Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69693

PART 5—LABOR STANDARDS

PROVISIONS APPLICABLE TO

CONTRACTS COVERING FEDERALLY

FINANCED AND ASSISTED

CONSTRUCTION (ALSO LABOR

STANDARDS PROVISIONS

APPLICABLE TO NONCONSTRUCTION

CONTRACTS SUBJECT TO THE

CONTRACT WORK HOURS AND

SAFETY STANDARDS ACT)

3. The authority citation for Part 5

continues to read as follows:

Authority: 40 U.S.C. 276a–276a–7; 40

U.S.C. 276c; 40 U.S.C. 327–332;

Reorganization Plan No. 14 of 1950, 5 U.S.C.

Appendix; 5 U.S.C. 301; 29 U.S.C. 259; 108

Stat. 4104(c); and the statutes listed in

section 5.1(a) of this part.

4. In § 5.2, paragraph (n)(1) is

amended by removing ‘‘Bureau of

Apprenticeship and Training’’ each

place it appears in the paragraph and

inserting in its place ‘‘Office of

Apprenticeship Training, Employer and

Labor Services’’, and paragraph (n)(4) is

revised to read as follows:

§ 5.2 Definitions.

* * * * *

(n) * * *

(4) A distinct classification of

‘‘helper’’ will be issued in wage

determinations applicable to work

performed on construction projects

covered by the labor standards

provisions of the Davis-Bacon and

Related Acts only where:

(i) The duties of the helper are clearly

defined and distinct from those of any

other classification on the wage

determination;

(ii) The use of such helpers is an

established prevailing practice in the

area; and

(iii) The helper is not employed as a

trainee in an informal training program.

A ‘‘helper’’ classification will be added

to wage determinations pursuant to

§ 5.5(a)(1)(ii)(A) only where, in addition,

the work to be performed by the helper

is not performed by a classification in

the wage determination.

* * * * *

5. Section 5.5 is amended by

removing paragraphs (a)(1)(ii)(A)(4) and

(a)(1)(v); by removing ‘‘; and’’ from the

end of paragraph (a)(1)(ii)(A)(3) and

inserting in its place a period; by

revising paragraph (a)(1)(ii)(A)(1) to read

as set forth below; and by removing the

phrase ‘‘Bureau of Apprenticeship and

Training’’ each place it appears in

paragraph (a)(4) and inserting in its

place ‘‘Office of Apprenticeship

Training, Employer and Labor Services’’

and removing ‘‘Bureau’’ each time it

appears in paragraph (a)(4) and inserting

in its place ‘‘Office’’.

§ 5.5 Contract provisions and related

matters.

* * * * *

(a) * * *

(1) * * *

(ii)(A) * * *

(1) The work to be performed by the

classification requested is not performed

by a classification in the wage

determination; and

* * * * *

Signed at Washington, D.C., on this 14th

day of November, 2000.

Bernard E. Anderson,

Assistant Secretary for Employment

Standards.

[FR Doc. 00–29533 Filed 11–17–00; 8:45 am]

BILLING CODE 4510–27–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[DA 00–2483; MM Docket No. 99–282; RM–

9710]

Radio Broadcasting Services;

Littlefield, AZ

AGENCY: Federal Communications

Commission.

ACTION: Final rule; petition for

reconsideration.

SUMMARY: This document dismisses a

Petition for Reconsideration filed on

behalf of Mountain West Broadcasting

directed to the Report and Order in this

proceeding, which denied the requested

allotment of Channel 265C to Littlefield,

Arizona, for failure to demonstrate that

Littlefield qualifies as a community for

allotment purposes. See 65 FR 25463,

May 2, 2000. The petition for

reconsideration is dismissed as it does

not meet the limited provisions set forth

in the Commission’s Rules under which

a rule making action will be

reconsidered. With this action, this

docketed proceeding is terminated.

FOR FURTHER INFORMATION CONTACT:

Nancy Joyner, Mass Media Bureau, (202)

418–2180.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s

Memorandum Opinion and Order, in

MM Docket No. 99–282, adopted

October 25, 2000, and released

November 3, 2000. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC Reference

Information Center (Room CY–A257),

445 Twelfth Street, SW., Washington,

DC. The complete text of this decision

may also be purchased from the

Commission’s copy contractor,

International Transcription Service,

Inc., 1231 20th Street, NW.,

Washington, DC 20036, (202) 857–3800.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 00–29625 Filed 11–17–00; 8:45 am]

BILLING CODE 6712–01–U

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF73

Endangered and Threatened Wildlife

and Plants; Designation of Critical

Habitat for the Tidewater Goby

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), designate

critical habitat for the tidewater goby

(Eucyclogobius newberryi), pursuant to

the Endangered Species Act of 1973, as

amended (Act). The designation

includes 10 coastal stream segments in

Orange and San Diego Counties,

California, totaling approximately 9

linear miles of streams. Critical habitat

includes the stream channels and their

associated wetlands, flood plains, and

estuaries. These habitat areas provide

for the primary biological needs of

foraging, sheltering, reproduction, and

dispersal, which are essential for the

conservation of the tidewater goby.

Section 7 of the Act requires Federal

agencies to ensure that actions they

authorize, fund, or carry out are not

likely to destroy or adversely modify

designated critical habitat. As required

by section 4 of the Act, we considered

economic and other relevant impacts

prior to making a final decision on what

areas to designate as critical habitat.

DATES: The effective date of this rule is

December 20, 2000.

ADDRESSES: You may inspect the

complete file for this rule at the

Carlsbad Fish and Wildlife Office, U.S.

Fish and Wildlife Service, 2730 Loker

Avenue West, Carlsbad, California

92008, by appointment during normal

business hours.

FOR FURTHER INFORMATION CONTACT: Ken

Berg, Field Supervisor, Carlsbad Fish

and Wildlife Office, at the above

address; telephone 760/431–9440,

facsimile 760/431–5902.

SUPPLEMENTARY INFORMATION:

69694 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

Background

The tidewater goby (Eucyclogobius

newberryi) is the only member of the

monotypic genus Eucyclogobius and is

in the family Gobiidae. This fish was

first described in 1857 by Girard as

Gobius newberryi. Based on Girard’s

specimens, Gill (1862) erected the genus

Eucyclogobius for this distinctive

species. The majority of scientists have

accepted this classification (e.g., Bailey

et al. 1970, Miller and Lea 1972, Hubbs

et al. 1979, Robins et al. 1991,

Eschmeyer et al. 1983). A few older

works including Ginsburg (1945) placed

the tidewater goby and the eight related

eastern Pacific species into the genus

Lepidogobius. This classification

includes the currently recognized

genera Lepidogobius, Clevelandia,

Ilypnus, Quietula, and Eucyclogobius.

Birdsong et al. (1988) coined the

informal Chasmichthys species group,

recognizing the phyletic relationship of

the eastern Pacific group with species in

the northwestern Pacific.

Crabtree’s (1985) allozyme work on

tidewater gobies from 12 localities

throughout the range shows fixed allelic

differences at the extreme northern

(Lake Earl and Humboldt Bay) and

southern (Canada de Agua Caliente,

Winchester Canyon, and San Onofre

Lagoon) ends of the range. The northern,

central, and southern California

populations are genetically distinct from

each other. The more centrally

distributed populations are relatively

similar to each other (Brush Creek,

Estero Americano, Corcoran Lagoon,

Arroyo de Corral, Morro Bay, Santa

Ynez River, and Jalama Creek).

Crabtree’s results indicate that there is

a low level of gene flow (movement of

individuals) between the populations

sampled in the northern, central, and

southern parts of the range. However,

Lafferty et al. (1999a) point out that

Crabtree’s sites were widely distributed

geographically, and may not be

indicative of gene flow on more local

levels.

Dawson et al. (2000) conducted an

analysis of mitochondrial DNA from

populations ranging from Humboldt to

San Diego counties. Results indicated

the southern California populations of

tidewater gobies diverged from other

tidewater gobies along the California

coast long ago. These southernmost

populations may have begun diverging

from the remainder of the gobies in

excess of 1,000,000 years ago. We

recently proposed recognition of the

tidewater gobies in southern California

(i.e., Orange and San Diego Counties) as

an endangered distinct population

segment (DPS) (June 24, 1999; 64 FR

33816).

The tidewater goby is a small elongate

fish seldom exceeding 50 millimeters

(mm) (2 inches (in.)) standard length.

This fish is characterized by large,

dusky pectoral fins and a ventral suckerlike disk formed by the complete fusion

of the pelvic fins. Tidewater gobies are

nearly transparent, with a mottled

brownish upper surface, and often with

spots or bars on dusky dorsal and anal

fins. The mouth is large and oblique

with the upper jaw extending nearly to

the rear edge of the eye. The eyes are

widely spaced. The tidewater goby is a

short-lived species, apparently having

an annual life cycle (Eschmeyer and

Herald, 1983, Irwin and Soltz 1984,

Swift et al. 1997).

The tidewater goby is endemic to

California, and is unique in that it is

restricted to coastal brackish water

habitats. Historically, the species ranged

from Tillas Slough (mouth of the Smith

River, Del Norte County) near the

Oregon border to Agua Hedionda

Lagoon (northern San Diego County).

Within the range of the tidewater goby,

shallow, brackish water conditions

occur in two relatively distinct

situations: 1) the upper edge of tidal

bays, such as Tomales, Bolinas, and San

Francisco bays near the entrance of

freshwater tributaries, and 2) the coastal

lagoons formed at the mouths of small

to large coastal rivers, streams, or

seasonally wet canyons, along most of

the length of California. Few well

documented records of this species are

known from marine environments

outside of coastal lagoons and estuaries

(Swift et al. 1989). Historically, the

southern population of tidewater gobies

occupied the coastal lagoons formed at

the mouths of small to large coastal

rivers, streams, or seasonally wet

canyons from Aliso Creek in Orange

County, to Agua Hedionda Lagoon in

Northern San Diego County.

The tidewater goby is often found in

waters of relatively low salinities

(around 10 parts per thousand (ppt)) in

the uppermost brackish zone of larger

estuaries and coastal lagoons. However,

the fish can tolerate a wide range of

salinities and is frequently found

throughout lagoons (Swift et al. 1989,

1997; Worcester 1992, Worcester and

Lea 1996). Tidewater gobies regularly

range upstream into fresh water, and

downstream into water of up to 28 ppt

salinity (Worcester 1992, Swenson

1995). Specimens have also been

collected at salinities as high as 42 ppt

(Swift et al. 1989). The species’

tolerance of high salinities (up to 60 ppt

for varying time periods) likely enables

it to withstand exposure to the marine

environment, allowing it to colonize or

reestablish in lagoons and estuaries

following flood events (Swift et al. 1989;

Worcester and Lea 1996; Lafferty et al.

1999a). Tidewater gobies in southern

California appear to be highly tolerant of

varying salinities. Tidewater gobies

were collected in May 2000 from French

and Aliso lagoons, San Diego County,

two lagoons located within 500 m of

each other. Although both lagoons had

hundreds of larval, juvenile and adult

tidewater gobies, the salinities of the

two lagoons varied markedly. Aliso

Lagoon consisted of entirely fresh water,

while French Lagoon ranged from 45 to

51 ppt (Service field data 2000).

Tidewater gobies are usually collected

in water less than 1 meter (m) (3 feet (ft))

deep and many localities have no area

deeper than this (Wang 1982, Irvin and

Soltz 1984; Swenson 1995). However,

they have been found in waters over 1

m ( 3ft) in depth (Worcester 1992,

Lafferty and Altstatt 1995; Swift et al.

1997; Smith 1998). In lagoons and

estuaries with deeper water, the lack of

collections of tidewater gobies in depths

greater than 1 m (3 ft) may be due to the

inadequacy of the sampling methods,

rather than the lack of gobies (Worcester

1992, Lafferty 1997, Smith 1998).

Tidewater gobies often migrate

upstream into tributaries up to 2.0

kilometers (km) (1.2 miles) (mi) from the

estuary. However, in San Antonio Creek

and the Santa Ynez River in Santa

Barbara County, tidewater gobies are

often collected 5–8 km (3–5 mi)

upstream of the tidal or lagoonal areas,

sometimes in beaver-impounded

sections of streams (Swift et al. 1989).

The fish move upstream in summer and

fall as sub-adults and adults. There is

little evidence of reproduction in these

upper areas (Swift et al. 1997).

Tidewater gobies in Southern California

have been found as far as 5 km (3 mi)

from the estuary in the Santa Margarita

River (Holland and Swift 1992; Dan

Holland, Camp Pendleton Amphibian

and Reptile Survey, pers. comm. 2000).

The life of tidewater gobies is tied to

the annual hydrologic cycles of the

coastal lagoons and estuaries (Swift et

al. 1989, 1994; Swenson 1994, 1995).

Water in estuaries, lagoons and bays is

at its lowest salinity during the winter

and spring as a result of precipitation

and runoff. During this time, high runoff

causes the sandbars at the mouths of the

lagoons to breach, allowing mixing of

the relatively fresh estuarine and lagoon

waters with seawater. This annual

building and breaching of the sandbars

is part of the normal dynamics of the

systems in which the tidewater goby has

evolved (Zedler 1982, Lafferty and

Alstatt 1995, Heasly et al. 1997). The

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69695

time of sandbar closure varies greatly

among systems and years, and typically

occurs from spring to late summer.

Summer salinity in the lagoon depends

upon the amount of freshwater inflow at

the time of sandbar formation (Zedler

1982, Heasly et al. 1997).

Males begin digging breeding burrows

75 to 100 mm (3–4 in.) deep, usually in

relatively unconsolidated, clean, coarse

sand averaging 0.5 mm (0.02 in.) in

diameter, in April or May (Swift et al.

1989; Swenson 1994, 1995). Swenson

(1995) demonstrated that tidewater

gobies prefer this substrate in the

laboratory, but also found tidewater

gobies digging breeding burrows in mud

in the wild (Swenson 1994). Page (C.

Page, Biological Consultant, pers. com.

2000) found that tidewater gobies

commonly built breeding burrows and

spawned in silt-dominated muddy

habitats. Inter-burrow distances range

from about 5 to 275 centimeters (cm) (2

to 110 in) (Swenson 1995). Females lay

about 100 to 1,000 eggs per clutch,

averaging 400 eggs per clutch, with

clutch size depending on the size of

both the female and the male. Females

can lay more than one clutch of eggs

over their lifespan, with captive females

spawning 6–12 times (Swenson 1995).

