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and dispersal events to continue under 

current management, including the 

protections of the Act, such that natural 

connectivity between the NCDE 

population and GYE population will 

likely occur in the near future (Service 

2024, p. 54). 

To summarize, information provided 

by the petitioner and the best scientific 

and commercial data available indicate 

that grizzly bear abundance, 

distribution, and dispersal have 

increased, and grizzly bears have 

expanded beyond the 2017 GYE DPS 

boundary. As a result, the petitioned 

DPS identified in 2017 is no longer 

based on the best scientific and 

commercial data available and is 

obsolete. As populations have grown 

and expanded, grizzly bears have 

dispersed beyond the 2017 GYE DPS 

boundary, often into areas considered to 

be previously unoccupied. 

Under our DPS Policy, a population 

segment of a vertebrate species may be 

considered discrete if it satisfies either 

of the following two conditions: (1) it is 

markedly separated from other 

populations of the same taxon as a 

consequence of physical, physiological, 

ecological, or behavioral factors 

(quantitative measures of genetic or 

morphological discontinuity may 

provide evidence of this separation); or 

(2) it is delimited by international 

governmental boundaries within which 

significant differences in control of 

exploitation, management of habitat, 

conservation status, or regulatory 

mechanisms exist that are significant in 

light of section 4(a)(1)(D) of the Act. In 

determining whether the test for 

discreteness has been met under the 

DPS policy, we allow but do not require 

genetic evidence to be used. 

Although the DPS Policy does not 

require absolute separation of one 

population from another, (82 FR 30502, 

June 30, 2017, p. 30518), the standard 

for discreteness must allow us to 

distinguish between the DPS and other 

members of the species for purposes of 

administering and enforcing the Act (61 

FR 4722, February 7, 1996, p. 4724). As 

summarized above, the best scientific 

and commercial data available indicate 

that the estimated occupied range of the 

grizzly bear population in the GYE has 

expanded since 2017. The NCDE 

population has also expanded its range, 

and the two populations are 

increasingly closer in proximity. Due to 

this expansion, which is expected to 

continue in the future under current 

management, including the protections 

of the Act, we no longer consider the 

2017 GYE DPS to be discrete, as grizzly 

bears have dispersed and expanded to 

such an extent that it is not markedly 

separate from other members of the 

taxon. Because grizzly bears within the 

boundaries of the 2017 GYE DPS 

described by the petitioner are not 

markedly separated from other 

populations of the taxon, it does not 

meet the discreteness element in the 

DPS Policy as a consequence of 

physical, physiological, ecological, or 

behavioral factors (61 FR 4722, February 

7, 1996). Therefore, we find that grizzly 

bears in the 2017 GYE DPS do not, on 

their own, represent a valid DPS and we 

therefore do not consider the status of 

grizzly bears in this petitioned entity as 

a separately listable entity under the 

Act. Accordingly, we find that the 

petitioned action to establish and delist 

the GYE DPS is not warranted. 

We are in the process of fully 

evaluating the latest information 

regarding the status of the grizzly bear 

in the lower-48 States in a rulemaking 

expected by January 31, 2026. This 

rulemaking is pursuant to a settlement 

agreement associated with the State of 

Idaho’s petition to delist the grizzly bear 

in the lower-48 States. That rulemaking, 

to either remove or revise the currently 

listed entity of the grizzly bear in the 

lower-48 States, will fully evaluate the 

best scientific and commercial data 

available, which could include potential 

DPSs, while considering potential 

population segment’s conservation 

status and Congress’s direction to 

exercise DPSs sparingly and only when 

the biological evidence indicates that 

such action is warranted. The trends of 

increasing distribution and dispersal 

point to the need for a broader, holistic 

evaluation at the rangewide level, which 

will be completed as part of the 

rulemaking already underway. 

Consistent with the DPS Policy, that 

analysis will require careful 

consideration of the extent to which 

formerly isolated populations are 

connected, or likely to be connected, 

and the need for connectivity to small 

or isolated populations and unoccupied 

recovery zones, given the best and most 

recent biological data available that 

support a durable recovered grizzly bear 

in the lower-48 States. 

Peer Review 

In accordance with our July 1, 1994, 

peer review policy (59 FR 34270; July 1, 

1994) and the Service’s August 22, 2016, 

Director’s Memo on the Peer Review 

Process, we solicited independent 

scientific reviews of the information 

contained in the SSA report for the 

grizzly bear in the lower-48 States. 

Results of this structured peer review 

process can be found at https://

www.regulations.gov. We incorporated 

the results of these reviews, as 

appropriate, into the SSA report, which 

is the scientific foundation for this 

finding. 

References Cited 

A list of the references cited in this 

petition finding is available in the 

species assessment form, which is 

available on the internet at http://

www.regulations.gov under Docket No. 

FWS–R6–ES–2022–0150 (see 

ADDRESSES, above). 

Authors 

The primary authors of this document 

are staff members of the Grizzly Bear 

Recovery Office, Ecological Services 

Program. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Martha Williams, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2025–00325 Filed 1–14–25; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2024–0131; 

FXES1111090FEDR–256–FF09E21000] 

RIN 1018–BH71 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the San Francisco BayDelta Distinct Population Segment of 

the Longfin Smelt 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the San 

Francisco Bay-Delta distinct population 

segment (DPS) of the longfin smelt 

(Spirinchus thaleichthys), a fish species 

from the San Francisco Bay estuary in 

California, under the Endangered 

Species Act of 1973, as amended (Act). 

In total, approximately 91,630 acres 

(37,082 hectares) in California fall 

within the boundaries of the proposed 

critical habitat designation. We also 

announce the availability of an 

economic analysis of the proposed 

designation of critical habitat for the 

species. 

DATES: We will accept comments 

received or postmarked on or before 

March 17, 2025. Comments submitted 


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3766 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Proposed Rules 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

eastern time on the closing date. We 

must receive requests for a public 

hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by March 3, 2025. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter FWS–R8–ES–2024–0131, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the panel on the left 

side of the screen, under the Document 

Type heading, check the Proposed Rule 

box to locate this document. You may 

submit a comment by clicking on 

‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R8–ES–2024–0131, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

Supporting materials, such as the 

species status assessment report and 

100-word summary of this proposed 

rule, are available at https://

www.regulations.gov at Docket No. 

FWS–R8–ES–2024–0131. For the 

proposed critical habitat designation, 

the coordinates or plot points or both 

from which the maps are generated are 

included in the decision file for this 

critical habitat designation and are 

available at https://www.regulations.gov 

at Docket No. FWS–R8–ES–2024–0131. 

FOR FURTHER INFORMATION CONTACT: 

Donald Ratcliff, Field Supervisor, U.S. 

Fish and Wildlife Service, San 

Francisco Bay-Delta Fish and Wildlife 

Office, 650 Capitol Mall Suite 8–300, 

Sacramento, CA 95814; telephone 916– 

930–5603. Individuals in the United 

States who are deaf, deafblind, hard of 

hearing, or have a speech disability may 

dial 711 (TTY, TDD, or TeleBraille) to 

access telecommunications relay 

services. Individuals outside the United 

States should use the relay services 

offered within their country to make 

international calls to the point-ofcontact in the United States. Please see 

Docket No. FWS–R8–ES–2024–0131 on 

https://www.regulations.gov for a 

document that summarizes this 

proposed rule. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, a determination that a species 

is endangered or threatened requires 

that we must designate the species’ 

critical habitat to the maximum extent 

prudent and determinable. We 

published a final rule in the Federal 

Register listing the San Francisco BayDelta distinct population segment (DPS) 

of the longfin smelt (Spirinchus 

thaleichthys) (Bay-Delta longfin smelt) 

as an endangered species on July 30, 

2024 (89 FR 61029). We are now 

proposing to designate its critical 

habitat. Making a critical habitat 

designation can be completed only by 

issuing a rule through the 

Administrative Procedure Act 

rulemaking process (5 U.S.C. 551 et 

seq.). 

What this document does. We 

propose to designate critical habitat for 

the San Francisco Bay-Delta DPS of the 

longfin smelt (Spirinchus thaleichthys). 

The basis for our action. Section 

4(a)(3) of the Act requires that the 

Secretary of the Interior (Secretary), to 

the maximum extent prudent and 

determinable, designate critical habitat 

for listed species. Section 3(5)(A) of the 

Act defines critical habitat as (i) the 

specific areas within the geographical 

area occupied by the species, at the time 

it is listed, on which are found those 

physical or biological features (I) 

essential to the conservation of the 

species and (II) which may require 

special management considerations or 

protections; and (ii) specific areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination by the Secretary 

that such areas are essential for the 

conservation of the species. Section 

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

Secretary must make the designation on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impacts of specifying any 

particular area as critical habitat. 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other governmental 

agencies, Native American Tribes, the 

scientific community, industry, or any 

other interested parties concerning this 

proposed rule. We particularly seek 

comments concerning: 

(1) Specific information on: 

(a) Biological or ecological 

requirements of the Bay-Delta longfin 

smelt, including habitat requirements 

for feeding, breeding, rearing, and 

sheltering; 

(b) The amount and distribution of the 

Bay-Delta longfin smelt’s habitat; 

(c) Any additional areas occurring 

within the range of the species in the 

San Francisco Bay estuary (e.g., 

Petaluma River, South San Francisco 

Bay) and ocean areas outside the Golden 

Gate, that should be included in the 

designation because the areas (i) were 

occupied at the time of listing and 

contain the physical or biological 

features that are essential to the 

conservation of the species and that may 

require special management 

considerations or protection, or (ii) were 

unoccupied at the time of listing and are 

essential for the conservation of the 

species; 

(d) Special management 

considerations or protection that may be 

needed in critical habitat areas we are 

proposing, including managing for the 

potential effects of climate change. 

(2) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(3) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation, and 

the related benefits of including or 

excluding specific areas. 

(4) Information on the extent to which 

the description of probable economic 

impacts in the draft economic analysis 

is a reasonable estimate of the likely 

economic impacts and any additional 

information regarding probable 

economic impacts that we should 

consider. 

(5) Whether any specific areas we are 

proposing for critical habitat 

designation should be considered for 

exclusion under section 4(b)(2) of the 

Act, and whether the benefits of 

potentially excluding any specific area 

outweigh the benefits of including that 

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

you think we should exclude any areas, 

please provide information supporting a 

benefit of exclusion. 

(6) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

Please include sufficient information 

with your submission (such as scientific 


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journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, do not provide 

substantial information necessary to 

support a determination. Section 4(b)(2) 

of the Act directs that the Secretary 

shall designate critical habitat on the 

basis of the best scientific data available. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via https:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on https://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on https://www.regulations.gov. 

Our final designation may differ from 

this proposal because we will consider 

all comments we receive during the 

comment period as well as any 

information that may become available 

after this proposal. Based on the new 

information we receive (and, if relevant, 

any comments on that new 

information), our final critical habitat 

designation may not include all areas 

proposed, may include some additional 

areas that meet the definition of critical 

habitat, or may exclude some areas if we 

find the benefits of exclusion outweigh 

the benefits of inclusion and exclusion 

will not result in the extinction of the 

species. In our final rule, we will clearly 

explain our rationale and the basis for 

our final decision, including why we 

made changes, if any, that differ from 

this proposal. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. We 

may hold the public hearing in person 

or virtually via webinar. We will 

announce any public hearing on our 

website, in addition to the Federal 

Register. The use of virtual public 

hearings is consistent with our 

regulations at 50 CFR 424.16(c)(3). 

