        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 424
        [Docket No. FWS-HQ-ES-2020-0047, FF09E23000 FXES1111090FEDR 201; Docket No. 200720-0197]
        RIN 1018-BE69; 0648-BJ44
        Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat

          AGENCY:
          U.S. Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

          ACTION:
          Proposed rule.

          SUMMARY:
          We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the “Services” or “we”), propose to add a definition of “habitat” to our regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act).

          DATES:

          We will accept comments from all interested parties until September 4, 2020. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES below), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Standard Time on this date.

          ADDRESSES:
          You may submit comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal:

            http://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2020-0047, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”
          (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS-HQ-ES-2020-0047; U.S. Fish & 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 http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Gary Frazer, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240, telephone 202/208-4646; or Samuel D. Rauch III, National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301/427-8403. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS) at 800/877-8339.

        SUPPLEMENTARY INFORMATION:

        Background

        The Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for implementing most of the provisions of the Endangered Species Act of 1973, as amended (“Act”; 16 U.S.C. 1531 et seq.). Generally, marine and anadromous species are under the jurisdiction of the Secretary of Commerce, and all other species are under the jurisdiction of the Secretary of the Interior. (For ease of reading, we refer to “the Secretary” in this rule, which could be either the Secretary of the Interior or the Secretary of Commerce.) Authority to administer the Act has been delegated by the Secretary of the Interior to the Director of FWS and by the Secretary of Commerce to the Assistant Administrator for NMFS.
        The purposes of the Act are to provide a means to conserve the ecosystems upon which listed species depend, to develop a program for the conservation of listed species, and to achieve the purposes of certain treaties and conventions. 16 U.S.C. 1531(b). Moreover, the Act states that it is the policy of Congress that the Federal Government will seek to conserve threatened and endangered species and use its authorities to further the purposes of the Act. 16 U.S.C. 1531(c)(1).

        One of the tools under the Act to conserve species is the designation of critical habitat. The purpose of critical habitat is to identify the areas that are essential to the species' recovery. In section 3(5)(A) of the Act, Congress defined “critical habitat” as:

        (i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, 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 protection; and
        (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. 1532(5)(A).
        Our existing implementing regulations at 50 CFR 424.02 set forth relevant definitions pertaining to listing species under the Act and designating critical habitat.
        Proposed Regulatory Revisions

        We are proposing a regulatory definition of “habitat,” as that term is used in the context of critical habitat designations under the Act. The Act defines “critical habitat” in Section 3(5)(A), establishing separate criteria depending on whether the relevant area is within or outside of the geographical area occupied by the species at the time of listing, but does not define the broader term “habitat.” See 16 U.S.C. 1532(5)(A). Nor have the Services previously adopted a definition of the term “habitat” through regulations or policy; rather, we have traditionally applied the criteria from the definition of “critical habitat” based on the implicit premise that any specific area satisfying that definition was habitat.

        However, the Supreme Court recently held that an area must logically be “habitat” in order for that area to meet the narrower category of “critical habitat” as defined in the Act, regardless of whether that area is occupied or unoccupied. Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018). The Court stated: “Section 4(a)(3)(A)(i) does not authorize the Secretary to designate [an] area as critical habitat unless it is also habitat for the species.” 139 S. Ct. at 368. Given this holding in the Supreme Court's opinion in Weyerhaeuser, we are proposing to add a regulatory definition of “habitat.” We took an initial step to address the Supreme Court's decision in Weyerhaeuser in our recent revisions to the implementing regulations governing designation of critical habitat (at 50 CFR 424.12). In those revisions, the Services made some modifications to the regulatory requirements that must be met for areas outside the geographical area occupied at the time of listing to be considered “essential for the conservation of the species” (which is the standard that an unoccupied area must meet to be considered “critical habitat”). Because the factual situation at issue before the Supreme Court involved unoccupied areas, it made sense to address that aspect of our regulations first. However, we noted that we were not attempting to define “habitat” in those revisions, but instead were considering developing such a definition through separate rulemaking. We now undertake that task in order to provide transparency, clarity, and consistency for stakeholders.
        Under the text and logic of the statute, the definition of “habitat” must inherently be broader than the statutory definition of “critical habitat.” To give effect to all of section 3(5)(A), the definition of “habitat” we propose is broad enough to include both occupied critical habitat and unoccupied critical habitat, because the statute defines “critical habitat” to include both occupied and unoccupied areas.
        Definition of Habitat
        We propose to add the following definition of the term “habitat” to § 424.02.
        The physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species.
        In addition, we have provided, and solicit comment on, an alternative definition of “habitat” as follows:

          The physical places that individuals of a species use to carry out one or more life processes. Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exist.

        We solicit comment on these definitions, in particular on whether “depend upon” in the proposed definition sufficiently differentiates areas that could be considered habitat, or whether “use” better describes the relationship between a species and its habitat. We also solicit comment on the second sentence of the alternative definition. Though it is similar to the second sentence of the proposed definition, it expressly limits unoccupied habitat for a species to areas “where the necessary attributes to support the species presently exist,” and explicitly excludes areas that have no present capacity to support individuals of the species. We invite comment on whether either definition is too broad or too narrow or is otherwise proper or improper, and on whether other formulations of a definition of “habitat” would be preferable to either of the two definitions, including formulations that incorporate various aspects of these two definitions.
        The proposed definition 1
           reflects the principle that a species' habitat is based on its particular ecology. In developing this particular definition of habitat, we reviewed many definitions of habitat from the ecological literature; however, no pre-existing definition was adequate to address the particular regulatory framework that we are implementing. Therefore, we incorporated useful concepts from the literature to the extent appropriate and added concepts based on our decades of expertise so as to define the term “habitat” in a manner that would be sufficiently broad to fully encompass both the occupied and unoccupied prongs of the definition of “critical habitat” in the Act. In particular, the proposed definition is written so as to include unoccupied habitat, whereas many of the definitions in the ecological literature that we reviewed did not appear to consider unoccupied areas. While we have intentionally refrained from using within this proposed regulatory definition of “habitat” terms of art from other definitions in the Act to avoid potential confusion, including the phrase “physical or biological features” from the definition of “critical habitat,” we propose “existing attributes” to include, but not be limited to, such “physical or biological features.” We invite comment on this issue, including whether the words “existing attributes” are appropriate to include and whether they warrant further clarification or change or should be differently or further defined or explained.

            1 We believe that the following discussion of the proposed definition applies generally to both the main definition and the alternative definition described above. Nonetheless, we invite comment on whether any aspects of this discussion apply more to one definition than to the other definition. We also invite comment on the significance of any such differences.

