[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Rules and Regulations]
[Pages 426-458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28286]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Final Rule To Designate
Critical Habitat for the Santa Ana Sucker (Catostomus santaanae); Final
Rule
Federal Register / Vol. 70 , No. 2 / Tuesday, January 4, 2005 / Rules
and Regulations
[[Page 426]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT57
Endangered and Threatened Wildlife and Plants; Final Rule To
Designate Critical Habitat for the Santa Ana Sucker (Catostomus
santaanae)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the threatened Santa Ana sucker (Catostomus
santaanae) pursuant to the Endangered Species Act of 1973, as amended
(Act). This species is now restricted to three noncontiguous
populations in three different stream systems in southern California:
The lower and middle Santa Ana River in San Bernardino, Riverside, and
Orange counties; the East, West, and North Forks of the San Gabriel
River in Los Angeles County; and lower Big Tujunga Creek, a tributary
of the Los Angeles River in Los Angeles County. We have identified
23,719 acres (ac) (9,599 hectares (ha)) of aquatic and riparian
habitats essential to the conservation of the Santa Ana sucker. We are
designating two areas in Los Angeles County, one along the San Gabriel
River (Unit 2) and the other along the Big Tujunga Creek (Unit 3) as
critical habitat for Santa Ana sucker. These units encompass
approximately 8,305 ac (3,361 ha) of essential habitat for the Santa
Ana sucker within Los Angeles County. Essential habitat for the Santa
Ana sucker in Orange, Riverside, and San Bernardino counties has been
excluded from the final critical habitat designation, because we have
concluded that the benefits of excluding these lands from critical
habitat designation outweigh the benefits of their inclusion pursuant
to section 4(b)(2) of the Act.
DATES: This rule becomes effective on February 3, 2005.
ADDRESSES: Comments and materials received, as well as supporting
information used in this rulemaking, are available for inspection, by
appointment, during normal business hours at the U.S. Fish and Wildlife
Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road,
Carlsbad, California 92009. You may obtain copies of the final rule and
the economic analysis from the field office address above or by calling
(760) 431-9440, or from our Internet site at http://carlsbad.fws.gov.
If you would like copies of the regulations on listed wildlife or
have questions about prohibitions and permits, please contact the
Carlsbad Fish and Wildlife Office (see ADDRESSES above).
FOR FURTHER INFORMATION CONTACT: Mr. Jim Bartel, Field Supervisor,
Carlsbad Fish and Wildlife Office, at the address and phone number
listed above.
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, and consumes
enormous agency resources, and imposes huge social and economic costs.
The Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 445 species or 36 percent
of the 1,244 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat. We address the habitat needs
of all 1,244 listed species through conservation mechanisms such as
listing, section 7 consultations, the Section 4 recovery planning
process, the Section 9 protective prohibitions of unauthorized take,
Section 6 funding to the States, and the Section 10 incidental take
permit process. The Service believes that it is these measures that may
make the difference between extinction and survival for many species.
We note, however, that a recent 9th Circuit judicial opinion,
Gifford Pinchot Task Force v. United States Fish and Wildlife Service,
has invalidated the Service's regulation defining destruction or
adverse modification of critical habitat. We are currently reviewing
the decision to determine what effect it may have on the outcome of
consultations pursuant to Section 7 of the Act.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed. The accelerated
schedules of court ordered designations have left the Service with
almost no ability to provide for adequate public participation or to
ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals due to the risks associated with
noncompliance with judicially-imposed deadlines. This in turn fosters a
second round of litigation in which those who fear adverse impacts from
critical habitat designations challenge those designations. The cycle
of litigation appears endless, is very expensive, and in the final
analysis provides relatively little additional protection to listed
species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects, the cost of requesting and responding to public
comment, and in some cases the costs of compliance with the National
Environmental Policy
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Act (NEPA), all are part of the cost of critical habitat designation.
None of these costs result in any benefit to the species that is not
already afforded by the protections of the Act enumerated earlier, and
they directly reduce the funds available for direct and tangible
conservation actions.
Background
This revised final rule addresses the designation of critical
habitat for the Santa Ana sucker (Catostomus santaanae) (sucker), which
is endemic to the Los Angeles River, the San Gabriel River, and the
Santa Ana River, and assumed to be introduced to the Santa Clara River
in California. In this revised final rule, we discuss information
obtained since the proposed and original final critical habitat rules
published concurrently in the Federal Register on February 26, 2004 (69
FR 8911 and 69 FR 8839).
The sucker has evolved in the dynamic hydrological systems of
southern California and requires clean, clear, and relatively cool
streams of varying width and depth with appropriate substrates (e.g., a
mix of sand, gravel, cobble, and boulder). The sucker scrapes algae and
invertebrates from hard substrates such as gravel and cobbles and
spawns over a gravel and cobble substrate. Please refer to the final
rule listing the species as threatened (65 FR 19686) and our previous
final critical habitat rule (69 FR 8839) for a more detailed discussion
about the species' physical description, ecology, range, distribution,
and a discussion of factors affecting the species.
Previous Federal Action
On July 9, 2001, California Trout, Inc., the California-Nevada
Chapter of the American Fisheries Society, the Center for Biological
Diversity, and the Friends of the River (plaintiffs) filed a 60-day
notice of intent to sue over our failure to designate critical habitat
for the Santa Ana sucker. The plaintiffs filed a second amended
complaint for declaratory judgment and injunctive relief on March 19,
2002, with the U.S. District Court for the Northern District of
California. On February 26, 2003, the district court ordered the
Service to designate final critical habitat for the Santa Ana sucker by
no later than February 21, 2004, and enjoined the Service from issuing
any section 7 concurrence letters or biological opinions on actions
that ``may affect'' the sucker until such time as the final critical
habitat is designated. The Service published the proposed and final
rules concurrently on February 26, 2004 (69 FR 8911 and 69 FR 8839). As
a result, the injunction prohibiting the issuance of biological
opinions and concurrence letters was lifted. See the proposed rule (69
FR 8911) for a discussion of why the final rule and proposed rule were
published at the same time.
The proposed critical habitat rule, published on February 26, 2004
(69 FR 8911), included a 60-day comment period during which the public
could submit comments on the proposed designation. On August 19, 2004,
we published a notice in the Federal Register (69 FR 51416) announcing
the reopening of a 30-day comment period on the proposed critical
habitat rule and the scheduling of a public hearing, which was held in
Pasadena, California on September 9, 2004. On October 1, 2004, we
published a Federal Register notice (69 FR 58876) announcing the
availability of the draft economic analysis of the proposed critical
habitat designation and reopening a 10-day public comment period for
the economic analysis and proposed designation. On October 25, 2004, we
published another notice in the Federal Register (69 FR 62238)
reopening a 30-day comment period on the draft economic analysis and
the proposed designation.
Summary of Comments and Recommendations
During the initial 60-day public comment period for the proposed
rule (69 FR 8911), we contacted all appropriate State and Federal
agencies, county governments, elected officials, scientific
organizations, and other interested parties, via mail and/or fax, and
invited them to submit comments and/or information concerning the
proposed rule. We also published newspaper notices in the The Press-
Enterprise, Riverside, CA, and in the Los Angeles Times, Los Angeles,
CA, inviting public comment. During the first comment period, we
received comments from three county agencies, three water districts,
two businesses, three groups, and 14 individuals. Of the 22 letters we
received, four letters supported the designation as proposed, six
letters suggested expanding the designation, six letters suggested
reducing the designation, one letter requested clarification of the
designation, and five letters were neutral.
During the second comment period, we received comments from one
utility agency, three groups, and four individuals. Of the six letters
we received, one letter supported the designation as proposed, two
letters suggested expanding the designation, one letter suggested
reducing the designation, and two letters were neutral. At the public
hearing during the second comment period, we received 21 oral comments,
all of which requested a reduction in the designation. A transcript of
the hearing is available for inspection (see ADDRESSES section).
During the third comment period (October 1 to 12, 2004), which
regarded the draft economic analysis, we received comments from 1
county agency, 3 water districts, 1 business, 4 groups, and 2
individuals. Of the 7 letters we received, 4 letters were requests for
an extension of the comment submission period, and 3 letters contained
suggestions for improvements to the draft economic analysis. Of the
latter 3 letters, 1 supported the designation as proposed and 2
suggested reducing the designation.
During the fourth comment period (October 25 to November 24, 2004),
which regarded the draft economic analysis, we received comments from 7
groups, 8 individuals, and 1 project authority (representing 1 county
agency and 4 water districts). Of the 13 letters we received, 10
letters supported the designation as proposed, 2 letters suggested
reducing the designation, and 1 letter requested clarification of the
draft economic analysis. (After the comments deadline, we received 2
letters with comments from 1 county agency suggested reducing the
designation, and a letter from 1 business requesting an extension of
the comments deadline.)
In accordance with our peer review policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we requested the expert
opinions of seven independent specialists who are recognized
authorities on freshwater fish of Southern California regarding
pertinent scientific or commercial data and assumptions relating to the
supporting biological and ecological information in the proposed
designation. The purpose of such review is to ensure that the
designation is based on scientifically sound data, assumptions, and
analyses, including input of appropriate experts and specialists.
We reviewed all comments, including the oral statements presented
at the public hearing and the written comments received from peer
reviewers and the public during the comment periods, for substantive,
relevant issues and new data regarding critical habitat and the Santa
Ana sucker. Peer reviewer comments are summarized separately in the
following section. We have grouped public comments into six general
issues relating to critical habitat and the draft economic analysis,
combined and
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summarized similar comments, and provided our responses in the Public
Comments section below.
Peer Review Comments
We received three written responses from peer reviewers
recommending expansion of critical habitat and one written response
supporting critical habitat as designated. One additional peer reviewer
supported designated critical habitat, but this letter was received
after the deadline. Two peer reviewers supplied specific edits and
comments on the critical habitat unit boundaries and the primary
constituent elements. Comments from peer reviewers have been
incorporated into this final rule as appropriate.
(1) Comment: The upper boundary of critical habitat on the East
Fork of the San Gabriel River should be the Bridge-of-No-Return and was
incorrectly delineated on the map in the final rule (69 FR 8859).
Our Response: We acknowledge that this upper boundary was
incorrectly delineated on the map of Unit 2 in the original final rule.
This area was also inadvertently left out of the legal description of
the unit. As a result, we cannot include the area in the revised final
designation even though this area is essential to the conservation of
the sucker. We may, under the Act, revise the designation of critical
habitat in the future to include this area.
(2) Comment: The stretches of the San Gabriel River between the San
Gabriel Dam and the Morris Dam reservoir, between the Highway 39 bridge
and the Fish Canyon confluence with the river, and upstream of Cogswell
Dam should be included in critical habitat because these areas contain
potentially occupied and/or restorable habitat.
Our Response: Although we appreciate the importance of potentially
suitable habitat within these stretches of the San Gabriel River, we do
not have sufficient information to determine if these portions of the
river contain the primary constituent elements essential to the
conservation of the sucker and therefore, we could not designate these
areas as critical habitat. Under the Act, we can revise critical
habitat in the future if new information becomes available indicating
that these areas are essential.
(3) Comment: Devil's Gulch, a tributary to the East Fork of the San
Gabriel River, should not have been included in designated critical
habitat because it does not support the Santa Ana sucker.
Our Response: Devil's Gulch was not designated as critical habitat.
(4) Comment: There is a barrier to fish movement upstream from the
San Gabriel River into Big Mermaid's Canyon and therefore Big Mermaid's
Canyon should not be designated as critical habitat.
Our Response: Using the best available information, including
records from the California Natural Diversity Database (CNDDB), we
determined that Big Mermaid's Canyon previously supported suckers and
still is essential to the conservation of the sucker in that it
transports water and substrate essential to the maintenance of occupied
sucker habitat downstream.
(5) Comment: Haines Creek should be specifically described as part
of designated critical habitat for the sucker.
Our Response: Haines Creek is located within the boundaries of the
Big Tujunga Creek Critical Habitat Unit (Unit 3), and has been
specifically listed in the description of this unit in this revised
final rule.
(6) Comment: The Service has not adequately supported its statement
that the upper Santa Ana Wash and tributaries provide sediment
transport to occupied habitat.
Our Response: We based the Santa Ana sucker critical habitat
designation on the best available information, including expert opinion
(Dr. Thomas Haglund, Ichthyologist, pers. comm. 2004; Dr. Jonathan
Baskin, Ichthyologist, California State Polytechnic University, Pomona,
pers. comm. 2004) and studies in similar river systems in California
(NOAA 2003).
While the Santa Ana Wash was proposed as critical habitat based on,
among other things, its contribution of sediments and maintenance of a
functioning hydrograph, these attributes do not, of themselves, warrant
determining that an area is ``essential to the conservation of the
species'', which is the statutory standard for designation of
unoccupied areas. Therefore, Unit 1B, Santa Ana Wash, has been removed
from the revised designation. The basis for this removal is summarized
in the section entitled ``Summary of Changes''.
(7) Comment: The criteria used to designate individual tributaries
in Unit 1B, the Santa Ana Wash and in Unit 3, Big Tujunga Creek as
critical habitat were not consistently applied.
Our Response: We based our determination to designate tributaries
in Unit 1B and Unit 3 on the best available data, including aerial
photographs and historical sucker occurrences. We determined that these
tributaries maintain a functioning hydrological system, provide and
transport sediment downstream to occupied habitat, support riparian
systems, and maintain the long-term viability of the sucker
populations. We believe that we applied these criteria consistently to
each area designated as critical habitat. Please refer to the Methods
and Criteria Used To Delineate Critical Habitat section of this rule
for a more detailed discussion. However, the Santa Ana Wash and
associated tributaries within Unit 1B have been excluded from the
revised designation. The basis for this exclusion is summarized in the
section entitled ``Summary of Changes''.
(8) Comment: The primary constituent element describing substrate
types should be refined to include low-embeddedness.
Our Response: We concur and have revised the description of the
primary constituent element describing substrate. Please refer to the
Primary Constituent Elements section of this rule for a detailed
description.
(9) Comment: Minimum water depth of from 3 to 30 centimeters (cm)
(1.2 to 11.8 inches (in)) should be changed. Depths less than 4 cm (1.6
in) would not provide habitat for most life stages of the sucker.
Our Response: We used 3 cm (1.2 in) as the minimum water depth
because of the observations of larval suckers in sandy habitats with
depths of 3 to 10 cm (1.2 to 3.9 in) of water along the margins of
rivers and streams (Haglund et al., 2004).
(10) Comment: Juvenile suckers migrate into tributaries, possibly
attracted by the cooler temperatures these tributaries experience in
the spring. Therefore, tributaries should be included as a primary
constituent element in critical habitat. Sunnyslope Creek, Arroyo
Tequesquite, Evans Lake Drain, Mt. Rubidoux Creek, Agua Mansa Drain,
and the tributaries draining Hidden Valley Regional Park wetlands
should be included as critical habitat.
Our Response: If a tributary within the critical habitat boundaries
contained one or more of the primary constituent elements, then it was
considered essential habitat. Some tributaries within the critical
habitat boundaries do not contain any of the primary constituent
elements and were not, therefore, considered essential. For example, a
concrete-lined storm drain directing urban runoff into one of the
rivers is unlikely to provide any of the primary constituent elements
essential to the conservation of the species. Although we did not
specifically describe tributaries as a primary constituent element,
they are necessary in a functioning hydrological system and are
included in the critical habitat designation where appropriate.
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Several of the drains, creeks, and other tributaries listed by the
commenter contain the primary constituent elements and are considered
essential habitat but were excluded from the critical habitat
designation under section 4(b)(2) of the Act, because they are
protected under the Western Riverside Multiple Species Habitat
Conservation Plan (MSHCP).
(11) Comment: Unnatural or anthropogenic ebbs and peaks in water
volume may be inadvertently included as primary constituent elements,
since the description of a functioning hydrological system as a primary
constituent element did not specify that it must contain a natural
hydrograph.
Our Response: We concur and have revised the primary constituent
element describing a functional hydrological system. Please refer to
the Primary Constituent Elements section of this rule for a detailed
description.
Public Comments
Issue 1: Comments on the Adequacy and the Extent of Critical Habitat
Designation
(12) Comment: Critical habitat should be designated in the Santa
Clara River because (1) the Santa Clara River is essential to the
conservation of the Santa Ana sucker, (2) the population provides
increased genetic variability to the overall sucker population, (3) the
Santa Clara River is threatened by rapid development within its
watershed, and (4) the Santa Clara River is not otherwise protected
under the Act. The Santa Ana sucker in the Santa Clara River should be
listed under the Act, since there remains much ambiguity regarding its
status as an introduced species in the Santa Clara River.
Our Response: Since the sucker population in the Santa Clara River
is not federally listed (65 FR 79686), critical habitat could not be
designated for that population. The sucker was not listed in the Santa
Clara River due to the lack of evidence showing the sucker was native
to the Santa Clara River. Our earliest record of the sucker in the
Santa Clara River watershed is from 1934 (Hubbs et al. 1943).
Conversely, we have records of the sucker in the Santa Ana River from
1897 (Snyder 1908). Therefore, based on the best available data, we
have presumed the sucker in the Santa Clara River was introduced. If we
determine the Santa Clara River population to be crucial to the
recovery of the species as we prepare the recovery plan, we may need to
reevaluate the status of this population under the Act.
(13) Comment: Since the area below Prado Dam in the Santa Ana River
is not adequately protected by either the Santa Ana Sucker (SAS)
Conservation Program or by the Western Riverside MSHCP, it should be
included in the critical habitat designation. Since the SAS
Conservation Program focuses conservation efforts on the upper stretch
of the Santa Ana River, it may not adequately address the conservation
needs of the sucker throughout the Santa Ana River. Another commenter
stated that the benefits of including the areas covered by these plans
in the critical habitat designation outweigh potential costs to other
agencies and that critical habitat designation provides greater
benefits to the sucker than either of the plans.