Previous Federal Actions 

On October 7, 2022, we published in 

the Federal Register a proposed rule to 

list the Bay-Delta longfin smelt as 

endangered (87 FR 60957). On February 

27, 2023, we reopened the comment 

period on the proposed rule for 30 days 

and announced an online public 

hearing, which took place March 14, 

2023 (88 FR 12304). Our final rule 

determining endangered species status 

for the Bay-Delta longfin smelt was 

published in the Federal Register on 

July 30, 2024 (89 FR 61029). In our 2022 

proposed listing rule, we stated that the 

designation of critical habitat was not 

determinable due to the lack of 

incremental economic impact 

information. We have since obtained the 

necessary economic information and are 

now proposing critical habitat. Please 

see the 2022 proposed listing rule and 

2024 final listing rule (citations above in 

this paragraph) for additional 

information on previous Federal 

actions. 

Peer Review 

A species status assessment (SSA) 

team prepared an SSA report for the 

Bay-Delta longfin smelt (Service 2024, 

entire). The SSA team was composed of 

Service biologists, in consultation with 

other species experts including those 

from the California Department of Fish 

and Wildlife (CDFW). The SSA report 

represents a compilation of the best 

scientific and commercial data available 

concerning the status of the Bay-Delta 

longfin smelt, including the impacts of 

past, present, and future factors (both 

negative and beneficial) affecting the 

species. 

In accordance with our joint policy on 

peer review published in the Federal 

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

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review in listing and recovery actions 

under the Act, we solicited independent 

scientific review of the information 

contained in the draft SSA report 

(Service 2021, entire). We sent the draft 

SSA report to five independent peer 

reviewers and received three responses. 

Results of this structured peer review 

process can be found at https://

www.regulations.gov. A summary of the 

peer review comments and our response 

to those comments can be found in the 

final listing rule (see 89 FR 61029; July 

30, 2024, Peer Review section). Prior to 

preparing the proposed and final listing 

rules, we incorporated the results of 

these reviews as well as comments and 

information received from public 

comment, as appropriate, into the 

current (2024) SSA report. The 

information within the 2024 SSA report 

forms the foundation for this proposed 

critical habitat rule. 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 


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requirement that each Federal action 

agency ensure, in consultation with the 

Service, that any action they authorize, 

fund, or carry out is not likely to result 

in the destruction or adverse 

modification of designated critical 

habitat. The designation of critical 

habitat does not affect land ownership 

or establish a refuge, wilderness, 

reserve, preserve, or other conservation 

area. Such designation also does not 

allow the government or public to 

access private lands. Such designation 

does not require implementation of 

restoration, recovery, or enhancement 

measures by non-Federal landowners. 

Rather, designation requires that, where 

a landowner requests Federal agency 

funding or authorization for an action 

that may affect an area designated as 

critical habitat, the Federal agency 

consult with the Service under section 

7(a)(2) of the Act. If the action may 

affect the listed species itself (such as 

for occupied critical habitat), the 

Federal agency would have already been 

required to consult with the Service 

even absent the designation because of 

the requirement to ensure that the 

action is not likely to jeopardize the 

continued existence of the species. Even 

if the Service were to conclude after 

consultation that the proposed activity 

is likely to result in destruction or 

adverse modification of the critical 

habitat, the Federal action agency and 

the landowner are not required to 

abandon the proposed activity, or to 

restore or recover the species; instead, 

they must implement ‘‘reasonable and 

prudent alternatives’’ to avoid 

destruction or adverse modification of 

critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, those physical or 

biological features that are essential to 

the conservation of the species (such as 

space, food, cover, and protected 

habitat). 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information compiled in 

the SSA report and information 

developed during the listing process for 

the species. Additional information 

sources may include any generalized 

conservation strategy, criteria, or outline 

that may have been developed for the 

species; the recovery plan for the 

species; articles in peer-reviewed 

journals; conservation plans developed 

by States and counties; scientific status 

surveys and studies; biological 

assessments; other unpublished 

materials; or experts’ opinions or 

personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act; (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species; and (3) the 

prohibitions found in section 9 of the 

Act. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of the species. 

Similarly, critical habitat designations 

made on the basis of the best scientific 

data available at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of those planning efforts calls 

for a different outcome. 

Physical or Biological Features 

Essential to the Conservation of the 

Species 

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

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

we will designate as critical habitat from 

within the geographical area occupied 

by the species at the time of listing, we 

consider the physical or biological 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

regulations at 50 CFR 424.02 define 

‘‘physical or biological features essential 

to the conservation of the species’’ as 

the features that occur in specific areas 

and that are essential to support the lifehistory needs of the species, including, 

but not limited to, water characteristics, 

soil type, geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. For 

example, physical features essential to 

the conservation of the species might 

include gravel of a particular size 

required for spawning, alkaline soil for 

seed germination, protective cover for 

migration, or susceptibility to flooding 

or fire that maintains necessary earlysuccessional habitat characteristics. 

Biological features might include prey 

species, forage grasses, specific kinds or 

ages of trees for roosting or nesting, 

symbiotic fungi, or absence of a 

particular level of nonnative species 

consistent with conservation needs of 

the listed species. The features may also 

be combinations of habitat 

characteristics and may encompass the 

relationship between characteristics or 

the necessary amount of a characteristic 

essential to support the life history of 

the species. 


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In considering whether features are 

essential to the conservation of the 

species, we may consider an appropriate 

quality, quantity, and spatial and 

temporal arrangement of habitat 

characteristics in the context of the lifehistory needs, condition, and status of 

the species. These characteristics 

include, but are not limited to, space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

or rearing (or development) of offspring; 

and habitats that are protected from 

disturbance. 

Bay-Delta Longfin Smelt Description, 

Distribution, and Habitat Requirements 

Below is a summary of the 

description, distribution, and habitat 

requirements of the Bay-Delta longfin 

smelt. For a more thorough discussion 

of this information as well as 

information on the species’ ecology, life 

history, and habitat needs, please see 

the SSA report (Service 2024, chapter 2, 

pp. 9–27). 

BILLING CODE 4333–15–P 

BILLING CODE 4333–15–C 

The longfin smelt is a small fish 9 to 

11 centimeters (cm) (3.5 to 4.3 inches 

(in)) in length with a relatively short 

lifespan of approximately 2 to 3 years. 

The longfin smelt, as a species, occurs 

in bays and estuaries from northern 

California north along the coast through 

Alaska. The Bay-Delta DPS of the 

longfin smelt occupies the entire San 

Francisco Bay estuary and areas of the 

Pacific Ocean outside the Golden Gate 

(see figure 1 above) depending on time 

of year and lifestage. The Bay-Delta 

longfin smelt does not occur outside of 

the San Francisco Bay estuary or the 

near ocean areas in large numbers, and 

there does not appear to be substitutable 

habitat outside of currently occupied 

areas (e.g., salinity, water temperature); 

therefore, we have determined that 

proposing critical habitat in unoccupied 

areas is unnecessary, as these areas 

likely would not represent suitable 

habitat nor contribute to conservation of 

the Bay-Delta longfin smelt. 

The tidally influenced San Francisco 

Bay estuary includes the central and 

south San Francisco Bay, San Pablo Bay, 

and Suisun Bay (and their tributaries), 

the Sacramento and San Joaquin River 

Delta (Delta), and near-shore ocean 

waters outside the Golden Gate from the 

Marin headlands to the mouth of 

Tomales Bay into the Gulf of the 

Farallones (CDFW 2009, pp. 6–9). The 

San Francisco Bay estuary is a complex 

and dynamic system exhibiting a wide 

range of salinities, temperatures, and 

habitats. Tidal movement and 

freshwater inputs from the Sacramento 

River and San Joaquin River as well as 

local tributaries are two major drivers of 

estuary conditions. Incoming highsalinity tides and freshwater flows 

combine in creating a longitudinal and 

vertical salinity gradient. Water 

temperature is also influenced by tidal 

and freshwater inflow as well as wind, 

precipitation, and air temperatures. This 

salinity gradient and water temperature 

variability exert a strong physical and 

biological influence in the estuary and 


lotter on DSK11XQN23PROD with PROPOSALS1EP15JA25.000</GPH>

Range of the San Francisco Bay-Delta } -.. .. ...._,_ . ·~. Distinct Population Segment of.the 

/\~,, .--,. J'·"· (. ·,. 

,_,,';;, Longfin Smelt \-,-

- - \ 

? 

30) 

Miles 

Kilommeni, 

40 "\,, Scafe = i:725,000 

Figure 1. Range of the San Francisco Bay-Delta longfin smelt distinct population segment 

CALIFORNIA 
3770 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Proposed Rules 

dictates habitat use by different life 

stages of Bay-Delta longfin smelt. 

The Bay-Delta longfin smelt is a 

facultatively anadromous species, 

meaning some older juveniles and 

adults may migrate to the ocean to seek 

cooler water temperatures, but adults 

return to less saline water for spawning 

activities to meet egg laying, hatching, 

larval development, and juvenile growth 

requirements. 

Water Temperature Conditions: BayDelta longfin smelt most frequently 

occur in cold- and cool-water habitats 

within the San Francisco Bay estuary 

(Jeffries et al. 2016, p. 1712; Yanagitsuru 

et al. 2021, fig. 1, p. 5). Adults are 

thought to be limited by water 

temperature of approximately >22 

degrees Celsius (°C) (>72 degrees 

Fahrenheit (°F)) during the summer and 

are likely to spend the majority of this 

time in cooler water habitats of the San 

Francisco Bay and near-shore ocean 

areas. In general, fish over a year in age 

inhabit lower temperature water than 

fish below a year in age, although both 

age classes inhabit water temperature 

between 16–18 °C (61–64 °F) in the 

summer and fall (Baxter 1999, fig. 8, p. 

191). In the fall and early winter as 

water temperatures in the estuary 

decline, Bay-Delta longfin smelt return 

upstream to the estuary to seek 

appropriate spawning areas where water 

conditions are favorable for egg survival. 

These conditions vary by location 

depending on delta outflow, freshwater 

flow from tributaries, water salinity 

conditions, and other environmental 

conditions. See Spawning Conditions 

below for information on egg and larvae 

water temperature conditions. 

Water Turbidity Conditions: 

Turbidity, or the amount of suspended 

particles in the water, is an important 

habitat characteristic for the Bay-Delta 

longfin smelt. Turbidity in aquatic 

environments is similar to fog in 

terrestrial environments in that the 

greater the distance an object is from an 

individual the more obscure it becomes 

(Utne-Palm 2002, p. 115; Pangle et al. 

2012, pp. 10–11). Turbid waters assist 

fish such as the Bay-Delta longfin smelt 

by making it less visible to predators 

and making its prey (which are 

relatively translucent) more visible 

against the backdrop of the particles in 

the water (Utne-Palm 2002, pp. 122– 

123). In laboratory studies, Bay-Delta 

longfin smelt larvae had higher survival 

rates in more turbid water measured at 

40 NTU (nephelometric turbidity units) 

and grew larger at 20 NTU and 40 NTU 

as opposed to 10 NTU (Yanagitsuru 

2020, entire). 

Water Salinity Conditions: Although 

spawning behavior of longfin smelt has 

not been observed in the San Francisco 

Bay estuary, it is believed that spawning 

behavior is similar to that of the Lake 

Washington population in Washington 

State, where adults make overnight runs 

into tributaries of the lake then return to 

the lake before dawn (Dryfoos 1965, p. 

61; Moulton 1974, pp. 49–50). For the 

Bay-Delta longfin smelt this would 

entail adult longfin smelt making short 

runs upstream into fresh-water areas of 

the Delta, tributaries, or into areas of the 

San Francisco Bay (Suisun Bay, San 

Pablo Bay, or South Bay) that have lowsalinity water and appropriate water 

temperature conditions (CDFW 2009, 

pp. 11–12; Rosenfield 2010, p. 8). One 

laboratory study has identified a salinity 

tolerance below 32 parts per thousand 

(ppt) with larvae surviving the longest 

and having the largest growth at lower 

salinity levels between 5 and 10 ppt 

(Yanagitsuru et al. 2022, p. 6). Another 

study identified that Bay-Delta longfin 

smelt can successfully spawn and rear 

in a range of low salinity (0.4–5 ppt), 

with fertilization being greatest at lower 

salinity levels (Rahman et al. 2023, pp. 