Spawning frequency in wild females

probably varies due to fluctuations in

food supply and other environmental

conditions. Male gobies remain in the

burrow to guard the eggs that are

attached to sand grains in the walls of

the burrow. Males also spawn more than

once per season (Swenson 1995) and

have been observed guarding multiple

clutches in the same burrow (Swift et al.

1989, Swenson 1995). Males frequently

go at least for a few weeks without

feeding and this probably contributes to

mid-summer mortality (Swift et al.

1989; Swenson 1994, 1995).

Reproduction peaks during spring to

mid-summer (late April or May to July)

and can continue into November or

December depending on the seasonal

temperature and rainfall. Reproduction

sometimes increases slightly in the fall

(Swift et al. 1989). Reproduction takes

place when the water temperature is

from 15–20 degrees Celsius (°C) (60–65

degrees Fahrenheit (°F)) and at salinities

of 0–25 ppt (Swift et al. 1989; Swenson

1994, 1995). Typically, winter rains and

cold weather interrupt spawning, but in

some warm years reproduction may

occur throughout the year (Goldberg

1977, Wang 1984). Goldberg (1977)

showed by histological analysis that

females have the potential to lay eggs all

year in Southern California, but this

rarely has been documented. Lengthfrequency data from southern and

central California (Swift et al. 1989;

Swenson 1994, 1995) and age data

analysis from central California

populations (Swift et al. 1997) indicate

that tidewater gobies typically live one

year or less, although some may

overwinter upstream (Irwin and Soltz

1984).

Tidewater goby eggs hatch in 7–10

days at water temperatures of 15–18 °C

(60–65 °F) at lengths of 4–7 mm (0.2

in.). The newly hatched larvae are

planktonic (float in water column) for

one to a few days and once they reach

8–18 mm (0.3–0.8 in.) in length, move

to substrate oriented (living on or near

the bottom of the estuary or lagoon). All

larger size classes are substrate oriented

and little habitat segregation by size has

been noted (Swift et al. 1989, Swenson

1995). However, Worcester (1992) found

that larval gobies in Pico Creek Lagoon

tended to use the deeper portion of the

lagoon. Individuals collected in marshes

appear to be larger (43–45 mm (1.7–1.8

in.) standard length) than those

collected in open areas of lagoons (32–

35 mm (1.3–1.4 in.) standard length)

(Swenson 1995).

Studies of the tidewater goby’s

feeding habits suggest that it is a

generalist. At all sizes examined,

tidewater gobies feed on small benthic

(bottom-dwelling) invertebrates,

crustaceans (usually mysids,

amphipods, and ostracods), snails, and

aquatic insect larvae, particularly flies

(dipterans) (Irwin and Soltz 1984; Swift

et al. 1989; Swenson 1994, 1995). The

food items of the smallest tidewater

gobies (4–8 mm (0.2–0.3 in.)) have not

been examined, but they probably feed

on unicellular phytoplankton or

zooplankton similar to many other early

stage larval fishes (Swenson and

McCray 1996).

Tidewater gobies are preyed upon by

native species such as prickly sculpin

(Cottus asper), staghorn sculpin

(Leptocottus armatus), starry flounder

(Platichthys californicus) (Swift et al.

1997), and possibly steelhead

(Oncorhynchus mykiss) (Swift et al.

1989). Tidewater gobies were found in

stomachs of about 6 percent of 120 fish

of the former three species examined,

and comprised about 20 percent by

volume of the prey. Predation by the

native Sacramento perch (Archoplites

interruptus) and tule perch

(Hysterocarpus traski) may have

prevented tidewater gobies from

inhabiting the San Francisco Bay delta

(Swift et al. 1989), although direct

documentation to support this

hypothesis is lacking.

Several non-native fish species, such

as largemouth bass and yellowfin

gobies, also prey on tidewater gobies.

The shimofuri goby (Tridentiger

bifasciatus), which has become

established in the San Francisco Bay

region (Matern and Fleming 1995), may

compete with the smaller tidewater

goby, based on dietary overlap

(Swenson 1995) and foraging and

reproductive behavioral alterations in

captivity. Shimofuri gobies eat juvenile

tidewater gobies in captivity, but

usually were unable to catch subadult

and adult tidewater gobies (Swenson

and Matern 1995). Evidence of

predation or competition in the wild is

lacking (Swenson 1999), although Wang

(1984) found that yellowfin gobies prey

on tidewater gobies. Shapovalov and

Taft (1954) documented the non-native

striped bass (Morone saxatilis) preying

on tidewater gobies in Waddell Creek

Lagoon, but stated that striped bass were

found only infrequently in the areas

inhabited by the goby. Non-native

sunfishes and black bass (centrarchids)

have been introduced in or near coastal

lagoons and may prey heavily on

tidewater gobies under some conditions.

Although tidewater gobies disappeared

soon after centrarchids were introduced

at several localities, direct evidence that

the introductions led to the extirpations

is lacking (Swift et al. 1989, 1994;

Rathbun et al. 1991). Predation by

young-of-the-year largemouth bass

(Micropterus salmoides) on tidewater

gobies was documented in one system

(Santa Ynez River), where tidewater

gobies accounted for 61 percent of the

prey volume of 55 percent (10 of 18) of

the juvenile bass sampled (Swift et al.

1997).

In Southern California, non-native

sunfish (Centrarchidae), largemouth

bass, and channel catfish (Ictulurus

punctatus) are all suspected of

impacting tidewater goby populations

through predation in the San Mateo and

Santa Margarita lagoons (Swift and

Holland 1998). Yellowfin gobies are

thought to have contributed to the

extirpation of tidewater gobies from the

Santa Margarita River (Swift et al. 1994).

The tidewater goby population at

Cockleburr Creek is reduced presumably

due to predation and competition from

the large numbers of non-native

mosquitofish (Swift and Holland 1998).

Non-native African clawed frogs

(Xenopus laevis) also prey upon

tidewater gobies (Lafferty and Page

1997), although this is probably not a

significant source of mortality due to the

limited distribution of this species in

tidewater goby habitats. The frogs are

killed by the higher salinities that occur

when the lagoons are breached (Glenn

Greenwald, Service, pers. obs.).

Lafferty et al. (1999a) monitored

persistence of 17 tidewater goby

populations in Santa Barbara and Los

69696 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

Angeles counties during and after the

heavy winter flood flows of 1995. All 17

populations persisted after the high

flows and no significant changes in

population sizes were detected. In

addition, gobies apparently colonized

Canada Honda, approximately 10 km (6

mi) from the closest known population

during or after the flooding (Swift et al.

1997). Lafferty et al. (1999a, 1999b)

proposed that flood events such as those

that occurred in 1995, flush gobies out

into the ocean’s littoral zone where they

are dispersed by longshore currents to

other estuaries generally south along the

coast. As Swenson (1999) points out,

Lafferty’s work suggests that, because

prevailing longshore currents on the

California coast are southerly,

populations at the northern ends of

geographic clusters of populations are

more likely than southern populations

to serve as source populations. Lafferty

et al. (1999b) estimated the extirpation

and recolonization rates for 37

populations in Southern California from

over 250 presence-absence records and

found a high rate of recolonization. The

results suggest that there is more gene

flow among populations within

geographic clusters (e.g., northern

California, San Francisco Bay, Santa

Cruz, San Luis Obispo, and Southern

California) than previously believed.

They also found a positive association

between tidewater goby presence and

wet years, suggesting that flooding may

contribute to recolonization of sites

from which gobies have temporarily

disappeared.

Lagoons in which tidewater gobies are

found range in size from less than 0.10

hectare (ha) (0.25 acres (ac)) of surface

area to about 800 ha (2,000 ac). Most

lagoons with tidewater goby

populations are in the range of 0.5–5.0

ha (1.25–12.5 ac). Surveys of tidewater

goby localities and historical records

indicate that persistence of tidewater

goby populations is related to size,

configuration, location, and access by

humans (Swift et al. 1989, 1994). Water

surface areas smaller than about 2 ha (5

ac) generally have histories of

extinction, extirpation, or population

reduction to very low levels, although

some as small as 0.35 ha (0.86 ac) have

been identified as having persistent

tidewater goby populations (Swift et al.

1997, Lafferty 1997, Heasly et al. 1997).

As evidenced by the Canada Honda

colonization (Swift et al. 1997),

relatively long distances from the

nearest source populations are not

obstacles to colonization or

reestablishment. Many of the small

lagoons with histories of intermittent

populations are within 1–2 km (0.6–1.2

mi) of larger lagoons that can act as

sources of colonizing gobies.

Today, the most stable and largest

populations are in lagoons and estuaries

of intermediate sizes, 2–50 ha (5–125 ac)

that have remained relatively unaffected

by human activities, although some

systems that are heavily affected or

altered also have relatively large and

stable populations (e.g., Humboldt Bay,

Humboldt County; Santa Clara River,

Ventura County; Santa Ynez River,

Santa Barbara County; and Pismo Creek,

San Luis Obispo County). In many

cases, these probably have provided the

colonists for the smaller ephemeral sites

(Swift et al. 1997; Lafferty et al. 1999b).

Previous Federal Action

We first classified the tidewater goby

as a Category 2 species in 1982 (47 FR

58454). It was reclassified as a Category

1 species in 1991 (56 FR 58804) based

on status and threat information in

Swift et al. (1989). At those times,

Category 2 species were those taxa for

which information in our possession

indicated that proposing to list as

endangered or threatened was possibly

appropriate, but for which sufficient

data on biological vulnerability and

threats were not currently available to

support a listing proposal. Category 1

species, now referred to as candidate

species, were those taxa for which we

had on file, sufficient information on

biological vulnerability and threats to

support a proposal to list as threatened

or endangered. On October 24, 1990, we

received a petition from Dr. Camm

Swift, Associate Curator of Fishes at the

Los Angeles Museum of Natural History,

to list the tidewater goby as endangered.

Our finding that the requested action

may be warranted was published on

March 22, 1991 (56 FR 12146). A

proposal to list the tidewater goby as an

endangered species was published on

December 11, 1992 (57 FR 58770). On

March 7, 1994, the tidewater goby was

listed as an endangered species (59 FR

5494). At that time, we did not

designate critical habitat, because

critical habitat was not then

determinable and a final decision on

critical habitat required detailed

information on the possible economic

effects of designation. At that time, we

did not have sufficient information to

perform the economic analysis.

On September 18, 1998, the Natural

Resources Defense Council, Inc., filed a

lawsuit in Federal District Court in

California against us for failure to

designate critical habitat for the

tidewater goby. On April 5, 1999, the

court ordered that the ‘‘Service publish

a proposed critical habitat designation

for the tidewater goby in 120 days’’

(Natural Resources Defense Council,

Inc. v. U. S. Department of the Interior

et al., CV 98–7596, C.D. Cal.).

On June 24, 1999, we proposed to

delist the northern populations of the

tidewater goby and to retain the

tidewater goby populations in Orange

and San Diego Counties as endangered

based on our reevaluation of the species

status throughout its range (64 FR

33816). We determined that north of

Orange County more populations exist

than were known at the time of the

listing, that threats to those populations

are less severe than previously believed,

and that the tidewater goby has a greater

ability to recolonize habitats from which

it is temporarily absent than was known

in 1994 (64 FR 33816). Moreover, we

believe that the populations of tidewater

gobies in Orange and San Diego

Counties are genetically distinct and

represent a DPS. We believe that this

DPS, comprised of gobies from only

eight localities, continues to be

threatened by habitat loss and

degradation, predation and competition

by non-native species, and extreme

weather and streamflow conditions.

Therefore, we proposed that

populations north of Orange County be

removed from the List of Endangered

and Threatened Animals, and that the

southern DPS of tidewater gobies be

retained as an endangered species on

the list.

On August 3, 1999, we proposed

critical habitat for the tidewater goby

(64 FR 42250). We reopened the

comment period on October 15, 1999

(64 FR 55892), to announce the time and

location of public hearings and provide

for additional public comment. This

second comment period closed on

November 30, 1999. On June 28, 2000,

we published a notice (65 FR 39850)

announcing the reopening of the

comment period on the draft proposal to

designate critical habitat for the

tidewater goby and a notice of

availability of the draft economic

analysis on the proposed determination.

The comment period was opened for an

additional 30 days, closing on July 28,

2000.

Critical Habitat

Critical habitat is defined in section 3

of the Act as—(i) the specific areas

within the geographic area occupied by

a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection; and (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69697

a determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures that are

necessary to bring an endangered or

threatened species to the point at which

listing under the Act are no longer

necessary.

Critical habitat receives protection

under section 7 of the Act through the

prohibition against destruction or

adverse modification of critical habitat

with regard to actions carried out,

funded, or authorized by a Federal

agency. Section 7 also requires

consultations on Federal actions that are

likely to result in the destruction or

adverse modification of critical habitat.

In our regulations at 50 CFR 402.02, we

define destruction or adverse

modification as ‘‘the direct or indirect

alteration that appreciably diminishes

the value of critical habitat for both the

survival and recovery of a listed species.

Such alterations include, but are not

limited to, alterations adversely

modifying any of those physical or

biological features that were the basis

for determining the habitat to be

critical.’’ Aside from the added

protection that may be provided under

section 7, the Act does not provide other

forms of protection to lands designated

as critical habitat. Because consultation

under section 7 of the Act does not

apply to activities on private or other

non-Federal lands that do not involve a

Federal nexus, critical habitat

designation would not afford any

additional protections under the Act

against such activities.

In order to be included in a critical

habitat designation, the habitat must

first be ‘‘essential to the conservation of

the species.’’ Critical habitat

designations identify, to the extent

known using the best scientific and

commercial data available, habitat areas

that provide essential life cycle needs of

the species (i.e., areas on which are

found the primary constituent elements,

as defined at 50 CFR 424.12(b)).

Section 4 requires that we designate

critical habitat at the time of listing and

based on what we know at the time of

the designation. When we designate

critical habitat at the time of listing or

under short court-ordered deadlines, we

will often not have sufficient

information to identify all areas of

critical habitat. We are required,

nevertheless, to make a decision and

thus must base our designations on

what, at the time of designation, we

know to be critical habitat.

Within the geographic area occupied

by the species, we will designate only

areas currently known to be essential.

