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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT57 

Endangered and Threatened Wildlife 

and Plants; Final Rule To Designate 

Critical Habitat for the Santa Ana 

Sucker (Catostomus santaanae)

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

critical habitat for the threatened Santa 

Ana sucker (Catostomus santaanae) 

pursuant to the Endangered Species Act 

of 1973, as amended (Act). This species 

is now restricted to three noncontiguous 

populations in three different stream 

systems in southern California: The 

lower and middle Santa Ana River in 

San Bernardino, Riverside, and Orange 

counties; the East, West, and North 

Forks of the San Gabriel River in Los 

Angeles County; and lower Big Tujunga 

Creek, a tributary of the Los Angeles 

River in Los Angeles County. We have 

identified 23,719 acres (ac) (9,599 

hectares (ha)) of aquatic and riparian 

habitats essential to the conservation of 

the Santa Ana sucker. We are 

designating two areas in Los Angeles 

County, one along the San Gabriel River 

(Unit 2) and the other along the Big 

Tujunga Creek (Unit 3) as critical habitat 

for Santa Ana sucker. These units 

encompass approximately 8,305 ac 

(3,361 ha) of essential habitat for the 

Santa Ana sucker within Los Angeles 

County. Essential habitat for the Santa 

Ana sucker in Orange, Riverside, and 

San Bernardino counties has been 

excluded from the final critical habitat 

designation, because we have concluded 

that the benefits of excluding these 

lands from critical habitat designation 

outweigh the benefits of their inclusion 

pursuant to section 4(b)(2) of the Act.

DATES: This rule becomes effective on 

February 3, 2005.

ADDRESSES: Comments and materials 

received, as well as supporting 

information used in this rulemaking, are 

available for inspection, by 

appointment, during normal business 

hours at the U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, 

Carlsbad, California 92009. You may 

obtain copies of the final rule and the 

economic analysis from the field office 

address above or by calling (760) 431–

9440, or from our Internet site at

http://carlsbad.fws.gov.

If you would like copies of the 

regulations on listed wildlife or have 

questions about prohibitions and 

permits, please contact the Carlsbad 

Fish and Wildlife Office (see ADDRESSES

above).

FOR FURTHER INFORMATION CONTACT: Mr. 

Jim Bartel, Field Supervisor, Carlsbad 

Fish and Wildlife Office, at the address 

and phone number listed above.

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides 

Little Additional Protection to Species 

In 30 years of implementing the Act, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of available 

conservation resources. The Service’s 

present system for designating critical 

habitat has evolved since its original 

statutory prescription into a process that 

provides little real conservation benefit, 

is driven by litigation and the courts 

rather than biology, limits our ability to 

fully evaluate the science involved, and 

consumes enormous agency resources, 

and imposes huge social and economic 

costs. The Service believes that 

additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the Act can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’ Currently, 

only 445 species or 36 percent of the 

1,244 listed species in the U.S. under 

the jurisdiction of the Service have 

designated critical habitat. We address 

the habitat needs of all 1,244 listed 

species through conservation 

mechanisms such as listing, section 7 

consultations, the Section 4 recovery 

planning process, the Section 9 

protective prohibitions of unauthorized 

take, Section 6 funding to the States, 

and the Section 10 incidental take 

permit process. The Service believes 

that it is these measures that may make 

the difference between extinction and 

survival for many species. 

We note, however, that a recent 9th 

Circuit judicial opinion, Gifford Pinchot 

Task Force v. United States Fish and 

Wildlife Service, has invalidated the 

Service’s regulation defining destruction 

or adverse modification of critical 

habitat. We are currently reviewing the 

decision to determine what effect it may 

have on the outcome of consultations 

pursuant to Section 7 of the Act. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. The 

accelerated schedules of court ordered 

designations have left the Service with 

almost no ability to provide for adequate 

public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals due to the risks 

associated with noncompliance with 

judicially-imposed deadlines. This in 

turn fosters a second round of litigation 

in which those who fear adverse 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless, is very expensive, and 

in the final analysis provides relatively 

little additional protection to listed 

species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects, the cost of requesting 

and responding to public comment, and 

in some cases the costs of compliance 

with the National Environmental Policy 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 427

Act (NEPA), all are part of the cost of 

critical habitat designation. None of 

these costs result in any benefit to the 

species that is not already afforded by 

the protections of the Act enumerated 

earlier, and they directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

This revised final rule addresses the 

designation of critical habitat for the 

Santa Ana sucker (Catostomus 

santaanae) (sucker), which is endemic 

to the Los Angeles River, the San 

Gabriel River, and the Santa Ana River, 

and assumed to be introduced to the 

Santa Clara River in California. In this 

revised final rule, we discuss 

information obtained since the proposed 

and original final critical habitat rules 

published concurrently in the Federal 

Register on February 26, 2004 (69 FR 

8911 and 69 FR 8839). 

The sucker has evolved in the 

dynamic hydrological systems of 

southern California and requires clean, 

clear, and relatively cool streams of 

varying width and depth with 

appropriate substrates (e.g., a mix of 

sand, gravel, cobble, and boulder). The 

sucker scrapes algae and invertebrates 

from hard substrates such as gravel and 

cobbles and spawns over a gravel and 

cobble substrate. Please refer to the final 

rule listing the species as threatened (65 

FR 19686) and our previous final critical 

habitat rule (69 FR 8839) for a more 

detailed discussion about the species’

physical description, ecology, range, 

distribution, and a discussion of factors 

affecting the species. 

Previous Federal Action 

On July 9, 2001, California Trout, Inc., 

the California-Nevada Chapter of the 

American Fisheries Society, the Center 

for Biological Diversity, and the Friends 

of the River (plaintiffs) filed a 60-day 

notice of intent to sue over our failure 

to designate critical habitat for the Santa 

Ana sucker. The plaintiffs filed a second 

amended complaint for declaratory 

judgment and injunctive relief on March 

19, 2002, with the U.S. District Court for 

the Northern District of California. On 

February 26, 2003, the district court 

ordered the Service to designate final 

critical habitat for the Santa Ana sucker 

by no later than February 21, 2004, and 

enjoined the Service from issuing any 

section 7 concurrence letters or 

biological opinions on actions that ‘‘may 

affect’’ the sucker until such time as the 

final critical habitat is designated. The 

Service published the proposed and 

final rules concurrently on February 26, 

2004 (69 FR 8911 and 69 FR 8839). As 

a result, the injunction prohibiting the 

issuance of biological opinions and 

concurrence letters was lifted. See the 

proposed rule (69 FR 8911) for a 

discussion of why the final rule and 

proposed rule were published at the 

same time.

The proposed critical habitat rule, 

published on February 26, 2004 (69 FR 

8911), included a 60-day comment 

period during which the public could 

submit comments on the proposed 

designation. On August 19, 2004, we 

published a notice in the Federal 

Register (69 FR 51416) announcing the 

reopening of a 30-day comment period 

on the proposed critical habitat rule and 

the scheduling of a public hearing, 

which was held in Pasadena, California 

on September 9, 2004. On October 1, 

2004, we published a Federal Register

notice (69 FR 58876) announcing the 

availability of the draft economic 

analysis of the proposed critical habitat 

designation and reopening a 10-day 

public comment period for the 

economic analysis and proposed 

designation. On October 25, 2004, we 

published another notice in the Federal 

Register (69 FR 62238) reopening a 30-

day comment period on the draft 

economic analysis and the proposed 

designation. 

Summary of Comments and 

Recommendations 

During the initial 60-day public 

comment period for the proposed rule 

(69 FR 8911), we contacted all 

appropriate State and Federal agencies, 

county governments, elected officials, 

scientific organizations, and other 

interested parties, via mail and/or fax, 

and invited them to submit comments 

and/or information concerning the 

proposed rule. We also published 

newspaper notices in the The PressEnterprise, Riverside, CA, and in the Los 

Angeles Times, Los Angeles, CA, 

inviting public comment. During the 

first comment period, we received 

comments from three county agencies, 

three water districts, two businesses, 

three groups, and 14 individuals. Of the 

22 letters we received, four letters 

supported the designation as proposed, 

six letters suggested expanding the 

designation, six letters suggested 

reducing the designation, one letter 

requested clarification of the 

designation, and five letters were 

neutral. 

During the second comment period, 

we received comments from one utility 

agency, three groups, and four 

individuals. Of the six letters we 

received, one letter supported the 

designation as proposed, two letters 

suggested expanding the designation, 

one letter suggested reducing the 

designation, and two letters were 

neutral. At the public hearing during the 

second comment period, we received 21 

oral comments, all of which requested a 

reduction in the designation. A 

transcript of the hearing is available for 

inspection (see ADDRESSES section). 

During the third comment period 

(October 1 to 12, 2004), which regarded 

the draft economic analysis, we received 

comments from 1 county agency, 3 

water districts, 1 business, 4 groups, and 

2 individuals. Of the 7 letters we 

received, 4 letters were requests for an 

extension of the comment submission 

period, and 3 letters contained 

suggestions for improvements to the 

draft economic analysis. Of the latter 3 

letters, 1 supported the designation as 

proposed and 2 suggested reducing the 

designation. 

During the fourth comment period 

(October 25 to November 24, 2004), 

which regarded the draft economic 

analysis, we received comments from 7 

groups, 8 individuals, and 1 project 

authority (representing 1 county agency 

and 4 water districts). Of the 13 letters 

we received, 10 letters supported the 

designation as proposed, 2 letters 

suggested reducing the designation, and 

1 letter requested clarification of the 

draft economic analysis. (After the 

comments deadline, we received 2 

letters with comments from 1 county 

agency suggested reducing the 

designation, and a letter from 1 business 

requesting an extension of the 

comments deadline.) 

In accordance with our peer review 

policy published in the Federal Register

on July 1, 1994 (59 FR 34270), we 

requested the expert opinions of seven 

independent specialists who are 

recognized authorities on freshwater 

fish of Southern California regarding 

pertinent scientific or commercial data 

and assumptions relating to the 

supporting biological and ecological 

information in the proposed 

designation. The purpose of such review 

is to ensure that the designation is based 

on scientifically sound data, 

assumptions, and analyses, including 

input of appropriate experts and 

specialists. 

We reviewed all comments, including 

the oral statements presented at the 

public hearing and the written 

comments received from peer reviewers 

and the public during the comment 

periods, for substantive, relevant issues 

and new data regarding critical habitat 

and the Santa Ana sucker. Peer reviewer 

comments are summarized separately in 

the following section. We have grouped 

public comments into six general issues 

relating to critical habitat and the draft 

economic analysis, combined and 

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

summarized similar comments, and 

provided our responses in the Public 

Comments section below. 

Peer Review Comments 

We received three written responses 

from peer reviewers recommending 

expansion of critical habitat and one 

written response supporting critical 

habitat as designated. One additional 

peer reviewer supported designated 

critical habitat, but this letter was 

received after the deadline. Two peer 

reviewers supplied specific edits and 

comments on the critical habitat unit 

boundaries and the primary constituent 

elements. Comments from peer 

reviewers have been incorporated into 

this final rule as appropriate. 

(1) Comment: The upper boundary of 

critical habitat on the East Fork of the 

San Gabriel River should be the Bridgeof-No-Return and was incorrectly 

delineated on the map in the final rule 

(69 FR 8859). 

Our Response: We acknowledge that 

this upper boundary was incorrectly 

delineated on the map of Unit 2 in the 

original final rule. This area was also 

inadvertently left out of the legal 

description of the unit. As a result, we 

cannot include the area in the revised 

final designation even though this area 

is essential to the conservation of the 

sucker. We may, under the Act, revise 

the designation of critical habitat in the 

future to include this area.

(2) Comment: The stretches of the San 

Gabriel River between the San Gabriel 

Dam and the Morris Dam reservoir, 

between the Highway 39 bridge and the 

Fish Canyon confluence with the river, 

and upstream of Cogswell Dam should 

be included in critical habitat because 

these areas contain potentially occupied 

and/or restorable habitat. 

Our Response: Although we 

appreciate the importance of potentially 

suitable habitat within these stretches of 

the San Gabriel River, we do not have 

sufficient information to determine if 

these portions of the river contain the 

primary constituent elements essential 

to the conservation of the sucker and 

therefore, we could not designate these 

areas as critical habitat. Under the Act, 

we can revise critical habitat in the 

future if new information becomes 

available indicating that these areas are 

essential. 

(3) Comment: Devil’s Gulch, a 

tributary to the East Fork of the San 

Gabriel River, should not have been 

included in designated critical habitat 

because it does not support the Santa 

Ana sucker. 

Our Response: Devil’s Gulch was not 

designated as critical habitat. 

(4) Comment: There is a barrier to fish 

movement upstream from the San 

Gabriel River into Big Mermaid’s 

Canyon and therefore Big Mermaid’s 

Canyon should not be designated as 

critical habitat. 

Our Response: Using the best 

available information, including records 

from the California Natural Diversity 

Database (CNDDB), we determined that 

Big Mermaid’s Canyon previously 

supported suckers and still is essential 

to the conservation of the sucker in that 

it transports water and substrate 

essential to the maintenance of 

occupied sucker habitat downstream. 

(5) Comment: Haines Creek should be 

specifically described as part of 

designated critical habitat for the 

sucker. 

Our Response: Haines Creek is located 

within the boundaries of the Big 

Tujunga Creek Critical Habitat Unit 

(Unit 3), and has been specifically listed 

in the description of this unit in this 

revised final rule. 

(6) Comment: The Service has not 

adequately supported its statement that 

the upper Santa Ana Wash and 

tributaries provide sediment transport to 

occupied habitat. 

Our Response: We based the Santa 

Ana sucker critical habitat designation 

on the best available information, 

including expert opinion (Dr. Thomas 

Haglund, Ichthyologist, pers. comm. 

2004; Dr. Jonathan Baskin, 

Ichthyologist, California State 

Polytechnic University, Pomona, pers. 

comm. 2004) and studies in similar river 

systems in California (NOAA 2003). 

While the Santa Ana Wash was 

proposed as critical habitat based on, 

among other things, its contribution of 

sediments and maintenance of a 

functioning hydrograph, these attributes 

do not, of themselves, warrant 

determining that an area is ‘‘essential to 

the conservation of the species’’, which 

is the statutory standard for designation 

of unoccupied areas. Therefore, Unit 1B, 

Santa Ana Wash, has been removed 

from the revised designation. The basis 

for this removal is summarized in the 

section entitled ‘‘Summary of Changes’’. 

(7) Comment: The criteria used to 

designate individual tributaries in Unit 

1B, the Santa Ana Wash and in Unit 3, 

Big Tujunga Creek as critical habitat 

were not consistently applied. 

Our Response: We based our 

determination to designate tributaries in 

Unit 1B and Unit 3 on the best available 

data, including aerial photographs and 

historical sucker occurrences. We 

determined that these tributaries 

maintain a functioning hydrological 

system, provide and transport sediment 

downstream to occupied habitat, 

support riparian systems, and maintain 

the long-term viability of the sucker 

populations. We believe that we applied 

these criteria consistently to each area 

designated as critical habitat. Please 

refer to the Methods and Criteria Used 

To Delineate Critical Habitat section of 

this rule for a more detailed discussion. 

However, the Santa Ana Wash and 

associated tributaries within Unit 1B 

have been excluded from the revised 

designation. The basis for this exclusion 

is summarized in the section entitled 

‘‘Summary of Changes’’.

(8) Comment: The primary constituent 

element describing substrate types 

should be refined to include lowembeddedness. 

Our Response: We concur and have 

revised the description of the primary 

constituent element describing 

substrate. Please refer to the Primary 

Constituent Elements section of this rule 

for a detailed description. 

(9) Comment: Minimum water depth 

of from 3 to 30 centimeters (cm) (1.2 to 

11.8 inches (in)) should be changed. 

Depths less than 4 cm (1.6 in) would not 

provide habitat for most life stages of 

the sucker. 

Our Response: We used 3 cm (1.2 in) 

as the minimum water depth because of 

the observations of larval suckers in 

sandy habitats with depths of 3 to 10 cm 

(1.2 to 3.9 in) of water along the margins 

of rivers and streams (Haglund et al., 

2004). 

(10) Comment: Juvenile suckers 

migrate into tributaries, possibly 

attracted by the cooler temperatures 

these tributaries experience in the 

spring. Therefore, tributaries should be 

included as a primary constituent 

element in critical habitat. Sunnyslope 

Creek, Arroyo Tequesquite, Evans Lake 

Drain, Mt. Rubidoux Creek, Agua Mansa 

Drain, and the tributaries draining 

Hidden Valley Regional Park wetlands 

should be included as critical habitat. 

Our Response: If a tributary within 

the critical habitat boundaries contained 

one or more of the primary constituent 

elements, then it was considered 

essential habitat. Some tributaries 

within the critical habitat boundaries do 

not contain any of the primary 

constituent elements and were not, 

therefore, considered essential. For 

example, a concrete-lined storm drain 

directing urban runoff into one of the 

rivers is unlikely to provide any of the 

primary constituent elements essential 

to the conservation of the species. 

Although we did not specifically 

describe tributaries as a primary 

constituent element, they are necessary 

in a functioning hydrological system 

and are included in the critical habitat 

designation where appropriate. 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 429

Several of the drains, creeks, and 

other tributaries listed by the 

commenter contain the primary 

constituent elements and are considered 

essential habitat but were excluded from 

the critical habitat designation under 

section 4(b)(2) of the Act, because they 

are protected under the Western 

Riverside Multiple Species Habitat 

Conservation Plan (MSHCP). 

(11) Comment: Unnatural or 

anthropogenic ebbs and peaks in water 

volume may be inadvertently included 

as primary constituent elements, since 

the description of a functioning 

hydrological system as a primary 

constituent element did not specify that 

it must contain a natural hydrograph. 

Our Response: We concur and have 

revised the primary constituent element 

describing a functional hydrological 

system. Please refer to the Primary 

Constituent Elements section of this rule 

for a detailed description. 

Public Comments 

Issue 1: Comments on the Adequacy 

and the Extent of Critical Habitat 

Designation 

(12) Comment: Critical habitat should 

be designated in the Santa Clara River 

because (1) the Santa Clara River is 

essential to the conservation of the 

Santa Ana sucker, (2) the population 

provides increased genetic variability to 

the overall sucker population, (3) the 

Santa Clara River is threatened by rapid 

development within its watershed, and 

(4) the Santa Clara River is not 

otherwise protected under the Act. The 

Santa Ana sucker in the Santa Clara 

River should be listed under the Act, 

since there remains much ambiguity 

regarding its status as an introduced 

species in the Santa Clara River. 

Our Response: Since the sucker 

population in the Santa Clara River is 

not federally listed (65 FR 79686), 

critical habitat could not be designated 

for that population. The sucker was not 

listed in the Santa Clara River due to the 

lack of evidence showing the sucker was 

native to the Santa Clara River. Our 

earliest record of the sucker in the Santa 

Clara River watershed is from 1934 

(Hubbs et al. 1943). Conversely, we have 

records of the sucker in the Santa Ana 

River from 1897 (Snyder 1908). 

Therefore, based on the best available 

data, we have presumed the sucker in 

the Santa Clara River was introduced. If 

we determine the Santa Clara River 

population to be crucial to the recovery 

of the species as we prepare the 

recovery plan, we may need to 

reevaluate the status of this population 

under the Act. 

(13) Comment: Since the area below 

Prado Dam in the Santa Ana River is not 

adequately protected by either the Santa 

Ana Sucker (SAS) Conservation 

Program or by the Western Riverside 

MSHCP, it should be included in the 

critical habitat designation. Since the 

SAS Conservation Program focuses 

conservation efforts on the upper stretch 

of the Santa Ana River, it may not 

adequately address the conservation 

needs of the sucker throughout the 

Santa Ana River. Another commenter 

stated that the benefits of including the 

areas covered by these plans in the 

critical habitat designation outweigh 

potential costs to other agencies and 

that critical habitat designation provides 

greater benefits to the sucker than either 

of the plans. 