Our Response: Section 4(b)(2) of the Act allows the Service to
exclude any area from critical habitat if we determine that the
benefits of such an exclusion outweigh the benefits of including the
area in the critical habitat designation, unless, based on the best
scientific and commercial data available, we determine that failure to
designate the area as critical habitat will result in the extinction of
the species. Exclusions can be based on Integrated Natural Resource
Management Plans (INRMPs) on military lands, Habitat Conservation Plans
(HCPs), or other formal conservation plans; except for INRMPs, plans
must provide conservation benefits to the species as well as assurances
that the plan will be implemented and the conservation effort will be
effective. We have determined that both the Western Riverside MSHCP and
the SAS Conservation Program satisfy these requisites, and have,
therefore, concluded that the benefits of excluding the lands covered
by these plans from the final critical habitat designation outweigh the
benefits of including these areas. As such, they are excluded from
critical habitat designation. See Lands Covered Under Existing
Conservation Plans for a detailed discussion.
(14) Comment: Habitat within the boundaries of the Western
Riverside MSHCP and SAS Conservation Program meet the definition of
critical habitat and should be included in designated critical habitat.
Our Response: Although the habitat within the boundaries of these
conservation plans contains one or more of the physical and biological
characteristics essential to the conservation of the sucker, we have
determined that these conservation plans provide special management
and/or protection for the Santa Ana sucker, and have concluded that the
benefits of excluding the lands covered by these plans from the final
critical habitat designation outweigh the benefits of including these
areas. Thus, we have excluded these areas from critical habitat
designation under 4(b)(2) of the Act.
Issue 2: Comments on Individual Units
(15) Comment: Commenters stated that Santa Ana suckers are
declining as a result of heavy recreational use in the San Gabriel
River. Conversely, some other commenters stated suckers in the San
Gabriel River were not declining as the result of recreational
activities or as a result of the use of summer homes.
Our Response: Based on the best available information, we believe
that recreational suction dredging, artificial pool creation, off-road
vehicle use, swimming, wading, bathing, and the use of recreational
summer homes may have varying detrimental effects on the Santa Ana
sucker.
Suction dredging, which occurs on a recreational basis in the San
Gabriel River can result in the death of fish eggs, larvae, and fry
(Harvey and Lisle 1998; Griffith and Andrews 1981). Suction dredging
can also change the functional composition of the invertebrate
community and increase sedimentation rates in sensitive spawning and
feeding habitats (Somer and Hassler 1992).
The use of the river as an off-highway vehicle (OHV) recreational
area may result in adverse effects to the sucker, if the OHV use occurs
in areas used by the sucker during the spawning and nursery season, or
if vehicles leak oil, gas, and other pollutants into the river. OHV use
can change the physical structure of habitat (Wender and Walker 1998;
Texas Chapter of American Fisheries Society 2002; Brown 1994), crush
eggs and larvae within the substrate (Texas Chapter of American
Fisheries Society 2002), and reduce the taxonomic diversity of the
macroinvertebrate and algal species (Texas Chapter of American
Fisheries Society 2002) which is the food base for the sucker (Haglund
and Baskin 2003; Greenfield et al. 1970). Haglund and Baskin (2002)
recently completed a one-year study in the San Gabriel River; their
results suggest that macroinvertebrate diversity was reduced in vehicle
ruts and tracks. However, they concluded there was no evidence at that
time to indicate that the intensity of OHV usage was related to trends
in native fish populations (although they recommended further
investigation before drawing firm conclusions).
Swimming, wading, and bathing can degrade the physical structure
and
[[Page 430]]
water quality of streams. Erosion associated with heavy recreational
use along streambanks contributes to degraded habitat conditions
including increased sedimentation in potential spawning and feeding
grounds and loss of habitat structure (e.g., pools, riffles, shallow
sandy margins) that provide essential elements to the survival of the
sucker. The damming of the river to create recreational swimming pools
may temporarily eliminate fish passage and limit the availability of
suitable habitat for the sucker (Ally, in litt. 2001). Pollution
associated with personal care products (e.g., suntan lotion, shampoo,
soap, insect repellent) that can be released into the aquatic
environment during swimming, wading, and bathing can have adverse
physiological effects on the endocrine system of fishes (Daughton and
Ternes 1999).
We have been working and will continue to work with the U. S.
Forest Service (Forest Service) to ensure their actions with respect to
the sucker will not result in jeopardy to or take of the species. The
Forest Service has recently implemented measures to reduce OHV activity
in areas in which suckers are suspected to spawn as part of the Angeles
National Forest Santa Ana Sucker Conservation Strategy.
(16) Comment: The San Gabriel Canyon OHV Area is currently a
Department of Defense training facility and is also covered under a
Forest Service management plan. Therefore, this area should be excluded
from designated critical habitat.
Our Response: Section 4(b)(2) of the Act allows the Service to
exclude any area from critical habitat if the Service determines the
benefits of such exclusion outweigh the benefits of specifying such
area as part of critical habitat, unless, based on the best scientific
and commercial data available, the Service determines that failure to
designate the area as critical habitat will result in the extinction of
the species. Exclusions can be based on INRMPs for military lands,
HCPs, and formal conservation plans. We have confirmed with the Forest
Service that the Department of Defense does not currently use the San
Gabriel Canyon OHV Area as a training facility (Bill Brown, U.S. Forest
Service, pers. comm. 2004), and therefore does not qualify for
exclusion as provided for military lands under section 4(b)(2) of the
Act.
The Service must determine that a management plan provides a
conservation benefit to the species, and assurances that the management
plan will be implemented, and the conservation effort will be
effective. We have reviewed the San Gabriel Canyon Off-Road Vehicle
Management Plan (U.S. Forest Service 1985) for consistency with the
aforementioned criteria. While we appreciate the significant amount of
effort private individuals and the Forest Service have expended in the
development of this management plan, it does not adequately address the
conservation needs of the sucker in the San Gabriel River and
therefore, we cannot exclude this area from the critical habitat
designation under 4(b)(2) of the Act. We are working with the Forest
Service to better conserve the sucker in this area.
(17) Comment: Only a small portion of the San Gabriel Canyon OHV
Area contains suitable habitat for the Santa Ana sucker.
Our Response: Our regulations allow us to designate critical
habitat in areas where the species is not present if they are in
proximity to areas occupied by the species and are essential to their
conservation (50 CFR 424.12(d)). Although suckers may not occupy this
area when the reservoir is full, this area does provide a linkage
between the West, East, and North Forks of the San Gabriel River.
Linkages are essential to maintaining the genetic structure and
viability of the species in this river. Therefore, we consider all
portions of the San Gabriel Canyon OHV Area within the geographical
boundaries of the designation as critical habitat.
(18) Comment: Habitat for the sucker is not present in the plunge
pool immediately downstream of Cogswell Dam or for 1,000 feet
downstream of Cogswell Dam in the West Fork of San Gabriel River.
Therefore, this section of the river should be excluded from critical
habitat.
Our Response: Based on the best available information, we have
determined that this area of the West Fork of the San Gabriel River
contains substrate, vegetation, and water that are essential for the
conservation of the species (Haglund and Baskin 1996; Haglund and
Baskin 1995; U.S. Forest Service 2003). The Santa Ana sucker was
detected in the vicinity of this area during the last decade (Haglund
and Baskin 1996). Therefore, since this area had been occupied and
since it contains the primary constituent elements of critical habitat,
this area will remain designated as critical habitat. Under the Act, we
can revise critical habitat in the future, if new information becomes
available.
(19) Comment: A 1,000-foot portion of the East Fork of the San
Gabriel River downstream of the confluence of the East, West, and North
forks should be excluded from critical habitat because critical habitat
designation will limit the implementation of flood protection measures,
the amount of water that can be stored behind the San Gabriel Dam, and
revenue for the hydroelectric plant located downstream of the dam.
Our Response: This area was included in the critical habitat
designation because it provides a linkage between the West, East, and
North Forks of the San Gabriel River. Linkages are essential to
maintaining the genetic structure and viability of the species in this
river. Our regulations allow us to designate critical habitat in areas
where the species is not present if they are in proximity to areas
occupied by the species and are essential to their conservation (50 CFR
424.12(d)). In addition, significant numbers of suckers were detected
in the vicinity of this area during recent surveys (M. Chimienti, Los
Angeles County Department of Public Works, pers. comm. 2004).
Therefore, this area of the East Fork of the San Gabriel River will
remain in the critical habitat designation. Under the Act, we can
revise critical habitat in the future, if new information becomes
available.
(20) Comment: Within the San Gabriel River, critical habitat should
be designated between Morris Dam and Fish Canyon as well as lower San
Jose Creek, a tributary to San Gabriel River. The commenter did not
state why this area should be designated.
Our Response: Although we appreciate the potential for habitat in
this portion of the San Gabriel River and lower San Jose Creek, we do
not have sufficient information to determine if these areas contain the
primary constituent elements essential to the conservation of the
sucker. Therefore, we cannot designate these areas as critical habitat.
Under the Act, we can revise critical habitat in the future, if new
information becomes available.
(21) Comment: Within Big Tujunga Creek, habitat for the sucker is
not present in the plunge pool immediately below Big Tujunga Dam or for
one mile downstream of Big Tujunga Dam. Therefore, these sections of
Big Tujunga Creek should be excluded from critical habitat.
Our Response: We have determined that the upstream sections of the
Big Tujunga Creek transport sediment from upstream tributaries to known
occupied habitat in the lower Big Tujunga Creek. In addition, this
portion of the creek meets the definition of critical habitat since it
contains water, substrates, and riparian and aquatic vegetation
essential for the conservation of the species (Andresen 2001; Haglund
and Baskin 2001). Although some structures in this area may seasonally
limit upstream movement of suckers, these structures
[[Page 431]]
are not necessarily year-round impediments to fish passage (Swift
2002). Therefore, since this area maintains essential habitat
downstream, has a strong potential to be occupied, and contains the
primary constituent elements of critical habitat, this area is
essential to the conservation of the species and will remain in the
critical habitat designation. Under the Act, we can revise critical
habitat in the future, if new information becomes available.
(22) Comment: Habitat is not present within an unnamed tributary of
Big Tujunga Creek that is 500 feet downstream of Foothill Boulevard.
Our Response: We have not been provided with enough information to
determine the location of this unnamed tributary. However, the
floodplain of Big Tujunga Creek meets the definition of critical
habitat since it contains the necessary hydrology, substrates, water,
and vegetation essential to the conservation of the species. Therefore,
any tributaries with these primary constituent elements are considered
critical habitat when they are within the Big Tujunga Creek floodplain.
Under the Act, we can revise critical habitat in the future, if new
information becomes available.
(23) Comment: Some commenters stated that Little Tujunga Creek in
Unit 3 should be excluded from critical habitat because it is not
occupied by the sucker, and does not provide sediment or water to
occupied habitat in Big Tujunga Creek. Other commenters emphasized the
importance of maintaining the original area proposed as critical
habitat, including Little Tujunga Creek.
Our Response: Based on comments and information we received during
the public comment periods and additional field investigations, we have
removed Little Tujunga Creek upstream of its confluence with Big
Tujunga Creek from the final critical habitat designation and revised
the maps accordingly.
(24) Comment: In Unit 3, critical habitat should be designated in
Trail Canyon and La Paloma Canyon and all other tributaries to the Big
Tujunga Creek.
Our Response: Although we appreciate the potential for habitat and
water supply in Trail and La Paloma Canyons, as well as in many of the
other tributaries to Big Tujunga Creek, we do not have sufficient
information to determine if these tributaries contain the primary
constituent elements essential to the conservation of the sucker.
Therefore, we cannot designate these areas as critical habitat. Under
the Act, we can revise critical habitat in the future, if new
information becomes available.
(25) Comment: Critical habitat should be designated in the Los
Angeles River between State Route 134 and Interstate 5.
Our Response: Although we appreciate the potential for habitat in
this portion of the Los Angeles River, we do not have sufficient
information to determine if it contains the primary constituent
elements essential to the conservation of the sucker. Therefore, we
cannot designate this area as critical habitat. Under the Act, we can
revise critical habitat in the future, if new information becomes
available.
(26) Comment: Unit 1B (Santa Ana Wash) is not occupied and
therefore is not essential to the conservation of the species. Also,
Mill Creek is generally dry and could not support the sucker.
Furthermore, the Service has not demonstrated that Unit 1B supports a
natural hydrograph, is essential to the conservation of the species, or
is necessary for the long-term viability of the species.
Our Response: As stated in the previous final critical habitat rule
or listing rule, Mill Creek, City Creek, and the upper Santa Ana Wash
in Unit 1B are a source of sediment for the occupied portion of the
Santa Ana River (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan
Baskin, pers. comm. 2004; EIP Associates 2004). This sediment, which is
composed of cobble, gravel, and sand, provides spawning and feeding
substrates for the sucker and is essential to the conservation of the
species.
In addition to sediment transport, Unit 1B supports a functioning
hydrological system (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan
Baskin, pers. comm. 2004) that experiences peaks and ebbs in water
volume within the Santa Ana River watershed (Dr. Thomas Haglund, pers.
comm. 2004; Dr. Jonathan Baskin, pers. comm. 2004). Although much of
the surface water within Unit 1B has been diverted for municipal uses
or other purposes, heavy rainstorms during the rainy season do provide
flows that are biologically important to the sucker (Swift 2001; EIP
Associates 2004).
While the Santa Ana Wash was proposed as critical habitat based on,
among other things, its contribution of sediments and maintenance of a
functioning hydrograph, these attributes do not, of themselves, warrant
determining that an area is ``essential to the conservation of the
species'', which is the statutory standard for designation of
unoccupied areas. Therefore, Unit 1B, Santa Ana Wash, has been removed
from the revised designation. The basis for this removal is summarized
in the section entitled ``Summary of Changes''.
(27) Comment: Unit 1B does not support riparian systems that are
essential to the conservation of the sucker.
Our Response: As stated in previous rules, the existing riparian
habitat in City Creek, Mill Creek, and the upper Santa Ana Wash in Unit
1B contributes to maintaining water quality and the community structure
essential for the conservation of the sucker. City Creek, Mill Creek,
and the upper Santa Ana Wash contribute organic nutrients (e.g., woody
debris, invertebrates) to the system (Klapproth and Johnson 2000a;
Sweeney 1993) and filter pollutants and sediments entering the
watershed (Mills and Stevenson 1999; Klapproth and Johnson 2000b.
Unit 1B, Santa Ana Wash, has been removed from the revised
designation. The basis for this removal is summarized in the section
entitled ``Summary of Changes''.
(28) Comment: In Unit 1B, the Service inconsistently and
arbitrarily included a portion of the Santa Ana River covered by the
Santa Ana Sucker (SAS) Conservation Program. This portion of the river
extends upstream from the La Cadena Avenue bridge to the Mission
Channel confluence with the Santa Ana River.
Our Response: The portion of Unit 1B between the La Cadena Avenue
bridge and the Mission Channel confluence was inadvertently included in
the previous critical habitat designation. The text and maps have been
modified in this revised final rule to reflect the exclusion of all
areas covered by the SAS Conservation Program as allowed under section
4(b)(2) of the Act (see Unit 1 map).
(29) Comment: There are no new anticipated impacts to the Santa Ana
Wash (Unit 1B) and therefore, it should be excluded from critical
habitat designation.
Our Response: The Santa Ana Wash is threatened by rapid development
of the Santa Ana River watershed in San Bernardino County, and by the
demand for increased building materials (e.g., sand and gravel) and
water supplies. However, Unit 1B, Santa Ana Wash, has been removed from
the revised designation. The basis for this removal is summarized in
the section entitled ``Summary of Changes''.
(30) Comment: Chino Creek in Unit 1A does not contain habitat for
the Santa Ana sucker and should be removed from the critical habitat
designation.
[[Page 432]]
Our Response: Chino Creek supported the Santa Ana sucker
historically (Koehn, in litt. 1966), and still contains one or more of
the primary constituent elements (Swift, pers. comm. 2004). In
addition, the riparian habitat adjacent to the stream and the stream's
contribution to the overall hydrological regime help the sucker
population in the Santa Ana River.
While Chino Creek in the Northern Prado Basin was proposed as
critical habitat based on, among other things, its contribution of
sediments and maintenance of a functioning hydrograph, these attributes
do not, of themselves, warrant determining that an area is ``essential
to the conservation of the species'', which is the statutory standard
for designation of unoccupied areas. Therefore, Unit 1A, Northern Prado
Basin, has been removed from the revised designation. The basis for
this removal is summarized in the section entitled ``Summary of
Changes''.
(31) Comment: Critical habitat should be designated in Cajon Creek,
a tributary to the Santa Ana River.
Our Response: Although we appreciate the potential for sucker
habitat in Cajon Creek, we do not have sufficient information to
determine if this tributary contains the primary constituent elements
essential to conservation of the sucker. Therefore, we cannot designate
this tributary as critical habitat. Under the Act, we can revise
critical habitat in the future, if new information becomes available.
(32) Comment: Please clarify if energy facilities are specifically
excluded from the designated critical habitat and whether this includes
powerhouse number 3 on Mill Creek in Unit 1B.
Our Response: We have clarified the language in the final rule to
specifically exclude energy production facilities from the critical
habitat designation. However, stream channels adjacent to energy
production facilities within the geographical boundaries of the
critical habitat designation that contain one or more of the primary
constituent elements are considered critical habitat. Unit 1B, which
includes Mill Creek, has been removed from the revised critical habitat
designation.
Issue 3: Comments on Science
(33) Comment: Information used in designating critical habitat was
inaccurate, insufficient, and not the best available data.
Our Response: We believe we used the best available commercial and
scientific data to designate critical habitat for the sucker, including
peer-reviewed primary source journal articles, expert opinions, species
survey reports, project reports, and other scientific studies. All new
information provided during the public comment periods was considered
in this final designation as appropriate.
Issue 4: Procedural and Legal Comments
(34) Comment: The Service cannot exclude lands covered by
conservation plans from critical habitat if those plans use public
funds and lands to mitigate the taking of threatened and endangered
species by private applicants for private purposes.