7–8). Field studies have identified 

salinity levels between 2–4 ppt as 

having the greatest density of larvae (4– 

9 millimeter (mm) (0.16–0.35 in) in 

length) (Grimaldo et al. 2017, p. 8). 

Spawning Conditions: Bay-Delta 

longfin smelt spawn only once in their 

lifetime but may have multiple 

spawning events during that single 

period depending on habitat conditions. 

Spawning, reproduction, and rearing 

occurs in low-salinity to freshwater 

habitats beginning in late fall/early 

winter and extends into the spring as 

water temperature and low-salinity 

conditions allow. The freshwater flow 

into the estuary as well as other 

environmental conditions and 

geomorphology greatly influence the 

habitat conditions, spawning success, 

and food availability for the Bay-Delta 

longfin smelt. 

Observations of yolk-sac staged larvae 

suggest spawning habitat extends from 

the tidal reaches of the Sacramento and 

San Joaquin Rivers to Suisun Bay and 

Suisun Marsh as well as tributaries to 

San Pablo Bay, and in the sloughs of 

Coyote Creek in the South Bay, although 

recruitment success in San Pablo Bay 

tributaries and the South Bay was 

confirmed only during wet years (Wang 

1986, pp. 113–121; Meng and Matern 

2001, p. 755; Grimaldo et al. 2017, p. 6; 

Lewis et al. 2019, p. 31; Lewis et al. 

2020, p. 1). Spawning substrate is 

composed of sandy or gravel substrates, 

rocks, or aquatic plants (Wang 1986, p. 

113; Moyle 2002, p. 236; CDFW 2009, 

pp. 12, 16). Laboratory studies have 

identified that Bay-Delta longfin smelt 

release more eggs onto sand 

(approximately 94 percent) as opposed 

to gravel (approximately 6 percent) 

(CDFW 2009, p. 11). In one study, high 

river flows during egg incubation were 

associated with poor recruitment, 

whereas increased river flows later in 

the season—during the hatching 

period—were associated with greater 

recruitment (Chigbu 2000, pp. 549–554). 

Spawning activity for Bay-Delta 

longfin smelt can begin as early as 

November and extends until late June, 

although spawning more typically 

occurs from December through April 

based on ripe females and when the 

presence of yolk-sac larvae have been 

observed in the environment (Radtke 

1966, p. 116; Hieb and Baxter 1993, p. 

110; Moyle 2002, p. 236; CDFW 2009, p. 

10). Water temperature plays an 

important role in triggering spawning 

activity. Although spawning can start 

once water temperatures drop below 16 

°C (60.8 °F) (CDFW 2009, p. 11), other 

information suggests lower water 

temperatures may be more ideal (Baxter 

2016, entire; Tempel and Burns 2021, 

slide 12). Lab studies have identified a 

minimum spawning temperature of 5.6 

°C (41 °F) (Wang 1986, pp. 6–9) and 

reduced size of larvae and decrease in 

reproduction success near or above 15 

°C (59 °F) (Yanagitsuru et al. 2021, 

Figure 1 and 3a, pp. 5 and 7). Within the 

San Francisco Bay estuary, spawning 

occurs when water temperature drops 

below ∼14 °C (57.2 °F) and becomes 

consistent when water temperatures 

remain 13 °C or lower (55.4 °F) (CDFW 

2009, p. 11; Baxter 2016, entire; 

Grimaldo et al. 2017, p. 8). 

Larval Habitat Use: The majority of 

larvae are affiliated with the estuary’s 

major low salinity zone (LSZ) generated 

by the mixing of freshwater outflow 

from the Delta with the brackish waters 

of the estuary (Service 2024, section 2.3, 

p. 11, and p. 20). However, larvae can 

also be found in tributaries when flows 

from those tributaries are high enough 

and temperatures low enough to support 

egg survival and hatching (Lewis et al. 

2019, p. 3). The spatial distribution of 

these larvae reflects the year-to-year 

variation in the geographic location of 

the LSZ (Dege and Brown 2004, fig. 3, 

p. 57; Grimaldo et al. 2020, fig. 6, p. 10). 

Juvenile and Adult Habitat Use: 

Aggregated survey data have shown that 

juveniles (>20 mm in length) have been 

detected at one time or another 

throughout the estuary and into some 

tributaries to the Delta above tidal 

influence and have been collected most 

frequently from deeper water habitats as 

opposed to shoals or shoreline areas 

(Rosenfield and Baxter 2007, p. 1586; 

Merz et al. 2013, fig. 2, p. 132). 


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Regardless of where spawning takes 

place and embryos develop, the spatial 

distribution of juveniles and adults 

shows a distinct seaward migration as 

water temperatures warm in the late 

spring and early summer in the Delta 

and upstream portions of the San 

Francisco Bay estuary (Rosenfield and 

Baxter 2007, p. 1590). However, in any 

given month, survey data indicate that 

some fraction of the Bay-Delta longfin 

smelt population remains in the San 

Francisco Bay with an unknown 

fraction moving out to the ocean off the 

coast of San Francisco (Rosenfield and 

Baxter 2007, p. 1590; Merz et al. 2013, 

p. 142; Garwood 2017, pp. 98–104). 

Food Resources: Larval Bay-Delta 

longfin smelt select strongly for the 

calanoid copepod Eurytemora affinis as 

prey; all other prey types combined 

account for only about 10 percent of 

their diet (Barros et al. 2022, fig. 6a and 

6c, p. 10). When longfin smelt reach 

about 25 mm (1 in) in length, their diet 

switches and is nearly all mysids (small 

shrimp-like crustaceans) (Barros et al. 

2022, fig. 6b, p. 10). This finding of a 

highly specified diet applies to freshand brackish-water habitats throughout 

the estuary (Barros et al. 2022, fig. 2. p. 

2). Bay-Delta longfin smelt larvae and 

small juveniles appear to focus on only 

two prey taxa. Larvae less than about 25 

mm (1 in) in length appear to primarily 

feed on the copepod Eurytemora affinis. 

The same is true for larvae and small 

juveniles larger than 25 mm in length, 

which appear to prey most often on 

mysids. Bay-Delta longfin smelt adults 

that return to Suisun Marsh also show 

a strong dietary preference for mysids 

while relying on other copepods and 

amphipods when mysids are less 

abundant (CDFW unpub. Diet Study 

Data; Feyrer et al. 2003, p. 281; Burdi 

2022, entire). 

Summary of Essential Physical or 

Biological Features 

The ecological conditions within the 

water areas of the San Francisco Bay 

estuary are complex and dynamic and 

exhibit a wide range of salinities, 

temperatures, and habitats as the result 

of tidal movement of ocean water, 

freshwater inputs from the Sacramento 

and San Joaquin Rivers and local 

tributaries, wind conditions, and air 

temperature. We derive the specific 

physical or biological features essential 

to the conservation of the Bay-Delta 

longfin smelt from studies of the 

species’ habitat, ecology, and life history 

as described above. We focused our 

designation on areas that contained the 

appropriate physical or biological 

features needed by the species for 

successful spawning and rearing and 

that provide larvae sufficient food 

resources to grow and mature as 

described in our conservation strategy 

for determining critical habitat for the 

Bay-Delta longfin smelt (see Criteria 

Used to Identify Critical Habitat below). 

Although areas outside the designation, 

such as the Pacific Ocean or areas 

within the Sacramento-San Joaquin 

Delta, are used by the species and are 

important in providing appropriate life 

history conditions for adults and may 

provide for limited reproduction in 

years with extreme freshwater inflow, 

the majority of appropriate spawning 

conditions, spawning, and larval 

development occurs within the area we 

have identified as critical habitat. 

Additional information can be found in 

the SSA report (Service 2024, entire; 

available on https://

www.regulations.gov under Docket No. 

FWS–R8–ES–2022–0082). The physical 

or biological features (PBFs) essential to 

the conservation of the Bay-Delta 

longfin smelt are comprised of water 

temperature, salinity, turbidity, food 

resources, substrate, and hydrologic 

conditions capable of supporting BayDelta longfin smelt spawning and 

rearing as well as larval and juvenile 

development. Within the San Francisco 

Bay estuary, different areas of the 

critical habitat unit provide all of the 

physical or biological features essential 

to the conservation of Bay-Delta longfin 

smelt, but not all of the features occur 

in all portions of the unit at all times. 

During various times of the year, 

different areas of the estuary provide the 

following essential physical or 

biological features: 

PBF 1, Water temperature 

requirements: Water temperature ranges 

to support reproduction, growth, and 

survival of the Bay-Delta longfin smelt 

at different life stages to include: 

(A) Estuary water temperatures below 

13 °Celsius (°C) (55.4 °F (°F)) from 

December through May to initiate and 

support successful spawning; 

(B) Estuary water temperatures less 

than 15 °C (59.0 °F) from December 

through May for egg development, 

hatching success, and early larval 

development; 

(C) Estuary water temperatures less 

than 20 °C (60.0 °F) from February 

through June for larvae 40 days post 

hatch and older to support growth and 

avoid physiological stress; and 

(D) Estuary and nearshore ocean water 

temperatures less than 22 °C (71.6 °F) 

year-round for juveniles and adults to 

support growth and avoid physiological 

stress. 

PBF 2, Water salinity requirements: 

Suitable salinity concentrations to 

support successful reproduction, 

growth, and recruitment; such ranges 

include: 

(A) Salinity conditions between 2–4 

parts per thousand (ppt) from December 

through May to support average larval 

salinity requirements; and 

(B) Salinity conditions between 0.4– 

10 ppt from December through May to 

support diversity of egg and early larval 

rearing conditions. 

PBF 3, Water turbidity requirements: 

Turbidity greater than 20 nephelometric 

turbidity units to optimize feeding and 

predator avoidance. 

PBF 4, Food resource requirements: 

Food resources in abundances that 

support growth and recruitment of all 

life stages; these food resources include, 

but are not limited to: 

(A) The copepod Eurytemora affinis, 

the primary prey item supporting larvae 

less than 25 mm (approximately 1 inch 

length); 

(B) Mysids including Neomysis 

mercedis and Hyperacanthomysis 

longirostris, and other amphipods, the 

primary prey items supporting juveniles 

and larvae greater than 25 mm in length 

(approximately 1 inch length); and 

(C) Prey of various zooplankton 

species such as those identified in 

paragraphs (A) and (B) of this entry for 

juveniles and adults. 

PBF 5, Substrate requirements: 

Substrate composed mostly of sandy 

habitat, although portions may include 

gravel substrates, rocks, or aquatic 

plants that provide suitable habitat for 

spawning, protection, cover, and 

development of eggs and larvae. 

PBF 6, Hydrologic requirements: 

Contemporaneous with the appropriate 

seasonal needs by life stage of the 

species, inflow into the estuary of 

appropriate freshwater to provide the 

appropriate water salinity, temperature, 

and turbidity conditions as well as food 

resources set forth in PBFs 1–4 above. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features which are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

features essential to the conservation of 

the Bay-Delta longfin smelt may require 

special management considerations or 

protections to address: (1) habitat 

alteration within and adjacent to water 

areas; (2) changes to hydrology 

associated with reduced and altered 

freshwater flows and resulting increases 

in saline habitat conditions; (3) 

increased water temperatures associated 


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with altered flow regimes or climate 

change conditions; (4) reduced food 

resource availability due to 

inappropriate water conditions or 

introduction of nonnative species; and 

(5) introduction of pollutants and other 

sources of contaminants that may 

degrade water quality conditions or 

impact food resources. 