Our Response: Section 4(b)(2) of the 

Act allows the Service to exclude any 

area from critical habitat if we 

determine that the benefits of such an 

exclusion outweigh the benefits of 

including the area in the critical habitat 

designation, unless, based on the best 

scientific and commercial data 

available, we determine that failure to 

designate the area as critical habitat will 

result in the extinction of the species. 

Exclusions can be based on Integrated 

Natural Resource Management Plans 

(INRMPs) on military lands, Habitat 

Conservation Plans (HCPs), or other 

formal conservation plans; except for 

INRMPs, plans must provide 

conservation benefits to the species as 

well as assurances that the plan will be 

implemented and the conservation 

effort will be effective. We have 

determined that both the Western 

Riverside MSHCP and the SAS 

Conservation Program satisfy these 

requisites, and have, therefore, 

concluded that the benefits of excluding 

the lands covered by these plans from 

the final critical habitat designation 

outweigh the benefits of including these 

areas. As such, they are excluded from 

critical habitat designation. See Lands 

Covered Under Existing Conservation 

Plans for a detailed discussion. 

(14) Comment: Habitat within the 

boundaries of the Western Riverside 

MSHCP and SAS Conservation Program 

meet the definition of critical habitat 

and should be included in designated 

critical habitat. 

Our Response: Although the habitat 

within the boundaries of these 

conservation plans contains one or more 

of the physical and biological 

characteristics essential to the 

conservation of the sucker, we have 

determined that these conservation 

plans provide special management and/

or protection for the Santa Ana sucker, 

and have concluded that the benefits of 

excluding the lands covered by these 

plans from the final critical habitat 

designation outweigh the benefits of 

including these areas. Thus, we have 

excluded these areas from critical 

habitat designation under 4(b)(2) of the 

Act.

Issue 2: Comments on Individual Units 

(15) Comment: Commenters stated 

that Santa Ana suckers are declining as 

a result of heavy recreational use in the 

San Gabriel River. Conversely, some 

other commenters stated suckers in the 

San Gabriel River were not declining as 

the result of recreational activities or as 

a result of the use of summer homes. 

Our Response: Based on the best 

available information, we believe that 

recreational suction dredging, artificial 

pool creation, off-road vehicle use, 

swimming, wading, bathing, and the use 

of recreational summer homes may have 

varying detrimental effects on the Santa 

Ana sucker. 

Suction dredging, which occurs on a 

recreational basis in the San Gabriel 

River can result in the death of fish eggs, 

larvae, and fry (Harvey and Lisle 1998; 

Griffith and Andrews 1981). Suction 

dredging can also change the functional 

composition of the invertebrate 

community and increase sedimentation 

rates in sensitive spawning and feeding 

habitats (Somer and Hassler 1992). 

The use of the river as an off-highway 

vehicle (OHV) recreational area may 

result in adverse effects to the sucker, if 

the OHV use occurs in areas used by the 

sucker during the spawning and nursery 

season, or if vehicles leak oil, gas, and 

other pollutants into the river. OHV use 

can change the physical structure of 

habitat (Wender and Walker 1998; Texas 

Chapter of American Fisheries Society 

2002; Brown 1994), crush eggs and 

larvae within the substrate (Texas 

Chapter of American Fisheries Society 

2002), and reduce the taxonomic 

diversity of the macroinvertebrate and 

algal species (Texas Chapter of 

American Fisheries Society 2002) which 

is the food base for the sucker (Haglund 

and Baskin 2003; Greenfield et al. 1970). 

Haglund and Baskin (2002) recently 

completed a one-year study in the San 

Gabriel River; their results suggest that 

macroinvertebrate diversity was 

reduced in vehicle ruts and tracks. 

However, they concluded there was no 

evidence at that time to indicate that the 

intensity of OHV usage was related to 

trends in native fish populations 

(although they recommended further 

investigation before drawing firm 

conclusions). 

Swimming, wading, and bathing can 

degrade the physical structure and 

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

water quality of streams. Erosion 

associated with heavy recreational use 

along streambanks contributes to 

degraded habitat conditions including 

increased sedimentation in potential 

spawning and feeding grounds and loss 

of habitat structure (e.g., pools, riffles, 

shallow sandy margins) that provide 

essential elements to the survival of the 

sucker. The damming of the river to 

create recreational swimming pools may 

temporarily eliminate fish passage and 

limit the availability of suitable habitat 

for the sucker (Ally, in litt. 2001). 

Pollution associated with personal care 

products (e.g., suntan lotion, shampoo, 

soap, insect repellent) that can be 

released into the aquatic environment 

during swimming, wading, and bathing 

can have adverse physiological effects 

on the endocrine system of fishes 

(Daughton and Ternes 1999). 

We have been working and will 

continue to work with the U. S. Forest 

Service (Forest Service) to ensure their 

actions with respect to the sucker will 

not result in jeopardy to or take of the 

species. The Forest Service has recently 

implemented measures to reduce OHV 

activity in areas in which suckers are 

suspected to spawn as part of the 

Angeles National Forest Santa Ana 

Sucker Conservation Strategy. 

(16) Comment: The San Gabriel 

Canyon OHV Area is currently a 

Department of Defense training facility 

and is also covered under a Forest 

Service management plan. Therefore, 

this area should be excluded from 

designated critical habitat. 

Our Response: Section 4(b)(2) of the 

Act allows the Service to exclude any 

area from critical habitat if the Service 

determines the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of critical 

habitat, unless, based on the best 

scientific and commercial data 

available, the Service determines that 

failure to designate the area as critical 

habitat will result in the extinction of 

the species. Exclusions can be based on 

INRMPs for military lands, HCPs, and 

formal conservation plans. We have 

confirmed with the Forest Service that 

the Department of Defense does not 

currently use the San Gabriel Canyon 

OHV Area as a training facility (Bill 

Brown, U.S. Forest Service, pers. comm. 

2004), and therefore does not qualify for 

exclusion as provided for military lands 

under section 4(b)(2) of the Act. 

The Service must determine that a 

management plan provides a 

conservation benefit to the species, and 

assurances that the management plan 

will be implemented, and the 

conservation effort will be effective. We 

have reviewed the San Gabriel Canyon 

Off-Road Vehicle Management Plan 

(U.S. Forest Service 1985) for 

consistency with the aforementioned 

criteria. While we appreciate the 

significant amount of effort private 

individuals and the Forest Service have 

expended in the development of this 

management plan, it does not 

adequately address the conservation 

needs of the sucker in the San Gabriel 

River and therefore, we cannot exclude 

this area from the critical habitat 

designation under 4(b)(2) of the Act. We 

are working with the Forest Service to 

better conserve the sucker in this area. 

(17) Comment: Only a small portion 

of the San Gabriel Canyon OHV Area 

contains suitable habitat for the Santa 

Ana sucker. 

Our Response: Our regulations allow 

us to designate critical habitat in areas 

where the species is not present if they 

are in proximity to areas occupied by 

the species and are essential to their 

conservation (50 CFR 424.12(d)). 

Although suckers may not occupy this 

area when the reservoir is full, this area 

does provide a linkage between the 

West, East, and North Forks of the San 

Gabriel River. Linkages are essential to 

maintaining the genetic structure and 

viability of the species in this river. 

Therefore, we consider all portions of 

the San Gabriel Canyon OHV Area 

within the geographical boundaries of 

the designation as critical habitat.

(18) Comment: Habitat for the sucker 

is not present in the plunge pool 

immediately downstream of Cogswell 

Dam or for 1,000 feet downstream of 

Cogswell Dam in the West Fork of San 

Gabriel River. Therefore, this section of 

the river should be excluded from 

critical habitat. 

Our Response: Based on the best 

available information, we have 

determined that this area of the West 

Fork of the San Gabriel River contains 

substrate, vegetation, and water that are 

essential for the conservation of the 

species (Haglund and Baskin 1996; 

Haglund and Baskin 1995; U.S. Forest 

Service 2003). The Santa Ana sucker 

was detected in the vicinity of this area 

during the last decade (Haglund and 

Baskin 1996). Therefore, since this area 

had been occupied and since it contains 

the primary constituent elements of 

critical habitat, this area will remain 

designated as critical habitat. Under the 

Act, we can revise critical habitat in the 

future, if new information becomes 

available. 

(19) Comment: A 1,000-foot portion of 

the East Fork of the San Gabriel River 

downstream of the confluence of the 

East, West, and North forks should be 

excluded from critical habitat because 

critical habitat designation will limit the 

implementation of flood protection 

measures, the amount of water that can 

be stored behind the San Gabriel Dam, 

and revenue for the hydroelectric plant 

located downstream of the dam. 

Our Response: This area was included 

in the critical habitat designation 

because it provides a linkage between 

the West, East, and North Forks of the 

San Gabriel River. Linkages are essential 

to maintaining the genetic structure and 

viability of the species in this river. Our 

regulations allow us to designate critical 

habitat in areas where the species is not 

present if they are in proximity to areas 

occupied by the species and are 

essential to their conservation (50 CFR 

424.12(d)). In addition, significant 

numbers of suckers were detected in the 

vicinity of this area during recent 

surveys (M. Chimienti, Los Angeles 

County Department of Public Works, 

pers. comm. 2004). Therefore, this area 

of the East Fork of the San Gabriel River 

will remain in the critical habitat 

designation. Under the Act, we can 

revise critical habitat in the future, if 

new information becomes available. 

(20) Comment: Within the San Gabriel 

River, critical habitat should be 

designated between Morris Dam and 

Fish Canyon as well as lower San Jose 

Creek, a tributary to San Gabriel River. 

The commenter did not state why this 

area should be designated. 

Our Response: Although we 

appreciate the potential for habitat in 

this portion of the San Gabriel River and 

lower San Jose Creek, we do not have 

sufficient information to determine if 

these areas contain the primary 

constituent elements essential to the 

conservation of the sucker. Therefore, 

we cannot designate these areas as 

critical habitat. Under the Act, we can 

revise critical habitat in the future, if 

new information becomes available. 

(21) Comment: Within Big Tujunga 

Creek, habitat for the sucker is not 

present in the plunge pool immediately 

below Big Tujunga Dam or for one mile 

downstream of Big Tujunga Dam. 

Therefore, these sections of Big Tujunga 

Creek should be excluded from critical 

habitat. 

Our Response: We have determined 

that the upstream sections of the Big 

Tujunga Creek transport sediment from 

upstream tributaries to known occupied 

habitat in the lower Big Tujunga Creek. 

In addition, this portion of the creek 

meets the definition of critical habitat 

since it contains water, substrates, and 

riparian and aquatic vegetation essential 

for the conservation of the species 

(Andresen 2001; Haglund and Baskin 

2001). Although some structures in this 

area may seasonally limit upstream 

movement of suckers, these structures 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 431

are not necessarily year-round 

impediments to fish passage (Swift 

2002). Therefore, since this area 

maintains essential habitat downstream, 

has a strong potential to be occupied, 

and contains the primary constituent 

elements of critical habitat, this area is 

essential to the conservation of the 

species and will remain in the critical 

habitat designation. Under the Act, we 

can revise critical habitat in the future, 

if new information becomes available. 

(22) Comment: Habitat is not present 

within an unnamed tributary of Big 

Tujunga Creek that is 500 feet 

downstream of Foothill Boulevard. 

Our Response: We have not been 

provided with enough information to 

determine the location of this unnamed 

tributary. However, the floodplain of Big 

Tujunga Creek meets the definition of 

critical habitat since it contains the 

necessary hydrology, substrates, water, 

and vegetation essential to the 

conservation of the species. Therefore, 

any tributaries with these primary 

constituent elements are considered 

critical habitat when they are within the 

Big Tujunga Creek floodplain. Under the 

Act, we can revise critical habitat in the 

future, if new information becomes 

available. 

(23) Comment: Some commenters 

stated that Little Tujunga Creek in Unit 

3 should be excluded from critical 

habitat because it is not occupied by the 

sucker, and does not provide sediment 

or water to occupied habitat in Big 

Tujunga Creek. Other commenters 

emphasized the importance of 

maintaining the original area proposed 

as critical habitat, including Little 

Tujunga Creek. 

Our Response: Based on comments 

and information we received during the 

public comment periods and additional 

field investigations, we have removed 

Little Tujunga Creek upstream of its 

confluence with Big Tujunga Creek from 

the final critical habitat designation and 

revised the maps accordingly. 

(24) Comment: In Unit 3, critical 

habitat should be designated in Trail 

Canyon and La Paloma Canyon and all 

other tributaries to the Big Tujunga 

Creek.

Our Response: Although we 

appreciate the potential for habitat and 

water supply in Trail and La Paloma 

Canyons, as well as in many of the other 

tributaries to Big Tujunga Creek, we do 

not have sufficient information to 

determine if these tributaries contain 

the primary constituent elements 

essential to the conservation of the 

sucker. Therefore, we cannot designate 

these areas as critical habitat. Under the 

Act, we can revise critical habitat in the 

future, if new information becomes 

available. 

(25) Comment: Critical habitat should 

be designated in the Los Angeles River 

between State Route 134 and Interstate 

5. 

Our Response: Although we 

appreciate the potential for habitat in 

this portion of the Los Angeles River, 

we do not have sufficient information to 

determine if it contains the primary 

constituent elements essential to the 

conservation of the sucker. Therefore, 

we cannot designate this area as critical 

habitat. Under the Act, we can revise 

critical habitat in the future, if new 

information becomes available. 

(26) Comment: Unit 1B (Santa Ana 

Wash) is not occupied and therefore is 

not essential to the conservation of the 

species. Also, Mill Creek is generally 

dry and could not support the sucker. 

Furthermore, the Service has not 

demonstrated that Unit 1B supports a 

natural hydrograph, is essential to the 

conservation of the species, or is 

necessary for the long-term viability of 

the species. 

Our Response: As stated in the 

previous final critical habitat rule or 

listing rule, Mill Creek, City Creek, and 

the upper Santa Ana Wash in Unit 1B 

are a source of sediment for the 

occupied portion of the Santa Ana River 

(Dr. Thomas Haglund, pers. comm. 

2004; Dr. Jonathan Baskin, pers. comm. 

2004; EIP Associates 2004). This 

sediment, which is composed of cobble, 

gravel, and sand, provides spawning 

and feeding substrates for the sucker 

and is essential to the conservation of 

the species. 

In addition to sediment transport, 

Unit 1B supports a functioning 

hydrological system (Dr. Thomas 

Haglund, pers. comm. 2004; Dr. 

Jonathan Baskin, pers. comm. 2004) that 

experiences peaks and ebbs in water 

volume within the Santa Ana River 

watershed (Dr. Thomas Haglund, pers. 

comm. 2004; Dr. Jonathan Baskin, pers. 

comm. 2004). Although much of the 

surface water within Unit 1B has been 

diverted for municipal uses or other 

purposes, heavy rainstorms during the 

rainy season do provide flows that are 

biologically important to the sucker 

(Swift 2001; EIP Associates 2004). 

While the Santa Ana Wash was 

proposed as critical habitat based on, 

among other things, its contribution of 

sediments and maintenance of a 

functioning hydrograph, these attributes 

do not, of themselves, warrant 

determining that an area is ‘‘essential to 

the conservation of the species’’, which 

is the statutory standard for designation 

of unoccupied areas. Therefore, Unit 1B, 

Santa Ana Wash, has been removed 

from the revised designation. The basis 

for this removal is summarized in the 

section entitled ‘‘Summary of Changes’’. 

(27) Comment: Unit 1B does not 

support riparian systems that are 

essential to the conservation of the 

sucker. 

Our Response: As stated in previous 

rules, the existing riparian habitat in 

City Creek, Mill Creek, and the upper 

Santa Ana Wash in Unit 1B contributes 

to maintaining water quality and the 

community structure essential for the 

conservation of the sucker. City Creek, 

Mill Creek, and the upper Santa Ana 

Wash contribute organic nutrients (e.g., 

woody debris, invertebrates) to the 

system (Klapproth and Johnson 2000a; 

Sweeney 1993) and filter pollutants and 

sediments entering the watershed (Mills 

and Stevenson 1999; Klapproth and 

Johnson 2000b. 

Unit 1B, Santa Ana Wash, has been 

removed from the revised designation. 

The basis for this removal is 

summarized in the section entitled 

‘‘Summary of Changes’’. 

(28) Comment: In Unit 1B, the Service 

inconsistently and arbitrarily included a 

portion of the Santa Ana River covered 

by the Santa Ana Sucker (SAS) 

Conservation Program. This portion of 

the river extends upstream from the La 

Cadena Avenue bridge to the Mission 

Channel confluence with the Santa Ana 

River. 

Our Response: The portion of Unit 1B 

between the La Cadena Avenue bridge 

and the Mission Channel confluence 

was inadvertently included in the 

previous critical habitat designation. 

The text and maps have been modified 

in this revised final rule to reflect the 

exclusion of all areas covered by the 

SAS Conservation Program as allowed 

under section 4(b)(2) of the Act (see 

Unit 1 map). 

(29) Comment: There are no new 

anticipated impacts to the Santa Ana 

Wash (Unit 1B) and therefore, it should 

be excluded from critical habitat 

designation. 

Our Response: The Santa Ana Wash is 

threatened by rapid development of the 

Santa Ana River watershed in San 

Bernardino County, and by the demand 

for increased building materials (e.g., 

sand and gravel) and water supplies. 

However, Unit 1B, Santa Ana Wash, has 

been removed from the revised 

designation. The basis for this removal 

is summarized in the section entitled 

‘‘Summary of Changes’’. 

(30) Comment: Chino Creek in Unit 

1A does not contain habitat for the 

Santa Ana sucker and should be 

removed from the critical habitat 

designation. 

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

Our Response: Chino Creek supported 

the Santa Ana sucker historically 

(Koehn, in litt. 1966), and still contains 

one or more of the primary constituent 

elements (Swift, pers. comm. 2004). In 

addition, the riparian habitat adjacent to 

the stream and the stream’s contribution 

to the overall hydrological regime help 

the sucker population in the Santa Ana 

River.

While Chino Creek in the Northern 

Prado Basin was proposed as critical 

habitat based on, among other things, its 

contribution of sediments and 

maintenance of a functioning 

hydrograph, these attributes do not, of 

themselves, warrant determining that an 

area is ‘‘essential to the conservation of 

the species’’, which is the statutory 

standard for designation of unoccupied 

areas. Therefore, Unit 1A, Northern 

Prado Basin, has been removed from the 

revised designation. The basis for this 

removal is summarized in the section 

entitled ‘‘Summary of Changes’’. 

(31) Comment: Critical habitat should 

be designated in Cajon Creek, a tributary 

to the Santa Ana River. 

Our Response: Although we 

appreciate the potential for sucker 

habitat in Cajon Creek, we do not have 

sufficient information to determine if 

this tributary contains the primary 

constituent elements essential to 

conservation of the sucker. Therefore, 

we cannot designate this tributary as 

critical habitat. Under the Act, we can 

revise critical habitat in the future, if 

new information becomes available. 

(32) Comment: Please clarify if energy 

facilities are specifically excluded from 

the designated critical habitat and 

whether this includes powerhouse 

number 3 on Mill Creek in Unit 1B. 

Our Response: We have clarified the 

language in the final rule to specifically 

exclude energy production facilities 

from the critical habitat designation. 

However, stream channels adjacent to 

energy production facilities within the 

geographical boundaries of the critical 

habitat designation that contain one or 

more of the primary constituent 

elements are considered critical habitat. 

Unit 1B, which includes Mill Creek, has 

been removed from the revised critical 

habitat designation. 

Issue 3: Comments on Science 

(33) Comment: Information used in 

designating critical habitat was 

inaccurate, insufficient, and not the best 

available data. 

Our Response: We believe we used 

the best available commercial and 

scientific data to designate critical 

habitat for the sucker, including peerreviewed primary source journal 

articles, expert opinions, species survey 

reports, project reports, and other 

scientific studies. All new information 

provided during the public comment 

periods was considered in this final 

designation as appropriate. 