        The Services are responsible for a vast array of species, including freshwater vertebrates and invertebrates; terrestrial plants and animals; and marine fish, marine mammals, turtles, and corals. Because of this diversity, the definition of the term “habitat” must be somewhat generic to accommodate the wide variety of abiotic or biotic attributes species need to carry out their life processes. Habitat contains food, water, cover, or space that individuals of a species depend upon to carry out one or more of their life processes.

        Seasonally or intermittently used areas also constitute habitat for various species and may include reproductive habitat, nursery habitat, dispersal habitat, migration habitat, and overwintering habitat. For example, a terrestrial mammal may need a particular space for denning at a certain time of the year separate from areas needed for feeding. We would consider both the seasonally used breeding areas and the feeding areas to be habitat for this species. In other instances, species' habitat may be variable, both temporally and spatially, such as beach overwash areas, early-successional riparian communities, or riverine sandbars. For example, the sand bars that interior least terns use in a river may develop during particular times of the year correlating to changes in flow rates of a stream or river system. Although we are not able to predict exactly where within the river sand bars will form, we know they will form within that general setting and their precise location will likely change from year to year. In this case, the particular stream reach in which the sand bars are known to periodically form constitutes “habitat” for the tern.
        In proposing to establish this definition, we do not intend to create a new procedural step that would need to be undertaken prior to designating critical habitat in every case. We expect that in the vast majority of cases that would be unnecessary, in light of the specific criteria of the statutory definition of “critical habitat” coupled with the changes recently finalized at 50 CFR 424.12. Specifically, we interpret the statutory definition of “critical habitat,” as it applies to occupied habitat, to inherently verify that an area meeting that definition is “habitat.” By application of the statutory definition, such an area is by definition part of the species' occupied range at the time of listing and contains one or more of the essential physical or biological features. In those fewer cases where unoccupied habitat is at issue, we would consider any questions raised as to whether the area is “habitat” in the context of the new regulatory requirements at § 424.12(b)(2) and document the determination whether the area is habitat. In this way, the proposed regulatory definition of “habitat” would not impose any additional procedural steps or change in how we designate critical habitat, but would instead serve as a regulatory standard to help ensure that unoccupied areas that we designate as critical habitat are “habitat” for the species and are defensible as such. With the addition of the regulatory definition of “habitat,” the process of designating critical habitat will remain efficient by limiting the need to evaluate whether an area is “habitat” to only those cases where genuine questions exist.

        In proposing the specific definition in this rule and setting out the accompanying clarifying discussion in this preamble, the Services are proposing prospective standards only. Nothing in this proposed regulation is intended to require that any previously finalized critical habitat designations (i.e., designations that were made final on or before the date on which this rule becomes effective) be reevaluated on the basis of any final revisions to this proposed rule.
        Public Comments
        We solicit comment on all aspects of this proposal, including whether any other language should be included in or excluded from the final definition to be set forth in our regulations and whether the main and alternative definitions have (or do not have) implications for the use of the term “habitat” as it appears in other provisions of the Act.

        You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES. We will not consider mailed comments that are not postmarked by the date specified in DATES.

        We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your comment, 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. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov.

        Required Determinations
        Regulatory Planning and Review—Executive Orders 12866 and 13563
        Executive Order 12866 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.
        Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. 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 rule in a manner consistent with these requirements. This proposed rule is consistent with Executive Order 13563, and in particular with the requirement of retrospective analysis of existing rules, designed “to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”
        Executive Order 13771
        This proposed rule is an Executive Order 13771 “other” action.
        Regulatory Flexibility Act

        Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601 et seq.), whenever a Federal 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 effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency, or his designee, certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We certify that, if adopted as proposed, this proposed rule would not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale.

        This rulemaking implements applicable Supreme Court case law and revises and clarifies procedures for NMFS and FWS regarding designating critical habitat under the Endangered Species Act to reflect agency experience and, with minor changes, codifies current agency practices. The proposed changes to these regulations do not alter the reach of designations of critical habitat.
        NMFS and FWS are the only entities that are directly affected by this rule because we are the only entities that designate critical habitat under the Endangered Species Act. No external entities, including any small businesses, small organizations, or small governments, will experience any economic impacts from this rule.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):
        (a) On the basis of information contained in the Regulatory Flexibility Act section above, this proposed rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this rule would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. As explained above, small governments would not be affected because the proposed rule would not place additional requirements on any city, county, or other local municipalities.
        (b) This proposed rule would not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year; that is, this proposed rule is not a “significant regulatory action”' under the Unfunded Mandates Reform Act. This proposed rule would impose no obligations on State, local, or tribal governments.
        Takings (E.O. 12630)
        In accordance with Executive Order 12630, this proposed rule would not have significant takings implications. This proposed rule would not directly affect private property, nor would it cause a physical or regulatory taking. It would not result in a physical taking because it would not effectively compel a property owner to suffer a physical invasion of property. Further, the proposed rule would not result in a regulatory taking because it would not deny all economically beneficial or productive use of the land or aquatic resources and it would substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species) and would not present a barrier to all reasonable and expected beneficial use of private property.
        Federalism (E.O. 13132)
        In accordance with Executive Order 13132, we have considered whether this proposed rule would have significant Federalism effects and have determined that a federalism summary impact statement is not required. This proposed rule pertains only to designation of critical habitat under the Endangered Species Act, and would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.
        Civil Justice Reform (E.O. 12988)
        This proposed rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988. This proposed rule pertains only to designation of critical habitat under the Endangered Species Act.
        Government-to-Government Relationship With Tribes

        In accordance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” the Department of the Interior's manual at 512 DM 2, and the Department of Commerce (DOC) Tribal Consultation and Coordination Policy (May 21, 2013), DOC Departmental Administrative Order (DAO) 218-8 (April 2012), and NOAA Administrative Order (NAO) 218-8 (April 2012), we are considering possible effects of this proposed rule on federally recognized Indian Tribes. The Services have reached a preliminary conclusion that the changes to these implementing regulations are general in nature and do not directly affect specific species or Tribal lands. These regulations clarify the processes for designating critical habitat and directly affect only the Services. With or without these regulatory revisions, the Services would be obligated to continue to designate critical habitat based on the best available data. Therefore, we conclude that these regulations do not have “tribal implications” under Section 1(a) of E.O. 13175, and therefore formal government-to-government consultation is not required by E.O. 13175 and related policies of the Departments of Commerce and Interior. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with them as we implement the provisions of the Act. See Joint Secretarial Order 3206 (“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, June 5, 1997).
        Paperwork Reduction Act
        This proposed rule does not contain any new collections of information that require approval by the OMB under the Paperwork Reduction Act. This proposed rule will not impose recordkeeping or reporting requirements on State, local, or Tribal governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
        National Environmental Policy Act
        We are analyzing this proposed regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), the Department of the Interior Manual (516 DM 8), the NOAA Administrative Order 216-6A, and the NOAA Companion Manual (CM), “Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities” (effective January 13, 2017). This rulemaking responds to recent Supreme Court case law.
        As a result, we anticipate that the categorical exclusion found at 43 CFR 46.210(i) applies to the proposed regulation changes. At 43 CFR 46.210(i), the Department of the Interior has found that the following category of actions would not individually or cumulatively have a significant effect on the human environment and are, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature.”
        NOAA's NEPA procedures include a similar categorical exclusion for “preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature.” (Categorical Exclusion G7, at CM Appendix E).