Special management considerations 

or protection that could address these 

threats include, but are not limited to: 

(1) implement best management 

practices to reduce impacts associated 

with habitat alteration such as bank 

hardening, levee maintenance, and 

channel dredging or reduction of sand 

sources; (2) consider water management 

to mimic functional flow regimes 

(timing, intensity, and duration of 

flows), especially during periods of low 

flow or drought conditions; (3) consider 

water management to maintain 

appropriate water temperature 

conditions for all life stages of the BayDelta longfin smelt; (4) implement 

monitoring and other actions to prevent 

or limit introduction of nonnative 

species into the estuary that may reduce 

or alter food resources for the Bay-Delta 

longfin smelt; and (5) monitor and 

manage water quality to assist in 

reducing the amount of pollutants 

entering the estuary. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available to designate critical habitat. In 

accordance with the Act and our 

implementing regulations at 50 CFR 

424.12(b), we review available 

information pertaining to the habitat 

requirements of the species and identify 

specific areas within the geographical 

area occupied by the species at the time 

of listing and any specific areas outside 

the geographical area occupied by the 

species to be considered for designation 

as critical habitat. We are not currently 

proposing to designate any areas outside 

the geographical area occupied by the 

Bay-Delta longfin smelt because we 

have not identified any unoccupied 

areas that meet the definition of critical 

habitat. The range of the Bay-Delta 

longfin smelt is only a portion of the 

range occupied by the species. The BayDelta longfin smelt as a DPS currently 

occupies the full extent of its identified 

range within the San Francisco Bay 

estuary and ocean areas outside the 

Golden Gate to the Farallon Islands 

depending on the time of year, life stage, 

and environmental conditions (see 

figure 1 in Bay-Delta Longfin Smelt 

Description, Distribution, and Habitat 

Requirements above). 

The sources of data used to determine 

and delineate the critical habitat for the 

Bay-Delta longfin smelt included: (1) the 

SSA report and references therein 

pertaining to the habitat needs of the 

DPS (Service 2024, entire); (2) Bay-Delta 

longfin smelt spawning and rearing 

habitat utilized during the winter/ 

spring, fresher water phase of the life 

cycle as determined by study of the LSZ 

based on published data; (3) U.S. 

Geological Survey (USGS) National 

Hydrography Dataset (NHD) for 

California for the San Francisco Bay 

estuary and associated river systems and 

shorelines; (4) USGS digital ortho-photo 

quarter-quadrangles base layer map 

using Universal Transverse Mercator 

(UTM) Zone 10N coordinates, which 

was used to delineate the critical habitat 

unit; and (5) Environmental Systems 

Research Institute’s (ESRI’s) 

Aeronautical Reconnaissance Coverage 

Geographical Information System 

(ArcGIS) online basemap aerial imagery, 

which was used to cross-check the base 

layer map. Land ownership or 

management information was obtained 

from digitized surface land management 

data managed by the Bureau of Land 

Management. 

In order to determine the specific 

areas within the geographical area 

occupied by the species at the time of 

listing on which are found those PBFs 

essential to the conservation of the 

species and delineating the critical 

habitat unit boundaries, we developed a 

conservation strategy. Below we 

summarize our strategy and criteria for 

this designation. Please see the full 

description of our strategy for additional 

information (Service 2023a, entire). 

The goal of our conservation strategy 

for this critical habitat designation is to 

identify the specific areas within the 

Bay-Delta longfin smelt’s range that 

provide essential physical or biological 

features; without these areas, rangewide resiliency, redundancy, and 

representation could not be achieved. 

The strategy focuses on the fundamental 

parameters of the species’ biology and 

ecology based on well-accepted 

conservation-biology and ecological 

principles for conserving species and 

their habitats, such as those described 

by Carroll et al. (1996, pp. 1–12); Meffe 

and Carroll (1997, pp. 347–383); Shaffer 

and Stein (2000, pp. 301–321); Natural 

Resources Conservation Service (NRCS) 

2004 (entire); Tear et al. (2005, pp. 835– 

849); Groom et al. (2006, entire); and 

Wolf et al. (2015, pp. 200–207). 

In developing our conservation 

strategy, we focused on increasing the 

resiliency of Bay-Delta longfin smelt by 

improving the DPS’s abundance. To this 

end, our conservation strategy and rule 

set for determining critical habitat for 

the Bay-Delta longfin smelt looked at 

conserving and maintaining those areas 

within the San Francisco Bay estuary 

that provide sufficient amount of highquality spawning and rearing habitat 

with appropriate physical and 

hydrological characteristics to provide 

for recruitment over the long term. We 

considered the habitat and conditions 

necessary for successful recruitment of 

individuals to the different life stages of 

the species. The Bay-Delta longfin smelt 

relies on the San Francisco Bay estuary 

and the unique suite of environmental 

conditions it provides for spawning, 

larval rearing, juvenile growth, and 

maturation. 

Salinity and water temperature are 

two primary factors that determine the 

distribution of the Bay-Delta longfin 

smelt in the estuary and are especially 

important for spawning and rearing life 

stages. Both salinity and water 

temperature conditions are influenced 

by freshwater input, primarily from the 

San Joaquin and Sacramento Rivers. The 

species uses most of the estuary during 

its life cycle, focusing spawning and 

larval rearing in the more landward 

LSZ, and juvenile growth and 

maturation at greater salinities typical of 

the more seaward areas of the estuary. 

The location and extent of the LSZ and 

suitable spawning and rearing habitat 

varies annually depending on the 

magnitude, timing, and duration of 

freshwater inputs into the estuary. 

Numerous studies have shown a 

positive and persistent correlation 

between longfin smelt juvenile 

abundance indices and freshwater flow 

(Stevens and Miller 1983, pp. 431–432; 

Jassby et al. 1995, p. 285; Sommer et al. 

2007, p. 274; Thomson et al. 2010, pp. 

1439–1440; Kimmerer 2002, p. 47; 

Rosenfield and Baxter 2007, p. 1585; 

Kimmerer et al. 2009, p. 381; Mac Nally 

et al. 2010, p. 1422; Maunder et al. 2015, 

p. 108; Nobriga and Rosenfield 2016, p. 

53; Kimmerer and Gross 2022, p. 2734). 

While the overall pattern relating 

freshwater flows to abundance indices 

for the Bay-Delta longfin smelt is widely 

accepted, the mechanisms driving this 

correlation are not fully quantified or 

resolved. Potential mechanisms have 

been identified and include how 

freshwater may affect spawning 

locations, the duration of the spawning 

season, the transport of eggs and larvae 

downstream to favorable rearing 

habitats, the location of the LSZ and 

larval and young juvenile retention, 

entrainment of larvae and juveniles, 

prey availability for larvae and 

juveniles, prey delivery, and turbidity of 

the LSZ (for further information see SSA 

section 3.1.1.). These mechanisms likely 


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act in concert and influence recruitment 

in a manner determined by prevailing 

freshwater conditions. Our critical 

habitat designation was informed by the 

relationship between these mechanisms 

and freshwater inputs into the estuary. 

With this information, we have 

determined that the specific areas 

occupied by the species that provide 

spawning and rearing habitat that is 

utilized by the Bay-Delta longfin smelt 

during the fresher-water phase of the 

life cycle in the winter/spring period are 

the focus of our critical habitat 

designation. Without appropriate areas 

for spawning and rearing of offspring, 

the Bay-Delta longfin smelt would not 

be able to sustain populations in the 

wild. Therefore, we initially follow the 

PBFs to predict distribution, using 

salinity at these key life stages, as the 

primary predictive factor. These areas 

were determined by using the best 

available scientific information on the 

approximation of the LSZ of the San 

Francisco Bay-Delta, using the 95 

percent occurrence interval (actual 

observed values) of X2 values between 

January through May for water years 

stretching the last nine decades (Hutton 

et al. 2017a, entire; Hutton et al. 2017b, 

entire). X2 is defined as the location (in 

kilometers) along a linear axis stretching 

from the Golden Gate Bridge eastwards 

into the Sacramento/San Joaquin River 

Delta where salinity measures two 

practical salinity units. This 

representation is a static estimate of a 

very dynamic phenomenon, as outflow 

and tidal dynamics influence this metric 

such that the actual position of X2 

fluctuates in space and time. We also 

included areas within the Napa River 

that contain those low salinity habitat 

areas that were contiguous with the data 

on LSZ for the San Francisco Bay-Delta. 

Additional information on our 

conservation strategy can be found in 

our PBF and conservation strategy 

document (Service 2023a, entire) 

The area identified as critical habitat 

is occupied during the spawning and 

rearing life stage (∼January through 

May) and contains those physical or 

biological features essential to the 

conservation of the Bay-Delta longfin 

smelt reflecting the habitat 

characteristics required by prespawning adults, eggs, larvae, and early 

juveniles of the Bay-Delta longfin smelt 

for survival and successful 

reproduction. The Bay-Delta longfin 

smelt does not occur outside of the San 

Francisco Bay estuary or the near ocean, 

and there does not appear to be 

substitutable habitat outside of currently 

occupied areas (e.g., salinity, water 

temperature); therefore, we have 

determined that proposing critical 

habitat in unoccupied areas is 

unnecessary, as these areas likely would 

not represent suitable habitat nor 

contribute to conservation of the BayDelta longfin smelt. 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including developed 

areas such as lands covered by 

buildings, pavement, and other 

structures because such lands lack 

physical or biological features necessary 

for the Bay-Delta longfin smelt. Because 

the designation focuses on water areas, 

very little if any developed areas such 

as buildings or other structures are 

included in the designation. However, 

any such lands inadvertently left inside 

critical habitat boundaries shown on the 

maps of this proposed rule are excluded 

by text in the proposed rule and are not 

proposed for designation as critical 

habitat. Therefore, if the critical habitat 

is finalized as proposed, a Federal 

action involving these lands would not 

trigger section 7 consultation with 

respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the physical or biological features in the 

adjacent critical habitat. 

We propose to designate as critical 

habitat areas that we have determined 

are occupied at the time of listing (i.e., 

currently occupied) and contain one or 

more of the physical or biological 

features that are essential to support 

life-history processes of the Bay-Delta 

longfin smelt. 

The proposal includes one unit for 

designation based on one or more of the 

physical or biological features being 

present to support the Bay-Delta longfin 

smelt’s life-history processes. This unit 

contains all of the identified physical or 

biological features and supports the 

Bay-Delta longfin smelt’s particular use 

of that habitat. 

The proposed critical habitat 

designation is defined by the map, as 

modified by any accompanying 

regulatory text, presented at the end of 

this document under Proposed 

Regulation Promulgation. We include 

more detailed information on the 

boundaries of the critical habitat 

designation in the preamble of this 

document. We will make the 

coordinates or plot points or both on 

which the map is based available to the 

public on https://www.regulations.gov 

at Docket No. FWS–R8–ES–2024–0131 

and on our internet site at https://

www.fws.gov/office/san-francisco-baydelta-fish-and-wildlife/, and at the field 

office responsible for the designation 

(see FOR FURTHER INFORMATION CONTACT). 

Proposed Critical Habitat Designation 

We are proposing to designate one 

unit of approximately 91,630 ac (37,082 

ha) as critical habitat for the Bay-Delta 

longfin smelt, identified as the San 

Francisco Bay-Delta Unit (see table 

below). The critical habitat area we 

describe below constitutes our current 

best assessment of areas that meet the 

definition of critical habitat for the BayDelta longfin smelt. 

TABLE 1—PROPOSED CRITICAL HABITAT UNIT FOR THE BAY-DELTA LONGFIN SMELT

[Area estimates reflect all water and land within the critical habitat unit boundary] 

Critical habitat unit Land ownership by type Size of unit in acres/hectares Occupied? 

San Francisco Bay-Delta ......... Federal ...................................................................................... 20 8 Yes. 

State .......................................................................................... 257 104 

Local government ...................................................................... 7 3 

Non-profit/nongovernmental organization ................................. 49 20 

Undetermined Shoreline ........................................................... 913 370 

Undetermined waters ................................................................ 90,384 36,578 

Total ................................................................................... 91,630 37,082 

Note: Area sizes may not sum due to rounding. 


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We present a brief description of the 

unit, and reasons why it meets the 

definition of critical habitat for the BayDelta longfin smelt, below. 