Issue 4: Procedural and Legal Comments 

(34) Comment: The Service cannot 

exclude lands covered by conservation 

plans from critical habitat if those plans 

use public funds and lands to mitigate 

the taking of threatened and endangered 

species by private applicants for private 

purposes. 

Our Response: Section 4(b)(2) of the 

Act allows the Service to exclude any 

area from critical habitat if the Service 

determines the benefits of such 

exclusion outweigh the benefits of 

designating such area as critical habitat, 

unless, based on the best scientific and 

commercial data available, the Service 

determines that failure to designate the 

area as critical habitat will result in the 

extinction of the species. Exclusions 

under section 4(b)(2) can be based on 

INRMPs, HCPs, and formal conservation 

plans, or other relevant considerations. 

In the case of HCPs and other formal 

conservation plans, the Service must 

determine that the plan provides 

conservation benefit to the species, and 

assurances that the management plan 

will be implemented and the 

conservation effort will be effective. The 

Service is not prohibited from excluding 

lands covered by plans using public 

funds or public lands if the plan meets 

the aforementioned criteria. 

(35) Comment: The Service 

unlawfully pre-determined that the 

exclusion of essential sucker habitat 

from designated critical habitat 

outweighs any benefit. 

Our Response: We issued the final 

rule (69 FR 8839) designating critical 

habitat for the sucker without the 

opportunity for public comment, 

because we found it would be 

impracticable and contrary to the public 

interest to delay the effective date of the 

final rule (see comment 37 for further 

details). In the proposed rule (69 FR 

8911) that was published concurrently 

with the final rule, we specifically 

solicited comments from the public on 

the exclusion of essential habitat from 

the critical habitat designation. If 

additional information had been 

submitted during the comment period 

indicating that the conservation plans 

on which these exclusions were based 

were not conserving the sucker, we 

could have re-proposed critical habitat 

for the excluded areas. However, we did 

not receive any comments to that effect. 

Furthermore, the Western Riverside 

MSHCP has been finalized and an 

Incidental Take Permit has been issued 

for this plan. Significant progress has 

been made in the ongoing formal 

consultation with the U.S. Army Corps 

of Engineers (the Corps) on the SAS 

Conservation Program and we expect to 

issue a biological opinion on this 

program shortly. Therefore, we have 

excluded these areas of essential habitat 

from the critical habitat designation as 

allowed under section 4(b)(2). 

(36) Comments: The Service did not 

comply with the National 

Environmental Policy Act (NEPA). 

Under NEPA, an Environmental Impact 

Statement or an Environmental 

Assessment must be prepared. 

Our Response: Environmental impact 

statements and environmental 

assessments, as defined under NEPA, 

are not required for regulations enacted 

under section 4 of the Act (see 48 FR 

49244; October 25, 1983). We published 

a notice outlining our reasons for this 

determination in the Federal Register

on October 25, 1983 (48 FR 49244). 

(37) Comment: The rights of 

concerned citizens were violated 

because they were not allowed to 

participate in the rule-making process.

Our Response: The Service published 

the previous final rule designating 

critical habitat for the sucker (69 FR 

8839) without providing an opportunity 

for the public to comment under the 

good cause exemption of the 

Administrative Procedure Act (APA). 

Section 553(b)(B) of the APA recognizes 

an exemption to the public comment 

requirements. The Service issued the 

final rule designating critical habitat for 

the sucker without the opportunity for 

public comment, because we found it 

would be impracticable and contrary to 

the public interest to delay the effective 

date of the final rule (see comment 37 

for further details). The Service also 

provided the opportunity for the public 

to comment on the proposed rule 

identical to and issued concurrently 

with the final rule. We have reviewed 

and responded to the substantive 

comments that we received by the 

deadline of the each of the 4 public 

comment periods. Based on these 

comments, we have revised the final 

rule to reflect corrections and 

modifications to the final rule 

designating critical habitat for the 

sucker as appropriate. 

(38) Comment: The Service failed to 

hold formal public hearings as required 

under section 556 and 557 of title 5 of 

the APA. In addition, all settlements 

resulting from ongoing negotiations 

with the Service should be made part of 

the administrative record for this critical 

habitat designation. 

Our Response: Section 553(d) of the 

APA allows publication of a final rule 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 433

to take effect immediately upon 

publication if the agency finds good 

cause for doing so and provides the 

reasoning in the final rule. In the final 

rule published on February 26, 2004, 

designating critical habitat for the Santa 

Ana sucker, we stated that we found 

good cause to make the final rule 

effective immediately upon publication 

for reasons outlined in the response to 

comment 37. Delaying publication of 

the rule to hold public hearings would 

have been impracticable and contrary to 

the public interest at that time (69 FR 

8840). We subsequently held a public 

hearing on the proposed rule—which 

was identical to and published 

concurrently with the final rule—on 

September 9, 2004. Therefore, we have 

complied with the requirements of the 

APA and the Act. 

(39) Comment: The Service can 

publish a rule that is effective 

immediately only if the Service has 

determined the sucker requires 

emergency protection. If the Service 

publishes a rule that is effective 

immediately, the Service must 

incorporate reasons for the emergency 

determination into the final rule. Since 

there was no justification for emergency 

designation included in the publication 

of the final rule, the final rule is invalid 

and unenforceable. 

Our Response: Section 553(d) of the 

APA allows publication of a final rule 

to take effect immediately upon 

publication if the agency finds good 

cause for doing so and provides the 

reasoning in the final rule. In the final 

rule published on February 26, 2004, 

designating critical habitat for the Santa 

Ana sucker, we stated that we found 

good cause to make the final rule 

effective immediately upon publication 

for the following reasons: (1) To comply 

with the district court’s order; (2) to 

conduct section 7 consultations and 

prepare written concurrences regarding 

projects funded, permitted, or carried 

out by Federal agencies that may affect 

the Santa Ana sucker or its essential 

habitat; (3) to ensure those activities 

will not jeopardize the continued 

existence of the species; and (4) to 

ensure Federal agencies can comply 

with the requirements of the Act, 

including section 9. Delaying the 

effective date of the rule would have 

been impracticable and contrary to the 

public interest (69 FR 8840). We 

complied with the requirements of the 

APA and the Act and therefore the rule 

is valid and effective. The Service did 

not issue the final rule based on an 

emergency finding requiring immediate 

designation of critical habitat for the 

sucker. 

(40) Comment: Data were not made 

available for public review. 

Our Response: As stated in the 

proposed and final critical habitat rules 

published on February 26, 2004, the 

supporting information for the rules is 

available to the public for inspection, by 

appointment, during normal business 

hours at the U.S. Fish and Wildlife 

Service office in Carlsbad, California. 

(41) Comment: The designation of 

critical habitat in the Santa Ana and San 

Gabriel Rivers, and the Big Tujunga 

Creek will limit the ability of flood 

control agencies and water conservation 

districts from maintaining sufficient 

flood protection and water supplies.

Our Response: The designation of 

critical habitat does not prevent public 

agencies from implementing flood 

control protection and water 

conservation actions. If these actions 

require a Federal permit, funding, or 

permission and if the Federal agency 

determines that these actions may 

adversely modify designated critical 

habitat, the Federal agency must request 

consultation with the Service prior to 

initiating that action. 

(42) Comment: The designation of 

critical habitat should not preclude 

cooperative conservation efforts 

implemented in concert with actions 

that may adversely affect the sucker. 

Our Response: We encourage 

cooperative conservation efforts by 

private individuals, organizations, and 

local, county, State, and Federal 

government agencies. We will continue 

to work with Federal, State, and local 

entities and private individuals to 

minimize project-related impacts to the 

sucker and its habitat. 

Issue 5: Misinterpretation of the Original 

Final Rule 

(43) Comment: The Service unfairly 

exempted Federal agencies and private 

individuals from the requirements of 

critical habitat. 

Our Response: In the previous final 

rule, the Service did not exempt Federal 

agencies or private individuals from 

regulations regarding critical habitat. 

Instead, the Service described potential 

Federal actions that may be affected by 

the critical habitat designation or that 

may affect critical habitat. If a Federal 

agency determines their action may 

affect critical habitat, then they will be 

required to consult with the Service 

under section 7 of the Act. Private 

individuals do not have to consult with 

the Service if their actions may affect 

critical habitat unless their actions are 

permitted or funded by a Federal 

agency. However, private individuals 

should consult with the Service if their 

actions have the potential to result in 

take of individual suckers and therefore 

violate section 9 of the Act. 

(44) Comment: The critical habitat 

designation will result in the closure of 

the National Forest lands to the public 

resulting in significant effects to many 

recreational users. 

Our Response: The designation of 

critical habitat does not require the 

Forest Service to close critical habitat 

areas within the National Forest to the 

public. The Forest Service will be 

required to consult with the Service 

under section 7 of the Act, if they 

determine that any of their actions may 

adversely modify critical habitat. 

However, we intend to continue 

working with the Forest Service to 

minimize any impacts to the sucker and 

its habitat that may result from 

recreation activities. 

Issue 6: Comments on Economic 

Analysis or Lack of Economic Analysis 

(45) Comment: The Service violated 

the Act because it did not complete an 

economic analysis prior to issuing a 

final critical habitat rule, and therefore 

the rule should be vacated. 

Our Response: As previously stated 

(see response to comments 35 and 37), 

we dispensed with the notice and 

comment period for the final 

designation of critical habitat under the 

good cause exemption of the APA (69 

FR 8839), while concurrently publishing 

the proposed rule to allow for public 

comment. In the proposed rule (69 FR 

8911), we announced our intention to 

prepare an economic analysis and seek 

public review and comment on the 

economic analysis. 

(46) Comment: Several comments 

objected to the short timeframe allowed 

for comments and the lack of immediate 

availability of the draft economic 

analysis online. 

Our Response: We had two comment 

periods for the draft Economic Analysis, 

the first for 10 days and the second for 

30 days. A Notice of Availability (NOA) 

was published in the Federal Register

on October 1, 2004 (69 FR 58876) 

opening a 10-day public comment 

period on the economic analysis. On 

October 25, 2004, we published another 

notice in the Federal Register (69 FR 

62238) reopening a 30-day comment 

period on the draft economic analysis 

and the proposed designation. All 

comments on the economic analysis 

have been incorporated into the final 

economic analysis and the revised final 

rule as appropriate.

(47) Comment: Two groups suggested 

that prior written comments they had 

submitted concerning the economic 

impacts of the Santa Ana Sucker critical 

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

habitat designation were not addressed 

by the draft economic analysis. 

Our Response: Northwest Economic 

Associates (NEA) and the Service 

reviewed all of the previously submitted 

comments in the course of preparing the 

draft economic analysis. The comments 

provided useful insight into potential 

economic effects of the listing and 

designation of critical habitat for the 

sucker. However, in some cases, further 

research revealed that the economic 

effects could not be substantiated 

through available information or that 

the effects were considered too 

speculative to be considered reasonably 

foreseeable. For example, one 

commenter noted that private lands 

within critical habitat that are dedicated 

for recreational purposes but not 

excluded will require ‘‘re-evaluation of 

[previously approved] private projects.’’

This re-evaluation would result in 

assessment of an ‘‘appropriate fee,’’ with 

an effect of ‘‘greater than 100 million 

dollars.’’ The authors found no evidence 

that such a fee would result from 

designation of critical habitat. In other 

cases, the draft economic analysis 

included costs that were not addressed 

by prior written comments. 

(48) Comment: One comment 

suggested that the amenity values 

estimates should appear in the main 

report, not an appendix. 

Our Response: See response to 

Comment 49. 

(49) Comment: One comment 

suggested that the amenity values as 

analyzed are highly conservative and 

that a broader range should be 

presented, using a broader range of 

assumptions. This comment also stated 

that other benefits, such as indirect or 

non-use benefits, should be analyzed as 

well. It also criticized the use of 

different accounting standards in the 

evaluation of benefits (amenity values) 

and costs. 

Our Response: We appreciate the 

comment in support of the approach 

used in the DEA to estimate some of the 

economic benefits that may be 

associated with designating riparian 

corridors as critical habitat for the SAS. 

However, after further consideration 

and consultation with the Office of 

Management and Budget (OMB), we 

have decided that this approach does 

not fully meet the minimum standards 

required by OMB in estimating the 

potential economic benefits of a 

proposed Federal action. OMB Circular 

A–4 stresses that the Benefit-Transfer 

method, which was the approach used 

in the DEA, should only be used as a 

last-resort option to measuring benefits 

and should not be used without explicit 

justification. The underlying rationale 

for this reasoning is that while the 

Benefit-Transfer method can provide a 

quick, low-cost approach for obtaining 

desired monetary values (as opposed to 

collecting original data), the methods 

are often associated with uncertainties 

and potential biases of unknown 

magnitude. 

Circular A–4 is very specific in the 

criteria that must be satisfied in order to 

use the Benefit-Transfer method. 

Criteria include using studies that are 

based on adequate data, sound and 

defensible empirical methods and 

techniques, and ensuring that the 

studies relied upon are measuring 

similar values that do not have unique 

attributes. In the DEA, we relied on two 

studies (Colby and Wishart 2002, 

Streiner and Loomis 1995) the first 

measuring the property value premium 

riparian areas generate for nearby 

landowners in the arid West, the second 

measuring the benefits incurred by 

nearby landowners associated with 

restoring degraded urban streams. 

Neither study, it was determined after 

consultation with OMB, fully met the 

necessary criteria to base an assessment 

of the potential economic benefits of 

SAS critical habitat designation. In the 

Colby study, concern was expressed 

over the statistical robustness of the 

overall model. Concerns over the 

Loomis study focused on the fact that 

the measurement of the value associated 

with restoring degraded riparian 

corridors was not equivalent to the 

designation of critical habitat, which 

essentially recognizes healthy riparian 

corridors that can support the species. 

While we attempted to address these 

and other concerns in the DEA, we were 

not able to fully satisfy all of the 

necessary criteria that would allow us to 

transfer the findings of these two studies 

to the SAS. 

In future analyses we will continue to 

investigate the appropriateness of using 

existing data to estimate the economic 

benefits of critical habitat designation. 

However, even if we are able to credibly 

measure such effects, we continue to 

believe that in carrying out our duty 

under section 4(b)(2) of the Act that the 

benefits associated with designating any 

particular area as critical habitat are best 

expressed and considered in biological 

terms.

(50) Comment: One comment 

questioned the failure of the draft 

economic analysis to address economic 

impacts to the mining industry. An 

independent report on potential 

economic impacts was attached to this 

comment in support. 

Our Response: The draft economic 

analysis considered impacts to the sand 

and gravel mining industry. Sand and 

gravel are important resources in 

southern California that support 

development activities such as 

residential and commercial construction 

and road building. Due to the costs of 

transporting the material, sand and 

gravel mines tend to be located in areas 

relatively near development. Some of 

these mines have historically been, and 

continue to be, located within flood 

plains and can directly impact sucker 

habitat. The upper Santa Ana River area 

has had mining activities for many 

years. 

The boundaries of the proposed 

critical habitat exclude existing mining 

activities and the Service has indicated 

that no burdens will be imposed on 

existing facilities that operate according 

to historic practices, as discussed in the 

draft economic analysis. The 

independent report suggests the 

possibility of future expansion of 

mining activities within Unit 1B. The 

Corps has received no request for 

permits to expand operations within the 

proposed critical habitat. There has only 

been one emergency consultation 

associated with sand and gravel mining 

since the sucker was listed, and it was 

conducted to protect a bridge and did 

not involve an ongoing commercial 

operation. While it is true that new 

mining activity is being considered 

within Unit 1B, there is no information 

with which to demonstrate economic 

effects. An HCP that will cover mining 

activities is in the initial stages of 

development but lacks sufficient detail 

to base reasonable predictions on how 

the critical habitat designation for the 

sucker will affect new mining activities 

within Unit 1B. However, the HCP has 

not yet specifically considered the Santa 

Ana sucker, and therefore no 

documentation is available to suggest 

additional conservation measures that 

may need to be adopted. Furthermore, 

Unit 1B is not included in the revised 

critical habitat designation. 

(51) Comment: One comment 

questioned the failure of the draft 

economic analysis to address economic 

impacts of the water conservation 

project at Seven Oaks Dam in Unit 1B. 

Our Response: The draft economic 

analysis considered potential economic 

impacts to the proposed water 

conservation project. According to the 

Corps, Seven Oaks Dam has not been 

permitted as a water conservation 

facility. Its primary purpose is for flood 

control. Several agencies have pursued 

the idea of using Seven Oaks as a source 

of municipal water supply. For 

example, a letter dated December 11, 

2000 from the Service to the Corps 

attached to the comment letter refers to 

actions by the Corps and the San 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 435

Bernardino Valley Municipal Water 

District indicating that water 

conservation activities are reasonably 

certain to occur and that the application 

accompanying the petition to revise the 

appropriation of the Santa Ana River 

requests the right to store up to 50,000 

acre-feet per annum in the reservoir 

formed by Seven Oaks Dam. However, 

recent discussions with the Corps 

suggest that no decisions to change the 

dam’s purpose have been finalized. It is 

uncertain whether Seven Oaks Dam will 

be permitted for water conservation 

with or without critical habitat 

designation for the sucker. Furthermore, 

the Service has indicated that it will not 

require conservation measures unless 

the releases from the dam are altered 

from past practices. There is no 

indication how and if the flow regime 

will be altered even if the dam is used 

to provide additional water supply to 

municipalities. Furthermore, we find no 

evidence that the Corps is proposing a 

change of use of the facility to include 

water conservation. 

(52) Comment: One comment stated 

that the although they believe the draft 

economic analysis underestimates the 

full economic impact of critical habitat 

designation, the estimates contained in 

the analysis still support the exclusion 

of Unit 1B as benefits do not outweigh 

costs. 

Our Response: The draft economic 

analysis did consider the effects of 

mining and water conservation as 

described above. Also as discussed 

above, we did consider the economic 

and other impacts of the designation 

when we issued our interim rule, 

however we also conducted an 

economic analysis to more fully 

consider these impacts. 

(53) Comment: Two groups asserted 

that the draft economic analysis 

mischaracterizes the San Gabriel 

Canyon OHV Area status, and expressed 

a desire to have local efforts toward 

sucker recovery be included in the draft 

economic analysis. 

Our Response: The draft economic 

analysis included efforts to properly 

characterize the status of OHV use in 

the San Gabriel Canyon. In response to 

the Santa Ana sucker’s listing and 

critical habitat designation, the Forest 

Service has installed information signs 

in the OHV area. In the OHV staging 

area, there are some educational 

brochures available with general 

information on acceptable and 

unacceptable behaviors. There is also a 

kiosk with informational signs relating 

to the sucker. In the past three years, the 

Forest Service has coordinated with the 

Service and California Department of 

Fish and Game (CDFG) to develop 

‘‘avoidance criteria’’ for OHV users at 

San Gabriel OHV Park, to include the 

elimination of two stream crossings and 

the placement of rock and boulders 

along the riverbank to prevent people 

from driving into the river. Patrols have 

increased in sensitive areas, especially 

during weekends. The Forest Service 

also has worked with the local OHV 

club to develop sucker education 

programs. In addition to the Forest 

Service efforts, the OHV club is selfpolicing its members. The OHV club has 

placed at least one vehicle and drivers 

per weekend at the San Gabriel OHV 

Area for the past several years. The draft 

economic analysis included costs 

associated with efforts by local OHV 

groups to provide protection measures 

and minimize impacts to sucker habitat 

(pp. 75–78). These costs are shown in 

Tables 30 and 31 of the draft economic 

analysis.

(54) Comment: Two groups claim that 

mitigation of other projects, such as 

dams, is incorrectly described within 

the draft economic analysis and that the 

costs of mitigation are understated. 

Our Response: There are five flood 

control dams and multiple hydroelectric 

facilities operating in and around the 

essential habitat units for the sucker. 

The economic effects on these 

operations were quantified in Section 

6.6 of the draft economic analysis. 

(55) Comment: Two groups suggest 

that the draft economic analysis should 

address recovery. 

Our Response: Economic analyses 

only address cost associated with 

designation of critical habitat, as 

required by the Act. 

