[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Rules and Regulations]
[Pages 426-458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28286]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Rule To Designate 
Critical Habitat for the Santa Ana Sucker (Catostomus santaanae); Final 
Rule

  Federal Register / Vol. 70 , No. 2 / Tuesday, January 4, 2005 / Rules 
and Regulations  

[[Page 426]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT57


Endangered and Threatened Wildlife and Plants; Final Rule To 
Designate Critical Habitat for the Santa Ana Sucker (Catostomus 
santaanae)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the threatened Santa Ana sucker (Catostomus 
santaanae) pursuant to the Endangered Species Act of 1973, as amended 
(Act). This species is now restricted to three noncontiguous 
populations in three different stream systems in southern California: 
The lower and middle Santa Ana River in San Bernardino, Riverside, and 
Orange counties; the East, West, and North Forks of the San Gabriel 
River in Los Angeles County; and lower Big Tujunga Creek, a tributary 
of the Los Angeles River in Los Angeles County. We have identified 
23,719 acres (ac) (9,599 hectares (ha)) of aquatic and riparian 
habitats essential to the conservation of the Santa Ana sucker. We are 
designating two areas in Los Angeles County, one along the San Gabriel 
River (Unit 2) and the other along the Big Tujunga Creek (Unit 3) as 
critical habitat for Santa Ana sucker. These units encompass 
approximately 8,305 ac (3,361 ha) of essential habitat for the Santa 
Ana sucker within Los Angeles County. Essential habitat for the Santa 
Ana sucker in Orange, Riverside, and San Bernardino counties has been 
excluded from the final critical habitat designation, because we have 
concluded that the benefits of excluding these lands from critical 
habitat designation outweigh the benefits of their inclusion pursuant 
to section 4(b)(2) of the Act.

DATES: This rule becomes effective on February 3, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
information used in this rulemaking, are available for inspection, by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, 
Carlsbad, California 92009. You may obtain copies of the final rule and 
the economic analysis from the field office address above or by calling 
(760) 431-9440, or from our Internet site at http://carlsbad.fws.gov.
    If you would like copies of the regulations on listed wildlife or 
have questions about prohibitions and permits, please contact the 
Carlsbad Fish and Wildlife Office (see ADDRESSES above).

FOR FURTHER INFORMATION CONTACT: Mr. Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office, at the address and phone number 
listed above.

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, and consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species or 36 percent 
of the 1,244 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat. We address the habitat needs 
of all 1,244 listed species through conservation mechanisms such as 
listing, section 7 consultations, the Section 4 recovery planning 
process, the Section 9 protective prohibitions of unauthorized take, 
Section 6 funding to the States, and the Section 10 incidental take 
permit process. The Service believes that it is these measures that may 
make the difference between extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed. The accelerated 
schedules of court ordered designations have left the Service with 
almost no ability to provide for adequate public participation or to 
ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals due to the risks associated with 
noncompliance with judicially-imposed deadlines. This in turn fosters a 
second round of litigation in which those who fear adverse impacts from 
critical habitat designations challenge those designations. The cycle 
of litigation appears endless, is very expensive, and in the final 
analysis provides relatively little additional protection to listed 
species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects, the cost of requesting and responding to public 
comment, and in some cases the costs of compliance with the National 
Environmental Policy

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Act (NEPA), all are part of the cost of critical habitat designation. 
None of these costs result in any benefit to the species that is not 
already afforded by the protections of the Act enumerated earlier, and 
they directly reduce the funds available for direct and tangible 
conservation actions.

Background

    This revised final rule addresses the designation of critical 
habitat for the Santa Ana sucker (Catostomus santaanae) (sucker), which 
is endemic to the Los Angeles River, the San Gabriel River, and the 
Santa Ana River, and assumed to be introduced to the Santa Clara River 
in California. In this revised final rule, we discuss information 
obtained since the proposed and original final critical habitat rules 
published concurrently in the Federal Register on February 26, 2004 (69 
FR 8911 and 69 FR 8839).
    The sucker has evolved in the dynamic hydrological systems of 
southern California and requires clean, clear, and relatively cool 
streams of varying width and depth with appropriate substrates (e.g., a 
mix of sand, gravel, cobble, and boulder). The sucker scrapes algae and 
invertebrates from hard substrates such as gravel and cobbles and 
spawns over a gravel and cobble substrate. Please refer to the final 
rule listing the species as threatened (65 FR 19686) and our previous 
final critical habitat rule (69 FR 8839) for a more detailed discussion 
about the species' physical description, ecology, range, distribution, 
and a discussion of factors affecting the species.

Previous Federal Action

    On July 9, 2001, California Trout, Inc., the California-Nevada 
Chapter of the American Fisheries Society, the Center for Biological 
Diversity, and the Friends of the River (plaintiffs) filed a 60-day 
notice of intent to sue over our failure to designate critical habitat 
for the Santa Ana sucker. The plaintiffs filed a second amended 
complaint for declaratory judgment and injunctive relief on March 19, 
2002, with the U.S. District Court for the Northern District of 
California. On February 26, 2003, the district court ordered the 
Service to designate final critical habitat for the Santa Ana sucker by 
no later than February 21, 2004, and enjoined the Service from issuing 
any section 7 concurrence letters or biological opinions on actions 
that ``may affect'' the sucker until such time as the final critical 
habitat is designated. The Service published the proposed and final 
rules concurrently on February 26, 2004 (69 FR 8911 and 69 FR 8839). As 
a result, the injunction prohibiting the issuance of biological 
opinions and concurrence letters was lifted. See the proposed rule (69 
FR 8911) for a discussion of why the final rule and proposed rule were 
published at the same time.
    The proposed critical habitat rule, published on February 26, 2004 
(69 FR 8911), included a 60-day comment period during which the public 
could submit comments on the proposed designation. On August 19, 2004, 
we published a notice in the Federal Register (69 FR 51416) announcing 
the reopening of a 30-day comment period on the proposed critical 
habitat rule and the scheduling of a public hearing, which was held in 
Pasadena, California on September 9, 2004. On October 1, 2004, we 
published a Federal Register notice (69 FR 58876) announcing the 
availability of the draft economic analysis of the proposed critical 
habitat designation and reopening a 10-day public comment period for 
the economic analysis and proposed designation. On October 25, 2004, we 
published another notice in the Federal Register (69 FR 62238) 
reopening a 30-day comment period on the draft economic analysis and 
the proposed designation.

Summary of Comments and Recommendations

    During the initial 60-day public comment period for the proposed 
rule (69 FR 8911), we contacted all appropriate State and Federal 
agencies, county governments, elected officials, scientific 
organizations, and other interested parties, via mail and/or fax, and 
invited them to submit comments and/or information concerning the 
proposed rule. We also published newspaper notices in the The Press-
Enterprise, Riverside, CA, and in the Los Angeles Times, Los Angeles, 
CA, inviting public comment. During the first comment period, we 
received comments from three county agencies, three water districts, 
two businesses, three groups, and 14 individuals. Of the 22 letters we 
received, four letters supported the designation as proposed, six 
letters suggested expanding the designation, six letters suggested 
reducing the designation, one letter requested clarification of the 
designation, and five letters were neutral.
    During the second comment period, we received comments from one 
utility agency, three groups, and four individuals. Of the six letters 
we received, one letter supported the designation as proposed, two 
letters suggested expanding the designation, one letter suggested 
reducing the designation, and two letters were neutral. At the public 
hearing during the second comment period, we received 21 oral comments, 
all of which requested a reduction in the designation. A transcript of 
the hearing is available for inspection (see ADDRESSES section).
    During the third comment period (October 1 to 12, 2004), which 
regarded the draft economic analysis, we received comments from 1 
county agency, 3 water districts, 1 business, 4 groups, and 2 
individuals. Of the 7 letters we received, 4 letters were requests for 
an extension of the comment submission period, and 3 letters contained 
suggestions for improvements to the draft economic analysis. Of the 
latter 3 letters, 1 supported the designation as proposed and 2 
suggested reducing the designation.
    During the fourth comment period (October 25 to November 24, 2004), 
which regarded the draft economic analysis, we received comments from 7 
groups, 8 individuals, and 1 project authority (representing 1 county 
agency and 4 water districts). Of the 13 letters we received, 10 
letters supported the designation as proposed, 2 letters suggested 
reducing the designation, and 1 letter requested clarification of the 
draft economic analysis. (After the comments deadline, we received 2 
letters with comments from 1 county agency suggested reducing the 
designation, and a letter from 1 business requesting an extension of 
the comments deadline.)
    In accordance with our peer review policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we requested the expert 
opinions of seven independent specialists who are recognized 
authorities on freshwater fish of Southern California regarding 
pertinent scientific or commercial data and assumptions relating to the 
supporting biological and ecological information in the proposed 
designation. The purpose of such review is to ensure that the 
designation is based on scientifically sound data, assumptions, and 
analyses, including input of appropriate experts and specialists.
    We reviewed all comments, including the oral statements presented 
at the public hearing and the written comments received from peer 
reviewers and the public during the comment periods, for substantive, 
relevant issues and new data regarding critical habitat and the Santa 
Ana sucker. Peer reviewer comments are summarized separately in the 
following section. We have grouped public comments into six general 
issues relating to critical habitat and the draft economic analysis, 
combined and

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summarized similar comments, and provided our responses in the Public 
Comments section below.

Peer Review Comments

    We received three written responses from peer reviewers 
recommending expansion of critical habitat and one written response 
supporting critical habitat as designated. One additional peer reviewer 
supported designated critical habitat, but this letter was received 
after the deadline. Two peer reviewers supplied specific edits and 
comments on the critical habitat unit boundaries and the primary 
constituent elements. Comments from peer reviewers have been 
incorporated into this final rule as appropriate.
    (1) Comment: The upper boundary of critical habitat on the East 
Fork of the San Gabriel River should be the Bridge-of-No-Return and was 
incorrectly delineated on the map in the final rule (69 FR 8859).
    Our Response: We acknowledge that this upper boundary was 
incorrectly delineated on the map of Unit 2 in the original final rule. 
This area was also inadvertently left out of the legal description of 
the unit. As a result, we cannot include the area in the revised final 
designation even though this area is essential to the conservation of 
the sucker. We may, under the Act, revise the designation of critical 
habitat in the future to include this area.
    (2) Comment: The stretches of the San Gabriel River between the San 
Gabriel Dam and the Morris Dam reservoir, between the Highway 39 bridge 
and the Fish Canyon confluence with the river, and upstream of Cogswell 
Dam should be included in critical habitat because these areas contain 
potentially occupied and/or restorable habitat.
    Our Response: Although we appreciate the importance of potentially 
suitable habitat within these stretches of the San Gabriel River, we do 
not have sufficient information to determine if these portions of the 
river contain the primary constituent elements essential to the 
conservation of the sucker and therefore, we could not designate these 
areas as critical habitat. Under the Act, we can revise critical 
habitat in the future if new information becomes available indicating 
that these areas are essential.
    (3) Comment: Devil's Gulch, a tributary to the East Fork of the San 
Gabriel River, should not have been included in designated critical 
habitat because it does not support the Santa Ana sucker.
    Our Response: Devil's Gulch was not designated as critical habitat.
    (4) Comment: There is a barrier to fish movement upstream from the 
San Gabriel River into Big Mermaid's Canyon and therefore Big Mermaid's 
Canyon should not be designated as critical habitat.
    Our Response: Using the best available information, including 
records from the California Natural Diversity Database (CNDDB), we 
determined that Big Mermaid's Canyon previously supported suckers and 
still is essential to the conservation of the sucker in that it 
transports water and substrate essential to the maintenance of occupied 
sucker habitat downstream.
    (5) Comment: Haines Creek should be specifically described as part 
of designated critical habitat for the sucker.
    Our Response: Haines Creek is located within the boundaries of the 
Big Tujunga Creek Critical Habitat Unit (Unit 3), and has been 
specifically listed in the description of this unit in this revised 
final rule.
    (6) Comment: The Service has not adequately supported its statement 
that the upper Santa Ana Wash and tributaries provide sediment 
transport to occupied habitat.
    Our Response: We based the Santa Ana sucker critical habitat 
designation on the best available information, including expert opinion 
(Dr. Thomas Haglund, Ichthyologist, pers. comm. 2004; Dr. Jonathan 
Baskin, Ichthyologist, California State Polytechnic University, Pomona, 
pers. comm. 2004) and studies in similar river systems in California 
(NOAA 2003).
    While the Santa Ana Wash was proposed as critical habitat based on, 
among other things, its contribution of sediments and maintenance of a 
functioning hydrograph, these attributes do not, of themselves, warrant 
determining that an area is ``essential to the conservation of the 
species'', which is the statutory standard for designation of 
unoccupied areas. Therefore, Unit 1B, Santa Ana Wash, has been removed 
from the revised designation. The basis for this removal is summarized 
in the section entitled ``Summary of Changes''.
    (7) Comment: The criteria used to designate individual tributaries 
in Unit 1B, the Santa Ana Wash and in Unit 3, Big Tujunga Creek as 
critical habitat were not consistently applied.
    Our Response: We based our determination to designate tributaries 
in Unit 1B and Unit 3 on the best available data, including aerial 
photographs and historical sucker occurrences. We determined that these 
tributaries maintain a functioning hydrological system, provide and 
transport sediment downstream to occupied habitat, support riparian 
systems, and maintain the long-term viability of the sucker 
populations. We believe that we applied these criteria consistently to 
each area designated as critical habitat. Please refer to the Methods 
and Criteria Used To Delineate Critical Habitat section of this rule 
for a more detailed discussion. However, the Santa Ana Wash and 
associated tributaries within Unit 1B have been excluded from the 
revised designation. The basis for this exclusion is summarized in the 
section entitled ``Summary of Changes''.
    (8) Comment: The primary constituent element describing substrate 
types should be refined to include low-embeddedness.
    Our Response: We concur and have revised the description of the 
primary constituent element describing substrate. Please refer to the 
Primary Constituent Elements section of this rule for a detailed 
description.
    (9) Comment: Minimum water depth of from 3 to 30 centimeters (cm) 
(1.2 to 11.8 inches (in)) should be changed. Depths less than 4 cm (1.6 
in) would not provide habitat for most life stages of the sucker.
    Our Response: We used 3 cm (1.2 in) as the minimum water depth 
because of the observations of larval suckers in sandy habitats with 
depths of 3 to 10 cm (1.2 to 3.9 in) of water along the margins of 
rivers and streams (Haglund et al., 2004).
    (10) Comment: Juvenile suckers migrate into tributaries, possibly 
attracted by the cooler temperatures these tributaries experience in 
the spring. Therefore, tributaries should be included as a primary 
constituent element in critical habitat. Sunnyslope Creek, Arroyo 
Tequesquite, Evans Lake Drain, Mt. Rubidoux Creek, Agua Mansa Drain, 
and the tributaries draining Hidden Valley Regional Park wetlands 
should be included as critical habitat.
    Our Response: If a tributary within the critical habitat boundaries 
contained one or more of the primary constituent elements, then it was 
considered essential habitat. Some tributaries within the critical 
habitat boundaries do not contain any of the primary constituent 
elements and were not, therefore, considered essential. For example, a 
concrete-lined storm drain directing urban runoff into one of the 
rivers is unlikely to provide any of the primary constituent elements 
essential to the conservation of the species. Although we did not 
specifically describe tributaries as a primary constituent element, 
they are necessary in a functioning hydrological system and are 
included in the critical habitat designation where appropriate.

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    Several of the drains, creeks, and other tributaries listed by the 
commenter contain the primary constituent elements and are considered 
essential habitat but were excluded from the critical habitat 
designation under section 4(b)(2) of the Act, because they are 
protected under the Western Riverside Multiple Species Habitat 
Conservation Plan (MSHCP).
    (11) Comment: Unnatural or anthropogenic ebbs and peaks in water 
volume may be inadvertently included as primary constituent elements, 
since the description of a functioning hydrological system as a primary 
constituent element did not specify that it must contain a natural 
hydrograph.
    Our Response: We concur and have revised the primary constituent 
element describing a functional hydrological system. Please refer to 
the Primary Constituent Elements section of this rule for a detailed 
description.

Public Comments

Issue 1: Comments on the Adequacy and the Extent of Critical Habitat 
Designation

    (12) Comment: Critical habitat should be designated in the Santa 
Clara River because (1) the Santa Clara River is essential to the 
conservation of the Santa Ana sucker, (2) the population provides 
increased genetic variability to the overall sucker population, (3) the 
Santa Clara River is threatened by rapid development within its 
watershed, and (4) the Santa Clara River is not otherwise protected 
under the Act. The Santa Ana sucker in the Santa Clara River should be 
listed under the Act, since there remains much ambiguity regarding its 
status as an introduced species in the Santa Clara River.
    Our Response: Since the sucker population in the Santa Clara River 
is not federally listed (65 FR 79686), critical habitat could not be 
designated for that population. The sucker was not listed in the Santa 
Clara River due to the lack of evidence showing the sucker was native 
to the Santa Clara River. Our earliest record of the sucker in the 
Santa Clara River watershed is from 1934 (Hubbs et al. 1943). 
Conversely, we have records of the sucker in the Santa Ana River from 
1897 (Snyder 1908). Therefore, based on the best available data, we 
have presumed the sucker in the Santa Clara River was introduced. If we 
determine the Santa Clara River population to be crucial to the 
recovery of the species as we prepare the recovery plan, we may need to 
reevaluate the status of this population under the Act.
    (13) Comment: Since the area below Prado Dam in the Santa Ana River 
is not adequately protected by either the Santa Ana Sucker (SAS) 
Conservation Program or by the Western Riverside MSHCP, it should be 
included in the critical habitat designation. Since the SAS 
Conservation Program focuses conservation efforts on the upper stretch 
of the Santa Ana River, it may not adequately address the conservation 
needs of the sucker throughout the Santa Ana River. Another commenter 
stated that the benefits of including the areas covered by these plans 
in the critical habitat designation outweigh potential costs to other 
agencies and that critical habitat designation provides greater 
benefits to the sucker than either of the plans.
    Our Response: Section 4(b)(2) of the Act allows the Service to 
exclude any area from critical habitat if we determine that the 
benefits of such an exclusion outweigh the benefits of including the 
area in the critical habitat designation, unless, based on the best 
scientific and commercial data available, we determine that failure to 
designate the area as critical habitat will result in the extinction of 
the species. Exclusions can be based on Integrated Natural Resource 
Management Plans (INRMPs) on military lands, Habitat Conservation Plans 
(HCPs), or other formal conservation plans; except for INRMPs, plans 
must provide conservation benefits to the species as well as assurances 
that the plan will be implemented and the conservation effort will be 
effective. We have determined that both the Western Riverside MSHCP and 
the SAS Conservation Program satisfy these requisites, and have, 
therefore, concluded that the benefits of excluding the lands covered 
by these plans from the final critical habitat designation outweigh the 
benefits of including these areas. As such, they are excluded from 
critical habitat designation. See Lands Covered Under Existing 
Conservation Plans for a detailed discussion.
    (14) Comment: Habitat within the boundaries of the Western 
Riverside MSHCP and SAS Conservation Program meet the definition of 
critical habitat and should be included in designated critical habitat.
    Our Response: Although the habitat within the boundaries of these 
conservation plans contains one or more of the physical and biological 
characteristics essential to the conservation of the sucker, we have 
determined that these conservation plans provide special management 
and/or protection for the Santa Ana sucker, and have concluded that the 
benefits of excluding the lands covered by these plans from the final 
critical habitat designation outweigh the benefits of including these 
areas. Thus, we have excluded these areas from critical habitat 
designation under 4(b)(2) of the Act.