San Francisco Bay-Delta Unit 

The San Francisco Bay-Delta Unit 

consists of 91,630 ac (37,082 ha) in total 

and is made up of 1,246 ac (504 ha) of 

shoreline area and 90,384 ac (36,578 ha) 

of stream and estuary water area within 

the San Francisco Bay estuary within 

Contra Costa, Napa, Sacramento, 

Solano, and Sonoma Counties, 

California. The unit extends from the 

numerous tributaries flowing into the 

Suisun Bay near the confluence of the 

Sacramento and San Joaquin Rivers at 

Sherman Island downstream 

approximately 7 to 10 miles (mi) (10 to 

16 kilometers (km)) into San Pablo Bay 

near Point Pinole (Contra Costa County) 

and Midshipman Point at Tubbs Island 

(Sonoma County). 

Ownership of shoreline areas within 

the proposed designation includes the 

U.S. Fish and Wildlife Service (20 ac (8 

ha)), California Department of Fish and 

Wildlife (181 ac (73 ha)), California 

State Parks (3 ac (1.1 ha)), California 

Department of Water Resources (45 ac 

(18 ha)), California State Lands 

Commission (29 ac (12 ha)), local 

government (7 ac (3 ha)), and nonprofit 

and nongovernmental organizations (49 

ac (20 ha)). Additionally, the proposed 

designation includes water areas of the 

San Francisco Bay estuary totaling 

approximately 90,384 ac (36,578 ha) of 

undetermined ownership. We have 

exempted Department of Defense (DoD) 

areas owned, managed, and controlled 

by the U.S. Army Military Ocean 

Terminal Concord (MOTCO) totaling 

approximately 753 ac (304 ha) under 

section 4(a)(3)(B)(i) of the Act (see 

Exemptions Application of Section 

4(a)(3) of the Act, below). 

The unit was occupied by the species 

at the time of listing and is still 

occupied. Seasonally, this unit contains 

all the identified PBFs essential to the 

conservation of the Bay-Delta longfin 

smelt. Particularly, those PBFs reflecting 

the habitat characteristics required by 

pre-spawning adults, eggs, larvae, and 

early juveniles for survival and 

successful reproduction are 

geographically associated with this area. 

The identified specific critical habitat 

areas may require special management 

considerations or protection to address 

activities that impact the PBFs 

identified for the Bay-Delta longfin 

smelt and may include those activities 

associated with habitat alteration (such 

as dredging, shoreline protection 

activities, or levee maintenance); 

changes to hydrology associated with 

reduced and altered freshwater flows 

and its resulting potential increases in 

saline habitat conditions; increased 

water temperatures; reduced food 

resource availability; and activities that 

introduce or increase pollutants and 

other contaminants into the estuary. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they authorize, 

fund, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

Destruction or adverse modification 

means a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat as a whole for the 

conservation of a listed species (50 CFR 

402.02). 

Compliance with the requirements of 

section 7(a)(2) is documented through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during formal consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Service Director’s 

opinion, avoid the likelihood of 

jeopardizing the continued existence of 

the listed species or avoid the likelihood 

of destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 set forth 

requirements for Federal agencies to 

reinitiate consultation. Reinitiation of 

consultation is required and shall be 

requested by the Federal agency, where 

discretionary Federal involvement or 

control over the action has been 

retained or is authorized by law and: (1) 

if the amount or extent of taking 

specified in the incidental take 

statement is exceeded; (2) if new 

information reveals effects of the action 

that may affect listed species or critical 

habitat in a manner or to an extent not 

previously considered; (3) if the 

identified action is subsequently 

modified in a manner that causes an 

effect to the listed species or critical 

habitat that was not considered in the 

biological opinion or written 

concurrence; or (4) if a new species is 

listed or critical habitat designated that 

may be affected by the identified action. 

As provided in 50 CFR 402.16, the 

requirement to reinitiate consultations 

for new species listings or critical 

habitat designation does not apply to 

certain agency actions (e.g., land 

management plans issued by the Bureau 

of Land Management in certain 

circumstances). 

Destruction or Adverse Modification of 

Critical Habitat 

The key factor related to the 

destruction or adverse modification 

determination is whether 

implementation of the proposed Federal 

action directly or indirectly alters the 

designated critical habitat in a way that 

appreciably diminishes the value of the 

critical habitat for the conservation of 

the listed species. As discussed above, 

the role of critical habitat is to support 

physical or biological features essential 

to the conservation of a listed species 

and provide for the conservation of the 

species. 

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

our Federal Register documents ‘‘shall, 

to the maximum extent practicable, also 

include a brief description and 

evaluation of those activities (whether 

public or private) which, in the opinion 

of the Secretary, if undertaken may 

adversely modify such [critical] habitat, 

or may be affected by such designation.’’ 

Activities that may be affected by 


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designation of critical habitat for the 

Bay-Delta longfin smelt include those 

that may affect the physical or biological 

features of the Bay-Delta longfin smelt’s 

critical habitat. See the sections above 

on Physical or Biological Features 

Essential to the Conservation of the 

Species and Special Management 

Considerations or Protection for 

additional information. 

Exemptions 

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

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

(1) An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

(2) A statement of goals and priorities; 

(3) A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

(4) A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

provides that the Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation. 

We consult with the military on the 

development and implementation of 

INRMPs for installations with listed 

species. We analyzed INRMPs 

developed by military installations 

located within the range of the proposed 

critical habitat designation for the BayDelta longfin smelt to determine if they 

meet the criteria for exemption from 

critical habitat under section 4(a)(3) of 

the Act. The following areas are 

Department of Defense (DoD) lands with 

completed, Service-approved INRMPs 

within the areas preliminarily identified 

as meeting the definition of critical 

habitat. 

Approved INRMPs 

U.S. Army Military Ocean Terminal 

Concord (MOTCO), Contra Costa and 

Solano Counties, California, 753 ac (304 

ha). 

Within the areas preliminarily 

identified as meeting the definition of 

critical habitat for the Bay-Delta longfin 

smelt, we identified a portion of 

shoreline (50 ac (20 ha)) and water area 

(703 ac (284 ha)) (753 ac (304 ha) total) 

of the San Francisco Bay estuary owned, 

controlled, and managed by the U.S. 

Army Military Surface Deployment and 

Distribution Command’s 834th 

Transportation Battalion, which 

manages and operates the U.S. Army 

Military Ocean Terminal Concord 

(MOTCO). MOTCO is the primary 

munitions trans-shipment facility for 

the DoD on the West Coast of the United 

States. 

The U.S. Army received full 

management authority for MOTCO on 

October 1, 2008, as a result of the 2005 

Base Realignment and Closure process. 

Prior to this, MOTCO was a tenant 

command to Naval Weapon Station Seal 

Beach Detachment (NWSSBD) Concord, 

operating under the U.S. Navy. Military 

lands on MOTCO include a total of 

6,641 ac (2,688 ha) of uplands, 

shoreline, and island areas adjacent to 

or within Suisun Bay in Contra Costa 

and Solano Counties, California. Other 

military lands formerly belonging to the 

NWSSBD have been declared surplus 

and have been operationally closed and 

transferred to the City of Concord. 

In August 2023, staff at MOTCO in 

coordination with the Service and U.S. 

Department of Commerce National 

Oceanic and Atmospheric 

Administration–Fisheries, West Coast 

Region (NOAA) finalized and signed the 

Final MOTCO Integrated Natural 

Resources Management Plan (INRMP) 

(U.S. Army Corps of Engineers 2023, 

entire). 

The INRMP provides the staff of 

MOTCO with an adaptive plan for 

managing natural resources to support 

and be consistent with the military 

mission while protecting and enhancing 

those natural resources for multiple use 

and ecological integrity. The INRMP is 

designed to meet statutory requirements 

of the Sikes Act as amended as well as 

manage and implement measures 

concerning conservation, protection, 

and management of fish and wildlife 

resources. The total area owned by the 

DoD at MOTCO includes inland areas 

(115 ac (47 ha)) and tidal areas (6,242 

ac (2,526 ha)). The tidal area comprises 

a mainland operational portion and 

island areas that include approximately 

5 miles (8 kilometers) of mainland 

shoreline; three ocean terminal piers 

and facilities for reception, staging, and 

loading of ammunition; railroad 

infrastructure; and the Los Medanos 

Hills. Approximately 703 ac (284 ha) of 

water area of the San Francisco Bay 

estuary are restricted use areas 

controlled by MOTCO that are used for 

docking and loading of vessels for 

military purposes. The offshore islands 

consist of approximately 2,045 ac (828 

ha). The offshore islands and most of 

the marshlands within the tidal area at 

MOTCO are part of a wetland preserve 

area, established through a 

memorandum of understanding between 

the U.S. Navy and the Service (U.S. 

Navy and U.S. Fish and Wildlife Service 

1984, entire). The islands are 

undeveloped, except for natural gas 

wells operated on the southern shore of 

Ryer Island operated by Chevron U.S.A. 

Inc. (California Department of 

Conservation 1982, pp. 1–11, 250). The 

mainland operational area is composed 

of old and new buildings, roads, and 

other developed infrastructure and 

landscaping. 

The overall goal of the MOTCO 

INRMP is to integrate natural resources 

stewardship and compliance 

responsibilities with operational 

requirements to sustain the military 

mission at MOTCO as well as develop, 

initiate, and maintain programs for the 

conservation, utilization, and 

rehabilitation of natural resources at 

MOTCO. The following measures, 

objectives, and management strategies 

that have been identified and 

implemented to further the goal include: 

• Ensure compliance with applicable 

Federal laws and regulations as they 

pertain to natural resources. 

• Maintain and enhance biodiversity 

within the constraints of the military 

mission. 

• Implement adaptive management 

strategies using flexible and responsive 

management techniques based upon 

scientific data gathered from monitoring 

programs, literature, and resource 

experts. 

• Conserve the quality of habitat for 

Federal and State-listed endangered and 

threatened species. 


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• Maintain sufficient natural 

resources support personnel to 

implement, oversee, and monitor the 

management strategies of the INRMP. 

• Provide for an institutional memory 

and Geographic Information System 

(GIS) based data inventory that may be 

used as a framework for future resources 

personnel to make installation 

management decisions. 

• Maintain the distributions of 

sensitive plant and animal species and 

native plant communities, as well as 

their relationships to tidal hydrology 

and landscape features, until they 

become progressively better understood. 

• Maintain or enhance levels of 

biodiversity and habitat quality on the 

installation. 

• Maintain or enhance tidally 

influenced marsh habitats capable of 

supporting viable populations of the 

federally listed salt marsh harvest 

mouse (Reithrodontomys raviventris), 

California Ridgway’s rail (Rallus 

obsoletus obsoletus), and State listed 

California black rail (Laterallus 

jamaicensis coturniculus). 

• Maintain landscape-scale native 

habitat diversity and species richness. 

• Monitor, control, and eventually 

eliminate the spread of nonnative 

invasive aquatic and marsh species, 

such as Brazilian waterweed (Egeria 

densa) and perennial pepperweed 

(Lepidium latifolium), to enhance native 

aquatic and wetland communities. 

• Adaptively manage approximately 

3,227 ac (1,306 ha) of tidal wetlands at 

MOTCO using an improved 

understanding of the installation’s tidal 

hydrology and its effects on native 

species diversity and habitat quality, as 

well as maintain and improve wetland 

functions and values. 

• Continue management of the 

Wetland Preserve Area in collaboration 

with the Service and coordinate with 

other stakeholders on tidal wetland 

management issues. 

• Ensure hydrologic regimes and 

erosion rates reflect natural conditions 

on-site. 