(56) Comment: One group suggests 

that the draft economic analysis 

findings support the inclusion of all 

areas currently designated as critical 

habitat for the sucker. 

Our Response: The Secretary 

considers the draft economic analysis 

along with other information in 

determining whether the benefits of 

excluding particular areas from a 

revised final critical habitat designation 

outweigh the biological benefits of 

including those areas in a revised final 

designation. 

(57) Comment: One comment from the 

Santa Ana Watershed Project Authority 

provided a number of details on the 

Santa Ana Regional Interceptor (SARI) 

line to correct information presented in 

the draft economic analysis. The 

comment noted the difficulty in 

estimating costs for a project that is still 

conceptual and suggests that the 

ultimate design choice will likely result 

in costs ‘‘significantly less’’ than those 

in the draft economic analysis. 

Our Response: We appreciate the 

comment from the watershed authority. 

The draft economic analysis was based 

at the time on the information obtained 

through the Corps, Orange County 

Sanitation District, and public 

information about the line available 

through the internet. The analysis 

recognizes that a variety of alternatives 

are under consideration at this time and 

that associated construction cost 

estimates are preliminary. However, 

because the commenter did not provide 

any specific new estimates, we will rely 

on those presented in the draft 

economic analysis, with the 

understanding that they may overstate 

actual final costs should one of the 

design alternatives be implemented. 

(58) Comment: The County of Los 

Angeles Department of Public Works 

submitted a very detailed comment 

letter addressing a number of specific 

areas in the draft economic analysis. 

This letter was received after the 

deadline for comments. Nevertheless, 

the comments are addressed below. 

Our Response: The County of Los 

Angeles Department of Public Works 

(Public Works) provides several 

comments that argue for exclusion of 

Unit 3, Big Tujunga Creek. In addition, 

Public Works provides several 

comments that can be addressed 

through minor changes and additions to 

the text in the draft economic analysis 

and do not result in changes to 

estimated economic effects. Public 

Works expressed concern that future 

utilization of sediment placement sites 

may be affected by sucker conservation 

activities. However, there is no evidence 

from past consultations to suggest that 

current sediment placement sites will be 

affected or will be the subject of future 

consultations. In the comment letter, 

Public Works speculates that future 

sucker conservation activities will affect 

the availability of water conservation 

storage in San Gabriel Reservoir. 

However, as stated in the draft 

economic analysis, no conservation 

measure or ponding restrictions are 

anticipated as protection measures for 

the sucker. Consequently, it was 

considered to be reasonable to exclude 

water conservation losses in San Gabriel 

Reservoir in the draft economic 

analysis. 

Several of the comments from Public 

Works addressed sediment removal 

activities. Public Works stated that the 

draft economic analysis failed to 

mention the sediment management plan 

for Cogswell Reservoir and associated 

sucker conservation activities. While the 

draft economic analysis does not 

mention the plan or consider suckerrelated costs, the authors believe that 

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

the conservation measures discussed in 

the comment letter would be 

implemented with or without the sucker 

listing and critical habitat designation. It 

appears that these measures were in 

place prior to the sucker listing and that 

they were instituted for the benefit of a 

number of fish species and have not 

been altered to specifically address the 

Santa Ana sucker. Public Works states 

that periodic cleanouts of Big Tujunga 

Reservoir will also be necessary in the 

future and that annual monitoring of the 

sucker will likely be required as a result. 

This is new information that was not 

considered in the draft economic 

analysis, as it was received after the 

close of the comment period. Public 

Works estimates that annual suckerrelated costs for the routine cleanouts, 

which will occur once every ten years, 

will be $82,350. 

Public Works also contends that 

ongoing costs associated with the Big 

Tujunga Wash Mitigation Bank should 

be included in the economic analysis. 

Mitigation Bank costs were not included 

in the draft economic analysis because 

the site was purchased as mitigation for 

flood control activities prior to the 

sucker listing. Furthermore, it appears 

that the activities related to the 

Mitigation Bank cited in the comment 

letter would have occurred with or 

without the sucker listing and critical 

habitat designation. While it is possible 

that a small portion of the costs of these 

activities could be attributed to suckerrelated conservation activities, the 

consultation history reveals that these 

activities presented only minor 

concerns for the sucker. 

Finally, Public Works argues for 

inclusion of potential impacts to energy 

supply at San Gabriel Dam and provides 

an estimate of losses between $300,000 

and $1 million annually. However, 

Public Works admits that it is ‘‘not 

aware of any final Santa Ana Sucker 

Conservation Strategy adopted yet for 

the San Gabriel River.’’ The estimates of 

hydropower losses are contingent upon 

hypothetical reservoir level restrictions. 

Such restrictions have not been imposed 

and there is little indication to suggest 

that they will be imposed in the 

foreseeable future.

(59) Comment: Public Works states 

that the draft economic analysis does 

not fully consider the economic costs of 

components of private development 

projects that are transferred to public 

agencies for management. 

Our Response: The draft economic 

analysis utilized the development 

mitigation costs as presented in the 

Western Riverside MSHCP as a means of 

estimating economic costs of private 

development. These costs are 

considered to be representative of the 

full costs of mitigation, including 

ongoing management. While there may 

be some additional costs associated with 

ongoing operation and maintenance of 

specific components of development 

projects, at this time there is inadequate 

information available to support their 

inclusion in the draft economic 

analysis. 

(60) Comment: Public Works states 

that the effects on road maintenance and 

transportation are underestimated in the 

analysis because it only considers costs 

related to past transportation projects, 

noting: ‘‘There were only 4 past 

project[s], all of which were related to 

Bridge Projects.’’

Our Response: The draft economic 

analysis considered a broader approach 

in estimating future costs. Future 

projects were estimated using 

Geographic Information System (GIS) 

coverage of past Corps permitting 

within the Santa Ana sucker critical and 

essential habitat boundaries to identify 

projects occurring within sucker habitat. 

In total, 49 Corps permits were issued 

within sucker habitat between 1999 and 

2003. All permits involving 

construction and maintenance of 

transportation facilities were selected 

from this list. In total, ten permits were 

issued for transportation projects over 

the five-year period. Thus, the draft 

economic analysis considers future 

sucker-related costs on transportation 

activities by assuming that past permits 

are appropriate indicators of future 

costs. Public Works further contends 

that affected transportation projects are 

likely to increase in the future. 

However, no evidence was uncovered 

during research for the draft economic 

analysis to support this conclusion. 

(61) Comment: One comment notes 

that ‘‘the ensuing analysis on small 

entities [addressed in Appendix A] 

appears to not include costs to the Corps 

and Public Works. The comment quotes 

Paragraph 3 of Page A–4, which 

includes: ‘‘There are five flood control 

dams operating in and around the 

critical and essential habitat units for 

the sucker * * *. The facilities are 

operated by the U.S. Army Corps of 

Engineers or owned by [Public Works], 

and do qualify as small entities.’’

Our Response: Although the authors 

acknowledge the quote on Page A–4, the 

statement in the draft economic analysis 

is in error. The last sentence should 

state, ‘‘The facilities are operated by the 

USACE or owned by the LADPW, and 

do not qualify as small entities.’’ The 

analysis remains unchanged, as these 

facilities exceed the size standards for 

small entities, and were properly 

omitted from the analysis. 

Summary of Changes From the 

Proposed Rule and the Original Final 

Rule 

On the basis of public comments, we 

reviewed our description and 

delineation of critical habitat in the Big 

Tujunga Creek and the San Gabriel and 

Santa Ana Rivers. Using information 

provided in these comments and 

obtained from field work, we removed 

Little Tujunga Creek upstream of its 

confluence with Big Tujunga Creek in 

Los Angeles County from the critical 

habitat designation in Unit 3, Big 

Tujunga Creek. We also refined the text 

to accurately reflect the critical habitat 

designation in the San Gabriel River. 

The text in the proposed rule stated that 

the upper boundary of Unit 2 along the 

East Fork of the San Gabriel River in Los 

Angeles County extended to the Bridgeof-No-Return. However, this upper 

boundary was not delineated on the 

map or the legal description of this unit. 

While this area is essential to the 

conservation of the species, it cannot be 

included in the revised final rule since 

it was never actually proposed. 

We also removed proposed units 1A 

and B from the designation. Units 1A 

and 1B were proposed because are a 

source of sediment for the occupied 

portion of the Santa Ana River. This 

sediment, which is composed of cobble, 

gravel, and sand, provides spawning 

and feeding substrates for the sucker 

downstream of the proposed units. They 

were also proposed due to their 

conveying flood waters to help maintain 

variability in the hydrological system 

downstream, because they support 

riparian vegetation that provides organic 

nutrients and woody debris which 

becomes food for the species 

downstream, and because potions were 

historically, but not currently, occupied. 

However, these attributes do not, of 

themselves, warrant determining that an 

area is ‘‘essential to the conservation of 

the species’’, which is the statutory 

standard for designation of unoccupied 

areas. There are many things—indeed, 

an almost endless range of 

possibilities—which contribute to the 

maintenance of primary constituent 

elements or otherwise provide a 

beneficial influence to areas designated 

as critical habitat. That does not warrant 

also designating the areas from which 

they originate, or pass through, as 

critical habitat. 

In fact, Congress has instructed us to 

be ‘‘exceedingly circumspect’’ in 

designating critical habitat outside of 

areas currently occupied by the species 

(House Report 95–1625). With that 

guidance in mind, we do not find these 

unoccupied areas essential to the 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 437

conservation of the species, and so have 

not designated them as critical habitat. 

Overall, these changes resulted in 

reducing the designated critical habitat 

by 12,824 ac (5,190 ha). Table 1 outlines 

the changes in acreages for each unit 

between the original and revised final 

rules.

TABLE 1.—CHANGES IN ACREAGES (AC; HA) FOR EACH OF THE UNITS BETWEEN ORIGINAL AND REVISED FINAL RULES

Unit Original final rule Revised final rule 

Santa Ana River, San Bernardino County (Units 1A and 1B) ............ 11,709 ac (4,738 ha) ............................................... 0 ac (0 ha) 

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

Big Tujunga Creek, Los Angeles County (Unit 3) ............................... 3,655 ac (1,479 ha) ................................................. 2,540 ac (1,028 ha) 

Total .............................................................................................. 21,129 ac (8,551 ha) ............................................... 8,305 ac (3,361 ha) 

Critical Habitat 

Please refer to the previous final rule 

designating critical habitat for the Santa 

Ana sucker for a general discussion of 

sections 3, 4, and 7 of the Act and our 

policy in relation to the designation of 

critical habitat (69 FR 8839). 

Methods 

As required by section 4(b) of the Act 

and its implementing regulations (50 

CFR 424.12), this rule is based on the 

best scientific and commercial data 

available concerning the species’

current and historical range, habitat, 

biology, and threats. In preparing this 

rule, we reviewed and summarized the 

current information available on the 

Santa Ana sucker, including the 

physical and biological features 

essential for the conservation of the 

species (see ‘‘Primary Constituent 

Elements’’ section), and identified the 

areas containing these features. We also 

identified areas outside the geographic 

range of the species that are essential for 

its conservation. These areas contribute 

sediment necessary to maintain 

breeding and feeding substrates in 

occupied areas. The information used in 

the preparation of this designation 

includes: site-specific species and 

habitat information collected and/or 

maintained by the Service; the 

California Natural Diversity Database 

(CNDDB); unpublished survey reports, 

notes, and communications with 

qualified biologists or experts; peer 

reviewed scientific publications; the 

Angeles National Forest Santa Ana 

Sucker Conservation Strategy (U.S. 

Forest Service 2003); the SAS 

Conservation Program (Conservation 

Team 2003); the final listing rule for the 

sucker published April 12, 2000 (65 FR 

19686); and discussions and 

recommendations from Santa Ana 

sucker experts. 

Primary Constituent Elements 

In accordance with sections 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

designate as critical habitat, we are 

required to base critical habitat 

determinations on the best scientific 

and commercial data available and to 

focus on those physical and biological 

features (primary constituent elements) 

essential to the conservation of the 

species and may require special 

management considerations or 

protection. These primary constituent 

elements include, but are not limited to: 

space for individual and population 

growth and for normal behavior; food, 

water, air, light, minerals, or other 

nutritional or physiological 

requirements; cover or shelter; sites for 

breeding, reproduction, rearing (or 

development) of offspring; and habitats 

that are protected from disturbance or 

are representative of the historic 

geographical and ecological 

distributions of a species. 

Much of what is known about the 

physical and biological requirements of 

Santa Ana sucker was described in the 

previously published final rule 

designating critical habitat for the 

species (69 FR 8839). The primary 

constituent elements for the Santa Ana 

sucker were determined by reviewing 

studies examining the habitat 

requirements and ecology of the sucker 

in the Santa Ana River (Allen 2003; 

Baskin and Haglund 2001; Haglund et 

al. 2003; Haglund et al. 2004; Saiki 

2000; Swift 2001), the San Gabriel River 

(Saiki 2000; Haglund and Baskin 2002; 

Haglund and Baskin 2003), and the 

Santa Clara River (Greenfield et al.

1970). Designated critical habitat has 

been designed to provide sufficient 

habitat to maintain self-sustaining 

populations of sucker throughout its 

range, and to provide those physical or 

biological features essential for the 

conservation of the species. These 

physical or biological features provide 

for the following: (1) Space for 

individual and population growth and 

for normal behavior (primary 

constituent elements 1, 2, 3, and 6); (2) 

food, water, air, light, minerals, or other 

nutritional or physiological 

requirements (primary constituent 

elements 1, 2, 3, 4, 5, and 6); (3) cover 

or shelter (primary constituent elements 

2 and 6); (4); sites for breeding, 

reproduction, and development of 

offspring (primary constituent elements 

1, 2, 3, and 6); and (5) habitats that are 

representative of the historic 

geographical and ecological distribution 

of the species (primary constituent 

elements 1, 2, 3, 4, 5, and 6). Based on 

the occurrence of this species and 

associated biological information, all of 

these physical or biological features are 

essential to the conservation of the 

species. 

We believe conservation of the Santa 

Ana sucker is dependent upon multiple 

factors, including the conservation and 

management of areas to maintain 

‘‘normal’’ ecological functions where 

existing populations survive and 

reproduce. The areas we are designating 

as critical habitat provide some or all of 

the physical or biological features 

essential for the conservation of this 

species. Based on the best available 

information, the primary constituent 

elements essential for the conservation 

of the sucker are the following: 

(1) A functioning hydrological system 

that experiences peaks and ebbs in the 

water volume reflecting seasonal 

variation in precipitation throughout the 

year; 

(2) A mosaic of loose sand, gravel, 

cobble, and boulder substrates in a 

series of riffles, runs, pools, and shallow 

sandy stream margins;

(3) Water depths greater than 3 cm 

(1.2 in) and bottom water velocities 

greater than 0.03 m per second (0.01 ft 

per second); 

(4) Non-turbid water or only 

seasonally turbid water; 

(5) Water temperatures less than 30°C 

(86°F); and 

(6) Stream habitat that includes algae, 

aquatic emergent vegetation, 

macroinvertebrates, and riparian 

vegetation. 

Based on the specific biological and 

physical requirements of this species, 

critical habitat units contain many of 

the same physical and biological 

features. Management, therefore, will 

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

address both the maintenance of these 

features and the reduction of threats 

specific to each critical habitat unit. 

Criteria Used To Identify Essential 

Habitat 

We considered several factors in 

selecting areas essential to the 

conservation of the Santa Ana sucker. 

We reviewed all streams and rivers 

currently occupied by the sucker and 

those areas outside of the current 

geographical distribution supporting 

one or more of the primary constituent 

elements. 

We analyzed the known historical and 

current distribution of suckers based on 

data from the Carlsbad Fish and 

Wildlife Office internal geographic 

information systems (GIS) database, 

California Natural Diversity Database 

(CNNDB), Los Angeles County Museum 

Ichthyology Catalog, and the Fish 

Division of the University of Michigan 

Museum of Zoology. We also reviewed 

various scientific articles and reports on 

the Santa Ana River (Allen 2003; Baskin 

and Haglund 2001; Haglund et al. 2003; 

Haglund et al. 2004; Saiki 2000; Swift 

2001), the Big Tujunga Creek (Haglund 

and Baskin 2001; Holland and Swift 

2002), and the San Gabriel River (Saiki 

2000; Haglund and Baskin 2002; 

Haglund and Baskin 2003). 

Historically occupied river stretches 

that have been highly modified by the 

construction of canals with concretelining on sides and bottoms were not 

considered essential habitat. Other 

historically occupied habitat no longer 

providing primary constituent elements 

were eliminated from this analysis. We 

selected areas essential for the 

conservation of the sucker based on the 

potential for restoration and the 

presence of one or more of the primary 

constituent elements in currently 

occupied and potentially occupied 

habitat. We eliminated the Santa Clara 

River population in Ventura and Los 

Angeles counties from this analysis 

because it does not appear to represent 

a native population of the Santa Ana 

sucker (and it is not listed). We 

determined that streams, rivers, and 

associated riparian habitat within the 

Santa Ana River, San Gabriel River, and 

Big Tujunga Creek and associated 

tributaries provide essential habitat for 

the sucker. 

We then considered if this essential 

area was adequate for the conservation 

of the Santa Ana sucker, and concluded 

that it is. The greatest threat to the 

conservation of the sucker lies in the 

human-generated alteration of the 

function, physical structure, water 

supply, and water quality of existing 

habitat. The physical structure of and 

water supply to each of the three 

currently occupied streams have been 

altered by flood control structures (e.g., 

dams, drop structures, concrete-lined 

channels), and water conservation 

operations. In addition to these easily 

identifiable threats, pollution and water 

quality standards that are not protective 

of the sucker also threaten the survival 

and recovery of the species. 

We used the best available scientific 

and commercial information to 

determine which areas are essential to 

the conservation of the sucker. 

However, we recognize that the historic 

and recent collection records for this 

species are incomplete. River segments 

or small tributaries not included in this 

final designation may harbor small 

limited populations of the sucker or 

may become occupied in the future. The 

exclusion of such areas does not 

diminish their potential individual or 

cumulative importance to the 

conservation of the species. We believe 

that proper management of each of the 

three designated critical habitat units 

will provide lasting conditions capable 

of supporting sucker populations and 

allow for assisted or natural dispersal 

into adjacent streams in each watershed.

We will continue (with the assistance 

of State, Federal, and private 

researchers), to conduct surveys, 

research, and conservation actions on 

the species and its habitat in areas 

designated and not designated as critical 

habitat. When additional scientific 

information becomes available on the 

species’ biology, distribution, and 

threats, we will evaluate the need to 

revise critical habitat or refine 

boundaries of critical habitat as 

appropriate. Areas occupied by this 

species that are not designated as 

critical habitat will continue to receive 

protection under the Act’s section 7 

jeopardy standard where a Federal 

nexus may occur (see ‘‘Critical Habitat’’

section). 

Mapping 

We determined that three units are 

essential to the conservation of Santa 

Ana sucker, and are designating critical 

habitat in 2 of those units. The third 

unit consists entirely of essential habitat 

that is being excluded pursuant to 

section 4(b)(2) of the Act (see Exclusions 

Under Section 4(b)(2) of the Act for a 

detailed discussion of this exclusion). 

We used site-specific information to 

determine the extent of these units. The 

designated critical habitat units were 

delineated by screen digitizing polygons 

(map units) using ArcView, a computer 

GIS program. Based on the known 

distribution of the sucker, the dynamics 

of alluvial floodplain systems, and 

riparian habitat associated with rivers 

and streams, we placed boundaries 

around the species’ locations, as well as 

their primary constituent elements. In 

defining these critical habitat 

boundaries, we made an effort to 

exclude all developed areas, such as 

housing developments, active mines, 

and other lands unlikely to contain the 

primary constituent elements essential 

for the conservation of the sucker. We 

used Universal Transverse Mercator 

(UTM) zone 11, North American Datum 

1927 (NAD27) coordinates in meters (m) 

to designate the boundaries of critical 

habitat. 

