of high conservation value for certain                be missed in the review process for
                                               ensure actions they fund, authorize, or                 species. Any information about the                    these other environmental laws.
                                               carry out are not likely to result in the               arroyo toad and its habitat that reaches                 We believe that fish, wildlife, and
                                               destruction or adverse modification of                  a wide audience, including parties                    other natural resources on tribal lands
                                               any designated critical habitat, the                    engaged in conservation activities, is                are better managed under tribal
                                               regulatory standard of section 7(a)(2) of               valuable. The inclusion of tribal fee-                authorities, policies, and programs than
                                               the Act under which consultation is                     owned lands (lands that are controlled                through Federal regulation wherever
                                               completed. Federal agencies must                        by local governments) in the arroyo toad              possible and practicable. Three
                                               consult with the Service on actions that                proposed and final revised critical                   reservations that include land that
                                               may affect critical habitat and must                    habitat designation is beneficial to the              meets the definition of critical habitat
                                               avoid destroying or adversely modifying                 species because the proposed and final                have active management plans that
                                               critical habitat. Federal agencies must                 rules identify those lands that are                   contribute to arroyo toad conservation,
                                               also consult with us on actions that may                essential (and may require management)                that provide conservation benefits partly
                                               affect a listed species and refrain from                to the conservation of the arroyo toad.               redundant with that provided by critical
                                               undertaking actions that are likely to                  The process of proposing and finalizing               habitat under section 7(a) of the Act. We
                                               jeopardize the continued existence of                   revised critical habitat provided the                 are committed to ongoing meaningful
                                               such species. The analysis of effects to                opportunity for peer review and public                collaboration and cooperation with all
                                               critical habitat is a separate and                      comment on habitat we determined                      the affected tribes. For land that meets
                                               different analysis from that of the effects             meets the definition of critical habitat.             the definition of critical habitat on
                                               to the species. Therefore, the difference               This process is valuable to land owners               reservations where tribes do not
                                               in outcomes of these two analyses                       and managers in prioritizing                          currently have management plans, we
                                               represents the regulatory benefit of                    conservation and management of                        will continue to work with BIA and
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                                               critical habitat. For some species                      identified areas. Because of past efforts             affected tribes to develop species and
                                               (including arroyo toad), and in some                    working with the tribes, we believe                   habitat management plans to promote
                                               locations, the outcome of these analyses                educational benefits are small on lands               arroyo toad conservation.
                                               will be similar, because effects to habitat             controlled by tribal governments (tribal                 In summary, we believe there would
                                               will often also result in effects to the                reservation lands). In an effort to                   likely be some regulatory benefits of
                                               species. However, the regulatory                        demonstrate our commitment to work                    critical habitat designation on all tribal
                                               standard is different, as the jeopardy                  closely with the tribes as a partner in               lands and educational benefits on tribal


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                                               7292             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               fee-owned lands. On tribal reservation                  lands from critical habitat provides the              will preserve our partnerships with the
                                               lands, we believe our ongoing                           significant benefit of maintaining and                tribes and foster future development of
                                               coordination with tribes should provide                 strengthening existing conservation                   habitat management plans. These
                                               sufficient future education and facilitate              partnerships and fostering new ones.                  partnership benefits are significant and
                                               development of management plans for                                                                           outweigh the potential regulatory and
                                                                                                       Weighing Benefits of Exclusion Against
                                               these areas.                                                                                                  educational benefits of including these
                                                                                                       Benefits of Inclusion—Tribal Lands
                                                                                                                                                             portions of Units 14, 16, 17, and 18 in
                                               Benefits of Exclusion—Tribal Lands                         We reviewed and evaluated the                      final revised critical habitat for the
                                                  We believe significant benefits would                benefits of inclusion and the benefits of             arroyo toad. We find that including
                                               be realized by forgoing designation of                  exclusion of tribal lands as critical                 tribal fee-owned lands as critical habitat
                                               critical habitat on reservation lands                   habitat for arroyo toad. Including tribal             within Units 14 and 18 will provide
                                               managed by the Rincon Band of Luiseno    ˜              lands in the critical habitat designation             additional regulatory protection under
                                               Mission Indians, the Pala Band of                       for arroyo toad will provide additional               section 7(a) of the Act when there is a
                                                      ˜
                                               Luiseno Mission Indians, the Sycuan                     protection under section 7(a) of the Act              Federal nexus, and will provide an
                                               Band of the Kumeyaay Nation, the Mesa                   when there is a Federal nexus, and                    educational benefit by focusing
                                               Grande Band of Diegueno Mission                         designation may act as an educational                 conservation efforts by the County of
                                               Indians, the Barona Group of Capitan                    tool for the public regarding the                     San Diego and other local jurisdictions
                                               Grande Band of Mission Indians, and                     conservation of arroyo toad and the                   on conservation and management of
                                               the Viejas (Baron Long) Group of                        physical and biological features                      these specific essential habitat areas for
                                               Capitan Grande Band of Mission                          essential to the conservation of the                  the arroyo toad and educating the public
                                               Indians. These benefits include:                        species. We also anticipate a potential               about importance of these areas for the
                                                  (1) Continuance and strengthening of                 regulatory benefit from designation for               conservation of this species. Designation
                                               our effective working relationships with                actions requiring a Federal nexus in                  may also result in some ancillary
                                               all tribes to promote conservation of                   connection with activities on these                   benefits under other laws. Therefore,
                                               arroyo toad and its habitat;                            lands and some ancillary benefit from                 designating these areas as critical
                                                  (2) Allowance for continued                          other laws such as CEQA and NEPA                      habitat for the arroyo toad will provide
                                               meaningful collaboration and                            from designating these areas as critical              educational as well as some regulatory
                                               cooperation in working toward                           habitat. However, we believe past and                 and ancillary benefits to the species.
                                               recovering this species, including                      future coordination with the tribes will              While we acknowledge that excluding
                                               conservation benefits that might not                    provide sufficient education regarding                these areas under section 4(b)(2) of the
                                               otherwise occur; and                                    arroyo toad habitat conservation needs                Act would provide a benefit to the
                                                  (3) Encouragement of other tribes to                 on tribal reservation lands and therefore             partnership that we have with tribes, we
                                               complete management plans in the                        educational benefits for these areas are              have not concluded that the benefits of
                                               future on other reservations for this and               small.                                                exclusion outweigh the educational
                                               other federally listed and sensitive                       The benefits of excluding tribal                   benefit along with the potential
                                               species and engage in meaningful                        reservation lands from critical habitat               regulatory and ancillary benefits to the
                                               collaboration and cooperation.                          are significant. Exclusion of these lands             conservation of the species and its
                                                  Critical habitat designation is often                from critical habitat will help preserve              essential habitat in these areas of Units
                                               viewed by tribes as an unwarranted and                  the partnerships we have developed and                14 and 18. Therefore, the Secretary is
                                               unwanted intrusion into tribal self-                    reinforce those we are building with the              declining to exercise his discretion to
                                               governance, thus compromising the                       tribes, and foster future partnerships                exclude 1,046 ac (422 ha) of tribal fee-
                                               government-to-government relationship                   and development of management plans.                  owned land that is off-reservation (not
                                               essential to achieving our mutual goals                 The tribes and BIA emphasized through                 under the jurisdiction of tribes) in Units
                                               of managing for healthy ecosystems                      comment letters provided in 2004 and                  14 and 18 in this final revised critical
                                               upon which the viability of threatened                  during the public comment period their                habitat designation.
                                               and endangered species populations                      belief that designation of critical habitat
                                               depend. For example, in comments                        on reservation land undermines tribal                 Exclusion Will Not Result in Extinction
                                               submitted during the public comment                     sovereign governmental authority and                  of the Species—Tribal Lands
                                               periods, the Rincon Band of Luiseno  ˜                  interferes with the cooperative                          We determined that the exclusion of
                                               Mission Indians, the Barona Group of                    government-to-government trust                        3,000 ac (1,214 ha) of tribal reservation
                                               Capitan Grande Band of Mission                          relationship between the tribes and the               land and future reservation land from
                                               Indians, and the Viejas (Baron Long)                    United States (BIA 2004a, pp. 1–2; BIA                the revised designation of arroyo toad
                                               Group of Capitan Grande Band of                         2004b, p. 2; Barona 2009, p. 2; Rincon                critical habitat will not result in
                                               Mission Indians indicated designation                   2009, p. 2; Viejas 2009, pp. 4–5). We are             extinction of the species. The jeopardy
                                               of critical habitat for arroyo toad would               committed to working with our tribal                  standard of section 7 of the Act and
                                               negatively impact tribal relations. All                 partners to further the conservation of               routine implementation of conservation
                                               affected tribes except the Mesa Grande                  arroyo toad and other endangered and                  measures through the section 7 process
                                               Band of Diegueno Mission Indians                        threatened species. Therefore, in                     due to arroyo toad and other federally
                                               submitted comments indicating they                      consideration of the relevant impact to               listed species occupancy provide
                                               were opposed to critical habitat                        our government-to-government                          assurances that this species will not go
                                               designation or believed their lands                     relationship with the tribes and our                  extinct as a result of exclusion from
                                               should be excluded. Exclusion of these                  current and future conservation                       critical habitat designation. Therefore,
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                                               lands from critical habitat will help                   partnerships, we determined the                       based on the above discussion the
                                               preserve the partnerships we have                       significant benefits of exclusion                     Secretary is exercising his discretion to
                                               developed, reinforce those relationships                outweigh the benefits of critical habitat             exclude approximately 3,000 ac (1,214
                                               we are building with tribes, and foster                 designation.                                          ha) of land in units 14, 16, 17, and 18
                                               future partnerships and development of                     In summary, we find that the                       managed by the Rincon Band of Luiseno   ˜
                                               future management plans. Therefore, we                  exclusion of tribal reservation lands                 Mission Indians, the Pala Band of
                                               believe excluding tribal reservation                    from this final revised critical habitat                    ˜
                                                                                                                                                             Luiseno Mission Indians, the Sycuan


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                                                                Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                         7293

                                               Band of the Kumeyaay Nation, the Mesa                   habitat at the Remote Training Site                   Benefits of Inclusion—Remote Training
                                               Grande Band of Diegueno Mission                         Warner Springs. We received a draft of                Site Warner Springs
                                               Indians, and the Barona Group of                        the U.S. Navy’s revised INRMP in                         The principle benefit of including an
                                               Capitan Grande Band of Mission Indians                  September 2009 (U.S. Navy 2009a).                     area in a critical habitat designation is
                                               and the Viejas (Baron Long) Group of                    Additionally, the U.S. Navy is currently              the requirement of Federal agencies to
                                               Capitan Grande Band of Mission Indians                  implementing measures to avoid or                     ensure actions they fund, authorize, or
                                               and managed in the near future by the                   minimize impacts to arroyo toad, as                   carry out are not likely to result in the
                                               Sycuan Band of the Kumeyaay Nation                      identified in a biological opinion we                 destruction or adverse modification of
                                               from this final revised critical habitat                issued on October 30, 2009, on the                    any designated critical habitat, the
                                               designation.                                            proposed expansion and realignment of                 regulatory standard of section 7 of the
                                               Exclusions Under Section 4(b)(2) of the                 training areas at Remote Training Site                Act under which consultation is
                                               Act—Impacts to National Security                        Warner Springs (USFWS 2009). These                    completed. Federal agencies must
                                                                                                       measures include, but are not limited to:             consult with the Service on actions that
                                                  Section 4(b)(2) of the Act allows the                (1) Avoid and minimize impacts to the
                                               Secretary to exclude areas from critical                                                                      may affect critical habitat and must
                                                                                                       onsite population of the arroyo toad                  avoid destroying or adversely modifying
                                               habitat for reasons of national security                within an Arroyo Toad Management
                                               if the Secretary determines the benefits                                                                      critical habitat. Federal agencies must
                                                                                                       Area; (2) permanently close two stream                also consult with us on actions that may
                                               of such an exclusion outweigh the                       crossings on the San Luis Rey River; (3)
                                               benefits of designating the area as                                                                           affect a listed species and refrain from
                                                                                                       educate personnel on how to avoid                     undertaking actions that are likely to
                                               critical habitat. However, an exclusion                 adverse impacts to the species; (4)
                                               cannot occur if it will result in the                                                                         jeopardize the continued existence of
                                                                                                       prioritize nonnative, invasive plant                  such species. The analysis of effects to
                                               extinction of the species concerned.                    species searches and spot treatment                   critical habitat is a separate and
                                               Remote Training Site Warner Springs                     control efforts in riparian zones and                 different analysis from that of the effects
                                                  The U.S. Navy conducts training                      areas of higher levels of training                    to the species. Therefore, the difference
                                               activities within the Remote Training                   activity; and (5) conduct surveys for                 in outcomes of these two analyses
                                               Site Warner Springs complex, which is                   arroyo toad at least every 3 years to                 represents the regulatory benefit of
                                               comprised of approximately 6,158 ac                     determine status and location.                        critical habitat. For some species
                                               (2,486 ha) of lands owned and leased                       In a letter received by the Service on             (including the arroyo toad), and in some
                                               from the Vista Irrigation District and the              December 24, 2009, the Navy                           locations, the outcome of these analyses
                                               Cleveland National Forest. Additionally,                determined that critical habitat                      will be similar, because effects to habitat
                                               the U.S. Navy is proposing to expand its                designation on the Remote Training Site               will often also result in effects to the
                                               training activities onto another 6,326 ac               Warner Springs would impact national                  species. However, the regulatory
                                               (2,554 ha) of lands owned by the Bureau                 security (U.S. Navy 2009b). The Remote                standard is different, as the jeopardy
                                               of Land Management, Cleveland                           Training Site Warner Springs is unique                analysis investigates the action’s impact
                                               National Forest, and the Vista Irrigation               in its use and purpose in that it serves              to survival and recovery of the species,
                                               District, expanding the total training                  as the principle venue for Survival,                  while the adverse modification analysis
                                               area to approximately 12,484 ac (5,040                  Evasion, Resistance, and Escape (SERE)                investigates the action’s effects to the
                                               ha).                                                    training on the West Coast. All                       designated habitat’s contribution to
                                                  Approximately 4,609 ac (1,865 ha) of                 Department of Defense SERE field                      conservation. This will, in many
                                               land in Unit 15 that meet the definition                training for U.S. Navy and U.S. Marine                instances, lead to different results and
                                               of critical habitat under the Act are in                Corps personnel from the West Coast                   different regulatory requirements. Thus,
                                               the existing and proposed Remote                        and Pacific region is conducted at this               critical habitat designations may
                                               Training Site Warner Springs. In making                 location. The Remote Training Site                    provide greater benefits to the recovery
                                               our final decision with regard to these                 Warner Springs also supports unique                   of a species than would listing alone.
                                               lands, we considered several factors                    training activities for Naval Special                    Any protections provided by critical
                                               including impacts to national security                  Warfare, 1st Marine Special Operations                habitat that are redundant with
                                               associated with a critical habitat                      Battalion, Naval Construction Force                   protections already in place reduce the
                                               designation as described by the U.S.                    Amphibious Construction Battalion One                 benefits of inclusion in critical habitat.
                                               Navy, existing consultations, and                       Seabees, 1st Marine Expeditionary Force               The consultation provisions under
                                               conservation measures in place at this                  Training and Experimentation Group/                   section 7(a) of the Act constitute the
                                               facility that benefit arroyo toad. Under                Tactical Exercise Group, and other non-               regulatory benefits of designating lands
                                               section 4(b)(2) of the Act, the Secretary               routine training. The U.S. Navy                       as critical habitat. As discussed above,
                                               is exercising his discretion to exclude                 expressed concern that designation of                 Federal agencies must consult with us
                                               4,609 ac (1,865 ha) of land meeting the                 these lands could cause mission-critical              on actions that may affect critical
                                               definition of critical habitat in Unit 15               activities to be delayed if they were                 habitat and must avoid destroying or
                                               within the existing and proposed                        required to conduct consultation due to               adversely modifying critical habitat.
                                               Remote Training Site Warner Springs                     a critical habitat designation. Mission-              Critical habitat may provide a regulatory
                                               from this final revised critical habitat                critical activities not previously                    benefit for the arroyo toad when there
                                               designation. As described in our                        analyzed that would likely be delayed                 is a Federal nexus present for a
                                               analysis below, we reached this                         by section 7 consultation for designated              Department of Defense project that
                                               conclusion after considering the                        critical habitat and that directly affect             might adversely modify critical habitat.
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                                               relevant impacts of specifying these                    national security include training                    Therefore, we anticipate some projects
                                               areas as critical habitat.                              activities and supporting facility                    on land that meets the definition of
                                                  The U.S. Navy is currently revising                  construction. Delays in construction                  critical habitat within Remote Training
                                               the 2002 Naval Base Coronado                            that lead to delays in training schedules             Site Warner Springs will require
                                               Integrated Natural Resources                            could disrupt the ability to acquire and              consultation with the Service.
                                               Management Plan (INRMP) to address                      perform unique warfare skills required                   Another possible benefit of including
                                               management of arroyo toad and its                       for personnel readiness.                              lands in critical habitat is public


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                                               7294             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               education regarding the potential                       Remote Training Site Warner Springs                   critical habitat designation. Therefore,
                                               conservation value of an area that may                  are significant. The U.S. Navy maintains              based on the above discussion, the
                                               help focus conservation efforts on areas                and defends our national security at the              Secretary is exercising his discretion to
                                               of high conservation value for certain                  Remote Training Site Warner Springs by                exclude approximately 4,609 ac (1865
                                               species. Any information about the                      conducting mission-critical training                  ha) of land in Unit 15 within the
                                               arroyo toad and its habitat that reaches                activities unique to this location on the             existing and proposed Remote Training
                                               a wide audience, including parties                      West Coast. Mission-critical activities               Site Warner Springs from this final
                                               engaged in conservation activities, is                  not previously analyzed that would                    revised critical habitat designation.
                                               valuable. The inclusion of lands in the                 likely be delayed by section 7
                                                                                                                                                             Camp Morena
                                               arroyo toad critical habitat designation                consultation for designated critical
                                               within Remote Training Site Warner                      habitat and that directly affect national                Camp Morena is a small parcel of
                                               Springs could be beneficial to the                      security include training activities and              approximately 71 ac (29 ha) used by the
                                               species because it identifies those lands               supporting facility construction. Delays              U.S. Navy under a year-to-year license
                                               that require management for the                         in construction and training schedules                with the City of San Diego and serves as
                                               conservation of the arroyo toad. The                    could disrupt the ability to acquire and              a support facility for the nearby Camp
                                               process of proposing and finalizing                     perform unique warfare skills required                Michael Monsoor (formerly called La
                                               revised critical habitat provided the                   for personnel readiness. Excluding the                Posta Mountain Warfare Training
                                               opportunity for peer review and public                  Remote Training Site Warner Springs                   Facility).
                                               comment on habitat we determined                        from critical habitat designation will                   We determined that approximately 31
                                               meets the definition of critical habitat.               effectively remove the impact that a                  ac (13 ha) of Camp Morena located in
                                               This process is valuable to land owners                 designation of critical habitat could                 Subunit 19a meet the definition of
                                               and managers in prioritizing                            have on the U.S. Navy’s ability to                    critical habitat under the Act. In making
                                               conservation and management of                          maintain and defend our national                      our final decision with regard to these
                                               identified areas. In general, we believe                security.                                             lands, we considered several factors
                                               the designation of critical habitat for the                                                                   including impacts to national security
                                                                                                       Benefits of Exclusion Outweigh Benefits               associated with a critical habitat
                                               arroyo toad will provide additional
                                                                                                       of Inclusion—Remote Training Site                     designation as described by the U.S.
                                               information to the public not already
                                                                                                       Warner Springs                                        Navy, existing consultations, and
                                               sufficiently emphasized through
                                               meetings, educational materials                           We reviewed and evaluated the                       conservation measures in place at this
                                               provided to the general public by the                   benefits of inclusion and benefits of                 facility that benefit the arroyo toad.
                                               County of San Diego, and                                exclusion for lands within the existing               Under section 4(b)(2) of the Act, the
                                               recommendations provided in our                         and proposed Remote Training Site                     Secretary is exercising his discretion to
                                               Recovery Plan (Service 1999). However,                  Warner Springs in Unit 15. We believe                 exclude 31 ac (13 ha) of land meeting
                                               the public education benefit is currently               the benefits of designating these lands               the definition of critical habitat within
                                               being realized through the INRMP.                       as arroyo toad critical habitat are                   Camp Morena in Subunit 19a from this
                                                  The designation of arroyo toad critical              relatively small, whereas the benefits of             final revised critical habitat designation.
                                               habitat may also strengthen or reinforce                excluding these lands from critical                   As described in our analysis below, we
                                               some of the provisions in other Federal                 habitat will result in the removal of                 reached this conclusion after
                                               laws, such as NEPA. These laws analyze                  impacts to national security as                       considering the relevant impacts of
                                               the potential for projects to significantly             determined by the U.S. Navy. Therefore,               specifying these areas as critical habitat.
                                               affect the environment. On Remote                       we have determined the benefits                          In a letter received by the Service on
                                               Training Site Warner Springs, the                       identified above of excluding                         December 24, 2009, the Navy
                                               additional protections associated with                  approximately 4,609 ac (1865 ha) of                   determined that critical habitat
                                               critical habitat may be beneficial in                   lands within the existing and proposed                designation on Camp Morena would
                                               areas not currently conserved. Critical                 Remote Training Site Warner Springs                   impact national security (U.S. Navy
                                               habitat may signal the presence of                      from the critical habitat designation                 2009b). Camp Morena and Camp
                                               sensitive habitat that could otherwise be               outweigh the benefits of including these              Michael Monsoor provide essential
                                               missed in the review process for these                  lands.                                                training for U.S. Special Operations
                                               other environmental laws.                                                                                     Command units preparing to deploy in
                                                                                                       Exclusion Will Not Result in Extinction               support of assigned missions and other
                                                  In light of continued U.S. Navy
                                                                                                       of the Species—Remote Training Site                   contingency operations in support of
                                               commitments to manage its lands in a
                                                                                                       Warner Springs                                        national security. Additionally, Camp
                                               manner that promotes conservation of
                                               the arroyo toad and the coordination                      We determined that the exclusion of                 Morena and Camp Michael Monsoor are
                                               and management efforts demonstrated                     4,609 ac (1865 ha) of land in Unit 15                 both critical to classified, highly
                                               by the Navy resulting from consultation                 within the existing and proposed                      specialized training of west-coast based
                                               and development of an INRMP, we                         Remote Training Site Warner Springs                   Sea Air and Land (SEAL) Special Boat
                                               believe designation of critical habitat on              from the final designation of critical                Teams. Camp Michael Monsoor is the
                                               Remote Training Site Warner Springs                     habitat for the arroyo toad will not                  sole live fire training site exclusively set
                                               would provide minimal additional                        result in extinction of the species. The              aside for Naval Special Warfare
                                               regulatory and conservation benefits to                 U.S. Navy’s current management of                     commands in the San Diego region.
                                               the species beyond those that will result               Remote Training Site Warner Springs                   Additionally, terrain and training
                                               from continued section 7 consultation.                  and proposed management under the                     realism is provided for personnel
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                                                                                                       draft INRMP provide some protection                   deployed to Iraq and Afghanistan. In
                                               Benefits of Exclusion—Remote Training                   and management of lands within Unit                   support of Camp Michael Monsoor, the
                                               Site Warner Springs                                     15, including land meeting the                        U.S. Navy requires significant base
                                                 The benefits of excluding                             definition of critical habitat. The                   operations and logistical support at
                                               approximately 4,609 ac (1865 ha) of                     jeopardy standard of section 7 of the Act             Camp Morena, including administration
                                               land meeting the definition of critical                 provides assurances the species will not              activities, classrooms, conference
                                               habitat on the existing and proposed                    go extinct as a result of exclusion from              rooms, mission planning capabilities,