        We are continuing to consider the extent to which this proposed regulation may have a significant impact on the human environment or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We invite the public to comment on these or any other aspects of NEPA analyses needed for these revisions. We will complete our analysis in accordance with applicable NEPA regulations before finalizing this regulation.
        Energy Supply, Distribution or Use (E.O. 13211)
        Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The proposed revised regulations are not expected to affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action, and no Statement of Energy Effects is required.
        Clarity of the Rule
        We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
        (1) Be logically organized;
        (2) Use the active voice to address readers directly;
        (3) Use clear language rather than jargon;
        (4) Be divided into short sections and sentences; and
        (5) Use lists and tables wherever possible.

        If you believe 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.
        Authority

        We issue this proposed rule under the authority of the Endangered Species Act, as amended (16 U.S.C. 1531 et seq).

          List of Subjects in 50 CFR Part 424
          Administrative practice and procedure, Endangered and threatened species.

          George Wallace,
          Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior.
          Chris Oliver,
          Assistant Administrator, National Marine Fisheries Service, National Oceanic and Atmospheric Administration.

        Proposed Regulation Promulgation
        For the reasons set out in the preamble, we hereby propose to amend part 424, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below:

          PART 424—LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING CRITICAL HABITAT

        1. The authority citation for part 424 continues to read as follows:

          Authority:
           16 U.S.C. 1531 et seq.

        2. Amend § 424.02 by adding a definition for “Habitat” in alphabetical order to read as follows:

          § 424.02
          Definitions.

            Habitat. The physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species.

      [FR Doc. 2020-17002 Filed 8-4-20; 8:45 am]
      BILLING CODE 4333-15-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
         50 CFR Part 224
        [Docket No. 001025296-0296-01; I.D. 072600A]
        RIN 0648-AO05
        Endangered and Threatened Species: Proposed Range Extension for Endangered Steelhead in Southern California

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          In August 1997, NMFS listed the Southern California steelhead Evolutionarily Significant Unit (ESU) as an endangered species and defined its southern limit as Malibu Creek in Los Angeles County, California, based on the best information available at that time.  In February 2000, NMFS designated critical habitat for this ESU that includes all accessible and occupied waterways, including the adjacent riparian zone, below longstanding impassable natural barriers within the range of the ESU. -
          There is now new information indicating that steelhead or their progeny now occur in at least two coastal river basins south of Malibu Creek, and have successfully spawned in one of these basins (San Mateo Creek).  Based on this new information, NMFS is now issuing a proposed rule under the Endangered Species Act (ESA) to extend the current range of this endangered ESU to San Mateo Creek in northern San Diego County, California. -

          Within the redefined Southern California steelhead ESU, only naturally spawned populations of steelhead, and their progeny, which reside below naturally occurring and man-made impassable barriers (e.g., impassable waterfalls and dams) are proposed for listing.  At this time, NMFS is proposing to list only the anadromous life forms of Onchorynchus mykiss (O. mykiss) in those river basins south of Malibu Creek.

          DATES:
          Comments must be received by February 20, 2001.  Requests for public hearings must be received by February 2, 2001.

          ADDRESSES:
          Comments on this proposed rule and requests for public hearings or reference materials should be sent to the Assistant Regional Administrator, Protected Resources Division, NMFS, Southwest Region, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.

          FOR FURTHER INFORMATION CONTACT:
          Craig Wingert, 562-980-4021, or Chris Mobley, 301-713-1401.

        SUPPLEMENTARY INFORMATION:
        Previous Federal ESA Actions Related to the Southern California Steelhead ESU

        In 1994, NMFS received a petition from the Oregon Natural Resources Council and 15 co-petitioners to list west coast steelhead populations under the ESA.  In response to this petition, NMFS conducted a status review of west coast steelhead (Busby et al., 1996).  Based on the results of this status review and other information which constituted the best scientific and commercial data available, NMFS published a proposed listing determination on August 9, 1996, that identified 15 ESUs of steelhead distributed throughout the states of Washington, Oregon, Idaho, and California, including the Southern California ESU (61 FR 41541).  Ten of the ESUs were proposed for listing as threatened or endangered species in that document, including the Southern California steelhead ESU which was proposed for listing as an endangered species.  On August 18, 1997, NMFS published a final rule listing five steelhead ESUs as threatened or endangered under the ESA (62 FR 43937).  The Southern California steelhead ESU was listed as an endangered species in that final rule.    -
        On February 5, 1999, NMFS published a proposed critical habitat designation for nineteen ESUs of threatened and endangered salmon and steelhead distributed throughout Washington, Oregon, Idaho, and California (64 FR 5740), including the endangered Southern California steelhead ESU.  A final rule designating critical habitat for these 19 ESUs, including the Southern California steelhead ESU, was published on February 16, 2000 (65 FR 7764). -
        New Information Concerning Steelhead Distribution and Habitat Use South of Malibu Creek in Southern California
        In the proposed listing determination for the Southern California steelhead ESU (61 FR 41541), NMFS indicated that the  current range of the ESU extended to the southernmost extent of the species range which was thought to be Malibu Creek in Los Angeles County based on the best available information.  Many comments were received regarding this issue during the public comment period, with most indicating that the southern boundary of the ESU should be extended further south to either the southern extent of the species historical range, the Mexican border, or some other location.  NMFS reviewed the available references to steelhead occurring historically and more recently in streams south of Malibu Creek and concluded in its final listing determination that there was insufficient information to revise the southern boundary of this ESU even though some information indicated that steelhead might occasionally occur as far south as the Santa Margarita River in San Diego County (62 FR 43937). -

