[Federal Register Volume 65, Number 224 (Monday, November 20, 2000)]
[Rules and Regulations]
[Pages 69693-69717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29547]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF73


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Tidewater Goby

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 tidewater goby (Eucyclogobius newberryi), 
pursuant to the Endangered Species Act of 1973, as amended (Act). The 
designation includes 10 coastal stream segments in Orange and San Diego 
Counties, California, totaling approximately 9 linear miles of streams. 
Critical habitat includes the stream channels and their associated 
wetlands, flood plains, and estuaries. These habitat areas provide for 
the primary biological needs of foraging, sheltering, reproduction, and 
dispersal, which are essential for the conservation of the tidewater 
goby.
    Section 7 of the Act requires Federal agencies to ensure that 
actions they authorize, fund, or carry out are not likely to destroy or 
adversely modify designated critical habitat. As required by section 4 
of the Act, we considered economic and other relevant impacts prior to 
making a final decision on what areas to designate as critical habitat.

DATES: The effective date of this rule is December 20, 2000.

ADDRESSES: You may inspect the complete file for this rule at the 
Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2730 
Loker Avenue West, Carlsbad, California 92008, by appointment during 
normal business hours.

FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the above address; telephone 760/431-9440, 
facsimile 760/431-5902.

SUPPLEMENTARY INFORMATION:

[[Page 69694]]

Background

    The tidewater goby (Eucyclogobius newberryi) is the only member of 
the monotypic genus Eucyclogobius and is in the family Gobiidae. This 
fish was first described in 1857 by Girard as Gobius newberryi. Based 
on Girard's specimens, Gill (1862) erected the genus Eucyclogobius for 
this distinctive species. The majority of scientists have accepted this 
classification (e.g., Bailey et al. 1970, Miller and Lea 1972, Hubbs et 
al. 1979, Robins et al. 1991, Eschmeyer et al. 1983). A few older works 
including Ginsburg (1945) placed the tidewater goby and the eight 
related eastern Pacific species into the genus Lepidogobius. This 
classification includes the currently recognized genera Lepidogobius, 
Clevelandia, Ilypnus, Quietula, and Eucyclogobius. Birdsong et al. 
(1988) coined the informal Chasmichthys species group, recognizing the 
phyletic relationship of the eastern Pacific group with species in the 
northwestern Pacific.
    Crabtree's (1985) allozyme work on tidewater gobies from 12 
localities throughout the range shows fixed allelic differences at the 
extreme northern (Lake Earl and Humboldt Bay) and southern (Canada de 
Agua Caliente, Winchester Canyon, and San Onofre Lagoon) ends of the 
range. The northern, central, and southern California populations are 
genetically distinct from each other. The more centrally distributed 
populations are relatively similar to each other (Brush Creek, Estero 
Americano, Corcoran Lagoon, Arroyo de Corral, Morro Bay, Santa Ynez 
River, and Jalama Creek). Crabtree's results indicate that there is a 
low level of gene flow (movement of individuals) between the 
populations sampled in the northern, central, and southern parts of the 
range. However, Lafferty et al. (1999a) point out that Crabtree's sites 
were widely distributed geographically, and may not be indicative of 
gene flow on more local levels.
    Dawson et al. (2000) conducted an analysis of mitochondrial DNA 
from populations ranging from Humboldt to San Diego counties. Results 
indicated the southern California populations of tidewater gobies 
diverged from other tidewater gobies along the California coast long 
ago. These southernmost populations may have begun diverging from the 
remainder of the gobies in excess of 1,000,000 years ago. We recently 
proposed recognition of the tidewater gobies in southern California 
(i.e., Orange and San Diego Counties) as an endangered distinct 
population segment (DPS) (June 24, 1999; 64 FR 33816).
    The tidewater goby is a small elongate fish seldom exceeding 50 
millimeters (mm) (2 inches (in.)) standard length. This fish is 
characterized by large, dusky pectoral fins and a ventral sucker-like 
disk formed by the complete fusion of the pelvic fins. Tidewater gobies 
are nearly transparent, with a mottled brownish upper surface, and 
often with spots or bars on dusky dorsal and anal fins. The mouth is 
large and oblique with the upper jaw extending nearly to the rear edge 
of the eye. The eyes are widely spaced. The tidewater goby is a short-
lived species, apparently having an annual life cycle (Eschmeyer and 
Herald, 1983, Irwin and Soltz 1984, Swift et al. 1997).
    The tidewater goby is endemic to California, and is unique in that 
it is restricted to coastal brackish water habitats. Historically, the 
species ranged from Tillas Slough (mouth of the Smith River, Del Norte 
County) near the Oregon border to Agua Hedionda Lagoon (northern San 
Diego County). Within the range of the tidewater goby, shallow, 
brackish water conditions occur in two relatively distinct situations: 
1) the upper edge of tidal bays, such as Tomales, Bolinas, and San 
Francisco bays near the entrance of freshwater tributaries, and 2) the 
coastal lagoons formed at the mouths of small to large coastal rivers, 
streams, or seasonally wet canyons, along most of the length of 
California. Few well documented records of this species are known from 
marine environments outside of coastal lagoons and estuaries (Swift et 
al. 1989). Historically, the southern population of tidewater gobies 
occupied the coastal lagoons formed at the mouths of small to large 
coastal rivers, streams, or seasonally wet canyons from Aliso Creek in 
Orange County, to Agua Hedionda Lagoon in Northern San Diego County.
    The tidewater goby is often found in waters of relatively low 
salinities (around 10 parts per thousand (ppt)) in the uppermost 
brackish zone of larger estuaries and coastal lagoons. However, the 
fish can tolerate a wide range of salinities and is frequently found 
throughout lagoons (Swift et al. 1989, 1997; Worcester 1992, Worcester 
and Lea 1996). Tidewater gobies regularly range upstream into fresh 
water, and downstream into water of up to 28 ppt salinity (Worcester 
1992, Swenson 1995). Specimens have also been collected at salinities 
as high as 42 ppt (Swift et al. 1989). The species' tolerance of high 
salinities (up to 60 ppt for varying time periods) likely enables it to 
withstand exposure to the marine environment, allowing it to colonize 
or reestablish in lagoons and estuaries following flood events (Swift 
et al. 1989; Worcester and Lea 1996; Lafferty et al. 1999a). Tidewater 
gobies in southern California appear to be highly tolerant of varying 
salinities. Tidewater gobies were collected in May 2000 from French and 
Aliso lagoons, San Diego County, two lagoons located within 500 m of 
each other. Although both lagoons had hundreds of larval, juvenile and 
adult tidewater gobies, the salinities of the two lagoons varied 
markedly. Aliso Lagoon consisted of entirely fresh water, while French 
Lagoon ranged from 45 to 51 ppt (Service field data 2000).
    Tidewater gobies are usually collected in water less than 1 meter 
(m) (3 feet (ft)) deep and many localities have no area deeper than 
this (Wang 1982, Irvin and Soltz 1984; Swenson 1995). However, they 
have been found in waters over 1 m ( 3ft) in depth (Worcester 1992, 
Lafferty and Altstatt 1995; Swift et al. 1997; Smith 1998). In lagoons 
and estuaries with deeper water, the lack of collections of tidewater 
gobies in depths greater than 1 m (3 ft) may be due to the inadequacy 
of the sampling methods, rather than the lack of gobies (Worcester 
1992, Lafferty 1997, Smith 1998).
    Tidewater gobies often migrate upstream into tributaries up to 2.0 
kilometers (km) (1.2 miles) (mi) from the estuary. However, in San 
Antonio Creek and the Santa Ynez River in Santa Barbara County, 
tidewater gobies are often collected 5-8 km (3-5 mi) upstream of the 
tidal or lagoonal areas, sometimes in beaver-impounded sections of 
streams (Swift et al. 1989). The fish move upstream in summer and fall 
as sub-adults and adults. There is little evidence of reproduction in 
these upper areas (Swift et al. 1997). Tidewater gobies in Southern 
California have been found as far as 5 km (3 mi) from the estuary in 
the Santa Margarita River (Holland and Swift 1992; Dan Holland, Camp 
Pendleton Amphibian and Reptile Survey, pers. comm. 2000).
    The life of tidewater gobies is tied to the annual hydrologic 
cycles of the coastal lagoons and estuaries (Swift et al. 1989, 1994; 
Swenson 1994, 1995). Water in estuaries, lagoons and bays is at its 
lowest salinity during the winter and spring as a result of 
precipitation and runoff. During this time, high runoff causes the 
sandbars at the mouths of the lagoons to breach, allowing mixing of the 
relatively fresh estuarine and lagoon waters with seawater. This annual 
building and breaching of the sandbars is part of the normal dynamics 
of the systems in which the tidewater goby has evolved (Zedler 1982, 
Lafferty and Alstatt 1995, Heasly et al. 1997). The

[[Page 69695]]

time of sandbar closure varies greatly among systems and years, and 
typically occurs from spring to late summer. Summer salinity in the 
lagoon depends upon the amount of freshwater inflow at the time of 
sandbar formation (Zedler 1982, Heasly et al. 1997).
    Males begin digging breeding burrows 75 to 100 mm (3-4 in.) deep, 
usually in relatively unconsolidated, clean, coarse sand averaging 0.5 
mm (0.02 in.) in diameter, in April or May (Swift et al. 1989; Swenson 
1994, 1995). Swenson (1995) demonstrated that tidewater gobies prefer 
this substrate in the laboratory, but also found tidewater gobies 
digging breeding burrows in mud in the wild (Swenson 1994). Page (C. 
Page, Biological Consultant, pers. com. 2000) found that tidewater 
gobies commonly built breeding burrows and spawned in silt-dominated 
muddy habitats. Inter-burrow distances range from about 5 to 275 
centimeters (cm) (2 to 110 in) (Swenson 1995). Females lay about 100 to 
1,000 eggs per clutch, averaging 400 eggs per clutch, with clutch size 
depending on the size of both the female and the male. Females can lay 
more than one clutch of eggs over their lifespan, with captive females 
spawning 6-12 times (Swenson 1995). Spawning frequency in wild females 
probably varies due to fluctuations in food supply and other 
environmental conditions. Male gobies remain in the burrow to guard the 
eggs that are attached to sand grains in the walls of the burrow. Males 
also spawn more than once per season (Swenson 1995) and have been 
observed guarding multiple clutches in the same burrow (Swift et al. 
1989, Swenson 1995). Males frequently go at least for a few weeks 
without feeding and this probably contributes to mid-summer mortality 
(Swift et al. 1989; Swenson 1994, 1995).
    Reproduction peaks during spring to mid-summer (late April or May 
to July) and can continue into November or December depending on the 
seasonal temperature and rainfall. Reproduction sometimes increases 
slightly in the fall (Swift et al. 1989). Reproduction takes place when 
the water temperature is from 15-20 degrees Celsius ( deg.C) (60-65 
degrees Fahrenheit ( deg.F)) and at salinities of 0-25 ppt (Swift et 
al. 1989; Swenson 1994, 1995). Typically, winter rains and cold weather 
interrupt spawning, but in some warm years reproduction may occur 
throughout the year (Goldberg 1977, Wang 1984). Goldberg (1977) showed 
by histological analysis that females have the potential to lay eggs 
all year in Southern California, but this rarely has been documented. 
Length-frequency data from southern and central California (Swift et 
al. 1989; Swenson 1994, 1995) and age data analysis from central 
California populations (Swift et al. 1997) indicate that tidewater 
gobies typically live one year or less, although some may overwinter 
upstream (Irwin and Soltz 1984).
    Tidewater goby eggs hatch in 7-10 days at water temperatures of 15-
18  deg.C (60-65  deg.F) at lengths of 4-7 mm (0.2 in.). The newly 
hatched larvae are planktonic (float in water column) for one to a few 
days and once they reach 8-18 mm (0.3-0.8 in.) in length, move to 
substrate oriented (living on or near the bottom of the estuary or 
lagoon). All larger size classes are substrate oriented and little 
habitat segregation by size has been noted (Swift et al. 1989, Swenson 
1995). However, Worcester (1992) found that larval gobies in Pico Creek 
Lagoon tended to use the deeper portion of the lagoon. Individuals 
collected in marshes appear to be larger (43-45 mm (1.7-1.8 in.) 
standard length) than those collected in open areas of lagoons (32-35 
mm (1.3-1.4 in.) standard length) (Swenson 1995).
    Studies of the tidewater goby's feeding habits suggest that it is a 
generalist. At all sizes examined, tidewater gobies feed on small 
benthic (bottom-dwelling) invertebrates, crustaceans (usually mysids, 
amphipods, and ostracods), snails, and aquatic insect larvae, 
particularly flies (dipterans) (Irwin and Soltz 1984; Swift et al. 
1989; Swenson 1994, 1995). The food items of the smallest tidewater 
gobies (4-8 mm (0.2-0.3 in.)) have not been examined, but they probably 
feed on unicellular phytoplankton or zooplankton similar to many other 
early stage larval fishes (Swenson and McCray 1996).
    Tidewater gobies are preyed upon by native species such as prickly 
sculpin (Cottus asper), staghorn sculpin (Leptocottus armatus), starry 
flounder (Platichthys californicus) (Swift et al. 1997), and possibly 
steelhead (Oncorhynchus mykiss) (Swift et al. 1989). Tidewater gobies 
were found in stomachs of about 6 percent of 120 fish of the former 
three species examined, and comprised about 20 percent by volume of the 
prey. Predation by the native Sacramento perch (Archoplites 
interruptus) and tule perch (Hysterocarpus traski) may have prevented 
tidewater gobies from inhabiting the San Francisco Bay delta (Swift et 
al. 1989), although direct documentation to support this hypothesis is 
lacking.
    Several non-native fish species, such as largemouth bass and 
yellowfin gobies, also prey on tidewater gobies. The shimofuri goby 
(Tridentiger bifasciatus), which has become established in the San 
Francisco Bay region (Matern and Fleming 1995), may compete with the 
smaller tidewater goby, based on dietary overlap (Swenson 1995) and 
foraging and reproductive behavioral alterations in captivity. 
Shimofuri gobies eat juvenile tidewater gobies in captivity, but 
usually were unable to catch subadult and adult tidewater gobies 
(Swenson and Matern 1995). Evidence of predation or competition in the 
wild is lacking (Swenson 1999), although Wang (1984) found that 
yellowfin gobies prey on tidewater gobies. Shapovalov and Taft (1954) 
documented the non-native striped bass (Morone saxatilis) preying on 
tidewater gobies in Waddell Creek Lagoon, but stated that striped bass 
were found only infrequently in the areas inhabited by the goby. Non-
native sunfishes and black bass (centrarchids) have been introduced in 
or near coastal lagoons and may prey heavily on tidewater gobies under 
some conditions. Although tidewater gobies disappeared soon after 
centrarchids were introduced at several localities, direct evidence 
that the introductions led to the extirpations is lacking (Swift et al. 
1989, 1994; Rathbun et al. 1991). Predation by young-of-the-year 
largemouth bass (Micropterus salmoides) on tidewater gobies was 
documented in one system (Santa Ynez River), where tidewater gobies 
accounted for 61 percent of the prey volume of 55 percent (10 of 18) of 
the juvenile bass sampled (Swift et al. 1997).
    In Southern California, non-native sunfish (Centrarchidae), 
largemouth bass, and channel catfish (Ictulurus punctatus) are all 
suspected of impacting tidewater goby populations through predation in 
the San Mateo and Santa Margarita lagoons (Swift and Holland 1998). 
Yellowfin gobies are thought to have contributed to the extirpation of 
tidewater gobies from the Santa Margarita River (Swift et al. 1994). 
The tidewater goby population at Cockleburr Creek is reduced presumably 
due to predation and competition from the large numbers of non-native 
mosquitofish (Swift and Holland 1998).
    Non-native African clawed frogs (Xenopus laevis) also prey upon 
tidewater gobies (Lafferty and Page 1997), although this is probably 
not a significant source of mortality due to the limited distribution 
of this species in tidewater goby habitats. The frogs are killed by the 
higher salinities that occur when the lagoons are breached (Glenn 
Greenwald, Service, pers. obs.).
    Lafferty et al. (1999a) monitored persistence of 17 tidewater goby 
populations in Santa Barbara and Los