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                                               and berthing space. The U.S. Navy is                    The consultation provisions under                     educational benefits of critical habitat
                                               concerned that designation of lands on                  section 7(a) of the Act constitute the                designation on Camp Morena.
                                               Camp Morena would cause mission-                        regulatory benefits of designating lands
                                                                                                                                                             Benefits of Exclusion—Camp Morena
                                               critical activities to be delayed if they               as critical habitat. As discussed above,
                                               were required to conduct consultation                   Federal agencies must consult with us                    The benefits of excluding
                                               due to a critical habitat designation.                  on actions that may affect critical                   approximately 31 ac (13 ha) of land
                                               Mission-critical activities not previously              habitat and must avoid destroying or                  meeting the definition of critical habitat
                                               analyzed that would likely be delayed                   adversely modifying critical habitat.                 on Camp Morena are significant. The
                                               by section 7 consultation for designated                Critical habitat may provide a regulatory             U.S. Navy maintains and defends our
                                               critical habitat and that directly affect               benefit for the arroyo toad when there                national security at Camp Morena by
                                               national security include training                      is a Federal nexus present for a                      conducting mission-critical training
                                               activities and supporting facility                      Department of Defense project that                    activities unique to this location on the
                                               construction. Future planned use of                     might adversely modify critical habitat.              West Coast. Mission-critical activities
                                               Camp Morena includes increased                          Therefore, we anticipate some projects                not previously analyzed that could
                                               training functions with more frequent                   on land that meets the definition of                  likely be delayed by section 7
                                               training and possible construction of                   critical habitat within Camp Morena                   consultation for designated critical
                                               new facilities; delays in construction                  will require consultation with the                    habitat and that directly affect national
                                               that lead to delays in training schedules               Service.                                              security include training activities and
                                               could disrupt the ability to acquire and                   Another possible benefit of including              supporting facility construction. Delays
                                               perform unique warfare skills required                  lands in critical habitat is public                   in construction and training schedules
                                               for personnel readiness.                                education regarding the potential                     could disrupt the ability to acquire and
                                                                                                                                                             perform unique warfare skills required
                                               Benefits of Inclusion—Camp Morena                       conservation value of an area that may
                                                                                                                                                             for personnel readiness. Excluding
                                                                                                       help focus conservation efforts on areas
                                                  The principle benefit of including an                                                                      Camp Morena from critical habitat
                                                                                                       of high conservation value for certain
                                               area in a critical habitat designation is                                                                     designation will effectively remove the
                                                                                                       species. Any information about the
                                               the requirement of Federal agencies to                                                                        impact that a designation of critical
                                                                                                       arroyo toad and its habitat that reaches
                                               ensure actions they fund, authorize, or                                                                       habitat for the arroyo toad could have
                                                                                                       a wide audience, including parties
                                               carry out are not likely to result in the                                                                     on the U.S. Navy’s ability to maintain
                                                                                                       engaged in conservation activities, is
                                               destruction or adverse modification of                                                                        and defend our national security.
                                                                                                       valuable. The inclusion of lands in the
                                               any designated critical habitat, the
                                                                                                       arroyo toad critical habitat designation              Benefits of Exclusion Outweigh Benefits
                                               regulatory standard of section 7 of the
                                                                                                       within Camp Morena could be                           of Inclusion—Camp Morena
                                               Act under which consultation is
                                               completed. Federal agencies must                        beneficial to the species because it                    We reviewed and evaluated the
                                               consult with the Service on actions that                identifies those lands that require                   benefits of inclusion and benefits of
                                               may affect critical habitat and must                    management for the conservation of the                exclusion for lands within Camp
                                               avoid destroying or adversely modifying                 arroyo toad. The process of proposing                 Morena in Subunit 19a. We believe the
                                               critical habitat. Federal agencies must                 and finalizing revised critical habitat               benefits of designating these lands as
                                               also consult with us on actions that may                provided the opportunity for peer                     arroyo toad critical habitat are relatively
                                               affect a listed species and refrain from                review and public comment on habitat                  small, whereas the benefits of excluding
                                               undertaking actions that are likely to                  we determined meets the definition of                 these lands from critical habitat will
                                               jeopardize the continued existence of                   critical habitat. This process is valuable            result in the removal of impacts to
                                               such species. The analysis of effects to                to land owners and managers in                        national security as determined by the
                                               critical habitat is a separate and                      prioritizing conservation and                         U.S. Navy. Therefore, we have
                                               different analysis from that of the effects             management of identified areas. In                    determined the benefits identified above
                                               to the species. Therefore, the difference               general, we believe the designation of                of excluding approximately 31 ac (13
                                               in outcomes of these two analyses                       critical habitat for the arroyo toad will             ha) of lands within Camp Morena from
                                               represents the regulatory benefit of                    provide additional information to the                 the critical habitat designation outweigh
                                               critical habitat. For some species                      public not already sufficiently                       the benefits of including these lands.
                                               (including the arroyo toad), and in some                emphasized through meetings,
                                                                                                       educational materials provided to the                 Exclusion Will Not Result in Extinction
                                               locations, the outcome of these analyses
                                                                                                       general public by the County of San                   of the Species—Camp Morena
                                               will be similar, because effects to habitat
                                               will often also result in effects to the                Diego, and recommendations provided                     We determined that the exclusion of
                                               species. However, the regulatory                        in our Recovery Plan (Service 1999).                  31 ac (13 ha) of land in Subunit 19a
                                               standard is different, as the jeopardy                     The designation of arroyo toad critical            within Camp Morena from the final
                                               analysis investigates the action’s impact               habitat may also strengthen or reinforce              designation of critical habitat for the
                                               to survival and recovery of the species,                some of the provisions in other Federal               arroyo toad will not result in extinction
                                               while the adverse modification analysis                 laws, such as NEPA. These laws analyze                of the species. The U.S. Navy’s
                                               investigates the action’s effects to the                the potential for projects to significantly           proposed management of Camp Morena
                                               designated habitat’s contribution to                    affect the environment. On Camp                       under the draft INRMP may provide
                                               conservation. This will, in many                        Morena, the additional protections                    some protection and management of
                                               instances, lead to different results and                associated with critical habitat may be               lands within Subunit 19a, including
                                               different regulatory requirements. Thus,                beneficial in areas not currently                     land meeting the definition of critical
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                                               critical habitat designations may                       conserved. Critical habitat may signal                habitat. The jeopardy standard of
                                               provide greater benefits to the recovery                the presence of sensitive habitat that                section 7 of the Act provides assurances
                                               of a species than would listing alone.                  could otherwise be missed in the review               the species will not go extinct as a result
                                                  Any protections provided by critical                 process for these other environmental                 of exclusion from critical habitat
                                               habitat that are redundant with                         laws.                                                 designation. Therefore, based on the
                                               protections already in place reduce the                    In summary, we believe there are                   above discussion, the Secretary is
                                               benefits of inclusion in critical habitat.              some regulatory benefits and                          exercising his discretion to exclude


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                                               7296             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               approximately 31 ac (13 ha) of land in                  those costs that may occur in the years               by formal and informal consultations
                                               Subunit 19a within Camp Morena from                     following the revised designation of                  and utilities and infrastructure projects.
                                               this final revised critical habitat                     critical habitat, with the timeframes for             Of the 22 proposed critical habitat units,
                                               designation.                                            this analysis varying by activity.                    five are expected to incur incremental
                                                                                                          The economic analysis focuses on the               economic costs greater than $50 million
                                               Economics                                               direct and indirect costs of the rule.                between 2010 and 2035. Critical habitat
                                                  Following the publication of the                     However, economic impacts to land use                 Unit 14, located in San Diego County,
                                               proposed revised critical habitat                       activities can exist in the absence of                has the largest incremental impacts
                                               designation, we conducted an economic                   critical habitat. These impacts may                   ($228 million) of the units considered
                                               analysis to estimate the potential                      result from, for example, local zoning                for designation.
                                               economic effect of the designation. The                 laws, State and natural resource laws,                   The FEA is available at http://
                                               draft economic analysis (DEA) was                       and enforceable management plans and                  www.regulations.gov or upon request
                                               made available for public review and                    best management practices applied by                  from the Ventura Fish and Wildlife
                                               comment from June 29, 2010 to July 29,                  other State and Federal agencies.                     Office (see ADDRESSES section).
                                               2010 (75 FR 37358). Substantive                         Economic impacts that result from these
                                               comments and information we received                    types of protections are not included in              Summary of Comments and
                                               on the DEA are summarized below in                      the analysis as they are considered to be             Recommendations
                                               the ‘‘Public Comment’’ section and are                  part of the regulatory and policy                        We requested written comments from
                                               incorporated into the final analysis, as                baseline.                                             the public on the 2009 proposed revised
                                               appropriate. Taking any relevant new                       The economic analysis examines                     rule to revise critical habitat for the
                                               information into consideration, the                     activities taking place both within and               arroyo toad (74 FR 52612; October 13,
                                               Service completed a final economic                      adjacent to the designation. It estimates
                                                                                                                                                             2009) during two comment periods. The
                                               analysis (FEA) in November 2010, of the                 impacts based on activities that are
                                                                                                                                                             first comment period opened with the
                                               designation that updates the DEA.                       ‘‘reasonably foreseeable’’ including, but
                                                  The primary purpose of the economic                                                                        publication of the proposed revised rule
                                                                                                       not limited to, activities that are
                                               analysis is to estimate the potential                                                                         in the Federal Register on October 13,
                                                                                                       currently authorized, permitted, or
                                               incremental economic impacts                                                                                  2009 (74 FR 52612), and closed
                                                                                                       funded, or for which proposed plans are
                                               associated with the revised designation                                                                       December 14, 2009. The second
                                                                                                       currently available to the public.
                                               of critical habitat for the arroyo toad.                                                                      comment period opened with the
                                                                                                       Accordingly, the analysis bases
                                               The information is intended to assist the                                                                     publication of the notice of availability
                                                                                                       estimates on activities that are likely to
                                               Secretary in making decisions about                                                                           of the DEA in the Federal Register on
                                                                                                       occur within a 25-year time frame, from
                                               whether the benefits of excluding                       when the proposed rule became                         June 29, 2010 (75 FR 37358) and closed
                                               particular areas from the designation                   available to the public (74 FR 52612;                 on July 29, 2010. During both public
                                               outweigh the benefits of including those                October 13, 2009). The 25-year time                   comment periods, we contacted
                                               areas in the designation. The economic                  frame was chosen for the analysis                     appropriate Federal, State, and local
                                               analysis considers the economic                         because, as the time horizon for an                   agencies; scientific organizations; and
                                               efficiency effects that may result from                 economic analysis is expanded, the                    other interested parties and invited
                                               the designation. In the case of habitat                 assumptions on which the projected                    them to comment on the proposed rule
                                               conservation, efficiency effects generally              number of projects and cost impacts                   to revise critical habitat for this species
                                               reflect the ‘‘opportunity costs’’                       associated with those projects are based              and the associated DEA. During the
                                               associated with the commitment of                       become increasingly speculative.                      comment periods, we requested all
                                               resources to comply with habitat                           The vast majority of potential                     interested parties to submit comments
                                               protection measures (such as lost                       incremental economic impacts                          or information related to the proposed
                                               economic opportunities associated with                  attributed to the revised critical habitat            revisions to critical habitat, including
                                               restrictions on land use). It also                      designation are expected to be related to             (but not limited to) the following: Unit
                                               addresses how potential economic                        the real estate industry (real estate                 boundaries, species occurrence
                                               impacts are likely to be distributed,                   development, CEQA, and delay                          information and distribution, land use
                                               including an assessment of any local or                 impacts), followed by utilities and                   designations that may affect critical
                                               regional impacts of habitat conservation                infrastructure projects. The FEA                      habitat, potential economic effects of the
                                               and the potential effects of conservation               estimates total potential incremental                 proposed designation, benefits
                                               activities on government agencies,                      economic impacts in areas proposed as                 associated with critical habitat
                                               private businesses, and individuals. The                revised critical habitat over the next 25             designation, areas proposed for
                                               economic analysis measures lost                         years (2010 to 2035) to be $750 million,              designation and associated rationale for
                                               economic efficiency associated with                     annualized at $64 million using a 7                   the non-inclusion or considered
                                               residential and commercial                              percent discount rate.                                exclusion of these areas, and methods
                                               development and public projects and                        The FEA estimates the largest impacts              used to designate critical habitat.
                                               activities, such as economic impacts on                 of the proposed revised critical habitat                 During the first comment period, we
                                               water management and transportation                     rule would result from real estate                    received 50 comment letters directly
                                               projects, Federal lands, small entities,                development. If the critical habitat                  addressing the proposed revision of
                                               and the energy industry. This                           designation is finalized as proposed, the             critical habitat, 3 from peer reviewers, 2
                                               information can be used by the                          FEA estimates that $731 million of the                from Federal agencies, 5 from Native
                                               Secretary to assess whether the effects of              $750 million total incremental costs will             American tribes, and 40 from public
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                                               the designation might unduly burden a                   result from real estate development, the              organizations or individuals. During the
                                               particular group or economic sector.                    majority coming from the loss of on-site              second comment period, we received 60
                                               Finally, the economic analysis looks                    acres set-aside and other project                     comments addressing the proposed
                                               retrospectively at costs that have been                 modifications. Overall, the real estate               critical habitat designation and the DEA.
                                               incurred since the date we listed the                   industry (real estate development,                    Of these latter comments, 8 were from
                                               arroyo toad as endangered (59 FR 64859;                 CEQA, and delay impacts) is estimated                 Native American tribes and 52 were
                                               December 16, 1994), and considers                       to experience the highest costs, followed             from public organization or individuals.


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                                                                Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations                                        7297

                                                 The open period for requesting public                    Our Response: We appreciate the                    competition and predation by bullfrogs
                                               hearings on the revised proposed rule                   assessment of the proposed rule by the                are known to have a substantial
                                               was from October 13, 2009, through                      peer reviewers. We have identified all                influence on the presence and
                                               November 27, 2009 (74 FR 52612). We                     habitats that have the physical or                    abundance of other amphibian species
                                               did not receive any requests for a public               biological features essential to the                  (Hecnar and M’Closkey 1997, pp.146–
                                               hearing during either that period or the                conservation of the species, which are                149). Bullfrogs have been documented
                                               comment period that began on October                    the primary constituent elements (PCEs)               preying on tadpoles, juveniles and adult
                                               13, 2009, and ended December 14, 2009.                  laid out in the appropriate quantity and              arroyo toads. Where they co-occur with
                                                                                                       spatial arrangement essential to the                  arroyo toads, bullfrogs are major
                                               Peer Review                                             conservation of the species (see                      predators and can essentially eliminate
                                                  In accordance with our Policy for Peer               ‘‘Primary Constituent Elements’’ section              local populations of arroyo toads (Sweet
                                               Review in Endangered Species Act                        above). We are designating                            1992, p. 128). In a recent study,
                                               Activities, published on July 1, 1994 (59               approximately 98,366 acres (ac) (39,807               D’Amore et al. (2009, p. 2) examined
                                               FR 34270), we solicited expert opinions                 hectares (ha)) of this habitat in this final          habitat characteristics correlated with
                                               from eight knowledgeable individuals                    designation of critical habitat for the               the presence of bullfrogs and California
                                               with scientific expertise that included                 arroyo toad. Some areas meeting the                   red-legged frogs (Rana draytonii). The
                                               familiarity with the species, the                       definition of critical habitat have been              study found that the invasive bullfrog
                                               geographic region in which it occurs,                   excluded from this final revised critical             out-competed the native amphibian in
                                               and conservation biology principles.                    habitat designation under section 4(b)(2)             sites with hydrological alteration,
                                               The three peer reviewers that responded                 of the Act (see EXCLUSIONS UNDER                      landscape-level habitat fragmentation,
                                               generally supported the proposed                        SECTION 4(B)(2) section for a detailed                and degradation of habitat. Unlike the
                                               revised designation, and two of the                     discussion).                                          native species, the bullfrog was able to
                                               three peer reviewers provided                              Comment 2: One peer reviewer                       tolerate and succeed in a wide range of
                                               additional information, clarifications,                 recommended adding deep or persistent                 conditions, including compromised
                                               and suggestions that we have                            standing water during summer and fall                 water quality with higher levels of
                                               incorporated as appropriate to improve                  as a threat to arroyo toads because such              phosphate, ammonia, and salinity;
                                               this final revised critical habitat rule.               pools provide refuge and breeding                     higher water temperatures; and
                                                  We reviewed all comments received                    habitat for nonnative predators such as               fragmented habitats due to agriculture,
                                               from the peer reviewers and the public                  crayfish, various warm-water fish                     roads, and other human-caused
                                                                                                       species, African clawed frogs, and                    alterations (D’Amore et al. 2009, p. 8).
                                               for substantive issues and new
                                                                                                       bullfrogs. The peer reviewer also                        According to Sweet (1992, p. 156),
                                               information regarding the designation of
                                                                                                       presented the rationale that these                    bullfrogs and introduced predatory
                                               critical habitat for the arroyo toad. All
                                                                                                       predators cannot survive seasonal                     fishes, such as green sunfish,
                                               comments are addressed in the
                                                                                                       drying, and in most streams in most                   largemouth bass (Micropterous
                                               following summary and incorporated
                                                                                                       years, can be eliminated from large                   salmonides), and black bullhead
                                               into the final rule as appropriate.
                                                                                                       portions of streams used by arroyo                    (Ictalurus nebulosus), are not well-
                                               Peer Review Comments                                    toads. The peer reviewer pointed out                  adapted to be permanent residents in
                                                                                                       that although these predator species will             arroyo toad habitat because they die off
                                                  Comment 1: One peer reviewer                                                                               during droughts and are washed out by
                                                                                                       recolonize, there is a time lag correlated
                                               affirmed that the background                            with distance and reduction in                        even moderate flooding in portions of
                                               information, essentially the biology of                 abundance that increases survivorship                 streams occupied by arroyo toads.
                                               the arroyo toad, was well-documented                    of tadpoles and adult toads.                          However, they also thrive in reservoirs
                                               and prepared. Also, this peer reviewer                     Our Response: We considered the                    and deep pools formed below dams,
                                               agreed with our removal of specific                     suggested edits and have made changes                 enabling them to quickly recolonize
                                               areas within some units that do not                     to the text as appropriate in the Reasons             downstream (Sweet 1992, p. 156).
                                               represent suitable habitat based on                     for Decline and Threats section above.                   The African clawed frog is an air-
                                               additional information garnered since                      Comment 3: One peer reviewer asked                 breathing frog that is almost completely
                                               the last designation (such as in Unit 7:                for more elaboration on whether                       aquatic, leaving water only to migrate
                                               Upper Los Angeles River Basin and Unit                  bullfrogs are the predators of greatest               (Peek 2010, p. 1). They inhabit stagnant
                                               23: Whitewater River Basin).                            concern, rather than some fish species                grassland ponds as well as streams in
                                                  A second peer reviewer noted that our                and adult clawed frogs that are very                  arid and semi-arid regions. In California,
                                               use of the 82-ft (25-m) elevation/4,921-                effective predators on arroyo toad                    African clawed frogs have established
                                               ft (1,500-m) lateral boundary for                       tadpoles and, depending on streambed                  large and dense populations (Willigan
                                               considerations of critical habitat is                   configuration and densities, could be                 2001, p. 3). They have been found in
                                               scientifically defensible and was                       tied to severe population effects on                  San Diego, Orange, and Los Angeles
                                               unaware of any new information that                     arroyo toads.                                         Counties and may also be in San
                                               would change those values. This peer                       Our Response: After closer review of               Bernardino, Santa Barbara, Riverside,
                                               reviewer also stated that the criteria                  available information, we cannot say for              Imperial, Kern, and Yolo Counties
                                               used to identify critical habitat are well-             certain that bullfrogs are a greater threat           (CaliforniaHerps.com 2010, p. 1). In
                                               supported and that they agreed with                     to arroyo toads than other exotic                     Ventura County, they are present in the
                                               each of the proposed subunits and their                 predator species. Bullfrogs and African               Santa Clara River from the mouth of the
                                               boundaries in the Northern Recovery                     clawed frogs are both considered serious              river upstream 10.5 mi (17 km) to the
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                                               Unit, except subunit 7a, as explained in                threats to native amphibians and fishes,              Vern Freeman Diversion at Saticoy
                                               Comment 6 below. The peer reviewer                      not only to the arroyo toad but to other              (Lafferty and Page 1985, p. 589). The
                                               went on to note all subunit boundaries                  federally endangered species. Bullfrogs               species tolerates a wide variety of
                                               in the proposed critical habitat rule                   are nonnative to California and because               aquatic conditions, including extreme
                                               correspond closely with the areas they                  of their large size, aggressive behavior,             levels of acidity, low oxygen levels, and
                                               know to be occupied by (or suitable for)                generalized eating habits, and highly                 high water temperatures (Peek, 2010, p.
                                               arroyo toads.                                           successful reproduction capabilities,                 1). They are ‘‘sit and wait’’ predators,


