[Federal Register Volume 67, Number 84 (Wednesday, May 1, 2002)]
[Rules and Regulations]
[Pages 21586-21598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10773]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 001025296-2079-02; I.D. 072600A]
RIN 0648-AO05


Endangered and Threatened Species: Range Extension for Endangered 
Steelhead in Southern California

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS has received new evidence of steelhead (anadromous 
Oncorhynchus mykiss) presence in two locations and spawning in one 
location south of the current range of the listed southern California 
steelhead Evolutionarily Significant Unit (ESU) which is currently 
Malibu Creek. Based upon this new information, and the possibility that 
anadromous O. mykiss may occur in other streams south of Malibu Creek 
if hydrologic and other habitat conditions are favorable, NMFS is now 
issuing a final rule under the Endangered Species Act (ESA) that 
redefines the geographic range of the listed anadromous O. mykiss 
population to include all steelhead and their progeny that occur in 
coastal river basins from the Santa Maria River (inclusive) to the U.S. 
- Mexico Border. NMFS has reassessed the status of anadromous O. mykiss 
throughout its redefined range in Southern California and concludes 
that the listed population continues to be endangered.
    Within the redefined geographic range of O. mykiss, only 
anadromous, naturally spawned populations, and their progeny, which 
reside below naturally occurring and man-made impassable barriers 
(e.g., impassable waterfalls and dams) are listed.

DATES: Effective July 1, 2002.

ADDRESSES: Assistant Regional Administrator, Protected Resources 
Division, NMFS, Southwest Region, 501 West Ocean Blvd., Suite 4200, 
Long Beach, CA 90802-4213.

FOR FURTHER INFORMATION CONTACT: Craig Wingert, 562-980-4021, or Chris 
Mobley, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Previous Federal ESA Actions Related to the Southern California 
Steelhead ESU

    In 1994, NMFS received a petition from the Oregon Natural Resources 
Council and numerous co-petitioners to list west coast steelhead 
(Oncorhynchus mykiss) populations under the ESA. In response to the 
petition, NMFS conducted a status review of west coast steelhead (Busby 
et al., 1996) which identified 15 Evolutionarily Significant Units 
(ESUs) of steelhead in Washington, Oregon, Idaho, and California, and 
assessed their risk of extinction. One of these 15 ESUs was the 
Southern California steelhead ESU which was found to be at a high risk 
of extinction.
    Based on this status review and a consideration of the listing 
factors in section 4(a)(1) of the ESA, NMFS proposed to list the 
Southern California steelhead as an endangered species in August 1996 
(61 FR 41541). In August 1997, NMFS published a final rule listing this 
ESU as an endangered species (62 FR 43937). In the final rule, NMFS 
listed only the anadromous life form of O. mykiss, and, therefore, 
defined the listed Southern California steelhead population to include 
all naturally spawned populations of steelhead (and their progeny) in 
streams from the Santa Maria River in San Luis Obispo County 
(inclusive) to and including Malibu Creek in Los Angeles County. At the 
time of listing, NMFS believed Malibu Creek represented the 
southernmost extent of the range of anadromous O. mykiss in southern 
California.
    On February 5, 1999, NMFS published a proposed critical habitat 
designation for 19 ESUs of threatened and endangered salmon and 
steelhead distributed throughout Washington, Oregon, Idaho, and 
California, including the endangered Southern California steelhead ESU 
(64 FR 5740). A final rule designating critical habitat for these 19 
ESUs, including the Southern California steelhead ESU, was published on 
February 16, 2000 (65 FR 7764).
    Although the critical habitat designation for Southern California 
steelhead is presently in effect, NMFS has recently sought approval 
from the U.S. District Court in the District of Columbia for a consent 
decree that would vacate critical habitat designations for Southern 
California steelhead and 18 other salmon/steelhead ESUs as a result of 
litigation

[[Page 21587]]

filed against the agency by the National Association of Homebuilders. 
In conjunction with this action, NMFS also intends to undertake a new 
and more thorough analysis of critical habitat for these ESUs, 
including the economic impacts of any designation, that is consistent 
with the ESA and other recent Court decisions. Following completion of 
this analysis, NMFS intends to proceed with re-proposing critical 
habitat designations for these ESUs including the Southern California 
steelhead.

New Information on Steelhead Distribution South of Malibu Creek in 
Southern California

    In 1999 and 2000, new information became available which indicated 
that the anadromous life form of O. mykiss (i.e. steelhead) or their 
progeny occurred in at least two coastal streams south of Malibu Creek 
(Topanga Creek and San Mateo Creek). This new information included 
observations of juvenile O. mykiss in Topanga Creek by a NMFS biologist 
and field and laboratory investigations conducted by the California 
Department of Fish and Game (CDFG) which demonstrated the presence and 
spawning of anadromous O. mykiss in San Mateo Creek (DFG, 2000). Based 
on this new information, NMFS published a Federal Register notice in 
December 2000 proposing to formally recognize that anadromous O. mykiss 
(or steelhead) ranged further southward in Southern California than was 
previously believed to be the case by extending the range of the listed 
population to San Mateo Creek (65 FR 79328). A detailed discussion of 
the new information upon which the range extension proposal was based 
is contained in the December 2000 Federal Register notice.
    Since the range extension was proposed in December 2000, NMFS has 
obtained some additional new information on O. mykiss in San Mateo 
Creek which was considered in this final determination. Additional 
microsatellite and mitochondrial DNA (mtDNA) analyses were conducted by 
Jennifer Nielsen (U.S. Geological Service, Alaska Science Center in 
Anchorage, AK.) on tissue samples taken from 16 O. mykiss collected in 
San Mateo Creek in 1999 and 2000 (Nielson and Sage, 2002). All 16 fish 
that were analyzed shared the MYS5 haplotype that is found throughout 
the range of O. mykiss in California, but which is most commonly found 
in Southern California populations (Nielsen et al. 1994). This finding 
is consistent with previous genetic analysis reported for O. mykiss in 
San Mateo Creek (DFG, 2000) and cited in NMFS' proposed range extension 
(65 FR 79328). According to Nielsen and Sage (2002), this haplotype has 
not been found in their previous survey of hatchery O. mykiss strains 
in California, and, therefore, suggests an endemic population structure 
in San Mateo Creek. Secondly, the DFG has undertaken periodic field 
surveys in upper San Mateo Creek and Devil's Canyon since May 2000 
which have documented the continued presence of O. mykiss in the 
watershed. In many instances, these surveys were carried out in 
conjunction with efforts to remove exotic species that might prey upon 
or compete with O. mykiss. Although these surveys were limited in scope 
and methodology, they documented the presence of O. mykiss through at 
least August 2001 in Devil's Canyon. Summaries of the DFG field surveys 
for O. mykiss and exotic species removal are contained in a series of 
file memoranda prepared by DFG staff.
    NMFS has completed its review and analysis of all available 
information, including public comments that were received on the 
proposal. This final rule formally extends the range of the Southern 
California steelhead ESU and reaffirms that it continues to be an 
endangered species.

Summary of Comments Received in Response to the Proposed Range 
Extension Notice

    The proposed range extension was published on December 19, 2000, 
with a 60-day comment period that closed on February 20, 2001. During 
this period, NMFS received numerous requests for a public hearing, as 
well as requests for additional time to comment on the proposal. As a 
result, NMFS re-opened the public comment period for 30 days on 
February 21, 2001, and held a public hearing in San Clemente, CA, on 
March 12, 2001. The re-opened public comment period closed on March 22, 
2001.
    Excluding hearing requests, a total of 63 written comments were 
received on the proposal from a broad range of agencies, non-
governmental organizations, other groups, and private citizens. A total 
of 37 individuals provided oral comments at the public hearing. The 
vast majority of comments supported the proposal, although many urged 
NMFS to expand or modify its proposal. A limited number of comments 
were opposed to or neutral about the proposal. A summary of the 
comments on the proposal and NMFS' responses to those comments are 
presented below by specific issue.

Comments and Responses

Issue: Southern Boundary of Southern California Steelhead ESU

    Comment 1: Many commenters argued that the southern boundary of the 
listed Southern California steelhead population (i.e. anadromous O. 
mykiss) should be extended to the southernmost extent of the species 
historical range rather than to just San Mateo Creek. Most argued this 
boundary should be the U.S.- Mexico border.
    Response: NMFS has previously recognized that steelhead 
historically occurred naturally at least as far south as northern Baja 
California (NMFS, 1996; and 62 FR 43937). However, at the time the 
Southern California steelhead ESU was listed as an endangered species 
in 1997 the best available information indicated that persistent 
populations of anadromous O. mykiss did not occur in rivers or streams 
further south than Malibu Creek. As described in NMFS' proposed range 
extension (65 FR 79328) new information became available in 1999 and 
2000 indicating that anadromous O. mykiss were occupying San Mateo 
Creek which is in northern San Diego County. Limited observational 
information also suggested that O. mykiss occurred in Topanga Creek.
    NMFS' main objectives in proposing the range extension for Southern 
California steelhead were three-fold: First, to seek public comment on 
new information showing that the freshwater geographic range of 
anadromous O. mykiss extended south of Malibu Creek to at least San 
Mateo Creek; second, to seek public comment on NMFS proposal to 
consider the O. mykiss found south of Malibu Creek to be part of the 
listed Southern California steelhead ESU; and third, to ensure that 
anadromous O. mykiss occurring south of Malibu Creek, either as 
isolated individuals (e.g. Topanga Creek) or as populations (i.e. San 
Mateo Creek) would be protected under the ESA.
    NMFS recognizes that habitat suitable for anadromous O. mykiss may 
occur in watersheds south of San Mateo Creek (e.g. San Onofre Creek and 
perhaps elsewhere) and that anadromous O. mykiss historically occurred 
further south than San Mateo Creek. For these reasons, and because 
anadromous O. mykiss may stray to streams south of San Mateo Creek just 
as they did to San Mateo Creek in 1997, NMFS intends to consider any 
anadromous O. mykiss that are found to occur in coastal streams and 
estuaries between the Santa Maria River and the U.S.- Mexico border to 
be part of the listed Southern California steelhead population unless 
there is