Need for Special Management 

Considerations or Protection 

Areas occupied by the species and 

designated as critical habitat contain 

one or more of the primary constituent 

elements essential to the conservation of 

the species (see ‘‘Primary Constituent 

Elements’’ section). Unoccupied areas 

that contain one or more of the PCEs are 

also included in the designation. When 

designating critical habitat, we assess 

whether the areas containing PCEs may 

require special management 

considerations or protections. 

Regulations at 50 CFR 424.02(j) define 

special management considerations or 

protection to mean any methods or 

procedures useful in protecting the 

physical and biological features of the 

environment for the conservation of 

listed species. Critical habitat 

designations apply only to Federal 

activities or those funded or authorized 

by a Federal agency. 

All critical habitat units identified in 

this final designation may require 

special management considerations or 

protection to maintain a functioning 

hydrological regime consisting of a 

mosaic of loose sand, gravel, and cobble 

substrates; channel morphology (i.e.,

runs, riffles, pools, and stream margins); 

sufficient water quality, volume, and 

depth; and complex native stream 

associations involving algae, aquatic 

emergent vegetation, 

macroinvertebrates, and riparian 

vegetation. Each designated unit is 

threatened by activities that may result 

in the alteration of the hydrological 

system, reduced water quality or 

supply, loss of suitable substrates for 

spawning and feeding, loss of complex 

floral and faunal associations, and an 

increase in populations of nonnative 

predatory and competitive species. 

We have determined the critical 

habitat units may require special 

management or protection, due to the 

existing threats to this fish, and because 

no long-term protection or management 

plans exist for any of the units. Absent 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 439

special management or protection, these 

three units are susceptible to existing 

threats and activities such as the ones 

listed in the ‘‘Effects of Critical Habitat’’

section, which could result in 

degradation and disappearance of the 

populations and their habitat. 

Critical Habitat Designation 

We determined that three units are 

essential to the conservation of Santa 

Ana sucker, and are designating critical 

habitat in 2 of those units. The third 

unit consists entirely of essential habitat 

that is being excluded pursuant to 

section 4(b)(2) of the Act (see Exclusions 

Under Section 4(b)(2) of the Act for a 

detailed discussion of this exclusion). 

Essential Habitat Excluded From 

Critical Habitat (Unit 1) for Santa Ana 

Sucker, Orange, Riverside, and San 

Bernardino Counties, California (15,414 

ac (6,238 ha))

The Santa Ana River essential habitat 

excluded from designation includes the 

mainstem of the Santa Ana River from 

the confluence of Mission Channel and 

the Santa Ana River downstream to the 

vicinity of the Route 90 crossing and 

portions of Prado Basin, as identified in 

the map titled ‘‘Essential habitat 

excluded from critical habitat (Unit 1) 

for Santa Ana Sucker’’ in the 

Regulations Promulgation section. The 

Santa Ana River supports one of three 

listed populations of the Santa Ana 

sucker. Approximately 60 percent of the 

total remaining range of the listed Santa 

Ana sucker is in the Santa Ana River (65 

FR 19686). 

The occupied essential habitat has 

been excluded from designation because 

they fall within the Western Riverside 

MSHCP (Riverside County) and the SAS 

Conservation Program (Orange, 

Riverside, and San Bernardino 

counties). The basis for these exclusions 

are summarized in the section entitled 

‘‘Exclusions Under 4(b)(2)’’. 

Critical Habitat Unit Descriptions 

We are designating two critical habitat 

units encompassing 8,305 ac (3,361 ha) 

of streams and rivers in Los Angeles 

County. We are designating critical 

habitat on lands having one or more of 

the primary constituent elements as 

described above. Lands designated as 

critical habitat are under Federal (6,356 

ac (2,573 ha)) and private (1,949 ac (790 

ha)) ownership. For each stream reach 

identified as a critical habitat unit, the 

up- and downstream boundaries are 

described in general in the unit 

descriptions below; more precise 

latitudinal and longitudinal (UTM) 

coordinates for the unit boundaries are 

provided in the Regulation 

Promulgation section of this rule. 

Habitat areas contained within the 

designated units constitute our best 

evaluation of areas essential for the 

conservation of the sucker. Critical 

habitat for the sucker may be revised 

should new information become 

available. 

We have designated critical habitat in 

Los Angeles County. We determined 

that essential habitat for the Santa Ana 

sucker occurs in four counties (Los 

Angeles, Orange, Riverside, and San 

Bernardino counties). Essential habitat 

for the Santa Ana sucker in Riverside, 

Orange, and portions of San Bernardino 

counties is being excluded from critical 

habitat designation under section 4(b)(2) 

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

of the Act for a detailed discussion of 

these exclusions). 

To provide determinable legal 

descriptions of the critical habitat 

boundaries, we drew polygons around 

these units. Criteria used to delineate 

the unit boundaries included the 

primary constituent elements, the 

known extent of the populations, and 

the extent of riparian vegetation on an 

aerial image. We made an effort to avoid 

developed areas that are unlikely to 

contribute to the conservation of Santa 

Ana sucker. Areas within the 

boundaries of the mapped units such as 

paved roads, bridges, parking lots, 

railroad tracks, railroad trestles, and 

residential, commercial, and industrial 

developments including energy 

production facilities do not contain one 

or more of the primary constituent 

elements and are therefore not 

considered critical habitat for the 

sucker. Federal actions limited to these 

areas would not trigger consultation 

pursuant to section 7 of the Act, unless 

they affect the species or primary 

constituent elements in the critical 

habitat. The areas designated as critical 

habitat in Los Angeles County are under 

Federal and private ownership. 

Unit 2: San Gabriel River Critical 

Habitat Unit, Los Angeles County, 

California (5,765 ac (2,333 ha)). 

The San Gabriel River Unit (Unit 2) 

consists of the West, North, and East 

Forks of the San Gabriel River and the 

following tributaries: Cattle Canyon 

Creek, Bear Creek, Bichota Canyon 

Creek, and Big Mermaids Canyon Creek. 

The San Gabriel River portion of the 

unit extends from the Cogswell Dam on 

the West Fork to 3,882 ft (1,229 m; 0.77 

miles; 1.21 kilometers) downstream of 

the Bridge-of-No Return on the East 

Fork, and just above the confluence of 

Coldbrook and Soldier creeks on the 

North Fork. Suckers occupy the West, 

North, and East Forks of the San Gabriel 

River and Cattle Canyon Creek, Bear 

Creek, and Big Mermaids Canyon Creek. 

Approximately 15 percent of the total 

remaining range of the listed Santa Ana 

sucker is in the San Gabriel River (65 FR 

19686). Approximately 15 percent of its 

distribution in the San Gabriel River 

Basin occurs on private lands, and the 

remaining 85 percent occurs in the 

Angeles National Forest (65 FR 19686).

The San Gabriel River Unit provides 

the best remaining habitat capable of 

sustaining the Santa Ana sucker. Data 

gathered during sampling indicated the 

San Gabriel River may contain the 

largest population of Santa Ana suckers 

(R. Ally, in litt. 1996; Mike Guisti, 

CDFG, in litt. 1996; M. Wickman, in 

litt., 1996; Juan Hernandez, CDFG, in 

litt. 1997; M. Saiki, pers. comm. 1999). 

Moyle and Yoshiyama (1992) 

considered the population of suckers in 

the San Gabriel River drainage to be the 

only viable population within the 

species’ native range. This population is 

found in the relatively undisturbed 

watershed of the Angeles National 

Forest, unlike the population within the 

Santa Ana River which is within a 

highly urbanized watershed receiving 

significant urban and agricultural runoff. The high quality riparian habitat 

adjacent to the river and tributaries 

provide organic inputs essential to the 

maintenance of a healthy stream 

ecosystem (Diana 1995; Klapproth and 

Johnson 2000a; Sweeney 1993). The 

East and North Forks and associated 

tributaries are largely unimpeded by 

dams or other obstructions. 

This is the only unit that has a 

sediment transport and hydrological 

regime existing in a relatively natural 

state. This unit supports a population 

occurring within a relatively intact 

watershed that provides good water 

quality, supply, and sediment transport. 

The inclusion of this area in critical 

habitat ensures the conservation of the 

only extant population of listed suckers 

that can avoid chronic exposure to 

urban run-off or tertiary-treated 

wastewater discharges, reduced water 

supply, and loss of feeding and 

spawning substrates. Lands designated 

as critical habitat may require special 

management to avoid and minimize 

activities associated with recreational 

off-road vehicle use, grazing, road, 

bridge, or dam construction and/or 

maintenance in the Angeles National 

Forest. 

Unit 3: Big Tujunga Creek Critical 

Habitat Unit, Los Angeles County, 

California (2,540 ac (1,028 ha)). 

The Big Tujunga Creek Unit (Unit 3) 

consists of the stretch of Big Tujunga 

Creek between the Big Tujunga Dam and 

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

Hansen Dam and the following 

tributaries: Stone Canyon Creek, Delta 

Canyon Creek, and Gold Canyon Creek. 

Haines Creek, a small stream within the 

floodplain of Big Tujunga Creek is also 

within this critical habitat designation. 

The Santa Ana sucker occupies the Big 

Tujunga Creek between Big Tujunga 

Dam and Hansen Dam. Please see 

‘‘Summary of Changes From the 

Proposed Rule and the Original Final 

Rule’’ section for more details on the 

removal of Little Tujunga Creek from 

the critical habitat designation. 

Approximately 25 percent of the total 

remaining range of the Santa Ana sucker 

is within Big Tujunga Creek (65 FR 

19686). In Big Tujunga Creek, 

approximately 60 percent of the current 

range of the Santa Ana sucker occurs on 

private lands. The remaining 40 percent 

of the range occurs on Angeles National 

Forest lands managed by the Forest 

Service. 

The upstream portion of this 

population in Big Tujunga Creek is 

largely contained within the Angeles 

National Forest. It is not exposed to the 

effects of urban run-off and tertiary 

treated wastewater discharge. This is the 

only unit supporting three of the 

remaining native freshwater fishes in 

southern California (Swift 1993). 

Although this ecological association is 

not well understood at this time, this 

fragile community may offer unique 

insights into the ability of the sucker to 

coexist with native and nonnative 

species in this ecosystem. This unit 

contains one or more PCEs and is also 

essential because it maintains habitat for 

the northernmost extent of the 

distribution of the Santa Ana sucker. 

The unit enhances the long-term 

sustainability of the sucker by 

maintaining its genetic adaptive 

potential and a well-distributed 

geographical range to buffer the sucker’s 

particular vulnerability to 

environmental fluctuations and 

catastrophe (Moyle 2002). 

Stone Canyon Creek, Delta Canyon 

Creek, and Gold Canyon Creek are not 

known to be occupied, but are essential 

to the conservation of the sucker 

because they transport sediment 

necessary to maintain preferred 

substrates utilized by this fish. These 

creeks convey stream flows and flood 

waters necessary to maintain habitat 

conditions for the Santa Ana sucker; 

and support riparian habitats that 

protect water quality in the occupied 

portions of the Big Tujunga Creek. 

Similar to the Santa Ana River, these 

tributaries are essential to the Big 

Tujunga Creek sucker population 

because they provide renewal of 

spawning and feeding substrates and 

peaks and ebbs in water volumes. These 

three tributaries are particularly 

essential to the conservation of the 

sucker and require special management 

and protection since the Big Tujunga 

Dam has reduced the transfer of 

sediment downstream and altered the 

natural flow in the upper Big Tujunga 

Creek. 

The sucker has been able to maintain 

its population in the Big Tujunga Creek 

despite the fragmented habitat and 

presence of nonnative species. Most 

likely, the sucker population has 

survived because of the presence of the 

relatively undisturbed condition of the 

tributaries to Big Tujunga Creek. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.2, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to: Alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ We are currently 

reviewing the regulatory definition of 

adverse modification in relation to the 

conservation of the species.

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. Conference reports 

provide conservation recommendations 

to assist the agency in eliminating 

conflicts that may be caused by the 

proposed action. We may issue a formal 

conference report if requested by a 

Federal agency. Formal conference 

reports on proposed critical habitat 

contain an opinion that is prepared 

according to 50 CFR 402.14, as if critical 

habitat were designated. We may adopt 

the formal conference report as the 

biological opinion when the critical 

habitat is designated, if no substantial 

new information or changes in the 

action alter the content of the opinion 

(see 50 CFR 402.10(d)). The 

conservation recommendations in a 

conference report are advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) requires 

Federal agencies to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of such a species or to destroy 

or adversely modify its critical habitat. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Through this consultation, the 

action agency ensures that their actions 

do not destroy or adversely modify 

critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in the destruction or adverse 

modification of critical habitat, we also 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable. ‘‘Reasonable and prudent 

alternatives’’ are defined at 50 CFR 

402.02 as alternative actions identified 

during consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that the 

Director believes would avoid 

destruction or adverse modification of 

critical habitat. Reasonable and prudent 

alternatives can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where critical 

habitat is subsequently designated and 

the Federal agency has retained 

discretionary involvement or control 

over the action or such discretionary 

involvement or control is authorized by 

law. Consequently, some Federal 

agencies may request reinitiation of 

consultation or conference with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect the 

Santa Ana sucker or its critical habitat 

will require section 7 consultation. 

Activities on private or State lands 

requiring a permit from a Federal 

agency, such as a permit from the Corps 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 441

under section 404 of the Clean Water 

Act, a section 10(a)(1)(B) permit from 

the Service, or some other Federal 

action, including funding (e.g., Federal 

Highway Administration (FHA) or 

Federal Emergency Management Agency 

(FEMA) funding), will also continue to 

be subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat and 

actions on non-Federal and private 

lands that are not federally funded, 

authorized, or permitted do not require 

section 7 consultation. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the Santa Ana sucker. Federal 

activities that, when carried out, may 

adversely affect critical habitat for the 

sucker include, but are not limited to:

(1) Actions that would alter the 

hydrology to a degree that appreciably 

reduces the value of the critical habitat 

for both the long-term survival and 

recovery of the species. Such activities 

could include, but are not limited to, 

impoundment, channelization, water 

diversion, construction, licensing, 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 chemicals, 

biological pollutants, or heated effluents 

into the surface water or connected 

groundwater at a point source or by 

dispersed release (non-point). 

(3) Actions that would significantly 

increase sediment deposition within the 

stream channel to a degree that 

appreciably reduces the value of the 

critical habitat for both the long-term 

survival and recovery of the species. 

Such activities could include, but are 

not limited to, excessive sedimentation 

from livestock grazing, road 

construction, timber harvest, off-road 

vehicle use, residential, commercial, 

and industrial development, and other 

watershed and floodplain disturbances. 

(4) Actions that would significantly 

alter channel morphology or geometry 

to a degree that appreciably reduces the 

value of the critical habitat for both the 

long-term survival and recovery of the 

species. Such activities could include, 

but are not limited to, channelization, 

impoundment, road and bridge 

construction, mining, and destruction of 

riparian vegetation. 

(5) Actions that would introduce, 

spread, or augment nonnative aquatic 

species into critical habitat to a degree 

that appreciably reduces the value of the 

critical habitat for both the long-term 

survival and recovery of the species. 

Such activities could include, but are 

not limited to, stocking for sport, 

biological control, or other purposes; 

aquaculture; and construction and 

operation of canals. 

Previous Section 7 Consultations 

Federal actions that we have reviewed 

since the sucker received protection 

under the Act include Federal land 

management plans, flood control, 

channelization, channel maintenance, 

dam construction, dam operation, 

bridge construction, a habitat 

conservation plan, and issuance of 

permits under section 404 of the Clean 

Water Act. Federal agencies involved 

with these activities included the Forest 

Service, the Corps, and the FHA. Since 

the listing of the sucker, 10 formal 

consultations have been initiated and 8 

have been completed. None of the 

completed consultations resulted in a 

finding that the proposed action would 

jeopardize the continued existence of 

the sucker. 

In each of the biological opinions 

resulting from these consultations, we 

included discretionary conservation 

recommendations to the action agency. 

Conservation recommendations are 

activities that would avoid or minimize 

the adverse effects of a proposed action 

on a listed species or its critical habitat, 

help implement recovery plans, or 

develop information useful to the 

species’ conservation. 

These biological opinions also 

included nondiscretionary reasonable 

and prudent measures, with 

implementing terms and conditions, 

which are designed to minimize the 

proposed action’s incidental take of the 

sucker. Section 3(18) of the Act defines 

the term take as ‘‘to harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture or collect or to attempt to 

engage in any such conduct.’’ Harm is 

further defined in our regulations (50 

CFR 17.3) to include significant habitat 

modification or degradation that results 

in death or injury to listed species by 

significantly impairing essential 

behavioral patterns, including breeding, 

feeding, or sheltering. 

Conservation recommendations and 

reasonable and prudent measures 

provided in previous biological 

opinions for the sucker have included: 

restricting in-stream activities during 

the spawning and nursery season; 

minimizing activities in actively flowing 

streams; reducing pollution from roads 

and highways; restoring, enhancing, or 

creating sucker habitat; maintaining or 

improving water quality standards, 

developing a nonnative aquatic species 

removal program; modifying or 

removing obstructions to fish passage; 

investigating velocities against which 

suckers can swim; and conducting 

sediment transport studies.

The designation of critical habitat will 

not have an impact on private 

landowner activities not requiring 

Federal funding or permits. Designation 

of critical habitat is only applicable to 

activities approved, funded, or carried 

out by Federal agencies. 

If you have questions regarding 

whether specific activities may 

constitute adverse modification of 

critical habitat in California, contact 

Ecological Services, Carlsbad Fish and 

Wildlife Office ((760) 431–9440). To 

request copies of the regulations on 

listed wildlife and plants, and for 

inquiries regarding prohibitions and 

permits, please contact the U.S. Fish 

and Wildlife Service, Branch of 

Endangered Species, 911 N.E. 11th 

Avenue, Portland, OR 97232 (telephone 

(503) 231–2063; facsimile (503) 231–

6243). 

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

Act 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. An 

area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. 

Lands we have excluded pursuant to 

section 4(b)(2) include those covered by 

the following types of plans if they 

provide assurances that the 

conservation measures they outline will 

be implemented and effective: (1) 

Legally operative HCPs that cover the 

species, (2) draft HCPs that cover the 

species and have undergone public 

review and comment (i.e., pending 

HCPs), (3) Tribal conservation plans that 

cover the species, (4) State conservation 

plans that cover the species, and (5) 

National Wildlife Refuge System 

Comprehensive Conservation Plans. 

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

We have determined that the benefits 

of excluding essential habitat within the 

boundaries of the Western Riverside 

MSHCP and essential habitat within the 

area covered by SAS Conservation 

Program outweigh the benefits of 

including these areas as critical habitat, 

as described in further detail below. 

Exclusion of these areas will not result 

in the extinction of the sucker. 

Western Riverside Multiple Species 

Habitat Conservation Plan 

Section 10(a) of the Act authorizes the 

Service to issue to non-Federal entities 

a permit for the incidental take of 

endangered or threatened species. This 

permit allows a non-Federal landowner 

to proceed with an activity that is legal 

in all other respects, but results in the 

incidental taking of a listed species (i.e., 

take that is incidental to, and not the 

purpose of, the carrying out of an 

otherwise lawful activity). The Act 

specifies that an application for an 

incidental take permit must be 

accompanied by a conservation plan. A 

permit may not be issued unless the 

conservation plan submitted to the 

Service meets certain requirements, as 

provided in section 10(a)(2)(A) of the 

Act. For example, the conservation plan 

must specify what steps the applicant 

will take to minimize and mitigate such 

impacts, and the funding that will be 

available to implement such steps. After 

an opportunity for public comment on 

the conservation plan, the Service may 

issue the permit provided we determine 

that certain conditions, as specified in 

section 10(a)(2)(B), are met. For 

instance, the Service must find that the 

taking will be incidental, and the taking 

will not appreciably reduce the 

likelihood of the survival and recovery 

of the species in the wild. 