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                                               7298             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               similar to bullfrogs, in that they feed on              limit areas eligible for designation as                  Regarding the peer reviewer’s concern
                                               whatever prey they encounter (Peek                      critical habitat. Specifically, section               about interagency cooperation on
                                               2010, p. 2). Their diet includes a wide                 4(a)(3)(B)(i) of the Act (16 U.S.C.                   reducing fire suppression impacts to
                                               range of native aquatic invertebrates and               1533(a)(3)(B)(i)) now provides: ‘‘The                 listed species, we should clarify that
                                               vertebrates, including tadpoles and                     Secretary shall not designate as critical             since 1995 we have considered wildfire
                                               juvenile amphibians, young arroyo chub                  habitat any lands or other geographical               to be an emergency action that falls
                                               (Gila orcutti), the federally endangered                areas owned or controlled by the                      under section 7 emergency consultation
                                               unarmored threespine stickleback                        Department of Defense, or designated                  procedures (Service’s 1995 Director’s
                                               (Gasterosteus aculeatus williamsoni)                    for its use, that are subject to an                   memorandum, ‘‘Endangered Species and
                                               and tidewater goby (Eucyclogobius                       integrated natural resources                          Fire Policy Clarification’’). For those
                                               newberryi). In contrast to bullfrogs and                management plan [INRMP] prepared                      wildfires that are unplanned, unwanted,
                                               predatory fishes that cannot survive                    under section 670a of this title, if the              and for which the objective is
                                               when ponds dry up, African clawed                       Secretary determines in writing that                  suppression, consultation is not
                                               frogs burrow into the mud (leaving a                    such plan provides a benefit to the                   necessary on the wildfire itself but has
                                               tunnel for air) and can remain dormant                  species for which critical habitat is                 been required for the response actions
                                               for 8 months to a year (Peek 2010, p. 1).               proposed for designation.’’ We                        that the action agency controls. Actions
                                               There are currently no known efforts                    determined the INRMPs for Fort Hunter
                                                                                                                                                             that may result in effects to listed
                                               targeting control of African clawed frogs               Liggett Military Reservation, Marine
                                                                                                                                                             species or critical habitat typically
                                               in Southern California (Peek 2010, p. 2).               Corps Base Camp Pendleton, and
                                                                                                                                                             include activities such as backburning,
                                               Based on this information, we will                      Fallbrook Naval Weapons Base provide
                                               continue to regard introduced predatory                 benefits to the arroyo toad; therefore, the           fire-line construction, placement of fire
                                               fishes, bullfrogs, and African clawed                   Act mandates we exempt lands subject                  camps, use of aircraft, water drops, and
                                               frogs as constituting a severe threat to                to the INRMPs for these military bases                use of fire retardant. During the initial
                                               arroyo toad populations.                                from critical habitat designation (see                contact with the action agency, our role
                                                  Comment 4: One peer reviewer                         Exemptions section in the proposed                    is to offer recommendations to minimize
                                               criticized the approach of excluding                    revised rule (74 FR 52639; October 13,                the effects of fire suppression activities
                                               identified habitats that are described as               2009) for details). In addition, although             to listed species or their critical habitat.
                                               suitable and currently occupied by                      Remote Training Site Warner Springs                   After the fire is extinguished, the action
                                               arroyo toads simply because these sites                 and Camp Morena had not completed                     agency conducts an assessment on the
                                               are otherwise afforded some degree of                   the INRMP process by the time this                    effects to the listed species or critical
                                               protection, be it via a military plan or                revised critical habitat rule was                     habitat caused by actions taken to
                                               a municipal watershed plan, or some                     finalized, the Secretary is exercising his            respond to the emergency. If any listed
                                               form of multi-species habitat                           discretion to exclude lands within these              species or critical habitat were adversely
                                               conservation plan. The peer reviewer                    military facilities under section 4(b)(2)             affected by the fire suppression
                                               argued that this approach weakens an                    of the Act for reasons of national                    activities, the action agency must
                                               otherwise strong and uniform plan that                  security.                                             initiate formal consultation. The
                                               will designate and help protect habitat                    Comment 5: Regarding the Special                   purpose of formal consultation in such
                                               for this species.                                       Management Considerations or                          cases is to document the amount of any
                                                  Our Response: We appreciate the peer                 Protection section (74 FR 52619;                      take that occurred, assess the
                                               reviewer’s concerns regarding adequate                  October 13, 2009) in the proposed                     effectiveness of implementation of
                                               protection of arroyo toads under HCPs,                  revised rule, one peer reviewer                       protective measures proposed at the
                                               INRMPs, or other conservation                           recommended adding fire suppression                   onset of the emergency, and to conclude
                                               management plans. Conservation                          activities that are conducted without                 the consultation. The project
                                               benefits provided by existing HCPs are                  appropriate section 7 consultation or                 description provided by the action
                                               not considered a benefit of exclusion                   oversight to the list of threats for arroyo           agency must include a description of the
                                               because they would remain in place                      toads. The peer reviewer stated that                  nature of the emergency and
                                               regardless of critical habitat designation;             during the Day Fire (2006) in the                     justification for using emergency
                                               however, they do minimize the benefits                  Hardluck reach of upper Piru Creek, and               procedures. We use this information to
                                               of inclusion to the extent they are                     during the Zaca Fire (2007) in the                    update the environmental baseline for
                                               redundant with protection measures                      Sisquoc River, Mono Creek, and Indian                 the species or designated critical habitat
                                               that would be provided by a critical                    Creek staging areas, multiple ‘‘safety                and to account for losses caused by the
                                               habitat designation. Any remaining                      zones’’ and access tracks were bulldozed              fire and suppression activities.
                                               conservation benefits resulting from                    in highly sensitive arroyo toad habitat.
                                               critical habitat inclusion are also limited             The peer reviewer was concerned that                     We also assist our partners by
                                               to projects where a Federal nexus                       some managers and contractors may not                 providing technical assistance and
                                               applies.                                                be supportive of endangered species                   processing section 7 consultations
                                                  The benefits of excluding a particular               restrictions and may see a ‘‘fire                     expeditiously on fuel-reduction
                                               area covered by an existing HCP are                     emergency’’ as license to actively                    projects, as fire emergency preparedness
                                               primarily based on the perception of                    destroy habitat and reopen closed roads.              has a high priority within our
                                               negative impacts that a critical habitat                The peer reviewer contended that this is              consultation workload. A successful
                                               designation could have on current and                   an emerging threat to arroyo toad habitat             method for addressing fire issues with
                                               possible future partners.                               range-wide, while also being a broader                our partners has been early
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                                                  Regarding arroyo toad habitat                        issue requiring greater interagency                   coordination. The earlier that we are
                                               occurring on lands owned by the                         coordination.                                         aware of a potential fuel reduction
                                               military, we do not have full discretion                   Our Response: We appreciate the peer               project, the sooner we can assist in
                                               to designate critical habitat on the                    reviewer’s critical review and have                   determining potential effects to listed
                                               military bases. The National Defense                    added fire suppression activities to the              species and work with staff to develop
                                               Authorization Act for Fiscal Year 2004                  ‘‘Reasons for Decline and Threats’’                   measures to minimize or eliminate these
                                               (Pub. L. 108–136) amended the Act to                    section above.                                        effects. This coordination facilitates


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                                               streamlined section 7 consultation                      make a determination that it provides                 development of this final designation, as
                                               under the Act.                                          adequate protection for all covered                   appropriate. Comments and materials
                                                  Comment 6: Regarding the Northern                    species within the plan area boundary                 received, as well as supporting
                                               Recovery Unit, one peer reviewer                        (including HCPs that address arroyo                   documentation used in the preparation
                                               believes that Subunit 7a (lower Big                     toad and its habitat). Subsequently, we               of this final rule, are available for public
                                               Tujunga Creek proposed in 2004; see the                 monitor the HCP implementation and                    inspection, by appointment, during
                                               Summary of Changes from Previously                      the covered species’ status and could                 normal business hours at the Ventura
                                               Designated Critical Habitat section of                  alter our determination if warranted. We              Fish and Wildlife Office (see ADDRESSES
                                               the proposed revised critical habitat rule              have not determined any HCP that                      section above).
                                               (74 FR 52622; October 13, 2009)) may                    overlapped with arroyo toad proposed                     Comment 9: One commenter stated
                                               harbor suitable breeding habitat. The                   critical habitat designation to be                    that in describing how Federal rights
                                               peer reviewer stated that the middle                    improperly implemented or                             interact with private rights, the Service
                                               third of the canyon (from 1,476 to 1,804                inadequately funded, including                        should include a short segment on
                                               ft-elevation (450 to 550 m) appeared to                 proposed Unit 23 within the Coachella                 relevant provisions of California water
                                               have suitable upland habitat based on                   Valley MSHCP boundaries, which is not                 law and how the law might impact
                                               their reconnaissance visits conducted                   included in this final rule (see Summary              private landowners or those who hold
                                               during the non-breeding season in 2006.                 of Changes from the 2009 Proposed Rule                water rights under the proposed critical
                                               They stated the area also had                           To Revise Critical Habitat section).                  habitat designation. The commenter
                                               distribution channels that provided                     However, we will evaluate any                         stated the Service should let current
                                               suitable breeding microhabitat, despite                 information submitted to us and                       water users know if this critical habitat
                                               evident hydrologic instability probably                 consider it in our ongoing assessments                designation will affect the amount of
                                               tied to release operations at Big Tujunga               of all permitted HCPs, and continue to                water available for irrigation,
                                               Dam.                                                    work with permittees to make sure                     recreational use, agricultural use, or
                                                  Our Response: We appreciate the peer                 HCPs are adequately funded. If during                 other uses. The commenter further
                                               reviewer expressing their opinion that                  our ongoing assessments of permitted                  recommended we should state clearly in
                                               Subunit 7a may harbor suitable breeding                 HCPs we determine they do not                         the rule whether private parties are
                                               habitat. We will consider this                          adequately protect a covered species,                 permitted to change their current water
                                               information during future recovery                      are not being properly implemented, or                uses, and if so, if there are any special
                                               planning, including for potential future                do not have adequate funding based on                 limitations on new uses that would
                                               surveys or reintroduction to expand the                 all available information, we will take               conflict with critical habitat goals.
                                               number of existing populations. At this                 appropriate action with regard to the                    Our Response: The detailed
                                               time, the best available information                    HCP permit, and may again revise                      information requested by the
                                               indicates this habitat is of questionable                                                                     commenter on California water law and
                                                                                                       designated critical habitat, subject to
                                               suitability, and is not currently                                                                             individual water rights is beyond the
                                                                                                       available funding and other
                                               occupied (Backlin et al. 2002, pp. 6, 12;                                                                     scope of this critical habitat designation;
                                                                                                       conservation priorities.
                                               Hitchcock et al. 2004, pp. 8–9, 29) or                                                                        therefore, we have not incorporated
                                               connected to habitat that is occupied.                  Public Comments                                       such information in this final rule.
                                               This location does not appear to be                                                                              Comment 10: One commenter urged
                                                                                                       Comments Related to Critical Habitat,
                                               required to maintain the appropriate                                                                          us to identify ‘‘wildfire suppression
                                                                                                       Primary Constituent Elements, and                     activities’’ as a threat to arroyo toad
                                               population structure across the species’
                                                                                                       Methodology                                           populations. The commenter asserted
                                               range, or to provide connectivity
                                               between breeding sites, and it does not                    Comment 8: One commenter argued                    that the Service has substantial evidence
                                               meet the definition of critical habitat for             that using unpublished data reports on                on file regarding bulldozing and
                                               the arroyo toad.                                        the arroyo toad does not meet the                     vegetation clearing that occurred along
                                                  Comment 7: One peer reviewer                         requirement that the Service use the                  Mono Creek during the 2007 Zaca Fire
                                               commented that the proposed rule                        best available science.                               and that these fire suppression activities
                                               provides considerably more detail about                    Our Response: We understand the                    caused direct mortality to arroyo toads
                                               the circumstances of potential HCP                      commenter’s concern and have                          and adversely modified arroyo toad
                                               exclusions than is usual, and that this                 considered their argument; however,                   terrace habitat.
                                               is an excellent feature of the document.                critical habitat designations use the best               Our Response: We revised the text in
                                               However, they noted that current                        available commercial and scientific data              the ‘‘Reasons for Decline and Threats’’
                                               coverages by the existing HCPs vary                     to identify lands that we believe contain             section above to include fire
                                               tremendously. According to the peer                     the physical and biological features                  suppression activities as a threat to
                                               reviewer’s calculations, lands within the               essential to the conservation of the                  arroyo toads. Fire suppression activities
                                               proposed critical habitat boundaries that               species. In designating critical habitat              include fire line construction; fire
                                               are currently protected are: 0 percent                  for the arroyo toad, we have used the                 retardant and water drops;
                                               (Orange County Southern Subregion                       best available scientific and commercial              establishment of temporary fire camps,
                                               HCP), 0.06 percent (Western Riverside                   information, including results of                     staging areas, parking sites, safety zones,
                                               County MSHCP), 19 percent (San Diego                    numerous surveys, peer-reviewed                       and helipads; and post-fire
                                               MSCP), 51 percent (Orange County                        literature, unpublished reports by                    rehabilitation. Safety zone and fire line
                                               Central-Coastal NCCP/HCP), and 89                       scientists and biological consultants,                construction often involves using
                                               percent (Coachella Valley Multiple                      potential habitat maps developed by the               bulldozers to clear vegetation down to
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                                               Species Habitat Conservation Plan                       Forest Service, and expert opinion from               bare soil. Parking areas and fire camps
                                               (Coachella Valley MSHCP)). Based on                     biologists with extensive experience                  result in heavy trampling and soil
                                               these calculations, they do not see how                 studying the arroyo toad. Further,                    compaction from equipment and
                                               the proposed exclusions can be                          information provided in comments on                   vehicles. Fire camps and fire
                                               defended.                                               the proposed designation and the draft                suppression activities may also tax
                                                  Our Response: When we issue an                       economic analysis were evaluated and                  nearby water supplies for putting out
                                               incidental take permit for an HCP, we                   taken into consideration in the                       fires (as well as supplying fire camp).


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                                               Fire lines that are cut through riparian                were not included in the proposed                     description of this unit, see Final
                                               habitat can alter stream hydrology,                     revised critical habitat designation, such            Revised Critical Habitat Designation
                                               destroy vegetation, kill or injure                      as the San Dieguito River Basin, the                  above.
                                               wildlife, and encourage the                             Tijuana River, and the Pinto Wash Basin                  Comment 12: Two commenters
                                               establishment of nonnative species. All                 in the Jacumba (In-Ko-Pah) Mountains                  expressed concerns that the Service
                                               of these activities can result in adverse               Wilderness Study Area. The commenter                  dismissed from the critical habitat
                                               effects to arroyo toads if they occur in                stated that the proposal provides no                  designation areas of habitat that have
                                               or near occupied habitat.                               reasonable explanation for why these                  been altered from the operation of
                                                  In the case of the 2007 Zaca Fire, a                 important areas previously identified as              upstream dams but are known in the
                                               number of broad fuelbreaks and safety                   essential to the recovery of the arroyo               past to have supported populations of
                                               zones were constructed using heavy                      toad are not discussed or included in                 arroyo toads, including Big Tujunga
                                               equipment in the lower portions of                      the proposal.                                         Dam in Unit 7, Sutherland Dam in Unit
                                               Indian, Mono, and Agua Caliente                            Our Response: We believe we have                   16, Loveland Dam in Unit 18, and
                                               Creeks, as well as elsewhere along                      considered all essential habitat for the              Morena Dam in Unit 19. While the first
                                               Camuesa Road in the upper Santa Ynez                    arroyo toad and proposed to designate                 commenter recognized that the dams
                                               River drainage. According to site visit                 all habitat areas that meet the definition            and the basins behind them pose a
                                               observations (Sweet 2007a, pp. 1–9),                    of critical habitat. Section 3(5)(C) of the           barrier to arroyo toad movement, they
                                               several of the fuelbreaks and safety                    Act states that except in particular                  contended that proper management can
                                               zones were constructed on stream                                                                              restore habitat above and below these
                                                                                                       circumstances determined by the
                                               terrace habitat in Indian and Mono                                                                            dams and basins and the Service should
                                                                                                       Secretary, critical habitat shall not
                                               Creeks, and severely degraded                                                                                 promote such restoration. The
                                                                                                       include the entire geographical area
                                               important upland habitat for arroyo                                                                           commenter recommended protecting
                                                                                                       which can be occupied by the
                                               toads. Arroyo toads in these areas have                                                                       and maintaining these important habitat
                                                                                                       threatened or endangered species. It is
                                               been intensively studied from 1989 to                                                                         areas and pressing for changes in flow
                                                                                                       not the intent of the Act to designate
                                               1993 (see Sweet 1992, pp. 1–198; 1993,                                                                        regimes to support arroyo toads in these
                                                                                                       critical habitat for every population and
                                               pp. 1–73) and monitored by Service                                                                            historical habitats.
                                                                                                       every documented historical location of                  The second commenter also argued
                                               personnel in most of the last 15 years
                                                                                                       a species, nor is it the intent to                    that given the extremely harmful effect
                                               (Sweet 2007a, p. 1). Sweet’s studies
                                                                                                       designate all areas supporting                        these dams have on arroyo toad habitat,
                                               indicate that subadult and adult arroyo
                                               toads make extensive use of the affected                metapopulations as critical habitat. We               they believed the Service should be
                                               stream terraces, and typically in August                recognize that the designation of critical            more focused on stopping the ‘taking’
                                               and September a large proportion of the                 habitat may not include all of the                    activity under section 9 of the Act
                                               population would be resident in                         habitat that may eventually be                        (which prohibits any party, public or
                                               burrows on the terraces. Removal of all                 determined to be necessary for the                    private, from ‘harming’ an animal listed
                                               vegetation (including the root bases of                 recovery of the arroyo toad, and critical             as endangered) than on removing the
                                               woody shrubs) by bulldozing is very                     habitat designations do not signal that               area from critical habitat designation.
                                               likely to have killed any toads that were               habitat outside the designation is                    Moreover, if these dams were built with
                                               dormant in burrows within the treated                   unimportant or may not contribute to                  Federal funds, the commenter believed
                                               areas (Sweet 2007a, p. 1).                              recovery of the species. Areas outside                the Service could prohibit harmful
                                                  Sweet (2007a, p. 1) also reported that               the final revised critical habitat                    activities that jeopardize the species
                                               in addition to causing direct mortality,                designation will continue to be subject               under section 7 of the Act (commenter
                                               the bulldozing operations may have                      to conservation actions implemented                   cited Tennessee Valley Authority v. Hill,
                                               seriously degraded critical upland                      under section 7(a)(1) of the Act,                     437 U.S. 153 (1978)).
                                               habitat by removing shade and the                       regulatory protections afforded by the                   Our Response: In accordance with 50
                                               opportunity for toads to select                         section 7(a)(2) jeopardy standard, and                CFR 424.12, we designated critical
                                               microclimates based on soil                             the prohibitions of section 9 of the Act.             habitat on the basis of the best scientific
                                               temperature, moisture content, and                      These protections and conservation                    data available, after taking into
                                               ground cover; by creating extensive                     tools will continue to contribute to                  consideration the probable economic
                                               barriers to toad movement through the                   recovery of this species. Section 4(b) of             and other relevant impacts of making
                                               placement of large piles of woody debris                the Act requires us to designate critical             such a designation. In designating
                                               between the creek bed and the terraces;                 habitat on the basis of the best scientific           critical habitat, we considered those
                                               and by providing ideal conditions for                   and commercial data available. The best               physical and biological features that are
                                               the terraces to become invaded by exotic                available data indicate that the Tijuana              essential to the conservation of the
                                               weeds, in particular yellow star thistle.               River no longer contains physical and                 arroyo toad and that may require special
                                               Sweet (2007a, p. 1) noted that arroyo                   biological features essential to the                  management considerations or
                                               toads are unable to inhabit terraces                    conservation of the species due to poor               protection. We are not designating lands
                                               where star thistle is well-established.                 water quality. Additionally, the best                 above and below dams and basins if
                                                  Comment 11: One commenter stated                     available data indicate that the arroyo               those areas do not contain the physical
                                               that the proposed critical habitat rule for             toad does not occur currently and most                and biological features that are essential
                                               the arroyo toad is fatally flawed because               likely did not occur historically in the              to the conservation of the arroyo toad.
                                               it fails to consider all essential habitat              Pinto Wash Basin, and therefore we                    For more information on our criteria for
                                               for the toad, including areas previously                determined that this area is not essential            designating critical habitat, please see
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                                               designated as critical habitat, habitat                 for the conservation of the species. To               the Criteria Used to Identify Critical
                                               recently known to be occupied, and                      provide clarification to the commenter                Habitat section above.
                                               habitat that may not currently be                       regarding the San Dieguito River Basin,                  The Service implements all sections
                                               occupied but could provide an                           we included this area in Unit 16 in the               of the Act, including section 4 (using
                                               opportunity for species recovery. For                   proposed revised critical habitat                     the best scientific and commercial data
                                               example, the commenter believes that                    designation and the final revised critical            available to determine if a species
                                               some key recovery metapopulations                       habitat designation. For a complete                   warrants Federal protection), section 7