Issue 2: Comments on Individual Units

    (15) Comment: Commenters stated that Santa Ana suckers are 
declining as a result of heavy recreational use in the San Gabriel 
River. Conversely, some other commenters stated suckers in the San 
Gabriel River were not declining as the result of recreational 
activities or as a result of the use of summer homes.
    Our Response: Based on the best available information, we believe 
that recreational suction dredging, artificial pool creation, off-road 
vehicle use, swimming, wading, bathing, and the use of recreational 
summer homes may have varying detrimental effects on the Santa Ana 
sucker.
    Suction dredging, which occurs on a recreational basis in the San 
Gabriel River can result in the death of fish eggs, larvae, and fry 
(Harvey and Lisle 1998; Griffith and Andrews 1981). Suction dredging 
can also change the functional composition of the invertebrate 
community and increase sedimentation rates in sensitive spawning and 
feeding habitats (Somer and Hassler 1992).
    The use of the river as an off-highway vehicle (OHV) recreational 
area may result in adverse effects to the sucker, if the OHV use occurs 
in areas used by the sucker during the spawning and nursery season, or 
if vehicles leak oil, gas, and other pollutants into the river. OHV use 
can change the physical structure of habitat (Wender and Walker 1998; 
Texas Chapter of American Fisheries Society 2002; Brown 1994), crush 
eggs and larvae within the substrate (Texas Chapter of American 
Fisheries Society 2002), and reduce the taxonomic diversity of the 
macroinvertebrate and algal species (Texas Chapter of American 
Fisheries Society 2002) which is the food base for the sucker (Haglund 
and Baskin 2003; Greenfield et al. 1970). Haglund and Baskin (2002) 
recently completed a one-year study in the San Gabriel River; their 
results suggest that macroinvertebrate diversity was reduced in vehicle 
ruts and tracks. However, they concluded there was no evidence at that 
time to indicate that the intensity of OHV usage was related to trends 
in native fish populations (although they recommended further 
investigation before drawing firm conclusions).
    Swimming, wading, and bathing can degrade the physical structure 
and

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water quality of streams. Erosion associated with heavy recreational 
use along streambanks contributes to degraded habitat conditions 
including increased sedimentation in potential spawning and feeding 
grounds and loss of habitat structure (e.g., pools, riffles, shallow 
sandy margins) that provide essential elements to the survival of the 
sucker. The damming of the river to create recreational swimming pools 
may temporarily eliminate fish passage and limit the availability of 
suitable habitat for the sucker (Ally, in litt. 2001). Pollution 
associated with personal care products (e.g., suntan lotion, shampoo, 
soap, insect repellent) that can be released into the aquatic 
environment during swimming, wading, and bathing can have adverse 
physiological effects on the endocrine system of fishes (Daughton and 
Ternes 1999).
    We have been working and will continue to work with the U. S. 
Forest Service (Forest Service) to ensure their actions with respect to 
the sucker will not result in jeopardy to or take of the species. The 
Forest Service has recently implemented measures to reduce OHV activity 
in areas in which suckers are suspected to spawn as part of the Angeles 
National Forest Santa Ana Sucker Conservation Strategy.
    (16) Comment: The San Gabriel Canyon OHV Area is currently a 
Department of Defense training facility and is also covered under a 
Forest Service management plan. Therefore, this area should be excluded 
from designated critical habitat.
    Our Response: Section 4(b)(2) of the Act allows the Service to 
exclude any area from critical habitat if the Service determines the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of critical habitat, unless, based on the best scientific 
and commercial data available, the Service determines that failure to 
designate the area as critical habitat will result in the extinction of 
the species. Exclusions can be based on INRMPs for military lands, 
HCPs, and formal conservation plans. We have confirmed with the Forest 
Service that the Department of Defense does not currently use the San 
Gabriel Canyon OHV Area as a training facility (Bill Brown, U.S. Forest 
Service, pers. comm. 2004), and therefore does not qualify for 
exclusion as provided for military lands under section 4(b)(2) of the 
Act.
    The Service must determine that a management plan provides a 
conservation benefit to the species, and assurances that the management 
plan will be implemented, and the conservation effort will be 
effective. We have reviewed the San Gabriel Canyon Off-Road Vehicle 
Management Plan (U.S. Forest Service 1985) for consistency with the 
aforementioned criteria. While we appreciate the significant amount of 
effort private individuals and the Forest Service have expended in the 
development of this management plan, it does not adequately address the 
conservation needs of the sucker in the San Gabriel River and 
therefore, we cannot exclude this area from the critical habitat 
designation under 4(b)(2) of the Act. We are working with the Forest 
Service to better conserve the sucker in this area.
    (17) Comment: Only a small portion of the San Gabriel Canyon OHV 
Area contains suitable habitat for the Santa Ana sucker.
    Our Response: Our regulations allow us to designate critical 
habitat in areas where the species is not present if they are in 
proximity to areas occupied by the species and are essential to their 
conservation (50 CFR 424.12(d)). Although suckers may not occupy this 
area when the reservoir is full, this area does provide a linkage 
between the West, East, and North Forks of the San Gabriel River. 
Linkages are essential to maintaining the genetic structure and 
viability of the species in this river. Therefore, we consider all 
portions of the San Gabriel Canyon OHV Area within the geographical 
boundaries of the designation as critical habitat.
    (18) Comment: Habitat for the sucker is not present in the plunge 
pool immediately downstream of Cogswell Dam or for 1,000 feet 
downstream of Cogswell Dam in the West Fork of San Gabriel River. 
Therefore, this section of the river should be excluded from critical 
habitat.
    Our Response: Based on the best available information, we have 
determined that this area of the West Fork of the San Gabriel River 
contains substrate, vegetation, and water that are essential for the 
conservation of the species (Haglund and Baskin 1996; Haglund and 
Baskin 1995; U.S. Forest Service 2003). The Santa Ana sucker was 
detected in the vicinity of this area during the last decade (Haglund 
and Baskin 1996). Therefore, since this area had been occupied and 
since it contains the primary constituent elements of critical habitat, 
this area will remain designated as critical habitat. Under the Act, we 
can revise critical habitat in the future, if new information becomes 
available.
    (19) Comment: A 1,000-foot portion of the East Fork of the San 
Gabriel River downstream of the confluence of the East, West, and North 
forks should be excluded from critical habitat because critical habitat 
designation will limit the implementation of flood protection measures, 
the amount of water that can be stored behind the San Gabriel Dam, and 
revenue for the hydroelectric plant located downstream of the dam.
    Our Response: This area was included in the critical habitat 
designation because it provides a linkage between the West, East, and 
North Forks of the San Gabriel River. Linkages are essential to 
maintaining the genetic structure and viability of the species in this 
river. Our regulations allow us to designate critical habitat in areas 
where the species is not present if they are in proximity to areas 
occupied by the species and are essential to their conservation (50 CFR 
424.12(d)). In addition, significant numbers of suckers were detected 
in the vicinity of this area during recent surveys (M. Chimienti, Los 
Angeles County Department of Public Works, pers. comm. 2004). 
Therefore, this area of the East Fork of the San Gabriel River will 
remain in the critical habitat designation. Under the Act, we can 
revise critical habitat in the future, if new information becomes 
available.
    (20) Comment: Within the San Gabriel River, critical habitat should 
be designated between Morris Dam and Fish Canyon as well as lower San 
Jose Creek, a tributary to San Gabriel River. The commenter did not 
state why this area should be designated.
    Our Response: Although we appreciate the potential for habitat in 
this portion of the San Gabriel River and lower San Jose Creek, we do 
not have sufficient information to determine if these areas contain the 
primary constituent elements essential to the conservation of the 
sucker. Therefore, we cannot designate these areas as critical habitat. 
Under the Act, we can revise critical habitat in the future, if new 
information becomes available.
    (21) Comment: Within Big Tujunga Creek, habitat for the sucker is 
not present in the plunge pool immediately below Big Tujunga Dam or for 
one mile downstream of Big Tujunga Dam. Therefore, these sections of 
Big Tujunga Creek should be excluded from critical habitat.
    Our Response: We have determined that the upstream sections of the 
Big Tujunga Creek transport sediment from upstream tributaries to known 
occupied habitat in the lower Big Tujunga Creek. In addition, this 
portion of the creek meets the definition of critical habitat since it 
contains water, substrates, and riparian and aquatic vegetation 
essential for the conservation of the species (Andresen 2001; Haglund 
and Baskin 2001). Although some structures in this area may seasonally 
limit upstream movement of suckers, these structures

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are not necessarily year-round impediments to fish passage (Swift 
2002). Therefore, since this area maintains essential habitat 
downstream, has a strong potential to be occupied, and contains the 
primary constituent elements of critical habitat, this area is 
essential to the conservation of the species and will remain in the 
critical habitat designation. Under the Act, we can revise critical 
habitat in the future, if new information becomes available.
    (22) Comment: Habitat is not present within an unnamed tributary of 
Big Tujunga Creek that is 500 feet downstream of Foothill Boulevard.
    Our Response: We have not been provided with enough information to 
determine the location of this unnamed tributary. However, the 
floodplain of Big Tujunga Creek meets the definition of critical 
habitat since it contains the necessary hydrology, substrates, water, 
and vegetation essential to the conservation of the species. Therefore, 
any tributaries with these primary constituent elements are considered 
critical habitat when they are within the Big Tujunga Creek floodplain. 
Under the Act, we can revise critical habitat in the future, if new 
information becomes available.
    (23) Comment: Some commenters stated that Little Tujunga Creek in 
Unit 3 should be excluded from critical habitat because it is not 
occupied by the sucker, and does not provide sediment or water to 
occupied habitat in Big Tujunga Creek. Other commenters emphasized the 
importance of maintaining the original area proposed as critical 
habitat, including Little Tujunga Creek.
    Our Response: Based on comments and information we received during 
the public comment periods and additional field investigations, we have 
removed Little Tujunga Creek upstream of its confluence with Big 
Tujunga Creek from the final critical habitat designation and revised 
the maps accordingly.
    (24) Comment: In Unit 3, critical habitat should be designated in 
Trail Canyon and La Paloma Canyon and all other tributaries to the Big 
Tujunga Creek.
    Our Response: Although we appreciate the potential for habitat and 
water supply in Trail and La Paloma Canyons, as well as in many of the 
other tributaries to Big Tujunga Creek, we do not have sufficient 
information to determine if these tributaries contain the primary 
constituent elements essential to the conservation of the sucker. 
Therefore, we cannot designate these areas as critical habitat. Under 
the Act, we can revise critical habitat in the future, if new 
information becomes available.
    (25) Comment: Critical habitat should be designated in the Los 
Angeles River between State Route 134 and Interstate 5.
    Our Response: Although we appreciate the potential for habitat in 
this portion of the Los Angeles River, we do not have sufficient 
information to determine if it contains the primary constituent 
elements essential to the conservation of the sucker. Therefore, we 
cannot designate this area as critical habitat. Under the Act, we can 
revise critical habitat in the future, if new information becomes 
available.
    (26) Comment: Unit 1B (Santa Ana Wash) is not occupied and 
therefore is not essential to the conservation of the species. Also, 
Mill Creek is generally dry and could not support the sucker. 
Furthermore, the Service has not demonstrated that Unit 1B supports a 
natural hydrograph, is essential to the conservation of the species, or 
is necessary for the long-term viability of the species.
    Our Response: As stated in the previous final critical habitat rule 
or listing rule, Mill Creek, City Creek, and the upper Santa Ana Wash 
in Unit 1B are a source of sediment for the occupied portion of the 
Santa Ana River (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan 
Baskin, pers. comm. 2004; EIP Associates 2004). This sediment, which is 
composed of cobble, gravel, and sand, provides spawning and feeding 
substrates for the sucker and is essential to the conservation of the 
species.
    In addition to sediment transport, Unit 1B supports a functioning 
hydrological system (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan 
Baskin, pers. comm. 2004) that experiences peaks and ebbs in water 
volume within the Santa Ana River watershed (Dr. Thomas Haglund, pers. 
comm. 2004; Dr. Jonathan Baskin, pers. comm. 2004). Although much of 
the surface water within Unit 1B has been diverted for municipal uses 
or other purposes, heavy rainstorms during the rainy season do provide 
flows that are biologically important to the sucker (Swift 2001; EIP 
Associates 2004).
    While the Santa Ana Wash was proposed as critical habitat based on, 
among other things, its contribution of sediments and maintenance of a 
functioning hydrograph, these attributes do not, of themselves, warrant 
determining that an area is ``essential to the conservation of the 
species'', which is the statutory standard for designation of 
unoccupied areas. Therefore, Unit 1B, Santa Ana Wash, has been removed 
from the revised designation. The basis for this removal is summarized 
in the section entitled ``Summary of Changes''.
    (27) Comment: Unit 1B does not support riparian systems that are 
essential to the conservation of the sucker.
    Our Response: As stated in previous rules, the existing riparian 
habitat in City Creek, Mill Creek, and the upper Santa Ana Wash in Unit 
1B contributes to maintaining water quality and the community structure 
essential for the conservation of the sucker. City Creek, Mill Creek, 
and the upper Santa Ana Wash contribute organic nutrients (e.g., woody 
debris, invertebrates) to the system (Klapproth and Johnson 2000a; 
Sweeney 1993) and filter pollutants and sediments entering the 
watershed (Mills and Stevenson 1999; Klapproth and Johnson 2000b.
    Unit 1B, Santa Ana Wash, has been removed from the revised 
designation. The basis for this removal is summarized in the section 
entitled ``Summary of Changes''.
    (28) Comment: In Unit 1B, the Service inconsistently and 
arbitrarily included a portion of the Santa Ana River covered by the 
Santa Ana Sucker (SAS) Conservation Program. This portion of the river 
extends upstream from the La Cadena Avenue bridge to the Mission 
Channel confluence with the Santa Ana River.
    Our Response: The portion of Unit 1B between the La Cadena Avenue 
bridge and the Mission Channel confluence was inadvertently included in 
the previous critical habitat designation. The text and maps have been 
modified in this revised final rule to reflect the exclusion of all 
areas covered by the SAS Conservation Program as allowed under section 
4(b)(2) of the Act (see Unit 1 map).
    (29) Comment: There are no new anticipated impacts to the Santa Ana 
Wash (Unit 1B) and therefore, it should be excluded from critical 
habitat designation.
    Our Response: The Santa Ana Wash is threatened by rapid development 
of the Santa Ana River watershed in San Bernardino County, and by the 
demand for increased building materials (e.g., sand and gravel) and 
water supplies. However, Unit 1B, Santa Ana Wash, has been removed from 
the revised designation. The basis for this removal is summarized in 
the section entitled ``Summary of Changes''.
    (30) Comment: Chino Creek in Unit 1A does not contain habitat for 
the Santa Ana sucker and should be removed from the critical habitat 
designation.

[[Page 432]]

    Our Response: Chino Creek supported the Santa Ana sucker 
historically (Koehn, in litt. 1966), and still contains one or more of 
the primary constituent elements (Swift, pers. comm. 2004). In 
addition, the riparian habitat adjacent to the stream and the stream's 
contribution to the overall hydrological regime help the sucker 
population in the Santa Ana River.
    While Chino Creek in the Northern Prado Basin was proposed as 
critical habitat based on, among other things, its contribution of 
sediments and maintenance of a functioning hydrograph, these attributes 
do not, of themselves, warrant determining that an area is ``essential 
to the conservation of the species'', which is the statutory standard 
for designation of unoccupied areas. Therefore, Unit 1A, Northern Prado 
Basin, has been removed from the revised designation. The basis for 
this removal is summarized in the section entitled ``Summary of 
Changes''.
    (31) Comment: Critical habitat should be designated in Cajon Creek, 
a tributary to the Santa Ana River.
    Our Response: Although we appreciate the potential for sucker 
habitat in Cajon Creek, we do not have sufficient information to 
determine if this tributary contains the primary constituent elements 
essential to conservation of the sucker. Therefore, we cannot designate 
this tributary as critical habitat. Under the Act, we can revise 
critical habitat in the future, if new information becomes available.
    (32) Comment: Please clarify if energy facilities are specifically 
excluded from the designated critical habitat and whether this includes 
powerhouse number 3 on Mill Creek in Unit 1B.
    Our Response: We have clarified the language in the final rule to 
specifically exclude energy production facilities from the critical 
habitat designation. However, stream channels adjacent to energy 
production facilities within the geographical boundaries of the 
critical habitat designation that contain one or more of the primary 
constituent elements are considered critical habitat. Unit 1B, which 
includes Mill Creek, has been removed from the revised critical habitat 
designation.

Issue 3: Comments on Science

    (33) Comment: Information used in designating critical habitat was 
inaccurate, insufficient, and not the best available data.
    Our Response: We believe we used the best available commercial and 
scientific data to designate critical habitat for the sucker, including 
peer-reviewed primary source journal articles, expert opinions, species 
survey reports, project reports, and other scientific studies. All new 
information provided during the public comment periods was considered 
in this final designation as appropriate.