[[Page 21588]]

evidence indicating they are unlisted resident forms or derived from 
hatchery rainbow trout populations.
    As discussed elsewhere in this document, NMFS believes that 
anadromous O. mykiss do not presently occur further south than San 
Mateo Creek, and in only two locations between Malibu Creek and San 
Mateo Creek. However, the southern boundary of anadromous O. mykiss in 
Southern California is likely to vary over time as a result of variable 
and unpredictable rainfall patterns and freshwater habitat conditions, 
and the ability of the anadromous form to stray or colonize new 
habitats. As information becomes available in the future that a 
persistent population of anadromous O. mykiss occurs in any other 
streams south of Malibu Creek, NMFS will promptly inform the public by 
means of notification in the Federal Register.
    Comment 2: A few commenters asserted that the proposed range 
extension was not justified and or was inappropriate because there is 
no information indicating that steelhead occur in those streams located 
between Malibu Creek and San Mateo Creek.
    Response: NMFS disagrees. NMFS believes the best available 
information indicates that the O. mykiss in San Mateo Creek are the 
progeny of steelhead that originated from some other stream located 
within the geographic range of the Southern California steelhead ESU 
and spawned in that watershed in 1997. As noted elsewhere in this final 
notice, the best available information NMFS possessed at the time of 
listing in 1997 suggested that anadromous O. mykiss did not occur 
further south than Malibu Creek. Therefore, the new evidence indicating 
that anadromous O. mykiss now occupy San Mateo Creek constitutes a 
southern extension of the range for this listed life history form. The 
fact that anadromous O. mykiss do not generally occur in streams 
between Malibu Creek and San Mateo Creek has no bearing on whether or 
not the fish in San Mateo Creek are part of the listed Southern 
California steelhead ESU. As NMFS emphasized in the proposed range 
extension, the habitat conditions in virtually all of the streams 
located between Malibu Creek and San Mateo Creek (e.g. Los Angeles 
River, San Gabriel River, Santa Ana River, San Juan Creek, etc.) are 
highly modified, and, therefore, are not presently suitable for 
utilization by steelhead. Absent significant habitat restoration 
efforts, NMFS does not expect these rivers or streams to support 
steelhead in the future.

Issue: Critical Habitat

    Comment 3: One commenter argued that unoccupied or highly modified 
habitat (specifically the Los Angeles, San Gabriel, and Santa Ana 
Rivers) would be very costly to restore, and, therefore, should be 
excluded from any future modification of the existing critical habitat 
designation for this ESU.
    Response: The ESA requires NMFS to designate critical habitat or 
make revisions to critical habitat on the basis of the best scientific 
data available, but only after taking into consideration the economic 
impacts of specifying any particular area as critical habitat. 
Therefore, in making any future revisions to the existing critical 
habitat designation for the Southern California steelhead ESU, NMFS 
will consider the economic impacts of designating any additional 
habitat whether it is occupied by steelhead or not.
    Unless NMFS' failure to designate specific areas as critical 
habitat will result in the extinction of a listed species, the ESA 
allows the agency to exclude areas from critical habitat if it is 
determined that the benefits of such an exclusion outweigh the benefits 
of specifying such an area as part of the critical habitat. Because 
virtually all of the freshwater habitat available to steelhead south of 
Malibu Creek (the current southern extent of critical habitat for this 
ESU) to at least San Mateo Creek is highly modified, and, therefore, 
unlikely to support steelhead without substantial habitat restoration, 
NMFS intends to carefully evaluate and weigh the benefits of 
designating these habitats as critical habitat or excluding them from 
any revised designation.
    Comment 4: Many commenters argued that in conjunction with the 
range extension for this ESU, NMFS should be designating critical 
habitat for steelhead in all watersheds south of Malibu Creek, 
including San Mateo Creek, that are within the historic range of 
steelhead whether the habitat is occupied or not.
    Response: In making its critical habitat designation for the 
endangered Southern California steelhead ESU in February 2000 (65 FR 
7764), the agency concluded that all occupied and accessible river 
reaches and estuarine areas in coastal river basins ranging from the 
Santa Maria River southward to and including Malibu Creek were 
essential for the recovery of the ESU. This determination was made, in 
part, because these basins were thought to provide essential habitat 
features such as spawning, rearing, and migration habitat, food 
resources, sufficient water quality and quantity, and riparian 
vegetation. Also contributing to NMFS' determination was the fact that 
the coastal river basins in this geographic area were historically 
important for the ESU (e.g. Santa Ynez, Ventura, and Santa Clara 
Rivers), and many of the river basins, both large and small and in 
relatively close proximity to one another, continued to support 
anadromous O. mykiss though at low levels of abundance on the scale of 
both individual river basins and the entire ESU.
    In contrast, the situation that currently exists for coastal river 
basins south of Malibu Creek is quite different. Recent information, as 
discussed elsewhere in this document, does demonstrate that anadromous 
O. mykiss occur in at least two coastal river basins south of Malibu 
Creek (i.e. San Mateo Creek and Topanga Creek). The population in San 
Mateo Creek was only re-established recently as a result of adults that 
strayed into the watershed and spawned in 1997, and the presence of O. 
mykiss in Topanga Creek may be transitory. There is no evidence that 
anadromous O. mykiss occupy any of the other coastal river basins 
between Malibu Creek and San Mateo Creek, and many of these basins are 
so highly modified that they can not support anadromous O. mykiss. 
Further, there is no evidence that any other coastal river basins south 
of San Mateo Creek, within the historic range of steelhead, currently 
support the anadromous life form of O. mykiss. Because only two coastal 
watersheds south of Malibu Creek support anadromous O. mykiss, 
including San Mateo Creek which is well separated from the remainder of 
the populations in the listed ESU, and virtually all other coastal 
watersheds south of Malibu Creek do not support this anadromous life 
history form, NMFS believes there is insufficient information at 
present to determine if all or some of the freshwater habitat south of 
Malibu Creek, whether occupied or unoccupied, is essential for the 
conservation of this ESU.
    NMFS believes that a determination of how much habitat south of 
Malibu Creek is essential for the conservation of this ESU is best left 
to NMFS' technical recovery planning process because it will be closely 
linked to the development of biological recovery goals for this ESU. 
The development of biological recovery goals will be the first task of 
the NMFS' appointed technical recovery team that will be responsible 
for addressing the Southern California steelhead ESU, and this task 
will require an assessment of the population structure of the ESU, as 
well as an evaluation of how many populations of

[[Page 21589]]

O. mykiss, including both their geographic distribution and size, are 
necessary to achieve recovery of the entire ESU. If NMFS' recovery team 
concludes through this assessment process that recovery of this ESU 
will require anadromous O. mykiss populations and the habitat to 
support them in coastal river basins south of Malibu Creek, then NMFS 
will conduct the requisite economic analysis to determine if these 
areas should be incorporated into the existing critical habitat 
designation for this ESU.
    Comment 5: Many commenters argued that NMFS should designate 
critical habitat above manmade barriers throughout the current and 
historic range of steelhead in this ESU in conjunction with the range 
extension.
    Response: In February 2000, NMFS designated critical habitat for 
the Southern California steelhead ESU, which included all occupied and 
accessible freshwater habitat in watersheds ranging from the Santa 
Maria River southward to Malibu Creek, which was considered to be the 
current range of listed anadromous O. mykiss at that time. River 
reaches that were inaccessible to anadromous O. mykiss above specific 
manmade barriers (e.g. dams), however, were not included in the 
critical habitat designation. This approach was consistent with NMFS' 
previous determination to list only the anadromous life form of O. 
mykiss below manmade barriers.
    While substantial amounts of habitat historically occupied by 
anadromous O. mykiss may occur above manmade barriers in some 
watersheds in the Southern California steelhead ESU (e.g. the Santa 
Ynez River, Ventura River, Santa Clara River), NMFS has not conducted 
an assessment to determine if all or some of these blocked habitat 
areas are currently essential for the recovery of this steelhead ESU. 
In addition, the agency has not performed the requisite economic 
analyses needed to designate blocked habitat areas that are unoccupied 
as critical habitat.
    Comment 6: Several commenters argued that critical habitat should 
be designated for steelhead on Camp Pendleton Marine Corps Base and 
that NMFS should not exclude this habitat from any designation because 
of concerns about impacts to the military mission of the Base.
    Response: As discussed previously, NMFS believes that any 
assessment of whether or not freshwater and estuarine habitat south of 
Malibu Creek is essential for recovery of this ESU, including San Mateo 
Creek which occurs in large part on Camp Pendleton, needs to be made in 
conjunction with the development of biological recovery goals for this 
ESU. If NMFS' recovery planning process concludes that specific 
freshwater and estuarine habitats south of Malibu Creek, including San 
Mateo Creek, are essential for recovery of the ESU, then NMFS will do 
the requisite economic analyses necessary to revise the existing 
critical habitat designation.
    As specified in Section 4(b)(2) of the ESA, however, NMFS may 
exclude an area from a critical habitat designation if the benefits of 
such an exclusion outweigh the benefits of specifying the area as part 
of the designation, provided that excluding the area will not result in 
the extinction of the listed species for which the habitat is being 
designated. In making any future determination about designating 
critical habitat south of Malibu Creek, including the San Mateo Creek 
watershed on Camp Pendleton, NMFS will thoroughly evaluate whether or 
not any potentially designated areas may be excluded from the 
designation based on this weighing of benefits.
    Comment 7: One commenter argued that NMFS failed to comply with the 
National Environmental Policy Act (NEPA) and prepare an economic 
analysis.
    Response: The main objectives of NMFS' proposal were to recognize 
that the freshwater geographic range of anadromous O. mykiss extended 
further south than was previously thought to be the case, and to ensure 
that any anadromous O. mykiss occurring south of Malibu Creek were 
protected under the ESA. In effect, the proposal was intended to aimed 
at clarifying the geographic range of a previously listed population. 
Because NMFS' proposal dealt with the geographic revision of a 
presently listed ESU and did not propose any modification to the 
existing critical habitat designation, there was no statutory 
requirement for NMFS to prepare any economic analyses. If NMFS 
concludes that the existing critical habitat designation for this ESU 
should be revised in the future to include freshwater and estuarine 
habitats south of Malibu Creek, then the requisite economic analyses 
required by the ESA and our implementing regulations will be prepared. 
NMFS has previously determined that it is not necessary to prepare NEPA 
analyses for listing decisions or critical habitat designations made 
pursuant to the ESA (See NOAA Administrative Order 216-6).