Our Response: Section 4(b)(2) of the Act allows the Service to
exclude any area from critical habitat if the Service determines the
benefits of such exclusion outweigh the benefits of designating such
area as critical habitat, unless, based on the best scientific and
commercial data available, the Service determines that failure to
designate the area as critical habitat will result in the extinction of
the species. Exclusions under section 4(b)(2) can be based on INRMPs,
HCPs, and formal conservation plans, or other relevant considerations.
In the case of HCPs and other formal conservation plans, the Service
must determine that the plan provides conservation benefit to the
species, and assurances that the management plan will be implemented
and the conservation effort will be effective. The Service is not
prohibited from excluding lands covered by plans using public funds or
public lands if the plan meets the aforementioned criteria.
(35) Comment: The Service unlawfully pre-determined that the
exclusion of essential sucker habitat from designated critical habitat
outweighs any benefit.
Our Response: We issued the final rule (69 FR 8839) designating
critical habitat for the sucker without the opportunity for public
comment, because we found it would be impracticable and contrary to the
public interest to delay the effective date of the final rule (see
comment 37 for further details). In the proposed rule (69 FR 8911) that
was published concurrently with the final rule, we specifically
solicited comments from the public on the exclusion of essential
habitat from the critical habitat designation. If additional
information had been submitted during the comment period indicating
that the conservation plans on which these exclusions were based were
not conserving the sucker, we could have re-proposed critical habitat
for the excluded areas. However, we did not receive any comments to
that effect. Furthermore, the Western Riverside MSHCP has been
finalized and an Incidental Take Permit has been issued for this plan.
Significant progress has been made in the ongoing formal consultation
with the U.S. Army Corps of Engineers (the Corps) on the SAS
Conservation Program and we expect to issue a biological opinion on
this program shortly. Therefore, we have excluded these areas of
essential habitat from the critical habitat designation as allowed
under section 4(b)(2).
(36) Comments: The Service did not comply with the National
Environmental Policy Act (NEPA). Under NEPA, an Environmental Impact
Statement or an Environmental Assessment must be prepared.
Our Response: Environmental impact statements and environmental
assessments, as defined under NEPA, are not required for regulations
enacted under section 4 of the Act (see 48 FR 49244; October 25, 1983).
We published a notice outlining our reasons for this determination in
the Federal Register on October 25, 1983 (48 FR 49244).
(37) Comment: The rights of concerned citizens were violated
because they were not allowed to participate in the rule-making
process.
Our Response: The Service published the previous final rule
designating critical habitat for the sucker (69 FR 8839) without
providing an opportunity for the public to comment under the good cause
exemption of the Administrative Procedure Act (APA). Section 553(b)(B)
of the APA recognizes an exemption to the public comment requirements.
The Service issued the final rule designating critical habitat for the
sucker without the opportunity for public comment, because we found it
would be impracticable and contrary to the public interest to delay the
effective date of the final rule (see comment 37 for further details).
The Service also provided the opportunity for the public to comment on
the proposed rule identical to and issued concurrently with the final
rule. We have reviewed and responded to the substantive comments that
we received by the deadline of the each of the 4 public comment
periods. Based on these comments, we have revised the final rule to
reflect corrections and modifications to the final rule designating
critical habitat for the sucker as appropriate.
(38) Comment: The Service failed to hold formal public hearings as
required under section 556 and 557 of title 5 of the APA. In addition,
all settlements resulting from ongoing negotiations with the Service
should be made part of the administrative record for this critical
habitat designation.
Our Response: Section 553(d) of the APA allows publication of a
final rule
[[Page 433]]
to take effect immediately upon publication if the agency finds good
cause for doing so and provides the reasoning in the final rule. In the
final rule published on February 26, 2004, designating critical habitat
for the Santa Ana sucker, we stated that we found good cause to make
the final rule effective immediately upon publication for reasons
outlined in the response to comment 37. Delaying publication of the
rule to hold public hearings would have been impracticable and contrary
to the public interest at that time (69 FR 8840). We subsequently held
a public hearing on the proposed rule--which was identical to and
published concurrently with the final rule--on September 9, 2004.
Therefore, we have complied with the requirements of the APA and the
Act.
(39) Comment: The Service can publish a rule that is effective
immediately only if the Service has determined the sucker requires
emergency protection. If the Service publishes a rule that is effective
immediately, the Service must incorporate reasons for the emergency
determination into the final rule. Since there was no justification for
emergency designation included in the publication of the final rule,
the final rule is invalid and unenforceable.
Our Response: Section 553(d) of the APA allows publication of a
final rule to take effect immediately upon publication if the agency
finds good cause for doing so and provides the reasoning in the final
rule. In the final rule published on February 26, 2004, designating
critical habitat for the Santa Ana sucker, we stated that we found good
cause to make the final rule effective immediately upon publication for
the following reasons: (1) To comply with the district court's order;
(2) to conduct section 7 consultations and prepare written concurrences
regarding projects funded, permitted, or carried out by Federal
agencies that may affect the Santa Ana sucker or its essential habitat;
(3) to ensure those activities will not jeopardize the continued
existence of the species; and (4) to ensure Federal agencies can comply
with the requirements of the Act, including section 9. Delaying the
effective date of the rule would have been impracticable and contrary
to the public interest (69 FR 8840). We complied with the requirements
of the APA and the Act and therefore the rule is valid and effective.
The Service did not issue the final rule based on an emergency finding
requiring immediate designation of critical habitat for the sucker.
(40) Comment: Data were not made available for public review.
Our Response: As stated in the proposed and final critical habitat
rules published on February 26, 2004, the supporting information for
the rules is available to the public for inspection, by appointment,
during normal business hours at the U.S. Fish and Wildlife Service
office in Carlsbad, California.
(41) Comment: The designation of critical habitat in the Santa Ana
and San Gabriel Rivers, and the Big Tujunga Creek will limit the
ability of flood control agencies and water conservation districts from
maintaining sufficient flood protection and water supplies.
Our Response: The designation of critical habitat does not prevent
public agencies from implementing flood control protection and water
conservation actions. If these actions require a Federal permit,
funding, or permission and if the Federal agency determines that these
actions may adversely modify designated critical habitat, the Federal
agency must request consultation with the Service prior to initiating
that action.
(42) Comment: The designation of critical habitat should not
preclude cooperative conservation efforts implemented in concert with
actions that may adversely affect the sucker.
Our Response: We encourage cooperative conservation efforts by
private individuals, organizations, and local, county, State, and
Federal government agencies. We will continue to work with Federal,
State, and local entities and private individuals to minimize project-
related impacts to the sucker and its habitat.
Issue 5: Misinterpretation of the Original Final Rule
(43) Comment: The Service unfairly exempted Federal agencies and
private individuals from the requirements of critical habitat.
Our Response: In the previous final rule, the Service did not
exempt Federal agencies or private individuals from regulations
regarding critical habitat. Instead, the Service described potential
Federal actions that may be affected by the critical habitat
designation or that may affect critical habitat. If a Federal agency
determines their action may affect critical habitat, then they will be
required to consult with the Service under section 7 of the Act.
Private individuals do not have to consult with the Service if their
actions may affect critical habitat unless their actions are permitted
or funded by a Federal agency. However, private individuals should
consult with the Service if their actions have the potential to result
in take of individual suckers and therefore violate section 9 of the
Act.
(44) Comment: The critical habitat designation will result in the
closure of the National Forest lands to the public resulting in
significant effects to many recreational users.
Our Response: The designation of critical habitat does not require
the Forest Service to close critical habitat areas within the National
Forest to the public. The Forest Service will be required to consult
with the Service under section 7 of the Act, if they determine that any
of their actions may adversely modify critical habitat. However, we
intend to continue working with the Forest Service to minimize any
impacts to the sucker and its habitat that may result from recreation
activities.
Issue 6: Comments on Economic Analysis or Lack of Economic Analysis
(45) Comment: The Service violated the Act because it did not
complete an economic analysis prior to issuing a final critical habitat
rule, and therefore the rule should be vacated.
Our Response: As previously stated (see response to comments 35 and
37), we dispensed with the notice and comment period for the final
designation of critical habitat under the good cause exemption of the
APA (69 FR 8839), while concurrently publishing the proposed rule to
allow for public comment. In the proposed rule (69 FR 8911), we
announced our intention to prepare an economic analysis and seek public
review and comment on the economic analysis.
(46) Comment: Several comments objected to the short timeframe
allowed for comments and the lack of immediate availability of the
draft economic analysis online.
Our Response: We had two comment periods for the draft Economic
Analysis, the first for 10 days and the second for 30 days. A Notice of
Availability (NOA) was published in the Federal Register on October 1,
2004 (69 FR 58876) opening a 10-day public comment period on the
economic analysis. On October 25, 2004, we published another notice in
the Federal Register (69 FR 62238) reopening a 30-day comment period on
the draft economic analysis and the proposed designation. All comments
on the economic analysis have been incorporated into the final economic
analysis and the revised final rule as appropriate.
(47) Comment: Two groups suggested that prior written comments they
had submitted concerning the economic impacts of the Santa Ana Sucker
critical
[[Page 434]]
habitat designation were not addressed by the draft economic analysis.
Our Response: Northwest Economic Associates (NEA) and the Service
reviewed all of the previously submitted comments in the course of
preparing the draft economic analysis. The comments provided useful
insight into potential economic effects of the listing and designation
of critical habitat for the sucker. However, in some cases, further
research revealed that the economic effects could not be substantiated
through available information or that the effects were considered too
speculative to be considered reasonably foreseeable. For example, one
commenter noted that private lands within critical habitat that are
dedicated for recreational purposes but not excluded will require ``re-
evaluation of [previously approved] private projects.'' This re-
evaluation would result in assessment of an ``appropriate fee,'' with
an effect of ``greater than 100 million dollars.'' The authors found no
evidence that such a fee would result from designation of critical
habitat. In other cases, the draft economic analysis included costs
that were not addressed by prior written comments.
(48) Comment: One comment suggested that the amenity values
estimates should appear in the main report, not an appendix.
Our Response: See response to Comment 49.
(49) Comment: One comment suggested that the amenity values as
analyzed are highly conservative and that a broader range should be
presented, using a broader range of assumptions. This comment also
stated that other benefits, such as indirect or non-use benefits,
should be analyzed as well. It also criticized the use of different
accounting standards in the evaluation of benefits (amenity values) and
costs.
Our Response: We appreciate the comment in support of the approach
used in the DEA to estimate some of the economic benefits that may be
associated with designating riparian corridors as critical habitat for
the SAS. However, after further consideration and consultation with the
Office of Management and Budget (OMB), we have decided that this
approach does not fully meet the minimum standards required by OMB in
estimating the potential economic benefits of a proposed Federal
action. OMB Circular A-4 stresses that the Benefit-Transfer method,
which was the approach used in the DEA, should only be used as a last-
resort option to measuring benefits and should not be used without
explicit justification. The underlying rationale for this reasoning is
that while the Benefit-Transfer method can provide a quick, low-cost
approach for obtaining desired monetary values (as opposed to
collecting original data), the methods are often associated with
uncertainties and potential biases of unknown magnitude.
Circular A-4 is very specific in the criteria that must be
satisfied in order to use the Benefit-Transfer method. Criteria include
using studies that are based on adequate data, sound and defensible
empirical methods and techniques, and ensuring that the studies relied
upon are measuring similar values that do not have unique attributes.
In the DEA, we relied on two studies (Colby and Wishart 2002, Streiner
and Loomis 1995) the first measuring the property value premium
riparian areas generate for nearby landowners in the arid West, the
second measuring the benefits incurred by nearby landowners associated
with restoring degraded urban streams. Neither study, it was determined
after consultation with OMB, fully met the necessary criteria to base
an assessment of the potential economic benefits of SAS critical
habitat designation. In the Colby study, concern was expressed over the
statistical robustness of the overall model. Concerns over the Loomis
study focused on the fact that the measurement of the value associated
with restoring degraded riparian corridors was not equivalent to the
designation of critical habitat, which essentially recognizes healthy
riparian corridors that can support the species. While we attempted to
address these and other concerns in the DEA, we were not able to fully
satisfy all of the necessary criteria that would allow us to transfer
the findings of these two studies to the SAS.
In future analyses we will continue to investigate the
appropriateness of using existing data to estimate the economic
benefits of critical habitat designation. However, even if we are able
to credibly measure such effects, we continue to believe that in
carrying out our duty under section 4(b)(2) of the Act that the
benefits associated with designating any particular area as critical
habitat are best expressed and considered in biological terms.
(50) Comment: One comment questioned the failure of the draft
economic analysis to address economic impacts to the mining industry.
An independent report on potential economic impacts was attached to
this comment in support.
Our Response: The draft economic analysis considered impacts to the
sand and gravel mining industry. Sand and gravel are important
resources in southern California that support development activities
such as residential and commercial construction and road building. Due
to the costs of transporting the material, sand and gravel mines tend
to be located in areas relatively near development. Some of these mines
have historically been, and continue to be, located within flood plains
and can directly impact sucker habitat. The upper Santa Ana River area
has had mining activities for many years.
The boundaries of the proposed critical habitat exclude existing
mining activities and the Service has indicated that no burdens will be
imposed on existing facilities that operate according to historic
practices, as discussed in the draft economic analysis. The independent
report suggests the possibility of future expansion of mining
activities within Unit 1B. The Corps has received no request for
permits to expand operations within the proposed critical habitat.
There has only been one emergency consultation associated with sand and
gravel mining since the sucker was listed, and it was conducted to
protect a bridge and did not involve an ongoing commercial operation.
While it is true that new mining activity is being considered within
Unit 1B, there is no information with which to demonstrate economic
effects. An HCP that will cover mining activities is in the initial
stages of development but lacks sufficient detail to base reasonable
predictions on how the critical habitat designation for the sucker will
affect new mining activities within Unit 1B. However, the HCP has not
yet specifically considered the Santa Ana sucker, and therefore no
documentation is available to suggest additional conservation measures
that may need to be adopted. Furthermore, Unit 1B is not included in
the revised critical habitat designation.
(51) Comment: One comment questioned the failure of the draft
economic analysis to address economic impacts of the water conservation
project at Seven Oaks Dam in Unit 1B.
Our Response: The draft economic analysis considered potential
economic impacts to the proposed water conservation project. According
to the Corps, Seven Oaks Dam has not been permitted as a water
conservation facility. Its primary purpose is for flood control.
Several agencies have pursued the idea of using Seven Oaks as a source
of municipal water supply. For example, a letter dated December 11,
2000 from the Service to the Corps attached to the comment letter
refers to actions by the Corps and the San
[[Page 435]]
Bernardino Valley Municipal Water District indicating that water
conservation activities are reasonably certain to occur and that the
application accompanying the petition to revise the appropriation of
the Santa Ana River requests the right to store up to 50,000 acre-feet
per annum in the reservoir formed by Seven Oaks Dam. However, recent
discussions with the Corps suggest that no decisions to change the
dam's purpose have been finalized. It is uncertain whether Seven Oaks
Dam will be permitted for water conservation with or without critical
habitat designation for the sucker. Furthermore, the Service has
indicated that it will not require conservation measures unless the
releases from the dam are altered from past practices. There is no
indication how and if the flow regime will be altered even if the dam
is used to provide additional water supply to municipalities.
Furthermore, we find no evidence that the Corps is proposing a change
of use of the facility to include water conservation.
(52) Comment: One comment stated that the although they believe the
draft economic analysis underestimates the full economic impact of
critical habitat designation, the estimates contained in the analysis
still support the exclusion of Unit 1B as benefits do not outweigh
costs.
Our Response: The draft economic analysis did consider the effects
of mining and water conservation as described above. Also as discussed
above, we did consider the economic and other impacts of the
designation when we issued our interim rule, however we also conducted
an economic analysis to more fully consider these impacts.
(53) Comment: Two groups asserted that the draft economic analysis
mischaracterizes the San Gabriel Canyon OHV Area status, and expressed
a desire to have local efforts toward sucker recovery be included in
the draft economic analysis.
Our Response: The draft economic analysis included efforts to
properly characterize the status of OHV use in the San Gabriel Canyon.
In response to the Santa Ana sucker's listing and critical habitat
designation, the Forest Service has installed information signs in the
OHV area. In the OHV staging area, there are some educational brochures
available with general information on acceptable and unacceptable
behaviors. There is also a kiosk with informational signs relating to
the sucker. In the past three years, the Forest Service has coordinated
with the Service and California Department of Fish and Game (CDFG) to
develop ``avoidance criteria'' for OHV users at San Gabriel OHV Park,
to include the elimination of two stream crossings and the placement of
rock and boulders along the riverbank to prevent people from driving
into the river. Patrols have increased in sensitive areas, especially
during weekends. The Forest Service also has worked with the local OHV
club to develop sucker education programs. In addition to the Forest
Service efforts, the OHV club is self-policing its members. The OHV
club has placed at least one vehicle and drivers per weekend at the San
Gabriel OHV Area for the past several years. The draft economic
analysis included costs associated with efforts by local OHV groups to
provide protection measures and minimize impacts to sucker habitat (pp.
75-78). These costs are shown in Tables 30 and 31 of the draft economic
analysis.
(54) Comment: Two groups claim that mitigation of other projects,
such as dams, is incorrectly described within the draft economic
analysis and that the costs of mitigation are understated.
Our Response: There are five flood control dams and multiple
hydroelectric facilities operating in and around the essential habitat
units for the sucker. The economic effects on these operations were
quantified in Section 6.6 of the draft economic analysis.
(55) Comment: Two groups suggest that the draft economic analysis
should address recovery.
Our Response: Economic analyses only address cost associated with
designation of critical habitat, as required by the Act.
(56) Comment: One group suggests that the draft economic analysis
findings support the inclusion of all areas currently designated as
critical habitat for the sucker.
Our Response: The Secretary considers the draft economic analysis
along with other information in determining whether the benefits of
excluding particular areas from a revised final critical habitat
designation outweigh the biological benefits of including those areas
in a revised final designation.