Issue 4: Procedural and Legal Comments

    (34) Comment: The Service cannot exclude lands covered by 
conservation plans from critical habitat if those plans use public 
funds and lands to mitigate the taking of threatened and endangered 
species by private applicants for private purposes.
    Our Response: Section 4(b)(2) of the Act allows the Service to 
exclude any area from critical habitat if the Service determines the 
benefits of such exclusion outweigh the benefits of designating such 
area as critical habitat, unless, based on the best scientific and 
commercial data available, the Service determines that failure to 
designate the area as critical habitat will result in the extinction of 
the species. Exclusions under section 4(b)(2) can be based on INRMPs, 
HCPs, and formal conservation plans, or other relevant considerations. 
In the case of HCPs and other formal conservation plans, the Service 
must determine that the plan provides conservation benefit to the 
species, and assurances that the management plan will be implemented 
and the conservation effort will be effective. The Service is not 
prohibited from excluding lands covered by plans using public funds or 
public lands if the plan meets the aforementioned criteria.
    (35) Comment: The Service unlawfully pre-determined that the 
exclusion of essential sucker habitat from designated critical habitat 
outweighs any benefit.
    Our Response: We issued the final rule (69 FR 8839) designating 
critical habitat for the sucker without the opportunity for public 
comment, because we found it would be impracticable and contrary to the 
public interest to delay the effective date of the final rule (see 
comment 37 for further details). In the proposed rule (69 FR 8911) that 
was published concurrently with the final rule, we specifically 
solicited comments from the public on the exclusion of essential 
habitat from the critical habitat designation. If additional 
information had been submitted during the comment period indicating 
that the conservation plans on which these exclusions were based were 
not conserving the sucker, we could have re-proposed critical habitat 
for the excluded areas. However, we did not receive any comments to 
that effect. Furthermore, the Western Riverside MSHCP has been 
finalized and an Incidental Take Permit has been issued for this plan. 
Significant progress has been made in the ongoing formal consultation 
with the U.S. Army Corps of Engineers (the Corps) on the SAS 
Conservation Program and we expect to issue a biological opinion on 
this program shortly. Therefore, we have excluded these areas of 
essential habitat from the critical habitat designation as allowed 
under section 4(b)(2).
    (36) Comments: The Service did not comply with the National 
Environmental Policy Act (NEPA). Under NEPA, an Environmental Impact 
Statement or an Environmental Assessment must be prepared.
    Our Response: Environmental impact statements and environmental 
assessments, as defined under NEPA, are not required for regulations 
enacted under section 4 of the Act (see 48 FR 49244; October 25, 1983). 
We published a notice outlining our reasons for this determination in 
the Federal Register on October 25, 1983 (48 FR 49244).
    (37) Comment: The rights of concerned citizens were violated 
because they were not allowed to participate in the rule-making 
process.
    Our Response: The Service published the previous final rule 
designating critical habitat for the sucker (69 FR 8839) without 
providing an opportunity for the public to comment under the good cause 
exemption of the Administrative Procedure Act (APA). Section 553(b)(B) 
of the APA recognizes an exemption to the public comment requirements. 
The Service issued the final rule designating critical habitat for the 
sucker without the opportunity for public comment, because we found it 
would be impracticable and contrary to the public interest to delay the 
effective date of the final rule (see comment 37 for further details). 
The Service also provided the opportunity for the public to comment on 
the proposed rule identical to and issued concurrently with the final 
rule. We have reviewed and responded to the substantive comments that 
we received by the deadline of the each of the 4 public comment 
periods. Based on these comments, we have revised the final rule to 
reflect corrections and modifications to the final rule designating 
critical habitat for the sucker as appropriate.
    (38) Comment: The Service failed to hold formal public hearings as 
required under section 556 and 557 of title 5 of the APA. In addition, 
all settlements resulting from ongoing negotiations with the Service 
should be made part of the administrative record for this critical 
habitat designation.
    Our Response: Section 553(d) of the APA allows publication of a 
final rule

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to take effect immediately upon publication if the agency finds good 
cause for doing so and provides the reasoning in the final rule. In the 
final rule published on February 26, 2004, designating critical habitat 
for the Santa Ana sucker, we stated that we found good cause to make 
the final rule effective immediately upon publication for reasons 
outlined in the response to comment 37. Delaying publication of the 
rule to hold public hearings would have been impracticable and contrary 
to the public interest at that time (69 FR 8840). We subsequently held 
a public hearing on the proposed rule--which was identical to and 
published concurrently with the final rule--on September 9, 2004. 
Therefore, we have complied with the requirements of the APA and the 
Act.
    (39) Comment: The Service can publish a rule that is effective 
immediately only if the Service has determined the sucker requires 
emergency protection. If the Service publishes a rule that is effective 
immediately, the Service must incorporate reasons for the emergency 
determination into the final rule. Since there was no justification for 
emergency designation included in the publication of the final rule, 
the final rule is invalid and unenforceable.
    Our Response: Section 553(d) of the APA allows publication of a 
final rule to take effect immediately upon publication if the agency 
finds good cause for doing so and provides the reasoning in the final 
rule. In the final rule published on February 26, 2004, designating 
critical habitat for the Santa Ana sucker, we stated that we found good 
cause to make the final rule effective immediately upon publication for 
the following reasons: (1) To comply with the district court's order; 
(2) to conduct section 7 consultations and prepare written concurrences 
regarding projects funded, permitted, or carried out by Federal 
agencies that may affect the Santa Ana sucker or its essential habitat; 
(3) to ensure those activities will not jeopardize the continued 
existence of the species; and (4) to ensure Federal agencies can comply 
with the requirements of the Act, including section 9. Delaying the 
effective date of the rule would have been impracticable and contrary 
to the public interest (69 FR 8840). We complied with the requirements 
of the APA and the Act and therefore the rule is valid and effective. 
The Service did not issue the final rule based on an emergency finding 
requiring immediate designation of critical habitat for the sucker.
    (40) Comment: Data were not made available for public review.
    Our Response: As stated in the proposed and final critical habitat 
rules published on February 26, 2004, the supporting information for 
the rules is available to the public for inspection, by appointment, 
during normal business hours at the U.S. Fish and Wildlife Service 
office in Carlsbad, California.
    (41) Comment: The designation of critical habitat in the Santa Ana 
and San Gabriel Rivers, and the Big Tujunga Creek will limit the 
ability of flood control agencies and water conservation districts from 
maintaining sufficient flood protection and water supplies.
    Our Response: The designation of critical habitat does not prevent 
public agencies from implementing flood control protection and water 
conservation actions. If these actions require a Federal permit, 
funding, or permission and if the Federal agency determines that these 
actions may adversely modify designated critical habitat, the Federal 
agency must request consultation with the Service prior to initiating 
that action.
    (42) Comment: The designation of critical habitat should not 
preclude cooperative conservation efforts implemented in concert with 
actions that may adversely affect the sucker.
    Our Response: We encourage cooperative conservation efforts by 
private individuals, organizations, and local, county, State, and 
Federal government agencies. We will continue to work with Federal, 
State, and local entities and private individuals to minimize project-
related impacts to the sucker and its habitat.

Issue 5: Misinterpretation of the Original Final Rule

    (43) Comment: The Service unfairly exempted Federal agencies and 
private individuals from the requirements of critical habitat.
    Our Response: In the previous final rule, the Service did not 
exempt Federal agencies or private individuals from regulations 
regarding critical habitat. Instead, the Service described potential 
Federal actions that may be affected by the critical habitat 
designation or that may affect critical habitat. If a Federal agency 
determines their action may affect critical habitat, then they will be 
required to consult with the Service under section 7 of the Act. 
Private individuals do not have to consult with the Service if their 
actions may affect critical habitat unless their actions are permitted 
or funded by a Federal agency. However, private individuals should 
consult with the Service if their actions have the potential to result 
in take of individual suckers and therefore violate section 9 of the 
Act.
    (44) Comment: The critical habitat designation will result in the 
closure of the National Forest lands to the public resulting in 
significant effects to many recreational users.
    Our Response: The designation of critical habitat does not require 
the Forest Service to close critical habitat areas within the National 
Forest to the public. The Forest Service will be required to consult 
with the Service under section 7 of the Act, if they determine that any 
of their actions may adversely modify critical habitat. However, we 
intend to continue working with the Forest Service to minimize any 
impacts to the sucker and its habitat that may result from recreation 
activities.

Issue 6: Comments on Economic Analysis or Lack of Economic Analysis

    (45) Comment: The Service violated the Act because it did not 
complete an economic analysis prior to issuing a final critical habitat 
rule, and therefore the rule should be vacated.
    Our Response: As previously stated (see response to comments 35 and 
37), we dispensed with the notice and comment period for the final 
designation of critical habitat under the good cause exemption of the 
APA (69 FR 8839), while concurrently publishing the proposed rule to 
allow for public comment. In the proposed rule (69 FR 8911), we 
announced our intention to prepare an economic analysis and seek public 
review and comment on the economic analysis.
    (46) Comment: Several comments objected to the short timeframe 
allowed for comments and the lack of immediate availability of the 
draft economic analysis online.
    Our Response: We had two comment periods for the draft Economic 
Analysis, the first for 10 days and the second for 30 days. A Notice of 
Availability (NOA) was published in the Federal Register on October 1, 
2004 (69 FR 58876) opening a 10-day public comment period on the 
economic analysis. On October 25, 2004, we published another notice in 
the Federal Register (69 FR 62238) reopening a 30-day comment period on 
the draft economic analysis and the proposed designation. All comments 
on the economic analysis have been incorporated into the final economic 
analysis and the revised final rule as appropriate.
    (47) Comment: Two groups suggested that prior written comments they 
had submitted concerning the economic impacts of the Santa Ana Sucker 
critical

[[Page 434]]

habitat designation were not addressed by the draft economic analysis.
    Our Response: Northwest Economic Associates (NEA) and the Service 
reviewed all of the previously submitted comments in the course of 
preparing the draft economic analysis. The comments provided useful 
insight into potential economic effects of the listing and designation 
of critical habitat for the sucker. However, in some cases, further 
research revealed that the economic effects could not be substantiated 
through available information or that the effects were considered too 
speculative to be considered reasonably foreseeable. For example, one 
commenter noted that private lands within critical habitat that are 
dedicated for recreational purposes but not excluded will require ``re-
evaluation of [previously approved] private projects.'' This re-
evaluation would result in assessment of an ``appropriate fee,'' with 
an effect of ``greater than 100 million dollars.'' The authors found no 
evidence that such a fee would result from designation of critical 
habitat. In other cases, the draft economic analysis included costs 
that were not addressed by prior written comments.
    (48) Comment: One comment suggested that the amenity values 
estimates should appear in the main report, not an appendix.
    Our Response: See response to Comment 49.
    (49) Comment: One comment suggested that the amenity values as 
analyzed are highly conservative and that a broader range should be 
presented, using a broader range of assumptions. This comment also 
stated that other benefits, such as indirect or non-use benefits, 
should be analyzed as well. It also criticized the use of different 
accounting standards in the evaluation of benefits (amenity values) and 
costs.
    Our Response: We appreciate the comment in support of the approach 
used in the DEA to estimate some of the economic benefits that may be 
associated with designating riparian corridors as critical habitat for 
the SAS. However, after further consideration and consultation with the 
Office of Management and Budget (OMB), we have decided that this 
approach does not fully meet the minimum standards required by OMB in 
estimating the potential economic benefits of a proposed Federal 
action. OMB Circular A-4 stresses that the Benefit-Transfer method, 
which was the approach used in the DEA, should only be used as a last-
resort option to measuring benefits and should not be used without 
explicit justification. The underlying rationale for this reasoning is 
that while the Benefit-Transfer method can provide a quick, low-cost 
approach for obtaining desired monetary values (as opposed to 
collecting original data), the methods are often associated with 
uncertainties and potential biases of unknown magnitude.
    Circular A-4 is very specific in the criteria that must be 
satisfied in order to use the Benefit-Transfer method. Criteria include 
using studies that are based on adequate data, sound and defensible 
empirical methods and techniques, and ensuring that the studies relied 
upon are measuring similar values that do not have unique attributes. 
In the DEA, we relied on two studies (Colby and Wishart 2002, Streiner 
and Loomis 1995) the first measuring the property value premium 
riparian areas generate for nearby landowners in the arid West, the 
second measuring the benefits incurred by nearby landowners associated 
with restoring degraded urban streams. Neither study, it was determined 
after consultation with OMB, fully met the necessary criteria to base 
an assessment of the potential economic benefits of SAS critical 
habitat designation. In the Colby study, concern was expressed over the 
statistical robustness of the overall model. Concerns over the Loomis 
study focused on the fact that the measurement of the value associated 
with restoring degraded riparian corridors was not equivalent to the 
designation of critical habitat, which essentially recognizes healthy 
riparian corridors that can support the species. While we attempted to 
address these and other concerns in the DEA, we were not able to fully 
satisfy all of the necessary criteria that would allow us to transfer 
the findings of these two studies to the SAS.
    In future analyses we will continue to investigate the 
appropriateness of using existing data to estimate the economic 
benefits of critical habitat designation. However, even if we are able 
to credibly measure such effects, we continue to believe that in 
carrying out our duty under section 4(b)(2) of the Act that the 
benefits associated with designating any particular area as critical 
habitat are best expressed and considered in biological terms.
    (50) Comment: One comment questioned the failure of the draft 
economic analysis to address economic impacts to the mining industry. 
An independent report on potential economic impacts was attached to 
this comment in support.
    Our Response: The draft economic analysis considered impacts to the 
sand and gravel mining industry. Sand and gravel are important 
resources in southern California that support development activities 
such as residential and commercial construction and road building. Due 
to the costs of transporting the material, sand and gravel mines tend 
to be located in areas relatively near development. Some of these mines 
have historically been, and continue to be, located within flood plains 
and can directly impact sucker habitat. The upper Santa Ana River area 
has had mining activities for many years.
    The boundaries of the proposed critical habitat exclude existing 
mining activities and the Service has indicated that no burdens will be 
imposed on existing facilities that operate according to historic 
practices, as discussed in the draft economic analysis. The independent 
report suggests the possibility of future expansion of mining 
activities within Unit 1B. The Corps has received no request for 
permits to expand operations within the proposed critical habitat. 
There has only been one emergency consultation associated with sand and 
gravel mining since the sucker was listed, and it was conducted to 
protect a bridge and did not involve an ongoing commercial operation. 
While it is true that new mining activity is being considered within 
Unit 1B, there is no information with which to demonstrate economic 
effects. An HCP that will cover mining activities is in the initial 
stages of development but lacks sufficient detail to base reasonable 
predictions on how the critical habitat designation for the sucker will 
affect new mining activities within Unit 1B. However, the HCP has not 
yet specifically considered the Santa Ana sucker, and therefore no 
documentation is available to suggest additional conservation measures 
that may need to be adopted. Furthermore, Unit 1B is not included in 
the revised critical habitat designation.
    (51) Comment: One comment questioned the failure of the draft 
economic analysis to address economic impacts of the water conservation 
project at Seven Oaks Dam in Unit 1B.
    Our Response: The draft economic analysis considered potential 
economic impacts to the proposed water conservation project. According 
to the Corps, Seven Oaks Dam has not been permitted as a water 
conservation facility. Its primary purpose is for flood control. 
Several agencies have pursued the idea of using Seven Oaks as a source 
of municipal water supply. For example, a letter dated December 11, 
2000 from the Service to the Corps attached to the comment letter 
refers to actions by the Corps and the San

[[Page 435]]