MOTCO has shown a track record of 

implementing conservation actions 

related to their activities that protect 

and maintain habitat for sensitive 

species including reducing erosion and 

run-off into the estuary, protecting water 

quality, and managing, conserving, and 

protecting wetland and estuary habitat 

adjacent to the San Francisco Bay-Delta 

and areas occupied by the Bay-Delta 

longfin smelt. The conservation efforts 

identified in the INRMP and being 

implemented by MOTCO will provide a 

benefit to the Bay-Delta longfin smelt by 

reducing or eliminating negative water 

quality impacts from erosion, 

maintaining tidally influenced wetland 

habitat adjacent to the bay, providing 

better water conditions for the DPS’s 

food resources, and adaptively 

managing tidal wetlands to maintain 

and improve wetland functions and 

values. 

Based on the above considerations, 

and in accordance with section 

4(a)(3)(B)(i) of the Act, we have 

determined that the identified lands are 

subject to the MOTCO INRMP and that 

conservation efforts identified in the 

INRMP will provide a benefit to the 

Bay-Delta longfin smelt. Therefore, 

lands within this installation are exempt 

from critical habitat designation under 

section 4(a)(3) of the Act. We are not 

including approximately 753 ac (304 ha) 

of shoreline and water habitat used by 

the Bay-Delta longfin smelt in this 

proposed critical habitat designation 

because of this exemption. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

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

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

designated critical habitat based on 

economic impacts, impacts on national 

security, or any other relevant impacts. 

Exclusion decisions are governed by the 

regulations at 50 CFR 424.19 and the 

Policy Regarding Implementation of 

Section 4(b)(2) of the Endangered 

Species Act (hereafter, the ‘‘2016 

Policy’’; 81 FR 7226, February 11, 2016), 

both of which were developed jointly 

with the National Marine Fisheries 

Service (NMFS). We also refer to a 2008 

Department of the Interior Solicitor’s 

opinion entitled ‘‘The Secretary’s 

Authority to Exclude Areas from a 

Critical Habitat Designation under 

Section 4(b)(2) of the Endangered 

Species Act’’ (M–37016). 

In considering whether to exclude a 

particular area from the designation, we 

identify the benefits of including the 

area in the designation, identify the 

benefits of excluding the area from the 

designation, and evaluate whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If the analysis 

indicates that the benefits of exclusion 

outweigh the benefits of inclusion, the 

Secretary may exercise discretion to 

exclude the area only if such exclusion 

would not result in the extinction of the 

species. In making the determination to 

exclude a particular area, the statute on 

its face, as well as the legislative history, 

are clear that the Secretary has broad 

discretion regarding which factor(s) to 

use and how much weight to give to any 

factor. In our final rules, we explain any 

decision to exclude areas, as well as 

decisions not to exclude, to make clear 

the rational basis for our decision. We 

describe below the process that we use 

for taking into consideration each 

category of impacts and any initial 

analyses of the relevant impacts. 

Consideration of Economic Impacts 

Section 4(b)(2) of the Act and its 

implementing regulations require that 

we consider the economic impact that 

may result from a designation of critical 

habitat. To assess the probable 

economic impacts of a designation, we 

must first evaluate specific land uses or 

activities and projects that may occur in 

the area of the critical habitat. We then 

must evaluate the impacts that a specific 

critical habitat designation may have on 

restricting or modifying specific land 

uses or activities for the benefit of the 

species and its habitat within the areas 

proposed. We then identify which 

conservation efforts may be the result of 

the species being listed under the Act 

versus those attributed solely to the 

designation of critical habitat for this 

particular species. The probable 

economic impact of a proposed critical 

habitat designation is analyzed by 

comparing scenarios both ‘‘with critical 

habitat’’ and ‘‘without critical habitat.’’ 

The ‘‘without critical habitat’’ 

scenario represents the baseline for the 

analysis, which includes the existing 

regulatory and socio-economic burden 

imposed on landowners, managers, or 

other resource users potentially affected 

by the designation of critical habitat 

(e.g., under the Federal listing as well as 

other Federal, State, and local 

regulations). Therefore, the baseline 

represents the costs of all efforts 

attributable to the listing of the species 

under the Act (i.e., conservation of the 

species and its habitat incurred 

regardless of whether critical habitat is 

designated). The ‘‘with critical habitat’’ 

scenario describes the incremental 

impacts associated specifically with the 

designation of critical habitat for the 

species. The incremental conservation 

efforts and associated impacts would 

not be expected without the designation 

of critical habitat for the species. In 

other words, the incremental costs are 

those attributable solely to the 

designation of critical habitat, above and 

beyond the baseline costs. These are the 

costs we use when evaluating the 

benefits of inclusion and exclusion of 

particular areas from the final 

designation of critical habitat should we 


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choose to conduct a discretionary 

4(b)(2) exclusion analysis. 

Executive Orders (E.O.s) 12866 and 

13563 direct Federal agencies to assess 

the costs and benefits of available 

regulatory alternatives in quantitative 

(to the extent feasible) and qualitative 

terms. Consistent with these E.O. 

regulatory analysis requirements, our 

effects analysis under the Act may take 

into consideration impacts to both 

directly and indirectly affected entities, 

where practicable and reasonable. If 

sufficient data are available, we assess 

to the extent practicable the probable 

impacts to both directly and indirectly 

affected entities. To determine whether 

the designation of critical habitat may 

have an economic effect of $200 million 

or more in any given year (which would 

trigger section 3(f)(1) of E.O. 12866, as 

amended by E.O. 14094), we used a 

screening analysis to assess whether a 

designation of critical habitat for the 

Bay-Delta longfin smelt is likely to 

exceed this threshold. 

For this particular designation, we 

developed an incremental effects 

memorandum (IEM) considering the 

probable incremental economic impacts 

that may result from this proposed 

designation of critical habitat (Service 

2023b, entire). The information 

contained in our IEM was then used to 

develop a screening analysis of the 

probable effects of the designation of 

critical habitat for the Bay-Delta longfin 

smelt (Industrial Economic Inc. (IEc) 

2024, entire). We began by conducting 

a screening analysis of the proposed 

designation of critical habitat in order to 

focus our analysis on the key factors 

that are likely to result in incremental 

economic impacts. The purpose of the 

screening analysis is to filter out 

particular geographical areas of critical 

habitat that are already subject to such 

protections and are, therefore, unlikely 

to incur incremental economic impacts. 

In particular, the screening analysis 

considers baseline costs (i.e., absent 

critical habitat designation) and 

includes any probable incremental 

economic impacts where land and water 

use may already be subject to 

conservation plans, land management 

plans, best management practices, or 

regulations that protect the habitat area 

as a result of the Federal listing status 

of the species. Ultimately, the screening 

analysis allows us to focus our analysis 

on evaluating the specific areas or 

sectors that may incur probable 

incremental economic impacts as a 

result of the designation. 

The presence of the listed species in 

occupied areas of critical habitat means 

that any destruction or adverse 

modification of those areas is also likely 

to jeopardize the continued existence of 

the species. Therefore, designating 

occupied areas as critical habitat 

typically causes little if any incremental 

impacts above and beyond the impacts 

of listing the species. As a result, we 

generally focus the screening analysis 

on areas of unoccupied critical habitat 

(unoccupied units or unoccupied areas 

within occupied units). Overall, the 

screening analysis assesses whether 

designation of critical habitat is likely to 

result in any additional management or 

conservation efforts that may incur 

incremental economic impacts. This 

screening analysis combined with the 

information contained in our IEM 

constitute what we consider to be our 

economic analysis of the proposed 

critical habitat designation for the BayDelta longfin smelt and is summarized 

in the narrative below. 

As part of our screening analysis, we 

considered the types of economic 

activities that are likely to occur within 

the areas likely affected by the critical 

habitat designation. In our evaluation of 

the probable incremental economic 

impacts that may result from the 

proposed designation of critical habitat 

for the Bay-Delta longfin smelt, first we 

identified, in the IEM dated December 

29, 2023 (Service 2023b), probable 

incremental economic impacts 

associated with the following categories 

of activities: (1) dredging; (2) levee 

construction; (3) sand mining; (4) inwater construction; (5) aquatic weed 

control; (6) flood/sea level rise 

protection projects; (7) habitat 

restoration projects; and (8) scientific 

monitoring activities. Indirect upstream 

impacts associated with water 

management or water withdrawal 

activities associated with water 

infrastructure and agriculture or 

municipal water use may also occur but 

the impacts associated with these 

activities would be overshadowed by 

the effects of climate change and 

reduced precipitation and water flows 

into the estuary. We considered each 

industry or category individually. 

Additionally, we considered whether 

their activities have any Federal 

involvement. Critical habitat 

designation generally will not affect 

activities that do not have any Federal 

involvement; under the Act, designation 

of critical habitat affects only activities 

conducted, funded, permitted, or 

authorized by Federal agencies. 

In areas where the Bay-Delta longfin 

smelt is present, Federal agencies would 

be required to consult with the Service 

under section 7 of the Act on activities 

they authorize, fund, or carry out that 

may affect the species. If we finalize this 

critical habitat designation as proposed, 

Federal agencies would be required to 

consider the effects of their actions on 

the designated habitat, and if the 

Federal action may affect critical 

habitat, our consultations would 

include an evaluation of measures to 

avoid the destruction or adverse 

modification of critical habitat. 

In our IEM, we attempted to clarify 

the distinction between the effects that 

would result from the species being 

listed and those attributable to the 

critical habitat designation (i.e., 

difference between the jeopardy and 

adverse modification standards) for the 

Bay-Delta longfin smelt’s critical 

habitat. Because the designation of 

critical habitat for Bay-Delta longfin 

smelt is being proposed nearly 

concurrently with the listing, it has been 

our experience that it is more difficult 

to discern which conservation efforts 

are attributable to the species being 

listed and those which will result solely 

from the designation of critical habitat. 

However, the following specific 

circumstances in this case help to 

inform our evaluation: (1) The essential 

physical or biological features identified 

for critical habitat are the same features 

essential for the life requisites of the 

species, and (2) any actions that would 

likely adversely affect the essential 

physical or biological features of 

occupied critical habitat are also likely 

to adversely affect the Bay-Delta longfin 

smelt. The IEM outlines our rationale 

concerning this limited distinction 

between baseline conservation efforts 

and incremental impacts of the 

designation of critical habitat for this 

species. This evaluation of the 

incremental effects has been used as the 

basis to evaluate the probable 

incremental economic impacts of this 

proposed designation of critical habitat. 

The proposed critical habitat 

designation for the Bay-Delta longfin 

smelt includes a single occupied unit, 

totaling approximately 91,630 ac 

(37,082 ha). The areas being considered 

are shoreline areas ((less than 1 percent 

of the proposed designation) that are 

Federal (2 percent), State (21 percent), 

local government (1 percent), private or 

other non-profit areas (4 percent), and 

other undetermined shoreline areas (73 

percent)) and a water area of 

undetermined ownership (over 99 

percent of the proposed designation) 

within the San Francisco Bay-Delta. In 

these areas, any actions that may affect 

the Bay-Delta longfin smelt or its habitat 

would also affect the proposed critical 

habitat, and it is unlikely that any 

additional conservation efforts would be 

recommended to address the adverse 

modification standard over and above 

those recommended as necessary to 


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avoid jeopardizing the continued 

existence of Bay-Delta longfin smelt. 

The entities most likely to incur 

incremental costs are parties to section 

7 consultations, including Federal 

action agencies (such as the Bureau of 

Reclamation, U.S. Army Corps of 

Engineers, Federal Highway 

Administration, U.S. Fish and Wildlife 

Service, and U.S. Department of 

Agriculture) and, in some cases, third 

parties, most frequently State agencies, 

local government entities, and private 

land-owners. While this additional 

analysis will require time and resources 

by both the Federal action agency and 

the Service, in most circumstances, 

these costs would be administrative in 

nature. 