Essential areas should already have the

features and habitat characteristics that

are necessary to sustain the species. We

will not speculate about what areas

might be found to be essential if better

information became available, or what

areas may become essential over time. If

the information available at the time of

designation does not show that an area

provides essential life cycle needs of the

species, then the area should not be

included in the critical habitat

designation. Within the geographic area

occupied by the species, we will not

designate areas that do not now have the

primary constituent elements, as

defined at 50 CFR 424.12(b), that

provide essential life cycle needs of the

species.

Our regulations state that, ‘‘The

Secretary shall designate as critical

habitat areas outside the geographic area

presently occupied by the species only

when a designation limited to its

present range would be inadequate to

ensure the conservation of the species.’’

(50 CFR 424.12(e)). Accordingly, when

the best available scientific and

commercial data do not demonstrate

that the conservation needs of the

species require designation of critical

habitat outside of occupied areas, we

will not designate critical habitat in

areas outside the geographic area

occupied by the species.

Our Policy on Information Standards

Under the Endangered Species Act,

published in the Federal Register on

July 1, 1994 (59 FR 34271), provides

criteria, establishes procedures, and

provides guidance to ensure that our

decisions represent the best scientific

and commercial data available. It

requires our biologists, to the extent

consistent with the Act and with the use

of the best scientific and commercial

data available, to use primary and

original sources of information as the

basis for recommendations to designate

critical habitat. When determining

which areas are critical habitat, a

primary source of information should be

the listing rule for the species and its

supporting documentation. Additional

information may be obtained from a

recovery plan, articles in peer-reviewed

journals, conservation plans developed

by states and counties, scientific status

surveys and studies, and biological

assessments or other unpublished

materials (i.e., gray literature).

Habitat is often dynamic, and species

may move from one area to another over

time. For these reasons, all should

understand that critical habitat

designations do not signal that habitat

outside the designation is unimportant

or may not be required for recovery.

Furthermore, we recognize that

designation of critical habitat may not

include all of the habitat areas that may

eventually be determined to be

necessary for the recovery of the

species. Areas outside the critical

habitat designation will continue to be

subject to conservation actions that may

be implemented under section 7(a)(1)

and to the regulatory protections

afforded by the section 7(a)(2) jeopardy

standard and the section 9 take

prohibition, as determined on the basis

of the best available information at the

time of the action. We specifically

anticipate that federally funded or

assisted projects affecting listed species

outside their designated critical habitat

areas may still result in jeopardy

findings in some cases. Similarly,

critical habitat designations made on the

basis of the best available information at

the time of designation will not control

the direction and substance of future

recovery plans, habitat conservation

plans, or other species conservation

planning efforts if new information

available to these planning efforts calls

for a different outcome.

Methods

In determining areas that are essential

to conserve the tidewater goby, we used

the best scientific and commercial data

available. This included data from

research and survey observations

published in peer-reviewed articles,

data collected on the U.S. Marine Corps

Base, Camp Pendleton (Camp

Pendleton), data collected from reports

submitted by biologists holding section

10(a)(1)(A) recovery permits, and

comments received on the proposed

rule and economic analysis.

Primary Constituent Elements

In accordance with section 3(5) of the

Act, for habitat within the geographic

range occupied by the species, critical

habitat is defined as specific areas that

contain those physical or biological

features that are essential to the

conservation of the species and that may

require special management

considerations or protection. The

habitat features (primary constituent

elements) that provide for the primary

biological needs of foraging, sheltering,

reproduction, and dispersal that are

essential for the conservation of the

species are described at 50 CFR 424.12,

and include, but are not limited to, the

following:

Space for individual and population

growth, and for normal behavior;

Food, water, or other nutritional or

physiological requirements;

Cover or shelter;

Sites for breeding, reproduction, or rearing

of offspring; and

69698 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

Habitats that are protected from

disturbance or are representative of the

historic geographical and ecological

distributions of a species.

The primary constituent habitat

elements for the tidewater goby were

determined from studies on their habitat

requirements and population biology

(Lafferty et al. 1999a, 1999b; Manion

1993; Swensen 1994, 1995, 1999; Swift

et al. 1989) and include habitat

components that are essential to the

biological needs of foraging, nest

construction, spawning, sheltering, and

dispersal. The foundation for the

primary constituent elements of the

tidewater goby is provided by coastal

lagoons and estuaries supported by a

relatively natural hydrologic regime and

an environment with so few exotic

fishes that tidewater gobies are

unaffected by their presence. These

elements are described in greater detail

below.

Coastal lagoons and estuaries with

natural hydrology generally provide

several specific habitat elements that

gobies require. For instance, aquatic

systems supported by a natural

hydrological regime are often

characterized by a combination of

slightly different habitat types:

freshwater creek, brackish lagoon, and

coastal salt marsh. This habitat variance

generally ensures that some deep

pockets of permanent water remain as

refugia during times of drought;

provides for a variety of substrate types,

of which sand and silt are necessary for

construction of burrows; and provides

for structural complexity of the stream

channel, which supports various types

of aquatic and emergent vegetation. This

structural complexity and presence of

vegetation may ensure that all gobies are

not washed out to sea during flood

events (Swensen 1995). Lastly, lagoons

and estuaries with a natural

hydrological regime and corresponding

habitat complexity generally provide for

the diversity of prey species (e.g.,

aquatic invertebrates, including aquatic

insect larvae, ostracods, crustaceans,

and snails) that gobies require.

The second constituent element of

tidewater goby habitat is a system that

is free from exotic species or nearly so.

Exotic fishes can debilitate, perhaps to

the point of extirpation, tidewater goby

populations through competition and

predation. Largemouth bass, black bass,

sunfishes, striped bass, shimofuri

gobies, and yellowfin gobies all appear

to prey on tidewater gobies. Keeping

exotic species out of occupied goby

habitats, and eliminating them from

potential reestablishment sites will be

crucial to the conservation of the goby.

Criteria Used To Identify Critical

Habitat

We have limited our designation to

Orange and San Diego Counties, because

it is within this area that tidewater

gobies are threatened with extinction

and essential habitat areas for this

species can be identified. Currently,

within Orange and San Diego Counties

no known populations occur outside of

Camp Pendleton. Populations on Camp

Pendleton fluctuate and most have

temporarily been extirpated on several

occasions. Because there is a total of

only eight populations currently known

within Orange and San Diego Counties,

a random event or combination of

events could affect all eight populations

and cause the species to be lost from

those counties. Furthermore, because

the best available information (Dawson

et al. 2000) indicates that tidewater

gobies in Orange and San Diego

Counties comprise a unique genetic

unit, we proposed this population for

listing as a DPS (for additional

discussion on the DPS, see the June 24,

1999, proposed rule 64 FR 33816).

Our critical habitat designation must

take into consideration the fact that the

current information indicates that

tidewater goby populations north of

Orange County are not in danger of

extinction or likely to become so in the

foreseeable future. North of Orange

County, fluctuations in the number of

populations of tidewater gobies are also

common. However, these populations

are of sufficient number (ranging from

about 40 during drought conditions to

about 80 under wet conditions) and

distribution such that they are not in

danger of extinction now or in the

foreseeable future. The last pronounced

drought (1987–1991) did not threaten

the goby north of Orange County with

extinction. In nearly all areas where

populations were reported absent due to

drought or a combination of drought

and human-caused factors, gobies

repopulated naturally shortly after a

return to wetter conditions. Thus, a

return to drought conditions does not

mean endangerment for the goby

populations north of Orange County.

Furthermore, most of the lagoons and

estuaries that no longer support gobies

north of Orange County lost them

decades ago when they were altered in

ways that severely, and for all

practicable purposes permanently,

affected the hydrology, such that they

could no longer support gobies.

Therefore, while there are some

exceptions, north of Orange County

tidewater gobies do live in most of the

estuaries where they can live (not

withstanding normal extirpation and recolonization within the metapopulation

(interconnected subpopulations)). Thus,

this historical loss of habitat did not

result in a continuing trend toward

extinction. In effect, the information on

the species current status and trends

indicates that, for the tidewater goby

populations north of Orange County, the

1994 listing rule misinterpreted the risk

of extinction such that the goby was

mistakenly listed as endangered (for

additional discussion, see the proposed

delisting rule 64 FR 33816).

This information was the basis for the

delisting proposal, which addressed

errors in the original 1994 listing for the

tidewater goby populations north of

Orange County, along with current goby

status and threats. We have received a

substantial number of comments on the

proposed delisting. However, the main

reaction expressed in the comment

letters from the public was that the

Service, armed with very little new

information, was, in its delisting

proposal, reversing its position on the

status of the goby without basis. The

public comment letters also expressed

concern that the delisting proposal was

arguing that the goby was in less danger

of extinction now than in 1994. These

comments included carefully reasoned

and informed set of suggestions for

improving our analysis of current risk of

extinction, and we consider this

designation in light of that information.

At this time, we continue to believe that

the 1994 listing rule misinterpreted the

risk of extinction and that listing under

the Act is not necessary for the

tidewater goby populations north of

Orange County. However, we want to

ensure that we have made the best

decision possible and intend to reopen

the comment period on the proposed

delisting in the near future.

We have not yet made a final

determination on the delisting proposal.

Therefore, the entire species remains

listed, and the Act requires us to

designate critical habitat for the species.

The facts and analysis described above,

however, are highly relevant to the

question of what areas constitute critical

habitat for the species. In order to be

included in a critical habitat

designation, the habitat must first be

‘‘essential to the conservation of the

species.’’ This requires more than that

the habitat be essential for the long-term

survival and well-being of the species.

Rather, the habitat must be essential for

the ‘‘conservation’’ of the species. Under

the Act, ‘‘conservation’’ is a technical

term, defined as the use of all methods

and procedures that are necessary to

bring an endangered or threatened

species to the point at which listing

under the Act is no longer necessary. In

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69699

the case of a species that, although

technically listed, does not meet the

standard for listing, e.g., it should be

delisted, but that action has not yet

taken place, no methods or procedures

are required to bring the species to the

point where listing is no longer

necessary. In other words, that species

is already ‘‘conserved,’’ as that term is

defined in the Act. Thus, as a technical

legal matter, no areas can be ‘‘essential

to the conservation’’ of a species that

currently does not warrant listing.

This is precisely the situation with

respect to the northern populations of

the goby. The best available biological

information indicates that listing under

the Act is already not necessary for the

tidewater goby populations north of

Orange County. In other words, the

northern populations are already

conserved, as that term is used in the

Act, and consequently no areas are

essential to the conservation of the

northern populations. Moreover, we

find that no areas north of Orange

County are essential to the conservation

of the populations in Orange and San

Diego Counties. Therefore, the habitat

areas for the northern population are not

essential to the conservation, as defined

in the Act, of any of the populations, or

the species as a whole. We are not

suggesting that there are no threats to

the goby populations north of Orange

County or that these populations would

not benefit from other actions to manage

or protect the species or its habitat.

However, given the technical legal

requirements of the Act, critical habitat

designation is not the appropriate

vehicle for addressing this need. Under

the Act’s definition of critical habitat,

no areas north of Orange County qualify

for designation as critical habitat for the

species. As we continue to analyze the

proposed delisting, we will evaluate the

best biological information available. If

we identify additional areas that are

essential to the conservation of the

species, we will revise this critical

habitat designation as appropriate.

The population in Orange and San

Diego Counties is endangered because

some of the places where it used to live

have been altered so much that they are

unsuitable for gobies. These remaining

populations, currently eight, fluctuate,

and periodically go extinct, only to be

repopulated later by colonists from

nearby populations. The conservation of

the goby depends upon the existence of

enough habitat areas to support this

natural pattern (Swift et al. 1989,

Lafferty et al. 1999). All of the

remaining habitat areas which are

presently inhabited by gobies are subject

to various threats to habitat quality (see

analysis in 64 FR 33816) and require

special management considerations or

protection. These are designated as

critical habitat.

In accordance with section 3(5)(A)(ii)

of the Act, areas outside the

geographical area occupied by the

species at the time it is listed may meet

the definition of critical habitat upon

determination that they are essential for

the conservation of the species. The

long-term survival of tidewater gobies in

Orange and San Diego Counties depends

upon the presence of enough habitat

areas to support the natural pattern of

local extinctions and recolonizations

(Swift et al. 1989, Moyle et al. 1995,

Lafferty et al. 1999b, Swenson 1999)

that characterize its population biology.

The eight fluctuating populations where

gobies exist today are insufficient in

number and quality to remove gobies in

this part of the range from a high risk

of extinction. Thus, unoccupied habitats

which can support gobies in the future

play an essential role in the

conservation of the goby. To determine

which unoccupied areas are essential

and should be designated as critical

habitat, we evaluated which unoccupied

areas could support tidewater gobies,

and, by virtue of their geographical

distribution, provide for a network of

habitat areas supporting gobies and

acting as sources of recolonization for

other nearby habitat areas.

Two sites that fulfill these criteria are

Aliso Creek, Orange County, and Agua

Hedionda Lagoon, San Diego County.

The tidewater goby population at Aliso

Creek was intensively studied in the

1970s, and the habitat parameters that

supported tidewater gobies when they

occurred there are well documented

(Swift et al. 1989). Habitat parameters

have not changed since tidewater gobies

occupied the creek (Camm Swift,

ichthyologist consultant, pers. comm.

2000, see Summary of Comments and

Recommendations section). In Agua

Hedionda Lagoon, recent fish surveys

found cheekspot (Ilypnus gilberti) and

shadow gobies (Quietula y-cauda),

species which can co-occur with, and

have similar habitat requirements to

tidewater gobies indicating that suitable

conditions may currently exist in the

lagoon to support tidewater gobies (MEC

1995). More recently, a study carefully

examined the suitability of habitat in

Agua Hedionda Lagoon specifically for

tidewater gobies. The study examined

habitat parameters such as substrate,

salinity, water temperature, water

depth, and fish species assemblage, and

compared these with values in habitats

occupied by tidewater gobies. Results

from this study demonstrated that the

lagoon can currently support tidewater

gobies (Merkel and Associates 1999a

and 1999b, see Summary of Comments

and Recommendations section). Because

suitable habitat exists at both of these

lagoons, and because additional

tidewater goby localities are within 10

miles of these lagoons, we find that

Aliso Creek, Orange County, and Agua

Hedionda Lagoon, San Diego County

can support tidewater gobies in the

future and that these two estuaries

contribute to the network of habitat

areas that can support tidewater gobies

and act as sources of recolonization

following the natural pattern of local

extinction in other nearby habitat areas.