Bernardino Valley Municipal Water District indicating that water 
conservation activities are reasonably certain to occur and that the 
application accompanying the petition to revise the appropriation of 
the Santa Ana River requests the right to store up to 50,000 acre-feet 
per annum in the reservoir formed by Seven Oaks Dam. However, recent 
discussions with the Corps suggest that no decisions to change the 
dam's purpose have been finalized. It is uncertain whether Seven Oaks 
Dam will be permitted for water conservation with or without critical 
habitat designation for the sucker. Furthermore, the Service has 
indicated that it will not require conservation measures unless the 
releases from the dam are altered from past practices. There is no 
indication how and if the flow regime will be altered even if the dam 
is used to provide additional water supply to municipalities. 
Furthermore, we find no evidence that the Corps is proposing a change 
of use of the facility to include water conservation.
    (52) Comment: One comment stated that the although they believe the 
draft economic analysis underestimates the full economic impact of 
critical habitat designation, the estimates contained in the analysis 
still support the exclusion of Unit 1B as benefits do not outweigh 
costs.
    Our Response: The draft economic analysis did consider the effects 
of mining and water conservation as described above. Also as discussed 
above, we did consider the economic and other impacts of the 
designation when we issued our interim rule, however we also conducted 
an economic analysis to more fully consider these impacts.
    (53) Comment: Two groups asserted that the draft economic analysis 
mischaracterizes the San Gabriel Canyon OHV Area status, and expressed 
a desire to have local efforts toward sucker recovery be included in 
the draft economic analysis.
    Our Response: The draft economic analysis included efforts to 
properly characterize the status of OHV use in the San Gabriel Canyon. 
In response to the Santa Ana sucker's listing and critical habitat 
designation, the Forest Service has installed information signs in the 
OHV area. In the OHV staging area, there are some educational brochures 
available with general information on acceptable and unacceptable 
behaviors. There is also a kiosk with informational signs relating to 
the sucker. In the past three years, the Forest Service has coordinated 
with the Service and California Department of Fish and Game (CDFG) to 
develop ``avoidance criteria'' for OHV users at San Gabriel OHV Park, 
to include the elimination of two stream crossings and the placement of 
rock and boulders along the riverbank to prevent people from driving 
into the river. Patrols have increased in sensitive areas, especially 
during weekends. The Forest Service also has worked with the local OHV 
club to develop sucker education programs. In addition to the Forest 
Service efforts, the OHV club is self-policing its members. The OHV 
club has placed at least one vehicle and drivers per weekend at the San 
Gabriel OHV Area for the past several years. The draft economic 
analysis included costs associated with efforts by local OHV groups to 
provide protection measures and minimize impacts to sucker habitat (pp. 
75-78). These costs are shown in Tables 30 and 31 of the draft economic 
analysis.
    (54) Comment: Two groups claim that mitigation of other projects, 
such as dams, is incorrectly described within the draft economic 
analysis and that the costs of mitigation are understated.
    Our Response: There are five flood control dams and multiple 
hydroelectric facilities operating in and around the essential habitat 
units for the sucker. The economic effects on these operations were 
quantified in Section 6.6 of the draft economic analysis.
    (55) Comment: Two groups suggest that the draft economic analysis 
should address recovery.
    Our Response: Economic analyses only address cost associated with 
designation of critical habitat, as required by the Act.
    (56) Comment: One group suggests that the draft economic analysis 
findings support the inclusion of all areas currently designated as 
critical habitat for the sucker.
    Our Response: The Secretary considers the draft economic analysis 
along with other information in determining whether the benefits of 
excluding particular areas from a revised final critical habitat 
designation outweigh the biological benefits of including those areas 
in a revised final designation.
    (57) Comment: One comment from the Santa Ana Watershed Project 
Authority provided a number of details on the Santa Ana Regional 
Interceptor (SARI) line to correct information presented in the draft 
economic analysis. The comment noted the difficulty in estimating costs 
for a project that is still conceptual and suggests that the ultimate 
design choice will likely result in costs ``significantly less'' than 
those in the draft economic analysis.
    Our Response: We appreciate the comment from the watershed 
authority. The draft economic analysis was based at the time on the 
information obtained through the Corps, Orange County Sanitation 
District, and public information about the line available through the 
internet. The analysis recognizes that a variety of alternatives are 
under consideration at this time and that associated construction cost 
estimates are preliminary. However, because the commenter did not 
provide any specific new estimates, we will rely on those presented in 
the draft economic analysis, with the understanding that they may 
overstate actual final costs should one of the design alternatives be 
implemented.
    (58) Comment: The County of Los Angeles Department of Public Works 
submitted a very detailed comment letter addressing a number of 
specific areas in the draft economic analysis. This letter was received 
after the deadline for comments. Nevertheless, the comments are 
addressed below.
    Our Response: The County of Los Angeles Department of Public Works 
(Public Works) provides several comments that argue for exclusion of 
Unit 3, Big Tujunga Creek. In addition, Public Works provides several 
comments that can be addressed through minor changes and additions to 
the text in the draft economic analysis and do not result in changes to 
estimated economic effects. Public Works expressed concern that future 
utilization of sediment placement sites may be affected by sucker 
conservation activities. However, there is no evidence from past 
consultations to suggest that current sediment placement sites will be 
affected or will be the subject of future consultations. In the comment 
letter, Public Works speculates that future sucker conservation 
activities will affect the availability of water conservation storage 
in San Gabriel Reservoir. However, as stated in the draft economic 
analysis, no conservation measure or ponding restrictions are 
anticipated as protection measures for the sucker. Consequently, it was 
considered to be reasonable to exclude water conservation losses in San 
Gabriel Reservoir in the draft economic analysis.
    Several of the comments from Public Works addressed sediment 
removal activities. Public Works stated that the draft economic 
analysis failed to mention the sediment management plan for Cogswell 
Reservoir and associated sucker conservation activities. While the 
draft economic analysis does not mention the plan or consider sucker-
related costs, the authors believe that

[[Page 436]]

the conservation measures discussed in the comment letter would be 
implemented with or without the sucker listing and critical habitat 
designation. It appears that these measures were in place prior to the 
sucker listing and that they were instituted for the benefit of a 
number of fish species and have not been altered to specifically 
address the Santa Ana sucker. Public Works states that periodic 
cleanouts of Big Tujunga Reservoir will also be necessary in the future 
and that annual monitoring of the sucker will likely be required as a 
result. This is new information that was not considered in the draft 
economic analysis, as it was received after the close of the comment 
period. Public Works estimates that annual sucker-related costs for the 
routine cleanouts, which will occur once every ten years, will be 
$82,350.
    Public Works also contends that ongoing costs associated with the 
Big Tujunga Wash Mitigation Bank should be included in the economic 
analysis. Mitigation Bank costs were not included in the draft economic 
analysis because the site was purchased as mitigation for flood control 
activities prior to the sucker listing. Furthermore, it appears that 
the activities related to the Mitigation Bank cited in the comment 
letter would have occurred with or without the sucker listing and 
critical habitat designation. While it is possible that a small portion 
of the costs of these activities could be attributed to sucker-related 
conservation activities, the consultation history reveals that these 
activities presented only minor concerns for the sucker.
    Finally, Public Works argues for inclusion of potential impacts to 
energy supply at San Gabriel Dam and provides an estimate of losses 
between $300,000 and $1 million annually. However, Public Works admits 
that it is ``not aware of any final Santa Ana Sucker Conservation 
Strategy adopted yet for the San Gabriel River.'' The estimates of 
hydropower losses are contingent upon hypothetical reservoir level 
restrictions. Such restrictions have not been imposed and there is 
little indication to suggest that they will be imposed in the 
foreseeable future.
    (59) Comment: Public Works states that the draft economic analysis 
does not fully consider the economic costs of components of private 
development projects that are transferred to public agencies for 
management.
    Our Response: The draft economic analysis utilized the development 
mitigation costs as presented in the Western Riverside MSHCP as a means 
of estimating economic costs of private development. These costs are 
considered to be representative of the full costs of mitigation, 
including ongoing management. While there may be some additional costs 
associated with ongoing operation and maintenance of specific 
components of development projects, at this time there is inadequate 
information available to support their inclusion in the draft economic 
analysis.
    (60) Comment: Public Works states that the effects on road 
maintenance and transportation are underestimated in the analysis 
because it only considers costs related to past transportation 
projects, noting: ``There were only 4 past project[s], all of which 
were related to Bridge Projects.''
    Our Response: The draft economic analysis considered a broader 
approach in estimating future costs. Future projects were estimated 
using Geographic Information System (GIS) coverage of past Corps 
permitting within the Santa Ana sucker critical and essential habitat 
boundaries to identify projects occurring within sucker habitat. In 
total, 49 Corps permits were issued within sucker habitat between 1999 
and 2003. All permits involving construction and maintenance of 
transportation facilities were selected from this list. In total, ten 
permits were issued for transportation projects over the five-year 
period. Thus, the draft economic analysis considers future sucker-
related costs on transportation activities by assuming that past 
permits are appropriate indicators of future costs. Public Works 
further contends that affected transportation projects are likely to 
increase in the future. However, no evidence was uncovered during 
research for the draft economic analysis to support this conclusion.
    (61) Comment: One comment notes that ``the ensuing analysis on 
small entities [addressed in Appendix A] appears to not include costs 
to the Corps and Public Works. The comment quotes Paragraph 3 of Page 
A-4, which includes: ``There are five flood control dams operating in 
and around the critical and essential habitat units for the sucker * * 
*. The facilities are operated by the U.S. Army Corps of Engineers or 
owned by [Public Works], and do qualify as small entities.''
    Our Response: Although the authors acknowledge the quote on Page A-
4, the statement in the draft economic analysis is in error. The last 
sentence should state, ``The facilities are operated by the USACE or 
owned by the LADPW, and do not qualify as small entities.'' The 
analysis remains unchanged, as these facilities exceed the size 
standards for small entities, and were properly omitted from the 
analysis.

Summary of Changes From the Proposed Rule and the Original Final Rule

    On the basis of public comments, we reviewed our description and 
delineation of critical habitat in the Big Tujunga Creek and the San 
Gabriel and Santa Ana Rivers. Using information provided in these 
comments and obtained from field work, we removed Little Tujunga Creek 
upstream of its confluence with Big Tujunga Creek in Los Angeles County 
from the critical habitat designation in Unit 3, Big Tujunga Creek. We 
also refined the text to accurately reflect the critical habitat 
designation in the San Gabriel River. The text in the proposed rule 
stated that the upper boundary of Unit 2 along the East Fork of the San 
Gabriel River in Los Angeles County extended to the Bridge-of-No-
Return. However, this upper boundary was not delineated on the map or 
the legal description of this unit. While this area is essential to the 
conservation of the species, it cannot be included in the revised final 
rule since it was never actually proposed.
    We also removed proposed units 1A and B from the designation. Units 
1A and 1B were proposed because are a source of sediment for the 
occupied portion of the Santa Ana River. This sediment, which is 
composed of cobble, gravel, and sand, provides spawning and feeding 
substrates for the sucker downstream of the proposed units. They were 
also proposed due to their conveying flood waters to help maintain 
variability in the hydrological system downstream, because they support 
riparian vegetation that provides organic nutrients and woody debris 
which becomes food for the species downstream, and because potions were 
historically, but not currently, occupied.
    However, these attributes do not, of themselves, warrant 
determining that an area is ``essential to the conservation of the 
species'', which is the statutory standard for designation of 
unoccupied areas. There are many things--indeed, an almost endless 
range of possibilities--which contribute to the maintenance of primary 
constituent elements or otherwise provide a beneficial influence to 
areas designated as critical habitat. That does not warrant also 
designating the areas from which they originate, or pass through, as 
critical habitat.
    In fact, Congress has instructed us to be ``exceedingly 
circumspect'' in designating critical habitat outside of areas 
currently occupied by the species (House Report 95-1625). With that 
guidance in mind, we do not find these unoccupied areas essential to 
the

[[Page 437]]

conservation of the species, and so have not designated them as 
critical habitat.
    Overall, these changes resulted in reducing the designated critical 
habitat by 12,824 ac (5,190 ha). Table 1 outlines the changes in 
acreages for each unit between the original and revised final rules.

  Table 1.--Changes in Acreages (ac; ha) for Each of the Units Between
                    Original and Revised Final Rules
------------------------------------------------------------------------
                               Original final
            Unit                    rule           Revised final rule
------------------------------------------------------------------------
Santa Ana River, San          11,709 ac        0 ac (0 ha)
 Bernardino County (Units 1A   (4,738 ha).
 and 1B).
San Gabriel River, Los        5,765 ac (2,333  5,765 ac (2,333 ha)
 Angeles County (Unit 2).      ha).
Big Tujunga Creek, Los        3,655 ac (1,479  2,540 ac (1,028 ha)
 Angeles County (Unit 3).      ha).
                             ------------------
    Total...................  21,129 ac        8,305 ac (3,361 ha)
                               (8,551 ha).
------------------------------------------------------------------------

Critical Habitat

    Please refer to the previous final rule designating critical 
habitat for the Santa Ana sucker for a general discussion of sections 
3, 4, and 7 of the Act and our policy in relation to the designation of 
critical habitat (69 FR 8839).

Methods

    As required by section 4(b) of the Act and its implementing 
regulations (50 CFR 424.12), this rule is based on the best scientific 
and commercial data available concerning the species' current and 
historical range, habitat, biology, and threats. In preparing this 
rule, we reviewed and summarized the current information available on 
the Santa Ana sucker, including the physical and biological features 
essential for the conservation of the species (see ``Primary 
Constituent Elements'' section), and identified the areas containing 
these features. We also identified areas outside the geographic range 
of the species that are essential for its conservation. These areas 
contribute sediment necessary to maintain breeding and feeding 
substrates in occupied areas. The information used in the preparation 
of this designation includes: site-specific species and habitat 
information collected and/or maintained by the Service; the California 
Natural Diversity Database (CNDDB); unpublished survey reports, notes, 
and communications with qualified biologists or experts; peer reviewed 
scientific publications; the Angeles National Forest Santa Ana Sucker 
Conservation Strategy (U.S. Forest Service 2003); the SAS Conservation 
Program (Conservation Team 2003); the final listing rule for the sucker 
published April 12, 2000 (65 FR 19686); and discussions and 
recommendations from Santa Ana sucker experts.

Primary Constituent Elements

    In accordance with sections 3(5)(A)(i) of the Act and regulations 
at 50 CFR 424.12, in determining which areas to designate as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to focus on those 
physical and biological features (primary constituent elements) 
essential to the conservation of the species and may require special 
management considerations or protection. These primary constituent 
elements include, but are not limited to: space for individual and 
population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, rearing (or development) of 
offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    Much of what is known about the physical and biological 
requirements of Santa Ana sucker was described in the previously 
published final rule designating critical habitat for the species (69 
FR 8839). The primary constituent elements for the Santa Ana sucker 
were determined by reviewing studies examining the habitat requirements 
and ecology of the sucker in the Santa Ana River (Allen 2003; Baskin 
and Haglund 2001; Haglund et al. 2003; Haglund et al. 2004; Saiki 2000; 
Swift 2001), the San Gabriel River (Saiki 2000; Haglund and Baskin 
2002; Haglund and Baskin 2003), and the Santa Clara River (Greenfield 
et al. 1970). Designated critical habitat has been designed to provide 
sufficient habitat to maintain self-sustaining populations of sucker 
throughout its range, and to provide those physical or biological 
features essential for the conservation of the species. These physical 
or biological features provide for the following: (1) Space for 
individual and population growth and for normal behavior (primary 
constituent elements 1, 2, 3, and 6); (2) food, water, air, light, 
minerals, or other nutritional or physiological requirements (primary 
constituent elements 1, 2, 3, 4, 5, and 6); (3) cover or shelter 
(primary constituent elements 2 and 6); (4); sites for breeding, 
reproduction, and development of offspring (primary constituent 
elements 1, 2, 3, and 6); and (5) habitats that are representative of 
the historic geographical and ecological distribution of the species 
(primary constituent elements 1, 2, 3, 4, 5, and 6). Based on the 
occurrence of this species and associated biological information, all 
of these physical or biological features are essential to the 
conservation of the species.
    We believe conservation of the Santa Ana sucker is dependent upon 
multiple factors, including the conservation and management of areas to 
maintain ``normal'' ecological functions where existing populations 
survive and reproduce. The areas we are designating as critical habitat 
provide some or all of the physical or biological features essential 
for the conservation of this species. Based on the best available 
information, the primary constituent elements essential for the 
conservation of the sucker are the following:
    (1) A functioning hydrological system that experiences peaks and 
ebbs in the water volume reflecting seasonal variation in precipitation 
throughout the year;
    (2) A mosaic of loose sand, gravel, cobble, and boulder substrates 
in a series of riffles, runs, pools, and shallow sandy stream margins;
    (3) Water depths greater than 3 cm (1.2 in) and bottom water 
velocities greater than 0.03 m per second (0.01 ft per second);
    (4) Non-turbid water or only seasonally turbid water;
    (5) Water temperatures less than 30[deg]C (86[deg]F); and
    (6) Stream habitat that includes algae, aquatic emergent 
vegetation, macroinvertebrates, and riparian vegetation.
    Based on the specific biological and physical requirements of this 
species, critical habitat units contain many of the same physical and 
biological features. Management, therefore, will

[[Page 438]]

address both the maintenance of these features and the reduction of 
threats specific to each critical habitat unit.

Criteria Used To Identify Essential Habitat

    We considered several factors in selecting areas essential to the 
conservation of the Santa Ana sucker. We reviewed all streams and 
rivers currently occupied by the sucker and those areas outside of the 
current geographical distribution supporting one or more of the primary 
constituent elements.
    We analyzed the known historical and current distribution of 
suckers based on data from the Carlsbad Fish and Wildlife Office 
internal geographic information systems (GIS) database, California 
Natural Diversity Database (CNNDB), Los Angeles County Museum 
Ichthyology Catalog, and the Fish Division of the University of 
Michigan Museum of Zoology. We also reviewed various scientific 
articles and reports on the Santa Ana River (Allen 2003; Baskin and 
Haglund 2001; Haglund et al. 2003; Haglund et al. 2004; Saiki 2000; 
Swift 2001), the Big Tujunga Creek (Haglund and Baskin 2001; Holland 
and Swift 2002), and the San Gabriel River (Saiki 2000; Haglund and 
Baskin 2002; Haglund and Baskin 2003).
    Historically occupied river stretches that have been highly 
modified by the construction of canals with concrete-lining on sides 
and bottoms were not considered essential habitat. Other historically 
occupied habitat no longer providing primary constituent elements were 
eliminated from this analysis. We selected areas essential for the 
conservation of the sucker based on the potential for restoration and 
the presence of one or more of the primary constituent elements in 
currently occupied and potentially occupied habitat. We eliminated the 
Santa Clara River population in Ventura and Los Angeles counties from 
this analysis because it does not appear to represent a native 
population of the Santa Ana sucker (and it is not listed). We 
determined that streams, rivers, and associated riparian habitat within 
the Santa Ana River, San Gabriel River, and Big Tujunga Creek and 
associated tributaries provide essential habitat for the sucker.
    We then considered if this essential area was adequate for the 
conservation of the Santa Ana sucker, and concluded that it is. The 
greatest threat to the conservation of the sucker lies in the human-
generated alteration of the function, physical structure, water supply, 
and water quality of existing habitat. The physical structure of and 
water supply to each of the three currently occupied streams have been 
altered by flood control structures (e.g., dams, drop structures, 
concrete-lined channels), and water conservation operations. In 
addition to these easily identifiable threats, pollution and water 
quality standards that are not protective of the sucker also threaten 
the survival and recovery of the species.
    We used the best available scientific and commercial information to 
determine which areas are essential to the conservation of the sucker. 
However, we recognize that the historic and recent collection records 
for this species are incomplete. River segments or small tributaries 
not included in this final designation may harbor small limited 
populations of the sucker or may become occupied in the future. The 
exclusion of such areas does not diminish their potential individual or 
cumulative importance to the conservation of the species. We believe 
that proper management of each of the three designated critical habitat 
units will provide lasting conditions capable of supporting sucker 
populations and allow for assisted or natural dispersal into adjacent 
streams in each watershed.
    We will continue (with the assistance of State, Federal, and 
private researchers), to conduct surveys, research, and conservation 
actions on the species and its habitat in areas designated and not 
designated as critical habitat. When additional scientific information 
becomes available on the species' biology, distribution, and threats, 
we will evaluate the need to revise critical habitat or refine 
boundaries of critical habitat as appropriate. Areas occupied by this 
species that are not designated as critical habitat will continue to 
receive protection under the Act's section 7 jeopardy standard where a 
Federal nexus may occur (see ``Critical Habitat'' section).