[[Page 69696]]

Angeles counties during and after the heavy winter flood flows of 1995. 
All 17 populations persisted after the high flows and no significant 
changes in population sizes were detected. In addition, gobies 
apparently colonized Canada Honda, approximately 10 km (6 mi) from the 
closest known population during or after the flooding (Swift et al. 
1997). Lafferty et al. (1999a, 1999b) proposed that flood events such 
as those that occurred in 1995, flush gobies out into the ocean's 
littoral zone where they are dispersed by longshore currents to other 
estuaries generally south along the coast. As Swenson (1999) points 
out, Lafferty's work suggests that, because prevailing longshore 
currents on the California coast are southerly, populations at the 
northern ends of geographic clusters of populations are more likely 
than southern populations to serve as source populations. Lafferty et 
al. (1999b) estimated the extirpation and recolonization rates for 37 
populations in Southern California from over 250 presence-absence 
records and found a high rate of recolonization. The results suggest 
that there is more gene flow among populations within geographic 
clusters (e.g., northern California, San Francisco Bay, Santa Cruz, San 
Luis Obispo, and Southern California) than previously believed. They 
also found a positive association between tidewater goby presence and 
wet years, suggesting that flooding may contribute to recolonization of 
sites from which gobies have temporarily disappeared.
    Lagoons in which tidewater gobies are found range in size from less 
than 0.10 hectare (ha) (0.25 acres (ac)) of surface area to about 800 
ha (2,000 ac). Most lagoons with tidewater goby populations are in the 
range of 0.5-5.0 ha (1.25-12.5 ac). Surveys of tidewater goby 
localities and historical records indicate that persistence of 
tidewater goby populations is related to size, configuration, location, 
and access by humans (Swift et al. 1989, 1994). Water surface areas 
smaller than about 2 ha (5 ac) generally have histories of extinction, 
extirpation, or population reduction to very low levels, although some 
as small as 0.35 ha (0.86 ac) have been identified as having persistent 
tidewater goby populations (Swift et al. 1997, Lafferty 1997, Heasly et 
al. 1997). As evidenced by the Canada Honda colonization (Swift et al. 
1997), relatively long distances from the nearest source populations 
are not obstacles to colonization or reestablishment. Many of the small 
lagoons with histories of intermittent populations are within 1-2 km 
(0.6-1.2 mi) of larger lagoons that can act as sources of colonizing 
gobies.
    Today, the most stable and largest populations are in lagoons and 
estuaries of intermediate sizes, 2-50 ha (5-125 ac) that have remained 
relatively unaffected by human activities, although some systems that 
are heavily affected or altered also have relatively large and stable 
populations (e.g., Humboldt Bay, Humboldt County; Santa Clara River, 
Ventura County; Santa Ynez River, Santa Barbara County; and Pismo 
Creek, San Luis Obispo County). In many cases, these probably have 
provided the colonists for the smaller ephemeral sites (Swift et al. 
1997; Lafferty et al. 1999b).

Previous Federal Action

    We first classified the tidewater goby as a Category 2 species in 
1982 (47 FR 58454). It was reclassified as a Category 1 species in 1991 
(56 FR 58804) based on status and threat information in Swift et al. 
(1989). At those times, Category 2 species were those taxa for which 
information in our possession indicated that proposing to list as 
endangered or threatened was possibly appropriate, but for which 
sufficient data on biological vulnerability and threats were not 
currently available to support a listing proposal. Category 1 species, 
now referred to as candidate species, were those taxa for which we had 
on file, sufficient information on biological vulnerability and threats 
to support a proposal to list as threatened or endangered. On October 
24, 1990, we received a petition from Dr. Camm Swift, Associate Curator 
of Fishes at the Los Angeles Museum of Natural History, to list the 
tidewater goby as endangered. Our finding that the requested action may 
be warranted was published on March 22, 1991 (56 FR 12146). A proposal 
to list the tidewater goby as an endangered species was published on 
December 11, 1992 (57 FR 58770). On March 7, 1994, the tidewater goby 
was listed as an endangered species (59 FR 5494). At that time, we did 
not designate critical habitat, because critical habitat was not then 
determinable and a final decision on critical habitat required detailed 
information on the possible economic effects of designation. At that 
time, we did not have sufficient information to perform the economic 
analysis.
    On September 18, 1998, the Natural Resources Defense Council, Inc., 
filed a lawsuit in Federal District Court in California against us for 
failure to designate critical habitat for the tidewater goby. On April 
5, 1999, the court ordered that the ``Service publish a proposed 
critical habitat designation for the tidewater goby in 120 days'' 
(Natural Resources Defense Council, Inc. v. U. S. Department of the 
Interior et al., CV 98-7596, C.D. Cal.).
    On June 24, 1999, we proposed to delist the northern populations of 
the tidewater goby and to retain the tidewater goby populations in 
Orange and San Diego Counties as endangered based on our reevaluation 
of the species status throughout its range (64 FR 33816). We determined 
that north of Orange County more populations exist than were known at 
the time of the listing, that threats to those populations are less 
severe than previously believed, and that the tidewater goby has a 
greater ability to recolonize habitats from which it is temporarily 
absent than was known in 1994 (64 FR 33816). Moreover, we believe that 
the populations of tidewater gobies in Orange and San Diego Counties 
are genetically distinct and represent a DPS. We believe that this DPS, 
comprised of gobies from only eight localities, continues to be 
threatened by habitat loss and degradation, predation and competition 
by non-native species, and extreme weather and streamflow conditions. 
Therefore, we proposed that populations north of Orange County be 
removed from the List of Endangered and Threatened Animals, and that 
the southern DPS of tidewater gobies be retained as an endangered 
species on the list.
    On August 3, 1999, we proposed critical habitat for the tidewater 
goby (64 FR 42250). We reopened the comment period on October 15, 1999 
(64 FR 55892), to announce the time and location of public hearings and 
provide for additional public comment. This second comment period 
closed on November 30, 1999. On June 28, 2000, we published a notice 
(65 FR 39850) announcing the reopening of the comment period on the 
draft proposal to designate critical habitat for the tidewater goby and 
a notice of availability of the draft economic analysis on the proposed 
determination. The comment period was opened for an additional 30 days, 
closing on July 28, 2000.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon

[[Page 69697]]

a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures that are necessary to bring an endangered or threatened 
species to the point at which listing under the Act are no longer 
necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires consultations 
on Federal actions that are likely to result in the destruction or 
adverse modification of critical habitat. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``the 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.'' Aside from 
the added protection that may be provided under section 7, the Act does 
not provide other forms of protection to lands designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal lands that do not involve 
a Federal nexus, critical habitat designation would not afford any 
additional protections under the Act against such activities.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. 
When we designate critical habitat at the time of listing or under 
short court-ordered deadlines, we will often not have sufficient 
information to identify all areas of critical habitat. We are required, 
nevertheless, to make a decision and thus must base our designations on 
what, at the time of designation, we know to be critical habitat.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. We will not speculate about what 
areas might be found to be essential if better information became 
available, or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then the area 
should not be included in the critical habitat designation. Within the 
geographic area occupied by the species, we will not designate areas 
that do not now have the primary constituent elements, as defined at 50 
CFR 424.12(b), that provide essential life cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing rule for the species and its 
supporting documentation. Additional information may be obtained from a 
recovery plan, articles in peer-reviewed journals, conservation plans 
developed by states and counties, scientific status surveys and 
studies, and biological assessments or other unpublished materials 
(i.e., gray literature).
    Habitat is often dynamic, and species may move from one area to 
another over time. For these reasons, all should understand that 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    In determining areas that are essential to conserve the tidewater 
goby, we used the best scientific and commercial data available. This 
included data from research and survey observations published in peer-
reviewed articles, data collected on the U.S. Marine Corps Base, Camp 
Pendleton (Camp Pendleton), data collected from reports submitted by 
biologists holding section 10(a)(1)(A) recovery permits, and comments 
received on the proposed rule and economic analysis.

Primary Constituent Elements

    In accordance with section 3(5) of the Act, for habitat within the 
geographic range occupied by the species, critical habitat is defined 
as specific areas that contain those physical or biological features 
that are essential to the conservation of the species and that may 
require special management considerations or protection. The habitat 
features (primary constituent elements) that provide for the primary 
biological needs of foraging, sheltering, reproduction, and dispersal 
that are essential for the conservation of the species are described at 
50 CFR 424.12, and include, but are not limited to, the following:

    Space for individual and population growth, and for normal 
behavior;
    Food, water, or other nutritional or physiological requirements;
    Cover or shelter;
    Sites for breeding, reproduction, or rearing of offspring; and

[[Page 69698]]

    Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.