We are designating Aliso Creek, Orange

County, and Agua Hedionda Lagoon,

San Diego County, because they are

essential to the conservation of

tidewater gobies.

In defining critical habitat boundaries,

it was not possible to exclude existing

man-made features and structures

within the area designated, such as

buildings, roads, railroads, and other

features. These features will not

themselves contain one or more of the

primary constituent elements. Federal

actions limited to those features,

therefore, would not trigger a section 7

consultation, unless they affect the

species and/or primary constituent

elements in adjacent critical habitat.

In summary, in determining areas that

are essential to conserve tidewater goby,

we used the best scientific information

available to us. The critical habitat areas

described below constitute our best

assessment of areas needed for the

species’ conservation and recovery.

Critical Habitat Designation

For the reasons described above, the

following general areas are designated

as critical habitat. Where delineated, the

50-year flood plain is used to establish

boundaries within the designated

waterways. In areas where the 50-year

flood plain is not delineated, the

presence of alluvial soils (soils

deposited by streams), obligate and

facultative wetland vegetation,

abandoned river channels, or evidence

of high water marks will be used to

determine the extent of the flood plain

and the boundaries for the designation

(see legal descriptions for exact habitat

boundaries):

1. Aliso Creek (Orange County) and its

associated lagoon and marsh from the

Pacific Ocean to approximately 1.0 km

(0.6 mi) upstream;

2. San Mateo Creek and its associated

lagoon and marsh, from the Pacific

Ocean to approximately 1.3 km (0.9 mi)

upstream;

3. San Onofre Creek and its associated

lagoon and marsh from the Pacific

69700 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

Ocean to approximately 0.6 km (0.4 mi)

upstream;

4. Las Flores Creek and its associated

lagoon and marsh from the Pacific

Ocean to Interstate 5 (approximately 1.0

km (0.6 mi));

5. Hidden Creek and its associated

lagoon and marsh from the Pacific

Ocean to Interstate 5 (approximately 0.8

km (0.5 mi));

6. Aliso Creek and its associated

lagoon and marsh from the Pacific

Ocean to Interstate 5 (approximately 0.7

km (0.4 mi));

7. French Creek and its associated

lagoon and marsh from the Pacific

Ocean to Interstate 5 (approximately 0.7

km (0.4 mi));

8. Cockleburr Creek and its associated

lagoon and marsh, from the Pacific

Ocean to Interstate 5 (approximately 1.0

km (0.6 mi));

9. Santa Margarita River from the

Pacific Ocean to a point approximately

5.0 km (3.1 mi) upstream; and

10. Agua Hedionda Lagoon and its

associated marsh and creek from the

Pacific Ocean to a point approximately

3.7 km 2.3 mi) upstream.

Although the majority of land being

proposed for designation is under

Federal administration and

management, some estuary and riparian

habitats are on State, county, city, and

private lands. The Aliso Creek segment,

Orange County, is owned by the County

of Orange, the City of South Laguna, and

private interests. Agua Hedionda

Lagoon is owned by the San Diego Gas

and Electric Company, which leases to

the City of Carlsbad, and public and

private interests. The segments on San

Mateo Creek, San Onofre Creek, Las

Flores Creek, Hidden Creek, Aliso

Creek, French Creek, Cockleburr Creek,

and the Santa Margarita River are on

Camp Pendleton.

Effect of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires

Federal agencies, including the Service,

to ensure that actions they fund,

authorize, or carry out are not likely to

jeopardize the continued existence of a

threatened or endangered species, or

result in the destruction or adverse

modification of critical habitat to the

extent that the action appreciably

diminishes the value of the critical

habitat for the survival and recovery of

the species. Individuals, organizations,

States, local governments, and other

non-Federal entities are affected by the

designation of critical habitat only if

their actions occur on Federal lands,

require a Federal permit, license, or

other authorization, or involve Federal

funding. In 50 CFR 402.02, ‘‘jeopardize

the continued existence’’ (of a species)

is defined as engaging in an activity

likely to result in an appreciable

reduction in the likelihood of survival

and recovery of a listed species.

‘‘Destruction or adverse modification’’

(of critical habitat) is defined as a direct

or indirect alteration that appreciably

diminishes the value of critical habitat

for the survival and recovery of the

listed species for which critical habitat

was designated. Thus, the definitions of

‘‘jeopardy’’ to the species and ‘‘adverse

modification’’ of critical habitat are

nearly identical.

Section 7(a) of the Act requires

Federal agencies, including the Service,

to evaluate their actions with respect to

any species that is proposed or listed as

endangered or threatened, and with

respect to its critical habitat, if any is

designated or proposed. Regulations

implementing this interagency

cooperation provision of the Act are

codified at 50 CFR part 402. Section

7(a)(4) requires Federal agencies to

confer with us on any action that is

likely to jeopardize the continued

existence of a proposed species or result

in destruction or adverse modification

of proposed critical habitat. Conference

reports provide conservation

recommendations to assist the agency in

eliminating conflicts that may be caused

by the proposed action. The

conservation recommendations in a

conference report are advisory. If a

species is listed or critical habitat is

designated, section 7(a)(2) requires

Federal agencies to ensure that activities

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or to destroy

or adversely modify its critical habitat.

If a Federal action may affect a listed

species or its critical habitat, the

responsible Federal agency (action

agency) must enter into consultation

with us. Through this consultation, we

would ensure that the permitted actions

do not adversely modify critical habitat.

When we issue a biological opinion

concluding that a project is likely to

result in the destruction or adverse

modification of critical habitat, we also

provide reasonable and prudent

alternatives to the project, if any are

identifiable. Reasonable and prudent

alternatives are defined at 50 CFR

402.02 as alternative actions identified

during consultation that can be

implemented in a manner consistent

with the intended purpose of the action,

that are consistent with the scope of the

Federal agency’s legal authority and

jurisdiction, that are economically and

technologically feasible, and that the

Director believes would avoid resulting

in the destruction or adverse

modification of critical habitat.

Reasonable and prudent alternatives can

vary from slight project modifications to

extensive redesign or relocation of the

project. Costs associated with

implementing a reasonable and prudent

alternative are similarly variable.

Regulations at 50 CFR 402.16 require

Federal agencies to reinitiate

consultation on previously reviewed

actions in instances where critical

habitat is subsequently designated, and

the Federal agency has retained

discretionary involvement or control

over the action or such discretionary

involvement or control is authorized by

law. Consequently, some Federal

agencies may request reinitiation of

consultation with us on actions for

which formal consultation has been

completed, if those actions may affect

newly designated critical habitat and

they have retained discretionary

involvement in the action. Further,

some Federal agencies may have

conferenced with us on proposed

critical habitat. We may adopt the

formal conference report as the

biological opinion when critical habitat

is designated, if no significant new

information or changes in the action

alter the content of the opinion (see 50

CFR 402.10(d)).

Activities on Federal lands that may

affect the tidewater goby or its critical

habitat will require section 7

consultation. Activities on private or

State lands requiring a permit from a

Federal agency, such as a permit from

the U.S. Army Corps of Engineers

(Corps) under section 404 of the Clean

Water Act, or some other Federal action,

including funding (e.g., Federal

Highway Administration, Federal

Aviation Administration, or Federal

Emergency Management Agency) will

also continue to be subject to the section

7 consultation process. Federal actions

not affecting listed species or critical

habitat and actions on non-Federal

lands that are not federally funded,

authorized, or permitted do not require

section 7 consultation.

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

to briefly evaluate and describe in any

proposed or final regulation that

designates critical habitat those

activities involving a Federal action that

may adversely modify such habitat, or

that may be affected by such

designation. Activities that, when

carried out, funded, or authorized by a

Federal agency, may affect critical

habitat and require that a section 7

consultation be conducted include, but

are not limited to:

(1) Activities such as water diversion

or impoundment, groundwater

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69701

pumping, artificial lagoon breaching to

protect urban or agricultural areas from

inundation, or any other activity that

alters water quality or quantity to an

extent that water quality becomes

unsuitable to support gobies, or any

activity that significantly affects the

natural hydrologic function of the

lagoon system;

(2) Activities such as coastal

development, sand and gravel mining,

channelization, dredging,

impoundment, or construction of flood

control structures, that alter watershed

characteristics or appreciably alter

stream channel and/or lagoon

morphology; and

(3) Activities which could lead to the

introduction of exotic species,

especially exotic fishes, into occupied

or potential goby habitat.

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of the species’ survival and

recovery. Actions likely to ‘‘destroy or

adversely modify’’ critical habitat are

those that would appreciably reduce the

value of critical habitat for the survival

and recovery of the listed species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

actions likely to destroy or adversely

modify critical habitat would almost

always result in jeopardy to the species

concerned, particularly when the area of

the proposed action is occupied by the

species. In those cases, it is highly

unlikely that additional modification to

the action would be required as a result

of designating critical habitat. However,

critical habitat may provide benefits

toward recovery when designated in

areas currently unoccupied by the

species.

Designation of critical habitat could

affect Federal agency activities. Federal

agencies already consult with us on

activities that may effect the species to

ensure that their actions do not

jeopardize the continued existence of

the species. These actions include, but

are not limited to:

(1) Regulation of activities affecting

waters of the U. S. under section 404 of

the Clean Water Act;

(2) Regulation of water flows,

damming, diversion, and channelization

by Federal agencies;

(3) Road construction, right of way

designation, or regulation of agricultural

activities by Federal agencies;

(4) Some military activities on the

Camp Pendleton;

(5) Hazard mitigation and postdisaster repairs funded by the Federal

Emergency Management Agency;

(6) Construction of communication

sites licensed by the Federal

Communications Commission; and

(7) Activities funded or authorized by

Federal agencies.

This section serves in part as a general

guide to clarify activities that may affect

or destroy or adversely modify critical

habitat. However, specific Federal

actions will still need to be reviewed by

the action agency. If the agency

determines the activity may affect

critical habitat, they will consult with

us under section 7 of the Act. If it is

determined that the activity is likely to

adversely modify critical habitat, we

will work with the agency to modify the

activity to minimize negative impacts to

critical habitat. We will work with the

agencies and affected public early in the

consultation process to avoid or

minimize potential conflicts and,

whenever possible, find a solution that

protects listed species and their habitat

while allowing the action to go forward

in a manner consistent with its intended

purpose.

If you have questions regarding

whether specific activities will

constitute adverse modification of

critical habitat, contact the Field

Supervisor, Carlsbad Fish and Wildlife

Office (see ADDRESSES section). Requests

for copies of the regulations on listed

wildlife and inquiries about

prohibitions and permits may be

addressed to the U.S. Fish and Wildlife

Service, Branch of Endangered Species,

911 N.E. 11th Ave, Portland, OR 97232

(telephone 503–231–2063, facsimile

503–231–6243).

Summary of Comments and

Recommendations

In the August 3, 1999, proposed rule

(64 FR 42250), we requested interested

parties to submit factual reports or

information that might contribute to

development of a final rule. The 60-day

comment period closed on October 4,

1999. We contacted appropriate Federal

and State agencies, county and city

governments, scientific organizations,

and other interested parties. We

reopened the comment period on

October 15, 1999, (64 FR 55892) to

announce the time and location of

public hearings and provide for

additional public comment. We

published public notices of the

proposed rule in the North County

Times, the San Diego Union Tribune,

and the Orange County Register, on

October 18, 1999, which invited general

public comment. We posted copies of

the proposed rule and draft economic

analysis on our internet site. We held

two hearings on November 4, 1999, in

Carlsbad, California. Notices appeared

in the previously named newspapers on

October 18, 1999, to announce the

extension of the public comment period

until November 30, 1999, and the

scheduling of the public hearings in

Carlsbad, California, on November 4,

1999. Transcripts of the hearings are

available for inspection (see ADDRESSES

section). On June 28, 2000, we

published a notice (65 FR 39850)

announcing the reopening of the

comment period and the availability of

the draft economic analysis on the

proposed determination. The comment

period was opened for an additional 30-

days, closing on July 28, 2000.

We requested four ichthyologists (fish

biologists) familiar with the species to

review the proposed critical habitat

designation. However, only two

responded by the close of the comment

period. Both of these reviewers

provided valuable information about the

biology, status, and range of the species,

and suggested adding areas to the

critical habitat designation. These

comments are addressed in this section,

and relevant data provided by the

reviewers has also been incorporated

into the ‘‘Background’’ section.

We received a total of 40 written and

28 oral comments during the public

comment periods. Of those written

comments, eight supported critical

habitat designation, 30 opposed critical

habitat designation, and two provided

additional information. Of those oral

comments, 3 supported critical habitat

designation, 24 opposed critical habitat

designation, and one provided

additional information. Written and oral

comments were received from one

Federal agency, two state agencies, six

local agencies, and 28 private

organizations, companies, and

individuals. Several commenters

commented multiple times, both written

and orally. All comments received were

reviewed for substantive issues and new

data regarding critical habitat and the

biology and status of the tidewater goby.

We address all comments received

during the comment periods and public

hearing testimony in the following

summary of issues. Comments of a

69702 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

similar nature are grouped into a single

issue.

Issue 1: Procedural and Legal

Compliance

The following comments and

responses involve issues related to

public involvement in the designation

process and compliance with the Act

and other laws, regulations, and

policies.

Comment 1a: The creation of the

Orange and San Diego Counties distinct

population segment of the tidewater

goby is invalid because it was created as

part of a proposal to delist the tidewater

goby in a portion of its range. The

Service should first delist the species

throughout its entire range, then

propose the DPS separately.

Our Response: This final rule

designating critical habitat for the

tidewater goby finalizes the proposed

designation of critical habitat for the

tidewater goby (64 FR 42250) that

addressed the conservation of the

species throughout its entire range. The

proposed rule to create a DPS and

remove the northern populations of the

tidewater goby from the list of

threatened and endangered species was

a separate proposed rule (64 FR 33816).

In the section above titled ‘‘Criteria

Used To Identify Critical Habitat,’’ we

provide a detailed explanation as to the

basis for this designation, including

how this critical habitat designation

relates to the proposed DPS and

delisting. As discussed in our response

to comment 1b, we must make a

determination regarding critical habitat

for the entire species at this time, based

on the best information available.