(57) Comment: One comment from the Santa Ana Watershed Project
Authority provided a number of details on the Santa Ana Regional
Interceptor (SARI) line to correct information presented in the draft
economic analysis. The comment noted the difficulty in estimating costs
for a project that is still conceptual and suggests that the ultimate
design choice will likely result in costs ``significantly less'' than
those in the draft economic analysis.
Our Response: We appreciate the comment from the watershed
authority. The draft economic analysis was based at the time on the
information obtained through the Corps, Orange County Sanitation
District, and public information about the line available through the
internet. The analysis recognizes that a variety of alternatives are
under consideration at this time and that associated construction cost
estimates are preliminary. However, because the commenter did not
provide any specific new estimates, we will rely on those presented in
the draft economic analysis, with the understanding that they may
overstate actual final costs should one of the design alternatives be
implemented.
(58) Comment: The County of Los Angeles Department of Public Works
submitted a very detailed comment letter addressing a number of
specific areas in the draft economic analysis. This letter was received
after the deadline for comments. Nevertheless, the comments are
addressed below.
Our Response: The County of Los Angeles Department of Public Works
(Public Works) provides several comments that argue for exclusion of
Unit 3, Big Tujunga Creek. In addition, Public Works provides several
comments that can be addressed through minor changes and additions to
the text in the draft economic analysis and do not result in changes to
estimated economic effects. Public Works expressed concern that future
utilization of sediment placement sites may be affected by sucker
conservation activities. However, there is no evidence from past
consultations to suggest that current sediment placement sites will be
affected or will be the subject of future consultations. In the comment
letter, Public Works speculates that future sucker conservation
activities will affect the availability of water conservation storage
in San Gabriel Reservoir. However, as stated in the draft economic
analysis, no conservation measure or ponding restrictions are
anticipated as protection measures for the sucker. Consequently, it was
considered to be reasonable to exclude water conservation losses in San
Gabriel Reservoir in the draft economic analysis.
Several of the comments from Public Works addressed sediment
removal activities. Public Works stated that the draft economic
analysis failed to mention the sediment management plan for Cogswell
Reservoir and associated sucker conservation activities. While the
draft economic analysis does not mention the plan or consider sucker-
related costs, the authors believe that
[[Page 436]]
the conservation measures discussed in the comment letter would be
implemented with or without the sucker listing and critical habitat
designation. It appears that these measures were in place prior to the
sucker listing and that they were instituted for the benefit of a
number of fish species and have not been altered to specifically
address the Santa Ana sucker. Public Works states that periodic
cleanouts of Big Tujunga Reservoir will also be necessary in the future
and that annual monitoring of the sucker will likely be required as a
result. This is new information that was not considered in the draft
economic analysis, as it was received after the close of the comment
period. Public Works estimates that annual sucker-related costs for the
routine cleanouts, which will occur once every ten years, will be
$82,350.
Public Works also contends that ongoing costs associated with the
Big Tujunga Wash Mitigation Bank should be included in the economic
analysis. Mitigation Bank costs were not included in the draft economic
analysis because the site was purchased as mitigation for flood control
activities prior to the sucker listing. Furthermore, it appears that
the activities related to the Mitigation Bank cited in the comment
letter would have occurred with or without the sucker listing and
critical habitat designation. While it is possible that a small portion
of the costs of these activities could be attributed to sucker-related
conservation activities, the consultation history reveals that these
activities presented only minor concerns for the sucker.
Finally, Public Works argues for inclusion of potential impacts to
energy supply at San Gabriel Dam and provides an estimate of losses
between $300,000 and $1 million annually. However, Public Works admits
that it is ``not aware of any final Santa Ana Sucker Conservation
Strategy adopted yet for the San Gabriel River.'' The estimates of
hydropower losses are contingent upon hypothetical reservoir level
restrictions. Such restrictions have not been imposed and there is
little indication to suggest that they will be imposed in the
foreseeable future.
(59) Comment: Public Works states that the draft economic analysis
does not fully consider the economic costs of components of private
development projects that are transferred to public agencies for
management.
Our Response: The draft economic analysis utilized the development
mitigation costs as presented in the Western Riverside MSHCP as a means
of estimating economic costs of private development. These costs are
considered to be representative of the full costs of mitigation,
including ongoing management. While there may be some additional costs
associated with ongoing operation and maintenance of specific
components of development projects, at this time there is inadequate
information available to support their inclusion in the draft economic
analysis.
(60) Comment: Public Works states that the effects on road
maintenance and transportation are underestimated in the analysis
because it only considers costs related to past transportation
projects, noting: ``There were only 4 past project[s], all of which
were related to Bridge Projects.''
Our Response: The draft economic analysis considered a broader
approach in estimating future costs. Future projects were estimated
using Geographic Information System (GIS) coverage of past Corps
permitting within the Santa Ana sucker critical and essential habitat
boundaries to identify projects occurring within sucker habitat. In
total, 49 Corps permits were issued within sucker habitat between 1999
and 2003. All permits involving construction and maintenance of
transportation facilities were selected from this list. In total, ten
permits were issued for transportation projects over the five-year
period. Thus, the draft economic analysis considers future sucker-
related costs on transportation activities by assuming that past
permits are appropriate indicators of future costs. Public Works
further contends that affected transportation projects are likely to
increase in the future. However, no evidence was uncovered during
research for the draft economic analysis to support this conclusion.
(61) Comment: One comment notes that ``the ensuing analysis on
small entities [addressed in Appendix A] appears to not include costs
to the Corps and Public Works. The comment quotes Paragraph 3 of Page
A-4, which includes: ``There are five flood control dams operating in
and around the critical and essential habitat units for the sucker * *
*. The facilities are operated by the U.S. Army Corps of Engineers or
owned by [Public Works], and do qualify as small entities.''
Our Response: Although the authors acknowledge the quote on Page A-
4, the statement in the draft economic analysis is in error. The last
sentence should state, ``The facilities are operated by the USACE or
owned by the LADPW, and do not qualify as small entities.'' The
analysis remains unchanged, as these facilities exceed the size
standards for small entities, and were properly omitted from the
analysis.
Summary of Changes From the Proposed Rule and the Original Final Rule
On the basis of public comments, we reviewed our description and
delineation of critical habitat in the Big Tujunga Creek and the San
Gabriel and Santa Ana Rivers. Using information provided in these
comments and obtained from field work, we removed Little Tujunga Creek
upstream of its confluence with Big Tujunga Creek in Los Angeles County
from the critical habitat designation in Unit 3, Big Tujunga Creek. We
also refined the text to accurately reflect the critical habitat
designation in the San Gabriel River. The text in the proposed rule
stated that the upper boundary of Unit 2 along the East Fork of the San
Gabriel River in Los Angeles County extended to the Bridge-of-No-
Return. However, this upper boundary was not delineated on the map or
the legal description of this unit. While this area is essential to the
conservation of the species, it cannot be included in the revised final
rule since it was never actually proposed.
We also removed proposed units 1A and B from the designation. Units
1A and 1B were proposed because are a source of sediment for the
occupied portion of the Santa Ana River. This sediment, which is
composed of cobble, gravel, and sand, provides spawning and feeding
substrates for the sucker downstream of the proposed units. They were
also proposed due to their conveying flood waters to help maintain
variability in the hydrological system downstream, because they support
riparian vegetation that provides organic nutrients and woody debris
which becomes food for the species downstream, and because potions were
historically, but not currently, occupied.
However, these attributes do not, of themselves, warrant
determining that an area is ``essential to the conservation of the
species'', which is the statutory standard for designation of
unoccupied areas. There are many things--indeed, an almost endless
range of possibilities--which contribute to the maintenance of primary
constituent elements or otherwise provide a beneficial influence to
areas designated as critical habitat. That does not warrant also
designating the areas from which they originate, or pass through, as
critical habitat.
In fact, Congress has instructed us to be ``exceedingly
circumspect'' in designating critical habitat outside of areas
currently occupied by the species (House Report 95-1625). With that
guidance in mind, we do not find these unoccupied areas essential to
the
[[Page 437]]
conservation of the species, and so have not designated them as
critical habitat.
Overall, these changes resulted in reducing the designated critical
habitat by 12,824 ac (5,190 ha). Table 1 outlines the changes in
acreages for each unit between the original and revised final rules.
Table 1.--Changes in Acreages (ac; ha) for Each of the Units Between
Original and Revised Final Rules
------------------------------------------------------------------------
Original final
Unit rule Revised final rule
------------------------------------------------------------------------
Santa Ana River, San 11,709 ac 0 ac (0 ha)
Bernardino County (Units 1A (4,738 ha).
and 1B).
San Gabriel River, Los 5,765 ac (2,333 5,765 ac (2,333 ha)
Angeles County (Unit 2). ha).
Big Tujunga Creek, Los 3,655 ac (1,479 2,540 ac (1,028 ha)
Angeles County (Unit 3). ha).
------------------
Total................... 21,129 ac 8,305 ac (3,361 ha)
(8,551 ha).
------------------------------------------------------------------------
Critical Habitat
Please refer to the previous final rule designating critical
habitat for the Santa Ana sucker for a general discussion of sections
3, 4, and 7 of the Act and our policy in relation to the designation of
critical habitat (69 FR 8839).
Methods
As required by section 4(b) of the Act and its implementing
regulations (50 CFR 424.12), this rule is based on the best scientific
and commercial data available concerning the species' current and
historical range, habitat, biology, and threats. In preparing this
rule, we reviewed and summarized the current information available on
the Santa Ana sucker, including the physical and biological features
essential for the conservation of the species (see ``Primary
Constituent Elements'' section), and identified the areas containing
these features. We also identified areas outside the geographic range
of the species that are essential for its conservation. These areas
contribute sediment necessary to maintain breeding and feeding
substrates in occupied areas. The information used in the preparation
of this designation includes: site-specific species and habitat
information collected and/or maintained by the Service; the California
Natural Diversity Database (CNDDB); unpublished survey reports, notes,
and communications with qualified biologists or experts; peer reviewed
scientific publications; the Angeles National Forest Santa Ana Sucker
Conservation Strategy (U.S. Forest Service 2003); the SAS Conservation
Program (Conservation Team 2003); the final listing rule for the sucker
published April 12, 2000 (65 FR 19686); and discussions and
recommendations from Santa Ana sucker experts.
Primary Constituent Elements
In accordance with sections 3(5)(A)(i) of the Act and regulations
at 50 CFR 424.12, in determining which areas to designate as critical
habitat, we are required to base critical habitat determinations on the
best scientific and commercial data available and to focus on those
physical and biological features (primary constituent elements)
essential to the conservation of the species and may require special
management considerations or protection. These primary constituent
elements include, but are not limited to: space for individual and
population growth and for normal behavior; food, water, air, light,
minerals, or other nutritional or physiological requirements; cover or
shelter; sites for breeding, reproduction, rearing (or development) of
offspring; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
Much of what is known about the physical and biological
requirements of Santa Ana sucker was described in the previously
published final rule designating critical habitat for the species (69
FR 8839). The primary constituent elements for the Santa Ana sucker
were determined by reviewing studies examining the habitat requirements
and ecology of the sucker in the Santa Ana River (Allen 2003; Baskin
and Haglund 2001; Haglund et al. 2003; Haglund et al. 2004; Saiki 2000;
Swift 2001), the San Gabriel River (Saiki 2000; Haglund and Baskin
2002; Haglund and Baskin 2003), and the Santa Clara River (Greenfield
et al. 1970). Designated critical habitat has been designed to provide
sufficient habitat to maintain self-sustaining populations of sucker
throughout its range, and to provide those physical or biological
features essential for the conservation of the species. These physical
or biological features provide for the following: (1) Space for
individual and population growth and for normal behavior (primary
constituent elements 1, 2, 3, and 6); (2) food, water, air, light,
minerals, or other nutritional or physiological requirements (primary
constituent elements 1, 2, 3, 4, 5, and 6); (3) cover or shelter
(primary constituent elements 2 and 6); (4); sites for breeding,
reproduction, and development of offspring (primary constituent
elements 1, 2, 3, and 6); and (5) habitats that are representative of
the historic geographical and ecological distribution of the species
(primary constituent elements 1, 2, 3, 4, 5, and 6). Based on the
occurrence of this species and associated biological information, all
of these physical or biological features are essential to the
conservation of the species.
We believe conservation of the Santa Ana sucker is dependent upon
multiple factors, including the conservation and management of areas to
maintain ``normal'' ecological functions where existing populations
survive and reproduce. The areas we are designating as critical habitat
provide some or all of the physical or biological features essential
for the conservation of this species. Based on the best available
information, the primary constituent elements essential for the
conservation of the sucker are the following:
(1) A functioning hydrological system that experiences peaks and
ebbs in the water volume reflecting seasonal variation in precipitation
throughout the year;
(2) A mosaic of loose sand, gravel, cobble, and boulder substrates
in a series of riffles, runs, pools, and shallow sandy stream margins;
(3) Water depths greater than 3 cm (1.2 in) and bottom water
velocities greater than 0.03 m per second (0.01 ft per second);
(4) Non-turbid water or only seasonally turbid water;
(5) Water temperatures less than 30[deg]C (86[deg]F); and
(6) Stream habitat that includes algae, aquatic emergent
vegetation, macroinvertebrates, and riparian vegetation.
Based on the specific biological and physical requirements of this
species, critical habitat units contain many of the same physical and
biological features. Management, therefore, will
[[Page 438]]
address both the maintenance of these features and the reduction of
threats specific to each critical habitat unit.
Criteria Used To Identify Essential Habitat
We considered several factors in selecting areas essential to the
conservation of the Santa Ana sucker. We reviewed all streams and
rivers currently occupied by the sucker and those areas outside of the
current geographical distribution supporting one or more of the primary
constituent elements.
We analyzed the known historical and current distribution of
suckers based on data from the Carlsbad Fish and Wildlife Office
internal geographic information systems (GIS) database, California
Natural Diversity Database (CNNDB), Los Angeles County Museum
Ichthyology Catalog, and the Fish Division of the University of
Michigan Museum of Zoology. We also reviewed various scientific
articles and reports on the Santa Ana River (Allen 2003; Baskin and
Haglund 2001; Haglund et al. 2003; Haglund et al. 2004; Saiki 2000;
Swift 2001), the Big Tujunga Creek (Haglund and Baskin 2001; Holland
and Swift 2002), and the San Gabriel River (Saiki 2000; Haglund and
Baskin 2002; Haglund and Baskin 2003).
Historically occupied river stretches that have been highly
modified by the construction of canals with concrete-lining on sides
and bottoms were not considered essential habitat. Other historically
occupied habitat no longer providing primary constituent elements were
eliminated from this analysis. We selected areas essential for the
conservation of the sucker based on the potential for restoration and
the presence of one or more of the primary constituent elements in
currently occupied and potentially occupied habitat. We eliminated the
Santa Clara River population in Ventura and Los Angeles counties from
this analysis because it does not appear to represent a native
population of the Santa Ana sucker (and it is not listed). We
determined that streams, rivers, and associated riparian habitat within
the Santa Ana River, San Gabriel River, and Big Tujunga Creek and
associated tributaries provide essential habitat for the sucker.
We then considered if this essential area was adequate for the
conservation of the Santa Ana sucker, and concluded that it is. The
greatest threat to the conservation of the sucker lies in the human-
generated alteration of the function, physical structure, water supply,
and water quality of existing habitat. The physical structure of and
water supply to each of the three currently occupied streams have been
altered by flood control structures (e.g., dams, drop structures,
concrete-lined channels), and water conservation operations. In
addition to these easily identifiable threats, pollution and water
quality standards that are not protective of the sucker also threaten
the survival and recovery of the species.
We used the best available scientific and commercial information to
determine which areas are essential to the conservation of the sucker.
However, we recognize that the historic and recent collection records
for this species are incomplete. River segments or small tributaries
not included in this final designation may harbor small limited
populations of the sucker or may become occupied in the future. The
exclusion of such areas does not diminish their potential individual or
cumulative importance to the conservation of the species. We believe
that proper management of each of the three designated critical habitat
units will provide lasting conditions capable of supporting sucker
populations and allow for assisted or natural dispersal into adjacent
streams in each watershed.
We will continue (with the assistance of State, Federal, and
private researchers), to conduct surveys, research, and conservation
actions on the species and its habitat in areas designated and not
designated as critical habitat. When additional scientific information
becomes available on the species' biology, distribution, and threats,
we will evaluate the need to revise critical habitat or refine
boundaries of critical habitat as appropriate. Areas occupied by this
species that are not designated as critical habitat will continue to
receive protection under the Act's section 7 jeopardy standard where a
Federal nexus may occur (see ``Critical Habitat'' section).
Mapping
We determined that three units are essential to the conservation of
Santa Ana sucker, and are designating critical habitat in 2 of those
units. The third unit consists entirely of essential habitat that is
being excluded pursuant to section 4(b)(2) of the Act (see Exclusions
Under Section 4(b)(2) of the Act for a detailed discussion of this
exclusion). We used site-specific information to determine the extent
of these units. The designated critical habitat units were delineated
by screen digitizing polygons (map units) using ArcView, a computer GIS
program. Based on the known distribution of the sucker, the dynamics of
alluvial floodplain systems, and riparian habitat associated with
rivers and streams, we placed boundaries around the species' locations,
as well as their primary constituent elements. In defining these
critical habitat boundaries, we made an effort to exclude all developed
areas, such as housing developments, active mines, and other lands
unlikely to contain the primary constituent elements essential for the
conservation of the sucker. We used Universal Transverse Mercator (UTM)
zone 11, North American Datum 1927 (NAD27) coordinates in meters (m) to
designate the boundaries of critical habitat.