    The primary constituent habitat elements for the tidewater goby 
were determined from studies on their habitat requirements and 
population biology (Lafferty et al. 1999a, 1999b; Manion 1993; Swensen 
1994, 1995, 1999; Swift et al. 1989) and include habitat components 
that are essential to the biological needs of foraging, nest 
construction, spawning, sheltering, and dispersal. The foundation for 
the primary constituent elements of the tidewater goby is provided by 
coastal lagoons and estuaries supported by a relatively natural 
hydrologic regime and an environment with so few exotic fishes that 
tidewater gobies are unaffected by their presence. These elements are 
described in greater detail below.
    Coastal lagoons and estuaries with natural hydrology generally 
provide several specific habitat elements that gobies require. For 
instance, aquatic systems supported by a natural hydrological regime 
are often characterized by a combination of slightly different habitat 
types: freshwater creek, brackish lagoon, and coastal salt marsh. This 
habitat variance generally ensures that some deep pockets of permanent 
water remain as refugia during times of drought; provides for a variety 
of substrate types, of which sand and silt are necessary for 
construction of burrows; and provides for structural complexity of the 
stream channel, which supports various types of aquatic and emergent 
vegetation. This structural complexity and presence of vegetation may 
ensure that all gobies are not washed out to sea during flood events 
(Swensen 1995). Lastly, lagoons and estuaries with a natural 
hydrological regime and corresponding habitat complexity generally 
provide for the diversity of prey species (e.g., aquatic invertebrates, 
including aquatic insect larvae, ostracods, crustaceans, and snails) 
that gobies require.
    The second constituent element of tidewater goby habitat is a 
system that is free from exotic species or nearly so. Exotic fishes can 
debilitate, perhaps to the point of extirpation, tidewater goby 
populations through competition and predation. Largemouth bass, black 
bass, sunfishes, striped bass, shimofuri gobies, and yellowfin gobies 
all appear to prey on tidewater gobies. Keeping exotic species out of 
occupied goby habitats, and eliminating them from potential 
reestablishment sites will be crucial to the conservation of the goby.

Criteria Used To Identify Critical Habitat

    We have limited our designation to Orange and San Diego Counties, 
because it is within this area that tidewater gobies are threatened 
with extinction and essential habitat areas for this species can be 
identified. Currently, within Orange and San Diego Counties no known 
populations occur outside of Camp Pendleton. Populations on Camp 
Pendleton fluctuate and most have temporarily been extirpated on 
several occasions. Because there is a total of only eight populations 
currently known within Orange and San Diego Counties, a random event or 
combination of events could affect all eight populations and cause the 
species to be lost from those counties. Furthermore, because the best 
available information (Dawson et al. 2000) indicates that tidewater 
gobies in Orange and San Diego Counties comprise a unique genetic unit, 
we proposed this population for listing as a DPS (for additional 
discussion on the DPS, see the June 24, 1999, proposed rule 64 FR 
33816).
    Our critical habitat designation must take into consideration the 
fact that the current information indicates that tidewater goby 
populations north of Orange County are not in danger of extinction or 
likely to become so in the foreseeable future. North of Orange County, 
fluctuations in the number of populations of tidewater gobies are also 
common. However, these populations are of sufficient number (ranging 
from about 40 during drought conditions to about 80 under wet 
conditions) and distribution such that they are not in danger of 
extinction now or in the foreseeable future. The last pronounced 
drought (1987-1991) did not threaten the goby north of Orange County 
with extinction. In nearly all areas where populations were reported 
absent due to drought or a combination of drought and human-caused 
factors, gobies repopulated naturally shortly after a return to wetter 
conditions. Thus, a return to drought conditions does not mean 
endangerment for the goby populations north of Orange County.
    Furthermore, most of the lagoons and estuaries that no longer 
support gobies north of Orange County lost them decades ago when they 
were altered in ways that severely, and for all practicable purposes 
permanently, affected the hydrology, such that they could no longer 
support gobies. Therefore, while there are some exceptions, north of 
Orange County tidewater gobies do live in most of the estuaries where 
they can live (not withstanding normal extirpation and re-colonization 
within the metapopulation (interconnected subpopulations)). Thus, this 
historical loss of habitat did not result in a continuing trend toward 
extinction. In effect, the information on the species current status 
and trends indicates that, for the tidewater goby populations north of 
Orange County, the 1994 listing rule misinterpreted the risk of 
extinction such that the goby was mistakenly listed as endangered (for 
additional discussion, see the proposed delisting rule 64 FR 33816).
    This information was the basis for the delisting proposal, which 
addressed errors in the original 1994 listing for the tidewater goby 
populations north of Orange County, along with current goby status and 
threats. We have received a substantial number of comments on the 
proposed delisting. However, the main reaction expressed in the comment 
letters from the public was that the Service, armed with very little 
new information, was, in its delisting proposal, reversing its position 
on the status of the goby without basis. The public comment letters 
also expressed concern that the delisting proposal was arguing that the 
goby was in less danger of extinction now than in 1994. These comments 
included carefully reasoned and informed set of suggestions for 
improving our analysis of current risk of extinction, and we consider 
this designation in light of that information. At this time, we 
continue to believe that the 1994 listing rule misinterpreted the risk 
of extinction and that listing under the Act is not necessary for the 
tidewater goby populations north of Orange County. However, we want to 
ensure that we have made the best decision possible and intend to 
reopen the comment period on the proposed delisting in the near future.
    We have not yet made a final determination on the delisting 
proposal. Therefore, the entire species remains listed, and the Act 
requires us to designate critical habitat for the species. The facts 
and analysis described above, however, are highly relevant to the 
question of what areas constitute critical habitat for the species. In 
order to be included in a critical habitat designation, the habitat 
must first be ``essential to the conservation of the species.'' This 
requires more than that the habitat be essential for the long-term 
survival and well-being of the species. Rather, the habitat must be 
essential for the ``conservation'' of the species. Under the Act, 
``conservation'' is a technical term, defined as the use of all methods 
and procedures that are necessary to bring an endangered or threatened 
species to the point at which listing under the Act is no longer 
necessary. In

[[Page 69699]]

the case of a species that, although technically listed, does not meet 
the standard for listing, e.g., it should be delisted, but that action 
has not yet taken place, no methods or procedures are required to bring 
the species to the point where listing is no longer necessary. In other 
words, that species is already ``conserved,'' as that term is defined 
in the Act. Thus, as a technical legal matter, no areas can be 
``essential to the conservation'' of a species that currently does not 
warrant listing.
    This is precisely the situation with respect to the northern 
populations of the goby. The best available biological information 
indicates that listing under the Act is already not necessary for the 
tidewater goby populations north of Orange County. In other words, the 
northern populations are already conserved, as that term is used in the 
Act, and consequently no areas are essential to the conservation of the 
northern populations. Moreover, we find that no areas north of Orange 
County are essential to the conservation of the populations in Orange 
and San Diego Counties. Therefore, the habitat areas for the northern 
population are not essential to the conservation, as defined in the 
Act, of any of the populations, or the species as a whole. We are not 
suggesting that there are no threats to the goby populations north of 
Orange County or that these populations would not benefit from other 
actions to manage or protect the species or its habitat. However, given 
the technical legal requirements of the Act, critical habitat 
designation is not the appropriate vehicle for addressing this need. 
Under the Act's definition of critical habitat, no areas north of 
Orange County qualify for designation as critical habitat for the 
species. As we continue to analyze the proposed delisting, we will 
evaluate the best biological information available. If we identify 
additional areas that are essential to the conservation of the species, 
we will revise this critical habitat designation as appropriate.
    The population in Orange and San Diego Counties is endangered 
because some of the places where it used to live have been altered so 
much that they are unsuitable for gobies. These remaining populations, 
currently eight, fluctuate, and periodically go extinct, only to be 
repopulated later by colonists from nearby populations. The 
conservation of the goby depends upon the existence of enough habitat 
areas to support this natural pattern (Swift et al. 1989, Lafferty et 
al. 1999). All of the remaining habitat areas which are presently 
inhabited by gobies are subject to various threats to habitat quality 
(see analysis in 64 FR 33816) and require special management 
considerations or protection. These are designated as critical habitat.
    In accordance with section 3(5)(A)(ii) of the Act, areas outside 
the geographical area occupied by the species at the time it is listed 
may meet the definition of critical habitat upon determination that 
they are essential for the conservation of the species. The long-term 
survival of tidewater gobies in Orange and San Diego Counties depends 
upon the presence of enough habitat areas to support the natural 
pattern of local extinctions and recolonizations (Swift et al. 1989, 
Moyle et al. 1995, Lafferty et al. 1999b, Swenson 1999) that 
characterize its population biology. The eight fluctuating populations 
where gobies exist today are insufficient in number and quality to 
remove gobies in this part of the range from a high risk of extinction. 
Thus, unoccupied habitats which can support gobies in the future play 
an essential role in the conservation of the goby. To determine which 
unoccupied areas are essential and should be designated as critical 
habitat, we evaluated which unoccupied areas could support tidewater 
gobies, and, by virtue of their geographical distribution, provide for 
a network of habitat areas supporting gobies and acting as sources of 
recolonization for other nearby habitat areas.
    Two sites that fulfill these criteria are Aliso Creek, Orange 
County, and Agua Hedionda Lagoon, San Diego County. The tidewater goby 
population at Aliso Creek was intensively studied in the 1970s, and the 
habitat parameters that supported tidewater gobies when they occurred 
there are well documented (Swift et al. 1989). Habitat parameters have 
not changed since tidewater gobies occupied the creek (Camm Swift, 
ichthyologist consultant, pers. comm. 2000, see Summary of Comments and 
Recommendations section). In Agua Hedionda Lagoon, recent fish surveys 
found cheekspot (Ilypnus gilberti) and shadow gobies (Quietula y-
cauda), species which can co-occur with, and have similar habitat 
requirements to tidewater gobies indicating that suitable conditions 
may currently exist in the lagoon to support tidewater gobies (MEC 
1995). More recently, a study carefully examined the suitability of 
habitat in Agua Hedionda Lagoon specifically for tidewater gobies. The 
study examined habitat parameters such as substrate, salinity, water 
temperature, water depth, and fish species assemblage, and compared 
these with values in habitats occupied by tidewater gobies. Results 
from this study demonstrated that the lagoon can currently support 
tidewater gobies (Merkel and Associates 1999a and 1999b, see Summary of 
Comments and Recommendations section). Because suitable habitat exists 
at both of these lagoons, and because additional tidewater goby 
localities are within 10 miles of these lagoons, we find that Aliso 
Creek, Orange County, and Agua Hedionda Lagoon, San Diego County can 
support tidewater gobies in the future and that these two estuaries 
contribute to the network of habitat areas that can support tidewater 
gobies and act as sources of recolonization following the natural 
pattern of local extinction in other nearby habitat areas. We are 
designating Aliso Creek, Orange County, and Agua Hedionda Lagoon, San 
Diego County, because they are essential to the conservation of 
tidewater gobies.
    In defining critical habitat boundaries, it was not possible to 
exclude existing man-made features and structures within the area 
designated, such as buildings, roads, railroads, and other features. 
These features will not themselves contain one or more of the primary 
constituent elements. Federal actions limited to those features, 
therefore, would not trigger a section 7 consultation, unless they 
affect the species and/or primary constituent elements in adjacent 
critical habitat.
    In summary, in determining areas that are essential to conserve 
tidewater goby, we used the best scientific information available to 
us. The critical habitat areas described below constitute our best 
assessment of areas needed for the species' conservation and recovery.

Critical Habitat Designation

    For the reasons described above, the following general areas are 
designated as critical habitat. Where delineated, the 50-year flood 
plain is used to establish boundaries within the designated waterways. 
In areas where the 50-year flood plain is not delineated, the presence 
of alluvial soils (soils deposited by streams), obligate and 
facultative wetland vegetation, abandoned river channels, or evidence 
of high water marks will be used to determine the extent of the flood 
plain and the boundaries for the designation (see legal descriptions 
for exact habitat boundaries):
    1. Aliso Creek (Orange County) and its associated lagoon and marsh 
from the Pacific Ocean to approximately 1.0 km (0.6 mi) upstream;
    2. San Mateo Creek and its associated lagoon and marsh, from the 
Pacific Ocean to approximately 1.3 km (0.9 mi) upstream;
    3. San Onofre Creek and its associated lagoon and marsh from the 
Pacific

[[Page 69700]]

Ocean to approximately 0.6 km (0.4 mi) upstream;
    4. Las Flores Creek and its associated lagoon and marsh from the 
Pacific Ocean to Interstate 5 (approximately 1.0 km (0.6 mi));
    5. Hidden Creek and its associated lagoon and marsh from the 
Pacific Ocean to Interstate 5 (approximately 0.8 km (0.5 mi));
    6. Aliso Creek and its associated lagoon and marsh from the Pacific 
Ocean to Interstate 5 (approximately 0.7 km (0.4 mi));
    7. French Creek and its associated lagoon and marsh from the 
Pacific Ocean to Interstate 5 (approximately 0.7 km (0.4 mi));
    8. Cockleburr Creek and its associated lagoon and marsh, from the 
Pacific Ocean to Interstate 5 (approximately 1.0 km (0.6 mi));
    9. Santa Margarita River from the Pacific Ocean to a point 
approximately 5.0 km (3.1 mi) upstream; and
    10. Agua Hedionda Lagoon and its associated marsh and creek from 
the Pacific Ocean to a point approximately 3.7 km 2.3 mi) upstream.
    Although the majority of land being proposed for designation is 
under Federal administration and management, some estuary and riparian 
habitats are on State, county, city, and private lands. The Aliso Creek 
segment, Orange County, is owned by the County of Orange, the City of 
South Laguna, and private interests. Agua Hedionda Lagoon is owned by 
the San Diego Gas and Electric Company, which leases to the City of 
Carlsbad, and public and private interests. The segments on San Mateo 
Creek, San Onofre Creek, Las Flores Creek, Hidden Creek, Aliso Creek, 
French Creek, Cockleburr Creek, and the Santa Margarita River are on 
Camp Pendleton.