        The San Mateo Creek watershed arises in the Cleveland National Forest and flows in a southwesterly direction to the Pacific Ocean just south of San Clemente in northern San Diego County.  It is located approximately 100 miles (161.3 kilometers (km)) south of Malibu Creek which NMFS identified in 1997 as the southern extent of the species range and, therefore, the southern boundary of the Southern California steelhead ESU.  Much of the lower reach of San Mateo Creek flows through the Camp Pendleton Marine Corps Base.  Approximately 6-7 miles (9.7-11.3 km) are accessible to steelhead in the mainstem and tributaries.  According to information in Titus et al. (in press), Woelfel (1991), and the California Department of Fish and Game (DFG) (DFG, 2000), San Mateo Creek was an important steelhead-producing stream prior to 1950 and evidently supported a local sport fishery of both juveniles and adults.  More recently, however, Nehlsen et al. (1991) classified the San Mateo Creek steelhead population as extinct.  -

        In February 1999, an angler reported catching and releasing a juvenile steelhead/rainbow trout (O. mykiss) in the lower reach of San Mateo Creek.  Based on this report, DFG initiated a field investigation to confirm the presence of O. mykiss in the San Mateo Creek watershed.  The results of this investigation are presented in a February 2000 report prepared by DFG entitled: “Steelhead Rainbow Trout in San Mateo Creek, San Diego County, California”(DFG, 2000), and are summarized here. -

        Between March 3 and September 3, 1999, a total of 78 juvenile O. mykiss were observed by DFG and other personnel in the San Mateo Creek watershed, with the majority of these observations occurring in the mainstem near its confluence with Devil Canyon.  DFG did not employ depletion or mark-recapture methods in its surveys; thus, population size could not be estimated.  In conjunction with the field investigation, DFG also collected biological information and samples for subsequent analysis, including fin clip tissue samples from two fish for mitochondrial DNA analysis, one otolith sample for micro chemical analysis of its primordium to determine the marine versus freshwater residency of the maternal parent, and scale samples and length measurements to estimate age and growth.    -

        Analysis of the scale samples and associated length data indicated that the juvenile O. mykiss observed in 1999 were age 2+ fish that constituted a relatively homogenous population in terms of size (164-245 millimeters (mm) total length).  Based on the age of these fish, DFG concluded that they were progeny of adults that spawned in 1997.  Micro chemical analysis of strontium/calcium (Sr/Ca) ratios in the single otolith sample obtained from a fish that was sacrificed produced a Sr/Ca profile characteristic of a fish having an anadromous maternal parent (i.e. a steelhead parent).  Given the homogenous nature of the observed juvenile population in terms of age and length, DFG concluded that the juvenile O. mykiss observed in 1999 were the progeny of at least one maternal parent that was anadromous and that spawned somewhere in the San Mateo Creek watershed in 1997.  Finally, genetic analysis of tissue samples from two fish demonstrated that both carried the mtDNA haplotype (MYS5) which is found most commonly in southern California steelhead (Nielson, 1994 and 1996; Nielson et al., 1994a and 1994b).  Since this haplotype is primarily found in southern California steelhead populations and it has not been found in any hatchery populations of steelhead or domestic trout in California, the juvenile O. mykiss population found in San Mateo Creek in 1999 appears to have close genetic affinities with native southern California steelhead, and is not the result of domestic trout planting. -

        In late May 2000, DFG conducted a follow up survey for steelhead in the upper portion of San Mateo Creek just above the gauging station on Camp Pendleton, including the lower reach of the tributary Devils Canyon Creek.  This survey was conducted in conjunction with biologists from NMFS and the U.S. Fish and Wildlife Service (FWS).  The limited survey effort observed three adult (approximately 8-12 inches or 200-300 mm in total length) O. mykiss in the mainstem pools and approximately 15-20 juveniles (60-65 mm in total length) in Devils Canyon Creek.  DFG biologists speculate that the larger size class of O. mykiss may be holdover fish from the steelhead population found in 1999, whereas the smaller juveniles may be the progeny of these holdover fish. -
        Based on this new information, NMFS believes that reconsideration of the geographic range and critical habitat for the Southern California steelhead ESU is warranted.
        Southern California Steelhead ESU Revision

        To qualify for listing as a threatened or endangered species, identified populations of steelhead must be considered a “species” under the ESA.  The ESA defines “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”  NMFS published a policy (56 FR 58612, November 20, 1991) describing how the agency would apply the ESA definition of “species” to anadromous salmonid species.  This policy provides that a salmonid population will be considered distinct, and hence a species under the ESA, if it represents an ESU of the biological species.  A population must satisfy two criteria to be considered an ESU:  (1) It must be reproductively isolated from other conspecific population units; and (2) it must represent an important component in the evolutionary legacy of the biological species.  The first criterion, reproductive isolation, need not be absolute, but must be strong enough to permit evolutionarily important differences to accrue in different population units.  The second criterion is met if the population contributes substantially to the ecological/genetic diversity of the species as a whole.  Guidance on the application of this policy is contained in Waples (1991).  The genetic, ecological, and life history characteristics that NMFS assessed to identify the number and geographic extent of steelhead ESUs on the west coast in accordance with this policy, including the Southern California steelhead ESU, are discussed in detail in Busby et al. (1996) and in the August 9, 1996, proposed listing determination for west coast steelhead (61 FR 41541). -

        The Southern California steelhead ESU, as currently defined, is described in previous Federal Register documents (61 FR 41541 and 62 FR 43937) based on data collected and analyzed by NMFS and summarized in the 1996 west coast steelhead status review (Busby et al., 1996) and a subsequent status review update (NMFS, 1997). As described in the August 18, 1997, final listing determination (62 FR 43937), the Southern California ESU consists of all naturally spawned populations of steelhead (O. mykiss), and their progeny, which occupy rivers and streams from the Santa Maria River in San Luis Obispo County, California (inclusive) to the southern extent of the species' range which was identified as Malibu Creek in Los Angeles County, California (inclusive). -

        In the 1996 proposed listing determination for the Southern California steelhead ESU (61 FR 41541), NMFS concluded that the  current range of the ESU extended to the southernmost extent of the species range which was thought to be Malibu Creek in Los Angeles County.  However, NMFS also acknowledged that there were reports of steelhead in some coastal streams as far south as the Santa Margarita River in San Diego County (Hubbs, 1946; Barnhart, 1986; Higgins, 1991; McEwan and Jackson, 1996; and Titus et al., in press), and, therefore, indicated that the distribution and abundance of steelhead south of Malibu Creek were unresolved issues regarding this ESU.  NMFS received many comments regarding this issue during the public comment period, with most indicating that the southern boundary of the ESU should be extended further south to either the historical range of the species, the U.S.- Mexico border, or some other location.  NMFS reviewed the available references to steelhead occurring historically and more recently in streams south of Malibu Creek and concluded in the 1997 final listing determination for this ESU that there was insufficient information to revise the southern boundary of this ESU south of Malibu Creek even though some limited anecdotal information suggested steelhead may occasionally occur as far south as the Santa Margarita River (62 FR 43937). -