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                                               (consulting on Federal actions that may                 specific areas within the geographical                which bisects Basin 1 represents high-
                                               affect critical habitat), and section 9                 area occupied by the species at the time              quality arroyo toad breeding habitat
                                               (prohibiting take of listed species). Each              it is listed on which are found those                 (during the spring season/inundation
                                               of these sections of the Act is governed                physical and biological features (a)                  period). Arroyo toad tadpoles, juveniles,
                                               by separate legal standards and                         essential to the conservation of the                  and adults were documented within
                                               requirements. Regarding the                             species, and (b) which may require                    Basin 1 during 2008 and 2009 survey
                                               commenters’ belief that the Service                     special management considerations or                  efforts conducted by the Forest Service
                                               should be more focused on stopping the                  protection, and (2) specific areas outside            (Ramirez 2009, p. 4). In addition, the
                                               ‘taking’ activity than on removing the                  the geographical area occupied by the                 western regions of Basins 2 and 3
                                               area from critical habitat designation,                 species at the time it is listed upon a               represent high-quality arroyo toad
                                               we appreciate any information provided                  determination by the Secretary that such              foraging and/or aestivation habitat
                                               by the public regarding a potential                     areas are essential for the conservation              (Ramirez 2009, p. 3). Based on these and
                                               section 9 violation, and we will provide                of the species. Not all areas that may                prior annual survey results, we believe
                                               this information (as appropriate) to our                contribute to a species’ recovery are                 it is essential habitat for the arroyo toad
                                               law enforcement division. However,                      necessarily essential for conservation of             and meets the definition of critical
                                               potential violations are not directly                   the species. Although arroyo toads are                habitat for the species.
                                               relevant to this final revised critical                 not known to occupy Agua Caliente                        Comment 16: Two commenters stated
                                               habitat designation.                                    Creek and we did not include Agua                     that land within Subunit 6b is already
                                                  Comment 13: Three commenters                         Caliente Creek as part of this final                  protected through conservation
                                               expressed general opposition to revising                revised critical habitat designation for              easements and other management
                                               critical habitat because taxpayers will be              the arroyo toad, we included the                      measures and requested exclusion of
                                               unable to access public lands and will                  confluence of Agua Caliente Creek and                 Subunit 6b from the final revised
                                               lose recreational opportunities on                      the Santa Ynez River occupied by                      critical habitat designation.
                                               public lands.                                           arroyo toads because we determined                       The first commenter stated that the
                                                  Our Response: We acknowledge the                     that the area meets the definition of                 Newhall Land and Farming Company
                                               commenters’ concerns that revising                      critical habitat. Additionally, we do not             (Newhall LFC) Natural River
                                               critical habitat may result in certain                  have information suggesting that                      Management Plan (NRMP) includes
                                               habitat areas of the arroyo toad being                  Manzana Creek or La Brea Creek are                    numerous avoidance and mitigation
                                               restricted or closed to the public;                     occupied by arroyo toads or that these                measures that benefit arroyo toads.
                                               however, an area we designate as                        tributaries contribute a substantial                  Areas protected by conservation
                                               critical habitat is not a refuge or                     amount of habitat that would be used by               easement under the NRMP encompass
                                               sanctuary for the species but requires                  arroyo toads. We did not include these                nearly half of the proposed critical
                                               Federal agencies to ensure that their                   tributaries in this final revised critical            habitat acreage in Subunit 6. Newhall
                                               activities are not likely to destroy or                 habitat designation because these areas               LFC has also voluntarily placed
                                               adversely modify the areas designated.                  do not meet the definition of critical                conservation easements on
                                               In addition, we believe that abundant                   habitat for the arroyo toad.                          approximately 48 ac (19 ha) of arroyo
                                               recreational opportunities will remain                     Comment 15: One commenter stated                   toad upland habitat within the Santa
                                               and be available to the public on public                that the portion of Subunit 6a that                   Clara River corridor near the U.S.
                                               lands, whether or not they are in arroyo                encompasses approximately 7 mi (12                    Interstate 5 bridge. This acreage is in
                                               toad critical habitat.                                  km) of Castaic Creek from Bear Canyon                 addition to the acreage already
                                                                                                       downstream to Castaic Lake should be                  conserved under the NRMP and
                                               Comments Related to Site-Specific
                                                                                                       excluded from the critical habitat                    Valencia Commerce Center conservation
                                               Areas
                                                                                                       designation. The commenter asserts that               easements, as well as the conservation
                                                  Comment 14: One commenter                            the Los Angeles County Department of                  easements proposed under the Newhall
                                               supported our inclusion of the Upper                    Water and Power (LADWP) has secured                   Ranch Specific Plan. The commenter
                                               Santa Ynez River as well as its Mono                    appropriate permits from Federal and                  also stated that the Newhall Ranch area
                                               Creek and Indian Creek tributaries in                   State agencies to clear accumulated                   is not truly essential to the conservation
                                               Unit 3. However, they believe that Agua                 materials and maintain three check-                   of the species due to limited arroyo toad
                                               Caliente Creek (another tributary of the                dams and debris basins on Castaic                     observations, and would generate
                                               Santa Ynez River) should also be                        Creek. The commenter notes that these                 considerable costs for private
                                               included in the designation and that                    activities generally disturb the potential            landowners.
                                               Manzana Creek and La Brea Creek                         habitat for a number of years and the                    The second commenter stated that
                                               (tributaries to the Sisquoc River) should               frequency and number of arroyo toads                  Subunit 6b is a highly developed area
                                               be included in the critical habitat                     encountered has not dramatically                      with concentrated urban and
                                               designation. The commenter asserts that                 increased; therefore, it is the opinion of            agricultural uses along the Santa Clara
                                               these tributaries contain numerous                      the commenter that the area cannot be                 River corridor and its tributaries. Within
                                               breeding pools and juvenile and adult                   considered critical to the survival of the            the last 15 years, more than a dozen
                                               habitat crucial to the survival of the toad             species.                                              protocol surveys for arroyo toad have
                                               but are subject to impacts from high-                      Our Response: According to a 2009                  been performed in Subunit 6b and less
                                               density recreational activity, off-                     translocation survey report conducted                 than half of these surveys have
                                               highway vehicle use, livestock grazing,                 prior to maintenance activities for the               identified any sign of arroyo toad
                                               and mining activities. The commenter                    Castaic Power Plant (Ramirez 2009, pp.                presence. The commenter concluded
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                                               contends that designation of these areas                1–5), recent 2008 and 2009 spring                     that the few individuals found are not
                                               as critical habitat would help facilitate               season surveys in Basin 1 within and                  indicative of a robust population in the
                                               protection of existing populations and                  adjacent to the project impact areas                  subunit, and therefore saw no reason for
                                               help provide suitable habitat for                       indicate that all of Basin 1 represents               including Subunit 6b in the critical
                                               recovery efforts.                                       high-quality arroyo toad foraging and/or              habitat designation and believed that
                                                  Our Response: Section 3(5)(A) of the                 aestivation habitat. According to                     the new regulatory burden resulting
                                               Act defines critical habitat as: (1) The                Ramirez (2009, p. 2), the active channel              from the designation is not warranted.


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                                                  Our Response: Although this area                     inclusion, and that exclusion of an area              questionable suitability, is not currently
                                               currently contains a small arroyo toad                  will not result in extinction of a species,           occupied (Backlin et al. 2002, pp. 6, 12;
                                               population, arroyo toad numbers likely                  which is a more complex analysis                      Hitchcock et al. 2004, pp. 8–9, 29), is
                                               were much larger in the past, and the                   process than described by the comment                 not connected to habitat that is
                                               number of arroyo toads has the potential                above. When considering the benefits of               occupied, and does not appear to be
                                               to greatly increase once again                          exclusion, we consider a variety of                   required to maintain the appropriate
                                               throughout suitable habitat in this                     factors, which in the case of Newhall                 population structure across the species’
                                               subunit. In the case of Newhall Ranch,                  Ranch, included but was not limited to                range, or to provide connectivity
                                               we determined that approximately 1,003                  whether the conservation easements had                between breeding sites; therefore, it
                                               ac (405 ha) of land in Subunit 6b owned                 been conveyed to CDFG, and whether                    does not meet the definition of arroyo
                                               by Newhall LFC meet the definition of                   there was a reasonable expectation that               toad critical habitat. Please see our
                                               critical habitat under the Act. In our                  conservation management strategies and                response to Comment 6 above.
                                               exclusion analysis under Section 4(b)(2)                actions in the NRMP will be                              Comment 19: One commenter
                                               of the Act, we evaluated the                            implemented into the future (see                      expressed concerns regarding potential
                                               conservation strategy provided by                       Exclusions Under Section 4(b)(2) of the               impacts from the proposed revised
                                               Newhall LFC’s Natural River                             Act section above for further                         critical habitat designation to existing
                                               Management Plan that includes the                       discussion). After considering the                    and planned operations, maintenance,
                                               placement of a conservation easement                    relevant impacts, we have not                         and protection activities associated with
                                               on 541 ac (218 ha) on portions of Santa                 concluded that the benefits of exclusion              Metropolitan’s Colorado River Aqueduct
                                               Clara River and Castaic Creek, of which                 outweigh the benefits of inclusion for                (CRA) right-of-way and appurtenant
                                               330 ac (133 ha) are within Subunit 6b.                  the remaining 672 ac (272 ha) of                      facilities in Unit 23. The commenter
                                               Existing conservation measures can                      Newhall LFC lands within Subunit 6b.                  believes we should revise the proposed
                                               minimize the benefits of inclusion, but                 Regarding the 243 ac (98 ha) in                       designation to exclude the area within
                                               the benefits of exclusion must outweigh                 question, the commenter did not                       the Metropolitan CRA for the following
                                               the benefits of inclusion and a                         include a map with the comment but                    reasons: (1) The absence of arroyo toads
                                               determination that exclusion would not                  simply described the area as the eastern              and PCEs; (2) previous and ongoing
                                               result in the extinction of the species                 extension of Subunit 6b. We are unable                disturbance; (3) significant maintenance
                                               must be made before we can exclude                      to determine how much, if any, of the                 operations impacts that could
                                               lands from a final critical habitat                     243 ac (98 ha) are within the 330 ac (133             potentially occur; and (4) significant
                                               designation. In making our final                        ha) conservation easement and                         potential economic impacts.
                                               decision with regard to these lands, we                 therefore, whether any of the 243 ac (98                 Our Response: Following examination
                                               considered several factors, including                   ha) would be within the area that is                  of data used to map Unit 23 in the
                                               our relationships with the landowner                    excluded in Subunit 6b. Additionally,                 proposed rule and discussions with
                                               and other stakeholders, conservation                    lands covered by buildings, pavement,                 species experts regarding identification
                                               measures and management that are in                     and other structures, such as the                     records, we determined that these
                                               place on these lands, and impacts to                    Metropolitan Water District’s water                   records are not arroyo toads and do not
                                               current and future partnerships. For the                management facilities (Foothill Feeder,               support a determination that this area
                                               reasons discussed in the Exclusions                     Saugus Tunnel, and Santa Clara River                  meets the definition of critical habitat.
                                               Under Section 4(b)(2) of the Act section                Blow-Off Structure) would not be                      Therefore, Unit 23 is not included in
                                               above, the Secretary is exercising his                  included in designated critical habitat               this final revised critical habitat rule
                                               discretion to exclude the 330 ac (133 ha)               because such lands do not support the                 (see the Summary of Changes from the
                                               of Newhall LFC lands that have been                     physical and biological features                      2009 Proposed Rule To Revise Critical
                                               conveyed the CDFG in a conservation                     essential to the conservation of the                  Habitat section).
                                               easement and are conserved and                          arroyo toad.                                             Comment 20: Two commenters
                                               managed by the NRMP from this final                        Comment 18: One commenter stated                   commended the Service for proposing
                                               revised critical habitat designation.                   that tributary streams to the lower Big               critical habitat for the arroyo toad on 7.3
                                                  Comment 17: One commenter                            Tujunga Wash in Unit 7, such as Clear,                mi (12 km) of Silverado Creek in Unit
                                               expressed concerns that the designation                 Doan, Ebbets, Vogel, Grizzly, Bryant,                 8. They stated there are multiple factors
                                               of critical habitat at the eastern end of               Ybarra, and Fusier creeks, contain                    threatening the arroyo toad, including
                                               Subunit 6b would impact operations                      suitable arroyo toad habitat and are                  habitat loss from urban development,
                                               and maintenance of several                              unaffected by ‘‘unseasonable’’ water                  predation by invasive species, and
                                               Metropolitan facilities (Foothill Feeder,               releases from Big Tujunga Dam. The                    wildfire, that necessitate continued
                                               Saugus Tunnel, and Santa Clara River                    commenter believed these tributaries                  protection under the Act for the arroyo
                                               Blow-Off Structure) and associated                      have not received adequate focused                    toad in the Santa Ana River Basin.
                                               rights-of-way. The commenter stated we                  surveys for arroyo toads and that Big                    Our Response: We appreciate the
                                               should revise the proposed designation                  Tujunga Wash might be naturally                       support and look forward to working
                                               to exclude approximately 243 acres of                   repopulated with arroyo toad tadpoles                 with the commenters in the future on
                                               the eastern extension of critical habitat               from these tributaries, provided water                continued conservation efforts for the
                                               within Subunit 6b because the few                       releases from the dam are timed                       arroyo toad.
                                               arroyo toads present in this area do not                properly and removal of invasive                         Comment 21: One commenter stated
                                               represent a sustainable breeding                        species is successfully completed.                    several reasons why they believe that
                                               population, and because operation of                       Our Response: We appreciate the                    arroyo toad critical habitat rule
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                                               the Foothill Feeder, including discharge                commenter expressing their opinion                    improperly includes 43 ac (17 ha) of
                                               of water from the blow-off into the Santa               that tributary streams to the lower Big               Pardee’s Meadowwood project site
                                               Clara River, has minimal effects on this                Tujunga Wash may harbor suitable                      north of State Route 76 along the San
                                               species.                                                breeding habitat. We will consider this               Luis Rey River in Unit 14. They stated
                                                  Our Response: Exclusion is based on                  information during future recovery                    that this area does not contain suitable
                                               our determination that the benefits of                  planning. At this time, the best available            breeding or aestivation habitat, and the
                                               exclusion outweigh the benefits of                      information indicates this habitat is of              recently completed widening and


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                                               realignment of State Route 76 together                  maps of the revised critical habitat are                 A second commenter opposed the
                                               with the permanent arroyo toad barrier                  excluded by text in this final rule.                  designation of critical habitat in Subunit
                                               fence that will be installed on the                        We do not agree that upland habitat                22a on Summit Valley Ranch in Summit
                                               southern edge of the right-of-way will                  delineation should be limited to 1,000 ft             Valley, San Bernardino County, which
                                               restrict movements of toads from the                    (305 m) from the stream channel.                      contains a portion of Little Horsethief
                                               San Luis Rey floodprone area north onto                 Section 4(b) of the Act requires we                   Creek that runs through the southern
                                               the Meadowwood project site.                            designate critical habitat on the basis of            portion of the site and is known to
                                                  Our Response: Upon further                           the best scientific and commercial data               contain a breeding population of the
                                               examination, we agree that areas within                 available. We believe our proposed                    arroyo toad. However, the commenter
                                               the Meadowwood project site and on                      revisions to critical habitat were                    argued that the proposed critical habitat
                                               Rosemary’s Mountain to the east do not                  supported by sufficient data that                     designation is too broad because it also
                                               contain the physical and biological                     represents the best available scientific              includes Horsethief Creek and adjacent
                                               features essential to the conservation of               information. To delineate upland                      upland areas that do not contain
                                               the arroyo toad. Therefore, we removed                  habitat areas, we used a GIS-based                    breeding populations or breeding
                                               these areas from critical habitat. We did               modeling procedure. We determined                     habitat for the arroyo toad. The
                                               not remove all lands north of State                     that areas up to 82 ft (25 m) in elevation            commenter recommended revising the
                                               Route 76, as arroyo toads may access                    above the stream channel were most                    proposed designation at a minimum to
                                               these other areas via Horse Ranch Creek,                likely to contain the riparian and                    exclude the western half of Horsethief
                                               which flows underneath State Route 76                   upland habitat elements essential to                  Creek on Summit Valley Ranch and all
                                               and connects with the San Luis Rey                      arroyo toads. We truncated the upland                 land north of Highway 138.
                                               River.                                                  habitat delineation in flat areas at 4,921            Additionally, the developed homesite,
                                                  Comment 22: One commenter                            ft (1,500 m) from the stream channel                  stock pond, and grazing land fronting
                                               requested that we reexamine the portion                 based on known movement of arroyo                     the homesite should be excluded from
                                               of Unit 16 where we proposed critical                   toads if the 82-ft (25-m) elevation limit             critical habitat because they lack the
                                               habitat along Guejito Creek on the                      had not yet been reached at that point.               primary constituent elements for arroyo
                                               Rancho Guejito property. The                            These model parameters are based on                   toad habitat.
                                               commenter stated that we included                       the best scientific data available and are
                                               areas where the arroyo toad and the                                                                              Our Response: Justification of
                                                                                                       the same as those used in the 2004
                                               PCEs were absent, such as roads,                                                                              exclusion from critical habitat is not
                                                                                                       proposed critical habitat designation (69
                                               developed areas, and particular natural                 FR 23254; April 28, 2004) (see the                    based on conservation measures
                                               features (i.e., steep slopes), or where the             Criteria Used to Identify Critical                    provided by an HCP or other
                                               species status is uncertain. They                       Habitat section of this rule). Peer                   management plan but on how the
                                               recommended the following revisions:                    reviewers expressed support for our                   benefits of exclusion compare to the
                                               (1) Reduce potential adjacent upland                    methods (see Comment 1 above).                        benefits of inclusion. After considering
                                               habitat to 1,000 ft (305 m), (2) remove                    We do not agree that the lower 2.3 mi              the relevant impacts, we did not
                                               the lower 2.3 mi (10 km) reach of                       (10 km) reach of Guejito Creek does not               conclude that the benefits of excluding
                                               Guejito Creek that does not support                     contain any PCEs. This area provides                  lands owned by the Rancho Las Flores
                                               breeding activities and lacks PCEs, and                 stream channels and adjacent upland                   LLP in Subunit 22a outweigh the
                                               (3) remove the developed area north of                  habitat that allow movement to breeding               benefits of including those lands, and
                                               San Pasqual Valley Road.                                pools, foraging areas, overwintering                  the Secretary is declining to exercise his
                                                  Our Response: After determining the                  sites, and upstream and downstream                    discretion to exclude the Rancho Las
                                               criteria used to identify critical habitat,             dispersal for arroyo toad dispersal (PCE              Flores property. Additionally, we did
                                               we made every effort to avoid developed                 4); therefore, it meets the definition of             not conclude that the benefits of
                                               areas such as lands covered by                          arroyo toad critical habitat.                         excluding the Summit Valley Ranch
                                               buildings, pavement, and other                             Comment 23: Two commenters                         property in Subunit 22a outweigh the
                                               structures because such lands lack PCEs                 opposed the designation of critical                   benefits of including those lands, and
                                               for the arroyo toad. We did not                         habitat in Subunit 22a. One commenter                 the Secretary is declining to exercise his
                                               designate some areas if habitat was                     argued that the Rancho Las Flores                     discretion to exclude the Summit Valley
                                               highly degraded and not likely                          Planned Community (Rancho Las                         Ranch property. The portion of Little
                                               restorable, nor did we designate areas                  Flores) land in Summit Valley, San                    Horsethief Creek that runs through
                                               that were highly fragmented or isolated.                Bernardino County, which surrounds                    Summit Valley Ranch contains the
                                               Such areas provide little or no long-term               the West Fork of the Mojave River,                    physical and biological features
                                               conservation value and do not support                   should be excluded from the final                     essential to the conservation of the
                                               the physical and biological features                    revised critical habitat designation. The             arroyo toad. The area supports
                                               essential to the conservation of the                    commenter pointed out that many acres                 important breeding habitat and a robust
                                               arroyo toad. Agricultural lands may                     in this area will be designated as open               breeding population of arroyo toads.
                                               have been included if they were within                  space and are protected by a                          However, we agree that the lands north
                                               areas identified as necessary for                       conservation easement to protect the                  of State Route 138 do not contain the
                                               dispersal or connectivity between                       toad. They also stated that two                       primary constituent elements of critical
                                               known occurrences. However, we                          biological opinions have been issued for              habitat, and we removed those lands
                                               avoided known areas of intensive                        projects in this area and a habitat                   from this final revised critical habitat
                                               agriculture that lacked the PCEs for the                conservation plan (HCP) is being                      designation (see the Summary of
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                                               arroyo toad. The scale of the maps we                   developed to cover lands not addressed                Changes from the 2009 Proposed Rule
                                               prepared under the parameters for                       in the biological opinions. Additionally,             to Revise Critical Habitat section). The
                                               publication within the Code of Federal                  they expressed concern that new                       Secretary’s determination not to
                                               Regulations may not reflect the                         housing, jobs, and other social benefits              exercise his discretion to exclude areas
                                               exclusion of such developed lands. Any                  provided by the planned community                     from critical habitat designation under
                                               such lands inadvertently left inside                    may be jeopardized or constrained by a                section 4(b)(2) of the Act is committed
                                               critical habitat boundaries shown on the                critical habitat designation.                         to agency discretion by law and is not