Comment 1b: The Service cannot

designate critical habitat on a proposed

Distinct Population Segment (DPS).

Because the Service has designated

critical habitat for a DPS that has not yet

been listed in a final rule, the proposed

critical habitat designation is invalid.

Our Response: The Act requires us to

designate critical habitat for the species,

not the proposed DPS. Although our

designation is limited to Orange and

San Diego Counties, it is not because we

are designating critical habitat for the

proposed DPS, but rather those are the

areas that we have identified that meet

the definition of critical habitat for the

species. In the section above titled

‘‘Criteria Used To Identify Critical

Habitat,’’ we provide a detailed

explanation as to the basis for this

designation, including how the

designation relates to the proposed DPS.

Comment 1c: The Service fails to

include any economic analysis in its

proposed rule, and thus gives

inadequate notice of the action

proposed.

Our response: In the proposed rule,

we acknowledged that section 4(b)(2) of

the Act requires us to consider the

economic and other relevant impacts of

designating a particular area as critical

habitat. We also stated that we would

conduct an analysis of the economic

impacts of designating these areas as

critical habitat prior to a final

determination and announce the

availability of the draft economic

analysis with a notice in the Federal

Register. We conducted an economic

analysis. On June 28, 2000 (65 FR

39850), we published a notice in the

Federal Register announcing the

availability of the draft economic

analysis and reopening the public

comment period for 30 days.

We utilized the economic analysis,

and took into consideration comments

and information submitted during the

public hearing and comment period, to

make this final critical habitat

designation. We may exclude areas from

critical habitat upon a determination

that the benefits of such exclusions

outweigh the benefits of specifying such

areas as critical habitat. We cannot

exclude such areas from critical habitat

when such exclusion will result in the

extinction of the species.

Comment 1d: The Service cannot

designate critical habitat until it first

complies with National Environmental

Policy Act requirements.

Our Response: An environmental

assessment and/or an environmental

impact statement as defined by the

National Environmental Policy Act of

1969 need not be prepared in

connection with regulations adopted

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

published a notice in the Federal

Register outlining our reasons for this

determination on October 25, 1983 (48

FR 49244). This rule does not constitute

a major Federal action significantly

affecting the quality of the human

environment.

Comment 1e: The proposed rule is

based on unpublished data that has not

been made available to the public for

review. The commenter asserts that the

Service has proposed a regulatory action

on the basis of secret data that has never

been made available for public

comment.

Our Response: The commenters use

‘‘Lafferty, et al. (in prep.)’’ and ‘‘Jacobs

(in litt. 1998)’’ as examples of

unpublished data not available to the

public for review. However, we made

both references available to the public,

as indicated in the ‘‘References Cited’’

section of the proposed rule. They were

also part of the administrative record for

the proposed rule. Additionally, the two

citations referred to as ‘‘Lafferty, et al.

(in prep.)’’ were published in 1999

(Lafferty et al. 1999a and 1999b) and

were available as peer-reviewed

literature during the second comment

period on the proposed rule. The

material cited in ‘‘Jacobs (in litt. 1998)’’

is now in an unpublished manuscript

that has been submitted for publication

and is cited in this final rule as

‘‘Dawson et al. 2000.’’

Comment 1f: One commenter stated

that it was inappropriate for us to fail to

designate critical habitat for the

populations north of Orange County

solely on the basis of the proposed rule

to delist those populations. In

particular, the commenter claims that

doing so would be in violation of the

April 5, 1999, order requiring the

Service to propose designation of

critical habitat for the species.

Our Response: The comment is based

on the erroneous understanding that we

artificially limited the proposed, and

now final, rules to designate critical

habitat for the tidewater goby because of

the existence of a proposed rule to delist

the tidewater goby in a portion of its

range. In fact, the proposed and final

critical habitat designation and the

proposed delisting rule is irrelevant to

the question of what areas should be

designated as critical habitat for the

tidewater goby. What is relevant is that

our analysis of the best available

information indicates that the areas

north of Orange County do not

constitute critical habitat as defined by

the Act. This is discussed in greater

detail in the section above titled,

‘‘Criteria Used To Identify Critical

Habitat.’’ Although this same

information is also the basis for the

proposed delisting, that action and this

one are separate and independent

administrative actions. Finally, the

Court on November 19, 1999, dismissed

a motion to enforce judgement based on

the same grounds that the commenter

raised.

Issue 2: Biological Concerns

The following comments and

responses involve issues related to the

biological basis for the designation.

Comment 2a: The use of the 50-year

flood plain to define the lateral extent,

or width of the critical habitat units, is

unrealistic. The 50-year flood plain has

not been delineated in most of the areas

containing critical habitat units.

Our Response: We agree that the use

of the 50-year flood plain is not easily

defined in certain areas where the 50-

year flood plain is not delineated or is

in dispute. In those cases, we have

changed the lateral extent of critical

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69703

habitat designation to be the presence of

alluvial soils (soils deposited by

streams), obligate and facultative

riparian vegetation (requiring and

usually occurring in wetlands

respectively), abandoned river channels,

or known high water marks. These

features characterize the lateral extent of

critical habitat within rivers, streams,

and their associated estuaries where the

50-year flood zone has not been

identified. Existing man-made features

and structures within this area, such as

buildings, roads, railroads, and other

features, do not contain, and do not

have the potential to develop the

primary constituent elements for the

tidewater goby.

Comment 2b: Tidewater gobies are not

documented to occur in upstream

portions of rivers and streams in Orange

and San Diego Counties. There is no

evidence that the upstream areas

proposed meet the Service’s definition

of critical habitat for the tidewater goby.

Our Response: Tidewater gobies often

migrate upstream into tributaries up to

2.0 km (1.2 mi) from estuaries. In San

Antonio Creek and the Santa Ynez River

in Santa Barbara County, tidewater

gobies are often collected 5–8 km (3–5

mi) upstream of the tidal or lagoonal

areas, sometimes in beaver-impounded

sections of streams (Swift et al. 1989).

The fish move upstream in summer and

fall as sub-adults and adults. There is

little evidence of reproduction in these

upper areas (Swift et al. 1997).

Tidewater gobies were collected in

Trabuco Creek, Orange County, in 1939,

approximately 4.5 km (2.8 mi) from the

ocean (mouth of San Juan Creek)

(UMMZ collection number 133000). In

San Diego County, tidewater gobies

were collected from the Santa Margarita

River approximately 3.5 km (2.2 mi)

from the mouth of the River in 1991.

Presumably, they may have occurred

further upstream if not for a beaver dam,

which at that time acted as an effective

barrier to fish movement (Holland

1992). This speculation turned out to be

an accurate prediction when in May

2000, several years after the beaver

dams were removed by high flood flows,

gobies were collected approximately 4.5

km (2.8 mi) upstream of the mouth of

the Santa Margarita River in the vicinity

of the power line crossing (D. Holland,

pers. comm. 2000). Clearly, tidewater

gobies can occupy upstream portions of

creeks in San Diego and Orange

counties.

Little is known about why tidewater

gobies utilize these upstream areas.

Swenson (1995) found that tidewater

gobies in marsh habitats in these

upstream areas were larger and had

fewer parasites than gobies in nearby

creek and lagoon habitats. However,

Swenson (1995) also found that gobies

of all life stages occurred in lagoon,

marsh, and creek habitats, indicating

that they can complete their life cycle in

any of the three habitat types. Because

all life history stages of the species can

be found here these areas are important

to the species and we are including

upstream areas as part of the critical

habitat units in this designation.

Comment 2c: One commenter claimed

that the proposed rule has overstated

the potential impacts of the Foothill

Transportation Corridor South to

tidewater gobies. In contrast, another

commenter expressed concern about the

significant and enduring impacts to

upland and riparian species, including

tidewater gobies, from the proposed

preferred alignment of the Foothill

Transportation Corridor South.

Our Response: The proposed ‘‘CP

alignment’’ of the Foothill

Transportation Corridor South (FTCS),

if constructed, may have substantial

negative impacts to the tidewater goby,

specifically in San Mateo and San

Onofre Creeks (Michael Brandman and

Associates 1997). The lagoons at the

mouth of San Mateo Creek and San

Onofre Creek are both now occupied by

tidewater gobies, and these two lagoons

typically support large goby populations

from several thousand to approximately

70,000 gobies (Swift and Holland 1998).

These two populations, along with Las

Flores Creek, are the largest and most

persistent in the region and are thought

to serve as source populations for

dispersal into the ephemeral estuaries

and streams in the area. Thus these

populations are important to the

recovery of the tidewater goby.

The FTCS CP alignment would have

both significant short-term and longterm impacts to tidewater gobies in the

San Mateo Creek and San Onofre Creek

drainage basins (Michael Brandman and

Associates 1998). Short-term impacts

would include mortality and temporary

loss of habitat for breeding, feeding, and

sheltering due to blockage or diversion

of water flow, increased siltation from

the required cut and fill of thousands of

tons of earth, and the disturbance of low

oxygen sediments. Long-term impacts

would include: the permanent alteration

of the hydrologic regime, primarily in

changes to flow regimes, temperature

patterns, and sediment movement

characteristics of the streams;

permanent loss of habitat for breeding,

feeding, and sheltering due to siltation;

and permanent deterioration in water

quality of the streams from the

continuous input of heavy metals and

other contaminants. These types of

changes to the abiotic elements of a

stream are often associated with

corresponding changes to the

ichthyofauna (fish species assemblage

within a region). Generally, this kind of

disturbance results in an increase of

exotic fish species to the detriment of

the indigenous (native) ichthyofauna

(Moyle and Light 1996). A preliminary

investigation of the impacts to tidewater

gobies from the CP alignment found that

these impacts would be less than

significant after mitigation (Michael

Brandman and Associates 1998).

However, we believe that the benefits of

the proposed mitigation would be

minimal and that construction of the CP

alignment would likely result in the loss

of these populations and potentially

preclude recovery for this species.

Issue 3: Economic Analysis

There were numerous comments that

addressed economic issues.

Comment 3a: The Service should

recognize the importance of the coastal

railway corridor and that any critical

habitat designation is not intended to

impede rail service or the maintenance

or improvement of rail facilities in the

coastal railway corridor.

Our Response: The coastal railway

crosses all tidewater goby critical

habitat units. Any activities permitted,

funded, or carried out by a Federal

agency that jeopardize the species or

destroy or adversely modify its critical

habitat will require a section 7

consultation with the Service. Any nonfederal activity resulting in take of

tidewater gobies, as defined by the Act,

will require a section 10(a)(1) permit

issued by the Service. We will work

closely with the responsible agencies

within the coastal railway corridor to

avoid and minimize impacts to

tidewater goby populations and critical

habitat from future maintenance or

improvements to the coastal railway.

Consultations will now need to consider

critical habitat.

Comment 3b: Designation of critical

habitat will cause private property

values to decline and will negatively

affect businesses.

Our Response: The economic analysis

indicates that designation of critical

habitat for the tidewater goby will not

have a significant economic impact. The

economic analysis does acknowledge

that the designation of critical habitat

may affect private property values. We

believe that this short-term effect would

occur from market uncertainty and

public perception of the perceived

impacts of the critical habitat

designation on property values. We also

believe that this short-term effect on

property values would diminish over

time. We did not find supporting

69704 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

evidence during the preparation of the

economic analysis to estimate or

document this potential short-term

effect on property values. The economic

analysis determined that there will be

an insignificant impact to businesses.

Comment 3c: The Service must

consider the economic impacts of

critical habitat designation on the

Encina Power Station located at the

mouth of Agua Hedionda Lagoon. The

power plant is a must-run facility that

provides 25 percent of all power used in

San Diego County. The operators of the

facility have raised concerns that the

designation of critical habitat would

result in ecological modifications to the

marine environment in order to return

the lagoon to the brackish coastal

environment preferred by the goby.

According to the operators, returning

the lagoon to its former condition would

threaten the power station’s ability to

maintain use of its cooling system,

which currently relies on water

temperature and flow more

characteristic of a tidal environment.

Our Response: We believe that the

existing characteristics of Agua

Hedionda as fully tidal lagoon would

not be altered by designation of critical

habitat for the goby. As such,

designation of critical habitat for Agua

Hedionda is not expected to impact the

ability of the power station to continue

functioning. The Encina Power Station,

however, currently operates under

numerous Federal permits, including

permits relating to air emissions, water

discharge, dredging, and oil spill

response. The main impact is that

critical habitat will need to be

considered in consultations on renewals

of existing Federal permits or to obtain

new permits.

Comment 3d: One commenter voiced

concern that the draft economic analysis

failed to consider impacts from critical

habitat designation in unoccupied units.

Our Response: The draft economic

analysis addressed current and future

activities in unoccupied units. We have

withdrawn the proposed designation of

critical habitat for Buena Vista Lagoon

(see explanation under response to

comment 4b3, below). In most cases,

there was no evidence that the proposed

activity would involve a Federal nexus.

In the absence of a Federal nexus,

critical habitat designation would have

no impact on the proposed activity. In

a few cases, however, a Federal nexus

associated with a proposed activity was

identified. In such cases, the draft

economic analysis addresses the

potential delays and administrative

costs attributable to new Section 7

consultations. Discussion of these costs

can be found on pages 19, 20, 21, 22,

and 24 of the report.

Comment 3e: One commenter

indicated that the draft economic

analysis is flawed because it does not

account for the fact that the proposed

critical habitat includes ‘‘waters of the

United States.’’

Our Response: The draft economic

analysis considered the regulatory

program of the U.S. Army Corps of

Engineers to authorize the discharge of

dredged and fill material into ‘‘waters of

United States’’ under the section 404 of

the Clean Water Act (see Exhibit ES–1,

Summary of Impacts of Under the

Proposed Designation of Critical Habitat

for the Tidewater Goby in the final

economic analysis available from the

Carlsbad Fish and Wildlife Office (see

ADDRESSES section)).

Comment 3f: Two commenters

indicated that the incremental approach

used in the draft economic analysis is

improper and fails to comply with the

requirements set forth in the Act.

Our Response: We do not agree that

the economic impacts of the listing

should be considered in the economic

analysis for the designation of critical

habitat. The Act requires that listing

decisions be based solely on the best

available scientific and commercial data

available (section 4(b) of the Act).