Issue: Biology and Ecology of Steelhead

    Comment 8: Many commenters asserted that ``resident'' rainbow trout 
(resident O. mykiss) occurring both above and below dams or other 
barriers within the ``historic range'' of the species should be part of 
the listed Southern California steelhead ESU.
    Response: NMFS' December 2000 proposed range extension dealt only 
with the anadromous form of O. mykiss, for which new distributional 
information was available, and did not address the status of resident 
forms above and below barriers. The relationship of resident forms to 
the anadromous form and the status of resident forms under the ESA is 
the subject of pending litigation.
    Comment 9: Camp Pendleton questioned the long-term sustainability 
or viability of the steelhead population in San Mateo Creek in light of 
the variable rainfall, streamflow, and other habitat conditions for 
steelhead in Southern California. They also expressed concerns about 
the costs of maintaining habitat for a population that might not be 
viable in the long-term.
    Response: The long-term persistence of steelhead in San Mateo Creek 
may be uncertain given its distance from potential source populations, 
the highly variable rainfall conditions in southern California that 
influence access to this watershed, and other factors affecting O. 
mykiss within the watershed. However, the steelhead in San Mateo Creek 
should not be viewed as an independent population or subpopulation that 
is unconnected to other steelhead populations or subpopulations in 
southern California. In contrast, the steelhead in San Mateo Creek 
should be viewed as part of a larger meta-population unit that is 
comprised of many other populations or subpopulations occupying other 
streams in the ESU, and it is the viability of this larger population 
unit that is most important. Individually, the production capability of 
small coastal streams in this ESU such as San Mateo Creek may be 
relatively small compared to larger, perennial river systems that are 
more productive and can support larger populations, but collectively 
both the small and large systems in the ESU provide a means to ensure a 
greater diversity of populations and/or subpopulations in the larger 
meta-population unit. In addition, the smaller systems provide for 
range expansion and recovery after drought or other perturbations that 
reduce population numbers. The utilization of larger numbers of both 
small and large scale habitats by anadromous O. mykiss increases the 
likelihood of the long-term persistence of the ESU. The fact that the 
O. mykiss population in San Mateo Creek is derived from anadromous 
parents that entered the watershed and

[[Page 21590]]

spawned indicates that adult steelhead can still utilize this system 
when conditions allow them to do so, and this underscores the need to 
protect the habitat values that still exist and provide for steelhead 
utilization of the system.
    Comment 10: One commenter questioned whether specific populations 
of landlocked O. mykiss (i.e. Pauma Creek and Sweetwater Creek) would 
be part of the listed Southern California steelhead ESU, and, 
therefore, protected under the ESA as a result of this proposal.
    Response: NMFS' December 2000 proposed range extension dealt only 
with the anadromous form of O. mykiss, for which new distributional 
information was available, and did not address the status of landlocked 
populations of resident forms. NMFS and FWS are currently engaged in 
discussions regarding this issue.
    Comment 11: One commenter questioned why San Onofre Creek, which 
has steelhead habitat but does not currently support a steelhead 
population, was not specifically included in the range extension.
    Response: The main objectives of NMFS' proposed range extension 
were three-fold: First, to notify the public that there was new 
information showing that the freshwater geographic range of anadromous 
O. mykiss extended south of Malibu Creek to at least San Mateo Creek; 
second, to notify the public that NMFS considered the O. mykiss found 
south of Malibu Creek to be part of the listed Southern California 
steelhead population; and third, to ensure that anadromous O. mykiss 
occurring south of Malibu Creek, either as isolated individuals or as 
populations would be protected under the ESA.
    As discussed in the proposed rule, the new information that is 
available suggests that anadromous O. mykiss only occur as far south as 
San Mateo Creek. Although San Onofre Creek is located in close 
proximity to San Mateo Creek and does have habitat that could be 
utilized by anadromous O. mykiss, there is no evidence indicating that 
anadromous O. mykiss currently inhabit the San Onofre Creek watershed. 
Since the proposed range extension addressed only the distribution of 
listed anadromous O. mykiss rather than habitat that may potentially be 
utilized by this life history form, San Onofre Creek was not 
specifically included in the proposed range extension.
    However, NMFS recognizes that suitable habitat may occur in 
watersheds south of San Mateo Creek (e.g. San Onofre Creek) and that 
anadromous O. mykiss historically occurred further south than San Mateo 
Creek. For these reasons, and because anadromous O. mykiss may stray to 
streams south of San Mateo Creek and occupy them when habitat 
conditions allow them to do so, NMFS will consider any anadromous O. 
mykiss found south of San Mateo Creek to be part of the listed ESU 
unless there is evidence indicating they are non-listed resident forms 
or are derived from hatchery rainbow trout populations. Because the 
southern extent of the range of anadromous O. mykiss may vary over time 
rather than remain fixed as a result of variable rainfall and other 
habitat conditions and the ability of the life form to stray from natal 
streams, NMFS has decided not to delineate a specified southern 
boundary for this ESU in this final determination.

Issue: Recovery and Management of Southern California Steelhead

    Comment 12: One commenter indicated that a recovery plan is needed 
for the Southern California steelhead ESU and that any such plan must 
include the recently discovered San Mateo Creek population and any 
other steelhead populations that occur south of Malibu Creek.
    Response: NMFS agrees that a recovery plan is needed for the 
endangered Southern California steelhead ESU. Within the next 6 months, 
NMFS is committed to establishing a recovery team to develop biological 
recovery goals that will provide the framework for identifying and 
evaluating the management and other measures that need to be 
implemented to achieve recovery of the ESU. As part of developing the 
biological recovery goals for this ESU, the recovery team will 
investigate the population structure of this ESU and then identify the 
number, size, and spatial distribution of populations and 
subpopulations that are needed over the geographic range of the ESU to 
achieve recovery. In making this assessment, the recovery team will 
take into consideration all steelhead populations within the ESU 
including the San Mateo Creek population, as well as fish that may 
occur further south. As discussed elsewhere in this notice, NMFS 
expects the recovery team to also evaluate whether or not O. mykiss 
populations above barriers, as well as the habitat that supports these 
populations, are necessary for recovery.
    Comment 13: One commenter urged formulation of a recovery plan that 
restores historically occupied streams in Orange and San Diego 
Counties.
    Response: It is premature to conclude that all historically 
occupied streams south of Malibu Creek in Orange and San Diego counties 
will need to be restored to achieve recovery of the Southern California 
steelhead ESU. The determination of how much historically occupied 
habitat, if any, must be restored to achieve recovery of this ESU is 
closely related to the development of biological recovery goals for 
this ESU. As discussed elsewhere in this document, the development of 
biological recovery goals will require an assessment of the population 
structure of the ESU and an evaluation of how many populations, 
including their size and spatial distribution, are necessary to achieve 
recovery. If the recovery planning process determines that recovery of 
this ESU will require the restoration of habitat and establishment of 
populations in currently unoccupied areas south of Malibu Creek, then a 
key component of the recovery planning effort will be to identify 
specific unoccupied streams that need to be restored and to lay out the 
measures needed to achieve that restoration.
    Comment 14: One commenter advocated the development and 
implementation of a comprehensive restoration plan for steelhead and 
its habitat in San Mateo and San Onofre Creeks, both of which are 
located on Camp Pendleton.
    Response: NMFS supports the development of a restoration plan for 
San Mateo and San Onofre Creeks. As discussed in the proposed rule, 
California voters passed a State-wide initiative that provided $800,000 
for the restoration of these two creeks to support native fish species 
such as steelhead, three-spine stickleback, and arroyo chub. The 
California Coastal Conservancy controls these funds and is in the 
process of working with a wide range of agencies and organizations 
including the Cleveland National Forest, Camp Pendleton Marine Corps 
Base, FWS, DFG, NMFS, and environmental groups to develop and implement 
a restoration plan for these watersheds which focuses on key limiting 
factors. NMFS anticipates that this plan will focus on addressing the 
control of exotic plants, the control of exotic fish species which 
compete with and/or prey upon steelhead and other native species, and 
the possible restoration of habitat. In addition to this larger 
planning and restoration effort, NMFS expects to work closely with Camp 
Pendleton through section 7 of the ESA to evaluate, and if necessary to 
modify, its programs for protecting and managing these watersheds.
    Comment 15: Camp Pendleton commented that it has been a good 
steward and manager of the San Mateo

[[Page 21591]]