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                                               reviewable (see Home Builders Ass’n of                  County MSHCP, San Diego MSCP (and                     Preservation Alliance et al. v. U.S. Dept.
                                               N. Cal. v. U.S. Fish & Wildlife Serv.,                  specifically the San Diego County                     of the Interior, 2010 U.S. Dist. LEXIS
                                               2006 U.S. Dist. LEXIS 80255 at *66 (E.D.                Subarea Plan under the MSCP), the                     84515 ** 36–38 (D.D.C. August 17,
                                               Cal. Nov. 2, 2006); Cape Hatteras Access                Orange County Southern Subregion                      2010)). The Secretary is exercising his
                                               Preservation Alliance et al. v. U.S. Dept.              HCP, and the Orange County Central-                   discretion to exclude a portion of lands
                                               of the Interior, 2010 U.S. Dist. LEXIS                  Coastal NCCP/HCP proposed revised                     covered by the Western Riverside
                                               84515 ** 36–38 (D.D.C. August 17,                       critical habitat is small in areas that are           County MSHCP, Orange County
                                               2010)).                                                 currently conserved; therefore, the                   Southern Subregion HCP, and Orange
                                                                                                       benefits of inclusion are relatively                  County Central-Coastal NCCP/HCP.
                                               Comments Related to HCPs, NCCP
                                                                                                       minor in these areas. Additionally, we                Please refer to the Exclusions Under
                                               Program, and Section 7
                                                                                                       made the determination that lands                     Section 4(b)(2) of the Act—Other
                                                 Comment 24: One commenter stated                      within the jurisdiction of the Coachella              Relevant Impacts section for further
                                               that HCPs, which allow for the ‘‘take’’ of              Valley MSHCP do not meet the                          discussion of these areas.
                                               species, are not a substitute for the                   definition of critical habitat; therefore,               Comment 25: One commenter stated
                                               designation of critical habitat, which                  this HCP is not addressed in this final               that most of the lands proposed for
                                               focuses on the recovery of species. The                 rule (see Summary of Changes from the                 arroyo toad revised critical habitat
                                               commenter argued that excluding areas                   2009 Proposed Rule to Revise Critical                 designation in San Diego County
                                               of essential habitat from critical habitat              Habitat section).                                     (County) are unincorporated and
                                               designation that are covered or will be                                                                       therefore under the jurisdiction of the
                                               covered in the future by other                             When we issued the incidental take
                                                                                                                                                             County. These areas are subject to the
                                               management or conservation plans is                     permits for these regional HCPs, we
                                                                                                                                                             County’s ongoing regional habitat
                                               unreasonable and unjustified. They                      believed they would address
                                                                                                                                                             conservation planning efforts under the
                                               were opposed to any exclusion of areas                  conservation issues from a coordinated,
                                                                                                                                                             Multiple Species Conservation Program
                                               that may be covered by other                            integrated perspective rather than a
                                                                                                                                                             (MSCP). While the MSCP for South San
                                               management plans, specifically the                      piecemeal, project-by-project approach
                                                                                                                                                             Diego County has been adopted and the
                                               Western Riverside County MSHCP, San                     (as would occur under sections 7 and 9
                                                                                                                                                             Service has issued the incidental take
                                               Diego MSCP (and specifically the San                    of the Act and smaller HCPs), and
                                                                                                                                                             permit, the MSCP for North San Diego
                                               Diego County Subarea Plan under the                     provide adequate protection for the
                                                                                                                                                             County will not be finalized until 2011,
                                               MSCP), Coachella Valley MSHCP, the                      arroyo toad and its habitat within plan               and the MSCP for East San Diego
                                               Orange County Southern Subregion                        area boundaries. We believe these five                County is still in development.
                                               HCP, and Orange County Central-                         regional HCPs (including the Coachella                Regardless, the commenter stated that
                                               Coastal NCCP/HCP.                                       Valley MSHCP, which addresses arroyo                  the Service should exclude all arroyo
                                                 Our Response: With regard to the                      toad management although critical                     toad critical habitat units and subunits
                                               commenter’s concerns that lands owned                   habitat does not occur within the                     within all three MSCP areas from the
                                               or under the jurisdiction of the Western                boundaries of that plan; see Summary of               final revised critical habitat designation,
                                               Riverside County MSHCP, San Diego                       Changes from the 2009 Proposed Rule                   based on the following rationale: (1)
                                               MSCP (and specifically the San Diego                    to Revise Critical Habitat section)                   HCPs incorporate management
                                               County Subarea Plan under the MSCP),                    incorporate ongoing management and                    measures and protection for conserved
                                               the Orange County Southern Subregion                    protection that will benefit the long-                lands designed to restore and enhance
                                               HCP, and the Orange County Central-                     term conservation of arroyo toads and                 their value as habitat; (2) costs would be
                                               Coastal NCCP/HCP should not be                          their habitat. We continue to monitor                 increased and projects delayed by
                                               excluded because these HCPs may not                     their implementation and the species’                 section 7 consultations, prompted
                                               adequately provide for the recovery of                  status and have not altered our                       primarily by the presence of critical
                                               the species, the adequacy of an HCP to                  determination. We have not determined                 habitat covering activities already
                                               provide for the survival and recovery of                the Western Riverside County MSHCP,                   covered by HCPs; (3) designating critical
                                               the species is not the basis for an                     San Diego MSCP (and specifically the                  habitat over areas already covered by
                                               exclusion determination. Exclusion is                   San Diego County Subarea Plan under                   HCPs implies that the HCPs are not
                                               based on our determination that the                     the MSCP), the Orange County Southern                 providing adequate protection for the
                                               benefits of exclusion outweigh the                      Subregion HCP, and Orange County                      covered species, and could provide an
                                               benefits of inclusion, and that exclusion               Central-Coastal NCCP/HCP are being                    avenue for legal challenges against HCPs
                                               of an area will not result in extinction                improperly implemented, nor that a                    themselves; and (4) regional HCPs take
                                               of a species. Conservation benefits                     return to the project-by-project approach             many years to develop and require
                                               provided by existing HCPs are not                       as otherwise occurs under the Act                     substantial investment of time and
                                               considered a benefit of exclusion                       would achieve greater long-term                       resources by Federal, State, and local
                                               because they would remain in place                      conservation than continued protection                governments; private landowners; and
                                               regardless of critical habitat designation;             under these regional HCPs. Nonetheless,               conservation organizations. The
                                               however, they do minimize the benefits                  the Secretary is declining to exercise his            commenter stated that the resulting plan
                                               of inclusion to the extent that they are                discretion to exclude lands owned by or               provides a preserve system and
                                               redundant with protection measures                      under the jurisdiction of the permittees              management measures that protect
                                               that would be provided by a critical                    of the San Diego MSCP. The Secretary’s                covered species and their habitat over
                                               habitat designation. Any remaining                      determination not to exercise his                     the long term and provides the
                                               conservation benefits resulting from                    discretion to exclude areas from critical             opportunity to implement measures to
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                                               critical habitat inclusion are also limited             habitat designation under section 4(b)(2)             support the recovery of listed species on
                                               to projects where a Federal nexus                       of the Act is committed to agency                     a broad and meaningful scale.
                                               applies. As described in the Exclusions                 discretion by law and is not reviewable                  Our Response: Justification of
                                               Under Section 4(b)(2) of the Act section                (see Home Builders Ass’n of N. Cal. v.                exclusion from critical habitat is not
                                               above, the likelihood of a project with                 U.S. Fish & Wildlife Serv., 2006 U.S.                 based on conservation measures
                                               a Federal nexus occurring on lands                      Dist. LEXIS 80255 at *66 (E.D. Cal. Nov.              provided by an HCP but on how the
                                               covered by the Western Riverside                        2, 2006); Cape Hatteras Access                        benefits of exclusion compare to the


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                                               benefits of inclusion. After considering                the Western Riverside County MSHCP                    NCCP/HCP) and the North Ranch Policy
                                               the relevant impacts, we did not                        should be excluded because the HCP                    Plan Area (NRPPA). The commenter
                                               conclude that the benefits of excluding                 adequately provides for the survival and              further stated that although
                                               lands covered by the County of San                      recovery of the species, the adequacy of              approximately 9 percent (identified by
                                               Diego Subarea Plan under the MSCP                       an HCP to provide for the survival and                the commenter as land encompassing
                                               outweigh the benefits of including those                recovery of the species is not the basis              Santiago Creek from the confluence
                                               lands (Subunits 16a, 17b, 17d, 18a, and                 for an exclusion determination.                       with Silverado Creek downstream to
                                               19b), and the Secretary is declining to                 Exclusion is based on our determination               Irvine Lake) is not covered by either
                                               exercise his discretion to exclude lands                that the benefits of exclusion outweigh               program, this land is unoccupied by
                                               in these areas. Additionally, the North                 the benefits of inclusion, and that                   arroyo toads and therefore is not
                                               County MSCP and the East County                         exclusion of an area will not result in               essential to conservation of this species.
                                               MSCP under which conservation                           extinction of a species, which is a more              Finally, the commenter identified
                                               measures will be assured future                         complex analysis process than                         during the second comment period that
                                               implementation are not yet finalized;                   described by the comments above. We                   the area considered for exclusion within
                                               therefore, we have not concluded that                   found the benefits of exclusion of lands              Unit 8 was changed from 1,497 ac (606
                                               the benefits of exclusion outweigh the                  covered by the Western Riverside                      ha) in the 2009 proposed revised rule
                                               benefits of inclusion. There are potential              County MSHCP that are conserved and                   (74 FR 52630, 52643; October 13, 2009)
                                               significant benefits to the conservation                managed are greater than the benefits of              to 647 ac (262 ha) in the 2010 revisions
                                               of arroyo toad that may come from the                   including these lands in the critical                 to the proposed rule that were outlined
                                               designation of critical habitat on these                habitat designation in Units 9 and 13                 in the document making available the
                                               lands (Subunits 11b, 12a, 12b, 13a, 13b,                (see the Exclusions Under Section                     DEA (75 FR 37365; June 29, 2010). The
                                               16a, 16d, 17a, 17b, 17d, 18a, 19a, 19b,                 4(b)(2) of the Act—Other Relevant                     commenter stated that this 850-ac (344-
                                               19c, 19d, 19e, and Units 14 and 15). The                Impacts—‘‘Western Riverside County                    ha) reduction is not explained, nor is it
                                               Secretary’s determination not to                        Multiple Species Habitat Conservation                 clear how this amount was determined
                                               exercise his discretion to exclude areas                Plan (Western Riverside County                        or where it lies within the unit.
                                               from critical habitat designation under                 MSHCP)’’ section above for a detailed                    Our Response: With regard to the
                                               section 4(b)(2) of the Act is committed                 discussion).                                          commenter’s belief that lands owned or
                                               to agency discretion by law and is not                     With regard to the commenters’ belief              under the jurisdiction of the Orange
                                               reviewable (see Home Builders Ass’n of                  that critical habitat should not be                   County Central-Coastal NCCP/HCP
                                               N. Cal. v. U.S. Fish & Wildlife Serv.,                  designated in the Western Riverside                   should be excluded because the HCP
                                               2006 U.S. Dist. LEXIS 80255 at *66 (E.D.                County MSHCP Plan Area based on                       adequately provides for the survival and
                                               Cal. Nov. 2, 2006); Cape Hatteras Access                language in section 6.9 of the HCP and                recovery of the species, the adequacy of
                                               Preservation Alliance et al. v. U.S. Dept.              the associated Implementing                           an HCP to provide for the survival and
                                               of the Interior, 2010 U.S. Dist. LEXIS                  Agreement, section 14.10 of the                       recovery of the species is not the basis
                                               84515 ** 36–38 (D.D.C. August 17,                       Implementing Agreement does not                       for an exclusion determination.
                                               2010)).                                                 preclude critical habitat designation                 Exclusion is based on our determination
                                                  Comment 26: Two commenters                           within the plan area (Dudek and                       that the benefits of exclusion outweigh
                                               argued for the exclusion of lands in                    Associates 2003, pp. 51–52). Consistent               the benefits of inclusion, and that
                                               Units 9 and 13 from the final revised                   with our commitment under the                         exclusion of an area will not result in
                                               critical habitat designation that are                   Implementing Agreement, and after                     extinction of a species, which is a more
                                               owned by or under the jurisdiction of                   public review and comment on the                      complex analysis process than
                                               the Western Riverside County MSHCP                      proposed revision to critical habitat for             described by the comments above. We
                                               permittees because the HCP already                      the arroyo toad, we determined through                found the benefits of exclusion of
                                               adequately provides for the survival and                our analysis under section 4(b)(2) of the             conserved and managed lands covered
                                               recovery of the species, and under                      Act that the maximum extent of                        by the Orange County Central-Coastal
                                               section 6.9 of the HCP and section 14.10                allowable exclusions under the Western                NCCP/HCP and NRPPA to be greater
                                               of the associated Implementing                          Riverside County MSHCP was limited to                 than the minimal benefits of including
                                               Agreement, no critical habitat should be                the exclusion of conserved and managed                these lands in the critical habitat
                                               designated in the HCP Plan Area. The                    lands owned by or under the                           designation in Unit 8 (see Exclusions
                                               commenters argued that designating                      jurisdiction of the permittees of the                 Under Section 4(b)(2) of the Act—Other
                                               critical habitat within the Western                     Western Riverside County MSHCP in                     Relevant Impacts—‘‘Orange County
                                               Riverside County MSHCP Plan                             Units 9 and 13 (see the Exclusions                    Central-Coastal Subregional Habitat
                                               boundaries would create duplicative                     Under Section 4(b)(2) of the Act—Other                Conservation Plan/Natural Community
                                               regulatory efforts without any additional               Relevant Impacts—‘‘Western Riverside                  Conservation Plan (Orange County
                                               benefits to the species and would                       County Multiple Species Habitat                       Central–Coastal NCCP/HCP)’’ section
                                               ultimately dissuade future habitat                      Conservation Plan (Western Riverside                  above for a detailed discussion).
                                               conservation plan creation. The                         County MSHCP)’’ section above for a                      Based on the commenter’s concerns
                                               commenters argued further that                          detailed discussion).                                 with regard to the Santiago Creek area,
                                               federally owned lands, not just privately                 Comment 27: One commenter                           we reevaluated survey data in our files
                                               owned lands, in each unit within the                    believed the Service should exclude the               from 2005 (GLA 2005). We agree that
                                               MSHCP should also be excluded                           entire 2,182 ac (883 ha) of proposed                  approximately 179 ac (72 ha)
                                               because the Implementing Agreement                      Unit 8 from the final revised critical                specifically encompassing Santiago
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                                               has already taken Federal lands into                    habitat because potential risks to the                Creek from just below the confluence
                                               account and therefore adequately                        arroyo toad have been sufficiently                    with Black Star Creek downstream to
                                               provides for the survival and recovery of               reduced or even eliminated through                    Irvine Lake do not contain the PCEs,
                                               the species on these lands.                             participation in the Orange County                    and therefore we removed this area from
                                                  Our Response: With regard to the                     Central-Coastal Natural Community                     this final revised critical habitat
                                               commenters’ assertions that lands                       Conservation Plan/Habitat Conservation                designation. We determined that this
                                               owned by or under the jurisdiction of                   Plan (Orange County Central-Coastal                   area is unsuitable for arroyo toads


