[Federal Register Volume 74, Number 235 (Wednesday, December 9, 2009)]
[Proposed Rules]
[Pages 65056-65087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29024]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2009-0072]
[92210-1117-0000-B4]
[RIN 1018-AW23]


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Santa Ana Sucker (Catostomus santaanae); Proposed Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise the designated critical habitat for the Santa Ana sucker 
(Catostomus santaanae). The areas identified in this proposed rule 
constitute a revision of the areas designated as critical habitat for 
the Santa Ana sucker on January 4, 2005. In the 2005 final rule, we 
designated 8,305 ac (3,361 ha) of critical habitat in Los Angeles 
County. Approximately 9,605 acres (ac) (3,887 hectares (ha)) of habitat 
in the Santa Ana River (San Bernardino, Riverside, and Orange Counties) 
and the San Gabriel River and Big Tujunga Creek (Los Angeles County) in 
southern California fall within the boundaries of the proposed revised 
critical habitat designation.

DATES: We will consider comments we receive on or before February 8, 
2010. We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by January 
25, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R8-
ES-2009-0072.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2009-0072; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone (760) 431-
9440; facsimile (760) 431-5901. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend any final action resulting from this proposal to be as 
accurate and as effective as possible. Therefore, we request comments 
or suggestions on this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons we should or should not revise the designation of 
habitat as ``critical habitat'' under section 4 of the Endangered 
Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), 
including whether the benefit of designation would outweigh any threats 
to the species caused by the designation, such that the designation of 
critical habitat is prudent.
    (2) Specific information on:
     Areas that provide habitat for the Santa Ana sucker that 
we did not discuss in this proposed critical habitat rule,
     Areas within the geographical area occupied by the species 
at the time of listing that contain the physical and biological 
features essential to the conservation of the species which may require 
special management considerations or protection, that we should include 
in the designation and reason(s) why (see Physical and Biological 
Features section below for further discussion.), and
     Areas outside the geographical area occupied by the 
species at the time of listing that are essential for the conservation 
of the species and why.
     (3) Specific information on our proposed designation of City Creek 
and the Santa Ana River above Seven Oaks Dam to provide habitat for 
future reintroduction of the Santa Ana sucker to augment the Santa Ana 
sucker population in the Santa Ana River. See Critical Habitat Units 
section below.
     (4) Specific information on the Santa Ana sucker, habitat 
conditions, and the presence of physical and biological features 
essential for the conservation of the species in Subunit 1B below Prado 
Dam.
     (5) Specific information on the sediment contribution from 
tributaries to the Santa Ana River below Prado Dam (Subunit 1B).
     (6) Specific information on the Santa Ana sucker, habitat 
conditions, and the presence of potential permanent barriers to 
movement in Big Tujunga Wash (Subunit 3A), particularly between the Big 
Tujunga Canyon Road Bridge and the Big Tujunga Dam. See Critical 
Habitat Units section below.
     (7) Specific information on in-stream gradient (slope) limitations 
of the species. In this proposed revised rule, we assume that Santa Ana 
suckers are unable to occupy stream sections where the in-stream slope 
exceeds 7 degrees. See Primary Constituent Elements (PCEs) section 
below.
     (8) Land-use designations and current or planned activities in the 
areas proposed as critical habitat, as well as their possible effects 
on proposed critical habitat.
    (9) Comments or information that may assist us in identifying or 
clarifying the PCEs. See Primary Constituent Elements section below for 
further discussion of PCEs.
    (10) How the proposed revised critical habitat boundaries could be 
refined to more closely circumscribe the areas identified as containing 
the features essential to the species' conservation.
     (11) Any probable economic, national-security, or other impacts of 
designating particular areas as critical habitat, and, in particular, 
any impacts on small entities (e.g., small businesses or small 
governments), and the benefits of including or excluding areas that 
exhibit these impacts.
     (12) Whether any specific areas being proposed as critical habitat 
should be excluded under section 4(b)(2) of the Act, and whether the 
benefits of potentially excluding any particular area outweigh the 
benefits of including that area under section 4(b)(2) of the Act. See 
Exclusions section below for further discussion.
    (13) The potential exclusion of Subunits 1B and 1C under section 
4(b)(2) of the Act based on the benefits to the species provided by 
implementation of the Santa Ana Sucker Conservation Program and whether 
the benefits of exclusion of this area outweigh the benefits of 
including this area as critical habitat, and why. See Exclusions 
section below for further discussion.
    (14) Information on any quantifiable economic costs or benefits of 
the proposed revised designation of critical habitat.
    (15) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and

[[Page 65057]]

understanding, or to better accommodate public concerns and comments.
    Our final determination concerning critical habitat for the Santa 
Ana sucker will take into consideration all written comments we receive 
during the comment period, including comments we have requested from 
peer reviewers, comments we receive during a public hearing should we 
receive a request for one, and any additional information we receive 
during the 60-day comment period. Our final determination will also 
consider all written comments and any additional information we receive 
during the comment period for the draft economic analysis. All comments 
will be included in the public record for this rulemaking. On the basis 
of peer reviewer and public comments, we may, during the development of 
our final determination, find that areas within those proposed do not 
meet the definition of critical habitat, that some modifications to the 
described boundaries are appropriate, or that some areas may be 
excluded from the final determination under section 4(b)(2) of the Act 
based on Secretarial discretion.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov. Please include 
sufficient information with your comment to allow us to verify any 
scientific or commercial data you submit.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office (see the FOR FURTHER 
INFORMATION CONTACT section).
    You may obtain copies of this proposed revised rule by mail from 
the Carlsbad Fish and Wildlife Office (see the FOR FURTHER INFORMATION 
CONTACT section) or by visiting the Federal eRulemaking Portal at 
http://www.regulations.gov.

Background

    It is our intent to discuss only those topics directly relevant to 
the revised designation of critical habitat in this proposed rule. This 
rule incorporates new information on the distribution of the Santa Ana 
sucker and its habitat within the Santa Ana River that we did not 
discuss in the 2005 final critical habitat designation for this 
species. No new information pertaining to the species' description, 
life history, or ecology was received following the 2005 final critical 
habitat designation for this species; summary information relevant to 
this species critical habitat is provided below. For more information 
on the Santa Ana sucker, refer to the final listing rule published in 
the Federal Register on April 12, 2000 (65 FR 19686), and the 
designation and revision of critical habitat for the Santa Ana sucker 
published in the Federal Register on February 26, 2004 (69 FR 8839), 
and on January 4, 2005 (70 FR 426), respectively.

Species Description

    The Santa Ana sucker is a small, short-lived member of the sucker 
family of fishes (Catostomidae), named so primarily because of the 
downward orientation and anatomy of their mouth-parts which allow them 
to suck up small invertebrates, algae, and other organic matter with 
their fleshy, protrusible lips (Moyle 2002, p. 179). Santa Ana suckers 
are generally less than 6.3 inch (in) (16 centimeters (cm) in length, 
are silvery-white below and darker along the back, with irregular 
dorsal blotches on the sides and faint patterns of pigmentation 
arranged in lateral stripes, and the membranes connecting the rays of 
the caudal (tail) fin are pigmented (Moyle 2002, p. 182). Spawning 
tubercles, or raised growths on sexually mature fish, particularly at 
the beginning of the breeding season, are present on most parts of the 
body of breeding males and are heaviest on the anal fin, caudal fin, 
and lower half of the caudal peduncle. Female suckers grow tubercles on 
the caudal fin and caudal peduncle (Moyle 2002, pp. 182-183).

Habitat

    The Santa Ana sucker occurs in the watersheds draining the San 
Gabriel and San Bernardino Mountains of southern California. Their 
historical distribution extended from upper watershed areas to the 
Pacific Ocean; hence, they are capable of living in habitats as diverse 
as mountain streams and rivers in alluvial floodplains (Moyle 2002, p. 
183; Swift et al. 1993, pp. 119-121). Sediment loads are high in the 
San Gabriel and San Bernardino Mountains (National Research Council 
1996, p. 29). The streams that this species inhabits are generally 
perennial streams with water ranging in depth from a few inches to 
several feet and with currents ranging from slight to swift (Haglund 
and Baskin 2003, p. 2). They are also naturally subject to periodic, 
severe flooding (Moyle 2002, p.183). However, decades of groundwater 
extraction have lowered subsurface groundwater levels within the 
historical range of the Santa Ana sucker (California Regional Water 
Quality Control Board 1995, pp. 1-4 to 1-5). In conjunction with 
periodic reductions in stream flows during extended periods of drought 
typical of southern California climate cycles, all streams that support 
the Santa Ana sucker experience less perennial flow (California 
Regional Water Quality Control Board 1995, p. 1-4). Flows also 
fluctuate artificially, either increasing or decreasing in an unnatural 
manner as a result of dam operations and, in some areas, discharges 
from wastewater treatment plants.
    Santa Ana suckers are most abundant in unpolluted, clear water that 
is typically less than 72 degrees Fahrenheit ([deg]F) (22 degrees 
Celsius ([deg]C)) in temperature (Moyle and Yoshiyama 1992, p. 203). 
Santa Ana suckers appear to tolerate the relatively warmer water 
temperatures and turbid water conditions that occur in the Santa Ana 
River (Chadwick and Associates, Inc. 1992, p. 37; Moyle and Yoshiyama 
1992, p. 203; Saiki 2000, p. 25). Santa Ana suckers prefer streams that 
contain coarse substrates, including gravel, cobble, and mixtures of 
gravel or cobble with sand and a combination of shallow riffle areas 
and deeper runs and pools (Haglund and Baskin 2003, p. 55; Haglund et 
al. 2001, p. 60). This species also prefers habitat containing in-
stream or bank-side riparian vegetation that provides shade/cover; 
however, vegetation becomes less important where larger, deeper pools 
and riffles are present (Moyle 2002, p. 183). Open stream reaches with 
shifting sandy substrates typically lack an accumulation of woody 
debris and are less suitable for the development of an aquatic 
invertebrate community (Leidy et al. 2001, p. 5-3). Areas of shifting 
sandy substrates are also less suitable for development of algae, an 
important food source for suckers (Saiki et al. 2007, p. 98).
    Tributaries, particularly near their confluence with occupied areas 
of the mainstem of the river, may also provide important habitat for 
the Santa Ana sucker (Chadwick and Associates, Inc.

[[Page 65058]]

1992, p. 49; Chadwick Ecological Consultants, Inc. 1996, p. 16; Haglund 
et al. 2002, pp. 54-60), providing shallow-water refuge for larvae and 
fry from larger predatory fish and acting as refuge for juvenile and 
adult Santa Ana suckers during storms. Additionally, the species may be 
attracted to tributaries due to the relatively colder water 
temperatures found there (Swift 2001, p. 26).

Life History

    Santa Ana suckers feed on algae, zooplankton (such as diatoms), and 
detritus that they scrape from the surfaces of rocks and other hard 
substrates. These food sources constitute approximately 98 percent of 
their diet, with the remainder consisting of aquatic insect larvae, 
fish scales, and fish eggs (Greenfield et al. 1970, p. 174). While 
smaller, younger Santa Ana suckers feed primarily on algae, diatoms, 
and detritus, insects appear to become a more significant part of the 
diet of larger individuals (Greenfield et al. 1970, p. 174).
    Santa Ana suckers typically live about 3 years, although, based on 
size, some may live longer than 4 years (Drake 1988, p. 56). Male and 
female Santa Ana suckers grow at approximately the same rate 
(Greenfield et al. 1970, p. 174). Spawning typically occurs in the 
spring, generally beginning in mid-March, peaking in April, and 
concluding by early July (Moyle 2002, p. 183). However, juveniles less 
than 1 inch (in) (25 millimeters (mm)) in length have been collected in 
the Santa Ana River as early as February (Haglund et al. 2003, p. 103) 
and as late as August (Chadwick and Associates, Inc. 1992, pp. 51, 54). 
In the San Gabriel River, juveniles less than 1 in (25 millimeters 
(mm)) have been collected in both December (Saiki 2000, p. 54) and 
August (Tennant 2006, p. 2). These data indicate spawning may be 
protracted and the timing highly variable, depending on local 
conditions in each watershed (such as water temperature, stream size, 
or pattern of seasonal runoff).
    Santa Ana suckers become reproductively mature during spring 
following hatching (Greenfield et al. 1970, p. 172). Females deposit 
eggs in gravel substrate without constructing any type of nest; 
however, eggs are well-camouflaged in the gravel. The eggs are demesal 
and adhesive, meaning they adhere to the substrate rather than floating 
and dispersing on the surface of the water (Greenfield et al. 1970, p. 
169). Eggs deposited in ambient stream temperatures of 55 [deg]F (13 
[deg]C) have been found to hatch larvae approximately 0.3 in (7 mm) in 
total length within 360 hours (approximately 15 days) of fertilization. 
When larvae are approximately 0.6 in (16 mm) long, the mouth becomes 
sub-terminal and the larva transform into fry (Greenfield et al. 1970, 
p. 169).
    Fecundity in the Santa Ana suckers is exceptionally high relative 
to that of other suckers (Moyle 2002, p. 183). Females can lay between 
4,400 and 16,000 eggs at a given time with larger females laying 
greater numbers of eggs than smaller females (Greenfield et al. 1970, 
p. 170). Hence, average overall growth of fish likely affects 
population fitness. The combination of early sexual maturity, 
protracted spawning period, and high fecundity allows the Santa Ana 
sucker to quickly repopulate streams following periodic flood events 
that can otherwise decimate populations (Greenfield et al.1970, pp. 
166, 177, 178), provided that there is a refuge available to fish 
within the stream. Winter flood events may contribute to catastrophic 
decreases in abundance by transporting Santa Ana suckers downstream to 
areas with unsuitable habitat. Such floods, when of sufficient 
magnitude, also disrupt the aquatic invertebrate community, thereby 
reducing habitat quality for the Santa Ana sucker until stream bed 
conditions stabilize and the diversity and abundance of this forage 
source is re-established (Haglund and Baskin 1992, p. 45, 56; Leidy et 
al. 2001, p. 5-3). Conversely, summer droughts may strand Santa Ana 
suckers in isolated pools where they are exposed to unsuitable water-
quality conditions or an increased probability of predation. Both 
conditions highlight the importance of refuge areas with more stable 
habitat conditions for the conservation of the Santa Ana sucker.

Geographic Range and Status

    As discussed in the final rule (65 FR 19686; April 12, 2000), 
listing the Santa Ana sucker as threatened, this species' historical 
range includes the rivers and larger streams emanating from the San 
Gabriel and San Bernardino Mountains in Ventura, Los Angeles, Orange, 
Riverside, and San Bernardino Counties. The species is currently known 
to occur in the Santa Ana River (San Bernardino, Riverside, and Orange 
Counties) and the San Gabriel River and Big Tujunga Creek (Los Angeles 
County). However, information about the distribution of the Santa Ana 
sucker in many tributaries within its historical range is incomplete. 
For example, Santa Ana suckers were recently found in San Dimas Creek, 
a tributary to the San Gabriel River that is isolated from remaining 
occupied habitat in the San Gabriel River by development (Chambers 
Group 2008, pp. 1-3). See the final listing rule for a detailed 
discussion of this species' historical range.
    A population of the Santa Ana sucker is also found in the Santa 
Clara River. However, we determined at the time of listing that there 
was sufficient evidence to conclude that this population of Santa Ana 
sucker is not native to this river and hence, we did not include the 
Santa Clara River population in the geographic range of the listed 
Santa Ana Sucker (65 FR 19686; April 12, 2000). We have no new 
information that clarifies the status of this species as native or 
nonnative to this river. A genetic analysis of the populations in all 
four watersheds (Santa Clara, Santa Ana, San Gabriel, and Los Angeles) 
would assist in determining the origin of the species in the Santa 
Clara River; however, this analysis has not been completed at this 
time.
    In addition to a lack of information clarifying the status of this 
species as native or nonnative, hybrids between the Santa Ana sucker 
and the Owens sucker have been collected in the lower Santa Clara River 
in the vicinity of Fillmore and within Sespe Creek (Moyle 2002, p. 
182). The Owens sucker (Catostomus fumeiventris), which is endemic to 
the Owens River watershed in southeastern California, has been 
documented in the Santa Clara River since the 1930s (Hubbs et al. 1943, 
p. 47). This species was apparently introduced to the Santa Clara River 
through transfers of Owens River water via the Owens Aqueduct (Bell 
1978, p. 14). Recently, genetic introgression (which is the 
backcrossing of hybrid offspring with one of its parent species) has 
been detected in both Santa Ana and Owens suckers within the Santa 
Clara River (Ferguson 2009, p.1; Chabot et al. 2009, p. 24), indicating 
that hybridization between these two species has occurred. However, 
additional research is needed to determine the impact of hybridization 
on genetically ``pure'' Santa Ana sucker in the Santa Clara River.
    Therefore, given the lack of new information on the status of this 
species as native or nonnative as well as a lack of information on the 
impacts of hybridization on genetically ``pure'' Santa Ana sucker, we 
continue to adhere to our 2000 decision not to include the Santa Clara 
River population of the Santa Ana sucker as part of the listed entity. 
As a consequence, the Santa Clara River area has not been included in 
this proposed revision to critical habitat.
    The current distribution of the listed Santa Ana sucker is 
delimited by dams

[[Page 65059]]

or other impassable structures that preclude further dispersal or 
migration of fish (Cogswell Reservoir on the West Fork; the ``Bridge-
of-No-Return'' on the North Fork of the San Gabriel River; the Big 
Tujunga Dam on Big Tujunga Creek; and the La Cadena drop structure in 
the Santa Ana River). Additionally, decades of water diversion and 
water withdrawal have permanently altered the natural watershed flows 
within the Los Angeles and Santa Ana watershed region (California 
Regional Water Quality Control Board 1995, pp. 1-2 to 1-4). The current 
distribution is also delimited by dams (Hansen Dam on Big Tujunga 
Creek, San Gabriel Dam on San Gabriel River, and a series of rubber 
dams just below Weir Canyon Road on the Santa Ana River) and the 
permanent loss of suitable downstream habitat areas as a result of 
urban development (Moyle 2002, p. 184). Altered fluvial processes and 
impediments to movement fragment much of the current range of the Santa 
Ana sucker within each watershed. In its remaining habitat, severe 
restriction of natural water flows causes impacts to populations of the 
Santa Ana sucker including stranding and reduction in usable habitat 
areas when tributaries run dry (Moyle 2002, p. 184). See the final 
listing rule (65 FR 19686; April 12, 2000) and the Special Management 
Considerations or Protection section below for additional discussion of 
the current threats to the species in areas included in this proposed 
revised critical habitat designation.