Congress also made it clear in the

Conference Report accompanying the

1982 amendments to the Act that

‘‘economic considerations have no

relevance to determinations regarding

the status of species * * *.’’ We use the

economic analysis to make decisions on

excluding areas from critical habitat

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

section 4(b)(2) exclusion process does

not include an economic analysis

related to the listing of a species. Our

economic analysis evaluates the

incremental effect of critical habitat on

current or planned activities and

practices and does not address effects

associated with the listing of the

species.

Comment 3g: One commenter stated

that the draft economic analysis failed

to account for the current housing

shortage in California.

Our Response: The final critical

habitat designation for the goby

includes ten coastal tributaries in

Orange and San Diego Counties. As the

units are limited to bodies of water and

its associated flood plain, the

designation of critical habitat for the

goby would not reduce the amount of

developable land or exacerbate the

current housing shortage in the affected

counties.

Comment 3h: One commenter

indicated that the draft economic

analysis failed to address the

cumulative impact of multiple critical

habitat designations.

Our Response: Under the

requirements set forth by the Act, the

Service is required to estimate the

potential impacts attributable to the

proposed government action, in this

case the designation of critical habitat

for the goby. The Service is not required

to evaluate the potential cumulative

impacts associated with the listing or

critical habitat for multiple species.

However, the draft economic analysis of

critical habitat for the goby considers

the incremental impacts of designating

critical habitat in the context of existing

baseline regulations. As such, the

analysis considers the economic effects

of critical habitat designation for the

goby in the context of other Federal,

state, or local regulations, as well as

additional species protected by the Act.

Comment 3i: One commenter stated

that the draft economic analysis failed

to address the economic impacts

associated with modifying Agua

Hedionda Lagoon.

Our Response: The designation of

critical habitat for the goby will not

result in modifications to the current

ecological conditions at Agua Hedionda

Lagoon. Recent research (Merkle and

Associates 1999) indicates that the

current ecological conditions at Agua

Hedionda are suitable for the goby. As

a result, no modifications to the lagoon

will occur as a result of designation of

critical habitat, and no economic

impacts associated with modifications

to Agua Hedionda are expected.

Comment 3j: One commenter stated

the draft economic analysis failed to

assess the economic impacts on private

persons and state entities that lack a

Federal nexus.

Our Response: The primary effect of

a critical habitat designation is

regulatory and occurs under section 7

consultation of the Act, when Federal

agencies must consult with the Service

whenever activities they fund,

authorize, or carry out may affected

listed species or designated critical

habitat. Activities on land owned by

individuals, organizations, states, local,

and Tribal governments only require

consultation with the Service if their

actions occur on Federal lands; require

a Federal permit, license, or other

authorization; or involve Federal

funding. If there is no Federal nexus, we

do not anticipate that the designation

will have a significant economic impact

on private persons and state entities.

The economic analysis does

acknowledge that the designation of

critical habitat has the potential to affect

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69705

private property values (see response to

comment 3b).

Comment 3k: One commenter

expressed concern that public

comments submitted by the North San

Diego County Transportation Board

(NCTD) on the proposal to designate

critical habitat for the goby were not

included in the draft economic analysis.

Our Response: Public comments

submitted by the North San Diego

County Transportation Board (NCTD) in

July 2000, were incorporated into the

final economic analysis of critical

habitat designation for the goby.

Comment 3l: One commenter

expressed concern that the draft

economic analysis did not address

current water quality maintenance

activities in Aliso Creek conducted by

the County of Orange.

Our Response: A discussion of current

and future water quality maintenance

activities in Aliso Creek, based on

public comments submitted in July

2000, was incorporated into the final

economic analysis of critical habitat

designation for the goby.

Issue 4: Site Specific Issues

The following comments and

responses involve issues related to the

inclusion or exclusion of specific areas,

or our methods for selecting appropriate

areas for designation as critical habitat.

We received comments challenging our

proposed determination of critical

habitat for all the proposed units.

Comment 4a: Several commenters

pointed out errors in mileages,

locations, or descriptions in the

proposed rule.

Our Response: Corrections have been

made in the final rule to reflect these

comments, where appropriate.

Issue 4b: We received comments for

all 11 units proposed for designation

asserting that the specified unit(s) was

unsuitable for designation, or they

recommended the specific unit(s) be

excluded from designation.

Our Response: We carefully

considered the information provided in

the comments regarding requested

exclusions and removals. The following

is an overview of our rationale for areas

retained as well as the rationale for

specific units (responses 4b1 through

4b5).

Comment 4b1: Aliso Creek cannot

currently support tidewater gobies, and

restoration of the lagoon for the species

is unrealistic at this time.

Our Response: Many of the ecological

characteristics of Aliso Creek lagoon

have not changed noticeably since

gobies occupied the creek in the late

1970’s (Camm Swift, ichthyologist

consultant, pers. comm. 2000). The

predominant substrate is sand. Small

patches of aquatic vegetation typical of

a coastal marsh (Typha, Scirpus,

Salicornia, and Distichlis) grow around

the margin of the lagoon. The system

still forms a brackish water lagoon in

the spring, which is usually opened to

the ocean later in the year by winter

flows. The water quality of the lagoon

in the 1970’s was such that warning

signs were posted to keep beach visitors

out of the lagoon’s waters. This, too, has

not changed. Although the watershed

has become more urbanized over the

past 2 decades, there has not been a

noticeable change in the lagoon since it

was formerly occupied by the species.

Currently, the local agency

stakeholders are working with the U.S.

Army Corps of Engineers to develop an

Aliso Creek Watershed Management

Plan with the central goal of restoring

the watershed. We believe that because

the lagoon has not changed noticeably

since the 1970’s, and because there is

now a concerted effort by the

community to restore the watershed

upon which the lagoon depends, Aliso

Creek represents one of the most

promising prospects for reestablishing a

goby population. As such, Aliso Creek

and its lagoon are essential to the

conservation of the species and are

therefore designated as critical habitat.

Comment 4b2: The Service should not

designate any areas on Camp Pendleton

because populations on the base have

remained relatively stable, and all

threats to tidewater goby populations

are addressed by the existing biological

opinions, management programs, and

within the ongoing NEPA-compliance

program of the base.

Our Response: Currently, tidewater

gobies occupy eight locations on Camp

Pendleton. These include, from north to

south, San Mateo Creek, San Onofre

Creek, Las Flores Creek, Hidden Creek,

Aliso Creek, French Creek, Cockleburr

Creek, and the Santa Margarita River.

All eight localities are relatively pristine

coastal wetlands and are all crossed or

just downstream of Interstate 5 and the

coastal railway.

Although currently there are eight

locations on Camp Pendleton occupied

by the species, this situation is rare and

has not previously been recorded. As

recently as 1991 the number of occupied

goby localities was only three (Swift and

Holland 1998, Dan Holland in litt.

1999). Of the eight currently occupied

areas, only one of these, Las Flores

Creek, has remained continuously

occupied since 1987. San Mateo Creek

and San Onofre Creek have both been

extirpated in recent years as a result of

human-caused habitat alteration.

Hidden Creek appears to be perennial

but may become so hypersaline in a

severe drought as to be unsuitable for

any fish species (Swift and Holland

1998). Aliso Creek, French Creek, and

Cockleburr Creek are all relatively

ephemeral and have not supported

gobies in times of drought. The Santa

Margarita River seemed to be a large

stable population until 1991, but gobies

disappeared in 1991, shortly after the

exotic yellowfin goby (Acanthogobius

flavimanus) became abundant in the

estuary.

In the proposed rule, we stated that

all eight historic and currently occupied

tidewater goby locations in southern

California contained the primary

constituent elements necessary to

support gobies. This has been

substantiated by the fact that all eight

locations are now occupied. We believe

that these localities represent the center

of the metapopulation in Orange and

San Diego Counties and will be the

keystone for recovery of the species. As

such, these areas are essential to the

conservation of the species.

Pursuant to the definition of critical

habitat, an area must also require

‘‘special management considerations or

protections.’’ This is a term that

originates in the definition of critical

habitat in section 3 of the Act. Adequate

special management or protection is

provided by a legally operative plan that

addresses the maintenance and

improvement of the essential elements

and manages for the long-term

conservation of the species. The Service

considers a plan adequate when it meets

all of the following three criteria: (1)

The plan provides a conservation

benefit to the species (i.e., the plan must

maintain or provide for an increase in

the species’ population or the

enhancement or restoration of its habitat

within the area covered by the plan); (2)

the plan provides assurances that the

management plan will be implemented

(i.e., those responsible for implementing

the plan are capable of accomplishing

the objectives, have an implementation

schedule and/or have adequate funding

for the management plan); and (3) the

plan provides assurances the

conservation plan will be effective (i.e.,

it identifies biological goals, has

provisions for reporting progress, and is

of a duration sufficient to implement the

plan and achieves the plan’s goals and

objectives). If an area is covered by a

plan that meets these criteria, it does not

constitute critical habitat as defined by

the Act.

In 1995, the Service issued a

programmatic biological opinion on the

‘‘Programmatic Activities and

Conservation Plans in Riparian and

Estuarine/Beach Ecosystems on Marine

69706 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

Corps Base, Camp Pendleton,’’

including an Estuarine/Beach

Ecosystems Conservation Plan

(Biological Opinion 1–6–95–F 02, 1995).

The reasonable and prudent measures of

the biological opinion require the

Marines to adopt and implement the

Estuarine/Beach Ecosystem

Conservation Plan.

The Estuarine/Beach Ecosystem

Conservation Plan is structured to

minimize the effects to listed species

resulting from programmatic impacts

associated with ongoing and future

training, maintenance, recreation, and

construction activities. Because the

terms and conditions are mandatory,

there are assurances that Conservation

Plan will be implemented, and the

Marines have the authority to carry out

the measures in the plan. Therefore, our

second special management criterion is

also met. However, because the

conservation plan outlines broad goals

for benefiting tidewater gobies without

clearly identifying specific conservation

efforts, its effectiveness is not assured.

The Estuarine/Beach Ecosystem

Conservation Plan does not contain

specific biological objectives for the

tidewater goby. The Conservation Plan

focuses primarily on avian species. It

does not identify specific measures or

targets to achieve an increase in the

tidewater goby population size. Also,

because the plan is general in nature, it

does not outline parameters that can be

used to measure achievement of

objectives or standards by which to

measure them. Population surveys and

monitoring requirements are identified

in the Conservation Plan, but have not

been met as defined in the plan. The

Service is unable to determine that the

Estuarine/Beach Ecosystem

Conservation Plan will be effective, and

consequently, it is not adequate to

preclude the need to designate critical

habitat.

Comment 4b3: Buena Vista lagoon is

currently unsuitable for supporting a

population of tidewater gobies. The

designation of Buena Vista Lagoon as

critical habitat for the tidewater goby is

premature at best and could actually

preclude the modifications needed to

create such habitat.

Our Response: Buena Vista Lagoon, a

California Department of Fish and Game

Ecological Reserve, is currently

predominated by freshwater marsh

conditions, and is closed to the Pacific

Ocean by a concrete weir. This

configuration, as well as the Pacific

Coast Highway, the coastal railway, and

Interstate 5 bridges, which are all

predominantly dirt fill structures,

constrict the lagoon such that sediment

can no longer be moved through the

system. The lagoon has been gradually

filling with sediment and, without

modifications to the system, the lagoon

will conceivably fill entirely,

transforming the lagoon into a mud flat.

This situation has become apparent to

the California Department of Fish and

Game (CDFG), the Buena Vista Lagoon

Foundation, and residents of the local

communities in Carlsbad and Oceanside

(Tim Dillingham CDFG pers. comm.

1999, Ron Wooton, Buena Vista Lagoon

Foundation, pers. comm 1999).

In its current configuration, Buena

Vista Lagoon is essentially a freshwater

lake with a fish fauna that consists

entirely of non-native freshwater fishes.

Some of these, such as largemouth bass

(Lepomis macrochirus), have been

implicated in the decline of tidewater

gobies (Swift et al. 1997). However, if

the lagoon were once again open to the

Pacific Ocean, the habitat could support

tidewater gobies. Opening the lagoon to

tidal flushing would also provide an

outlet to move sediment through the

system, which would prevent the lagoon

from becoming a mud flat, and provide

some sediment to the ocean to help

build local beaches. We believe that

simply removing the weir structure at

the mouth of the lagoon and replacing

it with a structure that would permit

tidal flow would be enough to restore

some goby habitat to the lagoon.

The Buena Vista Lagoon Foundation

is a non-profit private corporation

dedicated to the protection and

maintenance of Buena Vista Lagoon.

The Foundation has a memorandum of

understanding with the CDFG

authorizing it to prepare an Ecological

Reserve Land Management Plan

(ERLMP) on behalf of the department.

Among the proposals being considered

is the potential for establishing a tidal

flushing system which would open the

lagoon to the Pacific Ocean. We feel that

Buena Vista Lagoon could provide

essential habitat for the tidewater goby

and that the current direction of the

ERLMP toward a more tidal system at

Buena Vista Lagoon will accommodate

the creation of tidewater goby habitat.

However, while we believe Buena Vista

Lagoon could be restored to provide

tidewater goby habitat, we do not have

information demonstrating such

restoration is essential to the

conservation of the species. Therefore,

we are removing it from the designation.

Comment 4b4: Agua Hedionda

Lagoon is unsuitable for tidewater

gobies and so should not be designated

as critical habitat.

Our Response: We received a number

of comments questioning the feasability

of Agua Hedionda Lagoon to support

tidewater gobies. These commenters

claimed that the habitat in Agua

Hedionda Lagoon had been so altered

since 1940, the last year in which gobies

were collected from the lagoon, that the

lagoon could not only not support

tidewater gobies, but that the possibility

of restoration of the lagoon for the

species was not feasible. Many of these

comments were grounded in the

misconception that the lagoon would

have to be restored to pre-1940

conditions to support the species. These

commenters were concerned that

critical habitat would trigger

widespread lagoon alterations to restore

habitat and thereby eliminate the many

and varied uses of this tidal lagoon.

Also, the commenters were concerned

that alterations necessary to make

suitable habitat for gobies would reduce

the habitat suitability for other sensitive

species that currently occupy the

lagoon. We believe areas within the

lagoon could support gobies now,

without any restoration effort, and

without any extensive changes to the

current configuration or uses of the

lagoon. We address habitat suitability

within the lagoon here, and will deal

with the effects of the designation on

Agua Hedionda Lagoon and the various

uses within it in the succeeding

comment.