Need for Special Management Considerations or Protection
Areas occupied by the species and designated as critical habitat
contain one or more of the primary constituent elements essential to
the conservation of the species (see ``Primary Constituent Elements''
section). Unoccupied areas that contain one or more of the PCEs are
also included in the designation. When designating critical habitat, we
assess whether the areas containing PCEs may require special management
considerations or protections. Regulations at 50 CFR 424.02(j) define
special management considerations or protection to mean any methods or
procedures useful in protecting the physical and biological features of
the environment for the conservation of listed species. Critical
habitat designations apply only to Federal activities or those funded
or authorized by a Federal agency.
All critical habitat units identified in this final designation may
require special management considerations or protection to maintain a
functioning hydrological regime consisting of a mosaic of loose sand,
gravel, and cobble substrates; channel morphology (i.e., runs, riffles,
pools, and stream margins); sufficient water quality, volume, and
depth; and complex native stream associations involving algae, aquatic
emergent vegetation, macroinvertebrates, and riparian vegetation. Each
designated unit is threatened by activities that may result in the
alteration of the hydrological system, reduced water quality or supply,
loss of suitable substrates for spawning and feeding, loss of complex
floral and faunal associations, and an increase in populations of
nonnative predatory and competitive species.
We have determined the critical habitat units may require special
management or protection, due to the existing threats to this fish, and
because no long-term protection or management plans exist for any of
the units. Absent
[[Page 439]]
special management or protection, these three units are susceptible to
existing threats and activities such as the ones listed in the
``Effects of Critical Habitat'' section, which could result in
degradation and disappearance of the populations and their habitat.
Critical Habitat Designation
We determined that three units are essential to the conservation of
Santa Ana sucker, and are designating critical habitat in 2 of those
units. The third unit consists entirely of essential habitat that is
being excluded pursuant to section 4(b)(2) of the Act (see Exclusions
Under Section 4(b)(2) of the Act for a detailed discussion of this
exclusion).
Essential Habitat Excluded From Critical Habitat (Unit 1) for Santa Ana
Sucker, Orange, Riverside, and San Bernardino Counties, California
(15,414 ac (6,238 ha))
The Santa Ana River essential habitat excluded from designation
includes the mainstem of the Santa Ana River from the confluence of
Mission Channel and the Santa Ana River downstream to the vicinity of
the Route 90 crossing and portions of Prado Basin, as identified in the
map titled ``Essential habitat excluded from critical habitat (Unit 1)
for Santa Ana Sucker'' in the Regulations Promulgation section. The
Santa Ana River supports one of three listed populations of the Santa
Ana sucker. Approximately 60 percent of the total remaining range of
the listed Santa Ana sucker is in the Santa Ana River (65 FR 19686).
The occupied essential habitat has been excluded from designation
because they fall within the Western Riverside MSHCP (Riverside County)
and the SAS Conservation Program (Orange, Riverside, and San Bernardino
counties). The basis for these exclusions are summarized in the section
entitled ``Exclusions Under 4(b)(2)''.
Critical Habitat Unit Descriptions
We are designating two critical habitat units encompassing 8,305 ac
(3,361 ha) of streams and rivers in Los Angeles County. We are
designating critical habitat on lands having one or more of the primary
constituent elements as described above. Lands designated as critical
habitat are under Federal (6,356 ac (2,573 ha)) and private (1,949 ac
(790 ha)) ownership. For each stream reach identified as a critical
habitat unit, the up- and downstream boundaries are described in
general in the unit descriptions below; more precise latitudinal and
longitudinal (UTM) coordinates for the unit boundaries are provided in
the Regulation Promulgation section of this rule. Habitat areas
contained within the designated units constitute our best evaluation of
areas essential for the conservation of the sucker. Critical habitat
for the sucker may be revised should new information become available.
We have designated critical habitat in Los Angeles County. We
determined that essential habitat for the Santa Ana sucker occurs in
four counties (Los Angeles, Orange, Riverside, and San Bernardino
counties). Essential habitat for the Santa Ana sucker in Riverside,
Orange, and portions of San Bernardino counties is being excluded from
critical habitat designation under section 4(b)(2) of the Act (See
Exclusions Under 4(b)(2) of the Act for a detailed discussion of these
exclusions).
To provide determinable legal descriptions of the critical habitat
boundaries, we drew polygons around these units. Criteria used to
delineate the unit boundaries included the primary constituent
elements, the known extent of the populations, and the extent of
riparian vegetation on an aerial image. We made an effort to avoid
developed areas that are unlikely to contribute to the conservation of
Santa Ana sucker. Areas within the boundaries of the mapped units such
as paved roads, bridges, parking lots, railroad tracks, railroad
trestles, and residential, commercial, and industrial developments
including energy production facilities do not contain one or more of
the primary constituent elements and are therefore not considered
critical habitat for the sucker. Federal actions limited to these areas
would not trigger consultation pursuant to section 7 of the Act, unless
they affect the species or primary constituent elements in the critical
habitat. The areas designated as critical habitat in Los Angeles County
are under Federal and private ownership.
Unit 2: San Gabriel River Critical Habitat Unit, Los Angeles County,
California (5,765 ac (2,333 ha)).
The San Gabriel River Unit (Unit 2) consists of the West, North,
and East Forks of the San Gabriel River and the following tributaries:
Cattle Canyon Creek, Bear Creek, Bichota Canyon Creek, and Big Mermaids
Canyon Creek. The San Gabriel River portion of the unit extends from
the Cogswell Dam on the West Fork to 3,882 ft (1,229 m; 0.77 miles;
1.21 kilometers) downstream of the Bridge-of-No Return on the East
Fork, and just above the confluence of Coldbrook and Soldier creeks on
the North Fork. Suckers occupy the West, North, and East Forks of the
San Gabriel River and Cattle Canyon Creek, Bear Creek, and Big Mermaids
Canyon Creek.
Approximately 15 percent of the total remaining range of the listed
Santa Ana sucker is in the San Gabriel River (65 FR 19686).
Approximately 15 percent of its distribution in the San Gabriel River
Basin occurs on private lands, and the remaining 85 percent occurs in
the Angeles National Forest (65 FR 19686).
The San Gabriel River Unit provides the best remaining habitat
capable of sustaining the Santa Ana sucker. Data gathered during
sampling indicated the San Gabriel River may contain the largest
population of Santa Ana suckers (R. Ally, in litt. 1996; Mike Guisti,
CDFG, in litt. 1996; M. Wickman, in litt., 1996; Juan Hernandez, CDFG,
in litt. 1997; M. Saiki, pers. comm. 1999). Moyle and Yoshiyama (1992)
considered the population of suckers in the San Gabriel River drainage
to be the only viable population within the species' native range. This
population is found in the relatively undisturbed watershed of the
Angeles National Forest, unlike the population within the Santa Ana
River which is within a highly urbanized watershed receiving
significant urban and agricultural run-off. The high quality riparian
habitat adjacent to the river and tributaries provide organic inputs
essential to the maintenance of a healthy stream ecosystem (Diana 1995;
Klapproth and Johnson 2000a; Sweeney 1993). The East and North Forks
and associated tributaries are largely unimpeded by dams or other
obstructions.
This is the only unit that has a sediment transport and
hydrological regime existing in a relatively natural state. This unit
supports a population occurring within a relatively intact watershed
that provides good water quality, supply, and sediment transport. The
inclusion of this area in critical habitat ensures the conservation of
the only extant population of listed suckers that can avoid chronic
exposure to urban run-off or tertiary-treated wastewater discharges,
reduced water supply, and loss of feeding and spawning substrates.
Lands designated as critical habitat may require special management to
avoid and minimize activities associated with recreational off-road
vehicle use, grazing, road, bridge, or dam construction and/or
maintenance in the Angeles National Forest.
Unit 3: Big Tujunga Creek Critical Habitat Unit, Los Angeles County,
California (2,540 ac (1,028 ha)).
The Big Tujunga Creek Unit (Unit 3) consists of the stretch of Big
Tujunga Creek between the Big Tujunga Dam and
[[Page 440]]
Hansen Dam and the following tributaries: Stone Canyon Creek, Delta
Canyon Creek, and Gold Canyon Creek. Haines Creek, a small stream
within the floodplain of Big Tujunga Creek is also within this critical
habitat designation. The Santa Ana sucker occupies the Big Tujunga
Creek between Big Tujunga Dam and Hansen Dam. Please see ``Summary of
Changes From the Proposed Rule and the Original Final Rule'' section
for more details on the removal of Little Tujunga Creek from the
critical habitat designation.
Approximately 25 percent of the total remaining range of the Santa
Ana sucker is within Big Tujunga Creek (65 FR 19686). In Big Tujunga
Creek, approximately 60 percent of the current range of the Santa Ana
sucker occurs on private lands. The remaining 40 percent of the range
occurs on Angeles National Forest lands managed by the Forest Service.
The upstream portion of this population in Big Tujunga Creek is
largely contained within the Angeles National Forest. It is not exposed
to the effects of urban run-off and tertiary treated wastewater
discharge. This is the only unit supporting three of the remaining
native freshwater fishes in southern California (Swift 1993). Although
this ecological association is not well understood at this time, this
fragile community may offer unique insights into the ability of the
sucker to coexist with native and nonnative species in this ecosystem.
This unit contains one or more PCEs and is also essential because it
maintains habitat for the northernmost extent of the distribution of
the Santa Ana sucker. The unit enhances the long-term sustainability of
the sucker by maintaining its genetic adaptive potential and a well-
distributed geographical range to buffer the sucker's particular
vulnerability to environmental fluctuations and catastrophe (Moyle
2002).
Stone Canyon Creek, Delta Canyon Creek, and Gold Canyon Creek are
not known to be occupied, but are essential to the conservation of the
sucker because they transport sediment necessary to maintain preferred
substrates utilized by this fish. These creeks convey stream flows and
flood waters necessary to maintain habitat conditions for the Santa Ana
sucker; and support riparian habitats that protect water quality in the
occupied portions of the Big Tujunga Creek. Similar to the Santa Ana
River, these tributaries are essential to the Big Tujunga Creek sucker
population because they provide renewal of spawning and feeding
substrates and peaks and ebbs in water volumes. These three tributaries
are particularly essential to the conservation of the sucker and
require special management and protection since the Big Tujunga Dam has
reduced the transfer of sediment downstream and altered the natural
flow in the upper Big Tujunga Creek.
The sucker has been able to maintain its population in the Big
Tujunga Creek despite the fragmented habitat and presence of nonnative
species. Most likely, the sucker population has survived because of the
presence of the relatively undisturbed condition of the tributaries to
Big Tujunga Creek.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.2, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to: Alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' We are currently reviewing the regulatory definition of
adverse modification in relation to the conservation of the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. Conference reports provide conservation
recommendations to assist the agency in eliminating conflicts that may
be caused by the proposed action. We may issue a formal conference
report if requested by a Federal agency. Formal conference reports on
proposed critical habitat contain an opinion that is prepared according
to 50 CFR 402.14, as if critical habitat were designated. We may adopt
the formal conference report as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). The conservation recommendations in a conference report are
advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
action agency ensures that their actions do not destroy or adversely
modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Federal activities that may affect the Santa Ana sucker or its
critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the Corps
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under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit
from the Service, or some other Federal action, including funding
(e.g., Federal Highway Administration (FHA) or Federal Emergency
Management Agency (FEMA) funding), will also continue to be subject to
the section 7 consultation process. Federal actions not affecting
listed species or critical habitat and actions on non-Federal and
private lands that are not federally funded, authorized, or permitted
do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the Santa Ana
sucker. Federal activities that, when carried out, may adversely affect
critical habitat for the sucker include, but are not limited to:
(1) Actions that would alter the hydrology to a degree that
appreciably reduces the value of the critical habitat for both the
long-term survival and recovery of the species. Such activities could
include, but are not limited to, impoundment, channelization, water
diversion, construction, licensing, re-licensing, and operation of dams
or other water impoundments.
(2) Actions that would significantly alter water quality to a
degree that appreciably reduces the value of the critical habitat for
both the long-term survival and recovery of the species. Such
activities could include, but are not limited to, release of chemicals,
biological pollutants, or heated effluents into the surface water or
connected groundwater at a point source or by dispersed release (non-
point).
(3) Actions that would significantly increase sediment deposition
within the stream channel to a degree that appreciably reduces the
value of the critical habitat for both the long-term survival and
recovery of the species. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road
construction, timber harvest, off-road vehicle use, residential,
commercial, and industrial development, and other watershed and
floodplain disturbances.
(4) Actions that would significantly alter channel morphology or
geometry to a degree that appreciably reduces the value of the critical
habitat for both the long-term survival and recovery of the species.
Such activities could include, but are not limited to, channelization,
impoundment, road and bridge construction, mining, and destruction of
riparian vegetation.
(5) Actions that would introduce, spread, or augment nonnative
aquatic species into critical habitat to a degree that appreciably
reduces the value of the critical habitat for both the long-term
survival and recovery of the species. Such activities could include,
but are not limited to, stocking for sport, biological control, or
other purposes; aquaculture; and construction and operation of canals.
Previous Section 7 Consultations
Federal actions that we have reviewed since the sucker received
protection under the Act include Federal land management plans, flood
control, channelization, channel maintenance, dam construction, dam
operation, bridge construction, a habitat conservation plan, and
issuance of permits under section 404 of the Clean Water Act. Federal
agencies involved with these activities included the Forest Service,
the Corps, and the FHA. Since the listing of the sucker, 10 formal
consultations have been initiated and 8 have been completed. None of
the completed consultations resulted in a finding that the proposed
action would jeopardize the continued existence of the sucker.
In each of the biological opinions resulting from these
consultations, we included discretionary conservation recommendations
to the action agency. Conservation recommendations are activities that
would avoid or minimize the adverse effects of a proposed action on a
listed species or its critical habitat, help implement recovery plans,
or develop information useful to the species' conservation.
These biological opinions also included nondiscretionary reasonable
and prudent measures, with implementing terms and conditions, which are
designed to minimize the proposed action's incidental take of the
sucker. Section 3(18) of the Act defines the term take as ``to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or to
attempt to engage in any such conduct.'' Harm is further defined in our
regulations (50 CFR 17.3) to include significant habitat modification
or degradation that results in death or injury to listed species by
significantly impairing essential behavioral patterns, including
breeding, feeding, or sheltering.
Conservation recommendations and reasonable and prudent measures
provided in previous biological opinions for the sucker have included:
restricting in-stream activities during the spawning and nursery
season; minimizing activities in actively flowing streams; reducing
pollution from roads and highways; restoring, enhancing, or creating
sucker habitat; maintaining or improving water quality standards,
developing a nonnative aquatic species removal program; modifying or
removing obstructions to fish passage; investigating velocities against
which suckers can swim; and conducting sediment transport studies.
The designation of critical habitat will not have an impact on
private landowner activities not requiring Federal funding or permits.
Designation of critical habitat is only applicable to activities
approved, funded, or carried out by Federal agencies.
If you have questions regarding whether specific activities may
constitute adverse modification of critical habitat in California,
contact Ecological Services, Carlsbad Fish and Wildlife Office ((760)
431-9440). To request copies of the regulations on listed wildlife and
plants, and for inquiries regarding prohibitions and permits, please
contact the U.S. Fish and Wildlife Service, Branch of Endangered
Species, 911 N.E. 11th Avenue, Portland, OR 97232 (telephone (503) 231-
2063; facsimile (503) 231-6243).
Exclusions Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact of specifying any
particular area as critical habitat. An area may be excluded from
critical habitat if it is determined that the benefits of exclusion
outweigh the benefits of specifying a particular area as critical
habitat, unless the failure to designate such area as critical habitat
will result in the extinction of the species.
Lands we have excluded pursuant to section 4(b)(2) include those
covered by the following types of plans if they provide assurances that
the conservation measures they outline will be implemented and
effective: (1) Legally operative HCPs that cover the species, (2) draft
HCPs that cover the species and have undergone public review and
comment (i.e., pending HCPs), (3) Tribal conservation plans that cover
the species, (4) State conservation plans that cover the species, and
(5) National Wildlife Refuge System Comprehensive Conservation Plans.
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We have determined that the benefits of excluding essential habitat
within the boundaries of the Western Riverside MSHCP and essential
habitat within the area covered by SAS Conservation Program outweigh
the benefits of including these areas as critical habitat, as described
in further detail below. Exclusion of these areas will not result in
the extinction of the sucker.
Western Riverside Multiple Species Habitat Conservation Plan
Section 10(a) of the Act authorizes the Service to issue to non-
Federal entities a permit for the incidental take of endangered or
threatened species. This permit allows a non-Federal landowner to
proceed with an activity that is legal in all other respects, but
results in the incidental taking of a listed species (i.e., take that
is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity). The Act specifies that an application for
an incidental take permit must be accompanied by a conservation plan. A
permit may not be issued unless the conservation plan submitted to the
Service meets certain requirements, as provided in section 10(a)(2)(A)
of the Act. For example, the conservation plan must specify what steps
the applicant will take to minimize and mitigate such impacts, and the
funding that will be available to implement such steps. After an
opportunity for public comment on the conservation plan, the Service
may issue the permit provided we determine that certain conditions, as
specified in section 10(a)(2)(B), are met. For instance, the Service
must find that the taking will be incidental, and the taking will not
appreciably reduce the likelihood of the survival and recovery of the
species in the wild.
The Western Riverside MSHCP was in development for six years and we
issued a biological opinion and a 75-year Incidental Take Permit (ITP)
on June 22, 2004. Participants in the Western Riverside MSHCP include
14 cities: the County of Riverside (including the Riverside County
Flood Control and Water Conservation District, Riverside County
Transportation Commission, Riverside County Parks and Open Space
District, and Riverside County Waste Department); the California
Department of Parks and Recreation; and the California Department of
Transportation. The Western Riverside MSHCP will also serve as a sub-
regional plan under the State's Natural Community Conservation Program
(NCCP) and was developed in cooperation with the California Department
of Fish and Game. The NCCP permit was issued on July 22, 2004. Within
the 1.26 million-acre (510,000 ha) planning area of the Western
Riverside MSHCP, approximately 153,000 ac (62,000 ha) of diverse
habitats are proposed for conservation. The conservation of 153,000 ac
(62,000 ha) will complement other, existing natural and open space
areas that are already conserved through other means (e.g., State
Parks, Forest Service, and county park lands).