Mapping

    We determined that three units are essential to the conservation of 
Santa Ana sucker, and are designating critical habitat in 2 of those 
units. The third unit consists entirely of essential habitat that is 
being excluded pursuant to section 4(b)(2) of the Act (see Exclusions 
Under Section 4(b)(2) of the Act for a detailed discussion of this 
exclusion). We used site-specific information to determine the extent 
of these units. The designated critical habitat units were delineated 
by screen digitizing polygons (map units) using ArcView, a computer GIS 
program. Based on the known distribution of the sucker, the dynamics of 
alluvial floodplain systems, and riparian habitat associated with 
rivers and streams, we placed boundaries around the species' locations, 
as well as their primary constituent elements. In defining these 
critical habitat boundaries, we made an effort to exclude all developed 
areas, such as housing developments, active mines, and other lands 
unlikely to contain the primary constituent elements essential for the 
conservation of the sucker. We used Universal Transverse Mercator (UTM) 
zone 11, North American Datum 1927 (NAD27) coordinates in meters (m) to 
designate the boundaries of critical habitat.

Need for Special Management Considerations or Protection

    Areas occupied by the species and designated as critical habitat 
contain one or more of the primary constituent elements essential to 
the conservation of the species (see ``Primary Constituent Elements'' 
section). Unoccupied areas that contain one or more of the PCEs are 
also included in the designation. When designating critical habitat, we 
assess whether the areas containing PCEs may require special management 
considerations or protections. Regulations at 50 CFR 424.02(j) define 
special management considerations or protection to mean any methods or 
procedures useful in protecting the physical and biological features of 
the environment for the conservation of listed species. Critical 
habitat designations apply only to Federal activities or those funded 
or authorized by a Federal agency.
    All critical habitat units identified in this final designation may 
require special management considerations or protection to maintain a 
functioning hydrological regime consisting of a mosaic of loose sand, 
gravel, and cobble substrates; channel morphology (i.e., runs, riffles, 
pools, and stream margins); sufficient water quality, volume, and 
depth; and complex native stream associations involving algae, aquatic 
emergent vegetation, macroinvertebrates, and riparian vegetation. Each 
designated unit is threatened by activities that may result in the 
alteration of the hydrological system, reduced water quality or supply, 
loss of suitable substrates for spawning and feeding, loss of complex 
floral and faunal associations, and an increase in populations of 
nonnative predatory and competitive species.
    We have determined the critical habitat units may require special 
management or protection, due to the existing threats to this fish, and 
because no long-term protection or management plans exist for any of 
the units. Absent

[[Page 439]]

special management or protection, these three units are susceptible to 
existing threats and activities such as the ones listed in the 
``Effects of Critical Habitat'' section, which could result in 
degradation and disappearance of the populations and their habitat.

Critical Habitat Designation

    We determined that three units are essential to the conservation of 
Santa Ana sucker, and are designating critical habitat in 2 of those 
units. The third unit consists entirely of essential habitat that is 
being excluded pursuant to section 4(b)(2) of the Act (see Exclusions 
Under Section 4(b)(2) of the Act for a detailed discussion of this 
exclusion).

Essential Habitat Excluded From Critical Habitat (Unit 1) for Santa Ana 
Sucker, Orange, Riverside, and San Bernardino Counties, California 
(15,414 ac (6,238 ha))

    The Santa Ana River essential habitat excluded from designation 
includes the mainstem of the Santa Ana River from the confluence of 
Mission Channel and the Santa Ana River downstream to the vicinity of 
the Route 90 crossing and portions of Prado Basin, as identified in the 
map titled ``Essential habitat excluded from critical habitat (Unit 1) 
for Santa Ana Sucker'' in the Regulations Promulgation section. The 
Santa Ana River supports one of three listed populations of the Santa 
Ana sucker. Approximately 60 percent of the total remaining range of 
the listed Santa Ana sucker is in the Santa Ana River (65 FR 19686).
    The occupied essential habitat has been excluded from designation 
because they fall within the Western Riverside MSHCP (Riverside County) 
and the SAS Conservation Program (Orange, Riverside, and San Bernardino 
counties). The basis for these exclusions are summarized in the section 
entitled ``Exclusions Under 4(b)(2)''.

Critical Habitat Unit Descriptions

    We are designating two critical habitat units encompassing 8,305 ac 
(3,361 ha) of streams and rivers in Los Angeles County. We are 
designating critical habitat on lands having one or more of the primary 
constituent elements as described above. Lands designated as critical 
habitat are under Federal (6,356 ac (2,573 ha)) and private (1,949 ac 
(790 ha)) ownership. For each stream reach identified as a critical 
habitat unit, the up- and downstream boundaries are described in 
general in the unit descriptions below; more precise latitudinal and 
longitudinal (UTM) coordinates for the unit boundaries are provided in 
the Regulation Promulgation section of this rule. Habitat areas 
contained within the designated units constitute our best evaluation of 
areas essential for the conservation of the sucker. Critical habitat 
for the sucker may be revised should new information become available.
    We have designated critical habitat in Los Angeles County. We 
determined that essential habitat for the Santa Ana sucker occurs in 
four counties (Los Angeles, Orange, Riverside, and San Bernardino 
counties). Essential habitat for the Santa Ana sucker in Riverside, 
Orange, and portions of San Bernardino counties is being excluded from 
critical habitat designation under section 4(b)(2) of the Act (See 
Exclusions Under 4(b)(2) of the Act for a detailed discussion of these 
exclusions).
    To provide determinable legal descriptions of the critical habitat 
boundaries, we drew polygons around these units. Criteria used to 
delineate the unit boundaries included the primary constituent 
elements, the known extent of the populations, and the extent of 
riparian vegetation on an aerial image. We made an effort to avoid 
developed areas that are unlikely to contribute to the conservation of 
Santa Ana sucker. Areas within the boundaries of the mapped units such 
as paved roads, bridges, parking lots, railroad tracks, railroad 
trestles, and residential, commercial, and industrial developments 
including energy production facilities do not contain one or more of 
the primary constituent elements and are therefore not considered 
critical habitat for the sucker. Federal actions limited to these areas 
would not trigger consultation pursuant to section 7 of the Act, unless 
they affect the species or primary constituent elements in the critical 
habitat. The areas designated as critical habitat in Los Angeles County 
are under Federal and private ownership.

Unit 2: San Gabriel River Critical Habitat Unit, Los Angeles County, 
California (5,765 ac (2,333 ha)).

    The San Gabriel River Unit (Unit 2) consists of the West, North, 
and East Forks of the San Gabriel River and the following tributaries: 
Cattle Canyon Creek, Bear Creek, Bichota Canyon Creek, and Big Mermaids 
Canyon Creek. The San Gabriel River portion of the unit extends from 
the Cogswell Dam on the West Fork to 3,882 ft (1,229 m; 0.77 miles; 
1.21 kilometers) downstream of the Bridge-of-No Return on the East 
Fork, and just above the confluence of Coldbrook and Soldier creeks on 
the North Fork. Suckers occupy the West, North, and East Forks of the 
San Gabriel River and Cattle Canyon Creek, Bear Creek, and Big Mermaids 
Canyon Creek.
    Approximately 15 percent of the total remaining range of the listed 
Santa Ana sucker is in the San Gabriel River (65 FR 19686). 
Approximately 15 percent of its distribution in the San Gabriel River 
Basin occurs on private lands, and the remaining 85 percent occurs in 
the Angeles National Forest (65 FR 19686).
    The San Gabriel River Unit provides the best remaining habitat 
capable of sustaining the Santa Ana sucker. Data gathered during 
sampling indicated the San Gabriel River may contain the largest 
population of Santa Ana suckers (R. Ally, in litt. 1996; Mike Guisti, 
CDFG, in litt. 1996; M. Wickman, in litt., 1996; Juan Hernandez, CDFG, 
in litt. 1997; M. Saiki, pers. comm. 1999). Moyle and Yoshiyama (1992) 
considered the population of suckers in the San Gabriel River drainage 
to be the only viable population within the species' native range. This 
population is found in the relatively undisturbed watershed of the 
Angeles National Forest, unlike the population within the Santa Ana 
River which is within a highly urbanized watershed receiving 
significant urban and agricultural run-off. The high quality riparian 
habitat adjacent to the river and tributaries provide organic inputs 
essential to the maintenance of a healthy stream ecosystem (Diana 1995; 
Klapproth and Johnson 2000a; Sweeney 1993). The East and North Forks 
and associated tributaries are largely unimpeded by dams or other 
obstructions.
    This is the only unit that has a sediment transport and 
hydrological regime existing in a relatively natural state. This unit 
supports a population occurring within a relatively intact watershed 
that provides good water quality, supply, and sediment transport. The 
inclusion of this area in critical habitat ensures the conservation of 
the only extant population of listed suckers that can avoid chronic 
exposure to urban run-off or tertiary-treated wastewater discharges, 
reduced water supply, and loss of feeding and spawning substrates. 
Lands designated as critical habitat may require special management to 
avoid and minimize activities associated with recreational off-road 
vehicle use, grazing, road, bridge, or dam construction and/or 
maintenance in the Angeles National Forest.

Unit 3: Big Tujunga Creek Critical Habitat Unit, Los Angeles County, 
California (2,540 ac (1,028 ha)).

    The Big Tujunga Creek Unit (Unit 3) consists of the stretch of Big 
Tujunga Creek between the Big Tujunga Dam and

[[Page 440]]

Hansen Dam and the following tributaries: Stone Canyon Creek, Delta 
Canyon Creek, and Gold Canyon Creek. Haines Creek, a small stream 
within the floodplain of Big Tujunga Creek is also within this critical 
habitat designation. The Santa Ana sucker occupies the Big Tujunga 
Creek between Big Tujunga Dam and Hansen Dam. Please see ``Summary of 
Changes From the Proposed Rule and the Original Final Rule'' section 
for more details on the removal of Little Tujunga Creek from the 
critical habitat designation.
    Approximately 25 percent of the total remaining range of the Santa 
Ana sucker is within Big Tujunga Creek (65 FR 19686). In Big Tujunga 
Creek, approximately 60 percent of the current range of the Santa Ana 
sucker occurs on private lands. The remaining 40 percent of the range 
occurs on Angeles National Forest lands managed by the Forest Service.
    The upstream portion of this population in Big Tujunga Creek is 
largely contained within the Angeles National Forest. It is not exposed 
to the effects of urban run-off and tertiary treated wastewater 
discharge. This is the only unit supporting three of the remaining 
native freshwater fishes in southern California (Swift 1993). Although 
this ecological association is not well understood at this time, this 
fragile community may offer unique insights into the ability of the 
sucker to coexist with native and nonnative species in this ecosystem. 
This unit contains one or more PCEs and is also essential because it 
maintains habitat for the northernmost extent of the distribution of 
the Santa Ana sucker. The unit enhances the long-term sustainability of 
the sucker by maintaining its genetic adaptive potential and a well-
distributed geographical range to buffer the sucker's particular 
vulnerability to environmental fluctuations and catastrophe (Moyle 
2002).
    Stone Canyon Creek, Delta Canyon Creek, and Gold Canyon Creek are 
not known to be occupied, but are essential to the conservation of the 
sucker because they transport sediment necessary to maintain preferred 
substrates utilized by this fish. These creeks convey stream flows and 
flood waters necessary to maintain habitat conditions for the Santa Ana 
sucker; and support riparian habitats that protect water quality in the 
occupied portions of the Big Tujunga Creek. Similar to the Santa Ana 
River, these tributaries are essential to the Big Tujunga Creek sucker 
population because they provide renewal of spawning and feeding 
substrates and peaks and ebbs in water volumes. These three tributaries 
are particularly essential to the conservation of the sucker and 
require special management and protection since the Big Tujunga Dam has 
reduced the transfer of sediment downstream and altered the natural 
flow in the upper Big Tujunga Creek.
    The sucker has been able to maintain its population in the Big 
Tujunga Creek despite the fragmented habitat and presence of nonnative 
species. Most likely, the sucker population has survived because of the 
presence of the relatively undisturbed condition of the tributaries to 
Big Tujunga Creek.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.2, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: Alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. We may issue a formal conference 
report if requested by a Federal agency. Formal conference reports on 
proposed critical habitat contain an opinion that is prepared according 
to 50 CFR 402.14, as if critical habitat were designated. We may adopt 
the formal conference report as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). The conservation recommendations in a conference report are 
advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that their actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect the Santa Ana sucker or its 
critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the Corps

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under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit 
from the Service, or some other Federal action, including funding 
(e.g., Federal Highway Administration (FHA) or Federal Emergency 
Management Agency (FEMA) funding), will also continue to be subject to 
the section 7 consultation process. Federal actions not affecting 
listed species or critical habitat and actions on non-Federal and 
private lands that are not federally funded, authorized, or permitted 
do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the Santa Ana 
sucker. Federal activities that, when carried out, may adversely affect 
critical habitat for the sucker include, but are not limited to:
    (1) Actions that would alter the hydrology to a degree that 
appreciably reduces the value of the critical habitat for both the 
long-term survival and recovery of the species. Such activities could 
include, but are not limited to, impoundment, channelization, water 
diversion, construction, licensing, re-licensing, and operation of dams 
or other water impoundments.
    (2) Actions that would significantly alter water quality to a 
degree that appreciably reduces the value of the critical habitat for 
both the long-term survival and recovery of the species. Such 
activities could include, but are not limited to, release of chemicals, 
biological pollutants, or heated effluents into the surface water or 
connected groundwater at a point source or by dispersed release (non-
point).
    (3) Actions that would significantly increase sediment deposition 
within the stream channel to a degree that appreciably reduces the 
value of the critical habitat for both the long-term survival and 
recovery of the species. Such activities could include, but are not 
limited to, excessive sedimentation from livestock grazing, road 
construction, timber harvest, off-road vehicle use, residential, 
commercial, and industrial development, and other watershed and 
floodplain disturbances.
    (4) Actions that would significantly alter channel morphology or 
geometry to a degree that appreciably reduces the value of the critical 
habitat for both the long-term survival and recovery of the species. 
Such activities could include, but are not limited to, channelization, 
impoundment, road and bridge construction, mining, and destruction of 
riparian vegetation.
    (5) Actions that would introduce, spread, or augment nonnative 
aquatic species into critical habitat to a degree that appreciably 
reduces the value of the critical habitat for both the long-term 
survival and recovery of the species. Such activities could include, 
but are not limited to, stocking for sport, biological control, or 
other purposes; aquaculture; and construction and operation of canals.

Previous Section 7 Consultations

    Federal actions that we have reviewed since the sucker received 
protection under the Act include Federal land management plans, flood 
control, channelization, channel maintenance, dam construction, dam 
operation, bridge construction, a habitat conservation plan, and 
issuance of permits under section 404 of the Clean Water Act. Federal 
agencies involved with these activities included the Forest Service, 
the Corps, and the FHA. Since the listing of the sucker, 10 formal 
consultations have been initiated and 8 have been completed. None of 
the completed consultations resulted in a finding that the proposed 
action would jeopardize the continued existence of the sucker.
    In each of the biological opinions resulting from these 
consultations, we included discretionary conservation recommendations 
to the action agency. Conservation recommendations are activities that 
would avoid or minimize the adverse effects of a proposed action on a 
listed species or its critical habitat, help implement recovery plans, 
or develop information useful to the species' conservation.
    These biological opinions also included nondiscretionary reasonable 
and prudent measures, with implementing terms and conditions, which are 
designed to minimize the proposed action's incidental take of the 
sucker. Section 3(18) of the Act defines the term take as ``to harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or to 
attempt to engage in any such conduct.'' Harm is further defined in our 
regulations (50 CFR 17.3) to include significant habitat modification 
or degradation that results in death or injury to listed species by 
significantly impairing essential behavioral patterns, including 
breeding, feeding, or sheltering.
    Conservation recommendations and reasonable and prudent measures 
provided in previous biological opinions for the sucker have included: 
restricting in-stream activities during the spawning and nursery 
season; minimizing activities in actively flowing streams; reducing 
pollution from roads and highways; restoring, enhancing, or creating 
sucker habitat; maintaining or improving water quality standards, 
developing a nonnative aquatic species removal program; modifying or 
removing obstructions to fish passage; investigating velocities against 
which suckers can swim; and conducting sediment transport studies.
    The designation of critical habitat will not have an impact on 
private landowner activities not requiring Federal funding or permits. 
Designation of critical habitat is only applicable to activities 
approved, funded, or carried out by Federal agencies.
    If you have questions regarding whether specific activities may 
constitute adverse modification of critical habitat in California, 
contact Ecological Services, Carlsbad Fish and Wildlife Office ((760) 
431-9440). To request copies of the regulations on listed wildlife and 
plants, and for inquiries regarding prohibitions and permits, please 
contact the U.S. Fish and Wildlife Service, Branch of Endangered 
Species, 911 N.E. 11th Avenue, Portland, OR 97232 (telephone (503) 231-
2063; facsimile (503) 231-6243).

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

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact of specifying any 
particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    Lands we have excluded pursuant to section 4(b)(2) include those 
covered by the following types of plans if they provide assurances that 
the conservation measures they outline will be implemented and 
effective: (1) Legally operative HCPs that cover the species, (2) draft 
HCPs that cover the species and have undergone public review and 
comment (i.e., pending HCPs), (3) Tribal conservation plans that cover 
the species, (4) State conservation plans that cover the species, and 
(5) National Wildlife Refuge System Comprehensive Conservation Plans.

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    We have determined that the benefits of excluding essential habitat 
within the boundaries of the Western Riverside MSHCP and essential 
habitat within the area covered by SAS Conservation Program outweigh 
the benefits of including these areas as critical habitat, as described 
in further detail below. Exclusion of these areas will not result in 
the extinction of the sucker.