Effect of Critical Habitat Designation

Section 7  Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to jeopardize the continued existence of a threatened or 
endangered species, or result in the destruction or adverse 
modification of critical habitat to the extent that the action 
appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
States, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding. In 50 CFR 402.02, 
``jeopardize the continued existence'' (of a species) is defined as 
engaging in an activity likely to result in an appreciable reduction in 
the likelihood of survival and recovery of a listed species. 
``Destruction or adverse modification'' (of critical habitat) is 
defined as a direct or indirect alteration that appreciably diminishes 
the value of critical habitat for the survival and recovery of the 
listed species for which critical habitat was designated. Thus, the 
definitions of ``jeopardy'' to the species and ``adverse modification'' 
of critical habitat are nearly identical.
    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 designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) 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. 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, we would 
ensure that the permitted actions do not 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 resulting in the 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 with us on actions for which formal consultation has been 
completed, if those actions may affect newly designated critical 
habitat and they have retained discretionary involvement in the action. 
Further, some Federal agencies may have conferenced with us on proposed 
critical habitat. We may adopt the formal conference report as the 
biological opinion when critical habitat is designated, if no 
significant new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the tidewater goby 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 U.S. Army Corps of Engineers (Corps) under section 
404 of the Clean Water Act, or some other Federal action, including 
funding (e.g., Federal Highway Administration, Federal Aviation 
Administration, or Federal Emergency Management Agency) 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 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 adversely 
modify such habitat, or that may be affected by such designation. 
Activities that, when carried out, funded, or authorized by a Federal 
agency, may affect critical habitat and require that a section 7 
consultation be conducted include, but are not limited to:
    (1) Activities such as water diversion or impoundment, groundwater

[[Page 69701]]

pumping, artificial lagoon breaching to protect urban or agricultural 
areas from inundation, or any other activity that alters water quality 
or quantity to an extent that water quality becomes unsuitable to 
support gobies, or any activity that significantly affects the natural 
hydrologic function of the lagoon system;
    (2) Activities such as coastal development, sand and gravel mining, 
channelization, dredging, impoundment, or construction of flood control 
structures, that alter watershed characteristics or appreciably alter 
stream channel and/or lagoon morphology; and
    (3) Activities which could lead to the introduction of exotic 
species, especially exotic fishes, into occupied or potential goby 
habitat.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat for the survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned, particularly when the area of the proposed action is 
occupied by the species. In those cases, it is highly unlikely that 
additional modification to the action would be required as a result of 
designating critical habitat. However, critical habitat may provide 
benefits toward recovery when designated in areas currently unoccupied 
by the species.
    Designation of critical habitat could affect Federal agency 
activities. Federal agencies already consult with us on activities that 
may effect the species to ensure that their actions do not jeopardize 
the continued existence of the species. These actions include, but are 
not limited to:
    (1) Regulation of activities affecting waters of the U. S. under 
section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Road construction, right of way designation, or regulation of 
agricultural activities by Federal agencies;
    (4) Some military activities on the Camp Pendleton;
    (5) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency;
    (6) Construction of communication sites licensed by the Federal 
Communications Commission; and
    (7) Activities funded or authorized by Federal agencies.
    This section serves in part as a general guide to clarify 
activities that may affect or destroy or adversely modify critical 
habitat. However, specific Federal actions will still need to be 
reviewed by the action agency. If the agency determines the activity 
may affect critical habitat, they will consult with us under section 7 
of the Act. If it is determined that the activity is likely to 
adversely modify critical habitat, we will work with the agency to 
modify the activity to minimize negative impacts to critical habitat. 
We will work with the agencies and affected public early in the 
consultation process to avoid or minimize potential conflicts and, 
whenever possible, find a solution that protects listed species and 
their habitat while allowing the action to go forward in a manner 
consistent with its intended purpose.
    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section). 
Requests for copies of the regulations on listed wildlife and inquiries 
about prohibitions and permits may be addressed to the U.S. Fish and 
Wildlife Service, Branch of Endangered Species, 911 N.E. 11th Ave, 
Portland, OR 97232 (telephone 503-231-2063, facsimile 503-231-6243).

Summary of Comments and Recommendations

    In the August 3, 1999, proposed rule (64 FR 42250), we requested 
interested parties to submit factual reports or information that might 
contribute to development of a final rule. The 60-day comment period 
closed on October 4, 1999. We contacted appropriate Federal and State 
agencies, county and city governments, scientific organizations, and 
other interested parties. We reopened the comment period on October 15, 
1999, (64 FR 55892) to announce the time and location of public 
hearings and provide for additional public comment. We published public 
notices of the proposed rule in the North County Times, the San Diego 
Union Tribune, and the Orange County Register, on October 18, 1999, 
which invited general public comment. We posted copies of the proposed 
rule and draft economic analysis on our internet site. We held two 
hearings on November 4, 1999, in Carlsbad, California. Notices appeared 
in the previously named newspapers on October 18, 1999, to announce the 
extension of the public comment period until November 30, 1999, and the 
scheduling of the public hearings in Carlsbad, California, on November 
4, 1999. Transcripts of the hearings are available for inspection (see 
ADDRESSES section). On June 28, 2000, we published a notice (65 FR 
39850) announcing the reopening of the comment period and the 
availability of the draft economic analysis on the proposed 
determination. The comment period was opened for an additional 30-days, 
closing on July 28, 2000.
    We requested four ichthyologists (fish biologists) familiar with 
the species to review the proposed critical habitat designation. 
However, only two responded by the close of the comment period. Both of 
these reviewers provided valuable information about the biology, 
status, and range of the species, and suggested adding areas to the 
critical habitat designation. These comments are addressed in this 
section, and relevant data provided by the reviewers has also been 
incorporated into the ``Background'' section.
    We received a total of 40 written and 28 oral comments during the 
public comment periods. Of those written comments, eight supported 
critical habitat designation, 30 opposed critical habitat designation, 
and two provided additional information. Of those oral comments, 3 
supported critical habitat designation, 24 opposed critical habitat 
designation, and one provided additional information. Written and oral 
comments were received from one Federal agency, two state agencies, six 
local agencies, and 28 private organizations, companies, and 
individuals. Several commenters commented multiple times, both written 
and orally. All comments received were reviewed for substantive issues 
and new data regarding critical habitat and the biology and status of 
the tidewater goby. We address all comments received during the comment 
periods and public hearing testimony in the following summary of 
issues. Comments of a

[[Page 69702]]

similar nature are grouped into a single issue.

Issue 1: Procedural and Legal Compliance

    The following comments and responses involve issues related to 
public involvement in the designation process and compliance with the 
Act and other laws, regulations, and policies.
    Comment 1a: The creation of the Orange and San Diego Counties 
distinct population segment of the tidewater goby is invalid because it 
was created as part of a proposal to delist the tidewater goby in a 
portion of its range. The Service should first delist the species 
throughout its entire range, then propose the DPS separately.
    Our Response: This final rule designating critical habitat for the 
tidewater goby finalizes the proposed designation of critical habitat 
for the tidewater goby (64 FR 42250) that addressed the conservation of 
the species throughout its entire range. The proposed rule to create a 
DPS and remove the northern populations of the tidewater goby from the 
list of threatened and endangered species was a separate proposed rule 
(64 FR 33816). In the section above titled ``Criteria Used To Identify 
Critical Habitat,'' we provide a detailed explanation as to the basis 
for this designation, including how this critical habitat designation 
relates to the proposed DPS and delisting. As discussed in our response 
to comment 1b, we must make a determination regarding critical habitat 
for the entire species at this time, based on the best information 
available.
    Comment 1b: The Service cannot designate critical habitat on a 
proposed Distinct Population Segment (DPS). Because the Service has 
designated critical habitat for a DPS that has not yet been listed in a 
final rule, the proposed critical habitat designation is invalid.
    Our Response: The Act requires us to designate critical habitat for 
the species, not the proposed DPS. Although our designation is limited 
to Orange and San Diego Counties, it is not because we are designating 
critical habitat for the proposed DPS, but rather those are the areas 
that we have identified that meet the definition of critical habitat 
for the species. In the section above titled ``Criteria Used To 
Identify Critical Habitat,'' we provide a detailed explanation as to 
the basis for this designation, including how the designation relates 
to the proposed DPS.
    Comment 1c: The Service fails to include any economic analysis in 
its proposed rule, and thus gives inadequate notice of the action 
proposed.
    Our response: In the proposed rule, we acknowledged that section 
4(b)(2) of the Act requires us to consider the economic and other 
relevant impacts of designating a particular area as critical habitat. 
We also stated that we would conduct an analysis of the economic 
impacts of designating these areas as critical habitat prior to a final 
determination and announce the availability of the draft economic 
analysis with a notice in the Federal Register. We conducted an 
economic analysis. On June 28, 2000 (65 FR 39850), we published a 
notice in the Federal Register announcing the availability of the draft 
economic analysis and reopening the public comment period for 30 days.
    We utilized the economic analysis, and took into consideration 
comments and information submitted during the public hearing and 
comment period, to make this final critical habitat designation. 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.
    Comment 1d: The Service cannot designate critical habitat until it 
first complies with National Environmental Policy Act requirements.
    Our Response: An environmental assessment and/or an environmental 
impact statement as defined by the National Environmental Policy Act of 
1969 need not be prepared in connection with regulations adopted 
pursuant to section 4(a) of the Act. We published a notice in the 
Federal Register outlining our reasons for this determination on 
October 25, 1983 (48 FR 49244). This rule does not constitute a major 
Federal action significantly affecting the quality of the human 
environment.
    Comment 1e: The proposed rule is based on unpublished data that has 
not been made available to the public for review. The commenter asserts 
that the Service has proposed a regulatory action on the basis of 
secret data that has never been made available for public comment.
    Our Response: The commenters use ``Lafferty, et al. (in prep.)'' 
and ``Jacobs (in litt. 1998)'' as examples of unpublished data not 
available to the public for review. However, we made both references 
available to the public, as indicated in the ``References Cited'' 
section of the proposed rule. They were also part of the administrative 
record for the proposed rule. Additionally, the two citations referred 
to as ``Lafferty, et al. (in prep.)'' were published in 1999 (Lafferty 
et al. 1999a and 1999b) and were available as peer-reviewed literature 
during the second comment period on the proposed rule. The material 
cited in ``Jacobs (in litt. 1998)'' is now in an unpublished manuscript 
that has been submitted for publication and is cited in this final rule 
as ``Dawson et al. 2000.''
    Comment 1f: One commenter stated that it was inappropriate for us 
to fail to designate critical habitat for the populations north of 
Orange County solely on the basis of the proposed rule to delist those 
populations. In particular, the commenter claims that doing so would be 
in violation of the April 5, 1999, order requiring the Service to 
propose designation of critical habitat for the species.
    Our Response: The comment is based on the erroneous understanding 
that we artificially limited the proposed, and now final, rules to 
designate critical habitat for the tidewater goby because of the 
existence of a proposed rule to delist the tidewater goby in a portion 
of its range. In fact, the proposed and final critical habitat 
designation and the proposed delisting rule is irrelevant to the 
question of what areas should be designated as critical habitat for the 
tidewater goby. What is relevant is that our analysis of the best 
available information indicates that the areas north of Orange County 
do not constitute critical habitat as defined by the Act. This is 
discussed in greater detail in the section above titled, ``Criteria 
Used To Identify Critical Habitat.'' Although this same information is 
also the basis for the proposed delisting, that action and this one are 
separate and independent administrative actions. Finally, the Court on 
November 19, 1999, dismissed a motion to enforce judgement based on the 
same grounds that the commenter raised.