        The recent information compiled by DFG (DFG, 2000) is limited, but still suggests that adult steelhead entered San Mateo Creek and successfully spawned in 1997.  The juvenile progeny of those spawning adults were observed by DFG during its field investigations in the spring and summer of 1999.  More recent information from May 2000 suggests that steelhead still occupy portions of San Mateo Creek and may have successfully spawned again since 1997.  The limited genetic information suggests that the juvenile steelhead found in 1999 have close genetic affinities to native southern California steelhead and are not the result of domestic trout planting.  Since there is no evidence of a resident trout population or recent evidence of steelhead presence in San Mateo Creek (DFG, 2000; Titus et al., in press; Lang et al., 1998), it is likely that the adult steelhead which successfully spawned in 1997 were strays from another watershed elsewhere in the Southern California steelhead ESU.  Based on a review of this new information, NMFS now proposes that the San Mateo Creek steelhead population be considered part of the Southern California steelhead ESU.  -

        The Malibu Creek and San Mateo Creek watersheds are separated by approximately 100 miles (161.3 km).  Therefore, inclusion of the San Mateo Creek steelhead population in the Southern California ESU raises the question of whether or not steelhead occur or are present in any other watersheds located between Malibu Creek and San Mateo Creek.  Based on information reported by Titus et al. (in press), steelhead were historically reported in several watersheds between Malibu Creek and San Mateo Creek (i.e., Los Angeles River, San Gabriel River, Santa Ana River, and San Juan Creek), but are now extinct as a result of major habitat modification or habitat blockage associated with flood control, urban development, and other factors. Given the existing habitat conditions in these highly modified river systems, NMFS does not believe they are currently suitable for steelhead utilization, and, therefore, are highly unlikely to support steelhead absent major restoration efforts. -

        Information regarding the current presence of steelhead in other streams between Malibu Creek and San Mateo Creek is lacking with the exception of a recent observation of fish in Topanga Creek which is approximately 4 miles (6.5 km) south of Malibu Creek.  Titus et al., (in press) indicated that O. mykiss were observed in Topanga Creek in 1979 and in the early 1990s.  In April 2000, an adult O. mykiss was reported in Topanga Creek.  A NMFS’ biologist conducted a site visit and confirmed the presence and identification of two O. mykiss ranging from 14-20 inches (359-573 mm) in total length.  Both fish were observed in a relatively deep pool (4 ft (1.2 meters (m)) deep) located about 1 mile (1.7 km) upstream of the confluence with the ocean.  Based on the existing habitat conditions and the size of the fish, it is unlikely that they spent their entire life cycle in Topanga Creek.  Since there is no evidence of any stocking of rainbow trout in Topanga Creek, it is most likely that these fish originated from some other stream within the ESU. The nearest streams known to support steelhead are Malibu Creek and Arroyo Sequit, both of which are located only a few miles north of Topanga Creek. -

        Although steelhead historically occurred further south than San Mateo Creek, there is no evidence that they do so any longer and are considered extinct throughout San Diego County by Titus et al., (in press).  As with most streams south of Malibu Creek, significant habitat modification has occurred due to urbanization and other factors which have blocked steelhead access to historical spawning and rearing habitat and degraded the remaining habitat.  Although there is no information documenting the presence of steelhead south of San Mateo Creek, suitable habitat for steelhead is thought to exist in San Onofre Creek which is located on Camp Pendleton just south of San Mateo Creek (Lang et al., 1998)
        Status of Southern California Steelhead ESU

        The Southern California steelhead ESU was listed as an endangered species under the ESA in 1997 (62 FR 43937). The biological status of this ESU was described in the final rule based on the results of NMFS’ west coast steelhead status review (Busby et al., 1996) and in an updated status review (NMFS, 1997), which concluded that this ESU was at a high risk of extinction.  -

        Historically, steelhead naturally occurred south into Baja California.  Titus et al., (in press), as cited in the final listing determination, concluded that all steelhead populations south of Malibu Creek in Los Angeles County were extinct based on the available information.  Estimates of pre-1960s abundance for several rivers in this ESU (i.e. Santa Ynez, Ventura, Santa Clara, Malibu Creek) suggest that individual steelhead populations numbered in the thousands of individuals.  Published abundance estimates for the Ventura and Santa Clara Rivers, for example, ranged from 4,000-6,000 and 7,000-9,000 fish, respectively.  At the time of NMFS’ final listing determination, the total run size for several streams in the ESU (e.g., Santa Ynez, Ventura River, Santa Clara River, Malibu Creek) was estimated to number fewer than 200 individuals each (Titus et al., in press). Recent information regarding steelhead abundance for the Santa Ynez, Ventura, and Santa Clara Rivers suggests that the abundance estimates made at the time of the final listing determination were probably high. -
        NMFS’ primary concerns about this steelhead ESU at the time of its listing in 1997, were the widespread and dramatic declines in abundance relative to historical levels and the major reduction in the species range.  Given the extremely low abundance estimates and the associated risk associated with demographic and genetic variability in small populations, the long-term persistence of sustainability of this ESU in the future was a critical concern.  In addition, NMFS was concerned that the restricted spatial distribution of the remaining populations placed the ESU as a whole at risk because of reduced opportunities for re-colonization of streams suffering local population extinctions.  NMFS concluded that the principal factors responsible for the decline of steelhead populations within this ESU were water diversions and extraction, habitat blockages and degradation, agricultural activities, and urbanization.  Little new information regarding the abundance of steelhead in this ESU has been collected since NMFS’ final listing determination in 1997, with the exception of limited data collected as a result of monitoring efforts in the Santa Ynez and Santa Clara Rivers.  These data are not comprehensive enough to estimate population sizes, but they do indicate that these steelhead populations continue to be very small. -
        As discussed earlier in this document, NMFS has concluded that the San Mateo Creek steelhead population should be considered part of the Southern California ESU based on the available information.  Based on the information compiled by DFG, the steelhead population found in San Mateo Creek during 1999 appears to be very small and was likely produced by a limited number of adults that strayed into the watershed and spawned in 1997.  Given the small number of steelhead found in San Mateo Creek, the apparent extirpation of steelhead from virtually all other streams between Malibu Creek and San Mateo Creek with the exception of Topanga Creek, and the extremely low abundance estimates for all other populations within the ESU, NMFS concludes that the proposed redefined Southern California steelhead ESU continues to be at a high risk of extinction. -
        Summary of Factors Affecting the Species