Western Riverside Multiple Species Habitat Conservation Plan

    Section 10(a) of the Act authorizes the Service to issue to non-
Federal entities a permit for the incidental take of endangered or 
threatened species. This permit allows a non-Federal landowner to 
proceed with an activity that is legal in all other respects, but 
results in the incidental taking of a listed species (i.e., take that 
is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity). The Act specifies that an application for 
an incidental take permit must be accompanied by a conservation plan. A 
permit may not be issued unless the conservation plan submitted to the 
Service meets certain requirements, as provided in section 10(a)(2)(A) 
of the Act. For example, the conservation plan must specify what steps 
the applicant will take to minimize and mitigate such impacts, and the 
funding that will be available to implement such steps. After an 
opportunity for public comment on the conservation plan, the Service 
may issue the permit provided we determine that certain conditions, as 
specified in section 10(a)(2)(B), are met. For instance, the Service 
must find that the taking will be incidental, and the taking will not 
appreciably reduce the likelihood of the survival and recovery of the 
species in the wild.
    The Western Riverside MSHCP was in development for six years and we 
issued a biological opinion and a 75-year Incidental Take Permit (ITP) 
on June 22, 2004. Participants in the Western Riverside MSHCP include 
14 cities: the County of Riverside (including the Riverside County 
Flood Control and Water Conservation District, Riverside County 
Transportation Commission, Riverside County Parks and Open Space 
District, and Riverside County Waste Department); the California 
Department of Parks and Recreation; and the California Department of 
Transportation. The Western Riverside MSHCP will also serve as a sub-
regional plan under the State's Natural Community Conservation Program 
(NCCP) and was developed in cooperation with the California Department 
of Fish and Game. The NCCP permit was issued on July 22, 2004. Within 
the 1.26 million-acre (510,000 ha) planning area of the Western 
Riverside MSHCP, approximately 153,000 ac (62,000 ha) of diverse 
habitats are proposed for conservation. The conservation of 153,000 ac 
(62,000 ha) will complement other, existing natural and open space 
areas that are already conserved through other means (e.g., State 
Parks, Forest Service, and county park lands).
    We believe that the Western Riverside MSHCP meets the three 
criteria used by the Service to determine if a plan provides adequate 
special management or protection to a listed species. First, the 
Western Riverside MSHCP provides a conservation benefit to the species 
through the protection of 3,480 acres of habitat within the Santa Ana 
River. The primary constituent elements of essential habitat for the 
sucker will be maintained in the Santa Ana River in Riverside County by 
the following conservation measures: (1) The implementation of a 
nonnative species removal program, (2) maintaining or improving water 
quality standards, (3) removing or modifying barriers to fish passage 
within the Santa Ana River, and (4) assessing any threats from degraded 
habitat to the sucker in the Santa Ana River in Riverside County and 
addressing those threats as feasible. Third, the Western Riverside 
MSHCP provides assurance that the conservation management strategies 
and actions will be implemented. All permittees for the Western 
Riverside MSHCP have entered into an Implementation Agreement to ensure 
that conservation measures for each species are being implemented as 
appropriate. This Implementing Agreement was signed by all Permittees 
on June 22, 2004. Funding for the conservation measures and land 
acquisition, which is described by the Implementing Agreement, will be 
supported by fees collected by Riverside County, the Cities, and other 
Permittees. The Western Riverside MSHCP provides assurances that 
conservation strategies and actions will be implemented by outlining a 
schedule of management and monitoring activities to be conducted for 
the Santa Ana sucker. Third, to provide assurances that the 
conservation strategies and measures will be effective, the HCP was 
developed on the basis of the best available information, and the 
adaptive management program developed for the Western Riverside MSHCP 
uses a flexible approach to management to ensure that the covered 
species, including the sucker, are maintained and/or enhanced within 
the MSHCP Conservation Area during the term of the Incidental Take 
Permit. Management principles and the monitoring efforts are described 
in the Western Riverside MSHCP document available at the County of 
Riverside website: http://rcip.org/conservation.htm.
    For the reasons described above, we have determined that lands 
covered by the Western Riverside MSHCP can be excluded from this final 
designation of critical habitat pursuant to section 4(b)(2) of the Act.

Draft Santa Ana Sucker Conservation Program and Associated Maintenance 
and Operation Activities of Existing Water Facilities on the Santa Ana 
River

    The SAS Conservation Program, developed over a six-year period, is 
a multi-agency partnership of Federal, local government agencies, and 
the private sector that encourages a river-wide approach to 
conservation of the Santa Ana sucker within the Santa Ana River and its 
tributaries. This partnership is intended to: Increase the knowledge 
base to implement recovery strategies for the sucker in the Santa Ana 
River; ensure that each participating agency minimizes, to the extent 
possible, effects from routine activities that occur within their 
jurisdiction in the Santa Ana River; and develop restoration techniques 
for degraded habitat. Partners in the SAS Conservation Program include 
the Corps, the Service, Santa Ana Watershed Project Authority, and the 
following participating agencies (Participants): Orange County Water 
District, Orange County Resources and Development Management 
Department, Orange County Sanitation District, Riverside County Flood 
Control and Water Conservation District, Riverside County 
Transportation Department, City of Riverside Regional Water Quality 
Control Plant, San Bernardino County Flood Control District, and the 
City of San Bernardino Municipal Water Department Rapid Infiltration 
and Extraction Facility.
    We believe that the SAS Conservation Program meets the criteria 
used by the Service to determine if a plan provides adequate special 
management or protection to a listed species. First, the SAS 
Conservation Program provides a conservation benefit to the species 
through the development of avoidance and minimization measures, 
research, and habitat restoration efforts. Participants in the SAS 
Conservation Program are required to implement specific avoidance and 
minimization measures that will significantly reduce the magnitude of 
the effects of their activities on the sucker. The SAS

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Conservation Program has also yielded several scientific reports, many 
of which were used in preparation of the critical habitat designation. 
The SAS Conservation Program is also funding efforts to restore or 
enhance primary constituent elements of critical habitat in the Santa 
Ana River watershed. Planned research projects of the SAS Conservation 
Program in 2004 include the development of habitat restoration methods, 
characterization of the movement and diet of various life history 
stages of suckers, and investigate the effects of nonnative adult fish 
on larval and juvenile suckers.
    Second, the SAS Conservation Program provides assurances that the 
conservation management strategies and actions will be implemented. 
Although the SAS Conservation Program is in draft form currently, we 
expect that the section 7 consultation on the SAS Conservation Program 
initiated with the U.S. Army Corps of Engineers in January 2003 will be 
completed within the following year. Further, the Participants have 
shown their commitment to the SAS Conservation Program by meeting 
monthly with the Service since 1998 to develop and implement 
appropriate measures to conserve and/or conduct research and focus 
habitat restoration goals on recovering the species in the Santa Ana 
River. The Participants have also drafted a Memorandum of Agreement 
that is currently being discussed. For the past 6 years, the SAS 
Conservation Program has been funded for $125,000 per annum on an 
annual basis by the Participants. Participants will continue funding at 
this level or greater for the life of the SAS Conservation Program. The 
Administrator of the SAS Conservation Program, currently the Santa Ana 
Watershed Project Authority, annually issues an invoice to each 
Participant. Implementation of the SAS Conservation Program is assured 
by the requirement that an Annual Operating Plan must be submitted to 
the Service and the SAS Conservation Team by July 31st of each year, 
and approved by August 31st, which then functions from September 1st 
through August 31st of the following year.
    Third, to provide assurances that the conservation strategies and 
measures will be effective, the SAS Conservation Program was developed 
on the basis of the best available information. The SAS Conservation 
Program also requires an annual report that summarizes all activities 
conducted during the past year, provides success or failure of existing 
avoidance and minimization measures, and any recommendations be 
submitted to the Service for review. The SAS Conservation Program also 
includes an Annual Operating Plan that allows the Service to refine 
research and habitat restoration goals and objectives and avoidance and 
minimization measures as necessary based on the information supplied in 
their annual reports.
    For the reasons described above, we have determined that lands 
covered by the SAS Conservation Program can be excluded from this final 
designation of critical habitat pursuant to section 4(b)(2) of the Act.
(1) Benefits of Inclusion
    The benefits of designating critical habitat on lands within the 
boundaries of HCPs and other conservation plans that cover the species 
for which critical habitat is being designated are small. Conservation 
plans generally include management measures and protections designed to 
protect, restore, monitor, manage, and enhance the habitat to benefit 
the conservation of the species, while a critical habitat designation 
can only mandate protection against actions with a Federal nexus. There 
is nothing in the critical habitat designation which ensures 
restoration, monitoring, active management or habitat enhancement. The 
Western Riverside MSHCP seeks to accomplish these goals for the Santa 
Ana sucker through the implementation of specific conservation 
measures. The principal benefit of designating critical habitat is that 
federally authorized or funded activities that may affect a species' 
critical habitat would require consultation with us under section 7 of 
the Act. Under section 7, proposed actions that would adversely modify 
or destroy designated critical habitat cannot go forward, unless they 
are altered to eliminate the adverse modification or destruction of 
critical habitat.
    An important objective of the Western Riverside MSHCP is to 
implement measures, including monitoring and management, necessary to 
conserve important habitat for the Santa Ana sucker within the plan's 
boundaries. Thus, the purpose of the Western Riverside MSHCP is 
consistent with the purpose served by undergoing consultation under 
section 7 to ensure that critical habitat of the sucker is not 
adversely modified by a proposed Federal action, and provides benefits 
far in excess of those that would result from the critical habitat 
designation. Because issuance of an incidental take permit (ITP) under 
section 10 is a Federal action, we completed an internal section 7 
consultation for every species that is covered under the MSHCP and ITP, 
including the Santa Ana sucker. During consultation, we analyzed the 
impacts of the MSHCP and ITP on the Santa Ana sucker and its essential 
habitat within the plan boundaries and whether or not that habitat was 
officially designated as critical habitat. Therefore, including the 
Santa Ana River within the boundaries of the Western Riverside MSHCP as 
critical habitat would provide little benefit to the Santa Ana sucker, 
because the potential impacts to the species' essential habitat within 
the MSHCP area have been addressed under the plan and have been 
analyzed in our internal section 7 consultation on the ITP.
    The SAS Conservation Program includes measures to restore, monitor, 
and enhance habitat for the Santa Ana sucker in the Santa Ana River. 
Similar to the Western Riverside MSHCP, the SAS Conservation Program is 
specifically designed to benefit the sucker and its essential habitat 
within the Santa Ana River. The SAS Conservation Program is a 
comprehensive conservation program for the sucker that includes 
measures to minimize the impacts of routine water management activities 
on the sucker and restore degraded river habitat to improve the 
species' prospects for survival and recovery. As noted previously, this 
type of active management and restoration is not part of a critical 
habitat designation. Because the SAS Conservation Program is 
specifically designed to benefit the sucker and its essential habitat 
within the Santa Ana River habitat and the programmatic consultation on 
the SAS Conservation Program will analyze the effects of the SAS 
Conservation Program on the sucker and its habitat, the designation of 
critical habitat within the area covered by the SAS Conservation 
Program would provide fewer benefits to this species than does the SAS 
Conservation Program.
(2) Benefits of Exclusion
    Excluding lands within the Western Riverside MSHCP or within the 
area covered by the SAS Conservation Program from critical habitat will 
provide several benefits. Exclusion of the lands from the final 
designation will allow us to continue working with the participants in 
a spirit of cooperation and partnership. In the past, HCP applicants 
and participants in voluntary conservation programs have generally 
viewed the designation of critical habitat as having a potential 
negative regulatory effect that discourages voluntary, cooperative, and 
proactive efforts to conserve listed species and their habitats by non-
Federal parties. Partners and cooperators view designation of critical 
habitat as an

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indication by the Federal government that their proactive efforts to 
protect the species and its habitat are inadequate. Excluding these 
areas from critical habitat will ensure the continuation of the 
existing conservation efforts and provide the basis for future 
opportunities to conserve species and their essential habitat.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We are excluding areas along the Santa Ana River because they are 
within the planning area boundary for the Western Riverside MSHCP and 
the SAS Conservation Program from critical habitat designation. 
Exclusion of these areas will not result in extinction of the sucker. 
We find the benefits of exclusion outweigh the benefits of designating 
the areas covered by the plans as critical habitat.
    The exclusion of these areas from critical habitat will help 
preserve the partnerships we have developed with the local 
jurisdictions and agencies in the development of the Western Riverside 
MSHCP and SAS Conservation Program. The only potential benefit of 
designating critical habitat within these areas, apart from the 
conservation actions discussed above, would be educational--informing 
the public of areas essential for the long-term survival and 
conservation of the species. However, this information has already 
largely been provided to the public through the critical habitat 
designation process and resulting publicity, including public 
participation as set forth above, the material provided on our website, 
and through the ample opportunity for public participation provided 
throughout the development of the Western Riverside MSHCP. The Corps is 
also likely to issue a Public Notice and solicit public comment on the 
issuance of a permit for activities related to the maintenance and 
operation of existing water facilities on the Santa Ana River in 
association with the SAS Conservation Program, further increasing the 
public's knowledge of the importance of the Santa Ana River to the 
sucker. We believe that designating critical habitat has little benefit 
in areas covered by the Western Riverside MSHCP and SAS Conservation 
Program. The Western Riverside MSHCP and SAS Conservation Program have 
ensured authorized activities within these areas include measures to 
protect the Santa Ana sucker and its habitat.
    Based on our evaluation of our past consultation history on the 
sucker and the analysis conducted for those consultations, we believe 
that we have a general understanding of potential impacts, including 
those related to economics, of this designation. We have considered 
these potential impacts in the development of this designation and do 
not believe, at this time, that additional exclusion, including those 
based on economics, pursuant to section 4(b)(2) of the Act are 
warranted.

Economic Impacts

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on October 1, 2004 (69 FR 58876); the 
public comment period was open for 10 days. On October 25, 2004, we 
published another notice in the Federal Register (69 FR 62238) 
reopening a 30-day comment period on the draft economic analysis and 
the proposed designation.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the sucker. This information is intended to assist the 
Secretary in making decisions about whether the benefits of excluding 
particular areas from the designation outweigh the benefits of 
including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the 
proposed rule. However, economic impacts to land use activities can 
exist in the absence of critical habitat. These impacts may result 
from, for example, local zoning laws, State and natural resource laws, 
and enforceable management plans and best management practices applied 
by other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    Categories of direct and indirect costs considered in the analysis 
included the costs associated with: (1) Conducting section 7 
consultations; (2) modifications to projects, activities, or land uses 
resulting from section 7 consultations; (3) uncertainty and public 
perceptions resulting from the designation of critical habitat, 
including potential effects on property values; and (4) the potential 
offsetting beneficial costs associated with critical habitat. The most 
likely economic effects of critical habitat designation are on 
activities funded, authorized, or carried out by a Federal agency 
(i.e., direct costs).
    The economic analysis determined that retrospective costs (i.e., 
costs since listing, 1999-2004) total $4.2 million, with transportation 
comprising $3.4 million of those costs. The remainder of retrospective 
costs was split among OHV recreation, flood control agencies, and 
Federal agencies. Total prospective costs of the proposed rule (i.e., 
costs for the 20-year period 2004-2024) are $30.5 million assuming a 
three percent discount rate and $21.8 million with a seven percent 
discount rate. Annual prospective costs are estimated to be $2.0 
million. Costs associated with transportation contribute 49 percent of 
the annual costs and overall prospective costs. Other leading 
activities include water supply, flood control agencies, and 
residential and commercial development.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this final rule easier to understand, including answers to 
questions such as the following:
    (1) Are the requirements in the final rule clearly stated?
    (2) Does the final rule contain technical jargon that interferes 
with the clarity?
    (3) Does the format of the final rule (grouping and order of the 
sections, use of headings, paragraphing, and so forth) aid or reduce 
its clarity?
    (4) Is the description of the notice in the SUPPLEMENTARY 
INFORMATION section of the preamble helpful in understanding the final 
rule?

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    (5) What else could we do to make this final rule easier to 
understand?
    Send a copy of any comments on how we could make this final rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities. The SBREFA also amended the RFA to require a 
certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect the sucker. Federal agencies also must consult with us if their 
activities may affect critical habitat. However, we believe this will 
result in minimal additional regulatory burden on Federal agencies or 
their applicants because most consultations would already be required 
due to the presence of the Santa Ana sucker or other federally listed 
species or their respective critical habitats (e.g., San Bernardino 
kangaroo rat (Dipodomys merriami parvus)), and consultations to avoid 
the destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process and trigger only 
minimal additional regulatory impacts beyond the duty to avoid 
jeopardizing any listed species.
    Designation of critical habitat could result in an additional 
economic burden on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities. The economic analysis 
determined that costs involving conservation measures for the SAS would 
be incurred for activities involving residential and commercial 
development, water treatment facilities, the Santa Ana River 
Interceptor (SARI) line, water supply, flood control agencies, off-
highway vehicle (OHV) recreation, transportation, flood control dams, 
and federal agencies. Of these, only businesses that are involved with 
land development would be affected; in all other cost categories, the 
affected entities exceed the SBA size criteria for small entities. For 
businesses that are involved with land development, the relevant 
threshold for small businesses is an annual revenue of $6 million or 
less. The effects on small businesses in the land development sector 
would be concentrated in San Bernardino, where most of the development 
is expected to take place. Based on the estimated costs to development 
and the average sales per small business, the annual costs range from 
0.13 percent to 3.97 percent of sales for a small firm in the land 
development sector depending upon county.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the approximately 
four small businesses, on average, that may be required to consult with 
us each year regarding their project's impact on the Santa Ana sucker 
and its habitat. First, if we conclude, in a biological opinion, that a 
proposed action is likely to jeopardize the continued existence of a 
species or adversely modify its critical habitat, we can offer 
``reasonable and

[[Page 446]]

prudent alternatives.'' Reasonable and prudent alternatives are 
alternative actions that can be implemented in a manner consistent with 
the scope of the Federal agency's legal authority and jurisdiction, 
that are economically and technologically feasible, and that would 
avoid jeopardizing the continued existence of listed species or result 
in adverse modification of critical habitat. A Federal agency and an 
applicant may elect to implement a reasonable and prudent alternative 
associated with a biological opinion that has found jeopardy or adverse 
modification of critical habitat. An agency or applicant could 
alternatively choose to seek an exemption from the requirements of the 
Act or proceed without implementing the reasonable and prudent 
alternative. However, unless an exemption were obtained, the Federal 
agency or applicant would be at risk of violating section 7(a)(2) of 
the Act if it chose to proceed without implementing the reasonable and 
prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this critical habitat designation. Within the final 
CHUs, the types of Federal actions or authorized activities that we 
have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization implemented or licensed by Federal agencies;
    (3) Transportation issues such as bridges, rights-of-way, etc. that 
may involve the Federal Highway Administration;
    (4) Regulation of grazing, mining, and recreation by the USFS;
    (5) Hazard mitigation and post-disaster repairs funded by the FEMA; 
and
    (6) Activities funded by the EPA, U.S. Department of Energy, or any 
other Federal agency.
    It is likely that a developer or other project proponent could 
modify a project or take measures to protect the sucker. The kinds of 
actions that may be included if future reasonable and prudent 
alternatives become necessary include conservation set-asides, 
management of competing nonnative species, restoration of degraded 
habitat, and regular monitoring. These are based on our understanding 
of the needs of the species and the threats it faces, as described in 
the final listing rule and proposed critical habitat designation. These 
measures are not likely to result in a significant economic impact to 
project proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons and based on currently 
available information, that it is not likely to affect a substantial 
number of small entities. Federal involvement, and thus section 7 
consultations, would be limited to a subset of the area designated. The 
most likely Federal involvement could include Corps permits, permits we 
may issue under section 10(a)(1)(B) of the Act, FHA funding for road 
improvements, and regulation of grazing, mining, and recreation by the 
USFS. A regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This final rule to 
designated critical habitat for the Santa Ana sucker is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action and no Statement of 
Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal

[[Page 447]]

private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, Small Government Agency Plan is 
not required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating approximately 8,305 ac (3,361 ha) of lands in Los Angeles 
County, California as critical habitat for the Santa Ana sucker in a 
takings implication assessment. The takings implications assessment 
concludes that this final designation of critical habitat for the 
sucker does not pose significant takings implications.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant federalism effects. A federalism assessment is not 
required. In keeping with Department of the Interior policy, the 
Service requested information from, and coordinated development of this 
critical habitat designation with, appropriate State resource agencies 
in California, as well as during the listing process. The impact of the 
designation on State and local governments and their activities was 
fully considered in the economic analysis. As discussed above, the 
designation of critical habitat in areas currently occupied by the 
Santa Ana sucker would have little incremental impact on State and 
local governments and their activities. The designations may have some 
benefit to these governments in that the areas essential to the 
conservation of these species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the survival of the 
species are identified. While making this definition and identification 
does not alter where and what federally sponsored activities may occur, 
it may assist local governments in long-range planning, rather than 
waiting for case-by-case section 7 consultation to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We are designating critical habitat in accordance with 
the provisions of the Act, as amended. This rule uses standard property 
descriptions and identifies the primary constituent elements within the 
designated areas to assist the public in understanding the habitat 
needs that are essential for the conservation of the Santa Ana sucker.