Issue 2: Biological Concerns

    The following comments and responses involve issues related to the 
biological basis for the designation.
    Comment 2a: The use of the 50-year flood plain to define the 
lateral extent, or width of the critical habitat units, is unrealistic. 
The 50-year flood plain has not been delineated in most of the areas 
containing critical habitat units.
    Our Response: We agree that the use of the 50-year flood plain is 
not easily defined in certain areas where the 50-year flood plain is 
not delineated or is in dispute. In those cases, we have changed the 
lateral extent of critical

[[Page 69703]]

habitat designation to be the presence of alluvial soils (soils 
deposited by streams), obligate and facultative riparian vegetation 
(requiring and usually occurring in wetlands respectively), abandoned 
river channels, or known high water marks. These features characterize 
the lateral extent of critical habitat within rivers, streams, and 
their associated estuaries where the 50-year flood zone has not been 
identified. Existing man-made features and structures within this area, 
such as buildings, roads, railroads, and other features, do not 
contain, and do not have the potential to develop the primary 
constituent elements for the tidewater goby.
    Comment 2b: Tidewater gobies are not documented to occur in 
upstream portions of rivers and streams in Orange and San Diego 
Counties. There is no evidence that the upstream areas proposed meet 
the Service's definition of critical habitat for the tidewater goby.
    Our Response: Tidewater gobies often migrate upstream into 
tributaries up to 2.0 km (1.2 mi) from estuaries. In San Antonio Creek 
and the Santa Ynez River in Santa Barbara County, tidewater gobies are 
often collected 5-8 km (3-5 mi) upstream of the tidal or lagoonal 
areas, sometimes in beaver-impounded sections of streams (Swift et al. 
1989). The fish move upstream in summer and fall as sub-adults and 
adults. There is little evidence of reproduction in these upper areas 
(Swift et al. 1997).
    Tidewater gobies were collected in Trabuco Creek, Orange County, in 
1939, approximately 4.5 km (2.8 mi) from the ocean (mouth of San Juan 
Creek) (UMMZ collection number 133000). In San Diego County, tidewater 
gobies were collected from the Santa Margarita River approximately 3.5 
km (2.2 mi) from the mouth of the River in 1991. Presumably, they may 
have occurred further upstream if not for a beaver dam, which at that 
time acted as an effective barrier to fish movement (Holland 1992). 
This speculation turned out to be an accurate prediction when in May 
2000, several years after the beaver dams were removed by high flood 
flows, gobies were collected approximately 4.5 km (2.8 mi) upstream of 
the mouth of the Santa Margarita River in the vicinity of the power 
line crossing (D. Holland, pers. comm. 2000). Clearly, tidewater gobies 
can occupy upstream portions of creeks in San Diego and Orange 
counties.
    Little is known about why tidewater gobies utilize these upstream 
areas. Swenson (1995) found that tidewater gobies in marsh habitats in 
these upstream areas were larger and had fewer parasites than gobies in 
nearby creek and lagoon habitats. However, Swenson (1995) also found 
that gobies of all life stages occurred in lagoon, marsh, and creek 
habitats, indicating that they can complete their life cycle in any of 
the three habitat types. Because all life history stages of the species 
can be found here these areas are important to the species and we are 
including upstream areas as part of the critical habitat units in this 
designation.
    Comment 2c: One commenter claimed that the proposed rule has 
overstated the potential impacts of the Foothill Transportation 
Corridor South to tidewater gobies. In contrast, another commenter 
expressed concern about the significant and enduring impacts to upland 
and riparian species, including tidewater gobies, from the proposed 
preferred alignment of the Foothill Transportation Corridor South.
    Our Response: The proposed ``CP alignment'' of the Foothill 
Transportation Corridor South (FTCS), if constructed, may have 
substantial negative impacts to the tidewater goby, specifically in San 
Mateo and San Onofre Creeks (Michael Brandman and Associates 1997). The 
lagoons at the mouth of San Mateo Creek and San Onofre Creek are both 
now occupied by tidewater gobies, and these two lagoons typically 
support large goby populations from several thousand to approximately 
70,000 gobies (Swift and Holland 1998). These two populations, along 
with Las Flores Creek, are the largest and most persistent in the 
region and are thought to serve as source populations for dispersal 
into the ephemeral estuaries and streams in the area. Thus these 
populations are important to the recovery of the tidewater goby.
    The FTCS CP alignment would have both significant short-term and 
long-term impacts to tidewater gobies in the San Mateo Creek and San 
Onofre Creek drainage basins (Michael Brandman and Associates 1998). 
Short-term impacts would include mortality and temporary loss of 
habitat for breeding, feeding, and sheltering due to blockage or 
diversion of water flow, increased siltation from the required cut and 
fill of thousands of tons of earth, and the disturbance of low oxygen 
sediments. Long-term impacts would include: the permanent alteration of 
the hydrologic regime, primarily in changes to flow regimes, 
temperature patterns, and sediment movement characteristics of the 
streams; permanent loss of habitat for breeding, feeding, and 
sheltering due to siltation; and permanent deterioration in water 
quality of the streams from the continuous input of heavy metals and 
other contaminants. These types of changes to the abiotic elements of a 
stream are often associated with corresponding changes to the 
ichthyofauna (fish species assemblage within a region). Generally, this 
kind of disturbance results in an increase of exotic fish species to 
the detriment of the indigenous (native) ichthyofauna (Moyle and Light 
1996). A preliminary investigation of the impacts to tidewater gobies 
from the CP alignment found that these impacts would be less than 
significant after mitigation (Michael Brandman and Associates 1998). 
However, we believe that the benefits of the proposed mitigation would 
be minimal and that construction of the CP alignment would likely 
result in the loss of these populations and potentially preclude 
recovery for this species.

Issue 3: Economic Analysis

    There were numerous comments that addressed economic issues.
    Comment 3a: The Service should recognize the importance of the 
coastal railway corridor and that any critical habitat designation is 
not intended to impede rail service or the maintenance or improvement 
of rail facilities in the coastal railway corridor.
    Our Response: The coastal railway crosses all tidewater goby 
critical habitat units. Any activities permitted, funded, or carried 
out by a Federal agency that jeopardize the species or destroy or 
adversely modify its critical habitat will require a section 7 
consultation with the Service. Any non-federal activity resulting in 
take of tidewater gobies, as defined by the Act, will require a section 
10(a)(1) permit issued by the Service. We will work closely with the 
responsible agencies within the coastal railway corridor to avoid and 
minimize impacts to tidewater goby populations and critical habitat 
from future maintenance or improvements to the coastal railway. 
Consultations will now need to consider critical habitat.
    Comment 3b: Designation of critical habitat will cause private 
property values to decline and will negatively affect businesses.
    Our Response: The economic analysis indicates that designation of 
critical habitat for the tidewater goby will not have a significant 
economic impact. The economic analysis does acknowledge that the 
designation of critical habitat may affect private property values. We 
believe that this short-term effect would occur from market uncertainty 
and public perception of the perceived impacts of the critical habitat 
designation on property values. We also believe that this short-term 
effect on property values would diminish over time. We did not find 
supporting

[[Page 69704]]

evidence during the preparation of the economic analysis to estimate or 
document this potential short-term effect on property values. The 
economic analysis determined that there will be an insignificant impact 
to businesses.
    Comment 3c: The Service must consider the economic impacts of 
critical habitat designation on the Encina Power Station located at the 
mouth of Agua Hedionda Lagoon. The power plant is a must-run facility 
that provides 25 percent of all power used in San Diego County. The 
operators of the facility have raised concerns that the designation of 
critical habitat would result in ecological modifications to the marine 
environment in order to return the lagoon to the brackish coastal 
environment preferred by the goby. According to the operators, 
returning the lagoon to its former condition would threaten the power 
station's ability to maintain use of its cooling system, which 
currently relies on water temperature and flow more characteristic of a 
tidal environment.
    Our Response: We believe that the existing characteristics of Agua 
Hedionda as fully tidal lagoon would not be altered by designation of 
critical habitat for the goby. As such, designation of critical habitat 
for Agua Hedionda is not expected to impact the ability of the power 
station to continue functioning. The Encina Power Station, however, 
currently operates under numerous Federal permits, including permits 
relating to air emissions, water discharge, dredging, and oil spill 
response. The main impact is that critical habitat will need to be 
considered in consultations on renewals of existing Federal permits or 
to obtain new permits.
    Comment 3d: One commenter voiced concern that the draft economic 
analysis failed to consider impacts from critical habitat designation 
in unoccupied units.
    Our Response: The draft economic analysis addressed current and 
future activities in unoccupied units. We have withdrawn the proposed 
designation of critical habitat for Buena Vista Lagoon (see explanation 
under response to comment 4b3, below). In most cases, there was no 
evidence that the proposed activity would involve a Federal nexus. In 
the absence of a Federal nexus, critical habitat designation would have 
no impact on the proposed activity. In a few cases, however, a Federal 
nexus associated with a proposed activity was identified. In such 
cases, the draft economic analysis addresses the potential delays and 
administrative costs attributable to new Section 7 consultations. 
Discussion of these costs can be found on pages 19, 20, 21, 22, and 24 
of the report.
    Comment 3e: One commenter indicated that the draft economic 
analysis is flawed because it does not account for the fact that the 
proposed critical habitat includes ``waters of the United States.''
    Our Response: The draft economic analysis considered the regulatory 
program of the U.S. Army Corps of Engineers to authorize the discharge 
of dredged and fill material into ``waters of United States'' under the 
section 404 of the Clean Water Act (see Exhibit ES-1, Summary of 
Impacts of Under the Proposed Designation of Critical Habitat for the 
Tidewater Goby in the final economic analysis available from the 
Carlsbad Fish and Wildlife Office (see ADDRESSES section)).
    Comment 3f: Two commenters indicated that the incremental approach 
used in the draft economic analysis is improper and fails to comply 
with the requirements set forth in the Act.
    Our Response: We do not agree that the economic impacts of the 
listing should be considered in the economic analysis for the 
designation of critical habitat. The Act requires that listing 
decisions be based solely on the best available scientific and 
commercial data available (section 4(b) of the Act). Congress also made 
it clear in the Conference Report accompanying the 1982 amendments to 
the Act that ``economic considerations have no relevance to 
determinations regarding the status of species * * *.'' We use the 
economic analysis to make decisions on excluding areas from critical 
habitat under section 4(b)(2) of the Act. The section 4(b)(2) exclusion 
process does not include an economic analysis related to the listing of 
a species. Our economic analysis evaluates the incremental effect of 
critical habitat on current or planned activities and practices and 
does not address effects associated with the listing of the species.
    Comment 3g: One commenter stated that the draft economic analysis 
failed to account for the current housing shortage in California.
    Our Response: The final critical habitat designation for the goby 
includes ten coastal tributaries in Orange and San Diego Counties. As 
the units are limited to bodies of water and its associated flood 
plain, the designation of critical habitat for the goby would not 
reduce the amount of developable land or exacerbate the current housing 
shortage in the affected counties.
    Comment 3h: One commenter indicated that the draft economic 
analysis failed to address the cumulative impact of multiple critical 
habitat designations.
    Our Response: Under the requirements set forth by the Act, the 
Service is required to estimate the potential impacts attributable to 
the proposed government action, in this case the designation of 
critical habitat for the goby. The Service is not required to evaluate 
the potential cumulative impacts associated with the listing or 
critical habitat for multiple species. However, the draft economic 
analysis of critical habitat for the goby considers the incremental 
impacts of designating critical habitat in the context of existing 
baseline regulations. As such, the analysis considers the economic 
effects of critical habitat designation for the goby in the context of 
other Federal, state, or local regulations, as well as additional 
species protected by the Act.
    Comment 3i: One commenter stated that the draft economic analysis 
failed to address the economic impacts associated with modifying Agua 
Hedionda Lagoon.
    Our Response: The designation of critical habitat for the goby will 
not result in modifications to the current ecological conditions at 
Agua Hedionda Lagoon. Recent research (Merkle and Associates 1999) 
indicates that the current ecological conditions at Agua Hedionda are 
suitable for the goby. As a result, no modifications to the lagoon will 
occur as a result of designation of critical habitat, and no economic 
impacts associated with modifications to Agua Hedionda are expected.
    Comment 3j: One commenter stated the draft economic analysis failed 
to assess the economic impacts on private persons and state entities 
that lack a Federal nexus.
    Our Response: The primary effect of a critical habitat designation 
is regulatory and occurs under section 7 consultation of the Act, when 
Federal agencies must consult with the Service whenever activities they 
fund, authorize, or carry out may affected listed species or designated 
critical habitat. Activities on land owned by individuals, 
organizations, states, local, and Tribal governments only require 
consultation with the Service if their actions occur on Federal lands; 
require a Federal permit, license, or other authorization; or involve 
Federal funding. If there is no Federal nexus, we do not anticipate 
that the designation will have a significant economic impact on private 
persons and state entities. The economic analysis does acknowledge that 
the designation of critical habitat has the potential to affect

[[Page 69705]]

private property values (see response to comment 3b).
    Comment 3k: One commenter expressed concern that public comments 
submitted by the North San Diego County Transportation Board (NCTD) on 
the proposal to designate critical habitat for the goby were not 
included in the draft economic analysis.
    Our Response: Public comments submitted by the North San Diego 
County Transportation Board (NCTD) in July 2000, were incorporated into 
the final economic analysis of critical habitat designation for the 
goby.
    Comment 3l: One commenter expressed concern that the draft economic 
analysis did not address current water quality maintenance activities 
in Aliso Creek conducted by the County of Orange.
    Our Response: A discussion of current and future water quality 
maintenance activities in Aliso Creek, based on public comments 
submitted in July 2000, was incorporated into the final economic 
analysis of critical habitat designation for the goby.