Previous Federal Actions

    The Santa Ana sucker was listed as a threatened species on April 
12, 2000 (65 FR 19686), in the Santa Ana River, San Gabriel River, and 
Big Tujunga Creek. A fourth population in the Santa Clara River was not 
listed because it was presumed to be introduced into that watershed 
(see Geographic Range and Status section above). Pursuant to a 
settlement agreement with California Trout, Inc., the California-Nevada 
Chapter of the American Fisheries Society, the Center for Biological 
Diversity, and the Friends of the River (plaintiffs) [California Trout, 
et al. v. Norton, et al. (Case No. 97-3779, N.D. Cal)], we published a 
proposed and final critical habitat designation in the Federal Register 
on February 26, 2004, that encompassed 21,129 ac (8,551 ha) in the 
Santa Ana River, San Gabriel River, and Big Tujunga Creek. To give the 
public an opportunity to comment on the critical habitat designation, 
including the opportunity for a public hearing, and to enable the 
Service to complete and circulate for public review an Economic 
Analysis of the critical habitat designation, we published and 
solicited comment on the proposed rule (69 FR 8911). Subsequently, we 
published a notice in the Federal Register on August 19, 2004 (69 FR 
51416), announcing the reopening of a 30-day comment period on the 
proposed rule and the holding of a public hearing on September 9, 2004, 
in Pasadena, California. A final revised critical habitat rule was 
published in the Federal Register on January 4, 2005, designating a 
total of 8,305 ac (3,361 ha) in the San Gabriel River and Big Tujunga 
Creek in San Bernardino County. On July 20, 2007 (Service 2007, pp. 1-
2), we announced that we would review the January 4, 2005, final 
critical habitat rule after questions were raised about the integrity 
of scientific information used and whether the decision made was 
consistent with the appropriate legal standards. Based on our review of 
the 2005 final critical habitat designation, we determined it was 
necessary to revise critical habitat and this rule proposes those 
revisions.
    On November 15, 2007, the parties listed above filed suit against 
the Service alleging the 2005 final designation of critical habitat 
violated provisions of the Act and Administrative Procedure Act 
[(California Trout, Inc., et al., v. United States Fish and Wildlife, 
et al., Case No. 07-CV-05798 (N.D. Cal.) transferred Case No CV 08-4811 
(C.D. Cal.)]. The plaintiffs alleged that our January 4, 2005, final 
revised critical habitat designation for the Santa Ana sucker was 
insufficient for various reasons and should include the Santa Clara 
River population. We entered into a stipulated settlement agreement 
with plaintiffs that was approved by the district court on January 21, 
2009. Pursuant to the district court order, we committed to submit a 
proposed revised critical habitat designation for the Santa Ana sucker 
to the Federal Register by December 1, 2009, and submit a final revised 
critical habitat designation to the Federal Register by December 1, 
2010.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) essential to the conservation of the species and
    (b) that may require special management considerations or 
protection; and
     (2) specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, transplantation, and in the extraordinary case where 
population pressures within a given ecosystem cannot otherwise be 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7(a)(2) of the 
Act through the prohibition against Federal agencies carrying out, 
funding, or authorizing the destruction or adverse modification of 
critical habitat. Section 7(a)(2) of the Act requires consultation on 
Federal actions that may affect critical habitat. The designation of 
critical habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation does not allow the government or public to access private 
lands. Such designation does not require implementation of restoration, 
recovery, or enhancement measures by private landowners. Where a 
landowner requests Federal agency funding or authorization for an 
action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) would apply, but even in 
the event of a destruction or adverse modification finding, the 
landowner's obligation is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time of listing 
must contain physical or biological features that are essential to the 
conservation of the species, and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific data available, habitat areas that provide essential life 
cycle needs of the species (i.e., areas on which are found the primary 
constituent

[[Page 65060]]

elements (PCEs) laid out in the appropriate quantity and spatial 
arrangement essential to the conservation of the species). Under the 
Act, we can designate critical habitat in areas outside the 
geographical area occupied by the species at the time it is listed as 
critical habitat only when we determine that those areas are essential 
for the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we determine which areas should be designated as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all habitat areas that we may 
eventually determine are necessary for the recovery of the species. For 
these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not promote 
the recovery of the species.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act. They are also 
subject to the regulatory protections afforded by section 9 of the Act 
and the section 7(a)(2) jeopardy standard, as determined on the basis 
of the best available scientific information at the time of the agency 
action. Federally funded or permitted projects affecting listed species 
outside their designated critical habitat areas may still result in 
jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, Habitat Conservation Plans (HCPs), or other 
species conservation planning efforts if information available at the 
time of these planning efforts calls for a different outcome.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available in determining areas occupied at the time 
of listing that contain the features essential to the conservation of 
the Santa Ana sucker. We reviewed the approach to the conservation of 
the Santa Ana sucker provided in the 2004 final critical habitat 
designation for the Santa Ana sucker (69 FR 8839; February 26, 2004); 
the 2005 final revised critical habitat designation (70 FR 426; January 
4, 2005); information from State, Federal, and local government 
agencies; and information from academia and private organizations that 
collected scientific data on the species. Other information we used for 
this proposed revised critical habitat includes: published and 
unpublished papers, reports, academic theses, species and habitat 
surveys; Geographic Information System (GIS) data (such as species 
occurrence data, habitat data, land use, topography, digital aerial 
photography, and ownership maps); correspondence to the Service from 
recognized experts; site visits by Service biologists; and other 
information as available. Mapping for this proposed revised critical 
habitat designation was completed using ESRI ArcMap 9.3.1 (ESRI, Inc. 
2009).

Physical and Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR Sec.  424.12(b), in determining which areas occupied by the 
species at the time of listing to propose as critical habitat, we 
consider those physical and biological features that are essential to 
the conservation of the species that may require special management 
considerations or protection. We consider the physical and biological 
features to be the PCEs laid out in the appropriate quantity and 
spatial arrangement for the conservation of the species. The PCEs 
include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring; and
     (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derived the PCEs required for the Santa Ana sucker from its 
biological needs. The areas proposed as revised critical habitat 
consist of flowing stream habitat, although some portions of this 
habitat may experience significant reductions in, or an absence of, 
surface flows during certain portions of the year (such as during 
summer months) or under certain conditions (such as during severe 
droughts, when artificial sources of water are temporarily suspended). 
Some areas that we consider essential to the conservation of the Santa 
Ana sucker may not experience flows except during major storms events. 
However, these areas are critical important components of naturally-
occurring hydrologic and geologic processes in the historical range of 
this species. We have attempted to capture the dynamic nature and 
importance of these processes to the ecological function upon which the 
Santa Ana sucker depends.

Habitats That Are Representative of the Historic Geographical and 
Ecological Distribution of the Species

    The Santa Ana sucker inhabits flowing streams and has not been 
collected from reservoirs (Swift 2001, p. 15; Moyle 2002, p. 184). 
Water depths and velocities, as well as bed substrates, vary over the 
reaches of these streams creating various habitat features including:
    (1) Moderate currents over a uniform, unbroken stream bottom (i.e., 
runs);
    (2) water flowing over gravel and cobble substrates that causes 
ripples to form on the surface of the water (i.e., riffles); and
     (3) deep water areas created by submerged boulders where water is 
cool and relatively still (i.e., pools). Streams in southern California 
are subject to periodic, severe flooding that alters channel 
configuration, in-stream habitat conditions, and vegetation structure 
(Moyle 2002, p. 183). Hence, as stream conditions change, the 
characteristics of stream and bank habitats and their suitability for 
the Santa Ana sucker changes, influencing the distribution of

[[Page 65061]]

the fish over time. Therefore, even stream reaches where flows may 
periodically be interrupted or dewatered become important during 
periods of high flows to allow Santa Ana suckers to move between other 
habitat areas necessary for breeding, feeding, and sheltering.
    Gravel beds in shallow, but clear, flowing stream reaches are 
needed for spawning. Shallow areas with sandy substrates and 
overhanging vegetation are needed to support larvae and fry. Juvenile 
and adult Santa Ana suckers require deeper pools of water for forage, 
shelter during storms, and cover.
    The Santa Ana sucker prefers cool water temperatures and has been 
found in waters between 59 and 82 [deg]F (15 and 28 [deg]C) in the 
Santa Ana River (Swift 2001, p. 18). These cooler water temperatures 
are only maintained in some areas by the upwelling of cooler 
groundwater, tributary flows, or shade from overhanging vegetation. 
Overhanging and in-stream vegetation are also needed for the 
development of an aquatic invertebrate community to supply food for 
adult suckers as well as for protective cover, and shade, which reduces 
water temperature during summer and fall months. Therefore, a complex 
stream system is needed that: (1) Encompasses sand, gravel, cobble, and 
rock substrates; (2) harbors diverse bed morphologies found in deep 
canyons and alluvial floodplains; (3) provides varying water depths and 
velocities; (4) contains tributaries that provide fish with areas of 
refuge (refugia) from predators and during floods and that can also 
provide suitable breeding habitat; and (5) harbors sources of sediment 
for renewal of substrate in occupied areas. The PCEs and the resulting 
physical and biological features essential for the conservation of the 
Santa Ana sucker are derived from studies of this species' habitat, 
ecology, and life history as described below, in the Background section 
in this proposed rule, in the final listing rule published in the 
Federal Register on April 12, 2000 (65 FR 19686), in the designation of 
critical habitat published in the Federal Register on February 26, 2004 
(69 FR 8839), and in the final revised critical habitat published in 
the Federal Register on January 4, 2005 (70 FR 426).

Space for Individual and Population Growth and for Normal Behavior

    Santa Ana suckers use various water depths, depending on their 
life-history stage and activity, and do not occupy all reaches of their 
habitat at any one time (Saiki 2000, p. 19; Haglund and Baskin 2003, p. 
53). Larval- and early-stage juvenile Santa Ana suckers prefer the 
shallow margins of streams in water of 2 to 4 in (5 to 10 cm) in depth; 
as fish mature, they move into deeper water. Adults prefer deep pools 
for feeding and seeking refuge, riffles of varying depths for spawning, 
and riffles and runs of varying depths for movement between pools 
(Haglund et al. 2003, p. 102). For example, in the Santa Ana River, 
adult suckers have been found in diverse habitat areas, including 
shallow runs of less than 4 in (10 cm) in depth, in flowing water up to 
5 ft (150 cm) deep (Saiki 2000, p. 19; Swift 2001, p. 66), and in pools 
6 to 10 ft (200 to 300 cm) deep (Allen 2004). They have been found in 
similarly varying water depths in the San Gabriel River (Saiki 2000, p. 
48), and Saiki speculates that their capture in these various depths is 
reflective of their ability to take advantage of a variety of habitat 
conditions (2000, p. 25). Flows within occupied habitat areas may 
occasionally become very shallow due to seasonal reductions in flow 
volumes or be interrupted as a result of dam operations or releases 
from wastewater treatment plants (such as in the Santa Ana River) in 
some portions of a stream reach. When stream depth is significantly 
reduced, deep pools become a critically important refuge for fish.
    Surface water flows must be present within the stream, but water 
velocities where Santa Ana suckers occur can vary from slight to swift 
(Haglund and Baskin 2003, p. 2). Larvae and fry congregate exclusively 
in almost-still waters, not moving into swifter currents until they 
have matured into later juvenile stages (Swift 2001, pp. 17-18). Swift 
(2001, p. 61) suggests that juvenile fish prefer areas with less water-
velocity than do adults because they can expend less energy maintaining 
their position in the stream. Adult and juvenile Santa Ana suckers in 
the San Gabriel River have been found in waters with bottom velocities 
ranging from 0.17 to 0.51 ft per second (0.05 and 0.15 m per second) 
and mid-column velocities reaching 1.95 ft per second (0.6 m per 
second) (Haglund and Baskin 2002, pp. 38-39). Haglund and Baskin 
concluded that there was no evident pattern in the locations the Santa 
Ana sucker selected relative to water velocity and suggested that 
suckers preferentially seek out locations that provide the best 
combination of habitat parameters (Haglund and Baskin 2003, pp. 39 and 
53). In the Santa Ana River, Santa Ana suckers have been found in areas 
with water velocities of up to 2.4 ft per second (0.74 m per second) 
where wastewater discharges and channelization of the river bed 
increase water velocity (Saiki 2000, pp. 18-19). In the Santa Ana 
River, suckers have historically been found at the Imperial Highway 
Bridge in Orange County (Chadwick and Associates, Inc. 1992, p. 45). 
However, Saiki (2000, p. 28) failed to detect Santa Ana suckers there 
in 1999 and believes the numbers of fish found at this site may have 
declined and become extirpated from the area.
    Stream beds containing the mosaic of rock, cobble, and gravel 
preferred by Santa Ana suckers are most prevalent in the San Gabriel 
River (Saiki 2000, pp. 18-19). Within the Santa Ana River, shifting 
sands are the primary substrate constituent upstream of the Prado 
Basin. Bed substrates containing at least 10 percent gravel, cobble, 
and rock were documented for a distance of 7 mi (12.3 km) downstream 
from the Rialto Drain in 1999 and 2000 (Swift 2001, pp. 4, 68-75). 
Habitat assessments conducted between 2006 and 2008 indicated that 
these substrates fluctuated from 2.6 to 6.0 mi (4.2 to 9.6 km) 
downstream of the Rialto Drain (Thompson et al. 2009, p. 11).
    The distribution of Santa Ana suckers across streams varies 
depending upon bed conditions and stream depth. Santa Ana suckers 
within the San Gabriel River are often found mid-channel adjacent to 
submerged cobble, boulders, or man made structures such as culverts. In 
the Santa Ana River where the streambed is sandier, they are rarely 
found mid-channel, but rather adjacent to shoreline areas near rooted 
vegetation (Saiki 2000, pp. 25, 27). Where preferred habitat conditions 
are absent, Santa Ana suckers make use of available habitats that 
provide some of the same functions provided by preferred habitats 
(Saiki 2000, p. 19).
    The distribution of Santa Ana suckers is also likely dependent on 
in-stream gradient. While several authors have acknowledged that this 
species cannot access high gradient areas, we are not aware of any 
research quantifying the maximum slope passable by the Santa Ana 
sucker. In an attempt to estimate the maximum slope passable by the 
species, we used GIS to analyze the slopes associated with the Santa 
Ana sucker occurrence polygons and points in our database for the Santa 
Ana River, San Gabriel River, and Big Tujunga Creek. Based on our 
analysis, Santa Ana sucker have not been found in areas where the in-
stream slope exceeds 7 degrees. This could be due to the species' 
inability to swim up these higher gradients and/or due to the lack of 
suitable habitat in these areas as a result of higher water velocity 
and a subsequent lack of suitable spawning

[[Page 65062]]

and feeding substrates. Also, the probability of encountering vertical 
barriers (such as waterfalls) increases as the overall slope across a 
given distance increases; therefore, even if habitat is suitable 
upstream, it may be inaccessible to the species. However, more 
extensive analysis is needed to determine the gradient limitations of 
the species and we are seeking additional information on this topic 
(see Public Comments section above).
    A comparative analysis of suckers within the Santa Ana and San 
Gabriel Rivers revealed that only two cohorts are generally present 
within the Santa Ana River, compared with three in the San Gabriel 
River, indicating that few individual suckers live beyond their second 
year of life in the Santa Ana River (Saiki 2000, p. 13). No 
investigations have occurred to determine the relative life-span or 
fecundity of Santa Ana suckers as they relate to habitat conditions. 
However, overall habitat conditions for Santa Ana suckers are generally 
better in the San Gabriel River than in the Santa Ana River, which is 
reflected in the overall greater abundance of fish and better body 
condition of suckers in the San Gabriel River (Saiki 2000, pp. 18-28).