        Section 4(a)(1) of the ESA and NMFS’ implementing regulations (50 CFR part 424) set forth procedures for listing species.  The Secretary of Commerce (Secretary) must determine, through the regulatory process, if a species is endangered or threatened based upon any one or a combination of the following factors:  (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or education purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or human-made factors affecting its continued existence. -
        In conjunction with its proposed listing determination for west coast steelhead ESUs in 1996, NMFS prepared a report summarizing the factors leading to the decline of west coast steelhead, including the Southern California steelhead ESU.  This report was entitled: “Factors for Decline:  A supplement to the notice of determination for west coast steelhead” (NMFS, 1996).  This report concluded that all of the factors identified in section 4(a)(1) of the ESA have played a role in the decline of west coast steelhead ESUs.  The report specifically identified destruction and modification of habitat, overutilization for recreational purposes, and natural and human-made factors as being the primary causes for the decline of steelhead on the west coast.   -

        NMFS (1996) identified several specific factors that contributed to the decline of steelhead populations in the ESU as it was defined in the proposed and final listing determinations, including: habitat blockages, water diversion and extraction, urbanization, agriculture, and recreational harvest.  McEwan and Jackson, 1996; and Titus et al.,(in press) also cited extensive loss of habitat due to water development, impassible dams, and dewatering of portions of rivers as the principal reasons for the decline of steelhead in this ESU.  Habitat problems resulting from water development include inadequate flows, flow fluctuations, blockages (partial and full), and entrainment (McEwan and Jackson, 1996).  These factors for decline are discussed in more detail in NMFS (1996), McEwan and Jackson (1996), and in NMFS’ 1997 final listing determination (62 FR 43937). Although NMFS has been working to address impacts to the Southern California steelhead ESU through sections 7 and 10 of the ESA since it was listed in 1997, these same factors continue to adversely affect the small steelhead populations which persist in the watersheds ranging from the Santa Maria River southward to Malibu Creek.  Because NMFS has concluded that the Southern California steelhead ESU range should be extended to San Mateo Creek, the following discussion focuses only on those factors affecting steelhead within the geographic range extending from Malibu Creek southward to San Mateo Creek (inclusive). -
        1. The Present or Threatened Destruction, Modification, or Curtailment of Steelhead Habitat or Range-

        With the exception of the recent steelhead observations in San Mateo Creek and Topanga Creek, steelhead populations south of Malibu Creek are thought to be extirpated due to habitat destruction or blockages associated with urbanization and flood control (Titus et al., in press), although extensive monitoring has not been conducted to assess their presence.  For example, steelhead access and use of the Los Angeles River is currently precluded by the presence of flood control structures throughout much of its lower reach such as the concrete lining of the river channel and the dam at the Sepulveda Flood Control Basin.  The lower reaches of the San Gabriel River are highly urbanized with the channel modified for flood control, and the river is impounded further upstream.  The Santa Ana River is similarly modified for flood control and flows largely consist of effluent from water treatment plants except in the rainy season. Because of these limited flows and restricted releases from Prado Dam, fish habitat is limited in the lower Santa Ana River.  San Juan Creek, a much smaller stream in southern Orange County, is also channelized for flood control in its lower reach (approximately 2-3 miles (3.2-4.8 km)) and other potential barriers to upstream movement also exist. -

        San Mateo Creek was once an important production area for steelhead in San Diego County (Nehlsen et al., 1991; DFG, 2000). As summarized in Titus et al., (in press), steelhead appear to have been most abundant in the San Mateo Creek watershed prior to 1950.  After 1950, there are many fewer observations of steelhead and none after the early 1980s until juveniles were found there in 1999.  For example, Woelfel (1991) found no juvenile steelhead or rainbow trout in San Mateo Creek during surveys in 1987-88.  Similarly, Lang et al., (1998) failed to observe or capture any steelhead during surveys in 1995, 1996, and 1997.  The steelhead population in San Mateo Creek was probably reduced by natural episodes of sediment input from within the watershed.  However, increased groundwater extraction in the lower creek area since the mid-1940s is also thought to be responsible, both directly and indirectly, for the inability of steelhead to use the system as they historically did (DFG, 2000; Titus et al., in press; Lang et al., 1998).  Riparian vegetation has been lost, stream channel width has increased, and surficial flow has been reduced or eliminated during most of the year.  Accordingly, the migration corridor for immigrating adult and emigrating juvenile steelhead has become very unreliable.  Human-caused fires farther upstream have also resulted in large sediment input that has filled pools and contributed sediment to the lagoon at the river mouth, both of which are important rearing habitat for juvenile steelhead.  Despite less than optimal conditions in the lower river which are not always conducive to adult or juvenile passage, Lang et al., (1998) and DFG (2000) have identified upstream spawning and rearing habitat which can be used by steelhead when sufficient flows allow adult passage. -
        2.  Overutilization for Commercial, Recreational, Scientific, or Education Purposes
        NMFS’ review of factors affecting west coast steelhead concluded that harvest was a factor contributing to the decline of the Southern California steelhead ESU (NMFS, 1996).  According to McEwan and Jackson (1996), steelhead in most streams in Santa Barbara, Ventura, and Los Angeles Counties were until the early 1990s subject to the most liberal angling regulations anywhere in the State of California.  Most streams in southern California were regulated by the general regulations of the Southern Sport Fishing District (which includes Santa Barbara, Ventura, Los Angeles, Orange, and San Diego counties) which allowed fishing year-round with a five-fish daily bag limit.  The only streams with special protective regulations were the Ventura River and Malibu Creek.   -

        Because steelhead populations in southern California had declined to such critically low population levels by the early 1990s, the California Fish and Game Commission adopted more restrictive angling regulations for some streams (Santa Ynez River, Ventura River, Santa Clara River, and Gaviota Creek) in 1994.  These more stringent regulations included: (1) a reduction in the fishing season from year round to the Saturday before Memorial Day through December 31; (2) a zero bag limit; and (3) a requirement that anglers use artificial lures with barbless hooks.  In 1996, these same regulations were adopted by the Commission for the anadromous reaches of all coastal streams in southern California.  Within the coastal area extending south of Malibu Creek to San Mateo Creek, these same regulations are now in effect for the following streams:  Topanga Creek, San Juan Creek, and San Mateo Creek.  Given the extremely low numbers of juvenile steelhead that were found in San Mateo Creek, and the possible sporadic occurrence of small numbers of steelhead in other streams (e.g., Topanga Creek), recreational angling may continue to be a risk to steelhead in at least some portions of the redefined Southern California steelhead ESU.  -
        3.  Disease or Predation