The Western Riverside MSHCP was in 

development for six years and we issued 

a biological opinion and a 75-year 

Incidental Take Permit (ITP) on June 22, 

2004. Participants in the Western 

Riverside MSHCP include 14 cities: the 

County of Riverside (including the 

Riverside County Flood Control and 

Water Conservation District, Riverside 

County Transportation Commission, 

Riverside County Parks and Open Space 

District, and Riverside County Waste 

Department); the California Department 

of Parks and Recreation; and the 

California Department of 

Transportation. The Western Riverside 

MSHCP will also serve as a sub-regional 

plan under the State’s Natural 

Community Conservation Program 

(NCCP) and was developed in 

cooperation with the California 

Department of Fish and Game. The 

NCCP permit was issued on July 22, 

2004. Within the 1.26 million-acre 

(510,000 ha) planning area of the 

Western Riverside MSHCP, 

approximately 153,000 ac (62,000 ha) of 

diverse habitats are proposed for 

conservation. The conservation of 

153,000 ac (62,000 ha) will complement 

other, existing natural and open space 

areas that are already conserved through 

other means (e.g., State Parks, Forest 

Service, and county park lands).

We believe that the Western Riverside 

MSHCP meets the three criteria used by 

the Service to determine if a plan 

provides adequate special management 

or protection to a listed species. First, 

the Western Riverside MSHCP provides 

a conservation benefit to the species 

through the protection of 3,480 acres of 

habitat within the Santa Ana River. The 

primary constituent elements of 

essential habitat for the sucker will be 

maintained in the Santa Ana River in 

Riverside County by the following 

conservation measures: (1) The 

implementation of a nonnative species 

removal program, (2) maintaining or 

improving water quality standards, (3) 

removing or modifying barriers to fish 

passage within the Santa Ana River, and 

(4) assessing any threats from degraded 

habitat to the sucker in the Santa Ana 

River in Riverside County and 

addressing those threats as feasible. 

Third, the Western Riverside MSHCP 

provides assurance that the 

conservation management strategies and 

actions will be implemented. All 

permittees for the Western Riverside 

MSHCP have entered into an 

Implementation Agreement to ensure 

that conservation measures for each 

species are being implemented as 

appropriate. This Implementing 

Agreement was signed by all Permittees 

on June 22, 2004. Funding for the 

conservation measures and land 

acquisition, which is described by the 

Implementing Agreement, will be 

supported by fees collected by Riverside 

County, the Cities, and other Permittees. 

The Western Riverside MSHCP provides 

assurances that conservation strategies 

and actions will be implemented by 

outlining a schedule of management and 

monitoring activities to be conducted 

for the Santa Ana sucker. Third, to 

provide assurances that the 

conservation strategies and measures 

will be effective, the HCP was 

developed on the basis of the best 

available information, and the adaptive 

management program developed for the 

Western Riverside MSHCP uses a 

flexible approach to management to 

ensure that the covered species, 

including the sucker, are maintained 

and/or enhanced within the MSHCP 

Conservation Area during the term of 

the Incidental Take Permit. Management 

principles and the monitoring efforts are 

described in the Western Riverside 

MSHCP document available at the 

County of Riverside website: http://

rcip.org/conservation.htm.

For the reasons described above, we 

have determined that lands covered by 

the Western Riverside MSHCP can be 

excluded from this final designation of 

critical habitat pursuant to section 

4(b)(2) of the Act. 

Draft Santa Ana Sucker Conservation 

Program and Associated Maintenance 

and Operation Activities of Existing 

Water Facilities on the Santa Ana River 

The SAS Conservation Program, 

developed over a six-year period, is a 

multi-agency partnership of Federal, 

local government agencies, and the 

private sector that encourages a riverwide approach to conservation of the 

Santa Ana sucker within the Santa Ana 

River and its tributaries. This 

partnership is intended to: Increase the 

knowledge base to implement recovery 

strategies for the sucker in the Santa 

Ana River; ensure that each 

participating agency minimizes, to the 

extent possible, effects from routine 

activities that occur within their 

jurisdiction in the Santa Ana River; and 

develop restoration techniques for 

degraded habitat. Partners in the SAS 

Conservation Program include the 

Corps, the Service, Santa Ana 

Watershed Project Authority, and the 

following participating agencies 

(Participants): Orange County Water 

District, Orange County Resources and 

Development Management Department, 

Orange County Sanitation District, 

Riverside County Flood Control and 

Water Conservation District, Riverside 

County Transportation Department, City 

of Riverside Regional Water Quality 

Control Plant, San Bernardino County 

Flood Control District, and the City of 

San Bernardino Municipal Water 

Department Rapid Infiltration and 

Extraction Facility. 

We believe that the SAS Conservation 

Program meets the criteria used by the 

Service to determine if a plan provides 

adequate special management or 

protection to a listed species. First, the 

SAS Conservation Program provides a 

conservation benefit to the species 

through the development of avoidance 

and minimization measures, research, 

and habitat restoration efforts. 

Participants in the SAS Conservation 

Program are required to implement 

specific avoidance and minimization 

measures that will significantly reduce 

the magnitude of the effects of their 

activities on the sucker. The SAS 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 443

Conservation Program has also yielded 

several scientific reports, many of which 

were used in preparation of the critical 

habitat designation. The SAS 

Conservation Program is also funding 

efforts to restore or enhance primary 

constituent elements of critical habitat 

in the Santa Ana River watershed. 

Planned research projects of the SAS 

Conservation Program in 2004 include 

the development of habitat restoration 

methods, characterization of the 

movement and diet of various life 

history stages of suckers, and investigate 

the effects of nonnative adult fish on 

larval and juvenile suckers. 

Second, the SAS Conservation 

Program provides assurances that the 

conservation management strategies and 

actions will be implemented. Although 

the SAS Conservation Program is in 

draft form currently, we expect that the 

section 7 consultation on the SAS 

Conservation Program initiated with the 

U.S. Army Corps of Engineers in 

January 2003 will be completed within 

the following year. Further, the 

Participants have shown their 

commitment to the SAS Conservation 

Program by meeting monthly with the 

Service since 1998 to develop and 

implement appropriate measures to 

conserve and/or conduct research and 

focus habitat restoration goals on 

recovering the species in the Santa Ana 

River. The Participants have also drafted 

a Memorandum of Agreement that is 

currently being discussed. For the past 

6 years, the SAS Conservation Program 

has been funded for $125,000 per 

annum on an annual basis by the 

Participants. Participants will continue 

funding at this level or greater for the 

life of the SAS Conservation Program. 

The Administrator of the SAS 

Conservation Program, currently the 

Santa Ana Watershed Project Authority, 

annually issues an invoice to each 

Participant. Implementation of the SAS 

Conservation Program is assured by the 

requirement that an Annual Operating 

Plan must be submitted to the Service 

and the SAS Conservation Team by July 

31st of each year, and approved by 

August 31st, which then functions from 

September 1st through August 31st of 

the following year.

Third, to provide assurances that the 

conservation strategies and measures 

will be effective, the SAS Conservation 

Program was developed on the basis of 

the best available information. The SAS 

Conservation Program also requires an 

annual report that summarizes all 

activities conducted during the past 

year, provides success or failure of 

existing avoidance and minimization 

measures, and any recommendations be 

submitted to the Service for review. The 

SAS Conservation Program also 

includes an Annual Operating Plan that 

allows the Service to refine research and 

habitat restoration goals and objectives 

and avoidance and minimization 

measures as necessary based on the 

information supplied in their annual 

reports. 

For the reasons described above, we 

have determined that lands covered by 

the SAS Conservation Program can be 

excluded from this final designation of 

critical habitat pursuant to section 

4(b)(2) of the Act. 

(1) Benefits of Inclusion 

The benefits of designating critical 

habitat on lands within the boundaries 

of HCPs and other conservation plans 

that cover the species for which critical 

habitat is being designated are small. 

Conservation plans generally include 

management measures and protections 

designed to protect, restore, monitor, 

manage, and enhance the habitat to 

benefit the conservation of the species, 

while a critical habitat designation can 

only mandate protection against actions 

with a Federal nexus. There is nothing 

in the critical habitat designation which 

ensures restoration, monitoring, active 

management or habitat enhancement. 

The Western Riverside MSHCP seeks to 

accomplish these goals for the Santa 

Ana sucker through the implementation 

of specific conservation measures. The 

principal benefit of designating critical 

habitat is that federally authorized or 

funded activities that may affect a 

species’ critical habitat would require 

consultation with us under section 7 of 

the Act. Under section 7, proposed 

actions that would adversely modify or 

destroy designated critical habitat 

cannot go forward, unless they are 

altered to eliminate the adverse 

modification or destruction of critical 

habitat. 

An important objective of the Western 

Riverside MSHCP is to implement 

measures, including monitoring and 

management, necessary to conserve 

important habitat for the Santa Ana 

sucker within the plan’s boundaries. 

Thus, the purpose of the Western 

Riverside MSHCP is consistent with the 

purpose served by undergoing 

consultation under section 7 to ensure 

that critical habitat of the sucker is not 

adversely modified by a proposed 

Federal action, and provides benefits far 

in excess of those that would result from 

the critical habitat designation. Because 

issuance of an incidental take permit 

(ITP) under section 10 is a Federal 

action, we completed an internal section 

7 consultation for every species that is 

covered under the MSHCP and ITP, 

including the Santa Ana sucker. During 

consultation, we analyzed the impacts 

of the MSHCP and ITP on the Santa Ana 

sucker and its essential habitat within 

the plan boundaries and whether or not 

that habitat was officially designated as 

critical habitat. Therefore, including the 

Santa Ana River within the boundaries 

of the Western Riverside MSHCP as 

critical habitat would provide little 

benefit to the Santa Ana sucker, because 

the potential impacts to the species’

essential habitat within the MSHCP area 

have been addressed under the plan and 

have been analyzed in our internal 

section 7 consultation on the ITP. 

The SAS Conservation Program 

includes measures to restore, monitor, 

and enhance habitat for the Santa Ana 

sucker in the Santa Ana River. Similar 

to the Western Riverside MSHCP, the 

SAS Conservation Program is 

specifically designed to benefit the 

sucker and its essential habitat within 

the Santa Ana River. The SAS 

Conservation Program is a 

comprehensive conservation program 

for the sucker that includes measures to 

minimize the impacts of routine water 

management activities on the sucker 

and restore degraded river habitat to 

improve the species’ prospects for 

survival and recovery. As noted 

previously, this type of active 

management and restoration is not part 

of a critical habitat designation. Because 

the SAS Conservation Program is 

specifically designed to benefit the 

sucker and its essential habitat within 

the Santa Ana River habitat and the 

programmatic consultation on the SAS 

Conservation Program will analyze the 

effects of the SAS Conservation Program 

on the sucker and its habitat, the 

designation of critical habitat within the 

area covered by the SAS Conservation 

Program would provide fewer benefits 

to this species than does the SAS 

Conservation Program. 

(2) Benefits of Exclusion

Excluding lands within the Western 

Riverside MSHCP or within the area 

covered by the SAS Conservation 

Program from critical habitat will 

provide several benefits. Exclusion of 

the lands from the final designation will 

allow us to continue working with the 

participants in a spirit of cooperation 

and partnership. In the past, HCP 

applicants and participants in voluntary 

conservation programs have generally 

viewed the designation of critical 

habitat as having a potential negative 

regulatory effect that discourages 

voluntary, cooperative, and proactive 

efforts to conserve listed species and 

their habitats by non-Federal parties. 

Partners and cooperators view 

designation of critical habitat as an 

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

indication by the Federal government 

that their proactive efforts to protect the 

species and its habitat are inadequate. 

Excluding these areas from critical 

habitat will ensure the continuation of 

the existing conservation efforts and 

provide the basis for future 

opportunities to conserve species and 

their essential habitat. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We are excluding areas along the 

Santa Ana River because they are within 

the planning area boundary for the 

Western Riverside MSHCP and the SAS 

Conservation Program from critical 

habitat designation. Exclusion of these 

areas will not result in extinction of the 

sucker. We find the benefits of 

exclusion outweigh the benefits of 

designating the areas covered by the 

plans as critical habitat. 

The exclusion of these areas from 

critical habitat will help preserve the 

partnerships we have developed with 

the local jurisdictions and agencies in 

the development of the Western 

Riverside MSHCP and SAS 

Conservation Program. The only 

potential benefit of designating critical 

habitat within these areas, apart from 

the conservation actions discussed 

above, would be educational—

informing the public of areas essential 

for the long-term survival and 

conservation of the species. However, 

this information has already largely 

been provided to the public through the 

critical habitat designation process and 

resulting publicity, including public 

participation as set forth above, the 

material provided on our website, and 

through the ample opportunity for 

public participation provided 

throughout the development of the 

Western Riverside MSHCP. The Corps is 

also likely to issue a Public Notice and 

solicit public comment on the issuance 

of a permit for activities related to the 

maintenance and operation of existing 

water facilities on the Santa Ana River 

in association with the SAS 

Conservation Program, further 

increasing the public’s knowledge of the 

importance of the Santa Ana River to 

the sucker. We believe that designating 

critical habitat has little benefit in areas 

covered by the Western Riverside 

MSHCP and SAS Conservation Program. 

The Western Riverside MSHCP and SAS 

Conservation Program have ensured 

authorized activities within these areas 

include measures to protect the Santa 

Ana sucker and its habitat. 

Based on our evaluation of our past 

consultation history on the sucker and 

the analysis conducted for those 

consultations, we believe that we have 

a general understanding of potential 

impacts, including those related to 

economics, of this designation. We have 

considered these potential impacts in 

the development of this designation and 

do not believe, at this time, that 

additional exclusion, including those 

based on economics, pursuant to section 

4(b)(2) of the Act are warranted. 

Economic Impacts 

Section 4(b)(2) of the Act requires us 

to designate critical habitat on the basis 

of the best scientific and commercial 

information available and to consider 

the economic and other relevant 

impacts of designating a particular area 

as critical habitat. We may exclude areas 

from critical habitat upon a 

determination that the benefits of such 

exclusions outweigh the benefits of 

specifying such areas as critical habitat. 

We cannot exclude such areas from 

critical habitat when such exclusion 

will result in the extinction of the 

species concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

October 1, 2004 (69 FR 58876); the 

public comment period was open for 10 

days. On October 25, 2004, we 

published another notice in the Federal 

Register (69 FR 62238) reopening a 30-

day comment period on the draft 

economic analysis and the proposed 

designation.

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for the 

sucker. This information is intended to 

assist the Secretary in making decisions 

about whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. This economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

This analysis focuses on the direct 

and indirect costs of the proposed rule. 

However, economic impacts to land use 

activities can exist in the absence of 

critical habitat. These impacts may 

result from, for example, local zoning 

laws, State and natural resource laws, 

and enforceable management plans and 

best management practices applied by 

other State and Federal agencies. 

Economic impacts that result from these 

types of protections are not included in 

the analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

Categories of direct and indirect costs 

considered in the analysis included the 

costs associated with: (1) Conducting 

section 7 consultations; (2) 

modifications to projects, activities, or 

land uses resulting from section 7 

consultations; (3) uncertainty and 

public perceptions resulting from the 

designation of critical habitat, including 

potential effects on property values; and 

(4) the potential offsetting beneficial 

costs associated with critical habitat. 

The most likely economic effects of 

critical habitat designation are on 

activities funded, authorized, or carried 

out by a Federal agency (i.e., direct 

costs). 

The economic analysis determined 

that retrospective costs (i.e., costs since 

listing, 1999–2004) total $4.2 million, 

with transportation comprising $3.4 

million of those costs. The remainder of 

retrospective costs was split among 

OHV recreation, flood control agencies, 

and Federal agencies. Total prospective 

costs of the proposed rule (i.e., costs for 

the 20-year period 2004–2024) are $30.5 

million assuming a three percent 

discount rate and $21.8 million with a 

seven percent discount rate. Annual 

prospective costs are estimated to be 

$2.0 million. Costs associated with 

transportation contribute 49 percent of 

the annual costs and overall prospective 

costs. Other leading activities include 

water supply, flood control agencies, 

and residential and commercial 

development. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

final rule easier to understand, 

including answers to questions such as 

the following: 

(1) Are the requirements in the final 

rule clearly stated? 

(2) Does the final rule contain 

technical jargon that interferes with the 

clarity? 

(3) Does the format of the final rule 

(grouping and order of the sections, use 

of headings, paragraphing, and so forth) 

aid or reduce its clarity? 

(4) Is the description of the notice in 

the SUPPLEMENTARY INFORMATION section 

of the preamble helpful in 

understanding the final rule? 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 445

(5) What else could we do to make 

this final rule easier to understand? 

Send a copy of any comments on how 

we could make this final rule easier to 

understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov.

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but will not have an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Due to the tight 

timeline for publication in the Federal 

Register, the Office of Management and 

Budget (OMB) has not formally 

reviewed this rule. As explained above, 

we prepared an economic analysis of 

this action. We used this analysis to 

meet the requirement of section 4(b)(2) 

of the Act to determine the economic 

consequences of designating the specific 

areas as critical habitat. We also used it 

to help determine whether to exclude 

any area from critical habitat, as 

provided for under section 4(b)(2), if we 

determine that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless we determine, 

based on the best scientific and 

commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The SBREFA also amended the RFA to 

require a certification statement.

Small entities include small 

organizations, such as independent 

nonprofit organizations; small 

governmental jurisdictions, including 

school boards and city and town 

governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, grazing, oil 

and gas production, timber harvesting). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect the sucker. Federal agencies also 

must consult with us if their activities 

may affect critical habitat. However, we 

believe this will result in minimal 

additional regulatory burden on Federal 

agencies or their applicants because 

most consultations would already be 

required due to the presence of the 

Santa Ana sucker or other federally 

listed species or their respective critical 

habitats (e.g., San Bernardino kangaroo 

rat (Dipodomys merriami parvus)), and 

consultations to avoid the destruction or 

adverse modification of critical habitat 

would be incorporated into the existing 

consultation process and trigger only 

minimal additional regulatory impacts 

beyond the duty to avoid jeopardizing 

any listed species. 

Designation of critical habitat could 

result in an additional economic burden 

on small entities due to the requirement 

to reinitiate consultation for ongoing 

Federal activities. The economic 

analysis determined that costs involving 

conservation measures for the SAS 

would be incurred for activities 

involving residential and commercial 

development, water treatment facilities, 

the Santa Ana River Interceptor (SARI) 

line, water supply, flood control 

agencies, off-highway vehicle (OHV) 

recreation, transportation, flood control 

dams, and federal agencies. Of these, 

only businesses that are involved with 

land development would be affected; in 

all other cost categories, the affected 

entities exceed the SBA size criteria for 

small entities. For businesses that are 

involved with land development, the 

relevant threshold for small businesses 

is an annual revenue of $6 million or 

less. The effects on small businesses in 

the land development sector would be 

concentrated in San Bernardino, where 

most of the development is expected to 

take place. Based on the estimated costs 

to development and the average sales 

per small business, the annual costs 

range from 0.13 percent to 3.97 percent 

of sales for a small firm in the land 

development sector depending upon 

county. 

In general, two different mechanisms 

in section 7 consultations could lead to 

additional regulatory requirements for 

the approximately four small 

businesses, on average, that may be 

required to consult with us each year 

regarding their project’s impact on the 

Santa Ana sucker and its habitat. First, 

if we conclude, in a biological opinion, 

that a proposed action is likely to 

jeopardize the continued existence of a 

species or adversely modify its critical 

habitat, we can offer ‘‘reasonable and 

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

prudent alternatives.’’ Reasonable and 

prudent alternatives are alternative 

actions that can be implemented in a 

manner consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid jeopardizing the continued 

existence of listed species or result in 

adverse modification of critical habitat. 

A Federal agency and an applicant may 

elect to implement a reasonable and 

prudent alternative associated with a 

biological opinion that has found 

jeopardy or adverse modification of 

critical habitat. An agency or applicant 

could alternatively choose to seek an 

exemption from the requirements of the 

Act or proceed without implementing 

the reasonable and prudent alternative. 