The comments we received generally

cited four habitat elements within the

lagoon as being unsuitable for gobies:

water quality, salinity, sediment, and

the presence of predatory species. The

most recent survey effort of fishes and

sediments was conducted by Merkel

and Associates (1999) on September 23,

1999. The water quality, salinity,

sediment, and fish species composition

results of this survey indicated to us

that not only are there areas within the

lagoon that could support the tidewater

goby, but that the lagoon will probably

not require any restoration to do so

(Merkel and Associates 1999).

Merkel and Associates (1999) reported

that salinity measurements of the areas

of the eastern lagoon ranged from 5 to

48 ppt with an average of about 26.5

ppt. The tidewater goby is often found

in waters of relatively low salinities

(around 10 ppt) in the uppermost

brackish zone of larger estuaries and

coastal lagoons, but can tolerate a wide

range of salinities, and has been

collected at salinities as high as 42 ppt

(Swift et al. 1989, 1997; Worcester 1992,

Worcester and Lea 1996; Swenson

1995). A recent survey of French Creek

Lagoon in June of 2000 found thousands

of tidewater gobies of all life stages.

Salinity in French Creek Lagoon during

this survey ranged from 45–51 ppt and

temperatures ranged from 31–32 °C

(Service field data 2000). Merkel and

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69707

Associates (1999) also reported that

water temperatures within the lagoon

were 21–22 °C and depth ranged from

0.1 to 1.0 m. Tidewater gobies are

usually collected in water less than 1 m

(3 ft) deep, and in temperatures

typically between 9–25 °C (Swift et. al.

1989; Wang 1982; Irvin and Soltz 1984;

Worcester 1992; Swenson 1995). Thus,

depth and temperature are also within

the range usually occupied by gobies.

Given what we know of the water

quality tolerances and preferences of

this species for salinity, temperature,

and depth, the conditions in the eastern

end of Agua Hedionda Lagoon appear

suitable to support gobies.

Merkel and Associates (1999) found

that sediments in the east end of Agua

Hedionda Lagoon ranged from fine sand

to silt/clay. Although there are no

comprehensive studies comparing the

sediment composition of tidewater goby

habitats in different localities, there

appears to be preference of gobies for

coarser sand substrates, especially for

breeding (Swift et al. 1989, Worcester

1992, Swenson 1995). However, muddy,

marshy conditions are a typical feature

in tidewater goby habitats, and have

been shown to be occupied by gobies in

San Antonio Creek, the Santa Ynez

River, Aliso Creek (Orange County), San

Mateo Creek, San Onofre Creek, Las

Flores Creek, French Creek, Aliso Creek

(San Diego County) and the Santa

Margarita River (Swift et al. 1989,

Holland 1992, Swift et. al. 1994, Swift

et al. 1997, Swift and Holland 1998,

Service field data 2000). Swenson

(1995) found that in San Gregorio and

Pescadero Creek, tidewater gobies

inhabited a variety of habitats, including

(1) sandy lagoons, (2) mud or gravelbottomed reaches of creeks, and (3)

muddy marsh pools. Swenson (1995)

also found that tidewater gobies of all

life stages were collected in all three of

these habitat types, suggesting that

tidewater gobies can complete their life

cycle in any one of the three. Worcester

(1992) found that although tidewater

gobies were significantly associated

with coarse sand and fine gravel

substrates, their distribution was

significantly associated with a number

of other physical habitat parameters, so

it was unclear how important substrate

was in determining their presence. Page

(Carl Page pers. com. 2000) has found

that tidewater gobies are actually most

strongly associated with food

abundance in Lake Earl, Del Norte

County, and showed little preference for

substrate. Furthermore, Page found that

tidewater gobies commonly utilized silt

dominated muddy habitats, built

breeding burrows and spawned in these

muddy habitats, and that their post

planktonic larvae utilized muddy silt

dominated habitats exclusively,

presumably due to food availability.

Based on this information, we conclude

that substrates in Agua Hedionda

Lagoon would not preclude the

occurrence of tidewater gobies, and that

they could occupy these areas.

Merkel and Associates (1999) found

that the shoreline was steep sided at the

east end of Agua Hedionda Lagoon, and

stated this feature may make the lagoon

unsuitable for tidewater gobies. In fact,

tidewater gobies occupy a number of

lagoon and estuarine habitats that are

more steeply sided than Agua Hedionda

Lagoon. An example of such a lagoon is

Hidden Creek, San Diego County. This

lagoon consists of what can only be

described as a slot canyon with vertical

walls extending from the bottom of the

lagoon to as much as 10 m above the

water’s surface. Other occupied lagoons

at Aliso Creek (San Diego County),

Cockleburr Creek, Shuman Lagoon, and

the Santa Ynez River all have steep

sides as a prominent habitat feature

(Swift et al. 1997, Swift and Holland

1998). Therefore, the shoreline

configuration at Agua Hedionda appears

suitable for tidewater gobies.

Another contention of some

commenters as to the suitability of Agua

Hedionda for tidewater gobies was that

occurrence of native and non-native

competitors and predators in the lagoon

would preclude the possibility of

occupation by tidewater gobies. Merkle

and Associates (1999) found the

following fish species at Agua Hedionda

in September 1999: California killifish

(Fundulis parvipinnis), topsmelt

(Atherinops affinis), deepbody anchovy

(Anchoa compressa), arrow goby

(Clevelandia ios), mosquitofish

(Gambusia affinis), striped mullet

(Mugil cephalous), and California

butterfly ray (Gymnura marmorata).

With the exception of the California

butterfly ray, these are all species that

the tidewater goby currently co-occurs

with in other lagoons in San Diego

County (Swift and Holland 1998). Fish

surveys of the inner lagoon in 1994 and

1995 (Marine Environmental

Consultants in litt. 1997) found 23

species, all native, and most, species

that the tidewater goby co-occurs with,

with the exception of the yellowfin goby

(Acanthogobius flavimanus). Yellow fin

gobies are a non-native species thought

to compete and predate on tidewater

gobies (Wang 1984, Swift and Holland

1998). Yellowfin gobies were not

present in the most recent survey

(Merkel and Associates 1999). We

conclude that the fish fauna of Agua

Hedionda Lagoon is suitable for

tidewater gobies, and, in fact, is

representative of faunas gobies co-occur

with in other coastal lagoons.

Jenkins and Wasyl (1999) analyzed

tidewater goby migration based on the

coastal currents in the vicinity of Agua

Hedionda Lagoon. The authors were

addressing the effects of existing

offshore current patterns on the success

of tidewater goby dispersal to adjacent

lagoon habitats. The authors found that

55–60 percent of nearshore currents at

Agua Hedionda had a net southward

transport, and 40–45 percent of

nearshore currents had a net northward

transport. The authors also estimated

that the probability that northward

nearshore currents would transport

gobies to Buena Vista Lagoon to the

north was about 0.4 percent. They did

not estimate the probability of gobies

being transported to Batiquitos Lagoon

to the south. While this report examined

an interesting line of research, two

recently published studies documented

the dispersal of tidewater gobies among

coastal lagoons (Lafferty et al. 1999a,

1999b).

Comment 4b5: We received a number

of comments concerning the potential

changes or alterations to Agua Hedionda

Lagoon resulting from a critical habitat

designation. Many of these commenters

believed that critical habitat designation

would result in widespread changes to

the existing configuration of the lagoon

and the corresponding affects to current

uses of the lagoon.

Our Response: Agua Hedionda

Lagoon is dredged to retain tidal

influence within the lagoon which

provides for a deep tidal bay type of

habitat. This configuration also

accommodates a number of recreational

and other uses, including motorboating,

water skiing, and a commercial shellfish

farm. Although this differs markedly

from the historic conditions within the

lagoon, we feel that there are still areas

within the lagoon which provide

potential habitat for tidewater gobies.

We believe that the current

configuration of the lagoon could

support the species as well as the

existing uses within the lagoon.

Comment 5: San Juan Creek and the

San Luis Rey River should be included

as critical habitat.

Our Response: We received several

comments proposing that San Juan

Creek and the San Luis Rey River

should be designated as critical habitat.

Recent investigations at San Juan Creek

and the San Luis Rey River have

provided some data as to the suitability

of these habitats to support tidewater

gobies (Michael Brandman and Assoc.

1998, Dan Holland pers. comm. 2000).

These data indicate that if efforts were

69708 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

undertaken to restore tidewater goby

habitat to these systems, they may

support the species. San Juan Creek and

the San Luis Rey River may be

important in the species recovery and

their potential value will be assessed in

the recovery plan for the species.

However, while San Juan Creek and the

San Luis Rey River may be restored to

provide suitable habitat for tidewater

gobies, we do not have information

demonstrating these areas are essential

to the conservation of the species;

therefore, these areas do not meet the

definition of critical habitat.

Summary of Changes From the

Proposed Rule

We changed the rule to better define

the lateral extent of critical habitat in

response to a comment that the 50-year

flood plain is undelineated or in dispute

in many areas and is not useful in

defining the lateral extent of critical

habitat for the goby. In this final rule we

have defined the lateral extent of critical

habitat as the 50-year flood plain or the

stream channels, estuaries, and other

areas within these reaches potentially

inundated by high flow events. The

lateral extent of high flow events, and

critical habitat, can be determined by

the presence of alluvial soils (soils

deposited by streams), obligate and

facultative riparian vegetation (requiring

and usually occurring in wetlands

respectively), abandoned river channels,

or known high water marks. This

constitutes the present aquatic and

riparian zones of the rivers, streams, and

their associated estuaries designated as

critical habitat. Existing humanconstructed features and structures

within this area, such as buildings,

roads, railroads, and other features, do

not contain, and do not have the

potential to develop, those habitat

components. It should be noted that this

change does not increase the amount of

critical habitat designated, but rather is

a less ambiguous method of defining the

same critical habitat boundaries.

We have also excluded Buena Vista

Lagoon. We note that tidewater goby

habitat could be created at Buena Vista

Lagoon. Restoring tidal flow by

removing the existing weir structure

currently blocking the mouth of the

lagoon would probably create some

habitat for the species (see comment 4b3

in the ‘‘Summary of Comments and

Recommendations’’ section above).

However, as we do not have information

demonstrating that restoration of Buena

Vista Lagoon is essential for the

conservation of the tidewater goby, we

have not included the area in this final

designation.

Additionally, we have changed the

maps to better reflect the lateral extent

of areas within these stream reaches that

constitute critical habitat. The maps are

a graphical representation only and do

not constitute the definition of the

critical habitat units. The maps are

provided for reference purposes only, to

guide Federal agencies and other

interested parties in locating the general

boundaries of the critical habitat unit

(50 CFR 17.94(b)).

Economic Analysis

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

to designate critical habitat on the basis

of the best scientific and commercial

information available and to consider

the economic and other relevant

impacts of designating a particular area

as critical habitat. We completed a draft

economic analysis and made it available

to the public for comment (65 FR

39850). We also completed a final

economic analysis that incorporated

public comment, information gathered

since the draft analysis, and changes to

the critical habitat designation. The

analysis found that there would be an

economic impact from the designation

that would vary on a situational level,

and that most of the impact would come

in the form of new section 7

consultations in unoccupied habitat

units. We have determined that these

economic impacts are minimal and do

not warrant excluding any areas from

the designation. The final economic

analysis is available to the public at the

Carlsbad Fish and Wildlife Office (see

ADDRESSES section).

Required Determinations

Regulatory Planning and Review

This document has been reviewed by

the Office of Management and Budget

(OMB), in accordance with Executive

Order 12866. OMB makes the final

determination under Executive Order

12866.

(a) This rule will not have an annual

economic effect of $100 million or

adversely affect an economic sector,

productivity, jobs, the environment, or

other units of government. A costbenefit and economic analysis is not

required. The tidewater goby was listed

as an endangered species in 1994.

Under the Act, critical habitat may

not be adversely modified by a Federal

agency action; it does not impose any

restrictions on non-Federal persons

unless they are conducting activities

funded or otherwise sponsored or

permitted by a Federal agency (see

Table 1 below). Section 7 requires

Federal agencies to ensure that they do

not jeopardize the continued existence

of the species. Based upon our

experience with the species and its

needs, we conclude that any Federal

action or authorized action that could

potentially cause adverse modification

of designated critical habitat would

currently be considered as ‘‘jeopardy’’

under the Act. Accordingly, the

designation of areas within the

geographic range occupied by the

tidewater goby does not have any

incremental impacts on what actions

may or may not be conducted by

Federal agencies or non-Federal persons

that receive Federal authorization or

funding. The designation of areas

outside the geographic range occupied

by the species may have incremental

impacts on what activities may or may

not be conducted by Federal agencies or

non-Federal persons that receive

Federal authorization or funding.

However, our analysis did not identify

any significant incremental effects. NonFederal persons that do not have a

Federal ‘‘sponsorship’’ of their actions

are not restricted by the designation of

critical habitat, although they continue

to be bound by the provisions of the Act

concerning ‘‘take’’ of the species.

(b) This rule will not create

inconsistencies with other agencies’

actions. As discussed above, Federal

agencies have been required to ensure

that their actions do not jeopardize the

continued existence of the tidewater

goby since the listing in 1994. The

prohibition against adverse modification

of critical habitat is not expected to have

a significant economic impact. Because

of the potential for impacts on other

Federal agency activities, we will

continue to review this action for any

inconsistencies with other Federal

agency actions.

(c) This rule will not materially affect

entitlements, grants, user fees, loan

programs, or the rights and obligations

of their recipients. Federal agencies are

currently required to ensure that their

activities do not jeopardize the

continued existence of the species, and

as discussed above we do not anticipate

that the adverse modification

prohibition (resulting from critical

habitat designation) will have any

significant incremental effects.

(d) This rule will not raise novel legal

or policy issues. This final

determination follows the requirements

for determining critical habitat

contained in the Endangered Species

Act.

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69709

TABLE 1.—IMPACTS OF TIDEWATER GOBY LISTING AND CRITICAL HABITAT DESIGNATION

Categories of Activities Activities Potentially Affected by Species Listing Only 1

Additional Activities Potentially Affected by Critical Habitat Designation 2

Federal Activities Potentially

Affected 3.

Activities the Federal Government carries out such as: regulation of activities affecting waters of the U.S. (under section 404 of the Clean

Water Act); regulation of water flows, damming, diversion, and channelization; road construction, right of way designation; regulation of agricultural activities; some military activities on the Camp Pendleton;

hazard mitigation and post-disaster repairs; and construction activities.