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Suckers are primarily bottom feeders, sucking up algae, small 
invertebrates, and organic detritus from gravel, cobble, rock, and 
other hard surfaces (Moyle 2002, p. 179). Forage for adult Santa Ana 
suckers is also found in pools (Allen 2003, p. 6). Riparian vegetation 
and emergent aquatic vegetation provide additional sources of detritus 
and aquatic invertebrates such as insects (Leidy et al. 2001, p. 5-2). 
Insects may provide a high energy source of food for adult Santa Ana 
suckers (Saiki 2000, p. 23). In a comparative analysis of Santa Ana 
suckers in the Santa Ana and San Gabriel Rivers, Saiki (2000, pp. 27, 
98) found that body condition (length-weight relationship) of suckers 
in the San Gabriel River was better than that of fish in the Santa Ana 
River, possibly due to a greater abundance of food resources (including 
algae and insects) found on the rocky substrate in the San Gabriel 
River relative to the sandy substrate in the Santa Ana River.
    Although the specific tolerances to water-quality variables have 
not been evaluated for the Santa Ana sucker, water temperature, 
dissolved oxygen content, and turbidity (such as excessive detritus in 
the water column or protracted suspension of fine-grained sediments) 
are all important aspects of water quality that affect the physiology 
of fish (California Regional Water Quality Control Board 1995, pp. 4-1 
to 4-15). This species has been found in waters between 59 and 82 
[deg]F (15 and 28 [deg]C) in the Santa Ana River (Swift 2001, p. 18). 
Swift (2001, p. 34) states that although a lethal limit for water 
temperature is unknown, water temperatures much above 86 [deg]F (30 
[deg]C) likely limit distribution and movement of this species. Santa 
Ana suckers are generally more abundant in the cooler waters of the San 
Gabriel River than they are in the warmer waters of the Santa Ana River 
(Saiki 2000, pp. 27-28). Researchers conclude that in addition to 
having poor habitat conditions such as sandy substrate and lack of in-
stream cover, areas of the Santa Ana River may be devoid of Santa Ana 
suckers due to higher water temperatures (Chadwick and Associates, Inc. 
1992, p. 37).
    Adequate dissolved oxygen is necessary for aquatic life and as 
water warms, its concentration of dissolved oxygen drops, stressing 
fish (California Regional Water Quality Control Board, Santa Ana Region 
1995, p. 4-3). In general, waters occupied by Santa Ana suckers are 
high in dissolved oxygen (Saiki 2000, pp. 18-19).
    Santa Ana suckers are more abundant in clear rather than in turbid 
(cloudy or hazy) water conditions (Saiki 2000, pp. 28, 52; 2007, p. 
95). This is most likely because suspended sediments interrupt light 
penetration through the water column, reducing algal growth that is the 
primary forage of the Santa Ana sucker. One measurement of turbidity is 
Nephelometric Turbidity Units (NTU). Saiki (2007, pp. 95-96) found that 
Santa Ana suckers were more abundant in the San Gabriel River where 
turbidity averaged 5.9 NTUs (ranging from 4.3 to 8.2 NTUs), and less 
abundant in the Santa Ana River where turbidity averaged 29 NTUs 
(ranging from 10.1 to 83.4 NTUs). However, Santa Ana suckers have been 
found in the Santa Ana River in an area where turbidity was measured 
between 85 and 112 NTUs (Baskin and Haglund 2001, p. 6). Therefore, 
while Santa Ana suckers likely avoid turbid waters when possible, they 
have been documented in turbid conditions on occasion (Haglund et al. 
2002, p. 11). Saiki (2000, p. 25) speculates that fish occur under 
less-than-optimal ambient conditions because they are using whatever 
habitat is available to them and cites these conditions as a possible 
reason for reduced abundance of Santa Ana suckers in the Santa Ana 
River relative to their abundance in the San Gabriel River.
    Multiple wastewater treatment plants discharge into the Santa Ana 
River and its tributaries and account for most of the dry-season flows 
within the river (California Regional Water Quality Control Board 1995, 
pp. 1-7). The City of San Bernardino Municipal Water District's Rapid 
Infiltration and Extraction Facility, Rialto Treatment Plant, and the 
City of Riverside Regional Water Quality Control Plant all discharge 
into the Santa Ana River. As a result of rising groundwater, nonpoint 
source urban runoff, and these wastewater discharges, perennial flows 
are maintained from the vicinity of the Rialto Drain and downstream. 
Although these discharges contain contaminants not found in natural 
runoff, there is no evidence that the concentrations of regulated 
compounds found in Santa Ana suckers in this river exceed mean 
concentrations found in freshwater fish in other areas of the United 
States (Saiki 2000, p. 24).

Cover or Shelter

    In-stream emergent and overhanging riparian vegetation along the 
banks of stream courses provide shade, shelter, and cover for fry, 
juvenile, and adult Santa Ana suckers. Shading is very important to 
Santa Ana suckers that inhabit shallow waters because it reduces water 
temperatures due to high summer ambient temperatures. A complex stream 
system containing submerged boulders, deep pools, and undercut banks 
provides cover and shelter for juvenile and adult Santa Ana suckers 
(Saiki et al. 2007, p. 99; Moyle et al. 1995, p. 202). Tributaries may 
provide important shallow-water refugia for larvae and fry from larger, 
predatory fish and act as refugia for juvenile and adult Santa Ana 
suckers during storms.

Sites for Breeding, Reproduction, and Rearing (or Development) of 
Offspring

    Adult Santa Ana suckers spawn over gravel beds in flowing water 
(riffles) where the female deposits the eggs in fine gravel substrate. 
Substrate collected from two spawning locations in tributaries to the 
Santa Ana River consisted of gravel-sized particles ranging in diameter 
from 0.04 to 1.6 in (1.0 to 41.5 mm) (Haglund et al. 2001, p. 47). The 
presence of appropriately sized substrate allows for water flow around 
eggs to prevent sediment from depositing on and smothering the eggs. 
Eggs deposited on sand or silt are likely to be washed downstream or be 
smothered. In addition to appropriate substrate, adequate water 
velocities are necessary to oxygenate eggs. Santa Ana sucker spawning 
has been reported in streams with bottom velocities of 0.65

[[Page 65063]]

and 0.77 ft per second (0.20 and 0.23 m per second) (Haglund et al. 
2003, p. 63).
    Once emerged from the eggs, Santa Ana sucker larvae congregate in 
shallow, slow-moving waters from 1 to 5.5 in (3 to 14 cm) deep over 
very soft sand or mud substrate (Haglund et al. 2003, p. 11; Haglund et 
al. 2002, pp. 69-71; Swift 2001, p. 17). This type of habitat is 
usually found along the margins of streams in proximity to emergent 
vegetation. Fry are found almost exclusively in edgewater habitats over 
silt or sand in water depths of less than 7 in (17 cm) where there is 
little measurable flow; Haglund and Baskin (2003, p. 47) speculate this 
reduces access by larger predatory fish and, because shallow waters are 
warmer, may increase the growth rates of developing suckers. Juvenile 
fish move away from edgewater habitats and congregate at the interface 
of the almost-still waters at the adjacent bank-edge and the main 
stream flows (Swift 2001, pp. 17-18). By the end of their first summer, 
juvenile Santa Ana suckers move into deeper water habitats with adults, 
presumably because they are large enough to compete with adult suckers 
for forage (Swift 2001, p. 18).
    Tributaries may provide essential spawning habitat for the Santa 
Ana sucker, particularly in the Santa Ana River (Chadwick and 
Associates, Inc. 1992, p. 49; Chadwick Ecological Consultants, Inc. 
1996, p. 16; Haglund et al. 2002, pp. 54-60). An abundance of juvenile 
fish has been recorded in multiple tributaries in the Santa Ana River 
(such as the Tequesquite Arroyo and the Evans and Anza drains) and, 
hence, these have been considered possible spawning sites (Chadwick and 
Associates, Inc. 1992, p. 49). However, Swift (2001, p. 26) concluded 
that the species may be attracted to tributaries due to the relatively 
colder water temperatures found there. He stated that most tributaries 
to the Santa Ana River lack either suitable substrates or water 
velocities to support successful spawning. Swift (2001, p. 26) 
considered that only the Rialto Drain and Sunnyslope Creek provided 
habitat conditions suitable to support spawning. These sites are two of 
the few remaining areas containing gravel beds, and restoration may be 
required to maintain substrate conditions over time (Orange County 
Water District (OCWD) 2009, pp. 6-4 - 6-5).

Primary Constituent Elements for the Santa Ana Sucker

    Pursuant to the Act and its implementing regulations, we are 
required to identify the physical and biological features within the 
geographical area occupied by the Santa Ana sucker at the time of 
listing that are essential to the conservation of the species and which 
may require special management considerations or protection. The 
physical and biological features are those PCEs laid out in a specific 
spatial arrangement and quantity determined to be essential to the 
conservation of the species. We are proposing to designate critical 
habitat in areas within the geographical area that were occupied by the 
species at the time of listing that are and continue also currently to 
be occupied today, and that contain the PCEs in the quantity and 
spatial arrangement to support life history functions essential for the 
conservation of the species. We are also proposing to designate areas 
outside the geographical area occupied by the species at the time of 
listing that are not occupied but are essential to the conservation of 
the species. See Criteria Used To Identify Critical Habitat section 
below for a discussion of the species' geographic range.
    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 proposing 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 within the historical 
geographic range of the Santa Ana sucker that experiences peaks and 
ebbs in the water volume (either naturally or regulated) necessary to 
maintain all life stages of the species, including adults, juveniles, 
larva, and eggs, in the riverine environment,
    (2) Stream channel substrate consisting of a mosaic of loose sand, 
gravel, cobble, and boulder substrates in a series of riffles, runs, 
pools, and shallow sandy stream margins necessary to maintain various 
life stages of the species, including adults, juveniles, larva, and 
eggs, in the riverine environment;
    (3) Water depths greater than 1.2 in (3 cm) and bottom water 
velocities greater than 0.01 ft per second (0.03 m per second);
    (4) Clear or only occasionally turbid water;
    (5) Water temperatures less than 86[deg] F (30[deg] C);
    (6) In-stream habitat that includes food sources (such as 
zooplankton, phytoplankton, and aquatic invertebrates), and associated 
vegetation such as aquatic emergent vegetation and adjacent riparian 
vegetation to provide: (a) Shading to reduce water temperature when 
ambient temperatures are high, (b) shelter during periods of high water 
velocity, and (c) protective cover from predators; and
     (7) Areas within perennial stream courses that may be periodically 
dewatered, but that serve as connective corridors between occupied or 
seasonally occupied habitat and through which the species may move when 
the habitat is wetted.
     All occupied units proposed as critical habitat contain the PCEs 
in the appropriate quantity and spatial arrangement essential to the 
conservation of this species and support multiple life processes for 
the Santa Ana sucker.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the physical 
and biological features within the geographical area occupied by the 
species at the time of listing that are essential to the conservation 
of the species may require special management considerations or 
protection.
    All areas included in our proposed revision of critical habitat 
will require some level of management to address the current and future 
threats to the physical and biological features essential to the 
conservation of the Santa Ana sucker. Special management considerations 
or protection may be required to minimize habitat destruction, 
degradation, and fragmentation associated with the following threats, 
among others: water diversion; alteration of stream channels and 
watersheds; reduction of water quantity associated with urban 
development and human recreational activities, including swimming, 
construction and operation of golf courses; and off-highway vehicle 
(OHV) use. For discussion of the threats to the Santa Ana sucker and 
its habitat, please see the Summary of Comments and Recommendations and 
Summary of Factors Affecting the Species sections of the final listing 
rule (65 FR 19686; April 12, 2000) and the Public Comments and Critical 
Habitat Unit Descriptions sections of the final critical habitat rule 
(70 FR 439; January 4, 2005). Please also see Critical Habitat Units 
section below for a discussion of the threats in each proposed critical 
habitat unit.
    In addition to the threats to the Santa Ana sucker and its habitat 
described in the final listing and critical habitat

[[Page 65064]]

rules, the physical and biological features essential to the 
conservation of the Santa Ana sucker may require special management 
considerations or protection to minimize habitat destruction, 
degradation, and fragmentation associated with the construction of 
recreational dams, the operation of recreational residences, and the 
construction of road crossings and bridges across waterways.

Recreational Dams

    People construct artificial dams from boulders, logs, and trash to 
create pools within these rivers for fishing, swimming, wading, and 
bathing (Ally 2003, p. 1). The construction of ``recreational'' dams 
degrades in-stream and possibly bank habitat, increases turbidity (PCE 
4), disrupts sediment transport, and impedes upstream movement of Santa 
Ana suckers, especially during droughts (Ally 2003, pp. 1-3), thereby 
fragmenting habitat connectivity within occupied habitat. When dams 
exist during the spawning season, these in-stream disruptions can bury 
gravel beds (PCE 2) used for spawning (Ally 2003, p. 1). Recreational 
dams can also further degrade habitat by slowing water velocities (PCE 
3), increasing water temperatures (PCE 5), and encouraging excessive 
growth of algae (Ally 2003, p. 3).

Recreational Residences

    The U.S. Forest Service (USFS) issues special use permits for the 
operation and maintenance of private recreational residences within the 
boundaries of the Angeles National Forest along Big Tujunga Creek and 
the North and West Forks of the San Gabriel River. Improperly 
functioning septic systems at these residences can degrade water 
quality conditions by increasing nutrient loads into the water (USFS BA 
2007, p. 18) and increasing water turbidity (PCE 4).

Road Crossings and Bridges

    Road crossings and bridges constructed across waterways can impact 
the Santa Ana sucker by creating semi permanent barriers to upstream 
movement and fragmenting connective corridors between areas of occupied 
habitat. Bridge footings and pier protections (such as concrete aprons 
that span the waterway) accelerate water velocities (PCE 3) and, in the 
absence of sediment in the water (PCE 2), scour sediments from the 
streambed immediately downstream. With sufficient scouring, the 
elevation of the downstream bed of the stream may become so low that 
Santa Ana suckers cannot swim upstream from that point; scouring can 
also create pools that favor predatory nonnative fish. Culverts 
constructed under road crossings can act as barriers to movement when a 
culvert becomes filled in with sediment, reducing the amount of water 
(PCE 1) and sediment (PCE 2) that could be transported downstream. 
However, the extent to which these structures constitute permanent or 
temporary barriers depends on the quantity of water flowing and 
sediment transport in a given year and over time. For example, 
sediment-filled culverts that create a barrier to movement one year may 
be passable in another year if high water flows remove trapped 
sediments. Road crossings and bridges can also impact the species by 
altering the hydrology of the system (PCE 1), rerouting water flow into 
less suitable habitat.

Criteria Used To Identify Critical Habitat

    Using the best scientific and commercial data available as required 
by section 4(b)(1)(A) of the Act, we identified those areas to propose 
for revised designation as critical habitat that, within the 
geographical area occupied by the species at the time of listing (see 
Geographic Range and Status section), possess those physical and 
biological features essential to the conservation of the Santa Ana 
Sucker and which may require special management considerations or 
protection. We also considered the area outside the geographical area 
occupied by the species at the time of listing for any areas that are 
essential for the conservation of the Santa Ana Sucker.
    At the time the Santa Ana sucker was listed in 2000, the 
geographical area occupied by the species was considered to include the 
Los Angeles, San Gabriel, and Santa Ana River basins (65 FR 19686; 
April 12, 2000). Specifically, the listing rule identifies the 
following areas in each river basin as being within the geographic 
range occupied by the species: (1) The Santa Ana River basin including 
the Santa Ana River below Prado Dam, the Santa Ana River above Prado 
Dam to the City of Riverside, and the following tributaries: 
Tequesquite Arroyo, Sunnyslope Channel, and Anza Park Drain; (2) the 
San Gabriel River basin, including the West, North, and East forks of 
the San Gabriel River and Bear [Canyon] Creek, which is a tributary of 
the West Fork of the San Gabriel River; and (3) the Los Angeles River 
basin, including Big Tujunga Creek, between Big Tujunga Dam and Hansen 
Dam, and Haines Creek.
    For the purposes of this proposed revised critical habitat 
designation for the Santa Ana sucker, the geographical area occupied by 
the species at the time of listing is defined to include those areas 
specifically identified in the listing rule (65 FR 19686; April 12, 
2000), as well as the following additional areas not specifically 
identified in the listing rule but documented to be occupied at the 
time of listing and documented to be currently occupied: (1) In the 
Santa Ana River system: Rialto Drain; and (2) in the San Gabriel River 
system: Big Mermaids Canyon Creek, West Fork of Bear Creek, Bichota 
Canyon Creek, Cattle Canyon Creek, and Cow Canyon Creek. The following 
areas were not specifically identified in the listing rule and are not 
currently occupied, and therefore, are considered outside the 
geographical area occupied by the species at the time of listing: The 
upper Santa Ana River, including City and Mill Creeks and the Santa Ana 
River (above Tippecanoe Road in San Bernardino County to above Seven 
Oaks Dam), and the following three tributaries to Big Tujunga Creek: 
Gold Canyon, Delta Canyon, and Stone Canyon Creeks.
    As required by section 4(b)(2) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of the Santa Ana sucker 
that are those physical and biological features laid out in the 
appropriate quantity and spatial arrangement for the conservation of 
the species (see the Physical and Biological Features section). The 
Methods section summarizes our methodology used for this proposed 
revised critical habitat. We are proposing to include all areas within 
the geographical area occupied by the listed Santa Ana sucker at the 
time of listing following Criteria 1 through 3 below. These areas are 
all currently occupied. We are also proposing to include areas that 
were not within the geographical area occupied by the species at the 
time of listing and are not currently occupied but that are essential 
to the conservation of the species following Criteria 4 through 8 
below. This proposed revised rule is an effort to update our 2005 final 
designation of critical habitat for the Santa Ana sucker with the best 
available data. In some areas that were analyzed in 2005, we have new 
information that led us to either add or remove areas from this 
proposal to revise critical habitat.
    For areas within the geographic area occupied by the species at the 
time of listing, we delineated critical habitat unit boundaries using 
the following steps:

[[Page 65065]]