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                                               because as water from Irvine Lake                       critical habitat designation in Unit 8                The Secretary’s determination not to
                                               frequently backs up into this area and                  (see Exclusions Under Section 4(b)(2) of              exercise his discretion to exclude areas
                                               creates conditions favorable for arroyo                 the Act—Other Relevant Impacts—                       from critical habitat designation under
                                               toad predators. High numbers and                        ‘‘Orange County Central-Coastal                       section 4(b)(2) of the Act is committed
                                               distribution of these predators, such as                Subregional Habitat Conservation Plan/                to agency discretion by law and is not
                                               bullfrog, crayfish (Procambarus clarkia),               Natural Community Conservation Plan                   reviewable (see Home Builders Ass’n of
                                               and prickly sculpin (Cottus asper), were                (Orange County Central-Coastal NCCP/                  N. Cal. v. U.S. Fish & Wildlife Serv.,
                                               detected at this location (GLA 2005).                   HCP)’’ section above for a detailed                   2006 U.S. Dist. LEXIS 80255 at *66 (E.D.
                                               With regard to the remaining portion of                 discussion).                                          Cal. Nov. 2, 2006); Cape Hatteras Access
                                               lands in Unit 8 encompassing Black Star                    Comment 28: One commenter stated                   Preservation Alliance et al. v. U.S. Dept.
                                               Creek and Santiago Creek upstream of                    that lands owned by the Sweetwater                    of the Interior, 2010 U.S. Dist. LEXIS
                                               the confluence with Black Star Creek,                   Authority, Helix Water District, and
                                                                                                                                                             84515 ** 36–38 (D.D.C. August 17,
                                               the best available scientific information               Padre Dam Municipal Water District in
                                                                                                                                                             2010)).
                                               indicates that these areas contain the                  San Diego County (portions of Subunits
                                               physical and biological features                        18a and 18c) should be excluded from                     Comment 29: One commenter
                                               essential to conservation of this species.              designated critical habitat for the arroyo            requested that the Southern Subregion
                                               However, some of these areas are                        toad because existing management and                  NCCP/HCP (referred to as the Orange
                                               covered by the Orange County Central-                   protection measures adequately                        County Southern Subregion HCP in the
                                               Coastal NCCP/HCP and NRPPA, and we                      conserve the habitat and those measures               proposed revised critical habitat
                                               determined that the benefits of                         are likely to continue in the foreseeable             designation and this final rule) be
                                               exclusion outweigh the benefits of                      future under the pending draft Joint                  excluded from the final revised critical
                                               inclusion in this final revised critical                Water Agencies Natural Community                      habitat designation for the following
                                               habitat designation in these areas.                     Conservation Plan/Habitat Conservation                reasons: (1) The plan benefits the arroyo
                                               Therefore, the Secretary is exercising his              Plan (JWA NCCP/HCP) anticipated to be                 toad through conservation of breeding
                                               discretion to exclude these areas from                  completed within the next year.                       locations, protection of upland foraging
                                               this final rule.                                           Our Response: Exclusions under                     and aestivation habitats, and
                                                  Regarding the 9 percent, now 4                       section 4(b)(2) of the Act are based on               management actions; (2) the plan
                                               percent, of lands covered by the Orange                 whether the benefits of exclusion                     provides assurances that the
                                               County Central-Coastal NCCP/HCP and                     outweigh the benefits of inclusion.                   conservation strategies and actions will
                                               NRPPA that are not conserved, we do                     Conservation benefits provided by                     be implemented and effective; and (3)
                                               not agree that these areas do not meet                  existing HCPs are not considered a                    the Service has stated its intention to
                                               the definition of critical habitat. We also             benefit of exclusion because they would               exclude habitat within this plan area
                                               do not agree that the remaining areas of                remain in place regardless of critical                from any revision to an existing critical
                                               Unit 8 (i.e., 685 ac (277 ha) of Forest                 habitat designation; however, they do                 habitat designation as long as the
                                               Service land) not covered by the HCP do                 minimize the benefits of inclusion to the             Conservation Strategy is being properly
                                               not meet the definition of critical                     extent that they are redundant with                   implemented.
                                               habitat, and the Secretary is not                       protection measures that would be
                                                                                                       provided by a critical habitat                           Our Response: The Secretary is
                                               exercising his discretion to exclude
                                                                                                       designation. We reviewed the draft JWA                exercising his discretion to exclude
                                               these areas from this final revised
                                                                                                       NCCP/HCP referenced by the                            certain lands within the Orange County
                                               critical habitat designation. The
                                               Secretary’s determination not to                        commenter and determined that the                     Southern Subregion HCP plan area from
                                               exercise his discretion to exclude areas                existing management and protection                    this final revised critical habitat
                                               from critical habitat designation under                 measures do provide beneficial                        designation (see ‘‘Orange County
                                               section 4(b)(2) of the Act is committed                 conservation measures for the arroyo                  Southern Subregion Habitat
                                               to agency discretion by law and is not                  toad that are redundant with                          Conservation Plan (Orange County
                                               reviewable (see Home Builders Ass’n of                  conservation measures provided by                     Southern Subregion HCP)’’ section
                                               N. Cal. v. U.S. Fish & Wildlife Serv.,                  critical habitat designation, and                     under the Exclusions Under Section
                                               2006 U.S. Dist. LEXIS 80255 at *66 (E.D.                therefore would reduce the benefits of                4(b)(2) of the Act—Other Relevant
                                               Cal. Nov. 2, 2006); Cape Hatteras Access                inclusion in critical habitat if                      Impacts section above). With regard to
                                               Preservation Alliance et al. v. U.S. Dept.              implementation were assured into the                  the commenter’s assertions that lands
                                               of the Interior, 2010 U.S. Dist. LEXIS                  future. When considering the benefits of              owned by or under the jurisdiction of
                                               84515 ** 36–38 (D.D.C. August 17,                       exclusion, we consider a variety of                   the Orange County Southern Subregion
                                               2010)).                                                 factors, including, but not limited to,               HCP should be excluded because the
                                                  With regard to the commenter’s                       whether the plan is finalized (i.e.,                  HCP adequately provides for the
                                               concern that the area considered for                    approved by all parties) and whether                  conservation of the species, the
                                               exclusion was reduced by 850-ac (344-                   there is a reasonable expectation that                adequacy of an HCP to provide for the
                                               ha) in the document making available                    conservation management strategies and                conservation of the species is not the
                                               the DEA (75 FR 37365; June 29, 2010),                   actions will be implemented into the                  basis for an exclusion determination.
                                               we apologize for this confusion, as the                 future (see Exclusions Under Section                  Exclusion is based on our determination
                                               acreage printed in the table was in error.              4(b)(2) of the Act section above for                  that the benefits of exclusion outweigh
                                               The area considered for exclusion as                    further discussion). After considering                the benefits of inclusion, and that
                                               noticed to the public in the 2009                       the relevant impacts, we have not                     exclusion of an area will not result in
                                               proposed revised rule (74 FR 52630,                     concluded that the benefits of exclusion              extinction of a species. We found the
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                                               52643; October 13, 2009) is the correct                 outweigh the benefits of inclusion for                benefits of exclusion of lands covered
                                               acreage considered for exclusion under                  lands owned by the Sweetwater                         by the Orange County Southern
                                               section 4(b)(2) of the Act. Additionally                Authority, Helix Water District, and                  Subregion HCP to be greater than the
                                               (as noted above), we found the benefits                 Padre Dam Municipal Water District,                   minimal benefits of including these
                                               of exclusion of lands covered by the                    and the Secretary is not exercising his               lands in the critical habitat designation
                                               NRPPA to be greater than the minimal                    discretion to exclude these areas from                in Subunits 10a, 10b, and 11a (see
                                               benefits of including these lands in the                arroyo toad critical habitat designation.             ‘‘Orange County Southern Subregion


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                                               Habitat Conservation Plan (Orange                       readiness, which has a serious impact                 Training Site Warner Springs and Camp
                                               County Southern Subregion HCP)’’                        on personnel readiness and national                   Morena from this final revised critical
                                               section under the Exclusions Under                      security, resulting in lower numbers of               habitat designation based on impacts to
                                               Section 4(b)(2) of the Act—Other                        qualified personnel or skills needed for              national security (see Exclusions Under
                                               Relevant Impacts section above for a                    the Navy’s national security mission.                 Section 4(b)(2) of the Act—Impacts to
                                               detailed discussion).                                      The Navy stated that since the Remote              National Security section above). We
                                                                                                       Training Site Warner Springs and Camp                 appreciate all of the Navy’s efforts to
                                               Comments Related to Military Lands                      Morena are part of Naval Base                         conserve the arroyo toad and its habitat
                                                  Comment 30: The U.S. Navy stated                     Coronado, they are included in a 2009                 on its lands and will continue to work
                                               that their facility, Camp Morena, lacks                 update to the Naval Base Coronado                     cooperatively with them in the future
                                               PCEs for arroyo toad and that no                        INRMP, which identifies measures that                 for resource conservation.
                                               potentially suitable breeding habitat                   provide conservation benefits to the
                                               occurs on the property. Although                        species at Remote Training Site Warner                Comments Related to U.S. Forest
                                               potential upland foraging habitat occurs                Springs. The update to the INRMP was                  Service Lands on the Angeles National
                                               on the property, the U.S. Navy stated                   based on focused surveys for the arroyo               Forest, Cleveland National Forest, Los
                                               that the suitability of the habitat is low              toad that were conducted in 2006 to                   Padres National Forest, and San
                                               based on current and past human use of                  support the Biological Assessment for                 Bernardino National Forest
                                               the site, compacted soils throughout the                Expansion and Realignment of Training                   Comment 32: Two national forests
                                               site, and low percentage of sand in the                 Areas at Remote Training Site Warner                  agreed with the proposed revised
                                               soil.                                                   Springs (March 2008). The INRMP                       critical habitat designation:
                                                  Our Response: The Navy’s statement                   revision, expected to be completed in                   (1) Angeles National Forest agreed
                                               was based on a draft 2009 biological                    2011, will incorporate all coordinated                with our description of the biology,
                                               inventory that was not available for our                updates and conservation protocols                    habitat, and population status of the
                                               review. Through our original analysis,                  established by new biological opinions                arroyo toad; and
                                               we believe that this area in question                   for species found on Naval Base                         (2) Los Padres National Forest agreed
                                               contains the PCEs and provides suitable                 Coronado, and it will address natural                 with the proposed designation of critical
                                               habitat for arroyo toad. Without                        resource management of the newly                      habitat in Unit 3, Subunit 5a, and
                                               additional data, we do not have a basis                 acquired Camp Morena property.                        Subunit 5b because all of these areas are
                                               to reevaluate the area. Regardless, we                     The second commenter, Cleveland                    occupied by arroyo toads and contain
                                               determined that the benefits of                         National Forest, agreed with the U.S.                 essential habitat.
                                               exclusion outweigh the benefits of                      Navy that critical habitat for the arroyo               Our Response: We appreciate the
                                               inclusion under section 4(b)(2) of the                  toad should not be proposed along the                 support and look forward to working
                                               Act for lands that overlap with Camp                    upper San Luis River at the Remote                    with the U.S. Forest Service in the
                                               Morena (Unit 19); therefore, these lands                Training Site Warner Springs in Unit 15               future on continued conservation efforts
                                               are not included in this critical habitat               because it is covered by the Naval Base               for the arroyo toad.
                                               designation (see Exclusions Under                       Coronado INRMP; it serves as the west                   Comment 33: Two national forests
                                               Section 4(b)(2) of the Act—Impacts to                   coast’s principal venue for SERE                      stated that the proposed revised critical
                                               National Security section).                             (Survival, Evasion, Resistance, and                   habitat designation will not negatively
                                                  Comment 31: Two Federal agencies                     Escape) training, and the critical habitat            impact current National Forest Land
                                               commented on the relationship of                        designation would result in                           Management planning:
                                               critical habitat designation for the                    unacceptable delays to future proposed                  (1) Angeles National Forest stated that
                                               arroyo toad and military lands. The first               training activities or construction of                the critical habitat designation would
                                               commenter, the U.S. Navy, agreed with                   facilities needed to support mission                  not serve as an impediment for
                                               the exemption of the Fallbrook Naval                    critical training.                                    completion of the Tehachapi Renewable
                                               Weapons Station from critical habitat                      Our Response: In our section 4(b)(2)               Transmission Project or be cost
                                               designation based on the existing 2006                  exclusion analyses for Remote Training                prohibitive, although some design
                                               Service approved INRMP, which                           Site Warner Springs and Camp Morena,                  modification of the project may occur to
                                               provides conservation benefits to the                   we considered several factors including               reduce construction impacts to arroyo
                                               arroyo toad. The Navy also believed                     impacts to national security associated               toad designated critical habitat; and
                                               additional Navy facilities, the Remote                  with a critical habitat designation as                  (2) Los Padres National Forest stated
                                               Training Site Warner Springs and Camp                   described by the Navy, existing                       that redesignating Unit 3, Subunit 5a,
                                               Morena, should be excluded from the                     consultations, and conservation                       and Subunit 5b will not likely require
                                               final revised critical habitat designation.             measures in place at Naval Base                       a change of current management actions
                                               They contended that additional                          Coronado facilities that benefit the                  because the Los Padres National Forest
                                               regulatory requirements imposed by the                  arroyo toad. As stated in section 4(b)(2)             considers protection of the arroyo toad
                                               critical habitat designation for the                    of the Act, the Secretary may exclude                 and its habitat an important part of their
                                               arroyo toad may: (1) Restrict or prohibit               any portion of such an area from the                  land management plan.
                                               implementation of required training                     critical habitat if the benefits of such                Our Response: Again, we appreciate
                                               (such as mission planning capabilities,                 exclusion outweigh the benefits of                    the support and look forward to working
                                               more frequent training, and construction                specifying the area as part of the critical           with the U.S. Forest Service in the
                                               of new facilities); (2) result in                       habitat. The Secretary shall not exclude              future on continued conservation efforts
                                               unacceptable delays to construction of                  any such area if, based on the best                   for the arroyo toad.
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                                               facilities needed to support mission                    scientific and commercial data                          Comment 34: Two national forests
                                               critical training (such as unique warfare               available, he determines that the failure             provided information on threats to the
                                               skills available to soldiers at Remote                  to designate that area as critical habitat            arroyo toad:
                                               Training Site Warner Springs and Camp                   will result in the extinction of the                    (1) Angeles National Forest stated that
                                               Morena); and (3) cause delays in                        species concerned. The Secretary is                   the Big Tujunga locality of arroyo toads
                                               construction of facilities or training                  exercising his discretion to exclude all              (Unit 7) is the only one where public
                                               initiatives that support operational                    training lands associated with Remote                 access is not restricted, is in close


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                                               proximity to a regularly traveled road                  receive enough information to support                 population of arroyo toads on the San
                                               that can be easily accessed by visitors,                revisions to our critical habitat                     Jacinto Ranger District.
                                               and therefore is at an elevated risk of                 designation in most of these areas.                     Our Response: These areas were
                                               impacts from human activities;                          Regarding the suggestion to add San                   included in our proposed revised
                                                  (2) Angeles National Forest provided                 Mateo Creek between MCB Camp                          critical habitat rule (74 FR 52612;
                                               updated information on effects of the                   Pendleton and Tenaja Falls in Subunit                 October 13, 2009) and are included in
                                               Station Fire to Unit 7, Subunit 6a, and                 11b to the critical habitat designation,              this final revised critical habitat
                                               Unit 21; and                                            we reevaluated survey data in our files               designation.
                                                  (3) Cleveland National Forest stated                 and included this area in the proposed                  Comment 38: San Bernardino
                                               that regarding Subunits 19c and 19d,                    revised critical habitat as noticed in the            National Forest recommended re-
                                               there is no authorized grazing along the                document making available the DEA (75                 examining the species identification for
                                               portions of Pine Creek within proposed                  FR 37358; June 29, 2010). For more                    Unit 23.
                                               critical habitat, which has been in effect              information see the Summary of                          Our Response: Following examination
                                               since 1998 for the lower portion of Pine                Changes From the 2009 Proposed Rule                   of data used to map Unit 23 in the
                                               Creek (south of Old Highway 80), and                    to Revise Critical Habitat section.                   proposed rule and discussions with
                                               since 2007 for the upper portion of Pine                   Comment 36: Cleveland National                     species experts regarding identification
                                               Creek (north of Old Highway 80).                        Forest recommended removing the Oak                   records, we determined that these
                                                  Our Response: We appreciate these                    Grove administrative site in Subunit 13b              records are not arroyo toads and do not
                                               edit recommendations and have made                      from the final revised critical habitat               support a determination that this area
                                               changes to the unit descriptions in this                designation because most of the site is               meets the definition of critical habitat.
                                               final rule (see the Final Revised Critical              developed and heavily disturbed over                  Therefore, Unit 23 is not included in
                                               Habitat Designation section above).                     many years due to operation of the fire               this final revised critical habitat rule
                                                  Comment 35: Three national forests                   station and campground.                               (see the Summary of Changes From the
                                               recommended adding or removing areas
                                                                                                          Our Response: After determining the                2009 Proposed Rule to Revise Critical
                                               to the proposed revised critical habitat
                                                                                                       criteria used to identify critical habitat,           Habitat section).
                                               designation:
                                                                                                       we made every effort to avoid developed
                                                  (1) Angeles National Forest                                                                                Comments Related to Tribal Lands
                                                                                                       areas such as lands covered by
                                               recommended re-examining areas near
                                                                                                       buildings, pavement, and other                          Comment 39: The Barona Group of
                                               Lynx Gulch Road for consideration as
                                                                                                       structures because such lands lack PCEs               Capitan Grande Band of Mission
                                               critical habitat because there are verified
                                                                                                       for the arroyo toad. We did not                       Indians, Rincon Band of Luiseno  ˜
                                               records of arroyo toads from this area;
                                                  (2) Cleveland National Forest                        designate some areas if habitat was                   Mission Indians, and Viejas (Baron
                                               recommended adding San Mateo Creek                      highly degraded and not likely                        Long) Group of Capitan Grande Band of
                                               between Camp Pendleton and Tenaja                       restorable, nor did we designate areas                Mission Indians stated that designation
                                               Falls in Subunit 11b to the critical                    that were highly fragmented or isolated.              of critical habitat on reservation land
                                               habitat designation because the entire                  Such areas provide little or no long-term             undermines tribal sovereign
                                               stretch is occupied by arroyo toads;                    conservation value and do not support                 governmental authority and interferes
                                                  (3) San Bernardino National Forest                   the physical and biological features                  with the cooperative government-to-
                                               recommended including Little                            essential to the conservation of the                  government trust relationship between
                                               Horsethief Canyon, Horsethief Canyon,                   arroyo toad. The scale of the maps we                 the tribes and the United States.
                                               the Cleghorn arm of Silverwood Lake,                    prepared under the parameters for                       Our Response: We evaluated the
                                               Kinely Creek, Mojave River, and Deep                    publication within the Code of Federal                benefits of exclusion of all reservation
                                               Creek for at least 0.5 mi (km) of the                   Regulations may not reflect the                       lands from this final revised critical
                                               Mojave River below the Mojave spillway                  exclusion of such developed lands. Any                habitat designation. Maintaining and
                                               in Unit 22;                                             such lands inadvertently left inside                  fostering partnerships and good working
                                                  (4) San Bernardino National Forest                   critical habitat boundaries shown on the              relationships with tribes are benefits of
                                               recommended re-examining Cucamonga                      maps of the final revised critical habitat            exclusion and are supported by
                                               Canyon for consideration as critical                    (including the Oak Grove administrative               Secretarial Order 3206. Consistent with
                                               habitat because there are verified                      site in Subunit 13b) are excluded by text             Secretarial Order 3206 and Executive
                                               records of arroyo toads from this area                  in this rule and are not considered part              Order 13175, we also believe tribal
                                               within the last decade; and                             of this final revised critical habitat                lands are better managed under tribal
                                                  (5) Cleveland National Forest                        designation.                                          authorities, policies, and programs than
                                               recommended removing the following                         Comment 37: San Bernardino                         through Federal regulation wherever
                                               areas because they are headwaters that                  National Forest recommended including                 possible and practicable. We found the
                                               lack the PCEs of critical habitat for the               all sections of ‘‘currently excluded                  benefits of exclusion of tribal lands to be
                                               arroyo toad: Upper San Juan Creek from                  essential habitat’’ in the final revised              greater than the benefits of including
                                               just upstream of Lower San Juan Picnic                  critical habitat designation for Subunit              these lands in the critical habitat
                                               Area to the headwaters (Subunit 10a);                   9a that fall within the national forest               designation in Units 14, 16, 17, and 18
                                               Agua Caliente Creek (Unit 15);                          boundary along the South Fork San                     (see Exclusions Under Section 4(b)(2) of
                                               Temecula Creek from the intersection                    Jacinto River. Although none of these                 the Act—Tribal Lands section above for
                                               with Chihuahua to headwaters (Subunit                   sections are known to be occupied by                  a detailed discussion). Therefore, the
                                               13b); Viejas Creek from just above the                  arroyo toads, the area contains suitable              Secretary is exercising his discretion to
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                                               confluence with Sweetwater Creek to                     habitat for the species and should be                 exclude all tribal reservation lands from
                                               headwaters (Subunit 18a); and the                       managed as critical habitat, especially               this final revised critical habitat
                                               upper portion of Horsethief Canyon                      during times of climate change. San                   designation. We recognize and value our
                                               (Subunit 19d).                                          Bernardino National Forest further                    relationships with the tribes and will
                                                  Our Response: We considered the                      recommended including the area known                  continue to work cooperatively with
                                               suggested changes to this critical habitat              as the ‘‘Hixon trail area’’ in Subunit 9b             them to conserve federally listed species
                                               designation. However, we did not                        because it has the largest and only                   on their lands.