Creek watershed, which functions principally as a migratory corridor, 
and that they are implementing management measures to protect this 
watershed and its associated riparian habitat.
    Response: NMFS recognizes that the lower portion of San Mateo Creek 
which passes through Camp Pendleton serves mainly as a migration 
corridor. NMFS also recognizes that Camp Pendleton has worked closely 
with the FWS to develop and implement a riparian management program to 
protect FWS-listed species that are riparian dependent. Although this 
riparian management program was developed for FWS-listed species, the 
program likely provides benefits to steelhead and its habitat as well. 
As discussed previously, NMFS expects to engage Camp Pendleton in an 
ESA section 7 consultation that will evaluate the effects of its 
activities, including implementation of its riparian management 
strategy for San Mateo Creek, on steelhead and its habitat. If new or 
modified management measures are needed to protect and conserve 
steelhead and its habitat on Camp Pendleton, they will be developed 
through this section 7 process.
    Comment 16: Camp Pendleton raised concerns about possible conflicts 
between steelhead protection and management on the Base and its ability 
to carry out the Base's training and national security mission.
    Response: NMFS is sensitive to the need for Camp Pendleton to be 
able to carry out its military and national security missions. 
Nevertheless, it is important for Camp Pendleton, as a Federal agency, 
to fulfill its obligations under the ESA and ensure that their 
operations and activities do not jeopardize the continued existence of 
Southern California steelhead. NMFS is committed to working closely 
with Camp Pendleton through section 7 of the ESA to ensure that both 
goals can be met: the military and national security missions of Camp 
Pendleton and the conservation of steelhead and its habitat. Camp 
Pendleton has considerable experience dealing with the management of 
FWS-listed species that occupy habitat on the Base, including the 
development of a riparian management strategy and program for riparian 
dependent species in the San Mateo Creek watershed which is used by 
steelhead. This past experience demonstrates that the protection and 
conservation of ESA-listed species can be achieved in a manner that is 
compatible with the military mission of the Base. NMFS is confident 
that the protection and conservation of steelhead and its habitat on 
Camp Pendleton can also be achieved in a manner that is compatible with 
the military and national security missions of the Base.
    Comment 17: Camp Pendleton committed to fulfilling all of its 
obligations under the ESA for the management of steelhead if further 
genetic testing demonstrated that the O. mykiss found in San Mateo 
Creek were steelhead and not hatchery trout plants.
    Response: NMFS is confident that Camp Pendleton will fulfill its 
ESA section 7 obligations to ensure that the Southern California 
steelhead ESU is not jeopardized, as well as its further obligations 
under the ESA to promote steelhead conservation. As discussed elsewhere 
in this document, the results of additional genetic analysis (mtDNA) 
conducted on 16 tissue specimens by Dr. Jennifer Nielson demonstrated 
that all the sampled juvenile fish had the MYS5 haplotype carried by 
native coastal O. mykiss and were not of hatchery origin.

Issue: Sufficiency of Available Data

    Comment 18: Several commenters opposed the proposed range extension 
and argued that there was insufficient data to conclude that the O. 
mykiss in San Mateo Creek are steelhead and part of the Southern 
California ESU. Some commenters argued that additional data needs to be 
collected to confirm NMFS's proposal and that in the interim any final 
determination should be delayed.
    Response: NMFS recognizes that the proposed range extension was 
based on a limited amount of information; however, section 4(b)(1)(A) 
of the ESA requires that NMFS make any determinations about listing 
solely on the basis of the best available scientific and commercial 
data. At the time of the range extension proposal, NMFS believed it had 
the best available information and that the available information 
supported a conclusion that the juvenile O. mykiss in San Mateo Creek 
were the progeny of anadromous O. mykiss that had strayed from another 
stream in the Southern California steelhead ESU. In addition, NMFS 
believed it was important to formally recognize that the range of 
anadromous O. mykiss extended further south than was thought to be the 
case so that the public and potentially affected parties were aware 
that this life history form occurred south of Malibu Creek, at least to 
San Mateo Creek, and so that fish south of Malibu Creek would be 
protected under the ESA. Since NMFS proposed the range extension for 
anadromous O. mykiss, further genetic analysis has been conducted by 
Dr. Jennifer Nielsen on tissues samples from an additional 16 juvenile 
fish collected in 1999 and 2000. The results of this analysis 
demonstrate that all tested fish carried the mtDNA haplotype (MYS5) 
which is found most commonly in steelhead from southern California. 
This finding is consistent with the results of the more limited genetic 
analysis conducted originally by DFG and upon which the proposed range 
extension was in part based. NMFS believes it has used the best 
available information to make its determination, and that any further 
delay in protecting anadromous O. mykiss found south of Malibu Creek 
under the ESA is not consistent with the agency's obligation to protect 
and conserve this endangered population.
    Comment 19: A few commenters speculated that the O. mykiss found in 
San Mateo Creek were actually hatchery trout planted by DFG or trout 
that had escaped from ponds stocked by private landowners with in-
holdings in Cleveland National Forest.
    Response: As discussed elsewhere in the response to comments, the 
available mtDNA data for all fish that have been tested to date (2 
prior to NMFS' proposal and 16 after the proposal) shows that they 
carried the mtDNA haplotype (MYS5) which is most commonly found in 
southern California steelhead populations. This haplotype has not been 
found in any hatchery or domestic trout populations; thus, NMFS 
concludes that the juvenile O. mykiss found in San Mateo Creek are 
derived from native southern California steelhead and are not the 
result of domestic trout planting.
    Comment 20: One commenter questioned whether the O. mykiss in San 
Mateo Creek are part of the Southern California ESU.
    Response: As discussed in the proposed range extension, NMFS 
believes the available information (e.g. proximity of San Mateo Creek 
to nearest extant populations of southern California steelhead, mtDNA 
data demonstrating presence of a haplotype most common in Southern 
California steelhead populations, and otolith microchemistry data) all 
points to a conclusion that adult steelhead strayed into San Mateo 
Creek from elsewhere in Southern California and successfully spawned in 
1997. As such, the O. mykiss in San Mateo Creek are progeny of 
anadromous O. mykiss (or steelhead) and should be part of the listed 
population. The additional mtDNA analysis performed by Dr. Jennifer 
Nielson is consistent with the original mtDNA analysis and reinforces 
this conclusion.
    Comment 21: One commenter questioned the validity of the Southern 
California steelhead ESU as a definable

[[Page 21592]]

unit, as well as the overall ESU concept NMFS has developed and its 
applicability to steelhead on the west coast.
    Response: NMFS disagrees with the commenter and believes that its 
ESU policy is scientifically sound and that the west coast steelhead 
ESUs, as defined, are consistent with the agency's stated policy.
    NMFS has published a policy describing how it will apply the ESA 
definition of ``species'' to anadromous salmonid species such as O. 
mykiss (see 56 FR 58612, November 20, 1991). More recently, NMFS and 
FWS published a joint policy, which is consistent with the NMFS policy, 
regarding the definition of DPSs (see 61 FR 4722, February 7, 1996). 
The earlier policy is more detailed and applies specifically to Pacific 
salmonids, therefore it has been used by NMFS for all of its west coast 
salmonid ESU determinations, including those for west coast steelhead 
(see 61 FR 41541 and 62 FR 43937). This policy states that one or more 
naturally reproducing salmonid populations will be considered distinct, 
and, therefore, a ``species'' under the ESA if they represent an ESU of 
the biological species. To be considered an ESU, a population must 
satisfy two criteria: (1) It must be reproductively isolated from other 
population units of the same species, and (2) it must represent an 
important component of the evolutionary legacy of the biological 
species. The first criterion, reproductive isolation, need not be 
absolute but must have been strong enough to permit evolutionarily 
important differences to occur in different population units. The 
second criterion is met if the population contributes substantially to 
the ecological or genetic diversity of the species as a whole. Guidance 
on how this policy should be applied is contained in a NOAA Technical 
Memorandum entitled: ``Definition of `Species' under the ESA: 
Application to Pacific Salmon'' (Waples 1991). A more detailed 
discussion of steelhead ESU boundaries and the factors NMFS considered 
in defining these ESUs, including the Southern California steelhead 
ESU, is provided in the proposed and final listing determinations for 
west coast steelhead (61 FR 41541; 62 FR 43937). In making these ESU 
determinations, NMFS relied on genetic, ecological, life history, and 
habitat related information.

Issue: Factors Contributing to Decline or Risk

    Comment 22: One commenter asserted that the Foothill Corridor is a 
``threat'' to the San Mateo Creek steelhead population and that NMFS' 
proposal did not adequately acknowledge this risk factor.
    Response: NMFS acknowledges that it did not explicitly discuss the 
Foothill Corridor project, which is currently in the planning stages, 
as a possible threat to the destruction, modification, or curtailment 
of steelhead habitat in San Mateo Creek. NMFS is well aware of this 
project and has been coordinating with the Federal Highway 
Administration (FHA) as part of the environmental review process which 
is currently ongoing for the project. NMFS recognizes that the project 
could have some potential impacts on the San Mateo Creek watershed 
depending upon which project alternative is selected and how the 
project is designed, constructed, operated, and mitigated. NMFS will 
continue to coordinate with FHA as the NEPA documentation for the 
project is prepared and provide comments and recommendations as 
appropriate. Because this project has the potential to impact 
anadromous O. mykiss in San Mateo Creek, as well as the watershed 
itself, NMFS expects that FHA will initiate an ESA section 7 
consultation with us to ensure that construction and operation of the 
project does not jeopardize anadromous O. mykiss and that any impacts 
are minimized.