     (1) We mapped historical and current digital occurrence data for 
the Santa Ana sucker in the form of polygons and points on the digital 
aerial photography using ArcMap 9.3.1 (ESRI 2009). Areas between 
occupancy polygons or points were assumed to be occupied if there were 
no significant in-stream barriers (such as dams, culverts, or drop 
structures) preventing further movement between occupied stream 
sections. We utilized imagery acquired in Spring 2008 at 1-ft (0.33 m) 
resolution for the Santa Ana River Unit in Riverside County and imagery 
acquired in January 2006 at 1-ft (0.33 m) resolution for the San 
Gabriel and Big Tujunga units provided by the U.S. Geological Survey; 
and we utilized imagery acquired in Spring 2005 at 3.25 ft (1 m) 
resolution provided by the National Aerial Imagery Program (NAIP) for 
the Santa Ana River Unit in Orange County. The resolution of the 
imagery allowed us to discern the likelihood of an in-stream barrier.
    We recognize that the historical and recent collection records for 
this species are incomplete. River segments or small tributaries not 
included in this proposed designation may harbor small limited 
populations of the Santa Ana sucker or may become occupied in the 
future.
     (2) Using aerial imagery, we delineated the lateral extent (width) 
of the proposed revised critical habitat associated with occupied areas 
to include areas that provide sufficient riverine and associated 
floodplain area for breeding, feeding, and sheltering of adult and 
juvenile Santa Ana suckers and for the habitat needs of larval stages 
fishes. Given the dynamic nature of these streams and the seasonal 
variation of the quantity of flow and the location of stream channels 
in any given year, we delineated the lateral extent of the proposed 
revised critical habitat to encompass the entire floodplain up to the 
lower edge of upland riparian vegetation or to the edge of a permanent 
barrier (such as a levee). Areas within the lateral extent contribute 
to the PCEs since they contain: (a) A functioning hydrological system 
characterized by peaks and ebbs in the water volume (PCE 1); (b) 
complex channels (such as alluvial fans and braided channels) and a 
mosaic of loose sand, gravel, cobble, and boulder substrates in a 
series of riffles, runs, pools, and shallow sandy stream margins (PCE 
2); and (c) adjacent riparian vegetation (PCE 6).
    The presence of PCEs may be seasonally variable and sporadic in 
distribution because of the dynamic nature of these streams and 
seasonal variation of flows in these streams throughout the year. Areas 
that may be seasonally lacking in PCEs and contain marginal habitat 
were included if they were contiguous with areas containing one or more 
of the PCEs and contribute to the hydrologic and geologic processes 
essential to the ecological function of the system. These areas are 
essential to maintain connectivity (PCE 7) within populations, allow 
for species movement throughout the course of a given year, and allow 
for population expansion.
     (3) Using aerial imagery, we delineated the upstream and 
downstream extents of the proposed revised critical habitat associated 
with areas within the geographical area occupied at the time of listing 
from the nearest occurrence polygon or point to either the point of a 
natural or manmade barrier or to the point where the in-stream gradient 
exceeds a 7 degree slope, either of which would prevent further 
movement of the Santa Ana sucker.
    While several authors have acknowledged that this species cannot 
access high gradient areas, we are not aware of any research 
quantifying the maximum slope passable by the Santa Ana sucker. 
Therefore, in an attempt to estimate the maximum slope passable by the 
species, we used GIS to analyze the slopes associated with the Santa 
Ana sucker occurrence polygons and points in our database for the Santa 
Ana River, San Gabriel River, and Big Tujunga Creek. Based on our 
analysis, Santa Ana sucker have not been found in areas where the in-
stream slope exceeds 7 degrees. In the absence of existing research on 
this subject, we made the assumption that a slope of 7 degrees 
constitutes the maximum in-stream gradient passable by the Santa Ana 
sucker and applied this assumption when delineating the upstream extent 
of the proposed revised critical habitat in the San Gabriel River 
system (Big Mermaids Canyon Creek, Bear Canyon Creek, West Fork of Bear 
Creek, Bichota Canyon Creek, Cattle Canyon Creek, and Cow Canyon 
Creek).
    As discussed in the Physical and Biological Features section above, 
the absence of the species in these high gradient areas could be due to 
the species' inability to swim up these higher gradients and/or due to 
the lack of suitable habitat in these areas as a result of higher water 
velocity and a subsequent lack of suitable spawning and feeding 
substrates. Therefore, we assume these high gradient (greater than 7 
degrees) areas do not contain the features essential to the 
conservation of the species.
     (4) For areas outside the geographical area occupied by the 
species at the time it was listed, we evaluated stream reaches to 
determine if additional occupied or unoccupied areas are essential to 
the conservation of this species and should be included in the proposed 
revised designation. We determined that certain areas outside the 
geographical area occupied by the species at the time it was listed are 
essential to the conservation of the species because they provide storm 
waters (PCE 1) necessary to transport sediments to maintain preferred 
substrate conditions (PCE 2) in occupied portions of the species' range 
or to provide habitat for potential reintroduction of the Santa Ana 
sucker.
    (a) For the San Gabriel River, we determined that the areas within 
the geographical area occupied by the species at the time of listing 
and currently occupied are adequate for the conservation of the species 
based on our current understanding of the species' requirements. 
However, as discussed in the Critical Habitat section above, we 
recognize that designation of critical habitat may not include all 
habitat areas that we may eventually determine are necessary for the 
recovery of the species and that for this reason, a critical habitat 
designation does not signal that habitat outside the designated area is 
unimportant or may not promote the recovery of the species.
    (b) In the Santa Ana River, we determined that the following areas 
outside the geographical area occupied by the species at the time of 
listing are essential for the conservation of the species: Mill Creek, 
City Creek, and the Santa Ana River above Seven Oaks Dam. Mill Creek 
has never been documented as being occupied by the Santa Ana sucker. 
City Creek and the Santa Ana River above Seven Oaks Dam are not 
currently occupied, but were historically occupied based on a 1982 
California Natural Diversity Database record and a 1940 Museum of 
Zoology Fish Collection database record, respectively.
    We determined that Mill and City Creeks are essential to the 
conservation of the species because these creeks provide greater 
quantities, relative to other creeks in the river system, of stream and 
storm waters (PCE 1) necessary to transport sediments necessary to 
maintain preferred substrate (PCE 2) conditions in occupied portions in 
the Santa Ana River. Using aerial imagery, we determined that Mill and 
City Creeks have large, unimpeded watersheds, relative to the other 
tributaries flowing into the upper Santa Ana River, based on the 
following morphological characteristics: (a) A wide floodplain area; 
(b) the presence of complex channels (such as braided

[[Page 65066]]

channels); and (c) a mosaic of loose sand, gravel, cobble, and boulder 
substrates in a series of riffles, runs, pools, and shallow sandy 
stream margins (PCE 2). Given the extent to which the hydrology and the 
habitat of the occupied section of the Santa Ana River have been 
altered and degraded due to the construction and operation of flood 
control structures (such as Prado and Seven Oaks Dams) and operation of 
water treatment facilities, maintenance of City and Mill Creeks as 
pathways to transport water (PCE 1) and sediments necessary to maintain 
preferred substrates (PCE 2) to the Santa Ana River is essential to the 
conservation of the species.
    City Creek, along with the Santa Ana River above Seven Oaks Dam, 
also contains features essential to the conservation of the species 
(PCEs 1, 2, and 6) and we determined that both areas are essential to 
the conservation of the species to provide habitat for potential 
reintroduction of the Santa Ana sucker (see Critical Habitat Units 
section below for additional discussion).
    (c) In Big Tujunga Creek, we determined that the following 
unoccupied areas outside the geographical area occupied by the species 
at the time of listing are essential for the conservation of the 
species -- Gold Canyon, Delta Canyon, and Stone Canyon Creeks --because 
these areas provide greater quantities, relative to other creeks in the 
river system, of stream and storm waters (PCE 1) necessary to transport 
sediments necessary to maintain preferred substrate (PCE 2) conditions 
in occupied portions in Big Tujunga Creek. Using aerial imagery, we 
determined that Gold Canyon, Delta Canyon, and Stone Canyon Creeks have 
large, unimpeded watersheds, relative to the other tributaries flowing 
into Big Tujunga Creek, based on the following morphological 
characteristics: (a) A wide floodplain area; (b) the presence of 
complex channels (such as braided channels); and (c) a mosaic of loose 
sand, gravel, cobble, and boulder substrates in a series of riffles, 
runs, pools, and shallow sandy stream margins (PCE 2). Given the extent 
to which the hydrology and the habitat of the occupied section of Big 
Tujunga Creek have been altered and degraded due to the construction 
and operation of flood control structures (such as Big Tujunga and 
Hansen Dams, maintenance of Gold Canyon, Delta Canyon, and Stone Canyon 
Creeks as pathways to transport water (PCE 1) and sediments necessary 
to maintain preferred substrates (PCE 2) in Big Tujunga Creek is 
essential to the conservation of the species.
    While we are not aware of any surveys for the Santa Ana sucker 
conducted in these creeks, based on our calculation of maximum slope 
(see Criterion 3 above), it appears that the slope of Delta Canyon and 
Stone Canyon Creeks from near their confluence with Big Tujunga Creek 
is likely too steep to be passable by the Santa Ana sucker. The slope 
of Gold Canyon Creek from approximately 0.49 mi (0.8 km) from its 
confluence with Big Tujunga Creek also appears to be too steep to be 
passable by the Santa Ana sucker.
     (5) Using aerial imagery, we delineated the lateral extent of 
proposed revised critical habitat in City Creek and the Santa Ana River 
above Seven Oaks Dam as described under Criterion 2 above to encompass 
the entire floodplain up to the lower edge of upland riparian 
vegetation or to the edge of a permanent barrier (such as a levee) to 
provide sufficient riverine and associated floodplain areas for 
breeding, feeding, and sheltering of adult, larval, and juvenile Santa 
Ana suckers that may be reintroduced into these areas in the future.
     (6) Using aerial imagery, we delineated the lateral extent of 
proposed revised critical habitat in Mill, Gold Canyon, Delta Canyon, 
and Stone Canyon Creeks, to include areas containing: (a) A wide 
floodplain area; (b) complex channels (such as alluvial fans and 
braided channels); and (c) a mosaic of loose sand, gravel, cobble, and 
boulder substrates in a series of riffles, runs, pools, and shallow 
sandy stream margins (PCE 2) needed to provide stream and storm waters 
(PCE 1) necessary to transport sediments to maintain preferred 
substrate conditions (PCE 2) in the downstream occupied portions of the 
Santa Ana River and Big Tujunga Creek, respectively.
     (7) We delineated the upstream limits of proposed revised critical 
habitat in Mill, Gold Canyon, Delta Canyon, and Stone Canyon Creeks by 
identifying the upstream origin of sediment transport in these 
tributaries to provide stream and storm waters (PCE 1) necessary to 
transport sediments to maintain preferred substrate conditions (PCE 2) 
in the downstream occupied portions of the Santa Ana River and Big 
Tujunga Creek, respectively. Using aerial imagery, we determined the 
origin of sediment transport in each creek to be the upstream area 
where complex channels (such as alluvial and braided channels) 
containing a mosaic of loose sand, gravel, cobble, and boulder 
substrates in a series of riffles, runs, pools, and shallow sandy 
stream margins (PCE 2) are visible.
     (8) We delineated the upstream and downstream extents of the 
proposed revised critical habitat in historically occupied areas of 
City Creek and the Santa Ana River above Seven Oaks Dam using the same 
methodology as described under Criterion 3 above by extending the 
boundary from the nearest occurrence polygon or point to either the 
point of a natural or manmade barrier or to the point where the in-
stream gradient exceeds a 7 degree slope, both preventing further 
movement of the Santa Ana sucker.
    When determining the critical habitat boundaries within this 
proposed revised rule, we made every effort to avoid including 
developed areas such as lands covered by buildings, pavement, and other 
structures, because such lands lack essential features for the Santa 
Ana sucker. The scale of the maps we prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect the 
exclusion of all such developed lands. Any such structures and the land 
under them inadvertently left inside critical habitat boundaries shown 
on the maps of this proposed revised critical habitat are excluded by 
text in this proposed revised rule. Therefore, a Federal action 
involving these lands would not trigger section 7 consultation with 
respect to critical habitat and the requirement of no destruction or 
adverse modification unless the specific action may affect adjacent 
critical habitat.

Summary of Changes From Previously Designated Critical Habitat

    The areas identified in this proposed rule constitute a revision of 
the areas designated as critical habitat for the Santa Ana sucker on 
January 4, 2005 (70 FR 426). In the 2005 final rule, we designated 
8,305 ac (3,361 ha) of critical habitat in Units 2 and 3 in Los Angeles 
County. In the 2005 final rule, we removed all of Subunit 1A (Northern 
Prado Basin; 3,535 ac (1,431 ha)) and Subunit 1B (Santa Ana Wash; 8,174 
ac (3,308 ha)) in San Bernardino County from the critical habitat 
designation (see below for additional discussion), and excluded the 
remainder of Unit 1 (15,414 ac (6,238 ha)) in San Bernardino, 
Riverside, and Orange Counties under Section 4(b)(2) of the Act. In 
this proposed revised rule, we propose to designate a total of 9,605 ac 
(3,887 ha) in San Bernardino, Riverside, Orange, and Los Angeles 
Counties, as critical habitat for the Santa Ana sucker. Of this total, 
the Secretary is considering exercising his discretion under Section 
4(b)(2) of the Act to

[[Page 65067]]

exclude 5,472 ac (2,214 ha) in Subunits 1B and 1C (the areas roughly 
corresponding to that portion of Unit 1 excluded under Section 4(b)(2) 
in the 2005 final rule) in San Bernardino, Riverside, and Orange 
Counties. We also propose to designate 1,900 ac (768 ha) in Subunit 1A 
[this area corresponds roughly to the area identified as Subunit 1B 
(Santa Ana Wash) in the 2005 final rule and determined to be 
``nonessential'' and removed from critical habitat in the final rule]. 
Table 1 below outlines the changes in areas in each unit or subunit 
between the 2005 final critical habitat rule and this proposed revised 
critical habitat rule.

   TABLE 1. A comparison of the areas [in acres (ac) (hectares (ha))] identified as containing features essential to the conservation of the Santa Ana
  sucker in the 2005 final critical habitat (FCH) designation and this 2009 proposed revised critical habitat (PRCH) designation. (Values in this table
                                                              may not sum due to rounding.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        2005 FCH                                       2009 PRCH
                                    ----------------------------------------------------------------------------------------------   Difference  (2009
               County                                            Area containing                               Area containing      PRCH minus 2005 FCH)
                                          Unit/Subunit         essential features         Unit/Subunit       essential  features
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Bernardino                       Subunit 1A: 3,535 ac    0 ac                    Not proposed           0 ac                   0 ac
                                      (1,431 ha) determined  (0 ha)................                         (0 ha)...............  (0 ha)
                                      to be nonessential
                                      and removed from 2005
                                      designation.
                                    --------------------------------------------------------------------------------------------------------------------
                                     Subunit 1B: 8,174 ac    0 ac                    Subunit 1A             1,900 ac               1,900 ac
                                      (3,308 ha) determined  (0 ha)................                         (768 ha).............  (768 ha)
                                      to be nonessential
                                      and removed from
                                      final 2005
                                      designation.
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Bernardino and Riverside         Unit 1: excluded under  15,414 ac               Subunit 1B             4,705 ac               -9,942ac
                                      section 4(b)(2) of     (6,238 ha)............                         (1,903 ha)...........  (-4,023ha)
                                      the Act.
------------------------------------                                                ----------------------------------------------
Riverside and Orange                                                                 Subunit 1C             767 ac                 .....................
                                                                                                            (311 ha).............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Los Angeles                          Unit 2                  5,765 ac                Unit 2                 1,000 ac               - 4,765 ac
                                                             (2,333 ha)............                         (405 ha).............  (-1,928 ha)
                                    --------------------------------------------------------------------------------------------------------------------
                                     Unit 3                  2,540 ac                Subunit 3a             1,189 ac               -1,307 ac
                                                             (1,028 ha)............                         (481 ha).............  (529 ha)
                                                                                    ----------------------------------------------
                                                                                     Subunit 3b             44 ac                  .....................
                                                                                                            (18 ha)..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
          Totals                     -------------------     31,893 ac\3\            ----------             9,605 ac               -14,114 ac
                                                             (12,907 ha)...........                         (3,887 ha)...........  (-5,712 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As described below, some areas designated in the 2005 final rule 
are not being proposed as critical habitat in this proposed revised 
rule. Also, some areas are being proposed as critical habitat that were 
omitted from the 2005 final rule because we have subsequently concluded 
that these areas are essential to the conservation of the species. 
These changes resulted in an overall addition of 1,300 acres in this 
proposed revised rule from the 2005 final designation but a reduction 
of approximately 14,114 ac (5,712 ha) from the number of acres 
identified as essential in the 2005 final rule. These differences 
primarily resulted from the following changes to all of the units 
included in this proposed revised rule, as well as unit-specific 
revisions discussed below.
     (1) Enhanced resolution of aerial imagery allowed us to improve 
our mapping methodology to more accurately define the critical habitat 
boundaries and to better represent those areas that possess the 
physical and biological features essential to the conservation of the 
species. In the 2005 final rule, we used a 100-meter grid to delineate 
critical habitat. In this proposed revised rule, we delineated areas 
that contain the PCEs using current aerial imagery (see Criteria Used 
To Identify Critical Habitat section of this proposed revised rule). 
This revised mapping method resulted in a significant overall decrease 
in the areas deemed essential and included in the proposed revised 
critical habitat boundaries. However, even with more refined mapping 
methods, we acknowledge the possibility that, due to mapping, data, and 
resource constraints, there may be some undeveloped areas mapped as 
critical habitat that do not contain the PCEs.
     (2) We revised the criteria used to identify critical habitat in 
the Santa Ana River, the San Gabriel River, and Big Tujunga Creek. The 
revised criteria allowed us to more precisely delineate the upstream 
boundaries of areas determined to contain the physical and biological 
features essential to the conservation of the species. We described the 
criteria and methods we used to identify and delineate the areas that 
we are proposing as critical habitat in more detail than we did in the 
2005 critical habitat designation to ensure