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                                                  Comment 40: The Pala Band of                         Therefore, the Secretary is exercising his            particular area in critical habitat.
                                                      ˜
                                               Luiseno Mission Indians and Sycuan                      discretion to exclude all tribal                      However, under section 4(b)(2) of the
                                               Band of the Kumeyaay Nation stated                      reservation lands from this final revised             Act, a determination that the benefits of
                                               that critical habitat designation—for the               critical habitat designation. See our                 exclusion outweigh the benefits of
                                               protection and management of a species                  response to Comment 39 above and                      inclusion, along with a determination
                                               that became scarce due to activities off                Exclusions Under Section 4(b)(2) of the               that exclusion would not result in the
                                               of a reservation—is unfair and                          Act—Tribal Lands section for more                     extinction of the species, must be made
                                               inequitable on a reservation. They stated               information regarding the exclusion                   before the Secretary determines whether
                                               that designation of critical habitat on a               process.                                              to exercise his discretion to exclude
                                               reservation creates a disproportionate                     Comment 41: The Pala Band of                       lands that meet the definition of critical
                                               economic and cultural impact on Native                         ˜
                                                                                                       Luiseno Mission Indians, Rincon Band                  habitat from a final critical habitat
                                               Americans because, unlike other lands                            ˜
                                                                                                       of Luiseno Mission Indians, and Sycuan                designation. In our analysis under
                                               within the region, opportunities for                    Band of the Kumeyaay Nation stated                    section 4(b)(2) of the Act, we
                                               relocation of projects are limited on a                 that they have demonstrated their                     determined that designating critical
                                               reservation. Additionally, the Pala Band                ability to manage natural resources                   habitat would likely provide regulatory
                                                         ˜
                                               of Luiseno Mission Indians, Rincon                      through their own management plans                    benefits under section 7(a) of the Act
                                                               ˜
                                               Band of Luiseno Mission Indians,                        and other conservation programs.                      that are not already provided (as a result
                                               Sycuan Band of the Kumeyaay Nation,                     Therefore, in lieu of critical habitat                of the listing of arroyo toad) by the
                                               and Viejas (Baron Long) Group of                        designation on their lands, we should                 combination of sections 7 and 9 of the
                                               Capitan Grande Band of Mission Indians                  defer to their programs to protect arroyo             Act and tribal regulations on
                                               stated that designation of critical habitat             toad habitat.                                         reservations (such as the Rincon
                                               on their lands would cause economic                        Our Response: We appreciate                        Reservation) where management plans
                                               hardship due to increased costs and                     receiving the information provided by                 are in place. We agree that educational
                                               delays associated with section 7                        the three tribes on their management                  benefits are small on lands controlled by
                                               consultations. Much of the activities on                plans and other conservation programs.                tribal governments (such as the Rincon
                                               reservations occur with Federal funds,                  In our analysis under section 4(b)(2) of              Reservation), as we believe our ongoing
                                               grants, or oversight; therefore, all these              the Act, we considered benefits of                    coordination with the Rincon Band of
                                               activities with Federal involvement in                  preserving the partnerships we have                          ˜
                                                                                                                                                             Luiseno Mission Indians should provide
                                               areas designated as critical habitat                    developed with the tribes, reinforcing                sufficient future education for this area.
                                               would require consultation under                        those relationships with ongoing                      As a result, the Secretary is exercising
                                               section 7 of the Act.                                   coordination on natural resource issues,              his discretion to exclude the Rincon
                                                  Our Response: Consistent with                        and fostering future partnerships and                 Reservation from this final revised
                                               Secretarial Order 3206, we recognize                    development of future management                      critical habitat designation (see
                                               that we must carry out our                              plans. These are benefits of exclusion                Exclusions Under Section 4(b)(2) of the
                                               responsibilities under the Act in a                     that, along with other benefits of                    Act—Tribal Lands section for more
                                               manner that harmonizes these duties                     exclusion, significantly outweigh the                 information regarding the tribal
                                               with the Federal trust responsibility to                benefits of inclusion, and we                         exclusions).
                                               the tribes and tribal sovereignty while                 determined that exclusion will not                       Comment 43: The Rincon Band of
                                               striving to ensure that Indian tribes do                result in the extinction of the species.                     ˜
                                                                                                                                                             Luiseno Mission Indians stated that
                                               not bear a disproportionate burden for                  Therefore, the Secretary is exercising his            designation of critical habitat would
                                               the conservation of species. Consistent                 discretion to exclude all tribal                      create a disincentive to develop HCPs
                                               with the Act and Secretarial Order 3206,                reservation lands from this final revised             and therefore recommended that we
                                               we also evaluated the economic impact                   critical habitat designation. We look                 exclude pending HCPs, including the
                                               of critical habitat designation on tribes.              forward to enhancing our government-                  Rincon HCP. They stated that the
                                               The final economic analysis (FEA)                       to-government relationship with the                   proposed designation on the Rincon
                                               indicated the proposed designation                      tribes, and providing technical                       Reservation poses substantial risks to
                                               would result in total costs of future                   assistance in the future on natural                   the Rincon HCP without affording the
                                               project modifications (including on-site                resource to these tribes and any other                arroyo toad any additional conservation
                                               set aside, ‘‘other’’ project modifications              tribes that do not currently have                     benefits by adding uncertainty to the
                                               and administrative costs) associated                    management plans in place. See                        process, increasing costs to plan
                                               with real estate development by tribes to               Exclusions Under Section 4(b)(2) of the               development and implementation, and
                                               be approximately $21 million under the                  Act—Tribal Lands section for more                     weakening stakeholder support.
                                               baseline scenario and $119 million                      information regarding the exclusion                      Our Response: Under section 4(b)(2)
                                               under the incremental scenario over the                 process.                                              of the Act, the Secretary may exercise
                                               next 25 years.                                             Comment 42: The Rincon Band of                     his discretion to exclude an area from
                                                  In our analysis under section 4(b)(2)                       ˜
                                                                                                       Luiseno Mission Indians stated that                   critical habitat if the benefits of
                                               of the Act, we considered benefits of                   designation of critical habitat on the                exclusion outweigh the benefits of
                                               preserving the partnerships we have                     Rincon Reservation affords no                         inclusion, provided the exclusion will
                                               developed with the tribes, reinforcing                  additional benefits to the species.                   not result in the extinction of the
                                               those relationships with ongoing                        Specifically, the tribe stated that any               species. Conservation benefits provided
                                               coordination on natural resource issues,                possible educational benefits or minor                by existing HCPs are not considered a
                                               and fostering future partnerships and                   protection during a section 7                         benefit of exclusion because they would
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                                               development of future management                        consultation are negligible.                          remain in place regardless of critical
                                               plans. These are benefits of exclusion                     Our Response: In our analysis under                habitat designation; however, they do
                                               that, along with other benefits of                      section 4(b)(2) of the Act, we considered             minimize the benefits of inclusion to the
                                               exclusion, significantly outweigh the                   educational benefits and benefits                     extent they are redundant with
                                               benefits of inclusion, and we                           provided by critical habitat under                    protection measures that would be
                                               determined that exclusion will not                      section 7(a) of the Act. These are                    provided by a critical habitat
                                               result in the extinction of the species.                considered to be benefits of including a              designation. We did not consider for


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                                               exclusion areas covered by the draft                    area and knowledge of the features of                 information regarding the exclusion
                                               Rincon HCP; however, the Secretary is                   upstream and downstream parcels,                      process.
                                               exercising his discretion to exclude the                rather than any direct, on-the-ground                   Comment 46: The Barona Group of
                                                                       ˜
                                               Rincon Band of Luiseno Mission                          observations. Based on an arroyo toad                 Capitan Grande Band of Mission Indians
                                               Indians reservation lands (see the                      habitat assessment of the area submitted              and Viejas (Baron Long) Group of
                                               Exclusions Under Section 4(b)(2) of the                 by both tribes (HELIX 2009, pp. 1–6),                 Capitan Grande Band of Mission Indians
                                               Act—Tribal Lands section for more                       they stated that only about half of the               stated that habitat on the Capitan
                                               information regarding the tribal                        areas proposed contain suitable                       Grande Reservation may not be
                                               exclusions).                                            breeding habitat, and therefore the rest              occupied by arroyo toad because there
                                                  Comment 44: The Barona Group of                      of the area does not contain suitable                 are no occupancy records of arroyo toad
                                               Capitan Grande Band of Mission Indians                  arroyo toad habitat.                                  on the reservation. Additionally, the
                                               and Viejas (Baron Long) Group of                           Our Response: To determine the                     Barona Group of Capitan Grande Band
                                               Capitan Grande Band of Mission                          extent of suitable arroyo toad habitat,               of Mission Indians stated that although
                                               Indians, which jointly manage the                       we used spatial data on stream gradients              there are occupancy records of arroyo
                                               Capitan Grande Band of Diegueno                         with grades less than 6 percent, aerial               toad near the reservation, the records
                                               Mission Indians Reservation (Capitan                    photography, surveys of habitat                       are either more than 6 years old or more
                                               Grande Reservation), stated that the                    suitability, and site visits. Additionally,           than 2 mi (0.8 km) upstream; therefore,
                                               reservation is not used for residential or              we included higher gradient areas                     habitat on the reservation likely does
                                               development purposes. The two tribes                    between breeding habitat because these                not provide connectivity between arroyo
                                               prevent use by outside parties, and only                areas are used by toads during the non-               toad observations and should not be
                                               tribal members can use the reservation                  breeding period and allow toads to                    designated as critical habitat.
                                               for hunting and cultural purposes. The                  disperse between breeding areas. To                     Our Response: Section 4(b) of the Act
                                               tribes further stated that they are not                 delineate upland habitat areas, we used               requires we designate critical habitat on
                                               planning to change their procedures for                 a GIS-based modeling procedure to                     the basis of the best scientific and
                                               controlling access to the reservation and               identify alluvial terraces, valley                    commercial data available. We believe
                                               protecting its resources. Finally, the                  bottomlands, and upland habitats                      our proposed revisions to critical habitat
                                               tribes intend to work cooperatively with                adjacent to stream reaches occupied by                were supported by sufficient data that
                                               us to protect arroyo toad habitat on the                the arroyo toad. These model                          represent the best available scientific
                                               reservation if needed; therefore, the                   parameters are based on the best                      information. These data indicate that
                                               reservation should be excluded from                     scientific data available and are the                 habitat has not changed since
                                               critical habitat designation.                           same as those used in the 2004                        occupancy records were collected on
                                                  Our Response: We appreciate the                      proposed critical habitat designation (69             adjacent parcels both upstream and
                                               Tribes’ information on the current and                  FR 23258; April 28, 2004) (see the                    downstream of the Capitan Grande
                                               future use of the reservation,                          Criteria Used to Identify Critical                    Reservation. Therefore, we have no
                                               management of their lands, and                          Habitat section of this rule). Peer                   basis to conclude the area is no longer
                                               commitment to protecting natural                        Reviewers expressed support for our                   occupied. Additionally, the best
                                               resources, including the arroyo toad. In                methods (see Comment 1 above).                        available data indicate that habitat on
                                               our analysis under section 4(b)(2) of the                  We appreciate receiving the arroyo                 the reservation is contiguous with
                                               Act, we considered benefits of                          toad habitat assessment and will                      habitat containing the PCEs upstream
                                               preserving the partnerships we have                     consider this information during future               and downstream of the reservation;
                                               developed with the tribes, reinforcing                  recovery planning with both tribes.                   therefore, these areas continue to meet
                                               those relationships with ongoing                        Although the habitat assessment                       the definition of critical habitat.
                                               coordination on natural resource issues,                delineates suitable breeding habitat                  However, we determined that the
                                               and fostering future partnerships and                   within areas proposed for critical                    benefits of exclusion outweigh the
                                               development of future management                        habitat designation and states that we                benefits of inclusion in this final revised
                                               plans, which we believe, along with                     may have overestimated the quantity of                critical habitat designation; therefore,
                                               other benefits of exclusion, significantly              upland habitat outside the river bed                  the Secretary is exercising his discretion
                                               outweigh the benefits of inclusion in                   (HELIX 2009, p. 3), it does not provide               to exclude the Capitan Grande
                                               this critical habitat designation.                      the specificity required to redraw the                Reservation from this final rule. See
                                               Therefore, the Secretary is exercising his              upland habitat areas or invalidate our                Exclusions Under Section 4(b)(2) of the
                                               discretion to exclude the Capitan                       assessment that these upland areas                    Act—Tribal Lands section for more
                                               Grande Reservation lands from this final                provide for arroyo toad foraging and                  information regarding the exclusion
                                               revised critical habitat designation (see               overwintering (PCE 4) and that they                   process.
                                               our Response to Comment 40 above and                    therefore meet the definition of critical               Comment 47: The Sycuan Band of the
                                               the Exclusions Under Section 4(b)(2) of                 habitat. We will continue to work with                Kumeyaay Nation stated that the
                                               the Act—Tribal Lands section).                          the tribes on management and recovery-                biological data cited in the description
                                                  Comment 45: The Barona Group of                      related activities for the arroyo toad and            of Unit 18 in the proposed rule (see the
                                               Capitan Grande Band of Mission Indians                  its habitat. However, with regard to                  Proposed Revisions to Critical Habitat
                                               and Viejas (Baron Long) Group of                        Capitan Grande Reservation lands as                   Designation section of the proposed
                                               Capitan Grande Band of Mission Indians                  they relate to the proposed critical                  revised critical habitat rule (74 FR
                                               stated that although they oppose                        habitat rule, we determined that the                  52625; October 13, 2009)), which
                                               designation of any critical habitat on the              benefits of exclusion outweigh the                    includes Sycuan lands, is significantly
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                                               Capitan Grande Reservation, areas                       benefits of inclusion in this final revised           outdated because the occupancy records
                                               proposed as critical habitat on the                     critical habitat designation; therefore,              are 10 to 17 years old. Therefore, any
                                               reservation were too broad. The Barona                  the Secretary is exercising his discretion            designation in this unit based on
                                               Group of Capitan Grande Band of                         to exclude the Capitan Grande                         species’ presence or the existence of
                                               Mission Indians surmised that our                       Reservation from this final rule. See                 PCEs is speculative at best.
                                               proposal was based only on our                          Exclusions Under Section 4(b)(2) of the               Additionally, the tribe stated that they
                                               assessment of aerial photographs of the                 Act—Tribal Lands section for more                     do not know which areas of their lands


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                                               were proposed as critical habitat                       qualitative discussion of impacts as                     Our Response: Economic impact
                                               because the proposed rule is vague.                     provided by each tribe.                               estimates in the FEA resulting from
                                               They stated that the only areas on the                     Comment 49: The Pala Band of                       reduced development opportunities
                                               reservation that appeared relevant to the                      ˜
                                                                                                       Luiseno Mission Indians and the                       include the present value of future
                                               proposed critical habitat designation                   Sycuan Band of the Kumeyaay Nation                    annual land value losses based on
                                               were the north fork of the Sweetwater                   stated that fee to trust transfers (i.e.,             market rates for non-tribal lands in each
                                               River, which is not known to support                    land currently owned by the Pala Band                 county. In addition, there are other,
                                               arroyo toad. Therefore, designating                               ˜
                                                                                                       of Luiseno Mission Indians and Sycuan                 unique attributes of tribal land (such as
                                               critical habitat on the reservation is                  Band of the Kumeyaay Nation but not                   cultural importance, restrictions on the
                                               inappropriate because the reservation                   yet part of their reservations) are                   ability of the tribes to transfer lands, and
                                               does not have arroyo toad habitat or any                currently in progress and should be                   lack of substitutes) that should be taken
                                               occupancy records of arroyo toad.                       treated the same as existing tribal                   into consideration when estimating land
                                                                                                       [reservation] land.                                   values. However, the effect of these
                                                  Our Response: Section 4(b) of the Act
                                                                                                          Our Response: The FEA includes                     attributes is difficult to quantify. In the
                                               requires we designate critical habitat on               economic impacts to tribal lands and
                                               the basis of the best scientific and                                                                          absence of specific examples of recent
                                                                                                       assumes that fee-owned land incurs the                land transactions within tribal lands
                                               commercial data available. The best                     same impacts as reservation land.
                                               available data indicate that habitat in                                                                       that would provide information about
                                                                                                          Comment 50: The Pala Band of                       the value of these lands, the FEA uses
                                               Unit 18 has not changed since the                              ˜
                                                                                                       Luiseno Mission Indians, the Sycuan                   the best available scientific and
                                               occupancy records were collected.                       Band of the Kumeyaay Nation, and the                  commercial data available (as shown in
                                               Therefore, we have no basis to conclude                 Viejas (Baron Long) Group of Capitan                  Table 2–9 of the FEA) to estimate
                                               the area is no longer occupied. To                      Grande Band of Mission Indians stated                 potential land value losses.
                                               provide clarification to the Sycuan Band                that the DEA excludes the economic                       Comment 53: The Pala Band of
                                               of the Kumeyaay Nation regarding                        impacts of proposed critical habitat on                     ˜
                                                                                                                                                             Luiseno Mission Indians stated that
                                               proposed critical habitat, the areas that               tribal groundwater use and tribal water               most of the tribal land proposed as
                                               meet the definition of critical habitat on              rights.                                               critical habitat occurs within allotted
                                               the Sycuan Reservation include lands                       Our Response: Quantifying impacts of               lands on the reservations. The tribe
                                               along the Sweetwater River and along                    a critical habitat designation on tribal              stated that the DEA ignored the
                                               the north fork of the Sweetwater River.                 water rights would require information                extraordinary economic impacts on
                                               With regards to this final rule, we                     that is not readily available (such as the            allotted lands, which are not readily
                                               determined that the benefits of                         nature and scope of specific future                   purchased or sold. Further, the tribe
                                               exclusion outweigh the benefits of                      projects that could be impacted by a                  stated that the DEA does not address
                                               inclusion for Sycuan Band of the                        critical habitat designation, or details on           economic impacts to the tribes related to
                                               Kumeyaay Nation Reservation lands;                      the current scope of water rights). This              constrained allottees.
                                               therefore, the Secretary is exercising his              type of analysis is generally not                        Our Response: As discussed in our
                                               discretion to exclude this reservation                  undertaken unless there is an                         response to Comment 52, in the absence
                                               from this final revised critical habitat                adjudication of tribal water rights. The              of specific land transaction data
                                               designation. See the Exclusions Under                   FEA recognizes that tribes’ water rights              provided by affected tribes, the FEA
                                               Section 4(b)(2) of the Act—Tribal Lands                 have long been recognized by the U.S.                 uses average residential and
                                               section for more information regarding                  Supreme Court but does not attempt to                 nonresidential residual land values (as
                                               the exclusion process.                                  include an estimated impact related to                shown in Table 2–9 of the FEA). In
                                               Comments Related to Economic Impacts                    tribal water rights.                                  Chapter 7, the FEA includes a
                                               and Analysis                                               Comment 51: The Pala Band of                       qualitative discussion of the unique
                                                                                                              ˜
                                                                                                       Luiseno Mission Indians and Sycuan                    issues associated with allotted lands
                                               Comments from Tribal Governments                        Band of the Kumeyaay Nation stated                    based on information provided by the
                                                                                                       that the DEA ignored the expenditures                 tribes.
                                                  Comment 48: The Pala Band of                         the tribes have incurred in developing                   Comment 54: The Pala Band of
                                                      ˜
                                               Luiseno Mission Indians, the Sycuan                     and implementing their own Tribal                           ˜
                                                                                                                                                             Luiseno Mission Indians and Sycuan
                                               Band of the Kumeyaay Nation, and the                    Resource Management Plans (RMPs).                     Band of the Kumeyaay Nation stated
                                               Viejas (Baron Long) Group of Capitan                       Our Response: Where information                    that because a significant amount of
                                               Grande Band of Mission Indians stated                   was provided by the tribes, the FEA                   activity on tribal lands occurs with
                                               that the draft economic analysis (DEA)                  included annual costs associated with                 Federal funds, grants, or oversight, the
                                               does not include estimated economic                     implementing their own Tribal RMPs.                   designation of critical habitat on
                                               impacts for tribal lands within the                     Otherwise, these plans are described                  Reservation land results in a
                                               proposed revised critical habitat units.                qualitatively. These costs incurred by                disproportionately higher occurrence of
                                                  Our Response: The final economic                                               ˜
                                                                                                       the Pala Band of Luiseno Mission                      section 7 consultations with the Service.
                                               analysis (FEA) has been updated to                      Indians and Sycuan Band of the                           Our Response: The FEA estimates the
                                               reflect estimated economic impacts on                   Kumeyaay Nation are considered                        economic impacts of section 7
                                               tribal lands within the proposed revised                baseline because the development and                  consultations based on the historical
                                               critical habitat units. The summary                     initial implementation of the RMPs                    rate of consultations and the proposed
                                               tables in the Executive Summary of the                  occurred prior to the proposed critical               revised critical habitat acreage. The
                                               FEA include economic impacts on tribal                  habitat designation.                                  comment letters submitted by the tribes
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                                               lands. In addition, the FEA includes a                     Comment 52: The Pala Band of                       do not provide specific data related to
                                               new Chapter 7 that discusses the                               ˜
                                                                                                       Luiseno Mission Indians and Sycuan                    the number of future projects requiring
                                               socioeconomic characteristics and                       Band of the Kumeyaay Nation stated                    section 7 consultations or the historical
                                               estimated baseline and incremental                      that reservations were created for the                rate of consultation for projects
                                               economic impacts for each affected                      use of tribes in perpetuity and are                   occurring on their tribal lands.
                                               tribe. Where data limitations prevent                   essentially nontransferable, creating a               Therefore, the FEA does not quantify a
                                               quantification, the FEA also includes a                 limited, specialized land value.                      higher rate of section 7 consultations