Issue: Economic Effects

    Comment 23: One commenter asserted that expanding the range of the 
listed ESU would create economic burdens or impacts on local agencies, 
particularly in those areas where anadromous O. mykiss do not occur in 
watersheds between Malibu Creek and San Mateo Creek. For this reason, 
the commenter argued that NMFS should not expand the range of the ESU.
    Response: NMFS does not believe that the range extension will cause 
economic impacts in those watersheds where anadromous O. mykiss do not 
presently occur. In the proposed range extension, NMFS made it clear 
that anadromous O. mykiss were only thought to occur in two streams 
south of Malibu Creek (i.e., San Mateo Creek and Topanga Creek), and 
that all other streams and watersheds had been so highly modified that 
they no longer contained habitat suitable for supporting anadromous O. 
mykiss. Issue: Administrative Process
    Comment 24: One commenter criticized NMFS for failing to make all 
of the data underlying its range extension proposal available for 
public review.
    Response: NMFS described all of the information supporting the 
proposed range extension in the Federal Register publication announcing 
the proposal (65 FR 79328). The Federal Register document also 
identified NMFS' points of contact for futher information, and directed 
interested parties to request further information or references from 
the Southwest Region's Assistant Regional Administrator or the 
identified point of contact. All information upon which the proposed 
range extension was based was readily available on request and at least 
one party did request the information.
    Comment 25: One commenter believed NMFS should extend the public 
comment period to provide greater opportunity for public comment and 
review of the available information supporting the proposed range 
extension.
    Response: The original comment period for the proposed range 
extension was 60 days. NMFS did extend the public comment period an 
additional 30 days, both to provide the public with additional 
opportunity to review the proposed extension and develop comments, as 
well as to accommodate a public hearing which was held in San Clemente, 
CA.
    Comment 26: Many commenters requested that NMFS hold one or more 
public hearings to take public testimony on the proposed range 
extension.
    Response: In response to many such requests, NMFS did schedule a 
public hearing in San Clemente, CA. This hearing location was selected 
because it was in close proximity to San Mateo Creek which was the 
focus of the proposed range extension. The selection of this location 
resulted in a well attended hearing and provided an opportunity for 37 
individuals to provide comments. To accommodate this hearing, NMFS 
extended the public comment period an additional 30 days.

Revised Geographic Range of Listed Southern California Steelhead

    In August 1997, NMFS listed the Southern California steelhead ESU 
as an endangered species (62 FR 43937). Although this ESU was broadly 
described as occupying all coastal rivers from the Santa Maria River 
southward to the southern extent of the species range, the final 
regulation more specifically defined the listed population as all 
naturally spawned populations of steelhead (i.e. anadromous O. mykiss), 
and their progeny, which occupied rivers and streams from the Santa 
Maria River in San Luis Obispo County, CA (inclusive) to Malibu Creek 
in Los Angeles County, CA (inclusive). Although Malibu Creek was 
identified as the southernmost stream supporting a persistent, 
naturally

[[Page 21593]]

spawning population of anadromous O. mykiss based on the best available 
information, NMFS acknowledged in both the proposed (61 FR 41541) and 
final listing determinations that there was some limited anecdotal 
information that the anadromous life form may occasionally occur as far 
south as the Santa Margarita River.
    As described in NMFS' December 19, 2000, proposed range extension 
for listed Southern California steelhead (65 FR 79328), new information 
was collected and analyzed by the California Department of Fish and 
Game (DFG) in 1999 and 2000 (DFG 2000) that indicated anadromous O. 
mykiss spawned and were rearing in San Mateo Creek which is located 
approximately 100 miles (161.3 kilometers (km)) further south than 
Malibu Creek which had previously been identified as the southernmost 
coastal stream supporting O. mykiss The San Mateo Creek watershed 
arises in the Cleveland National Forest and flows in a southwesterly 
direction to the Pacific Ocean just south of San Clemente in northern 
San Diego County. Much of the lower portion of San Mateo Creek flows 
through the Camp Pendleton Marine Corps Base. Approximately 6-7 miles 
(9.7-11.3 km) are accessible to anadromous O. mykiss in the mainstem 
and tributaries. According to information in Titus et al. (in press), 
Woelfel (1991), and DFG (2000), San Mateo Creek was an important 
steelhead-producing stream prior to 1950 and evidently supported a 
local sport fishery of both juveniles and adults. More recently, 
however, Nehlsen et al. (1991) classified the San Mateo Creek steelhead 
population as extinct.
    Although this new information is limited, it is the best available 
information, and it indicates that adult steelhead entered San Mateo 
Creek and successfully spawned in 1997. The juvenile progeny of those 
spawning adults were observed by DFG during its field investigations in 
the spring and summer of 1999. More recent information from DFG in May 
2000 suggests that O. mykiss still occupy portions of San Mateo Creek 
and may have successfully spawned again since 1997. The limited genetic 
information presented by DFG (DFG, 2000) suggests that the juvenile O. 
mykiss found in 1999 have close genetic affinities to native southern 
California steelhead and are not the result of domestic trout planting. 
More recently, Dr. Jennifer Nielsen has completed mtDNA analysis of an 
additional 16 tissues samples from O. mykiss collected in San Mateo 
Creek in 1999 and 2000. The results of this analysis indicate that all 
sampled fish carried the MYS5 haplotype which is found most commonly in 
southern California steelhead. Since there is no evidence of a resident 
trout population or recent evidence of steelhead presence in San Mateo 
Creek (DFG, 2000; Titus et al., in press; Lang et al., 1998), NMFS 
believes the adult steelhead which successfully spawned in 1997 were 
strays from another watershed elsewhere in the Southern California 
steelhead ESU. Based on the information collected by DFG (DFG, 2000), 
the new genetic data analysis performed by Dr. Jennifer Nielsen, and a 
review of all comments on the proposed range extension, NMFS concludes 
that the O. mykiss population in San Mateo Creek is part of the listed 
Southern California steelhead population.
    The Malibu Creek and San Mateo Creek watersheds are separated by 
approximately 100 miles (161.3 km). Therefore, inclusion of the San 
Mateo Creek steelhead population in the Southern California ESU raises 
the question of whether or not steelhead occur or may be present in 
those watersheds located between Malibu Creek and San Mateo Creek. 
Based on information reported by Titus et al. (in press), steelhead 
were historically reported in several watersheds between Malibu Creek 
and San Mateo Creek (i.e., Los Angeles River, San Gabriel River, Santa 
Ana River, and San Juan Creek), but are now extinct as a result of 
major habitat modification or habitat blockage associated with flood 
control, urban development, and other factors. Given the existing 
habitat conditions in these highly modified river systems, NMFS does 
not believe they are currently suitable for steelhead utilization, and, 
therefore, are highly unlikely to support steelhead absent major 
restoration efforts.
    Information regarding the current presence of O. mykiss in other 
streams between Malibu Creek and San Mateo Creek is lacking with the 
exception of a recent observation of fish in Topanga Creek which is 
approximately 4 miles (6.5 km) south of Malibu Creek. Titus et al., (in 
press) indicated that O. mykiss were observed in Topanga Creek in 1979 
and in the early 1990s. In April 2000, an adult O. mykiss was reported 
in Topanga Creek. A NMFS' biologist conducted a site visit and 
confirmed the presence and identification of two O. mykiss ranging from 
14-20 inches (359-573 mm) in total length. Both fish were observed in a 
relatively deep pool (4 ft (1.2 meters (m))deep) located about 1 mile 
(1.7 km) upstream of the confluence with the ocean. Based on the 
existing habitat conditions and the size of the fish, it is unlikely 
that they spent their entire life cycle in Topanga Creek. Since there 
is no evidence of any stocking of rainbow trout in Topanga Creek, it is 
most likely that these fish originated from some other stream within 
the ESU. The nearest streams known to support steelhead are Malibu 
Creek and Arroyo Sequit, both of which are located only a few miles 
north of Topanga Creek.
    NMFS recognizes that habitat suitable for anadromous O. mykiss may 
occur in watersheds south of San Mateo Creek (e.g. San Onofre Creek and 
perhaps elsewhere) and that anadromous O. mykiss historically occurred 
further south than San Mateo Creek. For these reasons, and because 
anadromous O. mykiss may stray to streams south of San Mateo Creek just 
as they did to San Mateo Creek in 1997 during years of high rainfall, 
NMFS will consider all anadromous O. mykiss that are found to occur in 
coastal streams, including estuarine habitat, between Malibu Creek and 
San Mateo Creek or further south of San Mateo Creek to be part of the 
listed Southern California steelhead population unless there is 
evidence indicating they are non-listed resident forms or are derived 
from hatchery rainbow trout populations. Because the southern boundary 
of anadromous O. mykiss in Southern California is likely to vary over 
time given highly variable and uncertain rainfall patterns and habitat 
conditions, NMFS is not delineating a specific stream as the southern 
boundary for the listed population in this final rule. Instead, the 
final rule indicates that the listed O. mykiss population extends from 
the Santa Maria River to the southern extent of the species range. As 
discussed previously, however, NMFS does not believe that anadromous O. 
mykiss presently occur further south than San Mateo Creek. If 
information becomes available in the future that a persistent 
population of anadromous O. mykiss exists further south than San Mateo 
Creek, NMFS will promptly inform the public by means of notification in 
the Federal Register.

Status of Southern California Steelhead ESU

    The Southern California steelhead ESU was listed as an endangered 
species in August 1997 (62 FR 43937). As discussed in the final listing 
determination, this ESU is considered to be at a high risk of 
extinction based on the results of NMFS' west coast steelhead status 
review (Busby et al., 1996) and in a subsequent status update (NMFS, 
1997).