However, unless an exemption were 

obtained, the Federal agency or 

applicant would be at risk of violating 

section 7(a)(2) of the Act if it chose to 

proceed without implementing the 

reasonable and prudent alternatives.

Second, if we find that a proposed 

action is not likely to jeopardize the 

continued existence of a listed animal or 

plant species, we may identify 

reasonable and prudent measures 

designed to minimize the amount or 

extent of take and require the Federal 

agency or applicant to implement such 

measures through non-discretionary 

terms and conditions. We may also 

identify discretionary conservation 

recommendations designed to minimize 

or avoid the adverse effects of a 

proposed action on listed species or 

critical habitat, help implement 

recovery plans, or to develop 

information that could contribute to the 

recovery of the species. 

Based on our experience with 

consultations pursuant to section 7 of 

the Act for all listed species, virtually 

all projects—including those that, in 

their initial proposed form, would result 

in jeopardy or adverse modification 

determinations in section 7 

consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. We can 

only describe the general kinds of 

actions that may be identified in future 

reasonable and prudent alternatives. 

These are based on our understanding of 

the needs of the species and the threats 

it faces, as described in the final listing 

rule and this critical habitat designation. 

Within the final CHUs, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are: 

(1) Regulation of activities affecting 

waters of the United States by the Corps 

under section 404 of the Clean Water 

Act; 

(2) Regulation of water flows, 

damming, diversion, and channelization 

implemented or licensed by Federal 

agencies; 

(3) Transportation issues such as 

bridges, rights-of-way, etc. that may 

involve the Federal Highway 

Administration; 

(4) Regulation of grazing, mining, and 

recreation by the USFS; 

(5) Hazard mitigation and postdisaster repairs funded by the FEMA; 

and 

(6) Activities funded by the EPA, U.S. 

Department of Energy, or any other 

Federal agency. 

It is likely that a developer or other 

project proponent could modify a 

project or take measures to protect the 

sucker. The kinds of actions that may be 

included if future reasonable and 

prudent alternatives become necessary 

include conservation set-asides, 

management of competing nonnative 

species, restoration of degraded habitat, 

and regular monitoring. These are based 

on our understanding of the needs of the 

species and the threats it faces, as 

described in the final listing rule and 

proposed critical habitat designation. 

These measures are not likely to result 

in a significant economic impact to 

project proponents. 

In summary, we have considered 

whether this would result in a 

significant economic effect on a 

substantial number of small entities. We 

have determined, for the above reasons 

and based on currently available 

information, that it is not likely to affect 

a substantial number of small entities. 

Federal involvement, and thus section 7 

consultations, would be limited to a 

subset of the area designated. The most 

likely Federal involvement could 

include Corps permits, permits we may 

issue under section 10(a)(1)(B) of the 

Act, FHA funding for road 

improvements, and regulation of 

grazing, mining, and recreation by the 

USFS. A regulatory flexibility analysis 

is not required.

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Refer to 

the final economic analysis for a 

discussion of the effects of this 

determination. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This final 

rule to designated critical habitat for the 

Santa Ana sucker is not expected to 

significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action 

and no Statement of Energy Effects is 

required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) ‘‘Federal 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 447

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities who receive Federal 

funding, assistance, permits or 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year, that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. As such, Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating 

approximately 8,305 ac (3,361 ha) of 

lands in Los Angeles County, California 

as critical habitat for the Santa Ana 

sucker in a takings implication 

assessment. The takings implications 

assessment concludes that this final 

designation of critical habitat for the 

sucker does not pose significant takings 

implications. 

Federalism 

In accordance with Executive Order 

13132, this rule does not have 

significant federalism effects. A 

federalism assessment is not required. 

In keeping with Department of the 

Interior policy, the Service requested 

information from, and coordinated 

development of this critical habitat 

designation with, appropriate State 

resource agencies in California, as well 

as during the listing process. The impact 

of the designation on State and local 

governments and their activities was 

fully considered in the economic 

analysis. As discussed above, the 

designation of critical habitat in areas 

currently occupied by the Santa Ana 

sucker would have little incremental 

impact on State and local governments 

and their activities. The designations 

may have some benefit to these 

governments in that the areas essential 

to the conservation of these species are 

more clearly defined, and the primary 

constituent elements of the habitat 

necessary to the survival of the species 

are identified. While making this 

definition and identification does not 

alter where and what federally 

sponsored activities may occur, it may 

assist local governments in long-range 

planning, rather than waiting for caseby-case section 7 consultation to occur. 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We are 

designating critical habitat in 

accordance with the provisions of the 

Act, as amended. This rule uses 

standard property descriptions and 

identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs that are essential for the 

conservation of the Santa Ana sucker. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.)

This rule does not contain new or 

revised information collection for which 

OMB approval is required under the 

Paperwork Reduction Act. An agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act 

We have determined that we do not 

need to prepare an Environmental 

Assessment or an Environmental Impact 

Statement as defined by the National 

Environmental Policy Act of 1969, in 

connection with regulations adopted 

pursuant to section 4(a) of the Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Government’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

are not aware of any Tribal lands 

essential for the conservation of the 

Santa Ana sucker. Therefore, the critical 

habitat designation for the sucker does 

not contain any Tribal lands or lands 

that we have identified as impacting 

Tribal trust resources. 

References Cited 

A complete list of all references cited 

in this rule is available upon request 

from the Carlsbad Fish and Wildlife 

Office (see ADDRESSES section). 

Author 

The primary author of this document 

is the Carlsbad Fish and Wildlife Office 

(see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation.

Regulation Promulgation

■ For the reasons given in the preamble, 

we amend part 17, subchapter B of 

chapter I, title 50 of the Code of Federal 

Regulations, as follows:

PART 17—[AMENDED]

■ 1. The authority citation for part 17 

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500, unless otherwise noted.

■ 2. Amend § 17.11(h), by revising the 

entry for ‘‘Sucker, Santa Ana’’ under 

‘‘FISHES’’ to read as follows:

§ 17.11 Endangered and threatened 

wildlife.

* * * * *

(h) * * *

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

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical habitat Special rule 

Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

Sucker, Santa Ana .. (Catostomus 

santaanae).

U.S.A. (CA) ............. Los Angeles River 

basin, San Gabriel River basin, 

Santa Ana River 

basin.

T 694 17.95(e) N/A 

* * * * * * * 

■ 3. Amend § 17.95(e) by adding critical 

habitat for the Santa Ana sucker 

(Catostomus santaanae) in the same 

alphabetical order as this species occurs 

in 17.11(h).

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(e) Fishes. * * * 

Santa Ana Sucker (Catostomus 

santaanae) 

(1) Areas determined to be essential to 

the conservation of the Santa Ana 

sucker and designated critical habitat 

units are depicted for Los Angeles 

County, California, on the maps and as 

described as follows: 

(2) Based on the best available 

information, primary constituent 

elements essential for the conservation 

of the Santa Ana sucker include the 

following: 

(i) A functioning hydrological system 

that experiences peaks and ebbs in the 

water volume that reflects seasonal 

variation in precipitation throughout the 

year; 

(ii) A mosaic of loose sand, gravel, 

cobble, and boulder substrates in a 

series of riffles, runs, pools, and shallow 

sandy stream margins; 

(iii) Water depths greater than 3 cm 

(1.2 in) and bottom water velocities 

greater than 0.03 meter per second (0.01 

feet per second); 

(iv) Non-turbid water or only 

seasonally turbid water; 

(v) Water temperatures less than 30 °C 

(86 °F); and 

(vi) Stream habitat that includes algae, 

aquatic emergent vegetation, 

macroinvertebrates, and riparian 

vegetation. 

(3) Existing features and structures 

made by people, such as paved roads, 

bridges, parking lots, railroad tracks, 

railroad trestles, and residential, 

commercial, and industrial 

developments including energy 

production and distribution facilities 

(exclusive of the stream channel), do not 

contain one or more of the primary 

constituent elements and are not critical 

habitat. Federal actions limited to those 

areas, therefore, would not trigger a 

consultation under section 7 of the Act 

unless they may affect the species and/

or primary constituent elements in 

adjacent critical habitat.

(4) Areas determined to be essential to 

the conservation of the Santa Ana 

sucker and designated critical habitat 

units are shown on the following index 

map.

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 449

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

(5) Areas that have been determined 

to be essential to the conservation of the 

Santa Ana sucker and that have been 

excluded from critical habitat 

designation pursuant to section 4(b)(2) 

of the Act are described as follows: 

(i) All essential areas within the 

boundaries of the Western Riverside 

Multiple Species Habitat Conservation 

Plan (which may be obtained by going 

to the Riverside County Integrated 

Project Web site (http://www.rcip.org/

conservation.htm) and other areas of the 

Santa Ana River, from the confluence of 

Mission Channel and the Santa Ana 

River downstream to the vicinity of the 

Route 90, covered by the Santa Ana 

Sucker Conservation Program. 

(ii) Note: Map of essential habitat 

excluded from critical habitat (Unit 1) 

for Santa Ana Sucker follows:

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 451

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

(6) The following textual unit 

descriptions are the definitive source for 

determining critical habitat boundaries. 

General location maps by unit are 

provided at the end of each unit 

description and are provided for general 

guidance purposes only, and not as a 

definitive source for determining critical 

habitat boundaries. 

(7) Unit 2: San Gabriel River system 

in Los Angeles County, California.

(i) Unit 2 includes the West, North 

and East Forks of the San Gabriel River 

and the following tributaries: Cattle 

Canyon Creek, Bear Creek, Bichota 

Canyon Creek, and Big Mermaids 

Canyon Creek. The San Gabriel River 

portion of the unit extends from the 

Cogswell Dam on the West Fork to 

approximately 3,882 feet (1,229 meters; 

0.77 miles; 1.21 kilometers) downstream 

from the Bridge-of-No Return on the 

East Fork, and portions of the North 

Fork. The lateral extent of Unit 2 is 

defined by the UTM coordinates 

described in the legal description. 

Unit 2: San Gabriel River. Los Angeles 

County, California. From USGS 1:24,000 

quadrangle maps Azusa, Crystal Lake, 

Glendora, Mount Baldy, Mount San 

Antonio, and Waterman Mountain, 

California, land bounded by the 

following UTM 11 NAD 27 coordinates 

(E, N): 422700, 3795100; 423300, 

3795100; 423300, 3795000; 423400, 

3795000; 423400, 3794400; 423300, 

3794400; 423300, 3794300; 423200, 

3794300; 423200, 3794200; 423100, 

3794200; 423100, 3794000; 423000, 

3794000; 423000, 3793400; 422900, 

3793400; 422900, 3793300; 422800, 

3793300; 422800, 3793200; 422700, 

3793200; 422700, 3793100; 422600, 

3793100; 422600, 3792900; 422500, 

3792900; 422500, 3792800; 422400, 

3792800; 422400, 3792100; 422500, 

3792100; 422500, 3791800; 422700, 

3791800; 422700, 3791900; 422900, 

3791900; 422900, 3792000; 423100, 

3792000; 423100, 3792100; 423800, 

3792100; 423800, 3792200; 424500, 

3792200; 424500, 3791900; 424300, 

3791900; 424300, 3791800; 424000, 

3791800; 424000, 3791700; 423900, 

3791700; 423900, 3791600; 423400, 

3791600; 423400, 3791700; 423200, 

3791700; 423200, 3791600; 423000, 

3791600; 423000, 3791500; 422900, 

3791500; 422900, 3791400; 422700, 

3791400; 422700, 3791300; 422600, 

3791300; 422600, 3791200; 422500, 

3791200; 422500, 3791100; 422400, 

3791100; 422400, 3791000; 421700, 

3791000; 421700, 3790900; 421600, 

3790900; 421600, 3790800; 421500, 

3790800; 421500, 3790700; 421400, 

3790700; 421400, 3790600; 421300, 

3790600; 421300, 3790200; 421200, 

3790200; 421200, 3790100; 421100, 

3790100; 421100, 3789900; 420800, 

3789900; 420800, 3789800; 420700, 

3789800; 420700, 3789700; 420600, 

3789700; 420600, 3789600; 420500, 

3789600; 420500, 3789500; 420700, 

3789500; 420700, 3789400; 420800, 

3789400; 420800, 3789000; 420900, 

3789000; 420900, 3789100; 421100, 

3789100; 421100, 3789200; 421200, 

3789200; 421200, 3789300; 421700, 

3789300; 421700, 3789200; 421800, 

3789200; 421800, 3789100; 421900, 

3789100; 421900, 3788900; 422000, 

3788900; 422000, 3788800; 422200, 

3788800; 422200, 3788700; 422400, 

3788700; 422400, 3788500; 422500, 

3788500; 422500, 3788600; 422600, 

3788600; 422600, 3788700; 422500, 

3788700; 422500, 3789400; 422600, 

3789400; 422600, 3789600; 422800, 

3789600; 422800, 3789400; 422900, 

3789400; 422900, 3789300; 422800, 

3789300; 422800, 3789200; 422700, 

3789200; 422700, 3788800; 422800, 

3788800; 422800, 3788700; 422900, 

3788700; 422900, 3788800; 423100, 

3788800; 423100, 3788900; 423300, 

3788900; 423300, 3788800; 424000, 

3788800; 424000, 3788900; 424100, 

3788900; 424100, 3789000; 424600, 

3789000; 424600, 3788900; 424700, 

3788900; 424700, 3788700; 424800, 

3788700; 424800, 3788600; 425000, 

3788600; 425000, 3788700; 425500, 

3788700; 425500, 3788600; 425800, 

3788600; 425800, 3788500; 426100, 

3788500; 426100, 3788300; 426400, 

3788300; 426400, 3788200; 426800, 

3788200; 426800, 3788300; 427000, 

3788300; 427000, 3788200; 427200, 

3788200; 427200, 3788300; 427600, 

3788300; 427600, 3788200; 427700, 

3788200; 427700, 3788100; 427800, 

3788100; 427800, 3788000; 428900, 

3788000; 428900, 3787900; 429000, 

3787900; 429000, 3788000; 429100, 

3788000; 429100, 3788200; 429200, 

3788200; 429200, 3788300; 429300, 

3788300; 429300, 3788700; 429400, 

3788700; 429400, 3788800; 429500, 

3788800; 429500, 3789000; 429600, 

3789000; 429600, 3789100; 429800, 

3789100; 429800, 3789300; 429900, 

3789300; 429900, 3789800; 430000, 

3789800; 430000, 3790400; 429900, 

3790400; 429900, 3790500; 429800, 

3790500; 429800, 3790400; 429500, 

3790400; 429500, 3790500; 429400, 

3790500; 429400, 3790400; 428900, 

3790400; 428900, 3790500; 428800, 

3790500; 428800, 3790600; 428900, 

3790600; 428900, 3790700; 429000, 

3790700; 429000, 3790800; 429100, 

3790800; 429100, 3790900; 429000, 

3790900; 429000, 3791300; 429300, 

3791300; 429300, 3791100; 429500, 

3791100; 429500, 3791000; 429600, 

3791000; 429600, 3790900; 429700, 

3790900; 429700, 3790800; 430100, 

3790800; 430100, 3790700; 430200, 

3790700; 430200, 3790800; 430300, 

3790800; 430300, 3790900; 430400, 

3790900; 430400, 3791000; 430600, 

3791000; 430600, 3790900; 430700, 

3790900; 430700, 3791000; 431100, 

3791000; 431100, 3791100; 431000, 

3791100; 431000, 3791300; 431100, 

3791300; 431100, 3791800; 431200, 

3791800; 431200, 3791900; 431100, 

3791900; 431100, 3792400; 431000, 

3792400; 431000, 3792500; 430900, 

3792500; 430900, 3792800; 431100, 

3792800; 431100, 3792700; 431300, 

3792700; 431300, 3792600; 431400, 

3792600; 431400, 3792400; 431500, 

3792400; 431500, 3792200; 431400, 

3792200; 431400, 3792100; 431500, 

3792100; 431500, 3791700; 431400, 

3791700; 431400, 3791500; 431500, 

3791500; 431500, 3791200; 431400, 

3791200; 431400, 3791100; 431500, 

3791100; 431500, 3790800; 431400, 

3790800; 431400, 3790700; 431300, 

3790700; 431300, 3790600; 430700, 

3790600; 430700, 3790500; 430600, 

3790500; 430600, 3790600; 430500, 

3790600; 430500, 3790500; 430300, 

3790500; 430300, 3789800; 430200, 

3789800; 430200, 3789200; 430100, 

3789200; 430100, 3788900; 430000, 

3788900; 430000, 3788700; 429800, 

3788700; 429800, 3788500; 429700, 

3788500; 429700, 3788200; 429600, 

3788200; 429600, 3788100; 429500, 

3788100; 429500, 3788000; 429400, 

3788000; 429400, 3787800; 429600, 

3787800; 429600, 3787700; 429700, 

3787700; 429700, 3787800; 429800, 

3787800; 429800, 3787900; 430400, 

3787900; 430400, 3787800; 430700, 

3787800; 430700, 3787900; 430900, 

3787900; 430900, 3788000; 431000, 

3788000; 431000, 3788100; 431100, 

3788100; 431100, 3788300; 431200, 

3788300; 431200, 3788400; 431300, 

3788400; 431300, 3788500; 431400, 

3788500; 431400, 3788600; 431700, 

3788600; 431700, 3788700; 431900, 

3788700; 431900, 3788800; 432300, 

3788800; 432300, 3788700; 432400, 

3788700; 432400, 3788600; 432500, 

3788600; 432500, 3788500; 432600, 

3788500; 432600, 3788400; 432800, 

3788400; 432800, 3788300; 433200, 

3788300; 433200, 3788200; 433400, 

3788200; 433400, 3788100; 433500, 

3788100; 433500, 3787900; 433700, 

3787900; 433700, 3788000; 434300, 

3788000; 434300, 3788100; 434500, 

3788100; 434500, 3788200; 434600, 

3788200; 434600, 3788400; 434700, 

3788400; 434700, 3788600; 434800, 

3788600; 434800, 3789000; 434900, 

3789000; 434900, 3789100; 435000, 

3789100; 435000, 3789200; 435200, 

3789200; 435200, 3789300; 435500, 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 453