We believe that the Western Riverside MSHCP meets the three
criteria used by the Service to determine if a plan provides adequate
special management or protection to a listed species. First, the
Western Riverside MSHCP provides a conservation benefit to the species
through the protection of 3,480 acres of habitat within the Santa Ana
River. The primary constituent elements of essential habitat for the
sucker will be maintained in the Santa Ana River in Riverside County by
the following conservation measures: (1) The implementation of a
nonnative species removal program, (2) maintaining or improving water
quality standards, (3) removing or modifying barriers to fish passage
within the Santa Ana River, and (4) assessing any threats from degraded
habitat to the sucker in the Santa Ana River in Riverside County and
addressing those threats as feasible. Third, the Western Riverside
MSHCP provides assurance that the conservation management strategies
and actions will be implemented. All permittees for the Western
Riverside MSHCP have entered into an Implementation Agreement to ensure
that conservation measures for each species are being implemented as
appropriate. This Implementing Agreement was signed by all Permittees
on June 22, 2004. Funding for the conservation measures and land
acquisition, which is described by the Implementing Agreement, will be
supported by fees collected by Riverside County, the Cities, and other
Permittees. The Western Riverside MSHCP provides assurances that
conservation strategies and actions will be implemented by outlining a
schedule of management and monitoring activities to be conducted for
the Santa Ana sucker. Third, to provide assurances that the
conservation strategies and measures will be effective, the HCP was
developed on the basis of the best available information, and the
adaptive management program developed for the Western Riverside MSHCP
uses a flexible approach to management to ensure that the covered
species, including the sucker, are maintained and/or enhanced within
the MSHCP Conservation Area during the term of the Incidental Take
Permit. Management principles and the monitoring efforts are described
in the Western Riverside MSHCP document available at the County of
Riverside website: http://rcip.org/conservation.htm.
For the reasons described above, we have determined that lands
covered by the Western Riverside MSHCP can be excluded from this final
designation of critical habitat pursuant to section 4(b)(2) of the Act.
Draft Santa Ana Sucker Conservation Program and Associated Maintenance
and Operation Activities of Existing Water Facilities on the Santa Ana
River
The SAS Conservation Program, developed over a six-year period, is
a multi-agency partnership of Federal, local government agencies, and
the private sector that encourages a river-wide approach to
conservation of the Santa Ana sucker within the Santa Ana River and its
tributaries. This partnership is intended to: Increase the knowledge
base to implement recovery strategies for the sucker in the Santa Ana
River; ensure that each participating agency minimizes, to the extent
possible, effects from routine activities that occur within their
jurisdiction in the Santa Ana River; and develop restoration techniques
for degraded habitat. Partners in the SAS Conservation Program include
the Corps, the Service, Santa Ana Watershed Project Authority, and the
following participating agencies (Participants): Orange County Water
District, Orange County Resources and Development Management
Department, Orange County Sanitation District, Riverside County Flood
Control and Water Conservation District, Riverside County
Transportation Department, City of Riverside Regional Water Quality
Control Plant, San Bernardino County Flood Control District, and the
City of San Bernardino Municipal Water Department Rapid Infiltration
and Extraction Facility.
We believe that the SAS Conservation Program meets the criteria
used by the Service to determine if a plan provides adequate special
management or protection to a listed species. First, the SAS
Conservation Program provides a conservation benefit to the species
through the development of avoidance and minimization measures,
research, and habitat restoration efforts. Participants in the SAS
Conservation Program are required to implement specific avoidance and
minimization measures that will significantly reduce the magnitude of
the effects of their activities on the sucker. The SAS
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Conservation Program has also yielded several scientific reports, many
of which were used in preparation of the critical habitat designation.
The SAS Conservation Program is also funding efforts to restore or
enhance primary constituent elements of critical habitat in the Santa
Ana River watershed. Planned research projects of the SAS Conservation
Program in 2004 include the development of habitat restoration methods,
characterization of the movement and diet of various life history
stages of suckers, and investigate the effects of nonnative adult fish
on larval and juvenile suckers.
Second, the SAS Conservation Program provides assurances that the
conservation management strategies and actions will be implemented.
Although the SAS Conservation Program is in draft form currently, we
expect that the section 7 consultation on the SAS Conservation Program
initiated with the U.S. Army Corps of Engineers in January 2003 will be
completed within the following year. Further, the Participants have
shown their commitment to the SAS Conservation Program by meeting
monthly with the Service since 1998 to develop and implement
appropriate measures to conserve and/or conduct research and focus
habitat restoration goals on recovering the species in the Santa Ana
River. The Participants have also drafted a Memorandum of Agreement
that is currently being discussed. For the past 6 years, the SAS
Conservation Program has been funded for $125,000 per annum on an
annual basis by the Participants. Participants will continue funding at
this level or greater for the life of the SAS Conservation Program. The
Administrator of the SAS Conservation Program, currently the Santa Ana
Watershed Project Authority, annually issues an invoice to each
Participant. Implementation of the SAS Conservation Program is assured
by the requirement that an Annual Operating Plan must be submitted to
the Service and the SAS Conservation Team by July 31st of each year,
and approved by August 31st, which then functions from September 1st
through August 31st of the following year.
Third, to provide assurances that the conservation strategies and
measures will be effective, the SAS Conservation Program was developed
on the basis of the best available information. The SAS Conservation
Program also requires an annual report that summarizes all activities
conducted during the past year, provides success or failure of existing
avoidance and minimization measures, and any recommendations be
submitted to the Service for review. The SAS Conservation Program also
includes an Annual Operating Plan that allows the Service to refine
research and habitat restoration goals and objectives and avoidance and
minimization measures as necessary based on the information supplied in
their annual reports.
For the reasons described above, we have determined that lands
covered by the SAS Conservation Program can be excluded from this final
designation of critical habitat pursuant to section 4(b)(2) of the Act.
(1) Benefits of Inclusion
The benefits of designating critical habitat on lands within the
boundaries of HCPs and other conservation plans that cover the species
for which critical habitat is being designated are small. Conservation
plans generally include management measures and protections designed to
protect, restore, monitor, manage, and enhance the habitat to benefit
the conservation of the species, while a critical habitat designation
can only mandate protection against actions with a Federal nexus. There
is nothing in the critical habitat designation which ensures
restoration, monitoring, active management or habitat enhancement. The
Western Riverside MSHCP seeks to accomplish these goals for the Santa
Ana sucker through the implementation of specific conservation
measures. The principal benefit of designating critical habitat is that
federally authorized or funded activities that may affect a species'
critical habitat would require consultation with us under section 7 of
the Act. Under section 7, proposed actions that would adversely modify
or destroy designated critical habitat cannot go forward, unless they
are altered to eliminate the adverse modification or destruction of
critical habitat.
An important objective of the Western Riverside MSHCP is to
implement measures, including monitoring and management, necessary to
conserve important habitat for the Santa Ana sucker within the plan's
boundaries. Thus, the purpose of the Western Riverside MSHCP is
consistent with the purpose served by undergoing consultation under
section 7 to ensure that critical habitat of the sucker is not
adversely modified by a proposed Federal action, and provides benefits
far in excess of those that would result from the critical habitat
designation. Because issuance of an incidental take permit (ITP) under
section 10 is a Federal action, we completed an internal section 7
consultation for every species that is covered under the MSHCP and ITP,
including the Santa Ana sucker. During consultation, we analyzed the
impacts of the MSHCP and ITP on the Santa Ana sucker and its essential
habitat within the plan boundaries and whether or not that habitat was
officially designated as critical habitat. Therefore, including the
Santa Ana River within the boundaries of the Western Riverside MSHCP as
critical habitat would provide little benefit to the Santa Ana sucker,
because the potential impacts to the species' essential habitat within
the MSHCP area have been addressed under the plan and have been
analyzed in our internal section 7 consultation on the ITP.
The SAS Conservation Program includes measures to restore, monitor,
and enhance habitat for the Santa Ana sucker in the Santa Ana River.
Similar to the Western Riverside MSHCP, the SAS Conservation Program is
specifically designed to benefit the sucker and its essential habitat
within the Santa Ana River. The SAS Conservation Program is a
comprehensive conservation program for the sucker that includes
measures to minimize the impacts of routine water management activities
on the sucker and restore degraded river habitat to improve the
species' prospects for survival and recovery. As noted previously, this
type of active management and restoration is not part of a critical
habitat designation. Because the SAS Conservation Program is
specifically designed to benefit the sucker and its essential habitat
within the Santa Ana River habitat and the programmatic consultation on
the SAS Conservation Program will analyze the effects of the SAS
Conservation Program on the sucker and its habitat, the designation of
critical habitat within the area covered by the SAS Conservation
Program would provide fewer benefits to this species than does the SAS
Conservation Program.
(2) Benefits of Exclusion
Excluding lands within the Western Riverside MSHCP or within the
area covered by the SAS Conservation Program from critical habitat will
provide several benefits. Exclusion of the lands from the final
designation will allow us to continue working with the participants in
a spirit of cooperation and partnership. In the past, HCP applicants
and participants in voluntary conservation programs have generally
viewed the designation of critical habitat as having a potential
negative regulatory effect that discourages voluntary, cooperative, and
proactive efforts to conserve listed species and their habitats by non-
Federal parties. Partners and cooperators view designation of critical
habitat as an
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indication by the Federal government that their proactive efforts to
protect the species and its habitat are inadequate. Excluding these
areas from critical habitat will ensure the continuation of the
existing conservation efforts and provide the basis for future
opportunities to conserve species and their essential habitat.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We are excluding areas along the Santa Ana River because they are
within the planning area boundary for the Western Riverside MSHCP and
the SAS Conservation Program from critical habitat designation.
Exclusion of these areas will not result in extinction of the sucker.
We find the benefits of exclusion outweigh the benefits of designating
the areas covered by the plans as critical habitat.
The exclusion of these areas from critical habitat will help
preserve the partnerships we have developed with the local
jurisdictions and agencies in the development of the Western Riverside
MSHCP and SAS Conservation Program. The only potential benefit of
designating critical habitat within these areas, apart from the
conservation actions discussed above, would be educational--informing
the public of areas essential for the long-term survival and
conservation of the species. However, this information has already
largely been provided to the public through the critical habitat
designation process and resulting publicity, including public
participation as set forth above, the material provided on our website,
and through the ample opportunity for public participation provided
throughout the development of the Western Riverside MSHCP. The Corps is
also likely to issue a Public Notice and solicit public comment on the
issuance of a permit for activities related to the maintenance and
operation of existing water facilities on the Santa Ana River in
association with the SAS Conservation Program, further increasing the
public's knowledge of the importance of the Santa Ana River to the
sucker. We believe that designating critical habitat has little benefit
in areas covered by the Western Riverside MSHCP and SAS Conservation
Program. The Western Riverside MSHCP and SAS Conservation Program have
ensured authorized activities within these areas include measures to
protect the Santa Ana sucker and its habitat.
Based on our evaluation of our past consultation history on the
sucker and the analysis conducted for those consultations, we believe
that we have a general understanding of potential impacts, including
those related to economics, of this designation. We have considered
these potential impacts in the development of this designation and do
not believe, at this time, that additional exclusion, including those
based on economics, pursuant to section 4(b)(2) of the Act are
warranted.
Economic Impacts
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on October 1, 2004 (69 FR 58876); the
public comment period was open for 10 days. On October 25, 2004, we
published another notice in the Federal Register (69 FR 62238)
reopening a 30-day comment period on the draft economic analysis and
the proposed designation.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the sucker. This information is intended to assist the
Secretary in making decisions about whether the benefits of excluding
particular areas from the designation outweigh the benefits of
including those areas in the designation. This economic analysis
considers the economic efficiency effects that may result from the
designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the
proposed rule. However, economic impacts to land use activities can
exist in the absence of critical habitat. These impacts may result
from, for example, local zoning laws, State and natural resource laws,
and enforceable management plans and best management practices applied
by other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
Categories of direct and indirect costs considered in the analysis
included the costs associated with: (1) Conducting section 7
consultations; (2) modifications to projects, activities, or land uses
resulting from section 7 consultations; (3) uncertainty and public
perceptions resulting from the designation of critical habitat,
including potential effects on property values; and (4) the potential
offsetting beneficial costs associated with critical habitat. The most
likely economic effects of critical habitat designation are on
activities funded, authorized, or carried out by a Federal agency
(i.e., direct costs).
The economic analysis determined that retrospective costs (i.e.,
costs since listing, 1999-2004) total $4.2 million, with transportation
comprising $3.4 million of those costs. The remainder of retrospective
costs was split among OHV recreation, flood control agencies, and
Federal agencies. Total prospective costs of the proposed rule (i.e.,
costs for the 20-year period 2004-2024) are $30.5 million assuming a
three percent discount rate and $21.8 million with a seven percent
discount rate. Annual prospective costs are estimated to be $2.0
million. Costs associated with transportation contribute 49 percent of
the annual costs and overall prospective costs. Other leading
activities include water supply, flood control agencies, and
residential and commercial development.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this final rule easier to understand, including answers to
questions such as the following:
(1) Are the requirements in the final rule clearly stated?
(2) Does the final rule contain technical jargon that interferes
with the clarity?
(3) Does the format of the final rule (grouping and order of the
sections, use of headings, paragraphing, and so forth) aid or reduce
its clarity?
(4) Is the description of the notice in the SUPPLEMENTARY
INFORMATION section of the preamble helpful in understanding the final
rule?
[[Page 445]]
(5) What else could we do to make this final rule easier to
understand?
Send a copy of any comments on how we could make this final rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: [email protected].
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. As explained above,
we prepared an economic analysis of this action. We used this analysis
to meet the requirement of section 4(b)(2) of the Act to determine the
economic consequences of designating the specific areas as critical
habitat. We also used it to help determine whether to exclude any area
from critical habitat, as provided for under section 4(b)(2), if we
determine that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless we
determine, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities. The SBREFA also amended the RFA to require a
certification statement.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or implement that may
affect the sucker. Federal agencies also must consult with us if their
activities may affect critical habitat. However, we believe this will
result in minimal additional regulatory burden on Federal agencies or
their applicants because most consultations would already be required
due to the presence of the Santa Ana sucker or other federally listed
species or their respective critical habitats (e.g., San Bernardino
kangaroo rat (Dipodomys merriami parvus)), and consultations to avoid
the destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process and trigger only
minimal additional regulatory impacts beyond the duty to avoid
jeopardizing any listed species.
Designation of critical habitat could result in an additional
economic burden on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities. The economic analysis
determined that costs involving conservation measures for the SAS would
be incurred for activities involving residential and commercial
development, water treatment facilities, the Santa Ana River
Interceptor (SARI) line, water supply, flood control agencies, off-
highway vehicle (OHV) recreation, transportation, flood control dams,
and federal agencies. Of these, only businesses that are involved with
land development would be affected; in all other cost categories, the
affected entities exceed the SBA size criteria for small entities. For
businesses that are involved with land development, the relevant
threshold for small businesses is an annual revenue of $6 million or
less. The effects on small businesses in the land development sector
would be concentrated in San Bernardino, where most of the development
is expected to take place. Based on the estimated costs to development
and the average sales per small business, the annual costs range from
0.13 percent to 3.97 percent of sales for a small firm in the land
development sector depending upon county.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for the approximately
four small businesses, on average, that may be required to consult with
us each year regarding their project's impact on the Santa Ana sucker
and its habitat. First, if we conclude, in a biological opinion, that a
proposed action is likely to jeopardize the continued existence of a
species or adversely modify its critical habitat, we can offer
``reasonable and
[[Page 446]]
prudent alternatives.'' Reasonable and prudent alternatives are
alternative actions that can be implemented in a manner consistent with
the scope of the Federal agency's legal authority and jurisdiction,
that are economically and technologically feasible, and that would
avoid jeopardizing the continued existence of listed species or result
in adverse modification of critical habitat. A Federal agency and an
applicant may elect to implement a reasonable and prudent alternative
associated with a biological opinion that has found jeopardy or adverse
modification of critical habitat. An agency or applicant could
alternatively choose to seek an exemption from the requirements of the
Act or proceed without implementing the reasonable and prudent
alternative. However, unless an exemption were obtained, the Federal
agency or applicant would be at risk of violating section 7(a)(2) of
the Act if it chose to proceed without implementing the reasonable and
prudent alternatives.
Second, if we find that a proposed action is not likely to
jeopardize the continued existence of a listed animal or plant species,
we may identify reasonable and prudent measures designed to minimize
the amount or extent of take and require the Federal agency or
applicant to implement such measures through non-discretionary terms
and conditions. We may also identify discretionary conservation
recommendations designed to minimize or avoid the adverse effects of a
proposed action on listed species or critical habitat, help implement
recovery plans, or to develop information that could contribute to the
recovery of the species.
Based on our experience with consultations pursuant to section 7 of
the Act for all listed species, virtually all projects--including those
that, in their initial proposed form, would result in jeopardy or
adverse modification determinations in section 7 consultations--can be
implemented successfully with, at most, the adoption of reasonable and
prudent alternatives. These measures, by definition, must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation. We can only describe the general
kinds of actions that may be identified in future reasonable and
prudent alternatives. These are based on our understanding of the needs
of the species and the threats it faces, as described in the final
listing rule and this critical habitat designation. Within the final
CHUs, the types of Federal actions or authorized activities that we
have identified as potential concerns are:
(1) Regulation of activities affecting waters of the United States
by the Corps under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization implemented or licensed by Federal agencies;
(3) Transportation issues such as bridges, rights-of-way, etc. that
may involve the Federal Highway Administration;
(4) Regulation of grazing, mining, and recreation by the USFS;
(5) Hazard mitigation and post-disaster repairs funded by the FEMA;
and
(6) Activities funded by the EPA, U.S. Department of Energy, or any
other Federal agency.