[[Page 21594]]

    Historically, steelhead occurred as far south as northern Baja 
California. Titus et al., (in press), as cited in the final listing 
determination, concluded that all steelhead populations south of Malibu 
Creek in Los Angeles County were extinct. Estimates of pre-1960s 
abundance for several rivers in this ESU (i.e. Santa Ynez, Ventura, 
Santa Clara, Malibu Creek) suggest that individual steelhead 
populations numbered in the thousands of individuals. Published 
abundance estimates for the Ventura and Santa Clara Rivers, for 
example, ranged from 4,000-6,000 and 7,000-9,000 fish, respectively. At 
the time of NMFS' final listing determination in 1997, the total run 
size for several streams in the ESU (e.g., Santa Ynez, Ventura River, 
Santa Clara River, Malibu Creek) was estimated to number fewer than 200 
individuals each (Titus et al., in press). Recent information regarding 
steelhead abundance for the Santa Ynez, Ventura, and Santa Clara Rivers 
suggests that the abundance estimates made at the time of the final 
listing determination were probably high.
    NMFS' primary concerns about this ESU at the time of listing were 
the widespread and dramatic declines in abundance relative to 
historical levels, and the major reduction in the species range. Given 
the extremely low abundance estimates and the associated risk 
associated with demographic and genetic variability in small 
populations, the long-term persistence or sustainability of this ESU in 
the future was a critical concern to NMFS. In addition, NMFS was 
concerned that the restricted spatial distribution of the remaining 
populations placed the ESU as a whole at risk because of reduced 
opportunities for re-colonization of streams suffering local population 
extinctions. NMFS concluded that the principal factors responsible for 
the decline of steelhead populations within this ESU were water 
diversions and extraction, habitat blockages and degradation, 
agricultural activities, and urbanization. Little new information 
regarding the abundance of steelhead in this ESU has been collected 
since NMFS' final listing determination in 1997, with the exception of 
limited data collected as a result of monitoring efforts in the Santa 
Ynez and Santa Clara Rivers. These data are not comprehensive enough to 
estimate population sizes, but they do indicate that these steelhead 
populations in Southern California continue to be very small.
    As discussed previously in this document, NMFS has concluded that 
the O. mykiss population in San Mateo Creek is part of the Southern 
California ESU based on the available information. Based on the 
information compiled and analyzed by DFG (DFG, 2000), the juvenile O. 
mykiss population found in San Mateo Creek in 1999 appeared to be very 
small and was likely produced by a limited number of adults that 
strayed into the watershed and spawned in 1997. Given the small number 
of fish found in San Mateo Creek, the absence of any other naturally 
reproducing populations of steelhead in those streams occurring between 
Malibu Creek and San Mateo Creek, and the extremely low abundance 
estimates for all other populations within the ESU, NMFS concludes that 
the Southern California steelhead ESU continues to be at a high risk of 
extinction.

Summary of Factors Affecting the Species

    Section 4(a)(1) of the ESA and NMFS' implementing regulations (50 
CFR part 424) set forth procedures for listing species. The Secretary 
of Commerce (Secretary) must determine, through the regulatory process, 
if a species is endangered or threatened based upon any one or a 
combination of the following factors: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or education 
purposes; (3) disease or predation; (4) inadequacy of existing 
regulatory mechanisms; or (5) other natural or human-made factors 
affecting its continued existence.
    In conjunction with its proposed listing determination for west 
coast steelhead ESUs in 1996, NMFS prepared a report summarizing the 
factors leading to the decline of west coast steelhead, including the 
Southern California steelhead ESU. This report was entitled: ``Factors 
for Decline: A Supplement to the Notice of Determination for West Coast 
Steelhead'' (NMFS, 1996). This report concluded that all of the factors 
identified in section 4(a)(1) of the ESA have played a role in the 
decline of west coast steelhead ESUs. The report specifically 
identified destruction and modification of habitat, overutilization for 
recreational purposes, and natural and human-made factors as being the 
primary causes for the decline of steelhead on the west coast.
    NMFS (1996) identified several specific factors that contributed to 
the decline of steelhead populations in the Southern California ESU as 
it was defined in the proposed and final listing determinations, 
including: habitat blockages, water diversion and extraction, 
urbanization, agriculture, and recreational harvest. McEwan and 
Jackson, 1996; and Titus et al.,(in press) also cited extensive loss of 
habitat due to water development, impassible dams, and de-watering of 
portions of rivers as the principal reasons for the decline of 
steelhead in Southern California. Habitat problems resulting from water 
development include inadequate flows, flow fluctuations, blockages 
(partial and full), and entrainment (McEwan and Jackson, 1996). These 
factors for decline are discussed in more detail in NMFS (1996), McEwan 
and Jackson (1996), and in NMFS' 1997 final listing determination (62 
FR 43937). Although NMFS has been working to address impacts to this 
endangered ESU through sections 7 and 10 of the ESA since it was listed 
in 1997, these same factors continue to adversely affect the small 
steelhead populations which persist in the watersheds ranging from the 
Santa Maria River southward to the southern extent of this life form's 
range.
    As discussed previously, NMFS has decided not to delineate a 
specific stream as the southern boundary for the listed anadromous O. 
mykiss population in this final rule because the southern boundary of 
this life form is likely to vary over time due to variable and unstable 
climatic, hydrographic, and freshwater habitat conditions, and the 
ability of this life form to naturally stray from its natal streams. 
Nevertheless, the currently available information indicates that 
anadromous O. mykiss do not occur in coastal streams south of San Mateo 
Creek. Accordingly, the following discussion focuses only on those 
factors affecting anadromous O. mykiss within the geographic area that 
extends from Malibu Creek southward to and including San Mateo Creek.

1. The Present or Threatened Destruction, Modification, or Curtailment 
of Steelhead Habitat or Range

    With the exception of the recent observations of fish in San Mateo 
Creek and Topanga Creek, anadromous O. mykiss populations south of 
Malibu Creek are thought to be extirpated due to habitat destruction or 
blockages associated with urbanization and flood control (Titus et al., 
in press), although extensive monitoring has not been conducted to 
assess their presence. For example, steelhead access and use of the Los 
Angeles River is currently precluded by the presence of flood control 
structures throughout much of its lower reach such as the concrete 
lining of the river channel and the dam at the Sepulveda Flood Control 
Basin. The lower reaches of the San Gabriel River are highly urbanized 
with the

[[Page 21595]]

channel modified for flood control, and the river is impounded further 
upstream. The Santa Ana River is similarly modified for flood control 
and flows largely consist of effluent from water treatment plants 
except in the rainy season. Because of these limited flows and 
restricted releases from Prado Dam, fish habitat is limited in the 
lower Santa Ana River. San Juan Creek, a much smaller stream in 
southern Orange County, is also channelized for flood control in its 
lower reach (approximately 2-3 miles (3.2-4.8 km)) and other potential 
barriers to upstream movement also exist.
    San Mateo Creek was once thought to be an important production area 
for steelhead in San Diego County (Nehlsen et al., 1991; DFG, 2000). As 
summarized in Titus et al., (in press), steelhead appear to have been 
most abundant in the San Mateo Creek watershed prior to 1950. After 
1950, there are many fewer observations of steelhead and none after the 
early 1980s until fish were found there in 1999. For example, Woelfel 
(1991) found no steelhead or resident trout in San Mateo Creek during 
surveys in 1987-88. Similarly, Lang et al., (1998) failed to observe or 
capture any steelhead during surveys in 1995, 1996, and 1997. The 
steelhead population in San Mateo Creek was probably reduced by natural 
episodes of sediment input from within the watershed. However, 
increased groundwater extraction in the lower creek area since the mid-
1940s may also have contributed to reducing the ability of steelhead to 
use the system as they historically did (DFG, 2000; Titus et al., in 
press; Lang et al., 1998). Riparian vegetation has been lost, stream 
channel width has increased, and surficial flow has been reduced or 
eliminated during most of the year. Accordingly, the migration corridor 
for immigrating adult and emigrating juvenile steelhead has become 
unreliable. Human-caused fires farther upstream have also resulted in 
large sediment input that has filled pools and contributed sediment to 
the lagoon at the river mouth, both of which are important rearing 
habitat for juvenile steelhead. Although habitat conditions in the 
lower river may not always be conducive to adult or juvenile passage, 
Lang et al., (1998) and DFG (2000) have identified upstream spawning 
and rearing habitat which can be used by steelhead if sufficient stream 
flows allow for adult passage.

2. Overutilization for Commercial, Recreational, Scientific, or 
Education Purposes

    NMFS' review of factors affecting west coast steelhead concluded 
that harvest was a factor contributing to the decline of the Southern 
California steelhead ESU (NMFS, 1996). According to McEwan and Jackson 
(1996), steelhead in most streams in Santa Barbara, Ventura, and Los 
Angeles Counties were until the early 1990s subject to the most liberal 
angling regulations anywhere in the State of California. Most streams 
in southern California were regulated by the general regulations of the 
Southern Sport Fishing District (which includes Santa Barbara, Ventura, 
Los Angeles, Orange, and San Diego counties) which allowed fishing 
year-round with a five-fish daily bag limit. The only streams with 
special protective regulations were the Ventura River and Malibu Creek.
    Because steelhead populations in southern California had declined 
to such critically low population levels by the early 1990s, the 
California Fish and Game Commission (Commission) adopted more 
restrictive angling regulations for some streams (Santa Ynez River, 
Ventura River, Santa Clara River, and Gaviota Creek) in 1994. These 
more stringent regulations included: (1) a reduction in the fishing 
season from year round to the Saturday before Memorial Day through 
December 31; (2) a zero bag limit; and (3) a requirement that anglers 
use artificial lures with barbless hooks. In 1996, these same 
regulations were adopted by the Commission for the anadromous reaches 
of all coastal streams in southern California. Within the coastal area 
extending south of Malibu Creek to San Mateo Creek, these same 
regulations are now in effect for the following streams: Topanga Creek, 
San Juan Creek, and San Mateo Creek. Given the extremely low numbers of 
juvenile steelhead that were found in San Mateo Creek, and the possible 
sporadic occurrence of small numbers of steelhead in other streams, 
recreational angling may continue to be a risk to steelhead in some 
streams south of Malibu Creek.