[[Page 65068]]

that the public better understands why the areas are being proposed as 
critical habitat (see Criteria Used To Identify Critical Habitat 
section of this proposed revised rule for a detailed discussion).
     (3) We reevaluated areas included in the 2005 final critical 
habitat designation to determine if those areas contain the physical 
and biological features essential to the conservation of the Santa Ana 
sucker or are otherwise essential to the conservation of the species. 
As a result, some areas designated as Santa Ana sucker critical habitat 
in 2005 have been removed from this proposed revised rule (as described 
below) because they do not contain the physical and biological features 
required by the Santa Ana sucker and are not otherwise essential to the 
species' conservation.
    Major revisions in each unit include the following:

Unit 1: Santa Ana River (San Bernardino, Riverside, and Orange 
Counties)

    (1) In the 2005 critical habitat rule, we excluded all of Unit 1 
(15,414 ac (6,238 ha)) from final critical habitat under section 
4(b)(2) of the Act. In this revised proposed rule, we are proposing to 
designate a total of 5,472 ac (2,214 ha) as critical habitat in 
Subunits 1B and 1C. Subunits 1B and 1C correspond roughly to Unit 1 in 
the 2005 final rule. The 9,942-ac (4,023-ha) difference between the 
area identified as Unit 1 in the 2005 final rule and Subunits 1B and 1C 
in this proposed revised rule is primarily due to the following 
revisions:
    (a) In the 2005 critical habitat rule, numerous tributaries and 
channels that drain into the Santa Ana River were included in Unit 1., 
which was excluded in that rule. In this revised proposed rule, we 
removed from Subunits 1B and 1C (the area roughly corresponding roughly 
to Unit 1 in the 2005 final rule) the following tributaries and 
channels (because these areas do not contain the physical and 
biological features essential to the conservation of the species (from 
North to South).
     1.2 mi (1.9 km) urban drainage through Lake Evans;
     1.3 mi (2.1 km) urban drainage through Hole Lake;
     0.9 mi (1.4 km) urban drainage (north side of the Santa 
Ana River (SAR), east of Pedley);
     2.3 mi (3.7 km) urban drainage (north side of SAR, west of 
Pedley);
     1.0 mi (1.5 km) urban drainage up Lucretia Avenue;
     0.3 mi (0.47 km) urban drainage up Norco Rd. near 
California Rehabilitation Center;
     2.1 mi (3.4 km) of Temescal Wash north of Corona Municipal 
Airport;
     0.9 mi (1.5 km) urban drainage north of Temescal Wash; and
     1.0 mi (1.7 km) urban drainage south of Corona Municipal 
Airport.
    (b) In the 2005 final critical habitat rule, the Prado Basin where 
Chino and Temescal Creeks and the Santa Ana River converge was included 
in Unit 1, which was excluded in that final rule. In this revised 
proposed rule, we removed 4,476 ac (1,811 ha) of the Prado Basin where 
Chino and Temescal Creeks and the Santa Ana River converge because 
these areas do not contain the physical and biological features 
essential to the conservation of the species.
    (2) In the 2005 final rule, we removed all of Subunit 1B (Santa Ana 
Wash; 8,174 ac (3,308 ha)) from critical habitat because we determined 
this area to be ``nonessential.'' We have revisited that determination 
and conclude that portions of the area identified as Subunit 1B in the 
2005 rule are essential for the conservation of the Santa Ana sucker. 
Creeks and rivers in Subunit 1B provide stream and storm waters (PCE 1) 
required to transport sediments that are necessary to maintain 
preferred substrate (PCE 2) conditions in occupied portions in the 
Santa Ana River. These waters are critical to maintaining habitat for 
populations of Santa Ana sucker in the Santa Ana River, one of only 
three geographical areas where the listed entity survives. Protecting 
existing habitat on which the Santa Ana River populations depend is 
essential for the recovery of this species. Based on our reevaluation 
of this area, we are proposing to designate 1,626 ac (658 ha) in City 
and Mill Creeks and the Santa Ana River (below Seven Oaks Dam) as part 
of Subunit 1A, which composes a portion of Subunit 1B in the 2005 final 
rule.
    Some portions of the Santa Ana Wash area identified as part of 
Subunit 1B in the 2005 rule do not contain the physical and biological 
features essential to the conservation of the species, and we have not 
included them as part of proposed Subunit 1A. Also, as part of Subunit 
1A of this proposed revised rule, we are proposing to designate a 273-
ac (110-ha) area of the Santa Ana River above the Seven Oaks Dam. This 
area has not been included in any previous proposed or final critical 
habitat designations for the Santa Ana sucker (see Critical Habitat 
Units, Subunit 1A: Upper Santa Ana River section of this proposed 
revised rule for a detailed discussion).

Unit 2: San Gabriel River (San Bernardino County)

    (1) In the 2005 critical habitat rule, we designated 5,765 ac 
(2,333 ha) as critical habitat in Unit 2. In this proposed revised 
rule, we are proposing to designate 1,000 ac (405 ha) as critical 
habitat in Unit 2 (area corresponds roughly to Unit 2 in the 2005 final 
rule). The 4,765-ac (1,928-ha) reduction in Unit 2 from the 2005 final 
rule is primarily due to the following revisions:
    (a) In this proposed revised rule, we removed the upstream sections 
of the following creeks/rivers, designated in the 2005 final rule, 
because based on our calculations, the slope of these upstream sections 
exceeds 7 degrees and, therefore, we determined these areas do not 
contain the physical and biological features essential to the 
conservation of the species (see Criterion 3 in the Criteria Used To 
Identify Critical Habitat section above for a detailed discussion of 
our slope calculations and assumptions):
     2.9 mi (4.60 km) of Big Mermaids Canyon Creek;
     0.5 mi (0.77 km) of Bear Canyon Creek;
     0.4 mi (0.60 km) of West Fork of Bear Creek;
     1.6 mi (2.61 km) of North Fork of the San Gabriel River;
     0.1 mi (0.19 km) of Bichota Canyon Creek;
     1.9 mi (3.07 km) of Cattle Canyon Creek; and
     0.3 mi (0.42 km) of Cow Canyon Creek.
    While these unoccupied upstream areas do provide pathways to 
transport water (PCE 1) and sediments necessary to maintain preferred 
substrates (PCE 2), we determined that the areas within the 
geographical area occupied by the species in the San Gabriel River at 
the time of listing and currently occupied are adequate for the 
conservation of the species in this portion of its range (see Criteria 
Used To Identify Critical Habitat above).
    (b) In this proposed revised rule, we removed the entire extent of 
Shoemaker Canyon Creek [0.99 mi (1.59 km)], designated in the 2005 
final rule, because, based on our calculations, the slope of this creek 
exceeds 7 degrees and therefore, we determined this area does not 
contain the physical and biological features essential to the 
conservation of the species (see Criterion 3 in the Criteria Used To 
Identify Critical Habitat section above for a detailed discussion of 
our slope calculations and assumptions).
    (c) In this proposed revised rule, we removed the entire extent of 
Burro

[[Page 65069]]

Canyon Creek [0.74 mi (1.19 km)], designated in the 2005 final rule, 
because habitat in this creek has been degraded due the operation of a 
mine upstream and does not contain the physical and biological features 
essential to the conservation of the species.
     (2) We are proposing to extend the upstream boundary of the East 
Fork of the San Gabriel River approximately 0.85 mi (1.37 km) from the 
upstream end of an occurrence polygon to the point near the Bridge-of-
No-Return. In the 2005 final rule, we acknowledged that this upstream 
area is essential to the conservation of the Santa Ana sucker, but 
since the area had not been proposed as critical habitat or delineated 
on the map or the legal description for this unit, it could not be 
included in the final rule (70 FR 428).

Unit 3: Big Tujunga Creek (San Bernardino County)

    (1) In the 2005 critical habitat rule, we designated 2,540 ac 
(1,028 ha) as critical habitat in Unit 3. In this 2009 proposed revised 
rule, we are proposing to designate 1,233 ac (499 ha) as critical 
habitat in two subunits, Subunits 3A and 3B, which correspond roughly 
to Unit 3 in the 2005 final rule. Subunit 3A contains the mainstem of 
Big Tujunga Creek from Hansen Dam to Big Tujunga Dam, and Subunit 3B 
contains three unoccupied tributaries to Big Tujunga Creek: Gold 
Canyon, Delta Canyon, and Stone Canyon Creeks. The 1,307-ac (529-ha) 
reduction in Unit 3 from the 2005 final rule is primarily due to the 
following revisions:
    (a) In this proposed revised rule, we removed a 0.26 mi (0.42 km) 
upstream section of Delta Canyon Creek (Subunit 3B) and a 0.13 mi (0.21 
km) upstream section of Stone Canyon Creek (Subunit 3B), both 
designated in the 2005 final rule, because these areas appear to be 
above the origin of sediment transport in these creeks and not 
essential to the conservation of the species (see Criterion 7 in the 
Criteria Used To Identify Critical Habitat section above for a 
discussion of origin of sediment transport).
    (b) We are proposing to designate additional portions of Gold 
Canyon Creek (Subunit 3B) by extending the upstream boundary of the 
creek by approximately 0.29 mi (0.47 km) from the 2005 final critical 
habitat boundary to capture the upstream origin of sediment transport 
for this creek, an area we determined is essential to the conservation 
of the species (see Criterion 7 in the Criteria Used To Identify 
Critical Habitat section above for a discussion of origin of sediment 
transport).
    (c) We propose to designate approximately 160 ac (65 ha) of the 
privately owned Angeles National Golf Club in Subunit 3A. We are 
proposing to designate only the alluvial floodplain and multiple low-
flow channels that traverse the golf course. However, due to the scale 
of the habitat areas containing the PCEs within the golf course and the 
current GIS mapping techniques, we are unable to map precisely only 
those areas containing the physical and biological features essential 
to the conservation of the species. Therefore, the entire golf course 
is mapped as proposed critical habitat. However, permanent structures 
and facilities associated with the golf course (such as the buildings, 
and fairways and greens outside of the floodplain) do not contain the 
PCEs and are therefore not considered critical habitat.
    The majority of this area was not included in the 2005 final 
critical habitat designation. However, this area includes the alluvial 
floodplain and multiple low-flow channels that traverse the golf 
course, which lies between the confluence of Big Tujunga and Haines 
Creeks. Stream and storm waters from Big Tujunga Creek transport 
sediments necessary to maintain preferred substrate conditions (PCE 2) 
within Haines Creek. These waters flow through the golf course on an 
irregular basis (i.e., in 2 of the 5 years since the course was 
opened). Both creeks discharge into occupied habitat downstream, 
including a conserved habitat area, which supports the Santa Ana sucker 
and two other native fishes. Therefore, we believe this area contains 
the features essential to the conservation of the species because it 
provides for sediment transport (PCE 2) into the downstream conserved 
habitat area.

Proposed Revised Critical Habitat Designation

    We are proposing three units as critical habitat for the Santa Ana 
sucker. The critical habitat areas we describe below constitute our 
best assessment at this time of areas that meet the definition of 
critical habitat for the Santa Ana sucker. Table 2 identifies the 
approximate area of each proposed critical habitat unit by land 
ownership. These units, if finalized, will replace the current critical 
habitat designation for the Santa Ana sucker in 50 CFR 17.96(a). The 
critical habitat areas we describe below constitute our best assessment 
of (1) areas determined to be within the geographical area occupied by 
the species at the time of listing and currently occupied that contain 
the physical and biological features which may require special 
management considerations or protection and (2) areas that are not 
within the geographical area occupied by the species at the time of 
listing and are not currently occupied but that are essential to the 
conservation of the species (please see Criteria Used To Identify 
Critical Habitat section above for a discussion of geographical area).

  TABLE 2. Area estimates (acres (ac) and hectares (ha)) and land ownership for the Santa Ana sucker proposed revised critical habitat. Values in this
                                                           table may not sum due to rounding.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Ownership
                                                            ----------------------------------------------------------------------
                Unit                         County                                      State or Local                                  Total Area
                                                                     Federal               Government              Private
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Unit 1: Santa Ana River
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subunit 1A: Upper Santa Ana River    San Bernardino          273 ac                  95 ac                  1,532 ac               1,900 ac
                                                             (110 ha)..............  (38 ha)..............  (620 ha).............  (768 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subunit 1B: Santa Ana River          San Bernardino and      13 ac                   2,390 ac               2,301 ac               4,704 ac\1\
                                      Riverside              (5 ha)................  (967 ha).............  (931 ha).............  (1,903 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subunit 1C: Lower Santa Ana River    Riverside and           0 ac                    56 ac                  711 ac                 767 ac\1\
                                     Orange................  (0 ha)................  (23 ha)..............  (288 ha).............  (311 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 65070]]

 
                                     Unit 1 Totals           286 ac                  2,541 ac               4,544 ac               7,372 ac
                                                             (116 ha)..............  (1,028 ha)...........  (1,839 ha)...........  (2,982 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 2: San Gabriel River            Los Angeles             917 ac                  0 ac                   83 ac                  1,000 ac
                                                             (371 ha)..............  (0 ha)...............  (34 ha)..............  (405 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Unit 3: Big Tujunga Creek
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subunit 3A                           Los Angeles             242 ac                  0 ac                   947 ac                 1,189 ac
                                                             (98 ha)...............  (0 ha)...............  (383 ha).............  (481 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subunit 3B                           Los Angeles             44 ac                   0 ac                   0 ac                   44 ac
                                                             (18 ha)...............  (0 ha)...............  (0 ha)...............  (18 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Unit 3 Totals           286 ac                  0 ac                   947 ac                 1,233 ac
                                                             (116 ha)..............  (0 ha)...............  (383 ha).............  (499 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Total                   1,489 ac                2,541 ac               5,573 ac               9,605 ac
                                                             (603 ha)..............  (1,028 ha)...........  (2,255 ha)...........  (3,887 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------

Critical Habitat Units
    Presented below are brief descriptions of all units, and reasons 
why they meet the definition of critical habitat for the Santa Ana 
sucker.

Unit 1: Santa Ana River

    Unit 1 is located in San Bernardino, Riverside, and Orange Counties 
and consists of three subunits totaling 7,372 ac (2,893 ha) of Federal 
(U.S. Army Corps of Engineers and USFS), local government, and private 
land (Table 2).
Subunit 1A: Upper Santa Ana River
    Subunit 1A is located near the Cities of Highland, Mentone, and 
Redlands in San Bernardino County, California. This subunit includes 
two separate areas: One includes 7 mi (12 km) of City Creek (measured 
from its confluence with the Santa Ana River), 12 mi (19 km) of Mill 
Creek (measured from its confluence with the Santa Ana River), and 10 
mi (17 km) of the Santa Ana River from below the Seven Oaks Dam to near 
Tippecanoe Avenue. The other area of this subunit includes 7 mi (12 km) 
of the Santa Ana River above Seven Oaks Dam (measured from the Seven 
Oaks Dam). The lower portion of the Santa Ana River below its 
confluence with City and Mill Creeks is adjacent to urban development, 
while the upstream portions of City and Mill Creeks and the Santa Ana 
River above Seven Oaks Dam are in the San Bernardino National Forest. 
Lands in this subunit are under Federal (USFS and Bureau of Land 
Management (BLM)) (273 ac (110 ha)), State/Local (95 ac (38 ha)), and 
private (1,532 ac (619 ha)) ownership (Table 2).
    Subunit 1A is not within the geographical area of the species 
occupied at the time of listing and is not currently occupied. However, 
while City Creek and the Santa Ana River above Seven Oaks Dam are not 
currently occupied, these areas were historically occupied based on a 
1982 California Natural Diversity Database record and a 1940 Museum of 
Zoology Fish Collection database record, respectively, and provide 
suitable habitat conditions for the Santa Ana sucker. Mill Creek is not 
known to be historically or currently occupied and does not provide 
suitable habitat conditions for the Santa Ana sucker. We determined 
that Mill and City Creeks are essential to the conservation of the 
species because these creeks provide greater quantities of stream and 
storm waters (PCE 1) relative to other creeks in the river system, 
necessary to transport sediments necessary to maintain preferred 
substrate (PCE 2) conditions in occupied portions in the Santa Ana 
River.
    Although areas of the upper Santa River and its associated 
tributaries generally dry during the summer, portions of the upper 
Santa Ana River system have a higher gradient and a greater percentage 
of gravel and cobble substrate than the occupied areas that are 
downstream (Baskin, pers. comm. 2004). Suckers spawn over gravel 
substrates, where their eggs can adhere to gravel before hatching into 
larvae. Winter flows from upstream areas annually replenish this 
substrate and clean sand from it (Baskin, pers. comm. 2004; Haglund, 
pers. comm. 2004; NOAA 2003). Additionally, suckers feed by scraping 
algae, insects, and detritus from gravel and cobble. Therefore, the 
upstream source of spawning and feeding substrates (gravel and cobble) 
are essential to the reproductive ability and development of the sucker 
in the downstream occupied reaches (Baskin, pers. comm. 2004; Haglund, 
pers. comm. 2004). City and Mill Creeks are particularly essential to 
the conservation of the species since the Seven Oaks Dam has reduced 
the transfer of sediment and altered the natural flow in the 
downstream, occupied areas of the Santa Ana River.
    We also determined that City Creek and the Santa Ana River above 
Seven Oaks Dam contain features essential to the conservation of the 
species (PCEs 1, 2, and 6) and are essential to the conservation of the 
species to provide habitat for future reintroduction of the species. 
Given its small population size and restricted range, the Santa Ana 
sucker is at high risk of extirpation from stochastic events, such as 
disease or fatal water contamination levels, especially in the Santa 
Ana River. Maintaining areas of suitable habitat on the Santa Ana River 
and City Creek into which Santa Ana suckers could be reintroduced is 
essential to decrease the risk of extinction of the species resulting 
from stochastic events and provide for the species' eventual recovery. 
While currently not occupied, both City Creek and the Santa Ana River 
above Seven Oaks Dam were historically occupied. The upper reaches of 
City Creek are considered to be high quality habitat (OCWD 2009) and 
the upper reaches of