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

    This rule does not contain new or revised information collection 
for which OMB approval is required under the Paperwork Reduction Act. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969, in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Government'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We are not aware of any 
Tribal lands essential for the conservation of the Santa Ana sucker. 
Therefore, the critical habitat designation for the sucker does not 
contain any Tribal lands or lands that we have identified as impacting 
Tribal trust resources.

References Cited

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

Author

    The primary author of this document is the Carlsbad Fish and 
Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
For the reasons given in the preamble, we amend part 17, subchapter B 
of chapter I, title 50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. Amend Sec.  17.11(h), by revising the entry for ``Sucker, Santa 
Ana'' under ``FISHES'' to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 448]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat        rule
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Sucker, Santa Ana................  (Catostomus           U.S.A. (CA)........  Los Angeles River    T                       694     17.95(e)          N/A
                                    santaanae).                                basin, San Gabriel
                                                                               River basin, Santa
                                                                               Ana River basin.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.95(e) by adding critical habitat for the Santa Ana 
sucker (Catostomus santaanae) in the same alphabetical order as this 
species occurs in 17.11(h).


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes. * * *
Santa Ana Sucker (Catostomus santaanae)
    (1) Areas determined to be essential to the conservation of the 
Santa Ana sucker and designated critical habitat units are depicted for 
Los Angeles County, California, on the maps and as described as 
follows:
    (2) Based on the best available information, primary constituent 
elements essential for the conservation of the Santa Ana sucker include 
the following:
    (i) A functioning hydrological system that experiences peaks and 
ebbs in the water volume that reflects seasonal variation in 
precipitation throughout the year;
    (ii) A mosaic of loose sand, gravel, cobble, and boulder substrates 
in a series of riffles, runs, pools, and shallow sandy stream margins;
    (iii) Water depths greater than 3 cm (1.2 in) and bottom water 
velocities greater than 0.03 meter per second (0.01 feet per second);
    (iv) Non-turbid water or only seasonally turbid water;
    (v) Water temperatures less than 30 [deg]C (86 [deg]F); and
    (vi) Stream habitat that includes algae, aquatic emergent 
vegetation, macroinvertebrates, and riparian vegetation.
    (3) Existing features and structures made by people, such as paved 
roads, bridges, parking lots, railroad tracks, railroad trestles, and 
residential, commercial, and industrial developments including energy 
production and distribution facilities (exclusive of the stream 
channel), do not contain one or more of the primary constituent 
elements and are not critical habitat. Federal actions limited to those 
areas, therefore, would not trigger a consultation under section 7 of 
the Act unless they may affect the species and/or primary constituent 
elements in adjacent critical habitat.
    (4) Areas determined to be essential to the conservation of the 
Santa Ana sucker and designated critical habitat units are shown on the 
following index map.

[[Page 449]]

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[[Page 450]]

    (5) Areas that have been determined to be essential to the 
conservation of the Santa Ana sucker and that have been excluded from 
critical habitat designation pursuant to section 4(b)(2) of the Act are 
described as follows:
    (i) All essential areas within the boundaries of the Western 
Riverside Multiple Species Habitat Conservation Plan (which may be 
obtained by going to the Riverside County Integrated Project Web site 
(http://www.rcip.org/conservation.htm) and other areas of the Santa Ana 
River, from the confluence of Mission Channel and the Santa Ana River 
downstream to the vicinity of the Route 90, covered by the Santa Ana 
Sucker Conservation Program.
    (ii) Note: Map of essential habitat excluded from critical habitat 
(Unit 1) for Santa Ana Sucker follows:

[[Page 451]]

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BILLING CODE 4310-55-P

[[Page 452]]

    (6) The following textual unit descriptions are the definitive 
source for determining critical habitat boundaries. General location 
maps by unit are provided at the end of each unit description and are 
provided for general guidance purposes only, and not as a definitive 
source for determining critical habitat boundaries.
    (7) Unit 2: San Gabriel River system in Los Angeles County, 
California.
    (i) Unit 2 includes the West, North and East Forks of the San 
Gabriel River and the following tributaries: Cattle Canyon Creek, Bear 
Creek, Bichota Canyon Creek, and Big Mermaids Canyon Creek. The San 
Gabriel River portion of the unit extends from the Cogswell Dam on the 
West Fork to approximately 3,882 feet (1,229 meters; 0.77 miles; 1.21 
kilometers) downstream from the Bridge-of-No Return on the East Fork, 
and portions of the North Fork. The lateral extent of Unit 2 is defined 
by the UTM coordinates described in the legal description.
    Unit 2: San Gabriel River. Los Angeles County, California. From 
USGS 1:24,000 quadrangle maps Azusa, Crystal Lake, Glendora, Mount 
Baldy, Mount San Antonio, and Waterman Mountain, California, land 
bounded by the following UTM 11 NAD 27 coordinates (E, N): 422700, 
3795100; 423300, 3795100; 423300, 3795000; 423400, 3795000; 423400, 
3794400; 423300, 3794400; 423300, 3794300; 423200, 3794300; 423200, 
3794200; 423100, 3794200; 423100, 3794000; 423000, 3794000; 423000, 
3793400; 422900, 3793400; 422900, 3793300; 422800, 3793300; 422800, 
3793200; 422700, 3793200; 422700, 3793100; 422600, 3793100; 422600, 
3792900; 422500, 3792900; 422500, 3792800; 422400, 3792800; 422400, 
3792100; 422500, 3792100; 422500, 3791800; 422700, 3791800; 422700, 
3791900; 422900, 3791900; 422900, 3792000; 423100, 3792000; 423100, 
3792100; 423800, 3792100; 423800, 3792200; 424500, 3792200; 424500, 
3791900; 424300, 3791900; 424300, 3791800; 424000, 3791800; 424000, 
3791700; 423900, 3791700; 423900, 3791600; 423400, 3791600; 423400, 
3791700; 423200, 3791700; 423200, 3791600; 423000, 3791600; 423000, 
3791500; 422900, 3791500; 422900, 3791400; 422700, 3791400; 422700, 
3791300; 422600, 3791300; 422600, 3791200; 422500, 3791200; 422500, 
3791100; 422400, 3791100; 422400, 3791000; 421700, 3791000; 421700, 
3790900; 421600, 3790900; 421600, 3790800; 421500, 3790800; 421500, 
3790700; 421400, 3790700; 421400, 3790600; 421300, 3790600; 421300, 
3790200; 421200, 3790200; 421200, 3790100; 421100, 3790100; 421100, 
3789900; 420800, 3789900; 420800, 3789800; 420700, 3789800; 420700, 
3789700; 420600, 3789700; 420600, 3789600; 420500, 3789600; 420500, 
3789500; 420700, 3789500; 420700, 3789400; 420800, 3789400; 420800, 
3789000; 420900, 3789000; 420900, 3789100; 421100, 3789100; 421100, 
3789200; 421200, 3789200; 421200, 3789300; 421700, 3789300; 421700, 
3789200; 421800, 3789200; 421800, 3789100; 421900, 3789100; 421900, 
3788900; 422000, 3788900; 422000, 3788800; 422200, 3788800; 422200, 
3788700; 422400, 3788700; 422400, 3788500; 422500, 3788500; 422500, 
3788600; 422600, 3788600; 422600, 3788700; 422500, 3788700; 422500, 
3789400; 422600, 3789400; 422600, 3789600; 422800, 3789600; 422800, 
3789400; 422900, 3789400; 422900, 3789300; 422800, 3789300; 422800, 
3789200; 422700, 3789200; 422700, 3788800; 422800, 3788800; 422800, 
3788700; 422900, 3788700; 422900, 3788800; 423100, 3788800; 423100, 
3788900; 423300, 3788900; 423300, 3788800; 424000, 3788800; 424000, 
3788900; 424100, 3788900; 424100, 3789000; 424600, 3789000; 424600, 
3788900; 424700, 3788900; 424700, 3788700; 424800, 3788700; 424800, 
3788600; 425000, 3788600; 425000, 3788700; 425500, 3788700; 425500, 
3788600; 425800, 3788600; 425800, 3788500; 426100, 3788500; 426100, 
3788300; 426400, 3788300; 426400, 3788200; 426800, 3788200; 426800, 
3788300; 427000, 3788300; 427000, 3788200; 427200, 3788200; 427200, 
3788300; 427600, 3788300; 427600, 3788200; 427700, 3788200; 427700, 
3788100; 427800, 3788100; 427800, 3788000; 428900, 3788000; 428900, 
3787900; 429000, 3787900; 429000, 3788000; 429100, 3788000; 429100, 
3788200; 429200, 3788200; 429200, 3788300; 429300, 3788300; 429300, 
3788700; 429400, 3788700; 429400, 3788800; 429500, 3788800; 429500, 
3789000; 429600, 3789000; 429600, 3789100; 429800, 3789100; 429800, 
3789300; 429900, 3789300; 429900, 3789800; 430000, 3789800; 430000, 
3790400; 429900, 3790400; 429900, 3790500; 429800, 3790500; 429800, 
3790400; 429500, 3790400; 429500, 3790500; 429400, 3790500; 429400, 
3790400; 428900, 3790400; 428900, 3790500; 428800, 3790500; 428800, 
3790600; 428900, 3790600; 428900, 3790700; 429000, 3790700; 429000, 
3790800; 429100, 3790800; 429100, 3790900; 429000, 3790900; 429000, 
3791300; 429300, 3791300; 429300, 3791100; 429500, 3791100; 429500, 
3791000; 429600, 3791000; 429600, 3790900; 429700, 3790900; 429700, 
3790800; 430100, 3790800; 430100, 3790700; 430200, 3790700; 430200, 
3790800; 430300, 3790800; 430300, 3790900; 430400, 3790900; 430400, 
3791000; 430600, 3791000; 430600, 3790900; 430700, 3790900; 430700, 
3791000; 431100, 3791000; 431100, 3791100; 431000, 3791100; 431000, 
3791300; 431100, 3791300; 431100, 3791800; 431200, 3791800; 431200, 
3791900; 431100, 3791900; 431100, 3792400; 431000, 3792400; 431000, 
3792500; 430900, 3792500; 430900, 3792800; 431100, 3792800; 431100, 
3792700; 431300, 3792700; 431300, 3792600; 431400, 3792600; 431400, 
3792400; 431500, 3792400; 431500, 3792200; 431400, 3792200; 431400, 
3792100; 431500, 3792100; 431500, 3791700; 431400, 3791700; 431400, 
3791500; 431500, 3791500; 431500, 3791200; 431400, 3791200; 431400, 
3791100; 431500, 3791100; 431500, 3790800; 431400, 3790800; 431400, 
3790700; 431300, 3790700; 431300, 3790600; 430700, 3790600; 430700, 
3790500; 430600, 3790500; 430600, 3790600; 430500, 3790600; 430500, 
3790500; 430300, 3790500; 430300, 3789800; 430200, 3789800; 430200, 
3789200; 430100, 3789200; 430100, 3788900; 430000, 3788900; 430000, 
3788700; 429800, 3788700; 429800, 3788500; 429700, 3788500; 429700, 
3788200; 429600, 3788200; 429600, 3788100; 429500, 3788100; 429500, 
3788000; 429400, 3788000; 429400, 3787800; 429600, 3787800; 429600, 
3787700; 429700, 3787700; 429700, 3787800; 429800, 3787800; 429800, 
3787900; 430400, 3787900; 430400, 3787800; 430700, 3787800; 430700, 
3787900; 430900, 3787900; 430900, 3788000; 431000, 3788000; 431000, 
3788100; 431100, 3788100; 431100, 3788300; 431200, 3788300; 431200, 
3788400; 431300, 3788400; 431300, 3788500; 431400, 3788500; 431400, 
3788600; 431700, 3788600; 431700, 3788700; 431900, 3788700; 431900, 
3788800; 432300, 3788800; 432300, 3788700; 432400, 3788700; 432400, 
3788600; 432500, 3788600; 432500, 3788500; 432600, 3788500; 432600, 
3788400; 432800, 3788400; 432800, 3788300; 433200, 3788300; 433200, 
3788200; 433400, 3788200; 433400, 3788100; 433500, 3788100; 433500, 
3787900; 433700, 3787900; 433700, 3788000; 434300, 3788000; 434300, 
3788100; 434500, 3788100; 434500, 3788200; 434600, 3788200; 434600, 
3788400; 434700, 3788400; 434700, 3788600; 434800, 3788600; 434800, 
3789000; 434900, 3789000; 434900, 3789100; 435000, 3789100; 435000, 
3789200; 435200, 3789200; 435200, 3789300; 435500,

[[Page 453]]