The total number of formal 

consultations expected to occur is 

between 7 and 13 consultations 

annually and the number of informal 

consultations is 7 to 15 annually (IEc 

2024, Table 2, p. 12). The total 

incremental costs for each technical 

assistance interaction and informal, 

formal, and programmatic section 7 

consultation conducted is estimated to 

total $440, $2,700, $5,700, and $11,000, 

respectively, across all Federal and third 

party participants. These estimates 

assume that consultations would occur 

even in the absence of critical habitat 

due to the presence of the listed BayDelta longfin smelt, and the amount of 

administrative effort to address critical 

habitat during this process is relatively 

minor. 

Applying these incremental costs to 

the estimated future consultations 

forecast, we estimate the incremental 

annual administrative costs of 

consultations pursuant to the proposed 

critical habitat for the Bay-Delta longfin 

smelt is likely between $56,500 to 

$120,000 per year (2024 dollars), 

including approximately $38,000 to 

$76,000 for formal consultations, and 

$18,000 to $42,000 for informal 

consultations. 

We are soliciting data and comments 

from the public on the economic 

analysis discussed above. During the 

development of a final designation, we 

will consider the information presented 

in the economic analysis and any 

additional information on economic 

impacts we receive during the public 

comment period to determine whether 

any specific areas should be excluded 

from the final critical habitat 

designation under authority of section 

4(b)(2), our implementing regulations at 

50 CFR 424.19, and the 2016 Policy. We 

may exclude an area from critical 

habitat if we determine that the benefits 

of excluding the area outweigh the 

benefits of including the area, provided 

the exclusion will not result in the 

extinction of this species. The benefits 

of designating areas as critical habitat 

include identifying and informing 

landowners and the public of which 

specific areas are important to a species’ 

conservation and recovery. Critical 

habitat designation also raises 

awareness of the habitat needs of 

imperiled species and focuses efforts of 

our conservation partners. 

Consideration of National Security 

Impacts 

Section 4(a)(3)(B)(i) of the Act may 

not cover all DoD lands or areas that 

pose potential national-security 

concerns (e.g., a DoD installation that is 

in the process of revising its INRMP for 

a newly listed species or a species 

previously not covered). If a particular 

area is not covered under section 

4(a)(3)(B)(i), then national-security or 

homeland-security concerns are not a 

factor in the process of determining 

what areas meet the definition of 

‘‘critical habitat.’’ However, we must 

still consider impacts on national 

security, including homeland security, 

on those lands or areas not covered by 

section 4(a)(3)(B)(i) because section 

4(b)(2) requires us to consider those 

impacts whenever it designates critical 

habitat. Accordingly, if DoD, 

Department of Homeland Security 

(DHS), or another Federal agency has 

requested exclusion based on an 

assertion of national-security or 

homeland-security concerns, or we have 

otherwise identified national-security or 

homeland-security impacts from 

designating particular areas as critical 

habitat, we generally have reason to 

consider excluding those areas. 

However, we cannot automatically 

exclude requested areas. When DoD, 

DHS, or another Federal agency requests 

exclusion from critical habitat on the 

basis of national-security or homelandsecurity impacts, we must conduct an 

exclusion analysis if the Federal 

requester provides information, 

including a reasonably specific 

justification of an incremental impact 

on national security that would result 

from the designation of that specific 

area as critical habitat. That justification 

could include demonstration of 

probable impacts, such as impacts to 

ongoing border-security patrols and 

surveillance activities, or a delay in 

training or facility construction, as a 

result of compliance with section 7(a)(2) 

of the Act. If the agency requesting the 

exclusion does not provide us with a 

reasonably specific justification, we will 

contact the agency to recommend that it 

provide a specific justification or 

clarification of its concerns relative to 

the probable incremental impact that 

could result from the designation. If we 

conduct an exclusion analysis because 

the agency provides a reasonably 

specific justification or because we 

decide to exercise the discretion to 

conduct an exclusion analysis, we will 

defer to the expert judgment of DoD, 

DHS, or another Federal agency as to: 

(1) Whether activities on its lands or 

waters, or its activities on other lands or 

waters, have national-security or 

homeland-security implications; (2) the 

importance of those implications; and 

(3) the degree to which the cited 

implications would be adversely 

affected in the absence of an exclusion. 

In that circumstance, in conducting a 

discretionary section 4(b)(2) exclusion 

analysis, we will give great weight to 

national-security and homeland-security 

concerns in analyzing the benefits of 

exclusion. 

Under section 4(b)(2) of the Act, we 

also consider whether a national 

security or homeland security impact 

might exist on lands owned or managed 

by DoD or DHS. In preparing this 

proposal, we have determined that, 

other than the land exempted under 

section 4(a)(3)(B)(i) of the Act based 

upon the existence of an approved 

INRMP (see Exemptions, above), the 

lands and water area within the 

proposed designation of critical habitat 

for the Bay-Delta longfin smelt are not 

owned or managed by DoD or DHS. 

Therefore, we anticipate no impact on 

national security or homeland security. 

Consideration of Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security discussed 

above. To identify other relevant 

impacts that may affect the exclusion 

analysis, we consider a number of 

factors, including whether there are 

approved and permitted conservation 

agreements or plans covering the 

species in the area—such as safe harbor 

agreements (SHAs), candidate 

conservation agreements with 

assurances (CCAAs) or ‘‘conservation 

benefit agreement’’ or ‘‘conservation 

agreement’’ (‘‘CBAs’’) (CBAs are a new 

type of agreement replacing SHAs and 

CCAAs in use after April 2024 (89 FR 

26070; April 12, 2024)) or HCPs—or 

whether there are non-permitted 

conservation agreements and 

partnerships that may be impaired by 

designation of, or exclusion from, 

critical habitat. In addition, we look at 

whether Tribal conservation plans or 

partnerships, Tribal resources, or 

government-to-government 


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relationships of the United States with 

Tribal entities may be affected by the 

designation. We also consider any State, 

local, social, or other impacts that might 

occur because of the designation. 

Summary of Exclusions Considered 

Under 4(b)(2) of the Act 

In preparing this proposal, we have 

determined that no HCPs or other 

management plans for the Bay-Delta 

longfin smelt currently exist, and the 

proposed designation does not include 

any Tribal lands or trust resources or 

any lands for which designation would 

have any economic or national security 

impacts. Therefore, we anticipate no 

impact on Tribal lands, partnerships, or 

HCPs from this proposed critical habitat 

designation, and thus, as described 

above, we are not considering excluding 

any particular areas on the basis of the 

presence of conservation agreements or 

impacts to trust resources. 

However, if through the public 

comment period we receive information 

that we determine indicates that there 

are potential economic, national 

security, or other relevant impacts from 

designating particular areas as critical 

habitat, then as part of developing the 

final designation of critical habitat, we 

will evaluate that information and may 

conduct a discretionary exclusion 

analysis to determine whether to 

exclude those areas under authority of 

section 4(b)(2) and our implementing 

regulations at 50 CFR 424.19. If we 

receive a request for exclusion of a 

particular area and after evaluation of 

supporting information we do not 

exclude, we will fully describe our 

decision in the final rule for this action. 

Required Determinations 

Clarity of the Rule 

We are required by E.O.s 12866 and 

12988 and by the Presidential 

Memorandum of June 1, 1998, to write 

all rules in plain language. This means 

that each rule we publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

Regulatory Planning and Review 

(Executive Orders 12866, 13563 and 

14094) 

Executive Order 14094 amends and 

reaffirms the principles of E.O. 12866 

and E.O. 13563 and states that 

regulatory analysis should facilitate 

agency efforts to develop regulations 

that serve the public interest, advance 

statutory objectives, and are consistent 

with E.O. 12866, and E.O. 13563, and 

the Presidential Memorandum of 

January 20, 2021 (Modernizing 

Regulatory Review). Regulatory 

analysis, as practicable and appropriate, 

shall recognize distributive impacts and 

equity, to the extent permitted by law. 

E.O. 13563 emphasizes further that 

regulations must be based on the best 

available science and that the 

rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this proposed rule in a manner 

consistent with these requirements. 

Executive Order 12866, as reaffirmed 

by E.O. 13563 and amended and 

reaffirmed by E.O. 14094, provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget will review all 

significant rules. OIRA has determined 

that this rule is significant. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; title II of Pub. L. 104–121, 

March 29, 1996), whenever an agency is 

required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effects of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of the 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The SBREFA amended the RFA to 

require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

According to the Small Business 

Administration, small entities include 

small organizations such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

whether potential economic impacts to 

these small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

Under the RFA, as amended, and as 

understood in light of court decisions 

(see, e.g., American Trucking Ass’ns v. 

U.S. Envtl. Protection Agency, 175 F.3d 

1027, 1044 (D.C. Cir. 1999)), Federal 

agencies are required to evaluate the 

potential incremental impacts of 

rulemaking on those entities directly 

regulated by the rulemaking itself; in 

other words, the RFA does not require 

agencies to evaluate the potential 

impacts to indirectly regulated entities. 

The regulatory mechanism through 

which critical habitat protections are 

realized is section 7 of the Act, which 

requires Federal agencies, in 

consultation with the Service, to ensure 

that any action authorized, funded, or 

carried out by the agency is not likely 

to destroy or adversely modify critical 

habitat. Therefore, under section 7, only 

Federal action agencies are directly 

subject to the specific regulatory 

requirement (avoiding destruction and 

adverse modification) imposed by 

critical habitat designation. 

Consequently, only Federal action 

agencies would be directly regulated if 

we adopt the proposed critical habitat 

designation. The RFA does not require 

evaluation of the potential impacts to 

entities not directly regulated. 

Moreover, Federal agencies are not 

small entities. Therefore, because no 

small entities would be directly 

regulated by this rulemaking, the 

Service certifies that, if made final as 

proposed, the critical habitat 

designation will not have a significant 

economic impact on a substantial 

number of small entities. 


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In summary, we have considered 

whether the proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities. For the above reasons and 

based on currently available 

information, we certify that, if made 

final, the critical habitat designation 

would not have a significant economic 

impact on a substantial number of small 

business entities. Therefore, an initial 

regulatory flexibility analysis is not 

required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare statements of energy effects 

‘‘to the extent permitted by law’’ when 

undertaking actions identified as 

significant energy actions (66 FR 28355; 

May 22, 2001). E.O. 13211 defines a 

‘‘significant energy action’’ as an action 

that (i) is a significant regulatory action 

under E.O. 12866 or any successor 

order; and (ii) is likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. This 

proposed rule is a significant regulatory 

action under E.O. 12866, as amended by 

E.O. 14094 (88 FR 21879; April 11, 

2023). In our economic analysis, we did 

not find that this proposed critical 

habitat designation would significantly 

affect energy supplies, distribution, or 

use. This is because the proposed 

critical habitat is limited to a portion of 

the water and shoreline area of the San 

Francisco Bay estuary which is not used 

for energy supply, distribution or use. 

Therefore, this action is not a significant 

energy action, and no statement of 

energy effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

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

seq.), we make the following finding: 

(1) This proposed rule would not 

produce a Federal mandate. In general, 

a Federal mandate is a provision in 

legislation, statute, or regulation that 

would impose an enforceable duty upon 

State, local, or Tribal governments, or 

the private sector, and includes both 

‘‘Federal intergovernmental mandates’’ 

and ‘‘Federal private sector mandates.’’ 

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions are not 

likely to destroy or adversely modify 

critical habitat under section 7. While 

non-Federal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this 

proposed rule would significantly or 

uniquely affect small governments 

because the majority of area associated 

with the proposal is water area of the 

San Francisco Bay estuary and not 

owned or managed by small 

governments. Small governments will 

be affected only to the extent that any 

programs having Federal funds, permits, 

or other authorized activities must 

ensure that their actions will not be 

likely to result in destruction or adverse 

modification of the species’ critical 

habitat. Therefore, a small government 

agency plan is not required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for the BayDelta longfin smelt in a takings 

implications assessment. The Act does 

not authorize the Services to regulate 

private actions on private lands or 

confiscate private property as a result of 

critical habitat designation. Designation 

of critical habitat does not affect land 

ownership, or establish any closures, or 

restrictions on use of or access to the 

designated areas. Furthermore, the 

designation of critical habitat does not 

affect landowner actions that do not 

require Federal funding or permits, nor 

does it preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. However, Federal 

agencies are prohibited from carrying 

out, funding, or authorizing actions that 

would destroy or adversely modify 

critical habitat. A takings implications 

assessment has been completed for the 

proposed designation of critical habitat 

for the Bay-Delta longfin smelt, and it 

concludes that, if adopted, this 

designation of critical habitat does not 

pose significant takings implications for 

lands within or affected by the 

designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this proposed rule does 

not have significant Federalism effects. 