[[Page 65071]]

both City Creek and the Santa Ana River above Seven Oaks Dam are within 
the San Bernardino National Forest and therefore likely provide habitat 
that is superior, with fewer severe threats, to that in the occupied 
sections downstream in the Santa Ana River. Given the barriers to fish 
movement that exist downstream of these reintroduction areas, 
maintenance of populations in City Creek and the Santa Ana River above 
Seven Oaks Dam would likely require active management to transport 
individuals back to these areas in the event they are flushed 
downstream during a flood event.
Subunit 1B: Santa Ana River
    Subunit 1B is located near the cities of Colton and Rialto in San 
Bernardino County and the cities of Riverside, Norco, and Corona in 
Riverside County, California. This subunit includes roughly 22.4 mi 
(36.0 km) of the mainstem of the Santa Ana River from near Tippecanoe 
Avenue in San Bernardino County to the Prado Dam and Flood Control 
Basin in Riverside County. This subunit also includes sections of the 
following tributaries (distances are measured from the mainstem of the 
Santa Ana River): 1,647 ft (502 m) of the Rialto Drain and 2,413 ft 
(736 m) Sunnyslope Creek. Lands within this subunit are under Federal 
(Department of Defense - U.S. Army Corps of Engineers) ((13 ac (5 ha)), 
State/Local (2,390 ac (967 ha)), and private (2,300 ac (932 ha)) 
ownership (Table 2). The Secretary is considering exercising his 
discretion to exclude all lands in this subunit from the final 
designation under section 4(b)(2) of the Act (see Exclusions section 
for discussion).
    All areas within this subunit are within the geographical area 
occupied by the species at the time of listing, are currently occupied, 
and contain features essential for the conservation of the species. 
Recent surveys have found Santa Ana suckers at various locations in the 
mainstem of the Santa Ana River between the Rialto Drain and the Prado 
Dam (Baskin et al., 2005, pp. 1-2; Swift 2009, pp. 1-3). Santa Ana 
suckers also occupy the Rialto Drain and Sunnyslope Creek at least 
during portions of the year (Chadwick Ecological Consultants, Inc. 
1996, p. 9; Swift 2000, p. 8; Swift 2001, p. 45). At this time, the 
low-flow channel of the Santa Ana River has moved away from its 
confluence with Sunnyslope Creek. In the absence of flows, accumulated 
sediments and vegetation are preventing access to this creek by Santa 
Ana suckers (OCWD 2009, pp. 5-31). However, a connection between the 
mainstem and Sunnyslope Channel would likely be reestablished following 
a high flow event. Santa Ana suckers were found upstream of the Rialto 
Drain in the vicinity of the La Cadena Bridge drop-structure during 
spring-time flow releases from the Seven Oaks Dam in 2005 (Baskin et 
al. 2005, p. 1). Rialto Drain and Sunnyslope Creek are the only 
tributaries to the Santa Ana sucker in this subunit where Santa Ana 
sucker spawning has been documented. However, the distribution of fry 
and juvenile fish observed in various locations within the mainstem 
implies that spawning areas other than the Rialto Drain and Sunnyslope 
Creek likely exist within the Santa Ana River.
    In the mainstem of the Santa Ana River, dry-season flows are 
dependent primarily upon discharges from tertiary wastewater treatment 
plants and upwelling of ground water within the Unit (California 
Regional Water Quality Control Board 1995, pp. 1-4 through 1-8; 
Chadwick and Associates, Inc. 1992, p. 20), while storm-season flows 
are regulated by the upstream Seven Oaks Dam. The discharge of treated 
wastewater effluent maintains stream volume and velocity within the 
mainstem and the Rialto Drain to maintain habitat patches that support 
the riverine environment (PCE 1) necessary for the Santa Ana sucker. 
The discharge of treated wastewater effluent along with the upwelling 
of groundwater also lowers ambient water temperature to some extent in 
portions of the Santa Ana River (Chadwick and Associates, Inc. 1992, p. 
26) (PCE 5), and rising water in the Riverside Narrows feeds several 
small tributaries to the Santa Ana River, including the Sunnyslope 
Creek (California Regional Water Quality Control Board 1995, pp. 1-4 
through 1-8; Swift 2000, p. 6) (PCE 1). Rialto Drain and Sunnyslope 
Creek contain gravel and cobble substrate, with some sand accumulation 
along channel edges, deep pools, and a riparian overstory (PCEs 2 and 
6). Therefore, these areas provide areas for spawning and rearing of 
fry and juvenile fish (PCE 1) and shallow-water refuge for Santa Ana 
suckers during storms and during periods of high ambient temperatures 
(PCE 6). Almost all other tributaries to the Santa Ana River in this 
subunit have been channelized, and while these tributaries continue to 
provide some water and storm water flows to the mainstem, the majority 
of this water is untreated drainage from surrounding urban areas. Also, 
with the exception of their confluence with the mainstem, it appears 
these other tributaries to the Santa Ana River no longer provide 
suitable habitat for the species.
    In addition to reduced water quality and altered hydrology, habitat 
within this subunit has been impacted by the construction of several 
bridges spanning the Santa Ana River and grade-control structures that 
fragment habitat for the Santa Ana sucker. Therefore, the physical and 
biological features essential to the conservation of the species in 
this subunit may require special management considerations or 
protection to address threats associated with water diversion, 
alteration of stream channels and watersheds, and reduction of water 
quantity and quality associated with urban development. Please see 
Special Management Considerations or Protection for discussion of the 
threats to the Santa Ana sucker habitat.
Subunit 1C: Lower Santa Ana River
    Subunit 1C is located near the City of Corona in Riverside County 
and the cities of Anaheim and Yorba Linda in Orange County, California. 
This subunit includes 10.7 mi (17.2 km) of the Santa Ana River mainstem 
from below the Prado Dam outlet in Riverside County to 0.6 mi (1.03 km) 
downstream of the State Route 90 (Imperial Highway) Bridge in Orange 
County. While tributaries to the Santa Ana River in this subunit likely 
provide water and storm water flows necessary to maintain preferred 
substrate conditions in occupied portions of the river that may be 
essential to the conservation of the species, we do not currently have 
information on the extent of their contribution and therefore are not 
proposing any tributaries to the Santa Ana River in Subunit 1C as 
critical habitat. However, we are seeking additional information on the 
sediment contribution from tributaries to the lower Santa Ana River in 
Subunit 1C (see Public Comments section above). Lands within this 
subunit are under State/Local (56 ac (23 ha)) and private (711 ac (288 
ha)) ownership (Table 2). The Secretary is considering exercising his 
discretion to exclude all lands in this subunit under section 4(b)(2) 
of the Act from the final designation (see Exclusions section for 
discussion).
    All areas in Subunit 1C are within the geographic area occupied by 
the species at the time of listing, are currently occupied, and contain 
the features essential for the conservation of the species. This 
species has been found in the vicinity of the Gypsum Canyon Bridge, 
Weir Canyon drop structure, and the Imperial Highway overpass (Baskin 
and Haglund 2001, pp.1-5; Chadwick Ecological Consultants, Inc. 1996, 
p. 9;

[[Page 65072]]

Swift 2000, pp. 15-20). More recently suckers were collected just below 
Prado Dam (SMEA 2008, p 1).
    Upstream water flows to Subunit 1C are primarily maintained by 
releases from Prado Dam, a structure that has altered the hydrology of 
the system, resulting in fluctuating water (PCE 1) and sediment (PCE 2) 
releases. The numerous tributaries flowing into the Santa Ana River 
below Prado Dam appear to contribute little dry-season flow. Releases 
from Prado Dam maintain perennial stream flow in the Santa Ana River 
which in turn maintains well-defined banks supporting native riparian 
vegetation (PCE 6) and deep pools (PCE 2). However, since the velocity 
is typically high, water released below the dam is often turbid. During 
storms, water containing fine sediments passes over or through a dam, 
and because sediments remain suspended within the reservoir pool for 
several months, downstream turbidity can be increased (PCE 4) (Ally 
2004a, p. 36). Releases of turbid water could also degrade downstream 
foraging and spawning habitat if areas become covered by fine silts. 
The operation of Prado Dam also traps larger sediments therefore 
decreasing the deposition of gravel and cobble needed to maintain 
spawning and foraging habitat below the dam.
    In addition to reduced water quality and altered hydrology, habitat 
within this subunit has been impacted by the construction of several 
bridges spanning the Santa Ana River. Therefore, the physical and 
biological features essential to the conservation of the species in 
this subunit may require species management considerations or 
protection to address threats from water diversion, alteration of 
stream channels and watersheds, and reduction of water quantity and 
quality associated with urban development. Please see the Special 
Management Considerations or Protection section of this proposed rule 
for discussion of the threats to the Santa Ana sucker habitat.

Unit 2: San Gabriel River

    Unit 2 consists of the West, North, and East Forks of the San 
Gabriel River upstream of the San Gabriel Reservoir, in Los Angeles 
County, California. This unit includes 9.3 mi (14.9 km) of the West 
Fork downstream of Cogswell Dam to the San Gabriel Reservoir, 3.2 mi 
(5.2 km) of the North Fork upstream from the confluence with the West 
Fork, and 10.4 mi (16.7 km) of the East Fork downstream of the Bridge-
of-No-Return to the San Gabriel Reservoir. This unit also includes 
sections of the following tributaries (distances are measured from the 
mainstem of the fork): 0.3 mi (0.5 km) of Big Mermaids Canyon Creek and 
3.3 mi (5.3 km) Bear Canyon Creek, both tributaries of the West Fork; 
0.2 mi (0.2 km) of the West Fork of Bear Canyon Creek, a tributary of 
Bear Canyon Creek; 1.5 mi (2.4 km) of Bichota Canyon Creek, a tributary 
of the North Fork; 3.8 mi (6.2 km) of Cattle Canyon Creek, a tributary 
of the East Fork; and 0.6 mi (0.9 km) of Cow Canyon Creek, a tributary 
of Cattle Canyon Creek. Lands within this unit are entirely within the 
Angeles National Forest and are under Federal (USFS) (917 ac (371 ha)) 
and private (83 ac (34 ha)) ownership (Table 2).
    All areas in Unit 2 are within the geographical area occupied by 
the species at the time of listing, are currently occupied, and contain 
the features essential to the conservation of the species. In addition 
to surveys discussed in the listing rule (65 FR 19686; April 12, 2000) 
and in the previous designation of critical habitat for the Santa Ana 
sucker (70 FR 426; January 4, 2005), additional surveys have documented 
Santa Ana suckers in the West, North, and East Forks of the San Gabriel 
River and the following tributaries: Big Mermaids Canyon, Bear Canyon, 
Bichota Canyon, Cattle Canyon, and Cow Canyon Creeks (Ally 2004b, pp. 
8-9, 14-15, 22, 24-25, 28; Ally 2004c, pp. 9-10, 13-14, 16-17; Haglund 
and Baskin 1992, p. 32; O'Brien 2009a, pp. 2-3; Tennant 2004, pp. 5-8; 
Tennant 2006, p. 3). The West, North, and East Forks of the San Gabriel 
River have one of the most intact native freshwater fish faunas in 
Southern California (Haglund and Baskin 2003, p. 7), have good water 
quality, and appear to support the highest abundance of Santa Ana 
suckers within the species' range.
    This is the only unit that, overall, has a sediment transport and 
hydrological regime existing in a natural state (relative to the other 
two proposed critical habitat units). This unit supports a population 
of the Santa Ana sucker occurring within a relatively intact watershed 
that provides good water quality, supply, and sediment transport. This 
is the only extant population of Santa Ana suckers that is not 
chronically exposed to urban runoff or tertiary-treated wastewater 
discharges, and that has a regulated water supply (with the exception 
of the West Fork of the San Gabriel River).
    Natural water flow in the North and East forks, and the tributaries 
included in this unit, is unimpeded by large-scale dams. However, water 
flows in the West Fork of the San Gabriel River are affected by 
Cogswell Dam, a structure that has altered the hydrology of the system, 
resulting in fluctuating water (PCE 1) and sediment (PCE 2) releases. 
During its operational life, the Cogswell Reservoir has accumulated a 
large volume of sediment behind the dam that affects the quality of 
water released both through operations and unavoidable, uncontrolled 
leakage (Ally 2004a, p. 1). During the summer months, the only flow 
into the West Fork of the San Gabriel River is the result of leakage 
from the dam, and because flow velocities are low, sediments do not 
travel far downstream (Ally 2004a, p. 36). During storms, water 
containing fine sediments passes over or through the dam, and because 
sediments remain suspended within the reservoir pool for several 
months, downstream turbidity can be increased over turbidity associated 
with natural conditions (PCE 4) (Ally 2004a, p. 36). Accidental high 
water releases (with heavy sediment loads) from Cogswell Reservoir have 
devastated the West Fork of the San Gabriel River several times in the 
past (Haglund and Baskin 1992, p. 57; Moyle 2002, p. 184; Moyle et al. 
1995, p. 203; Moyle and Yoshiyama 1992, p. 204). Such rapid increases 
in flow volume and velocity may disrupt Santa Ana sucker spawning and 
flush juvenile Santa Ana suckers into areas with unsuitable habitat.
    Along with impacts associated with the operation of Cogswell Dam, 
habitat within this unit has also been impacted by recreational 
activities, including OHV use and the construction of artificial 
recreational dams. Authorized OHV activity occurs in the USFS's San 
Gabriel Canyon OHV Area at the junction of the East, North, and West 
Forks. The use of the river as an OHV recreational area may result in 
adverse effects to the Santa Ana sucker by increasing turbidity (PCE 
4); disrupting the physical structure of habitat for spawning, resting, 
and feeding (PCE 2); and introducing pollutants (such as oil and gas) 
into streams (PCE 4) (65 FR 19686; April 12, 2000).
    To minimize impacts to the Santa Ana sucker from OHV use, the USFS 
has implemented protection measures (such as establishing designated 
stream crossings and limiting the number of stream crossings in the OHV 
area) (US FWS 2005, p. 8). The construction of ``recreational'' dams 
degrades in-stream and possibly bank habitat, increases turbidity (PCE 
4), and disrupts sediment transport. Over 500 recreational dams were 
found in 2001 and 2002 within a 7.1 mi (11.4 km) reach of the East Fork 
of the San Gabriel River (Ally 2001, p. 2.; Ally 2003, pp. 1-2). 
Recreational dams also reappear on a frequent basis in the San Gabriel 
Canyon OHV Area in

[[Page 65073]]

the North Fork of this river as well (USFS 2008, p. 6). Therefore, the 
physical and biological features essential to the conservation of the 
species in this unit may require species management considerations or 
protection to address threats associated with water diversion, 
alteration of stream channels and watersheds, and human recreational 
activities. Please see Special Management Considerations or Protection 
section of this proposed rule for discussion of the threats to the 
Santa Ana sucker habitat.