It is likely that a developer or other project proponent could
modify a project or take measures to protect the sucker. The kinds of
actions that may be included if future reasonable and prudent
alternatives become necessary include conservation set-asides,
management of competing nonnative species, restoration of degraded
habitat, and regular monitoring. These are based on our understanding
of the needs of the species and the threats it faces, as described in
the final listing rule and proposed critical habitat designation. These
measures are not likely to result in a significant economic impact to
project proponents.
In summary, we have considered whether this would result in a
significant economic effect on a substantial number of small entities.
We have determined, for the above reasons and based on currently
available information, that it is not likely to affect a substantial
number of small entities. Federal involvement, and thus section 7
consultations, would be limited to a subset of the area designated. The
most likely Federal involvement could include Corps permits, permits we
may issue under section 10(a)(1)(B) of the Act, FHA funding for road
improvements, and regulation of grazing, mining, and recreation by the
USFS. A regulatory flexibility analysis is not required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et
seq.)
Under SBREFA, this rule is not a major rule. Our detailed
assessment of the economic effects of this designation is described in
the economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an annual effect on
the economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. Refer to the final economic analysis for a
discussion of the effects of this determination.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This final rule to
designated critical habitat for the Santa Ana sucker is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, Tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal
[[Page 447]]
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance; or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. As such, Small Government Agency Plan is
not required.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating approximately 8,305 ac (3,361 ha) of lands in Los Angeles
County, California as critical habitat for the Santa Ana sucker in a
takings implication assessment. The takings implications assessment
concludes that this final designation of critical habitat for the
sucker does not pose significant takings implications.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant federalism effects. A federalism assessment is not
required. In keeping with Department of the Interior policy, the
Service requested information from, and coordinated development of this
critical habitat designation with, appropriate State resource agencies
in California, as well as during the listing process. The impact of the
designation on State and local governments and their activities was
fully considered in the economic analysis. As discussed above, the
designation of critical habitat in areas currently occupied by the
Santa Ana sucker would have little incremental impact on State and
local governments and their activities. The designations may have some
benefit to these governments in that the areas essential to the
conservation of these species are more clearly defined, and the primary
constituent elements of the habitat necessary to the survival of the
species are identified. While making this definition and identification
does not alter where and what federally sponsored activities may occur,
it may assist local governments in long-range planning, rather than
waiting for case-by-case section 7 consultation to occur.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We are designating critical habitat in accordance with
the provisions of the Act, as amended. This rule uses standard property
descriptions and identifies the primary constituent elements within the
designated areas to assist the public in understanding the habitat
needs that are essential for the conservation of the Santa Ana sucker.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain new or revised information collection
for which OMB approval is required under the Paperwork Reduction Act.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act
We have determined that we do not need to prepare an Environmental
Assessment or an Environmental Impact Statement as defined by the
National Environmental Policy Act of 1969, in connection with
regulations adopted pursuant to section 4(a) of the Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Government'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We are not aware of any
Tribal lands essential for the conservation of the Santa Ana sucker.
Therefore, the critical habitat designation for the sucker does not
contain any Tribal lands or lands that we have identified as impacting
Tribal trust resources.
References Cited
A complete list of all references cited in this rule is available
upon request from the Carlsbad Fish and Wildlife Office (see ADDRESSES
section).
Author
The primary author of this document is the Carlsbad Fish and
Wildlife Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
For the reasons given in the preamble, we amend part 17, subchapter B
of chapter I, title 50 of the Code of Federal Regulations, as follows:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
0
2. Amend Sec. 17.11(h), by revising the entry for ``Sucker, Santa
Ana'' under ``FISHES'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 448]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rule
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Sucker, Santa Ana................ (Catostomus U.S.A. (CA)........ Los Angeles River T 694 17.95(e) N/A
santaanae). basin, San Gabriel
River basin, Santa
Ana River basin.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95(e) by adding critical habitat for the Santa Ana
sucker (Catostomus santaanae) in the same alphabetical order as this
species occurs in 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes. * * *
Santa Ana Sucker (Catostomus santaanae)
(1) Areas determined to be essential to the conservation of the
Santa Ana sucker and designated critical habitat units are depicted for
Los Angeles County, California, on the maps and as described as
follows:
(2) Based on the best available information, primary constituent
elements essential for the conservation of the Santa Ana sucker include
the following:
(i) A functioning hydrological system that experiences peaks and
ebbs in the water volume that reflects seasonal variation in
precipitation throughout the year;
(ii) A mosaic of loose sand, gravel, cobble, and boulder substrates
in a series of riffles, runs, pools, and shallow sandy stream margins;
(iii) Water depths greater than 3 cm (1.2 in) and bottom water
velocities greater than 0.03 meter per second (0.01 feet per second);
(iv) Non-turbid water or only seasonally turbid water;
(v) Water temperatures less than 30 [deg]C (86 [deg]F); and
(vi) Stream habitat that includes algae, aquatic emergent
vegetation, macroinvertebrates, and riparian vegetation.
(3) Existing features and structures made by people, such as paved
roads, bridges, parking lots, railroad tracks, railroad trestles, and
residential, commercial, and industrial developments including energy
production and distribution facilities (exclusive of the stream
channel), do not contain one or more of the primary constituent
elements and are not critical habitat. Federal actions limited to those
areas, therefore, would not trigger a consultation under section 7 of
the Act unless they may affect the species and/or primary constituent
elements in adjacent critical habitat.
(4) Areas determined to be essential to the conservation of the
Santa Ana sucker and designated critical habitat units are shown on the
following index map.
[[Page 449]]
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BILLING CODE 4310-55-P
[[Page 450]]
(5) Areas that have been determined to be essential to the
conservation of the Santa Ana sucker and that have been excluded from
critical habitat designation pursuant to section 4(b)(2) of the Act are
described as follows:
(i) All essential areas within the boundaries of the Western
Riverside Multiple Species Habitat Conservation Plan (which may be
obtained by going to the Riverside County Integrated Project Web site
(http://www.rcip.org/conservation.htm) and other areas of the Santa Ana
River, from the confluence of Mission Channel and the Santa Ana River
downstream to the vicinity of the Route 90, covered by the Santa Ana
Sucker Conservation Program.
(ii) Note: Map of essential habitat excluded from critical habitat
(Unit 1) for Santa Ana Sucker follows:
[[Page 451]]
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BILLING CODE 4310-55-P
[[Page 452]]
(6) The following textual unit descriptions are the definitive
source for determining critical habitat boundaries. General location
maps by unit are provided at the end of each unit description and are
provided for general guidance purposes only, and not as a definitive
source for determining critical habitat boundaries.
(7) Unit 2: San Gabriel River system in Los Angeles County,
California.
(i) Unit 2 includes the West, North and East Forks of the San
Gabriel River and the following tributaries: Cattle Canyon Creek, Bear
Creek, Bichota Canyon Creek, and Big Mermaids Canyon Creek. The San
Gabriel River portion of the unit extends from the Cogswell Dam on the
West Fork to approximately 3,882 feet (1,229 meters; 0.77 miles; 1.21
kilometers) downstream from the Bridge-of-No Return on the East Fork,
and portions of the North Fork. The lateral extent of Unit 2 is defined
by the UTM coordinates described in the legal description.
Unit 2: San Gabriel River. Los Angeles County, California. From
USGS 1:24,000 quadrangle maps Azusa, Crystal Lake, Glendora, Mount
Baldy, Mount San Antonio, and Waterman Mountain, California, land
bounded by the following UTM 11 NAD 27 coordinates (E, N): 422700,
3795100; 423300, 3795100; 423300, 3795000; 423400, 3795000; 423400,
3794400; 423300, 3794400; 423300, 3794300; 423200, 3794300; 423200,
3794200; 423100, 3794200; 423100, 3794000; 423000, 3794000; 423000,
3793400; 422900, 3793400; 422900, 3793300; 422800, 3793300; 422800,
3793200; 422700, 3793200; 422700, 3793100; 422600, 3793100; 422600,
3792900; 422500, 3792900; 422500, 3792800; 422400, 3792800; 422400,
3792100; 422500, 3792100; 422500, 3791800; 422700, 3791800; 422700,
3791900; 422900, 3791900; 422900, 3792000; 423100, 3792000; 423100,
3792100; 423800, 3792100; 423800, 3792200; 424500, 3792200; 424500,
3791900; 424300, 3791900; 424300, 3791800; 424000, 3791800; 424000,
3791700; 423900, 3791700; 423900, 3791600; 423400, 3791600; 423400,
3791700; 423200, 3791700; 423200, 3791600; 423000, 3791600; 423000,
3791500; 422900, 3791500; 422900, 3791400; 422700, 3791400; 422700,
3791300; 422600, 3791300; 422600, 3791200; 422500, 3791200; 422500,
3791100; 422400, 3791100; 422400, 3791000; 421700, 3791000; 421700,
3790900; 421600, 3790900; 421600, 3790800; 421500, 3790800; 421500,
3790700; 421400, 3790700; 421400, 3790600; 421300, 3790600; 421300,
3790200; 421200, 3790200; 421200, 3790100; 421100, 3790100; 421100,
3789900; 420800, 3789900; 420800, 3789800; 420700, 3789800; 420700,
3789700; 420600, 3789700; 420600, 3789600; 420500, 3789600; 420500,
3789500; 420700, 3789500; 420700, 3789400; 420800, 3789400; 420800,
3789000; 420900, 3789000; 420900, 3789100; 421100, 3789100; 421100,
3789200; 421200, 3789200; 421200, 3789300; 421700, 3789300; 421700,
3789200; 421800, 3789200; 421800, 3789100; 421900, 3789100; 421900,
3788900; 422000, 3788900; 422000, 3788800; 422200, 3788800; 422200,
3788700; 422400, 3788700; 422400, 3788500; 422500, 3788500; 422500,
3788600; 422600, 3788600; 422600, 3788700; 422500, 3788700; 422500,
3789400; 422600, 3789400; 422600, 3789600; 422800, 3789600; 422800,
3789400; 422900, 3789400; 422900, 3789300; 422800, 3789300; 422800,
3789200; 422700, 3789200; 422700, 3788800; 422800, 3788800; 422800,
3788700; 422900, 3788700; 422900, 3788800; 423100, 3788800; 423100,
3788900; 423300, 3788900; 423300, 3788800; 424000, 3788800; 424000,
3788900; 424100, 3788900; 424100, 3789000; 424600, 3789000; 424600,
3788900; 424700, 3788900; 424700, 3788700; 424800, 3788700; 424800,
3788600; 425000, 3788600; 425000, 3788700; 425500, 3788700; 425500,
3788600; 425800, 3788600; 425800, 3788500; 426100, 3788500; 426100,
3788300; 426400, 3788300; 426400, 3788200; 426800, 3788200; 426800,
3788300; 427000, 3788300; 427000, 3788200; 427200, 3788200; 427200,
3788300; 427600, 3788300; 427600, 3788200; 427700, 3788200; 427700,
3788100; 427800, 3788100; 427800, 3788000; 428900, 3788000; 428900,
3787900; 429000, 3787900; 429000, 3788000; 429100, 3788000; 429100,
3788200; 429200, 3788200; 429200, 3788300; 429300, 3788300; 429300,
3788700; 429400, 3788700; 429400, 3788800; 429500, 3788800; 429500,
3789000; 429600, 3789000; 429600, 3789100; 429800, 3789100; 429800,
3789300; 429900, 3789300; 429900, 3789800; 430000, 3789800; 430000,
3790400; 429900, 3790400; 429900, 3790500; 429800, 3790500; 429800,
3790400; 429500, 3790400; 429500, 3790500; 429400, 3790500; 429400,
3790400; 428900, 3790400; 428900, 3790500; 428800, 3790500; 428800,
3790600; 428900, 3790600; 428900, 3790700; 429000, 3790700; 429000,
3790800; 429100, 3790800; 429100, 3790900; 429000, 3790900; 429000,
3791300; 429300, 3791300; 429300, 3791100; 429500, 3791100; 429500,
3791000; 429600, 3791000; 429600, 3790900; 429700, 3790900; 429700,
3790800; 430100, 3790800; 430100, 3790700; 430200, 3790700; 430200,
3790800; 430300, 3790800; 430300, 3790900; 430400, 3790900; 430400,
3791000; 430600, 3791000; 430600, 3790900; 430700, 3790900; 430700,
3791000; 431100, 3791000; 431100, 3791100; 431000, 3791100; 431000,
3791300; 431100, 3791300; 431100, 3791800; 431200, 3791800; 431200,
3791900; 431100, 3791900; 431100, 3792400; 431000, 3792400; 431000,
3792500; 430900, 3792500; 430900, 3792800; 431100, 3792800; 431100,
3792700; 431300, 3792700; 431300, 3792600; 431400, 3792600; 431400,
3792400; 431500, 3792400; 431500, 3792200; 431400, 3792200; 431400,
3792100; 431500, 3792100; 431500, 3791700; 431400, 3791700; 431400,
3791500; 431500, 3791500; 431500, 3791200; 431400, 3791200; 431400,
3791100; 431500, 3791100; 431500, 3790800; 431400, 3790800; 431400,
3790700; 431300, 3790700; 431300, 3790600; 430700, 3790600; 430700,
3790500; 430600, 3790500; 430600, 3790600; 430500, 3790600; 430500,
3790500; 430300, 3790500; 430300, 3789800; 430200, 3789800; 430200,
3789200; 430100, 3789200; 430100, 3788900; 430000, 3788900; 430000,
3788700; 429800, 3788700; 429800, 3788500; 429700, 3788500; 429700,
3788200; 429600, 3788200; 429600, 3788100; 429500, 3788100; 429500,
3788000; 429400, 3788000; 429400, 3787800; 429600, 3787800; 429600,
3787700; 429700, 3787700; 429700, 3787800; 429800, 3787800; 429800,
3787900; 430400, 3787900; 430400, 3787800; 430700, 3787800; 430700,
3787900; 430900, 3787900; 430900, 3788000; 431000, 3788000; 431000,
3788100; 431100, 3788100; 431100, 3788300; 431200, 3788300; 431200,
3788400; 431300, 3788400; 431300, 3788500; 431400, 3788500; 431400,
3788600; 431700, 3788600; 431700, 3788700; 431900, 3788700; 431900,
3788800; 432300, 3788800; 432300, 3788700; 432400, 3788700; 432400,
3788600; 432500, 3788600; 432500, 3788500; 432600, 3788500; 432600,
3788400; 432800, 3788400; 432800, 3788300; 433200, 3788300; 433200,
3788200; 433400, 3788200; 433400, 3788100; 433500, 3788100; 433500,
3787900; 433700, 3787900; 433700, 3788000; 434300, 3788000; 434300,
3788100; 434500, 3788100; 434500, 3788200; 434600, 3788200; 434600,
3788400; 434700, 3788400; 434700, 3788600; 434800, 3788600; 434800,
3789000; 434900, 3789000; 434900, 3789100; 435000, 3789100; 435000,
3789200; 435200, 3789200; 435200, 3789300; 435500,
[[Page 453]]
3789300; 435500, 3789200; 435600, 3789200; 435600, 3789400; 435700,
3789400; 435700, 3789500; 435900, 3789500; 435900, 3789000; 435800,