A federalism summary impact statement 

is not required. In keeping with 

Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of this 

proposed critical habitat designation 

with, appropriate State resource 

agencies. From a federalism perspective, 

the designation of critical habitat 

directly affects only the responsibilities 

of Federal agencies. The Act imposes no 

other duties with respect to critical 

habitat, either for States and local 

governments, or for anyone else. As a 

result, the proposed rule does not have 

substantial direct effects either on the 

States, or on the relationship between 

the Federal government and the States, 

or on the distribution of powers and 

responsibilities among the various 

levels of government. The proposed 


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designation may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical or 

biological features of the habitat 

necessary for the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist State and 

local governments in long-range 

planning because they no longer have to 

wait for case-by-case section 7 

consultations to occur. 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) of the Act would 

be required. While non-Federal entities 

that receive Federal funding, assistance, 

or permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the 

proposed rule would not unduly burden 

the judicial system and that it meets the 

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

of the Order. We have proposed 

designating critical habitat in 

accordance with the provisions of the 

Act. To assist the public in 

understanding the habitat needs of the 

species, this proposed rule identifies the 

physical or biological features essential 

to the conservation of the species. The 

proposed areas of critical habitat are 

presented on maps, and the proposed 

rule provides several options for the 

interested public to obtain more 

detailed location information, if desired. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain 

information collection requirements, 

and a submission to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) is not required. 

We may not conduct or sponsor and you 

are not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

Regulations adopted pursuant to 

section 4(a) of the Act are exempt from 

the National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.) and do 

not require an environmental analysis 

under NEPA. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

includes listing, delisting, and 

reclassification rules, as well as critical 

habitat designations. In a line of cases 

starting with Douglas County v. Babbitt, 

48 F.3d 1495 (9th Cir. 1995), the courts 

have upheld this position. 

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, May 4, 

1994), E.O. 13175 (Consultation and 

Coordination with Indian Tribal 

Governments), the President’s 

memorandum of November 30, 2022 

(Uniform Standards for Tribal 

Consultation; 87 FR 74479, December 5, 

2022), and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

federally recognized Tribes and Alaska 

Native Corporations (ANCs) on a 

government-to-government basis. In 

accordance with Secretary’s Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We have determined that no Tribal 

lands fall within the boundaries of the 

proposed critical habitat for the BayDelta longfin smelt, so no Tribal lands 

would be affected by the proposed 

designation. Accordingly, we have 

concluded that this action does not have 

Tribal implications as specified in E.O. 

13175 because it will not have 

substantial direct effects on Tribal 

governments, on the relationship 

between the Federal Government and 

the Indian Tribes, or on the distribution 

of power and responsibilities between 

the Federal Government and Indian 

Tribes. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at https://www.regulations.gov 

and upon request from the San 

Francisco Bay-Delta Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the Fish 

and Wildlife Service’s Species Status 

Assessment Team, which includes staff 

from the Region 8 Regional Office and 

the San Francisco Bay-Delta Fish and 

Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Plants, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

Signing Authority 

Martha Williams, Director of the U.S. 

Fish and Wildlife Service, approved this 

action on December 11, 2024, for 

publication. On December 11, 2024, 

Martha Williams authorized the 

undersigned to sign the document 

electronically and submit it to the Office 

of the Federal Register for publication as 

an official document of the U.S. Fish 

and Wildlife Service. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. In § 17.11, amend paragraph (h) in 

the List of Endangered and Threatened 

Wildlife under Fishes by revising the 

entry for ‘‘Smelt, longfin [San Francisco 

Bay-Delta DPS]’’ to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 


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Common name Scientific name Where listed Status Listing citations and 

applicable rules 

*******

FISHES

*******

Smelt, longfin [San Francisco Bay-Delta 

DPS].

Spirinchus 

thaleichthys.

U.S.A. (CA) ...... E 89 FR 61029, 07/30/2024; 50 CFR 

17.95(e).CH

* * * * * * * 

■ 3. Amend § 17.95(e) by adding an 

entry for ‘‘San Francisco Bay-Delta 

Distinct Population Segment of the 

Longfin Smelt (Spirinchus 

thaleichthys)’’ after the entry for ‘‘Delta 

Smelt (Hypomesus transpacificus)’’ to 

read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes. 

* * * * * 

San Francisco Bay-Delta Distinct 

Population Segment of the Longfin 

Smelt (Spirinchus thaleichthys) 

(1) Critical habitat consists of one unit 

located in the San Francisco Bay estuary 

in Contra Costa, Napa, Sacramento, 

Solano, and Sonoma Counties, 

California, and is depicted on the map 

in this entry. The San Francisco Bay 

estuary is a complex and dynamic 

system exhibiting a wide range of 

salinities, temperatures, and habitats as 

the result of tidal movement of ocean 

water and freshwater inputs from the 

Sacramento and San Joaquin Rivers and 

local tributaries. This unit provides the 

unique suite of environmental 

conditions needed for spawning, larval 

rearing, juvenile growth, and maturation 

of the San Francisco Bay-Delta distinct 

population segment of the longfin smelt 

(Bay-Delta longfin smelt). 

(2) The essential physical or 

biological features for the Bay-Delta 

longfin smelt consist of water and 

shoreline areas with the appropriate 

water temperature, salinity, turbidity, 

food resources, substrate, and 

hydrologic conditions capable of 

supporting spawning, rearing, and larval 

and juvenile development. Within the 

San Francisco Bay estuary, different 

areas of the critical habitat unit provide 

all of the physical or biological features 

essential to the conservation of BayDelta longfin smelt, but not all of the 

features occur in all portions of the unit 

at all times. During various times of the 

year, different areas of the estuary 

provide the following essential physical 

or biological features: 

(i) Water temperature requirements: 

Water temperature ranges to support 

reproduction, growth, and survival of 

the Bay-Delta longfin smelt at different 

life stages to include: 

(A) Estuary water temperatures below 

13 °Celsius (°C) (55.4 °F (°F)) from 

December through May to initiate and 

support successful spawning; 

(B) Estuary water temperatures less 

than 15 °C (59.0 °F) from December 

through May for egg development, 

hatching success, and early larval 

development; 

(C) Estuary water temperatures less 

than 20 °C (60.0 °F) from February 

through June for larvae 40 days post 

hatch and older to support growth and 

avoid physiological stress; and 

(D) Estuary and nearshore ocean water 

temperatures less than 22 °C (71.6 °F) 

year-round for juveniles and adults to 

support growth and avoid physiological 

stress. 

(ii) Water salinity requirements: 

Suitable salinity concentrations to 

support successful reproduction, 

growth, and recruitment; such ranges 

include: 

(A) Salinity conditions between 2–4 

parts per thousand (ppt) from December 

through May to support average larval 

salinity requirements; and 

(B) Salinity conditions between 0.4– 

10 ppt from December through May to 

support diversity of egg and early larval 

rearing conditions. 

(iii) Water turbidity requirements: 

Turbidity greater than 20 nephelometric 

turbidity units to optimize feeding and 

predator avoidance. 

(iv) Food resource requirements: Food 

resources in abundances that support 

growth and recruitment of all life stages; 

these food resources include, but are not 

limited to: 

(A) The copepod Eurytemora affinis, 

the primary prey item supporting larvae 

less than 25 mm (approximately 1 inch 

length); 

(B) Mysids including Neomysis 

mercedis and Hyperacanthomysis 

longirostris, and other amphipods, the 

primary prey items supporting juveniles 

and larvae greater than 25 mm in length 

(approximately 1 inch length); and 

(C) Prey of various zooplankton 

species such as those identified in 

paragraphs (2)(iv)(A) and (B) of this 

entry for juveniles and adults. 

(v) Substrate requirements: Substrate 

composed mostly of sandy habitat, 

although portions may include gravel 

substrates, rocks, or aquatic plants that 

provide suitable habitat for spawning, 

protection, cover, and development of 

eggs and larvae. 

(vi) Hydrologic requirements: 

Contemporaneous with the appropriate 

seasonal needs by life stage of the 

species, inflow into the estuary of 

appropriate freshwater to provide the 

conditions set forth in paragraphs (2)(i) 

through (iv) of this entry. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the [EFFECTIVE DATE 

OF THE FINAL RULE]. 

(4) Data layers defining the map unit 

were created on a base of U.S. 

Geological Survey digital ortho-photo 

quarter-quadrangles, and the critical 

habitat unit was then mapped using 

Universal Transverse Mercator (UTM) 

North American Datum of 1983 (NAD 

83) Zone 10N projected coordinate 

system. The map in this entry, as 

modified by any accompanying 

regulatory text, establish the boundaries 

of the critical habitat designation. The 

coordinates or plot points or both on 

which the map is based are available to 

the public at the Service’s internet site 

at https://www.fws.gov/office/sanfrancisco-bay-delta-fish-and-wildlife, at 

https://www.regulations.gov at Docket 

No. FWS–R8–ES–2024–0131, and at the 

field office responsible for this 

designation. You may obtain field office 

location information by contacting one 

of the Service regional offices, the 

addresses of which are listed at 50 CFR 

2.2. 

(5) San Francisco Bay-Delta Unit, 

Contra Costa, Napa, Sacramento, 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Proposed Rules 3783 

Solano, and Sonoma Counties, 

California. 

(i) The San Francisco Bay-Delta Unit 

consists of a total of 91,603 ac (37,082 

ha) of water and shoreline areas in a 

portion of the San Francisco Bay estuary 

bordering Contra Costa, Napa, 

Sacramento, Solano, and Sonoma 

Counties, California, and is composed of 

Federal (20 ac (8 ha)), State (257 ac (104 

ha)), local government (7 ac (3 ha)), 

private, and nonprofit or 

nongovernmental organization lands (49 

ac (20 ha)), and other water and 

shoreline area of undetermined 

ownership (91,297 ac (36,947 ha)). 

(ii) Map of the San Francisco BayDelta Unit follows: 

BILLING CODE 4333–15–P 

Figure 1 to San Francisco Bay-Delta 

longfin smelt (Spirinchus 

thaleichthys) paragraph (5)(ii) 

* * * * * 

Sara Prigan, 

Federal Register Liaison Officer, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2024–29641 Filed 1–14–25; 8:45 am] 

BILLING CODE 4333–15–C 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R6–ES–2022–0150; 

FF09E21000–256–FXES11130900000] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding for the 

Northern Continental Divide 

Ecosystem of the Grizzly Bear in the 

Lower-48 States 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notification of finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

12-month finding on a petition to 

establish and delist a Northern 

Continental Divide Ecosystem (NCDE) 

distinct population segment (DPS) of the 

grizzly bear (Ursus arctos horribilis) in 

the lower-48 States. After a thorough 

review of the best scientific and 

commercial data available, we find that 

grizzly bears in the petitioned DPS do 

not, on their own, represent a valid DPS. 

Thus, we find that the petitioned action 


lotter on DSK11XQN23PROD with PROPOSALS1EP15JA25.001</GPH>

Critical Habitat for the San Francisco Bay-Delta Longtin Smelt (Spirinchus thaleichthys): 

Contra Costa, Napa, Sacramento, Solano, and Sonoma Counties, California 

SONllMActl, 

ngfin Smelt Estuary Range 

Longtin Smelt Ocean Range 

County 

0 4 a 

0 10 

16 

20 

24 

Miles 

KIiometers 

40