Unit 3: Big Tujunga Creek

    Unit 3 includes a total of 1,233 ac (499 ha) of land and consists 
of two subunits located in Los Angeles County, California. Lands within 
this unit are under Federal (USFS) (286 ac (116 ha)) and private (946 
ac (384 ha)) ownership (Table 2).
Subunit 3A: Big Tujunga and Haines Creeks
    Subunit 3A includes an approximately 13 mi (21 km) stretch of Big 
Tujunga Creek (a tributary of the Los Angeles River) between the Big 
Tujunga Dam and Reservoir and Hansen Dam and Flood Control Basin. This 
subunit also includes Haines Creek, a small stream within the 
floodplain of Big Tujunga Creek. The 1,189 ac (481 ha) of land within 
this subunit is under Federal (USFS) (242 ac (98 ha)) and private (946 
ac (384 ha)) ownership (Table 2).
    All areas of Subunit 3A are within the geographical area occupied 
by the species at the time of listing, are currently occupied, and 
contain the features essential to the conservation of the species. In 
addition to surveys cited in the listing rule (65 FR 19686; April 12, 
2000) and in the previous designation of critical habitat for the Santa 
Ana sucker (70 FR 426; January 4, 2005), additional surveys have 
documented Santa Ana suckers in Big Tujunga Creek between Delta Flats 
and Vogel Flats (Hagund and Baskin 2001, pp. 2-4; O'Brien 2009b, p. 2), 
and in the Big Tujunga Wash Mitigation Bank, including Haines Creek 
(Chambers Group 2004, pp. 6-3, 6-4). Some speculation exists that Big 
Tujunga Creek between the Big Tujunga Dam and Big Tujunga Canyon Road 
Bridge may no longer be occupied by this species. Swift (2002, p. 3) 
speculates that streambed characteristics in three places upstream of 
Big Tujunga Canyon Road Bridge may prevent upstream movement or make 
movement possible only during rare high flow events. We currently 
consider this area occupied because Santa Ana suckers have been 
documented near and downstream of the Big Tujunga Canyon Road Bridge 
and because we do not have evidence of the existence of barriers 
permanently precluding upstream movement to the dam. Additionally, the 
upstream sections of Big Tujunga Creek are also important for providing 
stream and storm waters necessary to transport sediments to maintain 
preferred substrate conditions (PCE 2) for the Santa Ana sucker in 
occupied areas downstream. We seek additional information on the 
occurrence of the Santa Ana sucker, habitat conditions, and the 
presence of potential permanent barriers to movement between the Big 
Tujunga Canyon Road Bridge and the Big Tujunga Dam (see Public Comments 
section above).
    A section of Haines Creek upstream of the Foothill Bridge traverses 
the Angeles National Golf Course. This 160 ac (65 ha), privately owned 
golf course lies between the confluence of Big Tujunga and Haines 
Creeks and includes the alluvial floodplain and multiple low-flow 
channels that traverse the golf course. Flow from the Big Tujunga Creek 
travels through the golf course into Haines Creek on an irregular basis 
(2 of the 5 years since the course has been open) and likely provides 
the only source of stream and storm waters necessary to transport 
sediments to maintain preferred substrate conditions (PCE 2) to Haines 
Creek and downstream to the Big Tujunga Wash Mitigation Bank (Swift 
2009, p.1). Therefore, the alluvial floodplain and multiple low-flow 
channels that traverse the golf course are essential to the 
conservation of the species because they provide the primary (and 
potentially sole) source of stream and storm waters downstream into the 
Big Tujunga Wash Mitigation Bank that supports the Santa Ana sucker 
(see Summary of Changes From Previously Designated Critical Habitat 
section above for more discussion of the proposed revised designation 
on the Angeles National Golf Course).
    The upstream portion of this subunit is within the Angeles National 
Forest and is therefore not exposed to the effects of urbanization. 
However, the downstream portion of Big Tujunga Creek between the Oro 
Vista Bridge and Hansen Dam is adjacent to existing urban development 
south of the creek, which has altered water flows transporting sediment 
(PCE 2) into the Big Tujunga Creek. Several tributaries (including the 
upper portion of Haines Creek) that flow into Big Tujunga Creek through 
the communities of Sunland and Tujunga have been channelized through 
urbanized areas for flood control purposes. This channelization has 
eliminated habitat for the Santa Ana sucker, altered the hydrologic 
regime (PCE 1), and reduced the transport of sediments needed to 
maintain channel substrate conditions (PCE 2) in the occupied sections 
of Big Tujunga Creek.
    Habitat in Subunit 3A has been altered due to the operation of the 
Big Tujunga Dam upstream and Hansen Dam downstream. All flows in the 
occupied reaches of Big Tujunga Creek are moderated by the operation of 
Big Tujunga Dam, which has eliminated flows along most of the creek 
during late summer and autumn of dry years (Palavido et al. 2008, p. 
8), thereby reducing not only the amount of water (PCE 1) entering the 
system but also the amount of sediment (PCE 2) being transported 
downstream. During these dry periods, the Santa Ana sucker is 
restricted to an approximate 1 mi (1.6 km) section of the creek 
(Palavido et al. 2008, p. 8). At times, the creek can be reduced to a 
series of standing pools with only a trickle of flow between them 
(Swift 2002, p. 1), further isolating suckers (PCE 1). The operation of 
Big Tujunga Dam is the subject of an ongoing consultation between the 
Service and the USFS under section 7 of the Act. To minimize impacts to 
the species, a strategy is being developed with the objective of 
maintaining and enhancing Santa Ana sucker habitat within the lower Big 
Tujunga Creek (Mendez 2005, p. 1).
    Habitat within this subunit has also been impacted by the 
construction of several bridges (such as the Foothill, Interstate-210, 
and Oro Vista bridges). The habitat within both Big Tujunga Creek and 
Haines Creek as they flow under the Foothill and Interstate-210 bridges 
is often temporarily fragmented (PCE 7) (Swift 2006a, p. 2). Hence, 
sufficient water and sediment transport are needed to maintain the 
stream channel substrate conditions required by the Santa Ana sucker in 
this area (PCEs 1, 2, and 7). The physical and biological features 
essential to the conservation of the species in this unit may require 
species management considerations or protection to address threats 
associated with water diversion, and alteration of stream channels and 
watersheds and human recreational activities. Please see Special 
Management Considerations or Protection section of this proposed rule 
for discussion of the threats to Santa Ana sucker habitat.
Subunit 3B: Gold, Delta, and Stone Canyon Creeks
    Subunit 3B consists of three tributaries to Big Tujunga Creek

[[Page 65074]]

(measured from their confluence with the mainstem): a 1.89 mi (3.04 km) 
section of Gold Canyon Creek, a 0.79 mi (1.27 km) section of Delta 
Canyon Creek, and a 0.67 mi (1.08 km) section of Stone Canyon Creek. 
The 44 ac (18 ha) of land within this subunit is entirely within the 
Angeles National Forest and is entirely under Federal (USFS) ownership 
(Table 2).
    These three tributaries are not within the geographical range of 
the species occupied at the time of listing and are not currently 
occupied. While we are not aware of any surveys for the Santa Ana 
sucker conducted in Gold Canyon, Delta Canyon, or Stone Canyon Creeks, 
it appears that the slope of Delta Canyon and Stone Canyon Creeks from 
near their confluence with Big Tujunga Creek is too steep to be 
passable by the Santa Ana sucker. The slope of Gold Canyon Creek from 
approximately 0.49 mi (0.8 km) from its confluence with Big Tujunga 
Creek also appears to be too steep to be passable by the Santa Ana 
sucker. Please see Criteria Used To Identify Critical Habitat section 
of this proposed revised rule for a discussion of how we determined the 
slope within these creeks.
    These creeks are essential to the conservation of the species 
because they provide and transport sediment (PCE 2) and convey stream 
flows and flood waters (PCE 1) necessary to maintain habitat conditions 
for the downstream occupied areas of Big Tujunga Creek. The areas of 
these creeks at their confluence with Big Tujunga Creek also provide 
protective areas for juvenile Santa Ana suckers during high flow 
events, during periods of high ambient temperatures, and from predators 
(PCEs 1 and 6).
    These tributaries are particularly essential to the conservation of 
the species given the extent to which the hydrology and the habitat of 
the downstream occupied section of Big Tujunga Creek has been altered 
and degraded due to the construction and operation of Big Tujunga Dam.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) 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. Decisions 
by the Fifth and Ninth Circuit Courts of Appeal have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al., 245 F.3d 434, 442F (5th Cir. 2001)), and we do not rely 
on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the affected critical habitat would remain 
functional (or retain the current ability for the PCEs to be 
functionally established) to serve its intended conservation role for 
the species. Section 7(a)(2) of the Act requires Federal agencies, 
including the Service, to evaluate their actions with respect to any 
species that is 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 species proposed for listing 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 or opinion are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act 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. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) of the 
Act through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
     (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    An exception to the concurrence process referred to in (1) above 
occurs in consultations involving National Fire Plan projects. In 2004, 
USFS and BLM reached agreements with the Service to streamline a 
portion of the section 7 consultation process (BLM-ACA 2004, pp. 1-8; 
FS-ACA 2004, pp. 1-8). The agreements allow USFS and BLM the 
opportunity to make ``not likely to adversely affect'' determinations 
for projects implementing the National Fire Plan. Such projects include 
prescribed fire, mechanical fuels treatments (thinning and removal of 
fuels to prescribed objectives), emergency stabilization, burned area 
rehabilitation, road maintenance and operation activities, ecosystem 
restoration, and culvert replacement actions. The USFS and BLM will 
insure staff is properly trained, and both agencies will submit 
monitoring reports to the Service to determine if the procedures are 
being implemented properly and effects to endangered species and their 
habitats are being properly evaluated. As a result, we do not believe 
the alternative consultation processes being implemented as a result of 
the National Fire Plan will differ significantly from those 
consultations being conducted by the Service.
    If we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``reasonable and prudent alternatives'' at 50 
CFR Sec.  402.02 as alternative actions identified during consultation 
that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying 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

[[Page 65075]]

reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR Sec.  402.16 require Federal agencies to 
reinitiate consultation on previously reviewed actions in instances 
where we have listed a new species or subsequently designated critical 
habitat that may be affected, and the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law). 
Consequently, Federal agencies may sometimes need to request 
reinitiation of consultation with us on actions for which formal 
consultation has been completed, if those actions with discretionary 
involvement or control may affect subsequently listed species or 
designated critical habitat.
    Federal activities that may affect the Santa Ana Sucker or its 
designated critical habitat will require section 7(a)(2) consultation 
under the Act. Activities on State, Tribal, local, or private lands 
requiring a Federal permit (such as a permit from the U.S. Army Corps 
of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 
et seq.) or a permit under section 10 of the Act from the Service) or 
involving some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also be subject to the section 
7(a)(2) consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, Tribal, local, or 
private lands that are not federally funded, authorized, or permitted, 
do not require section 7(a)(2) consultations.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species, or would retain its current ability 
for the physical and biological features to be functionally 
established. Activities that may destroy or adversely modify critical 
habitat are those that alter the physical and biological features to an 
extent that appreciably reduces the conservation value of critical 
habitat for the Santa Ana sucker.
    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, when carried out, funded, or authorized by a 
Federal agency, may adversely affect critical habitat and therefore 
should result in consultation for the Santa Ana sucker include, but are 
not limited to, the following:
    (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, removal of water from waterways, construction, licensing, 
relicensing, 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 excess 
nutrients or heated effluents into the surface water or connected 
groundwater at a point source or by dispersed release (nonpoint).
    (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 other removal of 
substrate, 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.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resource management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
     An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
     A statement of goals and priorities;
     A detailed description of management actions to be 
implemented to provide for these ecological needs; and
     A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the proposed critical habitat designation.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat 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

[[Page 65076]]

particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the legislative history is clear that the Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor.
    In considering whether to exclude a particular area from the 
designation, we must identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and determine whether the benefits of exclusion outweigh 
the benefits of inclusion. If based on this analysis, we make this 
determination, then we can exclude the area only if such exclusion 
would not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; and implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide.
    In the case of the Santa Ana sucker, the benefits of critical 
habitat include public awareness of the Santa Ana sucker and the 
features and specific areas essential to its conservation and in cases 
where a Federal nexus exists, increased habitat protection for the 
Santa Ana sucker due to the protection from adverse modification or 
destruction of critical habitat. In practice, a Federal nexus exists 
primarily on Federal lands or for projects undertaken or requiring 
authorization by a Federal agency.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical and 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
conservation plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After evaluating the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to determine whether the 
benefits of exclusion outweigh those of inclusion. If we determine that 
they do, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.

Conservation Plans--Exclusions Under Section 4(b)(2) of the Act

    The benefits of excluding lands covered by conservation plans from 
critical habitat designation include relieving non-Federal parties of 
any additional regulatory burden that might be imposed by critical 
habitat. Many HCPs and conservation plans take years to develop, and 
upon completion, are consistent with recovery objectives for listed 
species that are covered within the plan area. Many conservation plans 
also provide conservation benefits to unlisted sensitive species. 
Imposing an additional regulatory review as a result of the designation 
of critical habitat may undermine conservation (Wilcove and Chen 1998; 
p. 1407; Crouse et al. 2002; p. 720; James 2002, p. 271). Building 
partnerships and promoting voluntary cooperation of landowners and 
other non-Federal parties are essential to understanding the status of 
species on non-Federal lands, and are necessary to implement recovery 
actions such as reintroduction listed species, habitat restoration, and 
habitat protections.
    Many landowners and other non-Federal parties derive satisfaction 
from contributing to endangered species recovery. We promote those 
private sector efforts through the Department of the Interior's 
Cooperative Conservation philosophy. Conservation agreements with non-
Federal parties (safe harbor agreements, other conservation agreements, 
easements, and State and local regulations) enhance species 
conservation by extending species protections beyond those available 
through section 7 consultations. In the past decade, we encouraged non-
Federal landowners and other parties to enter into conservation 
agreements, based on a view that we can achieve greater species 
conservation through such partnerships than we can through regulatory 
methods (61 FR 63854, December 2, 1996).
    Addition of a new regulatory requirement would remove a significant 
incentive for undertaking the time and expense of conservation 
planning. In fact, designating critical habitat in areas covered by an 
HCP or other conservation plan could result in the loss of some 
species' benefits if participants abandon the planning process, in part 
because of the strength of the perceived additional regulatory 
compliance that such a designation would entail. The time and cost of 
regulatory compliance for a critical habitat designation do not have to 
be quantified for them to be perceived as an additional Federal 
regulatory burden sufficient to discourage continued participation in 
developing plans targeting listed species' conservation.
    A related benefit of excluding lands covered by approved HCPs or 
conservation plans from critical habitat designation is the unhindered, 
continued ability it gives us to seek new partnerships with future plan 
participants, including States, counties, local jurisdictions, 
conservation organizations, and private landowners, which together can 
implement conservation actions that we would be unable to accomplish 
otherwise.
    We also note that all Federal actions that may affect listed 
species, including those covered by an Federally-approved conservation 
plan require consultation under section 7(a)(2) of the Act, which would 
include a review of the effects of all activities that might adversely 
impact the species under a jeopardy standard, including possibly 
significant habitat modification (see definition of ``harm'' at 50 CFR 
17.3), even without the critical habitat designation.
    The information provided in the previous section applies to the 
following discussions of the specific area the Secretary is considering 
for exclusion under section (4)(b)(2) of the Act. The Secretary is 
considering exercising his discretion to exclude lands covered by the 
Santa Ana Sucker Conservation Program from the final designation of 
critical habitat for the Santa Ana Sucker. Portions of the proposed 
critical habitat warrant consideration for exclusion from the proposed 
designation under section 4(b)(2) of the Act based on the partnerships, 
management, and protection afforded by this program. In this proposed 
revised rule, we are seeking input from the public as to

[[Page 65077]]

whether or not the Secretary should exclude this area from the final 
revised critical habitat designation. (Please see the Public Comments 
section of this proposed rule for instructions on how to submit 
comments). Below is a brief description of the Santa Ana Sucker 
Conservation Program and the lands proposed as critical habitat that 
are addressed by this program.
Santa Ana Sucker Conservation Program
    We are considering exclusion of all lands in Subunit 1B (4,704 ac 
(1,903 ha)) and Subunit 1C (767 ac (311 ha)) under the Santa Ana Sucker 
Conservation Program (SAS Conservation Program) from the final revised 
critical habitat designation under section 4(b)(2) of the Act. The SAS 
Conservation Program encompasses the Santa Ana River and the lower 
reaches of its tributaries extending generally from Tippecanoe Avenue 
in San Bernardino County to Chapman Avenue in Orange County; a distance 
of approximately 31 mi (48.3 km) in San Bernardino, Riverside, and 
Orange Counties [Subunits 1B and 1C] (Santa Ana Watershed Project 
Authority 2008, pp. 13-18). The SAS Conservation Program was developed 
over a 10-year period, and is the result of a multiagency partnership 
of Federal, State, and local government agencies, and the private 
sector that encourages a riverwide approach to conservation of the 
Santa Ana sucker.
    This SAS Conservation Program partnership is intended to: (1) 
increase the knowledge base to implement recovery strategies for the 
sucker in the Santa Ana River; (2) ensure that each participating 
agency minimizes, to the extent possible, effects to the sucker and its 
habitat from routine activities that occur within their jurisdiction in 
the Santa Ana River; and (3) develop restoration techniques for 
degraded habitat. Partners in the SAS Conservation Program, called the 
Santa Ana Sucker Conservation Team (Team), include the U.S. Army Corps 
of Engineers (ACOE), the Service, CDFG, the State Regional Water 
Quality Control Board (Santa Ana Region), the Santa Ana Watershed 
Project Authority, and the following participating agencies 
(Participants): San Bernardino County Flood Control District, City of 
San Bernardino Municipal Water Department, Riverside County Flood 
Control and Water Conservation District, Riverside County 
Transportation Department, City of Riverside Regional Water Quality 
Control Plant, Orange County Water District, Orange County Resources 
and Development Management Department, and Orange County Sanitation 
District.
    Actions undertaken by the Riverside County Transportation 
Department and facilities and parcels under the jurisdiction of the 
Riverside County Flood Control and Water Conservation District and the 
City of Riverside Regional Water Quality Control Plant occur within the 
areas addressed by the Program. These areas also include a small amount 
of Public-Quasi-Public (PQP) lands within the Western Riverside County 
Multiple-Species Habitat Conservation Plan (Western Riverside County 
MSHCP) Planning Area. Riverside County participation in the SAS 
Conservation Program preceded the development of the MSHCP. Actions 
undertaken by these Participants are not considered Covered Activities 
in the Western Riverside County MSHCP and incidental take authorization 
for the Santa Ana sucker that could occur on these PQP lands is 
explicitly excluded under the Western Riverside County MSHCP. 
Therefore, although this proposed exclusion includes some PQP lands 
within the Western Riverside County MSHCP Planning Area, we are not 
proposing to exclude these PQP lands based upon participation in the 
MSHCP. Instead, we are considering exclusion of these PQP lands under 
the SAS Conservation Program.
    The SAS Conservation Program is intended to conserve the Santa Ana 
sucker and protect its habitat through:
    (1) implementation of a systematic approach to conducting routine 
operations and facilities maintenance within the program area;
    (2) education and outreach;
    (3) conducting annual surveys within the program area to monitor 
the status of the sucker and conducting a quantitative assessment of 
habitat conditions within the program area;
    (4) conducting surveys for sucker prior to undertaking routine 
operations and maintenance;
    (5) funding research actions to increase understanding of sucker 
biology; and
     (6) developing and implementing habitat restoration activities 
that benefit the Santa Ana sucker.
    The SAS Conservation Program is administered by the Santa Ana 
Watershed Project Authority. Activities undertaken by participants are 
subject to the regulatory authority of the ACOE under the Clean Water 
Act, 33 USC Sec.  1251 et seq., as amended (1987). The Clean Water Act 
section 404 application submitted by the agencies participating in the 
SAS Conservation Program for operation and maintenance activities 
proposed in the Santa Ana River and for implementation of the SAS 
Conservation Program is under review by the ACOE and will also be the 
subject of a future Section 7 consultation between ACOE and the 
Service. We will issue a biological opinion on the application prior to 
a decision by the ACOE.
    While waiting for approvals and permits, the participants (local 
stakeholders on the team) have implemented several actions under the 
SAS Conservation Program, including funding the following:
    (1) A comparative study on fish health and water quality within the 
Santa Ana and San Gabriel Rivers (Saiki 2000);
    (2) a study of sucker distribution, movement, spawning, and impacts 
from nonnative predators within the Santa Ana River (Swift 2001);
    (3) a study of wastewater treatment facility operational discharge 
regimes on the Santa Ana sucker (Allen 2003); and
     (4) a video to educate staff and contractors working for 
participating agencies about the sucker and its conservation.
    Since 2000, the participants have also funded annual demographic 
monitoring of the Santa Ana sucker at three locations within the Santa 
Ana River; and, more-recently, have conducted an annual assessment of 
habitat conditions within the Santa Ana River. The participants also 
recently completed an assessment of streams within the historical range 
of the Santa Ana sucker and other native fishes within and outside of 
the program area to identify areas for possible restoration and are now 
focusing efforts on developing a habitat restoration program to include 
restoration of the mainstem of the Santa Ana River and its tributaries 
both within and outside of the program area (OCWD 2009, p. 1-1). In 
2009, the participants proposed two habitat restoration projects in the 
Santa Ana River to restore habitat for the Santa Ana sucker and are 
waiting for required approvals from State and Federal regulatory 
agencies.
    The Santa Ana sucker is threatened primarily by loss of habitat 
types necessary to support all life-stages; lower water quality and 
turbidity as a result of excess nutrient loads and in-stream ground 
disturbances; crushing from recreational OHV use; and the effects of 
predation by nonnative fish within the program area (Santa Ana 
Watershed Project Authority 2008; OCWD 2009, p. 89). Implementation of 
the SAS Conservation Program is intended to remove and reduce threats 
to this species and the features essential to its conservation by:

[[Page 65078]]

    (1) ensuring that routine maintenance and operational procedures 
are conducted in a manner that eliminates or reduces impacts to the 
Santa Ana sucker;
    (2) establishing vehicle crossings in the river that will not only 
reduce impacts from in-stream vehicles by SAS Conservation Program 
participants, but will also direct recreational OHV use towards less-
sensitive areas;
    (3) ensuring that wastewater treatment facilities' operational 
parameters maintain surface flows for the Santa Ana sucker; and
     (4) conducting habitat restoration and predator removal. As 
outlined above, we believe that habitat restoration and management of 
Santa Ana sucker habitat in the Santa Ana River system under the SAS 
Conservation Program will contribute to conservation and ultimate 
recovery of this species.
    In summary, we believe that the proactive management strategies and 
research and restoration activities, including current activities and 
those proposed for future implementation, under the SAS Conservation 
Program will benefit this species and help to conserve and enhance the 
physical and biological features essential to its conservation on 
public and private lands under the jurisdiction of the SAS Conservation 
Program. Therefore, the Secretary is considering exercising his 
discretion under section 4(b)(2) of the Act to exclude of all Santa Ana 
sucker habitat in Subunit 1B (4,705 ac (1,904 ha)) and Subunit 1C (767 
ac (310 ha)) from the final revised critical habitat designation 
because of the conservation benefits afforded to the Santa Ana sucker 
habitat under the SAS Conservation Program.
    The 2000 final listing rule for the Santa Ana sucker identified the 
following primary threats to the Santa Ana sucker: potential habitat 
destruction, natural and human-induced changes in stream flows, urban 
development and related land-use practices, intensive recreation, 
introduction of nonnative competitors and predators, and demographics 
associated with small population sizes. The implementation of the SAS 
Conservation Program would help to address these threats through a 
coordinated regional planning effort that incorporates specific 
research and conservation measures. for the Santa Ana sucker and its 
habitat. We will analyze the benefits of inclusion and exclusion of 
this area from critical habitat under section 4(b)(2) of the Act. We 
encourage any public comment in relation to our consideration of the 
areas in Unit 1 for inclusion or exclusion (see Public Comments section 
above).

Economic Analysis

    In compliance with section 4(b)(2) of the Act, we are preparing a 
new analysis of the economic impacts of this proposed revision to 
critical habitat for the Santa Ana Sucker, to evaluate the potential 
economic impact of the proposed revised designation. We will announce 
the availability of the draft economic analysis as soon as it is 
completed, at which time we will seek public review and comment. At 
that time, copies of the draft economic analysis will be available for 
downloading from the Internet at http://www.regulations.gov, at Docket 
No. FWS-R8-ES-2009-0072, or by contacting the Carlsbad Fish and 
Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT section). 
During the development of the final revised designation, we will 
consider economic impacts, public comments, and other new information. 
We will also consider areas, including those identified for potential 
exclusion, which may be excluded from the final critical habitat 
designation under section 4(b)(2) of the Act and our implementing 
regulations at 50 CFR Sec.  424.19.
    An analysis of the economic impacts for the previous proposed 
critical habitat designation was conducted and made available to the 
public for 10 days beginning on October 1, 2004 (69 FR 58876). We 
published another notice in the Federal Register on October 25, 2004 
(69 FR 62238), reopening a 30-day comment period on the draft economic 
analysis and the proposed designation. That economic analysis was 
finalized for the final rule to designate critical habitat for the 
Santa Ana sucker published in the Federal Register on January 4, 2005 
(70 FR 426).
    The analysis determined that the costs associated with critical 
habitat for the Santa Ana sucker, across the entire area considered for 
designation (across designated and excluded areas), were primarily a 
result of the potential effect of critical habitat on transportation 
(49 percent of the annual costs and overall prospective costs), and to 
a lesser extent water supply, flood control activities, and residential 
and commercial development. The economic analysis determined that 
retrospective costs (costs since listing, 1999-2004) total $4.2 
million, with transportation comprising $3.4 million of these costs. 
The remainder of retrospective costs was split among OHV recreation, 
flood control agencies, and Federal agencies. Total prospective costs 
of the 2004 proposed rule (costs for the 20-year period 2004-2024) were 
$30.5 million assuming a 3 percent discount rate and $21.8 million with 
a 7 percent discount rate. Based on the 2004 economic analysis, we 
concluded that the designation of critical habitat for the Santa Ana 
sucker, as proposed in 2004, would not result in significant small 
business impacts. This analysis is presented in the notice of 
availability for the economic analysis published in the Federal 
Register on October 1, 2004 (69 FR 58876).
    The prior draft economic analysis included costs coextensive costs 
with the listing of the species, in other words costs attributable to 
the listing of the species as well as costs attributable to the 
designation of critical habitat. The new analysis will analyze the 
specific costs attributable to designating all areas proposed in this 
proposed revised rule as critical habitat.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we are soliciting the 
expert opinions of at least three appropriate independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We have invited these peer reviewers 
to comment during this public comment period on our specific 
assumptions and conclusions in this proposed revised designation of 
critical habitat. We will consider all comments and information we 
receive during this comment period on this proposed rule during our 
preparation of a final determination. Accordingly, our final decision 
may differ from this proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if we receive any requests for hearings. We must 
receive your request for a public hearing by the date shown under 
DATES. Send your request to Jim Bartel, Field Supervisor of the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT 
section). We will schedule public hearings on this proposal, if any are 
requested, and announce the dates, times, and places of those hearings, 
as well as how to obtain reasonable accommodations, in the Federal 
Register and local newspapers at least 15 days before the first 
hearing.

[[Page 65079]]

Required Determinations

Regulatory Planning and Review - Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
Executive Order 12866 (E.O. 12866). OMB bases its determination upon 
the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government;
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions;
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients; and
     (4) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must 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 effect 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 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
RFA to require Federal agencies to provide a statement of factual basis 
for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities.
    An analysis of the economic impacts for our previous proposed 
critical habitat designation was conducted and made available to the 
public on October 1, 2004 (69 FR 58876) and October 25, 2004 (69 FR 
62238). This economic analysis was finalized for the final rule to 
designate critical habitat for the Santa Ana sucker as published in the 
Federal Register on January 4, 2005 (70 FR 426). The costs associated 
with critical habitat for the Santa Ana sucker, across the entire area 
considered for designation (across designated and excluded areas), were 
primarily a result of the potential effect of critical habitat on 
transportation, and to a lesser extent water supply, flood control 
activities, and residential and commercial development. Total 
prospective costs of all conservation actions related to Santa Ana 
Sucker within the areas in the 2004 proposed rule (costs for the 20-
year period 2004-2024) were $30.5 million assuming a 3 percent discount 
rate and $21.8 million with a 7 percent discount rate. Based on the 
2004 economic analysis, we concluded that the designation of critical 
habitat for the Santa Ana sucker, as proposed in 2004, would not result 
in significant small business impacts. This analysis is presented in 
the notice of availability for the economic analysis as published in 
the Federal Register on October 1, 2004 (69 FR 58876).
    While we do not believe our revised designation, as proposed, will 
result in a significant impact on a substantial number of small 
business entities based on the previous designation, we are initiating 
a new analysis to more thoroughly evaluate potential economic impacts 
of this revision to critical habitat. Therefore, we defer the RFA 
finding until completion of the draft economic analysis prepared under 
section 4(b)(2) of the Act and E.O. 12866. The draft economic analysis 
will provide the required factual basis for the RFA finding. Upon 
completion of the draft economic analysis, we will announce its 
availability in the Federal Register and reopen the public comment 
period for the proposed designation. We will include with this 
announcement, as appropriate, an initial regulatory flexibility 
analysis or a certification that the rule will not have a significant 
economic impact on a substantial number of small entities accompanied 
by the factual basis for that determination. We concluded that 
deferring the RFA finding until completion of the draft economic 
analysis is necessary to meet the purposes and requirements of the RFA. 
Deferring the RFA finding in this manner will ensure that we make a 
sufficiently informed determination based on adequate economic 
information and provide the necessary opportunity for public comment.

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

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
     (1) 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, or 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 [T]ribal 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 [T]ribal 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 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 that receive 
Federal funding, assistance, or 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 
onto State governments.
    (2) Based in part on an analysis conducted for the previous 
designation of critical habitat and extrapolated to

[[Page 65080]]

this designation, we do not expect this rule to significantly or 
uniquely affect small governments. Small governments will be affected 
only to the extent that any programs having Federal funds, permits, or 
other authorized activities must ensure that their actions will not 
adversely affect the critical habitat. Therefore, a Small Government 
Agency Plan is not required. However, as we conduct our economic 
analysis for the revised rule, we will further evaluate this issue and 
revise this assessment if appropriate.

Takings - Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Santa Ana sucker in a takings implications assessment. 
The takings implications assessment concludes that this designation of 
critical habitat for the Santa Ana sucker does not pose significant 
takings implications for lands within or affected by the designation.

Federalism - Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of this proposed critical habitat designation with, 
appropriate State resource agencies in California. The designation may 
have some benefit to these governments because the areas that contain 
the features essential to the conservation of the species are more 
clearly defined, and the physical and biological features of the 
habitat necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist these local 
governments in long-range planning (because these local governments no 
longer have to wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
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.

Civil Justice Reform - Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), it 
has been determined that the rule does not unduly burden the judicial 
system and that it meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have proposed to revise critical habitat in accordance 
with the provisions of the Act. This proposed rule uses standard 
property descriptions and identifies the physical and biological 
features within the designated areas to assist the public in 
understanding the habitat needs of the Santa Ana sucker.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. 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 (NEPA) (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
     (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we have a responsibility to communicate 
meaningfully with recognized Federal Tribes on a government-to-
government basis. In accordance with Secretarial Order 3206 of June 5, 
1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes.
    We determined that there are no tribal lands occupied at the time 
of listing that contain the features essential for the conservation of 
the species, nor are there any unoccupied tribal lands that are 
essential for the conservation of the Santa Ana sucker. Therefore, 
critical habitat for the Santa Ana sucker is not being proposed on 
tribal lands. We will continue to coordinate with Tribal governments as 
applicable during the designation process.

Energy Supply, Distribution, or Use - Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Significantly Affect Energy Supply, Distribution, or 
Use) on regulations that significantly affect energy supply, 
distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. Based on 
an analysis conducted for the previous designation of critical habitat 
and extrapolated to this designation, along with a further analysis of 
the additional areas included

[[Page 65081]]

in this revision, we determined that this proposed rule to designate 
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. However, we will further evaluate this 
issue as we conduct our economic analysis, and we will review and 
revise this assessment as warranted.

References Cited

    A complete list of all references cited in this rulemaking is 
available on http://wwww.regulations.gov and upon request from the 
Field Supervisor, Carlsbad Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT section).

Author(s)

    The primary author of this notice is the staff from the Carlsbad 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec.  17.95(e), revise the entry for ``Santa Ana sucker 
(Catostomus santaanae)'' to read as follows:
    Sec.  17.95 Critical habitat--fish and wildlife.
    * * * * *
    (e) Fishes.
    * * * * *
    Santa Ana sucker (Catostomus santaanae)
    (1) Critical habitat units are depicted for Los Angeles, Orange, 
Riverside, and San Bernardino Counties, California, on the maps below.
    (2) Within these areas, the physical and biological features for 
the Santa Ana sucker are as follows:
    (i) A functioning hydrological system within the historical 
geographic range of the Santa Ana sucker that experiences peaks and 
ebbs in the water volume (either naturally or regulated) necessary to 
maintain all life stages of the species in the riverine environment, 
including breeding site selection, resting, larval development, and 
protection in cool-water refuges (i.e., tributaries);
    (ii) Stream channel substrate consisting of 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 m per second (0.01 ft per second);
    (iv) Clear or only occasionally turbid water;
    (v) Water temperatures less than 30 [deg]C (86 [deg]F); and
    (vi) In-stream habitat that includes food sources (such as 
zooplankton, phytoplankton, and aquatic invertebrates), and associated 
vegetation such as aquatic emergent vegetation and adjacent riparian 
vegetation to: (A) reduce water temperature when ambient temperatures 
are high; (B) provide shelter; and (C) provide protective cover from 
predators; and
    (vii) Areas within perennial stream courses that may be 
periodically dewatered, but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    (3) Critical habitat does not include manmade structures existing 
on the effective date of this rule and not containing one of more of 
the physical and biological features, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located.
    (4) Critical habitat map units. Data layers defining map units were 
created using a base of U.S. Geological Survey 7.5' quadrangle maps. 
Critical habitat units were then mapped using Universal Transverse 
Mercator (UTM) zone 11, North American Datum (NAD) 1983 coordinates.
    (5) Note: Index map of critical habitat units for the Santa Ana 
sucker (Catostomus santaanae) follows:
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[[Page 65082]]

[GRAPHIC] [TIFF OMITTED] TP09DE09.000


[[Page 65083]]


    (6) Unit 1: Santa Ana River, Orange, Riverside, and San Bernardino 
Counties, California.
    (i) Subunit 1A: Upper Santa Ana River and Wash, San Bernardino 
County.
    (A) [Reserved for textual description of Subunit 1A.]
(B) Map of Subunit 1A (Upper Santa Ana River and Wash) follows:
[GRAPHIC] [TIFF OMITTED] TP09DE09.001


[[Page 65084]]


    (ii) Subunit 1B: Santa Ana River, Riverside and San Bernardino 
Counties.
    (A) [Reserved for textual description of Subunit 1B.]
    (B) Map of Subunit 1B: (Santa Ana River) follows:
    [GRAPHIC] [TIFF OMITTED] TP09DE09.002
    

[[Page 65085]]


    (iii) Subunit 1C: Lower Santa Ana River, Orange and Riverside 
Counties.
    (A) [Reserved for textual description of Subunit 1C.]
    (B) Map of Subunit 1C (Lower Santa Ana River) follows:
    [GRAPHIC] [TIFF OMITTED] TP09DE09.003
    

[[Page 65086]]


     (7) Unit 2: San Gabriel River, Los Angeles County, California.
    (i) [Reserved for textual description of Unit 2.]
    (ii) Map of Unit 2 (San Gabriel River) follows:
    [GRAPHIC] [TIFF OMITTED] TP09DE09.004
    

[[Page 65087]]


    (8) Unit 3: Big Tujunga Wash, Los Angeles County, California.
    (i) Subunit 3A: Big Tujunga Wash.
    (A) [Reserved for textual description of Subunit 3A.]
    (B) Map of Subunit 3A (Big Tujunga Wash) appears in paragraph 
(8)(ii)(B) of this entry.
    (ii) Subunit 3B: Gold Canyon, Delta Canyon, and Stone Canyon 
Creeks.
    (A) [Reserved for textual description of Subunit 3B.]
    (B) Map of Unit 3 (Big Tujunga Wash) follows:
    [GRAPHIC] [TIFF OMITTED] TP09DE09.005
    
    * * * * *

    Dated: November 21, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-29024 Filed 12-8-09; 8:45 am]
BILLING CODE 4310-55-C