3789300; 435500, 3789200; 435600, 3789200; 435600, 3789400; 435700, 
3789400; 435700, 3789500; 435900, 3789500; 435900, 3789000; 435800, 
3789000; 435800, 3788900; 435200, 3788900; 435200, 3788700; 435100, 
3788700; 435100, 3788400; 435000, 3788400; 435000, 3788200; 434900, 
3788200; 434900, 3788000; 434800, 3788000; 434800, 3787800; 434600, 
3787800; 434600, 3787700; 434500, 3787700; 434500, 3787600; 434600, 
3787600; 434600, 3787300; 434100, 3787300; 434100, 3787200; 434000, 
3787200; 434000, 3787300; 433800, 3787300; 433800, 3787400; 433600, 
3787400; 433600, 3787500; 433400, 3787500; 433400, 3787600; 433200, 
3787600; 433200, 3787800; 433100, 3787800; 433100, 3787900; 433000, 
3787900; 433000, 3788000; 432600, 3788000; 432600, 3788100; 432400, 
3788100; 432400, 3788200; 432300, 3788200; 432300, 3788300; 432200, 
3788300; 432200, 3788400; 432100, 3788400; 432100, 3788500; 432000, 
3788500; 432000, 3788400; 431900, 3788400; 431900, 3788300; 431600, 
3788300; 431600, 3788200; 431500, 3788200; 431500, 3788100; 431400, 
3788100; 431400, 3788000; 431300, 3788000; 431300, 3787800; 431200, 
3787800; 431200, 3787700; 431100, 3787700; 431100, 3787600; 430700, 
3787600; 430700, 3787500; 430000, 3787500; 430000, 3787600; 429900, 
3787600; 429900, 3787500; 429800, 3787500; 429800, 3787300; 429600, 
3787300; 429600, 3787400; 429400, 3787400; 429400, 3787500; 428900, 
3787500; 428900, 3787600; 428800, 3787600; 428800, 3787700; 428700, 
3787700; 428700, 3787600; 428000, 3787600; 428000, 3787700; 427400, 
3787700; 427400, 3787800; 427100, 3787800; 427100, 3787900; 426900, 
3787900; 426900, 3787800; 426300, 3787800; 426300, 3787900; 426200, 
3787900; 426200, 3788000; 425900, 3788000; 425900, 3788100; 425600, 
3788100; 425600, 3788200; 425400, 3788200; 425400, 3788300; 424500, 
3788300; 424500, 3788500; 424200, 3788500; 424200, 3788400; 423800, 
3788400; 423800, 3788300; 423500, 3788300; 423500, 3788400; 423100, 
3788400; 423100, 3788300; 423000, 3788300; 423000, 3788100; 422900, 
3788100; 422900, 3788000; 422200, 3788000; 422200, 3788100; 422100, 
3788100; 422100, 3788200; 422000, 3788200; 422000, 3788300; 421700, 
3788300; 421700, 3788400; 421600, 3788400; 421600, 3788800; 421200, 
3788800; 421200, 3788700; 421100, 3788700; 421100, 3788600; 421000, 
3788600; 421000, 3788500; 420700, 3788500; 420700, 3788600; 420500, 
3788600; 420500, 3788800; 420400, 3788800; 420400, 3788900; 419800, 
3788900; 419800, 3789000; 419700, 3789000; 419700, 3789100; 419400, 
3789100; 419400, 3789000; 419100, 3789000; 419100, 3788900; 419000, 
3788900; 419000, 3788800; 418600, 3788800; 418600, 3788700; 418300, 
3788700; 418300, 3788800; 417500, 3788800; 417500, 3788900; 417400, 
3788900; 417400, 3789100; 417300, 3789100; 417300, 3789400; 417100, 
3789400; 417100, 3789500; 416700, 3789500; 416700, 3789400; 416500, 
3789400; 416500, 3789300; 416400, 3789300; 416400, 3789200; 416300, 
3789200; 416300, 3789100; 416000, 3789100; 416000, 3789000; 415800, 
3789000; 415800, 3788900; 415700, 3788900; 415700, 3789000; 415400, 
3789000; 415400, 3789100; 415100, 3789100; 415100, 3789300; 414700, 
3789300; 414700, 3789100; 414600, 3789100; 414600, 3789000; 414500, 
3789000; 414500, 3788900; 414400, 3788900; 414400, 3788800; 414300, 
3788800; 414300, 3788700; 414100, 3788700; 414100, 3788600; 413500, 
3788600; 413500, 3788700; 413400, 3788700; 413400, 3788900; 413300, 
3788900; 413300, 3789000; 413200, 3789000; 413200, 3789100; 413100, 
3789100; 413100, 3789200; 413000, 3789200; 413000, 3789300; 412900, 
3789300; 412900, 3789200; 412800, 3789200; 412800, 3789100; 412700, 
3789100; 412700, 3789000; 412600, 3789000; 412600, 3788900; 412300, 
3788900; 412300, 3789200; 411900, 3789200; 411900, 3789300; 411300, 
3789300; 411300, 3789500; 411200, 3789500; 411200, 3789700; 411500, 
3789700; 411500, 3789800; 411700, 3789800; 411700, 3789700; 411900, 
3789700; 411900, 3789600; 412200, 3789600; 412200, 3789700; 412300, 
3789700; 412300, 3789600; 412600, 3789600; 412600, 3789500; 412700, 
3789500; 412700, 3789600; 412800, 3789600; 412800, 3789800; 413100, 
3789800; 413100, 3789700; 413200, 3789700; 413200, 3789500; 413300, 
3789500; 413300, 3789400; 413500, 3789400; 413500, 3789300; 413700, 
3789300; 413700, 3789200; 413800, 3789200; 413800, 3789300; 414000, 
3789300; 414000, 3789400; 414400, 3789400; 414400, 3789500; 414500, 
3789500; 414500, 3789600; 415300, 3789600; 415300, 3789400; 415600, 
3789400; 415600, 3789300; 415800, 3789300; 415800, 3789400; 416100, 
3789400; 416100, 3789500; 416200, 3789500; 416200, 3789600; 416300, 
3789600; 416300, 3789700; 416400, 3789700; 416400, 3789800; 416900, 
3789800; 416900, 3789900; 417000, 3789900; 417000, 3790600; 417100, 
3790600; 417100, 3790700; 416900, 3790700; 416900, 3790900; 416800, 
3790900; 416800, 3791000; 416500, 3791000; 416500, 3791100; 416200, 
3791100; 416200, 3791200; 415900, 3791200; 415900, 3791300; 415700, 
3791300; 415700, 3791500; 415600, 3791500; 415600, 3791700; 415500, 
3791700; 415500, 3791800; 415400, 3791800; 415400, 3791900; 415200, 
3791900; 415200, 3792000; 414700, 3792000; 414700, 3792100; 414600, 
3792100; 414600, 3792300; 415500, 3792300; 415500, 3792200; 415700, 
3792200; 415700, 3792000; 415900, 3792000; 415900, 3791900; 416000, 
3791900; 416000, 3791700; 416200, 3791700; 416200, 3791600; 416400, 
3791600; 416400, 3791500; 416700, 3791500; 416700, 3791400; 416800, 
3791400; 416800, 3791300; 417100, 3791300; 417100, 3791100; 417200, 
3791100; 417200, 3791000; 417500, 3791000; 417500, 3790600; 417400, 
3790600; 417400, 3789800; 417300, 3789800; 417300, 3789700; 417500, 
3789700; 417500, 3789600; 417600, 3789600; 417600, 3789500; 417700, 
3789500; 417700, 3789200; 418200, 3789200; 418200, 3789800; 418300, 
3789800; 418300, 3789900; 418400, 3789900; 418400, 3790100; 418500, 
3790100; 418500, 3790400; 418600, 3790400; 418600, 3790800; 418500, 
3790800; 418500, 3790900; 418200, 3790900; 418200, 3791000; 418100, 
3791000; 418100, 3791200; 418000, 3791200; 418000, 3791300; 417800, 
3791300; 417800, 3791400; 417700, 3791400; 417700, 3791600; 417600, 
3791600; 417600, 3791700; 417500, 3791700; 417500, 3792200; 417900, 
3792200; 417900, 3792300; 417400, 3792300; 417400, 3792400; 417300, 
3792400; 417300, 3792600; 417200, 3792600; 417200, 3792700; 417600, 
3792700; 417600, 3792600; 418100, 3792600; 418100, 3792900; 418200, 
3792900; 418200, 3793300; 418300, 3793300; 418300, 3793200; 418400, 
3793200; 418400, 3792500; 418300, 3792500; 418300, 3792200; 418200, 
3792200; 418200, 3792000; 418100, 3792000; 418100, 3791700; 418200, 
3791700; 418200, 3791600; 418400, 3791600; 418400, 3791400; 418500, 
3791400; 418500, 3791300; 418600, 3791300; 418600, 3791200; 418800, 
3791200; 418800, 3791100; 418900, 3791100; 418900, 3791000; 419000, 
3791000; 419000, 3790600; 419100, 3790600; 419100, 3790300; 419000, 
3790300; 419000, 3790200; 418900, 3790200; 418900, 3789700; 418800, 
3789700; 418800, 3789600; 418700, 3789600; 418700, 3789500; 418600, 
3789500; 418600, 3789200; 418800, 3789200; 418800, 3789300; 419100,

[[Page 454]]

3789300; 419100, 3789400; 419900, 3789400; 419900, 3789500; 420000, 
3789500; 420000, 3789600; 420100, 3789600; 420100, 3789700; 420200, 
3789700; 420200, 3789900; 420300, 3789900; 420300, 3790000; 420500, 
3790000; 420500, 3790100; 420700, 3790100; 420700, 3790200; 420800, 
3790200; 420800, 3790300; 420900, 3790300; 420900, 3790500; 421000, 
3790500; 421000, 3790900; 421100, 3790900; 421100, 3791000; 421200, 
3791000; 421200, 3791100; 421300, 3791100; 421300, 3791200; 421400, 
3791200; 421400, 3791300; 421500, 3791300; 421500, 3791400; 422200, 
3791400; 422200, 3791500; 422300, 3791500; 422300, 3791700; 422200, 
3791700; 422200, 3791900; 422100, 3791900; 422100, 3792200; 422000, 
3792200; 422000, 3793100; 422100, 3793100; 422100, 3793200; 422200, 
3793200; 422200, 3793400; 422400, 3793400; 422400, 3793500; 422500, 
3793500; 422500, 3794200; 422600, 3794200; 422600, 3794400; 422500, 
3794400; 422500, 3794600; 422600, 3794600; 422600, 3795000; 422700, 
3795000; returning to 422700, 3795100.
    (ii) The map of Unit 2 follows:

[[Page 455]]

[GRAPHIC] [TIFF OMITTED] TR04JA05.002

BILLING CODE 4310-55-P


[[Page 456]]


    (8) Unit 3: Big Tujunga Creek system in Los Angeles County, 
California.
    (i) Unit 3 includes the stretch of Big Tujunga Creek between the 
Big Tujunga Dam and Hansen Dam and the following tributaries: Stone 
Canyon Creek, Delta Canyon Creek, and Gold Canyon Creek. The lateral 
extent of Unit 3 is defined by the UTM coordinates described in the 
legal description.
    Unit 3: Big Tujunga Canyon. Los Angeles County, California. From 
USGS 1:24,000 quagrangle maps Condor Peak, San Fernando, and Sunland, 
California, land bounded by the following UTM 11 NAD 27 coordinates (E, 
N): 381900, 3797700; 382100, 3797700; 382100, 3797600; 382200, 3797600; 
382200, 3797500; 382400, 3797500; 382400, 3797400; 382600, 3797400; 
382600, 3797300; 382800, 3797300; 382800, 3797200; 383000, 3797200; 
383000, 3797100; 383100, 3797100; 383100, 3797000; 383200, 3797000; 
383200, 3796900; 383300, 3796900; 383300, 3796500; 383400, 3796500; 
383400, 3796400; 383300, 3796400; 383300, 3796200; 383200, 3796200; 
383200, 3796100; 383500, 3796100; 383500, 3796000; 383600, 3796000; 
383600, 3796300; 383700, 3796300; 383700, 3796500; 384300, 3796500; 
384300, 3796400; 384400, 3796400; 384400, 3796300; 384600, 3796300; 
384600, 3796200; 384900, 3796200; 384900, 3796100; 385000, 3796100; 
385000, 3796000; 385100, 3796000; 385100, 3795900; 385200, 3795900; 
385200, 3795800; 385300, 3795800; 385300, 3795700; 385800, 3795700; 
385800, 3795600; 386000, 3795600; 386000, 3795500; 386200, 3795500; 
386200, 3795400; 386300, 3795400; 386300, 3795300; 386500, 3795300; 
386500, 3795200; 386600, 3795200; 386600, 3795100; 386700, 3795100; 
386700, 3794900; 386800, 3794900; 386800, 3794700; 386900, 3794700; 
386900, 3794600; 387000, 3794600; 387000, 3794500; 387100, 3794500; 
387100, 3794400; 387600, 3794400; 387600, 3794300; 387700, 3794300; 
387700, 3794200; 387800, 3794200; 387800, 3793800; 387900, 3793800; 
387900, 3793900; 388000, 3793900; 388000, 3793800; 388100, 3793800; 
388100, 3793600; 388700, 3793600; 388700, 3793700; 388800, 3793700; 
388800, 3793800; 389100, 3793800; 389100, 3793700; 389300, 3793700; 
389300, 3793800; 389400, 3793800; 389400, 3793900; 389600, 3793900; 
389600, 3794000; 389800, 3794000; 389800, 3794200; 389900, 3794200; 
389900, 3794300; 390000, 3794300; 390000, 3794700; 390100, 3794700; 
390100, 3794900; 390300, 3794900; 390300, 3795000; 390400, 3795000; 
390400, 3795100; 390500, 3795100; 390500, 3795200; 390800, 3795200; 
390800, 3795000; 390700, 3795000; 390700, 3794800; 390500, 3794800; 
390500, 3794700; 390400, 3794700; 390400, 3794600; 390300, 3794600; 
390300, 3794300; 390200, 3794300; 390200, 3794200; 390100, 3794200; 
390100, 3794100; 390000, 3794100; 390000, 3793900; 389900, 3793900; 
389900, 3793800; 389800, 3793800; 389800, 3793700; 389600, 3793700; 
389600, 3793600; 389500, 3793600; 389500, 3793500; 389400, 3793500; 
389400, 3793400; 389200, 3793400; 389200, 3793300; 389000, 3793300; 
389000, 3793500; 388800, 3793500; 388800, 3793300; 388700, 3793300; 
388700, 3793200; 388300, 3793200; 388300, 3793100; 388000, 3793100; 
388000, 3793200; 387900, 3793200; 387900, 3793500; 387600, 3793500; 
387600, 3793700; 387500, 3793700; 387500, 3794000; 387200, 3794000; 
387200, 3794200; 387000, 3794200; 387000, 3794300; 386800, 3794300; 
386800, 3794500; 386500, 3794500; 386500, 3794700; 386400, 3794700; 
386400, 3794800; 386300, 3794800; 386300, 3794700; 386200, 3794700; 
386200, 3794400; 386100, 3794400; 386100, 3794300; 385900, 3794300; 
385900, 3794200; 385800, 3794200; 385800, 3794000; 385600, 3794000; 
385600, 3794300; 385800, 3794300; 385800, 3794400; 385900, 3794400; 
385900, 3794500; 386000, 3794500; 386000, 3795000; 385800, 3795000; 
385800, 3795100; 385700, 3795100; 385700, 3795200; 385600, 3795200; 
385600, 3795300; 385500, 3795300; 385500, 3795500; 385100, 3795500; 
385100, 3795600; 385000, 3795600; 385000, 3795700; 384900, 3795700; 
384900, 3795800; 384700, 3795800; 384700, 3795900; 384600, 3795900; 
384600, 3796000; 384200, 3796000; 384200, 3795900; 384300, 3795900; 
384300, 3795800; 384400, 3795800; 384400, 3795600; 384500, 3795600; 
384500, 3795500; 384600, 3795500; 384600, 3795000; 384500, 3795000; 
384500, 3794900; 384400, 3794900; 384400, 3794800; 384300, 3794800; 
384300, 3794700; 384100, 3794700; 384100, 3794900; 384200, 3794900; 
384200, 3795000; 384400, 3795000; 384400, 3795300; 384500, 3795300; 
384500, 3795400; 384400, 3795400; 384400, 3795500; 384200, 3795500; 
384200, 3795700; 384100, 3795700; 384100, 3795800; 384000, 3795800; 
384000, 3795600; 383700, 3795600; 383700, 3795700; 383600, 3795700; 
383600, 3795800; 383400, 3795800; 383400, 3795900; 383100, 3795900; 
383100, 3795800; 382500, 3795800; 382500, 3795700; 382300, 3795700; 
382300, 3795600; 382200, 3795600; 382200, 3795500; 382100, 3795500; 
382100, 3795400; 382000, 3795400; 382000, 3795200; 381900, 3795200; 
381900, 3795100; 381800, 3795100; 381800, 3795000; 381600, 3795000; 
381600, 3794900; 381500, 3794900; 381500, 3794800; 381400, 3794800; 
381400, 3794600; 381300, 3794600; 381300, 3794400; 381200, 3794400; 
381200, 3794100; 381100, 3794100; 381100, 3794000; 381000, 3794000; 
381000, 3793900; 380900, 3793900; 380900, 3793800; 380800, 3793800; 
380800, 3793600; 380700, 3793600; 380700, 3793500; 380600, 3793500; 
380600, 3793400; 380500, 3793400; 380500, 3793300; 380100, 3793300; 
380100, 3793400; 379700, 3793400; 379700, 3793300; 379500, 3793300; 
379500, 3793200; 379400, 3793200; 379400, 3793100; 379300, 3793100; 
379300, 3793000; 379100, 3793000; 379100, 3792900; 379000, 3792900; 
379000, 3792700; 378800, 3792700; 378800, 3792600; 378700, 3792600; 
378700, 3792500; 378300, 3792500; 378300, 3792300; 377300, 3792300; 
377300, 3792200; 376900, 3792200; 376900, 3792100; 376000, 3792100; 
376000, 3792200; 375400, 3792200; 375400, 3792300; 374200, 3792300; 
374200, 3792200; 373500, 3792200; 373500, 3792300; 373400, 3792300; 
373400, 3792600; 373600, 3792600; 373600, 3792700; 374300, 3792700; 
374300, 3792900; 374200, 3792900; 374200, 3793000; 374100, 3793000; 
374100, 3793200; 374500, 3793200; 374500, 3793100; 374800, 3793100; 
374800, 3793000; 374900, 3793000; 374900, 3792900; 375200, 3792900; 
375200, 3793000; 375600, 3793000; 375600, 3792900; 376500, 3792900; 
376500, 3793000; 376900, 3793000; 376900, 3793100; 377200, 3793100; 
377200, 3793200; 377500, 3793200; 377500, 3793300; 377800, 3793300; 
377800, 3793200; 378300, 3793200; 378300, 3793100; 378800, 3793100; 
378800, 3793200; 379000, 3793200; 379000, 3793300; 379100, 3793300; 
379100, 3793400; 379200, 3793400; 379200, 3793500; 379300, 3793500; 
379300, 3793600; 379600, 3793600; 379600, 3793700; 379800, 3793700; 
379800, 3793800; 380100, 3793800; 380100, 3793900; 380400, 3793900; 
380400, 3794000; 380500, 3794000; 380500, 3794100; 380600, 3794100; 
380600, 3794200; 380800, 3794200; 380800, 3794300; 380900, 3794300; 
380900, 3794600; 381000, 3794600; 381000, 3794800; 381100, 3794800; 
381100, 3794900; 381200, 3794900; 381200, 3795000; 381300, 3795000; 
381300, 3795100; 381500, 3795100; 381500, 3795400; 381800, 3795400; 
381800, 3795600; 381900, 3795600; 381900,

[[Page 457]]

3795700; 382000, 3795700; 382000, 3795900; 382200, 3795900; 382200, 
3796000; 382300, 3796000; 382300, 3796100; 383000, 3796100; 383000, 
3796400; 383100, 3796400; 383100, 3796800; 383000, 3796800; 383000, 
3796900; 382900, 3796900; 382900, 3797000; 382700, 3797000; 382700, 
3797100; 382500, 3797100; 382500, 3797200; 382200, 3797200; 382200, 
3797300; 382100, 3797300; 382100, 3797400; 382000, 3797400; 382000, 
3797500; 381900, 3797500; returning to 381900, 3797700; excluding land 
bounded by 377600, 3792900; 377600, 3792800; 377400, 3792800; 377400, 
3792700; 377200, 3792700; 377200, 3792800; 377000, 3792800; 377000, 
3792700; 377100, 3792700; 377100, 3792500; 377200, 3792500; 377200, 
3792400; 377500, 3792400; 377500, 3792600; 377600, 3792600; 377600, 
3792500; 377700, 3792500; 377700, 3792600; 377900, 3792600; 377900, 
3792500; 378100, 3792500; 378100, 3792600; 378000, 3792600; 378000, 
3792800; 377900, 3792800; 377900, 3792900; 377600, 3792900.
    (ii) The map of Unit 3 follows:

[[Page 458]]

[GRAPHIC] [TIFF OMITTED] TR04JA05.003

* * * * *

    Dated: December 21, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-28286 Filed 12-30-04; 8:45 am]
BILLING CODE 4310-55-C