3. Disease or Predation

    Introductions of non-native species and habitat modifications have 
resulted in increased predator populations in numerous west coast river 
systems, thereby increasing the level of predation experienced by 
steelhead and other salmonids (NMFS, 1996). Exotic fish species that 
are potential predators of O. mykiss are known to occur in San Mateo 
Creek and other watersheds (San Onofre Creek, Santa Margarita River) on 
Camp Pendleton (Lang et al., 1998). According to Lang et al., (1998) 
brown bullhead dominated the fish assemblage in San Mateo Creek, with 
both adults and juveniles observed in perennial pools. Other species 
observed in the San Mateo Creek watershed include mosquito fish, adult 
and juvenile green sunfish, bluegill, and largemouth bass. One Channel 
catfish, which is a known predator of steelhead, was found dead in the 
upper San Mateo Creek in a portion of the Cleveland National Forest 
(Lang et al., 1998). Brown trout have been stocked in San Mateo Creek 
(last time in the mid 1980s), but they were not observed during the 
most recent surveys (Lang et al., 1998).
    Mosquito fish were introduced for mosquito abatement and are found 
in most Camp Pendleton waters. This species has taken over the niche of 
the native three-spine stickleback which is often an important prey 
item for salmonids; thus, it could possibly serve as a prey item for 
steelhead in San Mateo Creek. Green sunfish dominated the San Mateo 
Creek lagoon in the late 1980s and early 1990's according to Swift 
(1994) and were the only fish found in perennial pools in the upper 
watershed and Devil Canyon in the late 1980's, suggesting that they may 
have displaced residual steelhead during the drought period (Woelfel, 
1991). In other California streams (i.e., Malibu Creek and Carmel 
River) green sunfish were found to prey on juvenile trout (Swift, 1975; 
Greenwood, 1988; cited in Woelfel, 1991), and in San Clemente Reservoir 
on the Carmel River, green sunfish outcompeted trout for benthic food 
(Greenwood, 1988).
    The control of exotic fish species in the San Mateo Creek 
watershed, both on Camp Pendleton and in Cleveland National Forest, is 
considered critical to reducing impacts to steelhead in that watershed 
(DFG, 2000; Lang et al., 1998). Lang et al., (1998) recommended 
implementation of measures to contain exotic fish species in small 
lakes and ponds where recreational fishing occurs, in conjunction with 
efforts to control in-river propagation of exotics using Rotenone, 
electro-shocking, seining, or other means in perennial pools during 
summer low flows.

4. Inadequacy of Existing Regulatory Mechanisms

    Virtually all of the San Mateo Creek watershed is located on 
Federal land managed by the Cleveland National Forest and the Camp 
Pendleton Marine Corps Base. San Mateo Creek originates in the 
Cleveland National Forest and flows in a southwesterly direction 
through Camp Pendleton to the Pacific Ocean just south of San Clemente, 
CA. Within the San Mateo Creek watershed, the majority of spawning and 
rearing habitat is upstream from Camp Pendleton within the Cleveland

[[Page 21596]]

National Forest. That portion of San Mateo Creek on Camp Pendleton 
serves primarily as migratory habitat for adults and juveniles.
    That portion of the San Mateo Creek watershed located on Cleveland 
National Forest land has not been greatly altered by human activity 
over the past 50 years (Woelfel, 1991). Forest lands in the watershed 
have remained natural and undeveloped over this period although there 
are a few private property in-holdings which have had limited 
development. Woelfel (1991) reviewed water use on these private in-
holdings and concluded that stream flows in the watershed were not 
significantly altered. According to Woelfel (1991), one of the main 
activities of the Cleveland National Forest has been the protection of 
vegetation and water resources in its various watersheds through the 
prevention of forest fires. In part, this effort was intended to 
protect and manage forest vegetation so that water resources were 
retained and water quality remained high.
    The lower portion of San Mateo Creek watershed, which flows through 
Camp Pendleton, may have been impacted by base activities according to 
Woelfel (1991). Woelfel (1991) suggested that groundwater extraction to 
support base military training operations and on-base agriculture has 
led to stream channel de-watering or reduced channel flows, loss of 
riparian vegetation, and increased erosion, and that military training 
operations, including accidental fires caused by live ammunition use, 
may have contributed to erosion problems in the watershed. The 
cumulative effect of groundwater extraction, reduction or loss of 
riparian vegetation, stream channel morphology changes, and accelerated 
erosion is that steelhead may have reduced opportunities for both 
upstream and downstream migration. Camp Pendleton has developed a 
programmatic management plan for protecting and conserving riparian 
dependent species that occur on the Base which includes the San Mateo 
Creek watershed. NMFS expects to work with Camp Pendleton to evaluate 
the effectiveness of this plan in protecting steelhead.

5. Other Natural or Human-Made Factors Affecting Continued Existence of 
Steelhead

    Natural climatic conditions have exacerbated the problems 
associated with degraded and altered riverine and estuarine habitats. 
Persistent drought conditions have reduced already limited spawning, 
rearing and migration habitat. Climatic conditions appear to have 
resulted in decreased ocean productivity which, during more productive 
periods, may help offset degraded freshwater habitat conditions (NMFS, 
1996). Efforts Being Made to Protect the Southern California Steelhead 
ESU
    In conjunction with its west coast steelhead status review, NMFS 
reviewed a wide range of protective efforts for west coast steelhead 
and other salmonids, ranging in scope from regional strategies to local 
watershed initiatives. NMFS has summarized some of the major efforts in 
a document entitled ``Steelhead Conservation Efforts: A Supplement to 
the Notice of Determination for West Coast Steelhead under the 
Endangered Species Act'' (NMFS, 1996c).
    In the coastal area extending from Malibu Creek southward to San 
Mateo Creek, steelhead-specific conservation efforts are currently very 
limited. The FWS recently completed an assessment of habitat 
distribution and restoration potential on the Camp Pendleton Marine 
Corps Base (Lang et al., 1998; and DFG, 2000). Over the past 2 years, 
the DFG has made several qualitative assessments of steelhead presence 
in the San Mateo Creek watershed and has also undertaken several 
efforts to remove exotic predators from pools know to contain steelhead 
which are located in that portion of the watershed which occurs in the 
Cleveland National Forest.
    In addition, efforts are currently underway on the development of 
restoration plans for San Mateo Creek and San Onofre Creek, both of 
which are located on Camp Pendleton, to support native fish species 
including the unarmored three-spine stickleback, arroyo chub, and 
steelhead. This restoration planning effort is expected to focus on 
control of exotic plants, control of exotic fish species which compete 
with and/or prey upon steelhead and other native species, restoration 
of streambed pools, channels, and stream banks, and the reintroduction 
of native plants and possibly native fish species. Several agencies and 
private organizations, including the Cleveland National Forest, Camp 
Pendleton Marine Corps Base, FWS, DFG, Trout Unlimited, San Diego 
Trout, and the Coastal Conservancy, are participating in development of 
this program. NMFS strongly supports this effort and will continue to 
participate in its development and implementation.
    In addition to this restoration planning which is directed 
specifically at San Mateo and San Onofre Creek restoration, additional 
funding is potentially available for habitat restoration in other 
coastal watersheds in Southern California through DFG's Habitat 
Restoration Grant Program. For the past 3 years NMFS has transferred at 
least $9.0 million annually from its Pacific Coast Salmon Recovery Fund 
to the State of California for use in this Grant Program. A Memorandum 
of Understanding between NMFS and the State of California governs the 
expenditure of these funds, some of which have already been allocated 
for the habitat restoration projects within the geographic range of the 
endangered Southern California steelhead ESU.

Final Determination

    Based on the best scientific information available at the time of 
listing in 1997, NMFS concluded that the Southern California steelhead 
ESU, as it was then defined (i.e., Santa Maria River to and including 
Malibu Creek), was in danger of extinction and should be listed as an 
endangered species (621 FR 43937). This determination was based on the 
fact that steelhead had already been extirpated from much of its 
historic range in southern California, the extremely low abundance of 
extant steelhead populations, and the continued threats to the species 
from widespread habitat degradation and loss, water diversions and 
extraction, and other factors. As discussed previously in this 
document, there is no new information indicating that steelhead 
populations occurring in watersheds ranging from the Santa Maria River 
to Malibu Creek have increased in abundance since the ESU was listed in 
1997, and populations in this geographic area continue to be threatened 
by the same factors that existed at the time of listing.
    Steelhead are almost completely extirpated from coastal watersheds 
south of Malibu Creek, with the exception of their recent observations 
in Topanga Creek and San Mateo Creek, and they occur only sporadically 
or in extremely low abundance in those streams. As discussed 
previously, most of the coastal rivers and streams south of Malibu 
Creek are highly impacted or modified and no longer support steelhead. 
Where steelhead have recently been found in San Mateo Creek, there are 
potential threats to their existence from land management activities on 
Cleveland National Forest and the Camp Pendleton Marine Corps Base.
    Based on a review of the currently available information regarding 
the status of steelhead in the redefined Southern California ESU, as 
well as a consideration of the factors affecting steelhead throughout 
this geographic area, NMFS concludes that Southern

[[Page 21597]]