Activities by Federal Agencies in any

unoccupied critical habitat areas.

Private Activities Potentially

Affected 4.

Activities such as: those affecting waters of the U.S. (under section 404

of the Clean Water Act); regulation of water flows, damming, diversion,

and channelization; road construction, right of way designation; agricultural activities; hazard mitigation and post-disaster repair; and construction activities that require a Federal action (permit, authorization, or

funding).

Funding, authorization, or permitting

actions by Federal Agencies in

any unoccupied critical habitat

areas.

1This column represents the activities potentially affected by listing the tidewater goby as an endangered species (March 7, 1994; 59 FR 5494)

under the Endangered Species Act. 2This column represents the activities potentially affected by the critical habitat designation in addition to those activities potentially affected by

listing the species. 3Activities initiated by a Federal agency.

4Activities initiated by a private entity that may need Federal authorization or funding.

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

et seq.)

In the economic analysis, we

determined that designation of critical

habitat will not have a significant effect

on a substantial number of small

entities. As discussed under Regulatory

Planning and Review above and in this

final determination, this designation of

critical habitat for the tidewater goby is

not expected to have a significant

economic impact. We have designated

property owned by Federal, State and

local governments, and private property.

Within these areas, the types of

Federal actions or authorized activities

that we have identified as potential

concerns are:

(1) Regulation of activities affecting

waters of the U. S. under section 404 of

the Clean Water Act;

(2) Regulation of water flows,

damming, diversion, and channelization

by Federal agencies;

(3) Road construction, right of way

designation, or regulation of agricultural

activities by Federal agencies;

(4) Some military activities on the

Camp Pendleton;

(5) Hazard mitigation and postdisaster repairs funded by the Federal

Emergency Management Agency;

(6) Construction of communication

sites licensed by the Federal

Communications Commission; and

(7) Activities funded or authorized by

Federal agencies.

Some of these activities sponsored by

Federal agencies within critical habitat

areas are carried out by small entities (as

defined by the Regulatory Flexibility

Act) through contract, grant, permit, or

other Federal authorization. As

discussed in section 1 above, these

actions are largely required to comply

with the listing protections of the Act,

and the designation of critical habitat is

not anticipated to have significant

additional effects on these activities.

For actions on non-Federal property

that do not have a Federal connection

(such as funding or authorization), the

current restrictions concerning take of

the species remain in effect, and this

final determination will have no

additional restrictions.

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 804(2))

In the economic analysis, we

determined whether designation of

critical habitat would cause (a) any

effect on the economy of $100 million

or more, (b) any increases in costs or

prices for consumers, individual

industries, Federal, State, or local

government agencies, or geographic

regions in the economic analysis, or (c)

any significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S. based enterprises to compete

with foreign-based enterprises. Refer to

the final economic analysis for a

discussion of the effects of this

determination.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

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

seq.):

(a) This rule will not ‘‘significantly or

uniquely’’ affect small governments. A

Small Government Agency Plan is not

required. Small governments will only

be affected to the extent that any Federal

funds, permits, or other authorized

activities must ensure that their actions

will not adversely affect the critical

habitat. However, as discussed in

section 1, these actions are currently

subject to equivalent restrictions

through the listing protections of the

species, and no further restrictions are

anticipated.

(b) This rule will not produce a

Federal mandate of $100 million or

greater in any year, that is, it is not a

‘‘significant regulatory action’’ under

the Unfunded Mandates Reform Act.

The designation of critical habitat

imposes no obligations on State or local

governments.

Takings

In accordance with Executive Order

12630, this rule does not have

significant takings implications, and a

takings implication assessment is not

required. This designation will not

‘‘take’’ private property and will not

alter the value of private property.

Federalism

In accordance with Executive Order

13132, the rule does not have significant

Federalism effects. A Federalism

assessment is not required. This

designation of critical habitat imposes

no additional restrictions to those

currently in place, and therefore has

little incremental impact on State and

local governments and their activities.

The designation may have some benefit

to these governments in that the areas

essential to the conservation of the

species are more clearly defined, and

the primary constituent elements of the

habitat necessary to the survival of the

species are specifically identified. While

this definition and identification does

not alter where and what federally

sponsored activities may occur, it may

assist these local governments in longVerDate 11<MAY>2000 15:55 Nov 17, 2000 Jkt 194001 PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 E:\FR\FM\20NOR1.SGM pfrm01 PsN: 20NOR1
69710 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

range planning (rather than waiting for

case-by-case section 7 consultations to

occur).

Civil Justice Reform

In accordance with Executive Order

12988, the Department of the Interior’s

Office of the Solicitor has determined

that this rule does not unduly burden

the judicial system and meets the

requirements of sections 3(a) and 3(b)(2)

of the Order. We have made every effort

to ensure that this final determination

contains no drafting errors, provides

clear standards, simplifies procedures,

reduces burden, and is clearly written

such that litigation risk is minimized.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements for

which Office of Management and

Budget approval under the Paperwork

Reduction Act is required.

National Environmental Policy Act

We have determined that an

Environmental Assessment and/or an

Environmental Impact Statement as

defined by the National Environmental

Policy Act of 1969 need not be prepared

in connection with regulations adopted

pursuant to section 4(a) of the Act as

amended. A notice outlining our reason

for this determination was published in

the Federal Register on October 25,

1983 (48 FR 49244). This final

determination does not constitute a

major Federal action significantly

affecting the quality of the human

environment.

Government-to-Government

Relationship With Tribes

In accordance with the President’s

memorandum of April 29, 1994,

‘‘Government-to-Government Relations

with Native American Tribal

Governments’’ (59 FR 22951) and 512

DM 2, we readily acknowledge our

responsibility to communicate

meaningfully with recognized Federal

Tribes on a government-to-government

basis. We have determined that there are

no Tribal lands that are essential for the

conservation of the tidewater goby

because they do not support

populations or suitable habitat.

Therefore, we are not designating

critical habitat for the tidewater goby on

Tribal lands.

References Cited

A complete list of all references cited

in this final rule is available upon

request from the Carlsbad Fish and

Wildlife Office (see ADDRESSES section).

Author. The primary author of this

final rule is the Carlsbad Fish and

Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, we amend part 17,

subchapter B of chapter I, title 50 of the

Code of Federal Regulations as set forth

below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

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

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

625, 100 Stat. 3500; unless otherwise noted.

2. Amend § 17.11(h), by revising the

entry for ‘‘goby, tidewater’’ under

‘‘FISHES’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

SPECIES

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

FISHES

*******

Goby, tidewater ....... Eucyclogobius

newberryi.

U.S.A. (CA) ............. do ............................ E 527 17.95(e) NA

*******

3. Amend § 17.95(e) by adding critical

habitat for the tidewater goby

(Eucyclogobius newberrii) under

paragraph (e) in the same alphabetical

order as this species occurs in

§ 17.11(h), to read as follows:

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(e) Fishes.

* * * * *

Tidewater goby (Eucyclogobius newberrii)

1. Critical habitat units are depicted for

Orange and San Diego Counties, California,

on the maps below and as described below.

2. Critical habitat includes the sections of

streams indicated on the maps below and

areas within these reaches potentially

inundated by high flow events. Where

delineated, this is the 50-year flood plain of

the designated waterways. In areas where the

50-year flood plain is not delineated the

presence of alluvial soils (soils deposited by

streams), obligate and facultative wetland

vegetation, abandoned river channels, or

evidence of high water marks can be used to

determine the extent of the floodplain.

Critical habitat does not include existing

man-made features and structures within this

area, such as buildings, roads, railroads, and

other features, which do not contain, and do

not have the potential to develop the primary

constituent elements for the tidewater goby.

3. Within these areas, the primary

constituent elements include, but are not

limited to, those habitat components that are

essential for the primary biological needs of

foraging, sheltering, and reproduction. These

elements include coastal lagoons and estuary

systems supported by a natural hydrological

regime, which results in sufficient

streamflow, areas of shallow water as well as

deep pockets of permanent water, sand and

silt substrate, a variety of aquatic and

emergent vegetation, and a diversity of prey

species; and an environment free from exotic

fishes.

BILLING CODE 3420–55–P

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69711

Map Unit 1: Orange County, California. From

USGS 7.5′ quadrangle map Laguna Beach,

California, and San Juan Capistrano,

California. San Bernardino Principal

Meridian, California, T. 7 S., R 8 W.,

beginning at a point on Aliso Creek in SW

sec. 32 and at approximately 33°30′46′′ N

latitude and 117°44′37′′ W longitude, UTM

coordinates 430853.4 E, 3708395.9 N, and

proceeding downstream (westerly) to the

Pacific Ocean covering approximately 1.0 km

(0.6 mi.), including the stream, its 50-year

flood plain, and associated lagoons and

marsh.

69712 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69713

Map Unit 2: San Diego County, California.

From USGS 7.5′ quadrangle map San

Clemente, California. San Bernardino

Principal Meridian, California, T. 9 S., R. 7

W., beginning at a point on San Mateo Creek

in NW sec. 14 and at approximately

33°23′46′′ N latitude and 117°35′20′′ W

longitude, UTM coordinates 445152.5 E,

3695369.7 N, and proceeding downstream

(southerly) to the Pacific Ocean covering

approximately 1.3 km (0.9 mi.), including the

stream, its 50-year flood plain, and associated

lagoons and marsh.

Map Unit 3: San Diego County, California.

From USGS 7.5′ quadrangle map San

Clemente, California. San Bernardino

Principal Meridian, California, T. 9 S., R. 7

W., beginning at a point on San Onofre Creek

in SE sec. 14 and at approximately 33°23′05′′

N latitude and 117°34′30′′ W longitude, UTM

coordinates 446450.2 E, 3694074.4 N, and

proceeding downstream (southwesterly) to

the Pacific Ocean covering approximately 0.6

km (0.4 mi.), including the stream, its 50-year

flood plain, and associated lagoons and

marsh.

69714 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

Map Unit 4: San Diego County, California.

From USGS 7.5′ quadrangle map Las Pulgas

Canyon, California. San Bernardino Principal

Meridian, California, T. 10 S., R. 6 W.,

beginning at a point on Las Flores Creek in

the middle of sec. 13 and at approximately

33°17′32′′ N latitude and 117°27′20′′ W

longitude, UTM coordinates 457495.3 E,

3683780.1 N, and proceeding downstream

(westerly) to the Pacific Ocean covering

approximately 0.8 km (0.5 mi.), including the

stream, its 50-year flood plain, and associated

lagoons and marsh.

Map Unit 5: San Diego County, California.

From USGS 7.5′ quadrangle map Las Pulgas

Canyon, California. San Bernardino Principal

Meridian, California, T. 10 S., R. 5 W.,

beginning at a point on Hidden Creek in W

sec. 30 and at approximately 33°16′46′′ N

latitude and 117°26′48′′ W longitude, UTM

coordinates 458321.5 E, 3682362.9 N, and

proceeding downstream (southwesterly) to

the Pacific Ocean covering approximately 0.8

km (0.5 mi.), including the stream, its 50-year

flood plain, and associated lagoons and

marsh.

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69715

Map Unit 6: San Diego County, California.

From USGS 7.5′ quadrangle map Las Pulgas

Canyon, California. San Bernardino Principal

Meridian, California, T. 10 S., R. 5 W.,

beginning at a point on Aliso Creek in NE

sec. 31 and at approximately 33°16′13′′ N

latitude and 117°26′19′′ W longitude, UTM

coordinates 459521.7 E, 3680981.1 N, and

proceeding downstream (southwesterly) to

the Pacific Ocean covering approximately 0.7

km (0.4 mi.), including the stream, its 50-year

flood plain, and associated lagoons and

marsh.

Map Unit 7: San Diego County, California.

From USGS 7.5′ quadrangle map Las Pulgas

Canyon, California. San Bernardino Principal

Meridian, California, T. 10 S., R. 5 W.,

beginning at a point on French Creek in E

sec. 31 and at approximately 33°16′01′′ N

latitude and 117°26′01′′ W longitude, UTM

coordinates 459078.8 E, 3681354.4 N, and

proceeding downstream (westerly) to the

Pacific Ocean covering approximately 0.7 km

(0.4 mi.), including the stream, its 50-year

flood plain, and associated lagoons and

marsh.

Map Unit 8: San Diego County, California.

From USGS 7.5′ quadrangle map Las Pulgas

Canyon, California. San Bernardino Principal

Meridian, California, T. 11 S., R. 5 W.,

beginning at a point on Cockleburr Creek in

NE sec. 5 and at approximately 33°15′16′′ N

latitude and 117°25′21′′ W longitude, UTM

coordinates 460570.4 E, and 3679563.4 N,

and proceeding downstream (westerly) to the

Pacific Ocean covering approximately 1.0 km

(0.6 mi.), including the stream, its 50-year

flood plain, and associated lagoons and

marsh.

69716 Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations

Map Unit 9: San Diego County, California.

From USGS 7.5′ quadrangle map Oceanside,

California. San Bernardino Principal

Meridian, California, T. 11 S., R. 5 W.,

beginning at a point on the Santa Margarita

River in NW sec. 2 and at approximately

33°15′08′′ N latitude and 117°22′38′′ W

longitude, UTM coordinates 464774.9 E,

3679326.9 N, and proceeding downstream

(westerly) to the Pacific Ocean covering

approximately 5.0 km (3.1 mi.), including the

river’s 50-year flood plain, associated lagoons

and marsh.

Federal Register / Vol. 65, No. 224 / Monday, November 20, 2000 / Rules and Regulations 69717

Map Unit 10: San Diego County, California.

From USGS 7.5′ quadrangle map San Luis

Rey, California. San Bernardino Principal

Meridian, California, T. 12 S., R. 4 W.,

beginning at a point on Augua Hedionda

Creek in the middle of Section 9 and at

approximately 33°08′44′′ N latitude and

117°18′19′′ W longitude, UTM coordinates

471444.4 E, 3667474.6 N, and proceeding

downstream (southwesterly) to the Pacific

Ocean covering approximately 3.7 km (2.3

mi.), including the creek, its 50-year flood

plain, Agua Hedionda Lagoon, and associated

marsh.

Dated: November 13, 2000.

Kenneth L. Smith,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 00–29547 Filed 11–17–00; 8:45 am]

BILLING CODE 3420–55–C