3789300; 435500, 3789200; 435600, 

3789200; 435600, 3789400; 435700, 

3789400; 435700, 3789500; 435900, 

3789500; 435900, 3789000; 435800, 

3789000; 435800, 3788900; 435200, 

3788900; 435200, 3788700; 435100, 

3788700; 435100, 3788400; 435000, 

3788400; 435000, 3788200; 434900, 

3788200; 434900, 3788000; 434800, 

3788000; 434800, 3787800; 434600, 

3787800; 434600, 3787700; 434500, 

3787700; 434500, 3787600; 434600, 

3787600; 434600, 3787300; 434100, 

3787300; 434100, 3787200; 434000, 

3787200; 434000, 3787300; 433800, 

3787300; 433800, 3787400; 433600, 

3787400; 433600, 3787500; 433400, 

3787500; 433400, 3787600; 433200, 

3787600; 433200, 3787800; 433100, 

3787800; 433100, 3787900; 433000, 

3787900; 433000, 3788000; 432600, 

3788000; 432600, 3788100; 432400, 

3788100; 432400, 3788200; 432300, 

3788200; 432300, 3788300; 432200, 

3788300; 432200, 3788400; 432100, 

3788400; 432100, 3788500; 432000, 

3788500; 432000, 3788400; 431900, 

3788400; 431900, 3788300; 431600, 

3788300; 431600, 3788200; 431500, 

3788200; 431500, 3788100; 431400, 

3788100; 431400, 3788000; 431300, 

3788000; 431300, 3787800; 431200, 

3787800; 431200, 3787700; 431100, 

3787700; 431100, 3787600; 430700, 

3787600; 430700, 3787500; 430000, 

3787500; 430000, 3787600; 429900, 

3787600; 429900, 3787500; 429800, 

3787500; 429800, 3787300; 429600, 

3787300; 429600, 3787400; 429400, 

3787400; 429400, 3787500; 428900, 

3787500; 428900, 3787600; 428800, 

3787600; 428800, 3787700; 428700, 

3787700; 428700, 3787600; 428000, 

3787600; 428000, 3787700; 427400, 

3787700; 427400, 3787800; 427100, 

3787800; 427100, 3787900; 426900, 

3787900; 426900, 3787800; 426300, 

3787800; 426300, 3787900; 426200, 

3787900; 426200, 3788000; 425900, 

3788000; 425900, 3788100; 425600, 

3788100; 425600, 3788200; 425400, 

3788200; 425400, 3788300; 424500, 

3788300; 424500, 3788500; 424200, 

3788500; 424200, 3788400; 423800, 

3788400; 423800, 3788300; 423500, 

3788300; 423500, 3788400; 423100, 

3788400; 423100, 3788300; 423000, 

3788300; 423000, 3788100; 422900, 

3788100; 422900, 3788000; 422200, 

3788000; 422200, 3788100; 422100, 

3788100; 422100, 3788200; 422000, 

3788200; 422000, 3788300; 421700, 

3788300; 421700, 3788400; 421600, 

3788400; 421600, 3788800; 421200, 

3788800; 421200, 3788700; 421100, 

3788700; 421100, 3788600; 421000, 

3788600; 421000, 3788500; 420700, 

3788500; 420700, 3788600; 420500, 

3788600; 420500, 3788800; 420400, 

3788800; 420400, 3788900; 419800, 

3788900; 419800, 3789000; 419700, 

3789000; 419700, 3789100; 419400, 

3789100; 419400, 3789000; 419100, 

3789000; 419100, 3788900; 419000, 

3788900; 419000, 3788800; 418600, 

3788800; 418600, 3788700; 418300, 

3788700; 418300, 3788800; 417500, 

3788800; 417500, 3788900; 417400, 

3788900; 417400, 3789100; 417300, 

3789100; 417300, 3789400; 417100, 

3789400; 417100, 3789500; 416700, 

3789500; 416700, 3789400; 416500, 

3789400; 416500, 3789300; 416400, 

3789300; 416400, 3789200; 416300, 

3789200; 416300, 3789100; 416000, 

3789100; 416000, 3789000; 415800, 

3789000; 415800, 3788900; 415700, 

3788900; 415700, 3789000; 415400, 

3789000; 415400, 3789100; 415100, 

3789100; 415100, 3789300; 414700, 

3789300; 414700, 3789100; 414600, 

3789100; 414600, 3789000; 414500, 

3789000; 414500, 3788900; 414400, 

3788900; 414400, 3788800; 414300, 

3788800; 414300, 3788700; 414100, 

3788700; 414100, 3788600; 413500, 

3788600; 413500, 3788700; 413400, 

3788700; 413400, 3788900; 413300, 

3788900; 413300, 3789000; 413200, 

3789000; 413200, 3789100; 413100, 

3789100; 413100, 3789200; 413000, 

3789200; 413000, 3789300; 412900, 

3789300; 412900, 3789200; 412800, 

3789200; 412800, 3789100; 412700, 

3789100; 412700, 3789000; 412600, 

3789000; 412600, 3788900; 412300, 

3788900; 412300, 3789200; 411900, 

3789200; 411900, 3789300; 411300, 

3789300; 411300, 3789500; 411200, 

3789500; 411200, 3789700; 411500, 

3789700; 411500, 3789800; 411700, 

3789800; 411700, 3789700; 411900, 

3789700; 411900, 3789600; 412200, 

3789600; 412200, 3789700; 412300, 

3789700; 412300, 3789600; 412600, 

3789600; 412600, 3789500; 412700, 

3789500; 412700, 3789600; 412800, 

3789600; 412800, 3789800; 413100, 

3789800; 413100, 3789700; 413200, 

3789700; 413200, 3789500; 413300, 

3789500; 413300, 3789400; 413500, 

3789400; 413500, 3789300; 413700, 

3789300; 413700, 3789200; 413800, 

3789200; 413800, 3789300; 414000, 

3789300; 414000, 3789400; 414400, 

3789400; 414400, 3789500; 414500, 

3789500; 414500, 3789600; 415300, 

3789600; 415300, 3789400; 415600, 

3789400; 415600, 3789300; 415800, 

3789300; 415800, 3789400; 416100, 

3789400; 416100, 3789500; 416200, 

3789500; 416200, 3789600; 416300, 

3789600; 416300, 3789700; 416400, 

3789700; 416400, 3789800; 416900, 

3789800; 416900, 3789900; 417000, 

3789900; 417000, 3790600; 417100, 

3790600; 417100, 3790700; 416900, 

3790700; 416900, 3790900; 416800, 

3790900; 416800, 3791000; 416500, 

3791000; 416500, 3791100; 416200, 

3791100; 416200, 3791200; 415900, 

3791200; 415900, 3791300; 415700, 

3791300; 415700, 3791500; 415600, 

3791500; 415600, 3791700; 415500, 

3791700; 415500, 3791800; 415400, 

3791800; 415400, 3791900; 415200, 

3791900; 415200, 3792000; 414700, 

3792000; 414700, 3792100; 414600, 

3792100; 414600, 3792300; 415500, 

3792300; 415500, 3792200; 415700, 

3792200; 415700, 3792000; 415900, 

3792000; 415900, 3791900; 416000, 

3791900; 416000, 3791700; 416200, 

3791700; 416200, 3791600; 416400, 

3791600; 416400, 3791500; 416700, 

3791500; 416700, 3791400; 416800, 

3791400; 416800, 3791300; 417100, 

3791300; 417100, 3791100; 417200, 

3791100; 417200, 3791000; 417500, 

3791000; 417500, 3790600; 417400, 

3790600; 417400, 3789800; 417300, 

3789800; 417300, 3789700; 417500, 

3789700; 417500, 3789600; 417600, 

3789600; 417600, 3789500; 417700, 

3789500; 417700, 3789200; 418200, 

3789200; 418200, 3789800; 418300, 

3789800; 418300, 3789900; 418400, 

3789900; 418400, 3790100; 418500, 

3790100; 418500, 3790400; 418600, 

3790400; 418600, 3790800; 418500, 

3790800; 418500, 3790900; 418200, 

3790900; 418200, 3791000; 418100, 

3791000; 418100, 3791200; 418000, 

3791200; 418000, 3791300; 417800, 

3791300; 417800, 3791400; 417700, 

3791400; 417700, 3791600; 417600, 

3791600; 417600, 3791700; 417500, 

3791700; 417500, 3792200; 417900, 

3792200; 417900, 3792300; 417400, 

3792300; 417400, 3792400; 417300, 

3792400; 417300, 3792600; 417200, 

3792600; 417200, 3792700; 417600, 

3792700; 417600, 3792600; 418100, 

3792600; 418100, 3792900; 418200, 

3792900; 418200, 3793300; 418300, 

3793300; 418300, 3793200; 418400, 

3793200; 418400, 3792500; 418300, 

3792500; 418300, 3792200; 418200, 

3792200; 418200, 3792000; 418100, 

3792000; 418100, 3791700; 418200, 

3791700; 418200, 3791600; 418400, 

3791600; 418400, 3791400; 418500, 

3791400; 418500, 3791300; 418600, 

3791300; 418600, 3791200; 418800, 

3791200; 418800, 3791100; 418900, 

3791100; 418900, 3791000; 419000, 

3791000; 419000, 3790600; 419100, 

3790600; 419100, 3790300; 419000, 

3790300; 419000, 3790200; 418900, 

3790200; 418900, 3789700; 418800, 

3789700; 418800, 3789600; 418700, 

3789600; 418700, 3789500; 418600, 

3789500; 418600, 3789200; 418800, 

3789200; 418800, 3789300; 419100, 

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

3789300; 419100, 3789400; 419900, 

3789400; 419900, 3789500; 420000, 

3789500; 420000, 3789600; 420100, 

3789600; 420100, 3789700; 420200, 

3789700; 420200, 3789900; 420300, 

3789900; 420300, 3790000; 420500, 

3790000; 420500, 3790100; 420700, 

3790100; 420700, 3790200; 420800, 

3790200; 420800, 3790300; 420900, 

3790300; 420900, 3790500; 421000, 

3790500; 421000, 3790900; 421100, 

3790900; 421100, 3791000; 421200, 

3791000; 421200, 3791100; 421300, 

3791100; 421300, 3791200; 421400, 

3791200; 421400, 3791300; 421500, 

3791300; 421500, 3791400; 422200, 

3791400; 422200, 3791500; 422300, 

3791500; 422300, 3791700; 422200, 

3791700; 422200, 3791900; 422100, 

3791900; 422100, 3792200; 422000, 

3792200; 422000, 3793100; 422100, 

3793100; 422100, 3793200; 422200, 

3793200; 422200, 3793400; 422400, 

3793400; 422400, 3793500; 422500, 

3793500; 422500, 3794200; 422600, 

3794200; 422600, 3794400; 422500, 

3794400; 422500, 3794600; 422600, 

3794600; 422600, 3795000; 422700, 

3795000; returning to 422700, 3795100.

(ii) The map of Unit 2 follows:

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 455

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ER04JA05.002</GPH>
456 Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 

(8) Unit 3: Big Tujunga Creek system 

in Los Angeles County, California. 

(i) Unit 3 includes the stretch of Big 

Tujunga Creek between the Big Tujunga 

Dam and Hansen Dam and the following 

tributaries: Stone Canyon Creek, Delta 

Canyon Creek, and Gold Canyon Creek. 

The lateral extent of Unit 3 is defined 

by the UTM coordinates described in 

the legal description. 

Unit 3: Big Tujunga Canyon. Los 

Angeles County, California. From USGS 

1:24,000 quagrangle maps Condor Peak, 

San Fernando, and Sunland, California, 

land bounded by the following UTM 11 

NAD 27 coordinates (E, N): 381900, 

3797700; 382100, 3797700; 382100, 

3797600; 382200, 3797600; 382200, 

3797500; 382400, 3797500; 382400, 

3797400; 382600, 3797400; 382600, 

3797300; 382800, 3797300; 382800, 

3797200; 383000, 3797200; 383000, 

3797100; 383100, 3797100; 383100, 

3797000; 383200, 3797000; 383200, 

3796900; 383300, 3796900; 383300, 

3796500; 383400, 3796500; 383400, 

3796400; 383300, 3796400; 383300, 

3796200; 383200, 3796200; 383200, 

3796100; 383500, 3796100; 383500, 

3796000; 383600, 3796000; 383600, 

3796300; 383700, 3796300; 383700, 

3796500; 384300, 3796500; 384300, 

3796400; 384400, 3796400; 384400, 

3796300; 384600, 3796300; 384600, 

3796200; 384900, 3796200; 384900, 

3796100; 385000, 3796100; 385000, 

3796000; 385100, 3796000; 385100, 

3795900; 385200, 3795900; 385200, 

3795800; 385300, 3795800; 385300, 

3795700; 385800, 3795700; 385800, 

3795600; 386000, 3795600; 386000, 

3795500; 386200, 3795500; 386200, 

3795400; 386300, 3795400; 386300, 

3795300; 386500, 3795300; 386500, 

3795200; 386600, 3795200; 386600, 

3795100; 386700, 3795100; 386700, 

3794900; 386800, 3794900; 386800, 

3794700; 386900, 3794700; 386900, 

3794600; 387000, 3794600; 387000, 

3794500; 387100, 3794500; 387100, 

3794400; 387600, 3794400; 387600, 

3794300; 387700, 3794300; 387700, 

3794200; 387800, 3794200; 387800, 

3793800; 387900, 3793800; 387900, 

3793900; 388000, 3793900; 388000, 

3793800; 388100, 3793800; 388100, 

3793600; 388700, 3793600; 388700, 

3793700; 388800, 3793700; 388800, 

3793800; 389100, 3793800; 389100, 

3793700; 389300, 3793700; 389300, 

3793800; 389400, 3793800; 389400, 

3793900; 389600, 3793900; 389600, 

3794000; 389800, 3794000; 389800, 

3794200; 389900, 3794200; 389900, 

3794300; 390000, 3794300; 390000, 

3794700; 390100, 3794700; 390100, 

3794900; 390300, 3794900; 390300, 

3795000; 390400, 3795000; 390400, 

3795100; 390500, 3795100; 390500, 

3795200; 390800, 3795200; 390800, 

3795000; 390700, 3795000; 390700, 

3794800; 390500, 3794800; 390500, 

3794700; 390400, 3794700; 390400, 

3794600; 390300, 3794600; 390300, 

3794300; 390200, 3794300; 390200, 

3794200; 390100, 3794200; 390100, 

3794100; 390000, 3794100; 390000, 

3793900; 389900, 3793900; 389900, 

3793800; 389800, 3793800; 389800, 

3793700; 389600, 3793700; 389600, 

3793600; 389500, 3793600; 389500, 

3793500; 389400, 3793500; 389400, 

3793400; 389200, 3793400; 389200, 

3793300; 389000, 3793300; 389000, 

3793500; 388800, 3793500; 388800, 

3793300; 388700, 3793300; 388700, 

3793200; 388300, 3793200; 388300, 

3793100; 388000, 3793100; 388000, 

3793200; 387900, 3793200; 387900, 

3793500; 387600, 3793500; 387600, 

3793700; 387500, 3793700; 387500, 

3794000; 387200, 3794000; 387200, 

3794200; 387000, 3794200; 387000, 

3794300; 386800, 3794300; 386800, 

3794500; 386500, 3794500; 386500, 

3794700; 386400, 3794700; 386400, 

3794800; 386300, 3794800; 386300, 

3794700; 386200, 3794700; 386200, 

3794400; 386100, 3794400; 386100, 

3794300; 385900, 3794300; 385900, 

3794200; 385800, 3794200; 385800, 

3794000; 385600, 3794000; 385600, 

3794300; 385800, 3794300; 385800, 

3794400; 385900, 3794400; 385900, 

3794500; 386000, 3794500; 386000, 

3795000; 385800, 3795000; 385800, 

3795100; 385700, 3795100; 385700, 

3795200; 385600, 3795200; 385600, 

3795300; 385500, 3795300; 385500, 

3795500; 385100, 3795500; 385100, 

3795600; 385000, 3795600; 385000, 

3795700; 384900, 3795700; 384900, 

3795800; 384700, 3795800; 384700, 

3795900; 384600, 3795900; 384600, 

3796000; 384200, 3796000; 384200, 

3795900; 384300, 3795900; 384300, 

3795800; 384400, 3795800; 384400, 

3795600; 384500, 3795600; 384500, 

3795500; 384600, 3795500; 384600, 

3795000; 384500, 3795000; 384500, 

3794900; 384400, 3794900; 384400, 

3794800; 384300, 3794800; 384300, 

3794700; 384100, 3794700; 384100, 

3794900; 384200, 3794900; 384200, 

3795000; 384400, 3795000; 384400, 

3795300; 384500, 3795300; 384500, 

3795400; 384400, 3795400; 384400, 

3795500; 384200, 3795500; 384200, 

3795700; 384100, 3795700; 384100, 

3795800; 384000, 3795800; 384000, 

3795600; 383700, 3795600; 383700, 

3795700; 383600, 3795700; 383600, 

3795800; 383400, 3795800; 383400, 

3795900; 383100, 3795900; 383100, 

3795800; 382500, 3795800; 382500, 

3795700; 382300, 3795700; 382300, 

3795600; 382200, 3795600; 382200, 

3795500; 382100, 3795500; 382100, 

3795400; 382000, 3795400; 382000, 

3795200; 381900, 3795200; 381900, 

3795100; 381800, 3795100; 381800, 

3795000; 381600, 3795000; 381600, 

3794900; 381500, 3794900; 381500, 

3794800; 381400, 3794800; 381400, 

3794600; 381300, 3794600; 381300, 

3794400; 381200, 3794400; 381200, 

3794100; 381100, 3794100; 381100, 

3794000; 381000, 3794000; 381000, 

3793900; 380900, 3793900; 380900, 

3793800; 380800, 3793800; 380800, 

3793600; 380700, 3793600; 380700, 

3793500; 380600, 3793500; 380600, 

3793400; 380500, 3793400; 380500, 

3793300; 380100, 3793300; 380100, 

3793400; 379700, 3793400; 379700, 

3793300; 379500, 3793300; 379500, 

3793200; 379400, 3793200; 379400, 

3793100; 379300, 3793100; 379300, 

3793000; 379100, 3793000; 379100, 

3792900; 379000, 3792900; 379000, 

3792700; 378800, 3792700; 378800, 

3792600; 378700, 3792600; 378700, 

3792500; 378300, 3792500; 378300, 

3792300; 377300, 3792300; 377300, 

3792200; 376900, 3792200; 376900, 

3792100; 376000, 3792100; 376000, 

3792200; 375400, 3792200; 375400, 

3792300; 374200, 3792300; 374200, 

3792200; 373500, 3792200; 373500, 

3792300; 373400, 3792300; 373400, 

3792600; 373600, 3792600; 373600, 

3792700; 374300, 3792700; 374300, 

3792900; 374200, 3792900; 374200, 

3793000; 374100, 3793000; 374100, 

3793200; 374500, 3793200; 374500, 

3793100; 374800, 3793100; 374800, 

3793000; 374900, 3793000; 374900, 

3792900; 375200, 3792900; 375200, 

3793000; 375600, 3793000; 375600, 

3792900; 376500, 3792900; 376500, 

3793000; 376900, 3793000; 376900, 

3793100; 377200, 3793100; 377200, 

3793200; 377500, 3793200; 377500, 

3793300; 377800, 3793300; 377800, 

3793200; 378300, 3793200; 378300, 

3793100; 378800, 3793100; 378800, 

3793200; 379000, 3793200; 379000, 

3793300; 379100, 3793300; 379100, 

3793400; 379200, 3793400; 379200, 

3793500; 379300, 3793500; 379300, 

3793600; 379600, 3793600; 379600, 

3793700; 379800, 3793700; 379800, 

3793800; 380100, 3793800; 380100, 

3793900; 380400, 3793900; 380400, 

3794000; 380500, 3794000; 380500, 

3794100; 380600, 3794100; 380600, 

3794200; 380800, 3794200; 380800, 

3794300; 380900, 3794300; 380900, 

3794600; 381000, 3794600; 381000, 

3794800; 381100, 3794800; 381100, 

3794900; 381200, 3794900; 381200, 

3795000; 381300, 3795000; 381300, 

3795100; 381500, 3795100; 381500, 

3795400; 381800, 3795400; 381800, 

3795600; 381900, 3795600; 381900, 

Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 457

3795700; 382000, 3795700; 382000, 

3795900; 382200, 3795900; 382200, 

3796000; 382300, 3796000; 382300, 

3796100; 383000, 3796100; 383000, 

3796400; 383100, 3796400; 383100, 

3796800; 383000, 3796800; 383000, 

3796900; 382900, 3796900; 382900, 

3797000; 382700, 3797000; 382700, 

3797100; 382500, 3797100; 382500, 

3797200; 382200, 3797200; 382200, 

3797300; 382100, 3797300; 382100, 

3797400; 382000, 3797400; 382000, 

3797500; 381900, 3797500; returning to 

381900, 3797700; excluding land 

bounded by 377600, 3792900; 377600, 

3792800; 377400, 3792800; 377400, 

3792700; 377200, 3792700; 377200, 

3792800; 377000, 3792800; 377000, 

3792700; 377100, 3792700; 377100, 

3792500; 377200, 3792500; 377200, 

3792400; 377500, 3792400; 377500, 

3792600; 377600, 3792600; 377600, 

3792500; 377700, 3792500; 377700, 

3792600; 377900, 3792600; 377900, 

3792500; 378100, 3792500; 378100, 

3792600; 378000, 3792600; 378000, 

3792800; 377900, 3792800; 377900, 

3792900; 377600, 3792900.

(ii) The map of Unit 3 follows:

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

* * * * * Dated: December 21, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

[FR Doc. 04–28286 Filed 12–30–04; 8:45 am] 

BILLING CODE 4310–55–C


ER04JA05.003</GPH>