        Introductions of non-native species and habitat modifications have resulted in increased predator populations in numerous west coast river systems, thereby increasing the level of predation experienced by steelhead and other salmonids (NMFS, 1996).  Exotic fish species that are potential predators of steelhead are known to occur in San Mateo Creek and other watersheds (San Onofre Creek, Santa Margarita River) on Camp Pendleton (Lang et al., 1998).  According to Lang et al., (1998) brown bullhead dominated the fish assemblage in San Mateo Creek, with both adults and juveniles observed in perennial pools.  Other species observed in the San Mateo Creek watershed included, mosquito fish, adult and juvenile green sunfish, bluegill and largemouth bass.  One Channel catfish, which is a known predator of steelhead, was found dead in the upper San Mateo Creek in a portion of the Cleveland National Forest (Lang et al., 1998).  Brown trout have been stocked in San Mateo Creek (last time in the mid 1980s), but they were not observed during the most recent surveys (Lang et al., 1998).   -
        Mosquito fish were introduced for mosquito abatement and are found in most Camp Pendleton waters.  This species has taken over the niche of the native three-spined stickleback which is often an important prey item for salmonids; thus it could possibly serve as a prey item for steelhead in San Mateo Creek.  Green sunfish dominated the San Mateo Creek lagoon in the late 1980s and early 1990's according to Swift (1994) and were the only fish found in perennial pools in the upper watershed and Devil Canyon in the late 1980's, suggesting that they may have displaced residual steelhead during the drought period (Woelfel, 1991).  In other California streams (i.e., Malibu Creek and Carmel River) green sunfish were found to prey on juvenile trout (Swift, 1975; Greenwood, 1988; cited in Woelfel, 1991), and in San Clemente Reservoir on the Carmel River, green sunfish outcompeted trout for benthic food (Greenwood, 1988). -

        The control of exotic fish species in the San Mateo Creek watershed, both on Camp Pendleton and in Cleveland National Forest, is considered critical to restoring steelhead to that watershed (DFG, 2000; Lang et al., 1998).  Lang et al., (1998) recommend implementation of measures to contain exotic fish species in small lakes and ponds where recreational fishing occurs, in conjunction with efforts to control in-river propagation of exotics using Rotenone, electro-shocking, seining, or other means in perennial pools during summer low flows. -
        4.  Inadequacy of Existing Regulatory Mechanisms
        Virtually all of the San Mateo Creek watershed is located on Federal land managed by the Cleveland National Forest or the Camp Pendleton Marine Corps Base.  San Mateo Creek originates in the Cleveland National Forest and flows in a southwesterly direction through Camp Pendleton to the Pacific Ocean just south of San Clemente, California.  Within the San Mateo Creek watershed, the majority of spawning and rearing habitat is upstream from Camp Pendleton within the Cleveland National Forest.  That portion of San Mateo Creek on Camp Pendleton is primarily migratory habitat for steelhead. -
        That portion of the San Mateo Creek watershed that is located on Cleveland National Forest land has not been greatly altered by human activity over the past 50 years (Woelfel, 1991).  Forest lands in the watershed have remained natural and undeveloped over this period although there are a few private property in-holdings which have had limited development.  Woelfel (1991) reviewed water use on these private in-holdings and concluded that stream flows in the watershed were not significantly altered.  According to Woelfel (1991), one of the main activities of the Cleveland National Forest has been the protection of vegetation and water resources in its various watersheds through the prevention of forest fires. In part, this effort was intended to protect and manage forest vegetation so that water resources were retained and water quality remained high. In the San Mateo Creek watershed this effort was not especially successful because of the rugged and isolated conditions. -
        The lower portion of San Mateo Creek watershed which flows through Camp Pendleton has been impacted by base activities (Woelfel, 1991).  Groundwater extraction to support base military training operations and on-base agriculture has led to stream channel dewatering or reduced channel flows, loss of riparian vegetation, and increased erosion.  Military training operations, including accidental fires caused by live ammunition use, have likely contributed to erosion problems in the watershed.  The cumulative effect of groundwater extraction, reduction or loss of riparian vegetation, stream channel morphology changes, and accelerated erosion is that steelhead migration opportunities are impacted. Based on the available information, it unlikely that existing land and water management programs on Camp Pendleton provide sufficient protection for steelhead or its habitat in the San Mateo Creek watershed. -
        5.  Other Natural or Human-Made Factors Affecting Continued Existence of Steelhead
        Natural climatic conditions have exacerbated the problems associated with degraded and altered riverine and estuarine habitats.  Persistent drought conditions have reduced already limited spawning, rearing and migration habitat.  Climatic conditions appear to have resulted in decreased ocean productivity which, during more productive periods, may help offset degraded freshwater habitat conditions (NMFS, 1996). -
        Efforts Being Made to Protect Southern California Steelhead ESU
        Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to make listing determinations solely on the basis of the best scientific and commercial data available after conducting a review of the status of the species, including factors affecting the species, and after taking into account efforts being made to protect the species.  Therefore, in making its listing determinations, NMFS first assesses the status of the species and identifies factors that have lead to the decline of the species.  NMFS then assesses conservation measures to determine if they ameliorate risks to the species.   -
        As part of its west coast steelhead status review, NMFS reviewed an array of protective efforts for west coast steelhead and other salmonids, including the Southern California steelhead ESU, ranging in scope from regional strategies to local watershed initiatives.  NMFS has summarized some of the major efforts in a document entitled “Steelhead Conservation Efforts:  A Supplement to the Notice of Determination for West Coast Steelhead under the Endangered Species Act” (NMFS, 1996c).  -