Issue 4: Site Specific Issues

    The following comments and responses involve issues related to the 
inclusion or exclusion of specific areas, or our methods for selecting 
appropriate areas for designation as critical habitat. We received 
comments challenging our proposed determination of critical habitat for 
all the proposed units.
    Comment 4a: Several commenters pointed out errors in mileages, 
locations, or descriptions in the proposed rule.
    Our Response: Corrections have been made in the final rule to 
reflect these comments, where appropriate.
    Issue 4b: We received comments for all 11 units proposed for 
designation asserting that the specified unit(s) was unsuitable for 
designation, or they recommended the specific unit(s) be excluded from 
designation.
    Our Response: We carefully considered the information provided in 
the comments regarding requested exclusions and removals. The following 
is an overview of our rationale for areas retained as well as the 
rationale for specific units (responses 4b1 through 4b5).
    Comment 4b1: Aliso Creek cannot currently support tidewater gobies, 
and restoration of the lagoon for the species is unrealistic at this 
time.
    Our Response: Many of the ecological characteristics of Aliso Creek 
lagoon have not changed noticeably since gobies occupied the creek in 
the late 1970's (Camm Swift, ichthyologist consultant, pers. comm. 
2000). The predominant substrate is sand. Small patches of aquatic 
vegetation typical of a coastal marsh (Typha, Scirpus, Salicornia, and 
Distichlis) grow around the margin of the lagoon. The system still 
forms a brackish water lagoon in the spring, which is usually opened to 
the ocean later in the year by winter flows. The water quality of the 
lagoon in the 1970's was such that warning signs were posted to keep 
beach visitors out of the lagoon's waters. This, too, has not changed. 
Although the watershed has become more urbanized over the past 2 
decades, there has not been a noticeable change in the lagoon since it 
was formerly occupied by the species.
    Currently, the local agency stakeholders are working with the U.S. 
Army Corps of Engineers to develop an Aliso Creek Watershed Management 
Plan with the central goal of restoring the watershed. We believe that 
because the lagoon has not changed noticeably since the 1970's, and 
because there is now a concerted effort by the community to restore the 
watershed upon which the lagoon depends, Aliso Creek represents one of 
the most promising prospects for reestablishing a goby population. As 
such, Aliso Creek and its lagoon are essential to the conservation of 
the species and are therefore designated as critical habitat.
    Comment 4b2: The Service should not designate any areas on Camp 
Pendleton because populations on the base have remained relatively 
stable, and all threats to tidewater goby populations are addressed by 
the existing biological opinions, management programs, and within the 
ongoing NEPA-compliance program of the base.
    Our Response: Currently, tidewater gobies occupy eight locations on 
Camp Pendleton. These include, from north to south, San Mateo Creek, 
San Onofre Creek, Las Flores Creek, Hidden Creek, Aliso Creek, French 
Creek, Cockleburr Creek, and the Santa Margarita River. All eight 
localities are relatively pristine coastal wetlands and are all crossed 
or just downstream of Interstate 5 and the coastal railway.
    Although currently there are eight locations on Camp Pendleton 
occupied by the species, this situation is rare and has not previously 
been recorded. As recently as 1991 the number of occupied goby 
localities was only three (Swift and Holland 1998, Dan Holland in litt. 
1999). Of the eight currently occupied areas, only one of these, Las 
Flores Creek, has remained continuously occupied since 1987. San Mateo 
Creek and San Onofre Creek have both been extirpated in recent years as 
a result of human-caused habitat alteration. Hidden Creek appears to be 
perennial but may become so hypersaline in a severe drought as to be 
unsuitable for any fish species (Swift and Holland 1998). Aliso Creek, 
French Creek, and Cockleburr Creek are all relatively ephemeral and 
have not supported gobies in times of drought. The Santa Margarita 
River seemed to be a large stable population until 1991, but gobies 
disappeared in 1991, shortly after the exotic yellowfin goby 
(Acanthogobius flavimanus) became abundant in the estuary.
    In the proposed rule, we stated that all eight historic and 
currently occupied tidewater goby locations in southern California 
contained the primary constituent elements necessary to support gobies. 
This has been substantiated by the fact that all eight locations are 
now occupied. We believe that these localities represent the center of 
the metapopulation in Orange and San Diego Counties and will be the 
keystone for recovery of the species. As such, these areas are 
essential to the conservation of the species.
    Pursuant to the definition of critical habitat, an area must also 
require ``special management considerations or protections.'' This is a 
term that originates in the definition of critical habitat in section 3 
of the Act. Adequate special management or protection is provided by a 
legally operative plan that addresses the maintenance and improvement 
of the essential elements and manages for the long-term conservation of 
the species. The Service considers a plan adequate when it meets all of 
the following three criteria: (1) The plan provides a conservation 
benefit to the species (i.e., the plan must maintain or provide for an 
increase in the species' population or the enhancement or restoration 
of its habitat within the area covered by the plan); (2) the plan 
provides assurances that the management plan will be implemented (i.e., 
those responsible for implementing the plan are capable of 
accomplishing the objectives, have an implementation schedule and/or 
have adequate funding for the management plan); and (3) the plan 
provides assurances the conservation plan will be effective (i.e., it 
identifies biological goals, has provisions for reporting progress, and 
is of a duration sufficient to implement the plan and achieves the 
plan's goals and objectives). If an area is covered by a plan that 
meets these criteria, it does not constitute critical habitat as 
defined by the Act.
    In 1995, the Service issued a programmatic biological opinion on 
the ``Programmatic Activities and Conservation Plans in Riparian and 
Estuarine/Beach Ecosystems on Marine

[[Page 69706]]

Corps Base, Camp Pendleton,'' including an Estuarine/Beach Ecosystems 
Conservation Plan (Biological Opinion 1-6-95-F 02, 1995). The 
reasonable and prudent measures of the biological opinion require the 
Marines to adopt and implement the Estuarine/Beach Ecosystem 
Conservation Plan.
    The Estuarine/Beach Ecosystem Conservation Plan is structured to 
minimize the effects to listed species resulting from programmatic 
impacts associated with ongoing and future training, maintenance, 
recreation, and construction activities. Because the terms and 
conditions are mandatory, there are assurances that Conservation Plan 
will be implemented, and the Marines have the authority to carry out 
the measures in the plan. Therefore, our second special management 
criterion is also met. However, because the conservation plan outlines 
broad goals for benefiting tidewater gobies without clearly identifying 
specific conservation efforts, its effectiveness is not assured. The 
Estuarine/Beach Ecosystem Conservation Plan does not contain specific 
biological objectives for the tidewater goby. The Conservation Plan 
focuses primarily on avian species. It does not identify specific 
measures or targets to achieve an increase in the tidewater goby 
population size. Also, because the plan is general in nature, it does 
not outline parameters that can be used to measure achievement of 
objectives or standards by which to measure them. Population surveys 
and monitoring requirements are identified in the Conservation Plan, 
but have not been met as defined in the plan. The Service is unable to 
determine that the Estuarine/Beach Ecosystem Conservation Plan will be 
effective, and consequently, it is not adequate to preclude the need to 
designate critical habitat.
    Comment 4b3: Buena Vista lagoon is currently unsuitable for 
supporting a population of tidewater gobies. The designation of Buena 
Vista Lagoon as critical habitat for the tidewater goby is premature at 
best and could actually preclude the modifications needed to create 
such habitat.
    Our Response: Buena Vista Lagoon, a California Department of Fish 
and Game Ecological Reserve, is currently predominated by freshwater 
marsh conditions, and is closed to the Pacific Ocean by a concrete 
weir. This configuration, as well as the Pacific Coast Highway, the 
coastal railway, and Interstate 5 bridges, which are all predominantly 
dirt fill structures, constrict the lagoon such that sediment can no 
longer be moved through the system. The lagoon has been gradually 
filling with sediment and, without modifications to the system, the 
lagoon will conceivably fill entirely, transforming the lagoon into a 
mud flat. This situation has become apparent to the California 
Department of Fish and Game (CDFG), the Buena Vista Lagoon Foundation, 
and residents of the local communities in Carlsbad and Oceanside (Tim 
Dillingham CDFG pers. comm. 1999, Ron Wooton, Buena Vista Lagoon 
Foundation, pers. comm 1999).
    In its current configuration, Buena Vista Lagoon is essentially a 
freshwater lake with a fish fauna that consists entirely of non-native 
freshwater fishes. Some of these, such as largemouth bass (Lepomis 
macrochirus), have been implicated in the decline of tidewater gobies 
(Swift et al. 1997). However, if the lagoon were once again open to the 
Pacific Ocean, the habitat could support tidewater gobies. Opening the 
lagoon to tidal flushing would also provide an outlet to move sediment 
through the system, which would prevent the lagoon from becoming a mud 
flat, and provide some sediment to the ocean to help build local 
beaches. We believe that simply removing the weir structure at the 
mouth of the lagoon and replacing it with a structure that would permit 
tidal flow would be enough to restore some goby habitat to the lagoon.
    The Buena Vista Lagoon Foundation is a non-profit private 
corporation dedicated to the protection and maintenance of Buena Vista 
Lagoon. The Foundation has a memorandum of understanding with the CDFG 
authorizing it to prepare an Ecological Reserve Land Management Plan 
(ERLMP) on behalf of the department. Among the proposals being 
considered is the potential for establishing a tidal flushing system 
which would open the lagoon to the Pacific Ocean. We feel that Buena 
Vista Lagoon could provide essential habitat for the tidewater goby and 
that the current direction of the ERLMP toward a more tidal system at 
Buena Vista Lagoon will accommodate the creation of tidewater goby 
habitat. However, while we believe Buena Vista Lagoon could be restored 
to provide tidewater goby habitat, we do not have information 
demonstrating such restoration is essential to the conservation of the 
species. Therefore, we are removing it from the designation.
    Comment 4b4: Agua Hedionda Lagoon is unsuitable for tidewater 
gobies and so should not be designated as critical habitat.
    Our Response: We received a number of comments questioning the 
feasability of Agua Hedionda Lagoon to support tidewater gobies. These 
commenters claimed that the habitat in Agua Hedionda Lagoon had been so 
altered since 1940, the last year in which gobies were collected from 
the lagoon, that the lagoon could not only not support tidewater 
gobies, but that the possibility of restoration of the lagoon for the 
species was not feasible. Many of these comments were grounded in the 
misconception that the lagoon would have to be restored to pre-1940 
conditions to support the species. These commenters were concerned that 
critical habitat would trigger widespread lagoon alterations to restore 
habitat and thereby eliminate the many and varied uses of this tidal 
lagoon. Also, the commenters were concerned that alterations necessary 
to make suitable habitat for gobies would reduce the habitat 
suitability for other sensitive species that currently occupy the 
lagoon. We believe areas within the lagoon could support gobies now, 
without any restoration effort, and without any extensive changes to 
the current configuration or uses of the lagoon. We address habitat 
suitability within the lagoon here, and will deal with the effects of 
the designation on Agua Hedionda Lagoon and the various uses within it 
in the succeeding comment.
    The comments we received generally cited four habitat elements 
within the lagoon as being unsuitable for gobies: water quality, 
salinity, sediment, and the presence of predatory species. The most 
recent survey effort of fishes and sediments was conducted by Merkel 
and Associates (1999) on September 23, 1999. The water quality, 
salinity, sediment, and fish species composition results of this survey 
indicated to us that not only are there areas within the lagoon that 
could support the tidewater goby, but that the lagoon will probably not 
require any restoration to do so (Merkel and Associates 1999).
    Merkel and Associates (1999) reported that salinity measurements of 
the areas of the eastern lagoon ranged from 5 to 48 ppt with an average 
of about 26.5 ppt. The tidewater goby is often found in waters of 
relatively low salinities (around 10 ppt) in the uppermost brackish 
zone of larger estuaries and coastal lagoons, but can tolerate a wide 
range of salinities, and has been collected at salinities as high as 42 
ppt (Swift et al. 1989, 1997; Worcester 1992, Worcester and Lea 1996; 
Swenson 1995). A recent survey of French Creek Lagoon in June of 2000 
found thousands of tidewater gobies of all life stages. Salinity in 
French Creek Lagoon during this survey ranged from 45-51 ppt and 
temperatures ranged from 31-32  deg.C (Service field data 2000). Merkel 
and