California steelhead ranging from the Santa Maria River to the southern 
extent of this life form's range continue to be endangered. As was the 
case in NMFS' 1997 listing determination, only the anadromous form of 
O. mykiss (i.e. steelhead and their progeny) ranging from the Santa 
Maria River to the southern extent of this life form's range is listed.
    As discussed previously in this document, the currently available 
information indicates that anadromous O. mykiss or their progeny have 
only been found in two watersheds located south of Malibu Creek 
(Topanga Creek and San Mateo Creek). NMFS believes that steelhead have 
been extirpated from virtually all other streams and rivers between 
Malibu Creek and San Mateo Creek, including the Los Angeles River, San 
Gabriel River, Santa Ana River, and San Juan Creek, because viable 
habitat is extremely limited or no longer exists as a result of habitat 
degradation. For these reasons, NMFS does not expect that steelhead 
will be found to occupy these watersheds in the future absent major 
restoration efforts. Nevertheless, if steelhead or their progeny are 
found to occur in any stream or river between Malibu Creek and San 
Mateo Creek, NMFS will consider those fish to be part of the listed 
populations, and, therefore, protected under the ESA. Because 
anadromous O. mykiss may potentially stray to streams south of San 
Mateo Creek when hydrological and other habitat conditions are 
favorable, NMFS will also consider steelhead or their progeny that 
occur south of San Mateo Creek to be part of the listed ESU unless 
there is evidence to indicate they are non-listed resident forms or 
derived from hatchery rainbow trout populations.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
Section 9 prohibitions apply automatically to endangered species such 
as Southern California steelhead throughout its freshwater, estuarine, 
and marine range.
    Sections 7(a)(2) and 7(a)(4) of the ESA require Federal agencies to 
consult with NMFS to ensure that activities they authorize, fund, or 
conduct are not likely to jeopardize the continued existence of a 
listed species or a species proposed for listing, or adversely modify 
critical habitat or proposed critical habitat. Federal agencies and 
actions that may be affected by the revision of the Southern California 
steelhead ESU and its critical habitat designation are the U.S. Forest 
Service (USFS) and their management and regulatory activities in 
Cleveland National Forest, the U.S. Marine Corps and its operation and 
management of Camp Pendleton Marine Corps Base, and the Corps of 
Engineers (COE) and its issuance of permits under the Clean Water Act.
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with 
authority to grant exceptions to the ESA's ``take'' prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) for scientific purposes or 
to enhance the propagation or survival of a listed species. NMFS has 
issued section 10(a)(1)(A) research/enhancement permits for listed 
salmonids, including Southern California steelhead, to conduct 
activities such as trapping and tagging and other research and 
monitoring activities.
    Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities conducting activities which may incidentally take 
listed species so long as the taking is incidental to, and not the 
purpose of, the carrying out of an otherwise lawful activity. The types 
of activities potentially requiring a section 10(a)(1)(B) incidental 
take permit include the operation and release of artificially 
propagated fish by state or privately operated and funded hatcheries, 
state regulated angling, academic research not receiving Federal 
authorization or funding, road building, grazing, and diverting water 
onto private lands.

NMFS Policies on Endangered and Threatened Fish and Wildlife

    On July 1, 1994, NMFS and FWS published a policy in the Federal 
Register (59 FR 34272) indicating that the agencies would, to the 
maximum extent practicable at the time a species is listed, identify 
those activities that will not be considered likely to result in 
violations of section 9, as well as activities that will be considered 
likely to result in violations. NMFS believes that, based on the best 
available information, the following actions will not result in a 
violation of section 9 with regard to Southern California steelhead:
    1. Possession of steelhead which are acquired lawfully by permit 
issued by NMFS pursuant to section 10 of the ESA, or by the terms of an 
incidental take statement pursuant to section 7 of the ESA.
    2. Federally funded or approved projects that involve activities 
such as military operations, agriculture, grazing, mining, road 
construction, discharge of fill material, stream channelization or 
diversion for which section 7 consultation has been completed, and when 
activities are conducted in accordance with any terms and conditions 
provided by NMFS in an incidental take statement accompanying a 
biological opinion.
    3. Incidental take of steelhead authorized through a section 
10(a)(1)(B) permit which occurs in the course of an otherwise lawful 
activity.
    Activities that NMFS believes could potentially harm Southern 
California steelhead, and, therefore, may violate the section 9 take 
prohibitions of the ESA include, but are not limited to:
    1. Land-use activities that adversely affect steelhead habitat 
(e.g., agriculture, water extraction, recreational activities, road 
construction in riparian areas and areas susceptible to mass wasting 
and surface erosion).
    2. Destruction/alteration of steelhead habitat, such as removal of 
woody debris or riparian shade canopy, dredging, discharge of fill 
material, draining, ditching, diverting, blocking, or altering stream 
channels or surface or ground water flow.
    3. Discharges or dumping of toxic chemicals or other pollutants 
(e.g., sewage, oil, gasoline) into waters or riparian areas supporting 
steelhead.
    4. Violation of discharge permits.
    5. Pesticide applications.
    6. Collecting or handling of steelhead. Permits to conduct these 
activities are available for purposes of scientific research or to 
enhance the propagation or survival of the species.
    7. Introduction of non-native species likely to prey on steelhead 
or displace them from their habitat.
    These lists are not exhaustive. They are intended to provide some 
examples of the types of activities that might or might not be 
considered by NMFS as constituting a prohibited take of Southern 
California steelhead. Questions regarding whether specific activities 
may constitute a violation of the section 9 take prohibitions, and 
general inquiries regarding prohibitions and permits, should be 
directed to NMFS (see ADDRESSES).

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the maximum extent 
prudent and determinable, NMFS designate critical habitat concurrently 
with a determination that a species is endangered or threatened. In 
accordance with this requirement, NMFS designated freshwater and 
estuarine critical habitat for the endangered

[[Page 21598]]

Southern California steelhead ESU in February 2000 that ranges from the 
Santa Maria River southward to and including Malibu Creek (65 FR 7764).
    NMFS believes there is insufficient information at present to 
determine if all or some of the freshwater habitat south of Malibu 
Creek, whether occupied or unoccupied, is essential for the 
conservation of this ESU because only two coastal watersheds south of 
Malibu Creek are currently known to support anadromous O. mykiss, 
including San Mateo Creek which is well separated from the remainder of 
the populations in the listed ESU. Prior to making any determination 
regarding the modification of the existing critical habitat 
designation, NMFS intends to complete an analysis of the full range of 
habitat, both occupied and unoccupied, that is essential for the 
conservation and recovery of this ESU. NMFS expects that this effort 
will be conducted in conjunction with the development of biological 
recovery goals for this ESU by a NMFS appointed recovery team.
    In conjunction with these efforts, NMFS intends to work with 
Federal land managers in the San Mateo Creek watershed (i.e. Camp 
Pendleton Marine Corps Base and Cleveland National Forest) to review 
and evaluate their existing land management and habitat protection 
programs to determine the extent to which they protect steelhead and 
their habitat in the San Mateo Creek watershed.

References

    A complete list of all cited references is available upon request 
(see ADDRESSES).

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 
1981), NMFS has concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (NEPA). See NOAA Administrative Order 216-6.

Executive Order 12866 and Regulatory Flexibility Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition this final rule is exempt from review under Executive Order 
12866.

Paperwork Reduction Act

    This final rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.

Executive Order 13132 - Federalism

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual State 
and Federal interest, NMFS has conferred with state and local 
government agencies in the course of assessing the status of this ESU, 
and considered, among other things, state and local conservation 
measures. State and local governments have expressed support for both 
the conservation of this ESU and for those activities which affect it. 
NMFS staff have had discussions with various government agency 
representatives regarding the status of this ESU and have sought 
working relationships with them in order to promote restoration and 
conservation of this and other ESUs.

List of Subjects in 50 CFR Part 224

    Administrative practices, and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: April 18, 2002.
William T. Hogarth,
 Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set forth in the preamble, 50 CFR part 224 is 
amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 224 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543; and 16 U.S.C. 1361 et seq.

    2. In Sec.  224.101, paragraph (a) is revised to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (a) Marine and anadromous fish. Shortnose sturgeon (Acipenser 
brevirostrum); Totoaba (Cynoscian macdonaldi); Snake River sockeye 
salmon (Oncorhynchus nerka); Southern California steelhead 
(Oncorhynchus mykiss), which includes all naturally spawned populations 
of steelhead (and their progeny) in streams from the Santa Maria River, 
San Luis Obispo County, CA (inclusive) to the U.S. - Mexico Border; 
Upper Columbia River steelhead (Oncorhynchus mykiss), including the 
Wells Hatchery stock and all naturally spawned populations of steelhead 
(and their progeny) in streams in the Columbia River Basin upstream 
from the Yakima River, Washington, to the U.S. - Canada Border; Upper 
Columbia River spring-run chinook salmon (Oncorhynchus tshawytscha), 
including all naturally spawned populations of chinook salmon in 
Columbia River tributaries upstream of the Rock Island Dam and 
downstream of Chief Joseph Dam in Washington (excluding the Okanogan 
River), the Columbia River from a straight line connecting the west end 
of the Clatsop jetty (south jetty, Oregon side) and the west end of the 
Peacock jetty (north jetty, Washington side) upstream to Chief Joseph 
Dam in Washington, and the Chiwawa River (spring run), Methow River 
(spring run), Twisp River (spring run), Chewuch River (spring run), 
White River (spring run), and Nason Creek (spring run) hatchery stocks 
(and their progeny); Sacramento River winter-run chinook salmon 
(Oncorhynchus tshawytscha).
* * * * *
[FR Doc. 02-10773 Filed 4-30-02; 8:45 am]
BILLING CODE 3510-22-S