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                                               but does include a qualitative                          The flood management plan and                         updated SANDAG projections and
                                               description of these impacts in Chapter                 ordinance cannot allow development                    ownership data in the FEA, the
                                               7, which addresses economic impacts                     within any special flood hazard area,                 methodology remains the same.
                                               on tribal lands.                                        defined as the 100-year flood plain.                    Comment 59: One commenter stated
                                                  Comment 55: The Sycuan Band of the                      For developers and communities that                that the DEA uses anecdotal evidence to
                                               Kumeyaay Nation stated that the DEA                     do not need or want to participate in                 support a 1.5:1 mitigation ratio. The
                                               excluded the percentage of total tribal                 FEMA’s subsidized flood insurance                     commenter believes anecdotal evidence
                                               lands affected by the proposed critical                 program, development can occur within                 indicated that 2:1 is more often the
                                               habitat designation.                                    the 100-year flood plain. However, on                 mitigation ratio, and that the DEA
                                                  Our Response: Chapter 5 of the FEA                   average, this development would likely                should include a more scientific basis
                                               includes the percentage of total lands,                 be prohibitively expensive to undertake               for this estimate.
                                               by tribe, affected by the proposed                      relative to other locations given the cost              Our Response: The mitigation ratio
                                               critical habitat designation.                           of gaining entitlements, including                    used in the DEA was based on the best
                                                                                                       engineering, planning, administration,                available scientific and commercial
                                               General Comments Regarding
                                                                                                       and construction of the mitigation                    data, which is the consultation history
                                               Framework and Assumptions
                                                                                                       requirements. This assumption has been                spanning from 1994 through 2009. We
                                                 Comment 56: One commenter                             verified with private real estate                     believe the 1.5:1 mitigation ratio is
                                               believed the DEA did not include the                    developers and civil engineers and is                 appropriate and continue to use this
                                               most recent demographic projections                     consistent with SANDAG’s data of                      ratio in the FEA.
                                               provided by the San Diego Association                   developable land within their Series 12                 Comment 60: One commenter stated
                                               of Governments (SANDAG).                                Regional Growth Forecast.                             that the full 1.5:1 offsetting ratio is not
                                                 Our Response: The most recent                            Other constraints, including land with             applied to the amount of developable
                                               SANDAG projections (Series 12) were                     ‘‘slope issues’’ and unusually or                     land that the DEA assumes to be used
                                               published in February 2010, following                   inadequately configured parcels of land,              to offset development impacts.
                                               the period in which demographic                         have not been excluded from the                         Our Response: Sixty percent of
                                               projections (Series 11) were collected                  analysis.                                             offsetting compensation is assumed to
                                               for the DEA. The FEA has been updated                      Comment 58: One commenter asked                    occur ‘‘on-site’’ or within the acreage
                                               to reflect the current Series 12                        why 23,000 ac (9,308 ha) were                         forecasted to be developed. The
                                               projections from the period 2010                        identified as baseline economic costs,                remaining 40 percent of off-setting
                                               through 2035. In addition, the FEA                      when there are 15,524 developable ac                  compensation is assumed to occur
                                               includes updated ownership data that                    (6,282 ha) in existing HCP boundaries,                within suitable arroyo toad habitat
                                               was the best available during the time                  plus 1,844 buffer ac (746 ha), for a total            within the 100-year flood plain.
                                               of the analysis in July 2010. The                       of 17,368 ac (7,029 ha).                              Specifically, applying a 1.5:1 mitigation
                                               previous ownership data reflected a                        Our Response: Based on the May 2010                ratio to the updated projected
                                               2005 ownership database from                            DEA, the 23,000 baseline acres (9,308                 developable acreage in the FEA (7,602
                                               California Spatial Information Library                  ha) includes the following components:                ac (3,076 ha)) yields about 11,400 ac
                                               (CaSIL) that was adjusted by us with                    (1) Developable HCP acres (15,524); (2)               (4,613 ha) projected to be set-aside, 40
                                               2005 tribal reservation boundaries                      80 percent of developable acres within                percent of which will occur within the
                                               provided by the Building Industry                       riparian habitat (buffer) (1,844 * 80                 100-year flood plain (about 4,600 ac
                                               Association. The updated ownership                      percent = 1,475); and (3) 15 percent of               (1,862 ha)). There are about 14,000 ac
                                               data in the FEA reflect the following                   developable acres outside of riparian                 (5,666 ha) located in the 100-year flood
                                               changes: 2009 tribal reservation                        habitat (40,003 * 80 percent = 6,000).                plain to accommodate this offsetting
                                               boundaries from the Building Industry                   These three components equal 23,000                   compensation acreage. An explanation
                                               Association; 2009 right-of-way from the                 baseline developable acres (9,308 ha).                of this assumption is included in the
                                               Metropolitan Water District (MWD);                      The definition of baseline acreage is                 FEA.
                                               2009 parcels from the San Diego                         based on our estimates incremental                      Comment 61: One commenter
                                               Geographic Information Source                           impacts (see Appendix H of the DEA),                  believed the DEA contains an
                                               (SanGIS); 2009 ownership from the                       which identifies the proportion of                    unsupported assumption that only 40
                                               Rincon Tribe; and 2008 parcels from                     acreage within and outside of riparian                percent of all mitigation land would be
                                               Riverside County.                                       habitat that would likely result in a                 within the 109,110 ac (44,155 ha) of
                                                 Comment 57: One commenter stated                      positive arroyo toad survey (i.e., at least           lands that make up the proposed critical
                                               that to assume that all constrained land                one arroyo toad is present). A graphical              habitat designation. The commenter
                                               cannot be developed is unsupportable                    representation of the methodology used                asked why this would not be 100
                                               and understates the effect of the critical              to determine baseline acres is shown in               percent of all mitigation lands.
                                               habitat designation.                                    Exhibit 1–1 of the DEA and a detailed                   Our Response: Sixty percent of
                                                 Our Response: The FEA assumes that                    description of the methodology is also                offsetting compensation is assumed to
                                               bodies of water and land located within                 provided in Chapter 1. Adding                         occur ‘‘on-site’’ or within the acreage
                                               the 100-year flood plain will not be                    developable acreage in existing HCP                   forecasted to be developed. The
                                               developed. For communities that                         boundaries (15,524 ac (6,282 ha)) plus                remaining 40 percent of offsetting
                                               participate in the Federal Emergency                    developable land within the 1,844 ac                  compensation is assumed to occur
                                               Management Agency (FEMA)                                (746 ha) buffer does not account for the              within suitable arroyo toad habitat
                                               subsidized flood insurance program,                     application of proportional acreage                   within the 100-year flood plain. Please
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                                               development is prohibited within the                    within and outside of riparian habitat                refer to our response to Comment 61
                                               100-year flood plain. Specifically, these               that are estimated to represent the                   above.
                                               communities must have a flood                           presence of arroyo toads (i.e., 80 percent              Comment 62: One commenter stated
                                               management plan and related ordinance                   of acreage within the buffer and 15                   that the DEA incorrectly assumed that if
                                               in place for developers to obtain flood                 percent of acreage outside of the buffer).            land could not be developed in one part
                                               insurance through FEMA, the sole                        Although these acreage estimates have                 San Diego County, the development
                                               purveyor of subsidized flood insurance.                 now changed with the inclusion of                     could be transferred to another area in


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                                               the County that would be distinctly                     residual land value, reflecting the most              that pertain only to water that needs to
                                               different, or that infill densities could be            likely type of residential housing likely             be replaced due to controlled releases
                                               increased.                                              to be developed. We recognize that there              associated with habitat protections. The
                                                  Our Response: The FEA includes an                    are a broad range of housing types that               commenter stated that new agricultural
                                               analysis of substitutability as a basis for             will be constructed in the areas that                 installations require a local permit in
                                               determining the potential extent of                     were proposed as critical habitat,                    San Diego County that would be subject
                                               market impacts, rather than as a means                  ranging from multifamily housing units                to CEQA, and subject to scrutiny by the
                                               for quantifying costs. To determine the                 (such as condominiums) to large, low-                 Service should the land be disturbed. In
                                               significance of arroyo toad-related                     density homes. The average residential                addition, the commenter believed the
                                               project modifications for regional real                 residual land value takes into account                DEA ignores the economic impacts of
                                               estate markets, the FEA evaluates the                   that some of these housing types will                 harvested agricultural output lost
                                               regional significance of the set-aside                  have a lower value, while other housing               annually.
                                               with the total projected development in                 types will have a higher value relative                  Our Response: The FEA evaluates
                                               each county. As shown in Table 2–8 of                   to the assumption used in the FEA. The                impacts of the critical habitat
                                               the FEA, the estimated on-site                          FEA has been updated to describe this                 designation on the water supply to
                                               incremental set-aside represents about                  assumption.                                           agricultural operations in Chapter 3.
                                               0.6 percent of future countywide growth                    Comment 65: One commenter stated                   However, the FEA appropriately focuses
                                               (0.9 percent in total, including baseline).             that if condominiums are excluded from                on the value of resources potentially
                                               In San Diego County, the estimated on-                  the projection of housing development                 removed from production rather than
                                               site incremental set-aside represents                   in the DEA, then we should ensure that                the value of the potential reduction in
                                               about 1.4 percent of future countywide                  housing values do not reflect the value               total output from industries that use
                                               growth (2.0 percent in total, including                 of condominium units.                                 these resources. The total potential loss
                                               baseline). These estimates may overstate                   Our Response: Housing values reflect               in output from ‘‘downstream’’ industries
                                               the percentage of growth affected in San                single-family detached homes only.                    as a result of reduced water supply
                                               Diego County because they do not take                      Comment 66: One commenter                          would not be an appropriate measure of
                                               into account opportunities for                          believed the industrial lease rates were              the loss in ‘‘social welfare’’ because: (1)
                                               adaptation by developers (such as                       too low in the DEA, assuming a                        This output also requires additional
                                               construction in areas of the county not                 ‘‘reasonable share of industrial                      inputs that represent a cost; and (2)
                                               currently forecast for development,                     development’’ would be planned                        downstream industries may adjust their
                                               infill development, or more dense                       industrial or research and development,               factor inputs (grow less water intensive
                                               development). Thus, the set-aside                       which command higher lease rates.                     crops) in response to changes in water
                                               associated with arroyo toad protection is                  Our Response: The DEA utilized                     supply.
                                               not expected to have a measurable                       general development projections                          In the past, agricultural operations
                                               impact on the amount of new housing                     obtained from regional planning                       have competed for water with urbanized
                                               constructed or housing prices.                          agencies, which do not identify the                   land uses. However, until recently,
                                               Calculations of land value losses do not                specific sub-types of development (i.e.,              agricultural lands have steadily
                                               consider potential offsetting increases in              research and development is a sub-type                declined in part because of higher land
                                               the value of substitute parcels located                 of industrial development). Identifying               values associated with a conversation to
                                               outside of critical habitat.                            specific sub-types of development is                  urbanized land uses. Although this
                                                  Comment 63: One commenter stated                     beyond the scope of the economic                      trend has abated slightly in conjunction
                                               that there were several places in the                   analysis. It is assumed that, on average,             with the economic downturn, an overall
                                               DEA where discrepancies existed                         the mix of industrial development                     continued decline is expected over the
                                               between tables and text, between                        planned in the areas proposed for                     long term.
                                               different tables, or between different                  critical habitat would be similar to the                 Comment 69: With respect to delay
                                               parts of the text. There are other places               mix of industrial development in each                 impacts as described in the DEA, one
                                               where findings are provided and not                     county. Thus, we believe using average                commenter stated that the developer
                                               adequately supported by explanations                    industrial lease rates is an appropriate              does not lose the full value of his land
                                               or tables that were cited.                              assumption.                                           for 2 years because he regains the use of
                                                  Our Response: Where appropriate, the                    Comment 67: One commenter                          that land in the third year; instead, the
                                               FEA has been updated to resolve any                     believed the developer’s rate of return of            developer loses the return on the land
                                               identified inconsistencies. Additional                  15 percent (as described in the DEA)                  above the natural appreciation. The
                                               text has been added to further explain                  should apply only to the developer’s                  commenter believed the DEA
                                               findings or assumptions.                                investment in the project, which is not               overestimates delay impacts.
                                                  Comment 64: One commenter stated                     100 percent. The commenter stated that                   Our Response: We agree with the
                                               that property values in the DEA were                    after accounting for debt funding (at an              commenter that delay costs were
                                               determined on a countywide basis,                       average interest rate of 6.375 percent) on            overstated in the DEA. We updated the
                                               using ‘‘typical’’ housing developments                  approximately 75 percent of a project,                calculations in the FEA to reflect
                                               and mean rents. The commenter                           the discount rate should be reduced to                developers’ opportunity cost of delayed
                                               believed the sites identified as habitat                8.5 percent.                                          returns on investment during the delay
                                               may not conform to these averages.                         Our Response: The FEA has been                     period.
                                               Furthermore, the commenter believed                     updated to reflect a developer’s nominal                 Comment 70: One commenter stated
                                               the DEA should have included                            discount rate of 8.5 percent.                         that the Service’s assumption that
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                                               alternative development scenarios, and                     Comment 68: One commenter                          delays will stop after 2 years is
                                               the exclusion of condominiums in the                    believed the DEA ignored impacts on                   questionable.
                                               projection of housing development was                   agricultural operations, and that the                    Our Response: The DEA assumes that
                                               inaccurate.                                             water costs allocable to agriculture in               in most cases, CEQA compliance
                                                  Our Response: The FEA uses an                        the water section had nothing to do with              requirements related to the critical
                                               average single-family residential                       the need to develop an alternative water              habitat designation would become
                                               housing value to determine residential                  supply for agriculture, which are costs               familiar, and after a period of 12


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                                               7314             Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Rules and Regulations

                                               months, applicants would incorporate                    substantially even for those projects                 for future costs and the time value of
                                               these requirements into their CEQA                      already requiring an EIR due to the need              money should be reevaluated.
                                               documents.                                              to prepare additional surveys and                        Our Response: Key assumptions in
                                                  Comment 71: One commenter                            conduct additional analysis of arroyo                 the analysis of potential impacts to real
                                               believed the assumption identified in                   toad impacts. Further, the commenter                  estate development include the amount,
                                               the DEA to prepare an Environmental                     stated that the DEA incorrectly assumes               pace, and location of future
                                               Impact Report (EIR) of $56,000 is too                   that substantial increases in CEQA costs              development activity and current land
                                               low, and that the cost to prepare an EIR                would only occur for projects that                    values. The economic analysis relies on
                                               is usually between $100,000 and                         would not require an EIR absent the                   the best readily-available data sources,
                                               $200,000.                                               critical habitat designation.                         including the Santa Barbara County
                                                  Our Response: The DEA examines                          Our Response: Consultants who                      Association of Governments Regional
                                               impacts on both large and small projects                specialize in EIRs agreed that proposed               Growth Forecast (2000–2030), the
                                               through CEQA. Consultants who                           critical habitat adds no measurable                   Southern California Association of
                                               specialize in EIRs agreed that proposed                 CEQA-related costs for large projects                 Governments (SCAG) Adopted 2008
                                               critical habitat adds no measurable                     that are already required to comply with              RTP Growth Forecast, and the SANDAG
                                               CEQA-related costs for large projects                   CEQA statutes. Please also refer to our               Series 12 Regional Growth Forecast,
                                               that are already required to comply with                responses to Comments 71 and 72.                      which project the amount and location
                                               CEQA statutes. For small projects, the                     Comment 74: One commenter                          of future development. These
                                               DEA assumes that some projects will be                  believed the two types of delay                       projections were adopted in 2007 (Santa
                                               required to prepare an EIR when they                    identified in the DEA would be required               Barbara), 2008 (SCAG), and 2010
                                               could otherwise claim a categorical                     regardless of whether or not critical                 (SANDAG) and rely on data and the best
                                               exemption. Further, small projects that                 habitat is designated.                                judgment of local and regional planners
                                               submitted either a mitigated negative                      Our Response: The DEA assumes that                 in the respective communities. We agree
                                               declaration or a negative declaration                   delay costs are only incurred for a small             that the pace of such development is
                                               would be required to prepare an EIR.                    percentage of projects that are already               likely influenced by current economic
                                               The cost assumptions reflect the                        entitled or nearly entitled and where the             activities; however, we have no
                                               incremental cost of preparing these                     arroyo toad has not previously been                   empirical data with which to make
                                               documents above what they already                       identified through surveys. In other                  assumptions about when the
                                               would have been required to prepare.                    words, these projects have nearly                     development is most likely to occur.
                                                  Comment 72: One commenter stated                     completed the necessary environmental                 Therefore, we assume development is
                                               that Tables 6–2 and 6–3 (estimated                      reviews assuming the arroyo toad is not               distributed evenly throughout the
                                               CEQA costs) in the DEA appear                           present at the site. The delays are                   timeframe of the projections. Finally,
                                               inaccurate and use faulty assumptions                   caused by the new information provided                residual land values are based on
                                               about the cost of producing CEQA                        by critical habitat regarding the                     current 2010 data obtained from
                                               documents. The commenter believed                       potential presence of the arroyo toad                 reputable industry sources (DataQuick
                                               there was no documentation regarding                    and value of the habitat, regardless of               and CB Richard Ellis).
                                               CEQA costs, and that there was no                       the outcome of previous surveys.                         Throughout the report, the economic
                                               support for the assumption that a                          Comment 75: Three commenters                       analysis estimates the present value of
                                               critical habitat designation alone would                stated that the DEA did not include an                future impacts using discount rates of
                                               upgrade the CEQA document to a more                     analysis of potential uncertainty and                 3 and 7 percent. The U.S. Office of
                                               robust environmental review.                            stigma costs, which could be                          Management and Budget (OMB)
                                                  Our Response: In Table 6–2 and 6–3                   substantial. They recommended that the                requires Federal agencies to report
                                               of the DEA, the total annual number of                  Service should conduct a literature                   results using these rates (see OMB
                                               CEQA documents in a critical habitat                    review or additional research regarding               Circular A–4, 2003).
                                               designation does not equal the sum of                   the effects of uncertainty and stigma on                 Comment 77: One commenter stated
                                               their respective columns because of                     other endangered species.                             that there may not be funding available
                                               fractional numbers. The FEA has been                       Our Response: We have reviewed the                 for the conservation efforts of
                                               updated to show each fractional number                  literature and are unaware of any                     established HCPs given that housing
                                               to the nearest tenth. As noted in the                   published studies estimating the stigma               and development ‘‘starts’’ and home
                                               DEA and FEA, the costs associated with                  effects of critical habitat designation.              prices in southern California continue to
                                               a notice of exemption, negative                         Furthermore, no published literature                  decline.
                                               declaration, and EIR are based on                       exists estimating the economic impact                    Our Response: It is beyond the scope
                                               personal communication with three                       of regulatory uncertainty that may result             of the economic analysis to determine
                                               consultants who specialize in EIRs.                     from the designation. New, primary                    whether current development
                                               These consultants were contacted as                     research on these issues is beyond the                projections and estimated residual land
                                               part of the development of the 2005                     scope of the economic analysis. Because               values will impact the funding available
                                               DEA; the current 2010 DEA escalated                     data are not readily available to quantify            for the conservation efforts of
                                               these cost assumptions to 2010 dollars                  potential impacts from regulatory                     established HCPs. Furthermore,
                                               using a Consumer Price Index (CPI).                     uncertainty and stigma, these impacts                 conservation efforts undertaken as a
                                               Because there is no empirical evidence                  are discussed qualitatively in Chapter 6              result of HCPs are considered to be
                                               to support the assumption that a critical               of the DEA.                                           baseline costs and would not be affected
                                               habitat designation would necessitate a                    Comment 76: Given the ongoing                      by the designation of critical habitat.
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                                               more robust environmental review for                    financial situation in our country, one                  Comment 78: One commenter stated
                                               small projects, the DEA assumes the                     commenter believed that many of the                   that economic impacts to mining
                                               ‘‘worst case’’ scenario that all small                  cost assumptions relied on in the DEA                 projects and grazing shown in the DEA
                                               projects are affected.                                  may no longer be valid, particularly                  are unrealistic. Specifically, the
                                                  Comment 73: One commenter                            with regards to the real estate sector.               commenter stated that impacts to
                                               believed the cost and time required to                  Further, the commenter believed the                   mining projects depend largely on an
                                               prepare an EIR would increase                           assumptions regarding the discount rate               assumption that demand for concrete


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                                               and other building materials would                      habitat more according to vegetation                     Comment 82: One commenter stated
                                               continue at a rate established during a                 structure than vegetation type; dense                 that the DEA should have allocated a
                                               housing boom in 2005. Further, the                      and tall vegetative structure was                     portion of the costs of creating and
                                               commenter stated that with respect to                   preferred least of all. In a study using              modifying HCPs as an incremental
                                               impacts to grazing, surveys, and fencing                pitfall traps, Holland and Sisk (2001,                impact because HCPs are often
                                               have already been implemented on a                      pp. 1–32) captured arroyo toads                       preemptively developed as a strategy to
                                               majority of allotments where arroyo                     primarily within the stream channel and               achieve regulatory relief.
                                               toad occurs. While some fences may                      riparian habitats, but approximately 18                  Our Response: While it is possible
                                               still need to be built, the commenter                   percent of the adult and subadult                     that the HCPs were created in part in
                                               believed that maintenance of fencing                    captures averaged across all 3 years of               anticipation of a critical habitat
                                               could be an incremental cost; however,                  the study were in upland habitats (11                 designation, these costs have already
                                               the commenter believed it is likely that                percent at one site and 24 percent at the             been incurred and the FEA does not
                                               this incremental cost would also occur                  other). Using our best professional                   include historical costs. Further, the
                                               in the absence of a critical habitat                    judgment, the likelihood of finding                   decision of whether or not to designate
                                               designation in order to protect arroyo                  arroyo toads in upland habitats would                 critical habitat will not affect these
                                               toad as a listed species. The commenter                 be approximately 15 to 20 percent.                    costs; thus, costs already incurred are