[[Page 69707]]

Associates (1999) also reported that water temperatures within the 
lagoon were 21-22  deg.C and depth ranged from 0.1 to 1.0 m. Tidewater 
gobies are usually collected in water less than 1 m (3 ft) deep, and in 
temperatures typically between 9-25  deg.C (Swift et. al. 1989; Wang 
1982; Irvin and Soltz 1984; Worcester 1992; Swenson 1995). Thus, depth 
and temperature are also within the range usually occupied by gobies. 
Given what we know of the water quality tolerances and preferences of 
this species for salinity, temperature, and depth, the conditions in 
the eastern end of Agua Hedionda Lagoon appear suitable to support 
gobies.
    Merkel and Associates (1999) found that sediments in the east end 
of Agua Hedionda Lagoon ranged from fine sand to silt/clay. Although 
there are no comprehensive studies comparing the sediment composition 
of tidewater goby habitats in different localities, there appears to be 
preference of gobies for coarser sand substrates, especially for 
breeding (Swift et al. 1989, Worcester 1992, Swenson 1995). However, 
muddy, marshy conditions are a typical feature in tidewater goby 
habitats, and have been shown to be occupied by gobies in San Antonio 
Creek, the Santa Ynez River, Aliso Creek (Orange County), San Mateo 
Creek, San Onofre Creek, Las Flores Creek, French Creek, Aliso Creek 
(San Diego County) and the Santa Margarita River (Swift et al. 1989, 
Holland 1992, Swift et. al. 1994, Swift et al. 1997, Swift and Holland 
1998, Service field data 2000). Swenson (1995) found that in San 
Gregorio and Pescadero Creek, tidewater gobies inhabited a variety of 
habitats, including (1) sandy lagoons, (2) mud or gravel-bottomed 
reaches of creeks, and (3) muddy marsh pools. Swenson (1995) also found 
that tidewater gobies of all life stages were collected in all three of 
these habitat types, suggesting that tidewater gobies can complete 
their life cycle in any one of the three. Worcester (1992) found that 
although tidewater gobies were significantly associated with coarse 
sand and fine gravel substrates, their distribution was significantly 
associated with a number of other physical habitat parameters, so it 
was unclear how important substrate was in determining their presence. 
Page (Carl Page pers. com. 2000) has found that tidewater gobies are 
actually most strongly associated with food abundance in Lake Earl, Del 
Norte County, and showed little preference for substrate. Furthermore, 
Page found that tidewater gobies commonly utilized silt dominated muddy 
habitats, built breeding burrows and spawned in these muddy habitats, 
and that their post planktonic larvae utilized muddy silt dominated 
habitats exclusively, presumably due to food availability. Based on 
this information, we conclude that substrates in Agua Hedionda Lagoon 
would not preclude the occurrence of tidewater gobies, and that they 
could occupy these areas.
    Merkel and Associates (1999) found that the shoreline was steep 
sided at the east end of Agua Hedionda Lagoon, and stated this feature 
may make the lagoon unsuitable for tidewater gobies. In fact, tidewater 
gobies occupy a number of lagoon and estuarine habitats that are more 
steeply sided than Agua Hedionda Lagoon. An example of such a lagoon is 
Hidden Creek, San Diego County. This lagoon consists of what can only 
be described as a slot canyon with vertical walls extending from the 
bottom of the lagoon to as much as 10 m above the water's surface. 
Other occupied lagoons at Aliso Creek (San Diego County), Cockleburr 
Creek, Shuman Lagoon, and the Santa Ynez River all have steep sides as 
a prominent habitat feature (Swift et al. 1997, Swift and Holland 
1998). Therefore, the shoreline configuration at Agua Hedionda appears 
suitable for tidewater gobies.
    Another contention of some commenters as to the suitability of Agua 
Hedionda for tidewater gobies was that occurrence of native and non-
native competitors and predators in the lagoon would preclude the 
possibility of occupation by tidewater gobies. Merkle and Associates 
(1999) found the following fish species at Agua Hedionda in September 
1999: California killifish (Fundulis parvipinnis), topsmelt (Atherinops 
affinis), deepbody anchovy (Anchoa compressa), arrow goby (Clevelandia 
ios), mosquitofish (Gambusia affinis), striped mullet (Mugil 
cephalous), and California butterfly ray (Gymnura marmorata). With the 
exception of the California butterfly ray, these are all species that 
the tidewater goby currently co-occurs with in other lagoons in San 
Diego County (Swift and Holland 1998). Fish surveys of the inner lagoon 
in 1994 and 1995 (Marine Environmental Consultants in litt. 1997) found 
23 species, all native, and most, species that the tidewater goby co-
occurs with, with the exception of the yellowfin goby (Acanthogobius 
flavimanus). Yellow fin gobies are a non-native species thought to 
compete and predate on tidewater gobies (Wang 1984, Swift and Holland 
1998). Yellowfin gobies were not present in the most recent survey 
(Merkel and Associates 1999). We conclude that the fish fauna of Agua 
Hedionda Lagoon is suitable for tidewater gobies, and, in fact, is 
representative of faunas gobies co-occur with in other coastal lagoons.
    Jenkins and Wasyl (1999) analyzed tidewater goby migration based on 
the coastal currents in the vicinity of Agua Hedionda Lagoon. The 
authors were addressing the effects of existing offshore current 
patterns on the success of tidewater goby dispersal to adjacent lagoon 
habitats. The authors found that 55-60 percent of nearshore currents at 
Agua Hedionda had a net southward transport, and 40-45 percent of 
nearshore currents had a net northward transport. The authors also 
estimated that the probability that northward nearshore currents would 
transport gobies to Buena Vista Lagoon to the north was about 0.4 
percent. They did not estimate the probability of gobies being 
transported to Batiquitos Lagoon to the south. While this report 
examined an interesting line of research, two recently published 
studies documented the dispersal of tidewater gobies among coastal 
lagoons (Lafferty et al. 1999a, 1999b).
    Comment 4b5: We received a number of comments concerning the 
potential changes or alterations to Agua Hedionda Lagoon resulting from 
a critical habitat designation. Many of these commenters believed that 
critical habitat designation would result in widespread changes to the 
existing configuration of the lagoon and the corresponding affects to 
current uses of the lagoon.
    Our Response: Agua Hedionda Lagoon is dredged to retain tidal 
influence within the lagoon which provides for a deep tidal bay type of 
habitat. This configuration also accommodates a number of recreational 
and other uses, including motorboating, water skiing, and a commercial 
shellfish farm. Although this differs markedly from the historic 
conditions within the lagoon, we feel that there are still areas within 
the lagoon which provide potential habitat for tidewater gobies. We 
believe that the current configuration of the lagoon could support the 
species as well as the existing uses within the lagoon.
    Comment 5: San Juan Creek and the San Luis Rey River should be 
included as critical habitat.
    Our Response: We received several comments proposing that San Juan 
Creek and the San Luis Rey River should be designated as critical 
habitat. Recent investigations at San Juan Creek and the San Luis Rey 
River have provided some data as to the suitability of these habitats 
to support tidewater gobies (Michael Brandman and Assoc. 1998, Dan 
Holland pers. comm. 2000). These data indicate that if efforts were

[[Page 69708]]

undertaken to restore tidewater goby habitat to these systems, they may 
support the species. San Juan Creek and the San Luis Rey River may be 
important in the species recovery and their potential value will be 
assessed in the recovery plan for the species. However, while San Juan 
Creek and the San Luis Rey River may be restored to provide suitable 
habitat for tidewater gobies, we do not have information demonstrating 
these areas are essential to the conservation of the species; 
therefore, these areas do not meet the definition of critical habitat.

Summary of Changes From the Proposed Rule

    We changed the rule to better define the lateral extent of critical 
habitat in response to a comment that the 50-year flood plain is 
undelineated or in dispute in many areas and is not useful in defining 
the lateral extent of critical habitat for the goby. In this final rule 
we have defined the lateral extent of critical habitat as the 50-year 
flood plain or the stream channels, estuaries, and other areas within 
these reaches potentially inundated by high flow events. The lateral 
extent of high flow events, and critical habitat, can be determined by 
the presence of alluvial soils (soils deposited by streams), obligate 
and facultative riparian vegetation (requiring and usually occurring in 
wetlands respectively), abandoned river channels, or known high water 
marks. This constitutes the present aquatic and riparian zones of the 
rivers, streams, and their associated estuaries designated as critical 
habitat. Existing human-constructed features and structures within this 
area, such as buildings, roads, railroads, and other features, do not 
contain, and do not have the potential to develop, those habitat 
components. It should be noted that this change does not increase the 
amount of critical habitat designated, but rather is a less ambiguous 
method of defining the same critical habitat boundaries.
    We have also excluded Buena Vista Lagoon. We note that tidewater 
goby habitat could be created at Buena Vista Lagoon. Restoring tidal 
flow by removing the existing weir structure currently blocking the 
mouth of the lagoon would probably create some habitat for the species 
(see comment 4b3 in the ``Summary of Comments and Recommendations'' 
section above). However, as we do not have information demonstrating 
that restoration of Buena Vista Lagoon is essential for the 
conservation of the tidewater goby, we have not included the area in 
this final designation.
    Additionally, we have changed the maps to better reflect the 
lateral extent of areas within these stream reaches that constitute 
critical habitat. The maps are a graphical representation only and do 
not constitute the definition of the critical habitat units. The maps 
are provided for reference purposes only, to guide Federal agencies and 
other interested parties in locating the general boundaries of the 
critical habitat unit (50 CFR 17.94(b)).

Economic Analysis

    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 completed a draft 
economic analysis and made it available to the public for comment (65 
FR 39850). We also completed a final economic analysis that 
incorporated public comment, information gathered since the draft 
analysis, and changes to the critical habitat designation. The analysis 
found that there would be an economic impact from the designation that 
would vary on a situational level, and that most of the impact would 
come in the form of new section 7 consultations in unoccupied habitat 
units. We have determined that these economic impacts are minimal and 
do not warrant excluding any areas from the designation. The final 
economic analysis is available to the public at the Carlsbad Fish and 
Wildlife Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    This document has been reviewed by the Office of Management and 
Budget (OMB), in accordance with Executive Order 12866. OMB makes the 
final determination under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required. The tidewater goby was listed as an 
endangered species in 1994.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; it does not impose any restrictions on non-
Federal persons unless they are conducting activities funded or 
otherwise sponsored or permitted by a Federal agency (see Table 1 
below). Section 7 requires Federal agencies to ensure that they do not 
jeopardize the continued existence of the species. Based upon our 
experience with the species and its needs, we conclude that any Federal 
action or authorized action that could potentially cause adverse 
modification of designated critical habitat would currently be 
considered as ``jeopardy'' under the Act. Accordingly, the designation 
of areas within the geographic range occupied by the tidewater goby 
does not have any incremental impacts on what actions may or may not be 
conducted by Federal agencies or non-Federal persons that receive 
Federal authorization or funding. The designation of areas outside the 
geographic range occupied by the species may have incremental impacts 
on what activities may or may not be conducted by Federal agencies or 
non-Federal persons that receive Federal authorization or funding. 
However, our analysis did not identify any significant incremental 
effects. Non-Federal persons that do not have a Federal ``sponsorship'' 
of their actions are not restricted by the designation of critical 
habitat, although they continue to be bound by the provisions of the 
Act concerning ``take'' of the species.
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
the tidewater goby since the listing in 1994. The prohibition against 
adverse modification of critical habitat is not expected to have a 
significant economic impact. Because of the potential for impacts on 
other Federal agency activities, we will continue to review this action 
for any inconsistencies with other Federal agency actions.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Federal agencies are currently required to ensure that their activities 
do not jeopardize the continued existence of the species, and as 
discussed above we do not anticipate that the adverse modification 
prohibition (resulting from critical habitat designation) will have any 
significant incremental effects.
    (d) This rule will not raise novel legal or policy issues. This 
final determination follows the requirements for determining critical 
habitat contained in the Endangered Species Act.