3789000; 435800, 3788900; 435200, 3788900; 435200, 3788700; 435100,
3788700; 435100, 3788400; 435000, 3788400; 435000, 3788200; 434900,
3788200; 434900, 3788000; 434800, 3788000; 434800, 3787800; 434600,
3787800; 434600, 3787700; 434500, 3787700; 434500, 3787600; 434600,
3787600; 434600, 3787300; 434100, 3787300; 434100, 3787200; 434000,
3787200; 434000, 3787300; 433800, 3787300; 433800, 3787400; 433600,
3787400; 433600, 3787500; 433400, 3787500; 433400, 3787600; 433200,
3787600; 433200, 3787800; 433100, 3787800; 433100, 3787900; 433000,
3787900; 433000, 3788000; 432600, 3788000; 432600, 3788100; 432400,
3788100; 432400, 3788200; 432300, 3788200; 432300, 3788300; 432200,
3788300; 432200, 3788400; 432100, 3788400; 432100, 3788500; 432000,
3788500; 432000, 3788400; 431900, 3788400; 431900, 3788300; 431600,
3788300; 431600, 3788200; 431500, 3788200; 431500, 3788100; 431400,
3788100; 431400, 3788000; 431300, 3788000; 431300, 3787800; 431200,
3787800; 431200, 3787700; 431100, 3787700; 431100, 3787600; 430700,
3787600; 430700, 3787500; 430000, 3787500; 430000, 3787600; 429900,
3787600; 429900, 3787500; 429800, 3787500; 429800, 3787300; 429600,
3787300; 429600, 3787400; 429400, 3787400; 429400, 3787500; 428900,
3787500; 428900, 3787600; 428800, 3787600; 428800, 3787700; 428700,
3787700; 428700, 3787600; 428000, 3787600; 428000, 3787700; 427400,
3787700; 427400, 3787800; 427100, 3787800; 427100, 3787900; 426900,
3787900; 426900, 3787800; 426300, 3787800; 426300, 3787900; 426200,
3787900; 426200, 3788000; 425900, 3788000; 425900, 3788100; 425600,
3788100; 425600, 3788200; 425400, 3788200; 425400, 3788300; 424500,
3788300; 424500, 3788500; 424200, 3788500; 424200, 3788400; 423800,
3788400; 423800, 3788300; 423500, 3788300; 423500, 3788400; 423100,
3788400; 423100, 3788300; 423000, 3788300; 423000, 3788100; 422900,
3788100; 422900, 3788000; 422200, 3788000; 422200, 3788100; 422100,
3788100; 422100, 3788200; 422000, 3788200; 422000, 3788300; 421700,
3788300; 421700, 3788400; 421600, 3788400; 421600, 3788800; 421200,
3788800; 421200, 3788700; 421100, 3788700; 421100, 3788600; 421000,
3788600; 421000, 3788500; 420700, 3788500; 420700, 3788600; 420500,
3788600; 420500, 3788800; 420400, 3788800; 420400, 3788900; 419800,
3788900; 419800, 3789000; 419700, 3789000; 419700, 3789100; 419400,
3789100; 419400, 3789000; 419100, 3789000; 419100, 3788900; 419000,
3788900; 419000, 3788800; 418600, 3788800; 418600, 3788700; 418300,
3788700; 418300, 3788800; 417500, 3788800; 417500, 3788900; 417400,
3788900; 417400, 3789100; 417300, 3789100; 417300, 3789400; 417100,
3789400; 417100, 3789500; 416700, 3789500; 416700, 3789400; 416500,
3789400; 416500, 3789300; 416400, 3789300; 416400, 3789200; 416300,
3789200; 416300, 3789100; 416000, 3789100; 416000, 3789000; 415800,
3789000; 415800, 3788900; 415700, 3788900; 415700, 3789000; 415400,
3789000; 415400, 3789100; 415100, 3789100; 415100, 3789300; 414700,
3789300; 414700, 3789100; 414600, 3789100; 414600, 3789000; 414500,
3789000; 414500, 3788900; 414400, 3788900; 414400, 3788800; 414300,
3788800; 414300, 3788700; 414100, 3788700; 414100, 3788600; 413500,
3788600; 413500, 3788700; 413400, 3788700; 413400, 3788900; 413300,
3788900; 413300, 3789000; 413200, 3789000; 413200, 3789100; 413100,
3789100; 413100, 3789200; 413000, 3789200; 413000, 3789300; 412900,
3789300; 412900, 3789200; 412800, 3789200; 412800, 3789100; 412700,
3789100; 412700, 3789000; 412600, 3789000; 412600, 3788900; 412300,
3788900; 412300, 3789200; 411900, 3789200; 411900, 3789300; 411300,
3789300; 411300, 3789500; 411200, 3789500; 411200, 3789700; 411500,
3789700; 411500, 3789800; 411700, 3789800; 411700, 3789700; 411900,
3789700; 411900, 3789600; 412200, 3789600; 412200, 3789700; 412300,
3789700; 412300, 3789600; 412600, 3789600; 412600, 3789500; 412700,
3789500; 412700, 3789600; 412800, 3789600; 412800, 3789800; 413100,
3789800; 413100, 3789700; 413200, 3789700; 413200, 3789500; 413300,
3789500; 413300, 3789400; 413500, 3789400; 413500, 3789300; 413700,
3789300; 413700, 3789200; 413800, 3789200; 413800, 3789300; 414000,
3789300; 414000, 3789400; 414400, 3789400; 414400, 3789500; 414500,
3789500; 414500, 3789600; 415300, 3789600; 415300, 3789400; 415600,
3789400; 415600, 3789300; 415800, 3789300; 415800, 3789400; 416100,
3789400; 416100, 3789500; 416200, 3789500; 416200, 3789600; 416300,
3789600; 416300, 3789700; 416400, 3789700; 416400, 3789800; 416900,
3789800; 416900, 3789900; 417000, 3789900; 417000, 3790600; 417100,
3790600; 417100, 3790700; 416900, 3790700; 416900, 3790900; 416800,
3790900; 416800, 3791000; 416500, 3791000; 416500, 3791100; 416200,
3791100; 416200, 3791200; 415900, 3791200; 415900, 3791300; 415700,
3791300; 415700, 3791500; 415600, 3791500; 415600, 3791700; 415500,
3791700; 415500, 3791800; 415400, 3791800; 415400, 3791900; 415200,
3791900; 415200, 3792000; 414700, 3792000; 414700, 3792100; 414600,
3792100; 414600, 3792300; 415500, 3792300; 415500, 3792200; 415700,
3792200; 415700, 3792000; 415900, 3792000; 415900, 3791900; 416000,
3791900; 416000, 3791700; 416200, 3791700; 416200, 3791600; 416400,
3791600; 416400, 3791500; 416700, 3791500; 416700, 3791400; 416800,
3791400; 416800, 3791300; 417100, 3791300; 417100, 3791100; 417200,
3791100; 417200, 3791000; 417500, 3791000; 417500, 3790600; 417400,
3790600; 417400, 3789800; 417300, 3789800; 417300, 3789700; 417500,
3789700; 417500, 3789600; 417600, 3789600; 417600, 3789500; 417700,
3789500; 417700, 3789200; 418200, 3789200; 418200, 3789800; 418300,
3789800; 418300, 3789900; 418400, 3789900; 418400, 3790100; 418500,
3790100; 418500, 3790400; 418600, 3790400; 418600, 3790800; 418500,
3790800; 418500, 3790900; 418200, 3790900; 418200, 3791000; 418100,
3791000; 418100, 3791200; 418000, 3791200; 418000, 3791300; 417800,
3791300; 417800, 3791400; 417700, 3791400; 417700, 3791600; 417600,
3791600; 417600, 3791700; 417500, 3791700; 417500, 3792200; 417900,
3792200; 417900, 3792300; 417400, 3792300; 417400, 3792400; 417300,
3792400; 417300, 3792600; 417200, 3792600; 417200, 3792700; 417600,
3792700; 417600, 3792600; 418100, 3792600; 418100, 3792900; 418200,
3792900; 418200, 3793300; 418300, 3793300; 418300, 3793200; 418400,
3793200; 418400, 3792500; 418300, 3792500; 418300, 3792200; 418200,
3792200; 418200, 3792000; 418100, 3792000; 418100, 3791700; 418200,
3791700; 418200, 3791600; 418400, 3791600; 418400, 3791400; 418500,
3791400; 418500, 3791300; 418600, 3791300; 418600, 3791200; 418800,
3791200; 418800, 3791100; 418900, 3791100; 418900, 3791000; 419000,
3791000; 419000, 3790600; 419100, 3790600; 419100, 3790300; 419000,
3790300; 419000, 3790200; 418900, 3790200; 418900, 3789700; 418800,
3789700; 418800, 3789600; 418700, 3789600; 418700, 3789500; 418600,
3789500; 418600, 3789200; 418800, 3789200; 418800, 3789300; 419100,
[[Page 454]]
3789300; 419100, 3789400; 419900, 3789400; 419900, 3789500; 420000,
3789500; 420000, 3789600; 420100, 3789600; 420100, 3789700; 420200,
3789700; 420200, 3789900; 420300, 3789900; 420300, 3790000; 420500,
3790000; 420500, 3790100; 420700, 3790100; 420700, 3790200; 420800,
3790200; 420800, 3790300; 420900, 3790300; 420900, 3790500; 421000,
3790500; 421000, 3790900; 421100, 3790900; 421100, 3791000; 421200,
3791000; 421200, 3791100; 421300, 3791100; 421300, 3791200; 421400,
3791200; 421400, 3791300; 421500, 3791300; 421500, 3791400; 422200,
3791400; 422200, 3791500; 422300, 3791500; 422300, 3791700; 422200,
3791700; 422200, 3791900; 422100, 3791900; 422100, 3792200; 422000,
3792200; 422000, 3793100; 422100, 3793100; 422100, 3793200; 422200,
3793200; 422200, 3793400; 422400, 3793400; 422400, 3793500; 422500,
3793500; 422500, 3794200; 422600, 3794200; 422600, 3794400; 422500,
3794400; 422500, 3794600; 422600, 3794600; 422600, 3795000; 422700,
3795000; returning to 422700, 3795100.
(ii) The map of Unit 2 follows:
[[Page 455]]
[GRAPHIC] [TIFF OMITTED] TR04JA05.002
BILLING CODE 4310-55-P
[[Page 456]]
(8) Unit 3: Big Tujunga Creek system in Los Angeles County,
California.
(i) Unit 3 includes the stretch of Big Tujunga Creek between the
Big Tujunga Dam and Hansen Dam and the following tributaries: Stone
Canyon Creek, Delta Canyon Creek, and Gold Canyon Creek. The lateral
extent of Unit 3 is defined by the UTM coordinates described in the
legal description.
Unit 3: Big Tujunga Canyon. Los Angeles County, California. From
USGS 1:24,000 quagrangle maps Condor Peak, San Fernando, and Sunland,
California, land bounded by the following UTM 11 NAD 27 coordinates (E,
N): 381900, 3797700; 382100, 3797700; 382100, 3797600; 382200, 3797600;
382200, 3797500; 382400, 3797500; 382400, 3797400; 382600, 3797400;
382600, 3797300; 382800, 3797300; 382800, 3797200; 383000, 3797200;
383000, 3797100; 383100, 3797100; 383100, 3797000; 383200, 3797000;
383200, 3796900; 383300, 3796900; 383300, 3796500; 383400, 3796500;
383400, 3796400; 383300, 3796400; 383300, 3796200; 383200, 3796200;
383200, 3796100; 383500, 3796100; 383500, 3796000; 383600, 3796000;
383600, 3796300; 383700, 3796300; 383700, 3796500; 384300, 3796500;
384300, 3796400; 384400, 3796400; 384400, 3796300; 384600, 3796300;
384600, 3796200; 384900, 3796200; 384900, 3796100; 385000, 3796100;
385000, 3796000; 385100, 3796000; 385100, 3795900; 385200, 3795900;
385200, 3795800; 385300, 3795800; 385300, 3795700; 385800, 3795700;
385800, 3795600; 386000, 3795600; 386000, 3795500; 386200, 3795500;
386200, 3795400; 386300, 3795400; 386300, 3795300; 386500, 3795300;
386500, 3795200; 386600, 3795200; 386600, 3795100; 386700, 3795100;
386700, 3794900; 386800, 3794900; 386800, 3794700; 386900, 3794700;
386900, 3794600; 387000, 3794600; 387000, 3794500; 387100, 3794500;
387100, 3794400; 387600, 3794400; 387600, 3794300; 387700, 3794300;
387700, 3794200; 387800, 3794200; 387800, 3793800; 387900, 3793800;
387900, 3793900; 388000, 3793900; 388000, 3793800; 388100, 3793800;
388100, 3793600; 388700, 3793600; 388700, 3793700; 388800, 3793700;
388800, 3793800; 389100, 3793800; 389100, 3793700; 389300, 3793700;
389300, 3793800; 389400, 3793800; 389400, 3793900; 389600, 3793900;
389600, 3794000; 389800, 3794000; 389800, 3794200; 389900, 3794200;
389900, 3794300; 390000, 3794300; 390000, 3794700; 390100, 3794700;
390100, 3794900; 390300, 3794900; 390300, 3795000; 390400, 3795000;
390400, 3795100; 390500, 3795100; 390500, 3795200; 390800, 3795200;
390800, 3795000; 390700, 3795000; 390700, 3794800; 390500, 3794800;
390500, 3794700; 390400, 3794700; 390400, 3794600; 390300, 3794600;
390300, 3794300; 390200, 3794300; 390200, 3794200; 390100, 3794200;
390100, 3794100; 390000, 3794100; 390000, 3793900; 389900, 3793900;
389900, 3793800; 389800, 3793800; 389800, 3793700; 389600, 3793700;
389600, 3793600; 389500, 3793600; 389500, 3793500; 389400, 3793500;
389400, 3793400; 389200, 3793400; 389200, 3793300; 389000, 3793300;
389000, 3793500; 388800, 3793500; 388800, 3793300; 388700, 3793300;
388700, 3793200; 388300, 3793200; 388300, 3793100; 388000, 3793100;
388000, 3793200; 387900, 3793200; 387900, 3793500; 387600, 3793500;
387600, 3793700; 387500, 3793700; 387500, 3794000; 387200, 3794000;
387200, 3794200; 387000, 3794200; 387000, 3794300; 386800, 3794300;
386800, 3794500; 386500, 3794500; 386500, 3794700; 386400, 3794700;
386400, 3794800; 386300, 3794800; 386300, 3794700; 386200, 3794700;
386200, 3794400; 386100, 3794400; 386100, 3794300; 385900, 3794300;
385900, 3794200; 385800, 3794200; 385800, 3794000; 385600, 3794000;
385600, 3794300; 385800, 3794300; 385800, 3794400; 385900, 3794400;
385900, 3794500; 386000, 3794500; 386000, 3795000; 385800, 3795000;
385800, 3795100; 385700, 3795100; 385700, 3795200; 385600, 3795200;
385600, 3795300; 385500, 3795300; 385500, 3795500; 385100, 3795500;
385100, 3795600; 385000, 3795600; 385000, 3795700; 384900, 3795700;
384900, 3795800; 384700, 3795800; 384700, 3795900; 384600, 3795900;
384600, 3796000; 384200, 3796000; 384200, 3795900; 384300, 3795900;
384300, 3795800; 384400, 3795800; 384400, 3795600; 384500, 3795600;
384500, 3795500; 384600, 3795500; 384600, 3795000; 384500, 3795000;
384500, 3794900; 384400, 3794900; 384400, 3794800; 384300, 3794800;
384300, 3794700; 384100, 3794700; 384100, 3794900; 384200, 3794900;
384200, 3795000; 384400, 3795000; 384400, 3795300; 384500, 3795300;
384500, 3795400; 384400, 3795400; 384400, 3795500; 384200, 3795500;
384200, 3795700; 384100, 3795700; 384100, 3795800; 384000, 3795800;
384000, 3795600; 383700, 3795600; 383700, 3795700; 383600, 3795700;
383600, 3795800; 383400, 3795800; 383400, 3795900; 383100, 3795900;
383100, 3795800; 382500, 3795800; 382500, 3795700; 382300, 3795700;
382300, 3795600; 382200, 3795600; 382200, 3795500; 382100, 3795500;
382100, 3795400; 382000, 3795400; 382000, 3795200; 381900, 3795200;
381900, 3795100; 381800, 3795100; 381800, 3795000; 381600, 3795000;
381600, 3794900; 381500, 3794900; 381500, 3794800; 381400, 3794800;
381400, 3794600; 381300, 3794600; 381300, 3794400; 381200, 3794400;
381200, 3794100; 381100, 3794100; 381100, 3794000; 381000, 3794000;
381000, 3793900; 380900, 3793900; 380900, 3793800; 380800, 3793800;
380800, 3793600; 380700, 3793600; 380700, 3793500; 380600, 3793500;
380600, 3793400; 380500, 3793400; 380500, 3793300; 380100, 3793300;
380100, 3793400; 379700, 3793400; 379700, 3793300; 379500, 3793300;
379500, 3793200; 379400, 3793200; 379400, 3793100; 379300, 3793100;
379300, 3793000; 379100, 3793000; 379100, 3792900; 379000, 3792900;
379000, 3792700; 378800, 3792700; 378800, 3792600; 378700, 3792600;
378700, 3792500; 378300, 3792500; 378300, 3792300; 377300, 3792300;
377300, 3792200; 376900, 3792200; 376900, 3792100; 376000, 3792100;
376000, 3792200; 375400, 3792200; 375400, 3792300; 374200, 3792300;
374200, 3792200; 373500, 3792200; 373500, 3792300; 373400, 3792300;
373400, 3792600; 373600, 3792600; 373600, 3792700; 374300, 3792700;
374300, 3792900; 374200, 3792900; 374200, 3793000; 374100, 3793000;
374100, 3793200; 374500, 3793200; 374500, 3793100; 374800, 3793100;
374800, 3793000; 374900, 3793000; 374900, 3792900; 375200, 3792900;
375200, 3793000; 375600, 3793000; 375600, 3792900; 376500, 3792900;
376500, 3793000; 376900, 3793000; 376900, 3793100; 377200, 3793100;
377200, 3793200; 377500, 3793200; 377500, 3793300; 377800, 3793300;
377800, 3793200; 378300, 3793200; 378300, 3793100; 378800, 3793100;
378800, 3793200; 379000, 3793200; 379000, 3793300; 379100, 3793300;
379100, 3793400; 379200, 3793400; 379200, 3793500; 379300, 3793500;
379300, 3793600; 379600, 3793600; 379600, 3793700; 379800, 3793700;
379800, 3793800; 380100, 3793800; 380100, 3793900; 380400, 3793900;
380400, 3794000; 380500, 3794000; 380500, 3794100; 380600, 3794100;
380600, 3794200; 380800, 3794200; 380800, 3794300; 380900, 3794300;
380900, 3794600; 381000, 3794600; 381000, 3794800; 381100, 3794800;
381100, 3794900; 381200, 3794900; 381200, 3795000; 381300, 3795000;
381300, 3795100; 381500, 3795100; 381500, 3795400; 381800, 3795400;
381800, 3795600; 381900, 3795600; 381900,
[[Page 457]]
3795700; 382000, 3795700; 382000, 3795900; 382200, 3795900; 382200,
3796000; 382300, 3796000; 382300, 3796100; 383000, 3796100; 383000,
3796400; 383100, 3796400; 383100, 3796800; 383000, 3796800; 383000,
3796900; 382900, 3796900; 382900, 3797000; 382700, 3797000; 382700,
3797100; 382500, 3797100; 382500, 3797200; 382200, 3797200; 382200,
3797300; 382100, 3797300; 382100, 3797400; 382000, 3797400; 382000,
3797500; 381900, 3797500; returning to 381900, 3797700; excluding land
bounded by 377600, 3792900; 377600, 3792800; 377400, 3792800; 377400,
3792700; 377200, 3792700; 377200, 3792800; 377000, 3792800; 377000,
3792700; 377100, 3792700; 377100, 3792500; 377200, 3792500; 377200,
3792400; 377500, 3792400; 377500, 3792600; 377600, 3792600; 377600,
3792500; 377700, 3792500; 377700, 3792600; 377900, 3792600; 377900,
3792500; 378100, 3792500; 378100, 3792600; 378000, 3792600; 378000,
3792800; 377900, 3792800; 377900, 3792900; 377600, 3792900.
(ii) The map of Unit 3 follows:
[[Page 458]]
[GRAPHIC] [TIFF OMITTED] TR04JA05.003
* * * * *
Dated: December 21, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-28286 Filed 12-30-04; 8:45 am]
BILLING CODE 4310-55-C