[[Page 69709]]



    Table 1.--Impacts of Tidewater Goby Listing and Critical Habitat
                               Designation
------------------------------------------------------------------------
                                                           Additional
                                                           Activities
                                Activities Potentially     Potentially
   Categories of Activities       Affected by Species      Affected by
                                   Listing Only \1\     Critical Habitat
                                                         Designation \2\
------------------------------------------------------------------------
Federal Activities Potentially  Activities the Federal  Activities by
 Affected \3\.                   Government carries      Federal
                                 out such as:            Agencies in any
                                 regulation of           unoccupied
                                 activities affecting    critical
                                 waters of the U.S.      habitat areas.
                                 (under section 404 of
                                 the Clean Water Act);
                                 regulation of water
                                 flows, damming,
                                 diversion, and
                                 channelization; road
                                 construction, right
                                 of way designation;
                                 regulation of
                                 agricultural
                                 activities; some
                                 military activities
                                 on the Camp
                                 Pendleton; hazard
                                 mitigation and post-
                                 disaster repairs; and
                                 construction
                                 activities.
Private Activities Potentially  Activities such as:     Funding,
 Affected \4\.                   those affecting         authorization,
                                 waters of the U.S.      or permitting
                                 (under section 404 of   actions by
                                 the Clean Water Act);   Federal
                                 regulation of water     Agencies in any
                                 flows, damming,         unoccupied
                                 diversion, and          critical
                                 channelization; road    habitat areas.
                                 construction, right
                                 of way designation;
                                 agricultural
                                 activities; hazard
                                 mitigation and post-
                                 disaster repair; and
                                 construction
                                 activities that
                                 require a Federal
                                 action (permit,
                                 authorization, or
                                 funding).
------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by
  listing the tidewater goby as an endangered species (March 7, 1994; 59
  FR 5494) under the Endangered Species Act.
\2\ This column represents the activities potentially affected by the
  critical habitat designation in addition to those activities
  potentially affected by listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private entity that may need Federal
  authorization or funding.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the economic analysis, we determined that designation of 
critical habitat will not have a significant effect on a substantial 
number of small entities. As discussed under Regulatory Planning and 
Review above and in this final determination, this designation of 
critical habitat for the tidewater goby is not expected to have a 
significant economic impact. We have designated property owned by 
Federal, State and local governments, and private property.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the U. S. under 
section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Road construction, right of way designation, or regulation of 
agricultural activities by Federal agencies;
    (4) Some military activities on the Camp Pendleton;
    (5) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency;
    (6) Construction of communication sites licensed by the Federal 
Communications Commission; and
    (7) Activities funded or authorized by Federal agencies.
    Some of these activities sponsored by Federal agencies within 
critical habitat areas are carried out by small entities (as defined by 
the Regulatory Flexibility Act) through contract, grant, permit, or 
other Federal authorization. As discussed in section 1 above, these 
actions are largely required to comply with the listing protections of 
the Act, and the designation of critical habitat is not anticipated to 
have significant additional effects on these activities.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current restrictions 
concerning take of the species remain in effect, and this final 
determination will have no additional restrictions.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 
804(2))

    In the economic analysis, we determined whether designation of 
critical habitat would cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions in the economic analysis, or (c) any 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.

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.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will only be affected to the extent that any Federal funds, 
permits, or other authorized activities must ensure that their actions 
will not adversely affect the critical habitat. However, as discussed 
in section 1, these actions are currently subject to equivalent 
restrictions through the listing protections of the species, and no 
further restrictions are anticipated.
    (b) This rule 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.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This designation will not ``take'' private property 
and will not alter the value of private property.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. This designation of critical habitat imposes no additional 
restrictions to those currently in place, and therefore has little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments in that the 
areas essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are specifically identified. While this 
definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist these local governments 
in long-

[[Page 69710]]

range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have made every effort to 
ensure that this final determination contains no drafting errors, 
provides clear standards, simplifies procedures, reduces burden, and is 
clearly written such that litigation risk is minimized.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required.

National Environmental Policy Act

    We have determined that an Environmental Assessment and/or an 
Environmental Impact Statement as defined by the National Environmental 
Policy Act of 1969 need not be prepared in connection with regulations 
adopted pursuant to section 4(a) of the Act as amended. A notice 
outlining our reason for this determination was published in the 
Federal Register on October 25, 1983 (48 FR 49244). This final 
determination does not constitute a major Federal action significantly 
affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands that are essential for the conservation of 
the tidewater goby because they do not support populations or suitable 
habitat. Therefore, we are not designating critical habitat for the 
tidewater goby on Tribal lands.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the Carlsbad Fish and Wildlife Office (see 
ADDRESSES section).
    Author. The primary author of this final rule 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

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec. 17.11(h), by revising the entry for ``goby, 
tidewater'' under ``FISHES'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        SPECIES                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
 
                   *                  *                  *                  *                  *                  *                  *
              Fishes
 
                   *                  *                  *                  *                  *                  *                  *
Goby, tidewater..................  Eucyclogobius         U.S.A. (CA)........  do.................  E                       527     17.95(e)           NA
                                    newberryi.
 
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec. 17.95(e) by adding critical habitat for the tidewater 
goby (Eucyclogobius newberrii) under paragraph (e) in the same 
alphabetical order as this species occurs in Sec. 17.11(h), to read as 
follows:


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
    Tidewater goby (Eucyclogobius newberrii)
    1. Critical habitat units are depicted for Orange and San Diego 
Counties, California, on the maps below and as described below.
    2. Critical habitat includes the sections of streams indicated 
on the maps below and areas within these reaches potentially 
inundated by high flow events. Where delineated, this is the 50-year 
flood plain of the designated waterways. In areas where the 50-year 
flood plain is not delineated the presence of alluvial soils (soils 
deposited by streams), obligate and facultative wetland vegetation, 
abandoned river channels, or evidence of high water marks can be 
used to determine the extent of the floodplain. Critical habitat 
does not include existing man-made features and structures within 
this area, such as buildings, roads, railroads, and other features, 
which do not contain, and do not have the potential to develop the 
primary constituent elements for the tidewater goby.
    3. Within these areas, the primary constituent elements include, 
but are not limited to, those habitat components that are essential 
for the primary biological needs of foraging, sheltering, and 
reproduction. These elements include coastal lagoons and estuary 
systems supported by a natural hydrological regime, which results in 
sufficient streamflow, areas of shallow water as well as deep 
pockets of permanent water, sand and silt substrate, a variety of 
aquatic and emergent vegetation, and a diversity of prey species; 
and an environment free from exotic fishes.

BILLING CODE 3420-55-P

[[Page 69711]]

[GRAPHIC] [TIFF OMITTED] TR20NO00.003

Map Unit 1: Orange County, California. From USGS 7.5' quadrangle map 
Laguna Beach, California, and San Juan Capistrano, California. San 
Bernardino Principal Meridian, California, T. 7 S., R 8 W., 
beginning at a point on Aliso Creek in SW sec. 32 and at 
approximately 33 deg.30'46" N latitude and 117 deg.44'37" W 
longitude, UTM coordinates 430853.4 E, 3708395.9 N, and proceeding 
downstream (westerly) to the Pacific Ocean covering approximately 
1.0 km (0.6 mi.), including the stream, its 50-year flood plain, and 
associated lagoons and marsh.

[[Page 69712]]

[GRAPHIC] [TIFF OMITTED] TR20NO00.004


[[Page 69713]]


Map Unit 2: San Diego County, California. From USGS 7.5' quadrangle 
map San Clemente, California. San Bernardino Principal Meridian, 
California, T. 9 S., R. 7 W., beginning at a point on San Mateo 
Creek in NW sec. 14 and at approximately 33 deg.23'46" N latitude 
and 117 deg.35'20" W longitude, UTM coordinates 445152.5 E, 
3695369.7 N, and proceeding downstream (southerly) to the Pacific 
Ocean covering approximately 1.3 km (0.9 mi.), including the stream, 
its 50-year flood plain, and associated lagoons and marsh.
Map Unit 3: San Diego County, California. From USGS 7.5' quadrangle 
map San Clemente, California. San Bernardino Principal Meridian, 
California, T. 9 S., R. 7 W., beginning at a point on San Onofre 
Creek in SE sec. 14 and at approximately 33 deg.23'05" N latitude 
and 117 deg.34'30" W longitude, UTM coordinates 446450.2 E, 
3694074.4 N, and proceeding downstream (southwesterly) to the 
Pacific Ocean covering approximately 0.6 km (0.4 mi.), including the 
stream, its 50-year flood plain, and associated lagoons and marsh.
[GRAPHIC] [TIFF OMITTED] TR20NO00.005


[[Page 69714]]


Map Unit 4: San Diego County, California. From USGS 7.5' quadrangle 
map Las Pulgas Canyon, California. San Bernardino Principal 
Meridian, California, T. 10 S., R. 6 W., beginning at a point on Las 
Flores Creek in the middle of sec. 13 and at approximately 
33 deg.17'32" N latitude and 117 deg.27'20" W longitude, UTM 
coordinates 457495.3 E, 3683780.1 N, and proceeding downstream 
(westerly) to the Pacific Ocean covering approximately 0.8 km (0.5 
mi.), including the stream, its 50-year flood plain, and associated 
lagoons and marsh.
Map Unit 5: San Diego County, California. From USGS 7.5' quadrangle 
map Las Pulgas Canyon, California. San Bernardino Principal 
Meridian, California, T. 10 S., R. 5 W., beginning at a point on 
Hidden Creek in W sec. 30 and at approximately 33 deg.16'46" N 
latitude and 117 deg.26'48" W longitude, UTM coordinates 458321.5 E, 
3682362.9 N, and proceeding downstream (southwesterly) to the 
Pacific Ocean covering approximately 0.8 km (0.5 mi.), including the 
stream, its 50-year flood plain, and associated lagoons and marsh.
[GRAPHIC] [TIFF OMITTED] TR20NO00.006


[[Page 69715]]


Map Unit 6: San Diego County, California. From USGS 7.5' quadrangle 
map Las Pulgas Canyon, California. San Bernardino Principal 
Meridian, California, T. 10 S., R. 5 W., beginning at a point on 
Aliso Creek in NE sec. 31 and at approximately 33 deg.16'13" N 
latitude and 117 deg.26'19" W longitude, UTM coordinates 459521.7 E, 
3680981.1 N, and proceeding downstream (southwesterly) to the 
Pacific Ocean covering approximately 0.7 km (0.4 mi.), including the 
stream, its 50-year flood plain, and associated lagoons and marsh.
Map Unit 7: San Diego County, California. From USGS 7.5' quadrangle 
map Las Pulgas Canyon, California. San Bernardino Principal 
Meridian, California, T. 10 S., R. 5 W., beginning at a point on 
French Creek in E sec. 31 and at approximately 33 deg.16'01" N 
latitude and 117 deg.26'01" W longitude, UTM coordinates 459078.8 E, 
3681354.4 N, and proceeding downstream (westerly) to the Pacific 
Ocean covering approximately 0.7 km (0.4 mi.), including the stream, 
its 50-year flood plain, and associated lagoons and marsh.
Map Unit 8: San Diego County, California. From USGS 7.5' quadrangle 
map Las Pulgas Canyon, California. San Bernardino Principal 
Meridian, California, T. 11 S., R. 5 W., beginning at a point on 
Cockleburr Creek in NE sec. 5 and at approximately 33 deg.15'16" N 
latitude and 117 deg.25'21" W longitude, UTM coordinates 460570.4 E, 
and 3679563.4 N, and proceeding downstream (westerly) to the Pacific 
Ocean covering approximately 1.0 km (0.6 mi.), including the stream, 
its 50-year flood plain, and associated lagoons and marsh.
[GRAPHIC] [TIFF OMITTED] TR20NO00.007


[[Page 69716]]


Map Unit 9: San Diego County, California. From USGS 7.5' quadrangle 
map Oceanside, California. San Bernardino Principal Meridian, 
California, T. 11 S., R. 5 W., beginning at a point on the Santa 
Margarita River in NW sec. 2 and at approximately 33 deg.15'08" N 
latitude and 117 deg.22'38" W longitude, UTM coordinates 464774.9 E, 
3679326.9 N, and proceeding downstream (westerly) to the Pacific 
Ocean covering approximately 5.0 km (3.1 mi.), including the river's 
50-year flood plain, associated lagoons and marsh.
[GRAPHIC] [TIFF OMITTED] TR20NO00.008


[[Page 69717]]


Map Unit 10: San Diego County, California. From USGS 7.5' quadrangle 
map San Luis Rey, California. San Bernardino Principal Meridian, 
California, T. 12 S., R. 4 W., beginning at a point on Augua 
Hedionda Creek in the middle of Section 9 and at approximately 
33 deg.08'44" N latitude and 117 deg.18'19" W longitude, UTM 
coordinates 471444.4 E, 3667474.6 N, and proceeding downstream 
(southwesterly) to the Pacific Ocean covering approximately 3.7 km 
(2.3 mi.), including the creek, its 50-year flood plain, Agua 
Hedionda Lagoon, and associated marsh.
[GRAPHIC] [TIFF OMITTED] TR20NO00.009


    Dated: November 13, 2000.
Kenneth L. Smith,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-29547 Filed 11-17-00; 8:45 am]
BILLING CODE 3420-55-C