        In the coastal area extending from Malibu Creek southward to San Mateo Creek, no steelhead-specific conservation efforts are currently in place, although there have been recent assessments of habitat distribution and restoration potential in the Camp Pendleton area (Lang et al., 1998; and DFG, 2000).  Recently, however, the California voters passed a State-wide proposition which provides $800,000 for the restoration of San Mateo Creek and San Onofre Creek, both of which are located on Camp Pendleton, to support native fish species including the unarmored three-spined stickleback, arroyo chub, and steelhead.  This restoration program is expected to focus on addressing control of exotic plants, control of exotic fish species which compete with and/or prey upon steelhead and other native species, restoration of streambed pools, channels and stream banks, and the reintroduction of native plants and possibly native fish species.  A wide range of agencies and private organizations, including the Cleveland National Forest, Camp Pendleton Marine Corps Base, FWS,  DFG, Trout Unlimited, San Diego Trout, and the Coastal Conservancy, are expected to participate in development of this program.  NMFS strongly encourages this effort and intends to participate in its development and implementation.   -
        In addition to this State funding directed at San Mateo Creek restoration, the U.S. Congress appropriated $9.0 million in Fiscal Year 2000 for Pacific Coastal Salmon Recovery in California.  A Memorandum of Understanding has been signed between NMFS and the State of California that will govern the expenditure of these funds, some of which may be directed at habitat restoration and other related issues within the range of the Southern California steelhead ESU. -
        Proposed Determination
        Section 3 of the ESA defines the term “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.”  The term “threatened species” is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” In its previous status reviews for west coast salmon and steelhead, NMFS has identified a number of factors that should be considered in evaluating the level of risk faced by an ESU, including: (1) absolute numbers of fish and their spatial and temporal distribution; (2) current abundance in relation to historical abundance and current carrying capacity of the habitat; (3) trends in abundance; (4) natural and human-influenced factors that cause variability in survival and abundance; (5) possible threats to genetic integrity (e.g., from strays or outplants from hatchery programs); and (6) recent events (e.g., a drought or changes in harvest management) that have predictable short-term consequences for abundance of the ESU.  Section 4(b)(1) of the ESA requires that the listing determination be based solely on the best scientific and commercial data available, after conducting a review of the status of the species and after taking into account those efforts, if any, being made to protect such species. -

        As a result of its 1996 coast-wide status review of steelhead, NMFS concluded that the Southern California steelhead ESU constituted a “species” under the ESA (NMFS, 1996).  Based on the information available at that time, NMFS concluded that the  current range of this ESU extended from the Santa Maria River (inclusive) to, and including, Malibu Creek (61 FR 41541; 62 FR 43937).  The recent information compiled by DFG (DFG, 2000) indicates that adult steelhead, which were most likely strays from elsewhere in the Southern California steelhead ESU, successfully spawned in San Mateo Creek during 1997 and subsequently reared through at least 1998 and 1999. In addition, steelhead have recently been observed in Topanga Creek which is located just a few miles south of Malibu Creek.  Based on a consideration of this new information, including the existence of documented spawning and rearing habitat in the San Mateo Creek watershed (Lang et al., 1998; DFG, 2000), NMFS now proposes to redefine the Southern California steelhead ESU to include any populations of steelhead (or their progeny) that occur in watersheds southward of Malibu Creek to, and including, San Mateo Creek. -
        Based on the best scientific information available in 1996,  NMFS concluded that the Southern California steelhead ESU, as it was defined at that time (i.e., Santa Maria River to and including Malibu Creek), was in danger of extinction (NMFS, 1996; 61 FR 41541).  This conclusion was based on the fact that steelhead had already been extirpated from much of its historic range in southern California, the extremely low abundance of extant steelhead populations, and the continued threats to the species from widespread habitat degradation and loss, water diversions and extraction, and other factors.  As discussed previously in this document, there is no new information indicating that steelhead populations occurring in watersheds ranging from the Santa Maria River to Malibu Creek have increased in abundance since NMFS’ final listing determination in 1997.  In addition, steelhead are almost completely extirpated from coastal watersheds south of Malibu Creek, with the exception of their recent observations in San Mateo Creek and Topanga Creek, and occur in only very low abundance in those streams.  Based on a consideration of this new information regarding steelhead presence south of Malibu Creek, NMFS concludes that the redefined Southern California steelhead ESU continues to be at a high risk of extinction. -

        Based on a review of the currently available information regarding the status of steelhead populations in the proposed redefined Southern California steelhead ESU (Santa Maria River to and including San Mateo Creek), as well as a consideration of the various factors affecting this steelhead ESU, NMFS proposes that the redefined ESU continues to warrant listing as an endangered species under the ESA.  Only anadromous life forms (i.e., steelhead and their progeny) of O. mykiss within the range of this proposed redefined ESU will be part of the listed population. -

        As discussed previously in this document, the currently available information indicates that steelhead or their progeny have only been found in two watersheds, Topanga Creek and San Mateo Creek, located south of Malibu Creek.  Based on the currently available information, NMFS believes that steelhead have been extirpated from virtually all other streams and rivers between Malibu Creek and San Mateo Creek, including the Los Angeles River, San Gabriel River, Santa Ana River, and San Juan Creek, because viable habitat is extremely limited or no longer exists.  For these reasons, NMFS does not expect that steelhead will occur in these watersheds in the future absent major restoration efforts.  Nevertheless, if steelhead or their progeny are found to occur in any stream or river between Malibu Creek and San Mateo Creek, NMFS will consider those fish to be part of the listed ESU, and, therefore, protected under the ESA.  Because steelhead in this ESU may potentially stray to streams south of San Mateo Creek, NMFS will also consider steelhead or their progeny that occur south of San Mateo Creek to be part of the listed ESU unless there is evidence to indicate they are resident forms or derived from hatchery rainbow trout populations.  NMFS will inform the public of the presence of southern California steelhead south of the proposed redefined ESU’s range via a Federal Register document.  -
        Prohibitions and Protective Measures

        Section 9 of the ESA prohibits certain activities that directly or indirectly affect endangered species.  These prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction.  Section 9 prohibitions apply automatically to endangered species such as the redefined Southern California steelhead ESU.   -
        Sections 7(a)(2) and 7(a)(4) of the ESA require Federal agencies to consult with NMFS to ensure that activities they authorize, fund, or conduct are not likely to jeopardize the continued existence of a listed species or a species proposed for listing, or adversely modify critical habitat or proposed critical habitat. Federal agencies and actions that may be affected by the revision of the Southern California steelhead ESU and its critical habitat designation are the U.S. Forest Service (USFS) and their management and regulatory activities in Cleveland National Forest, the U.S. Marine Corps and its operation and management of Camp Pendleton Marine Corps Base, and the Corps of Engineers (COE) and its issuance of permits under the Clean Water Act.   -
        Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with authority to grant exceptions to the ESA's “take” prohibitions.  Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-Federal) for scientific purposes or to enhance the propagation or survival of a listed species.  NMFS has issued section 10(a)(1)(A) research/enhancement permits for listed salmonids, including steelhead in the Southern California ESU, to conduct activities such as trapping and tagging and other research and monitoring activities.   -
        Section 10(a)(1)(B) incidental take permits may be issued to non-Federal entities conducting activities which may incidentally take listed species so long as the taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.  The types of activities potentially requiring a section 10(a)(1)(B) incidental take permit include the operation and release of artificially propagated fish by state or privately operated and funded hatcheries, state regulated angling, academic research not receiving Federal authorization or funding, road building, grazing, and diverting water onto private lands. -
        NMFS Policies on Endangered and Threatened Fish and Wildlife
        On July 1, 1994, NMFS and FWS published a policy in the Federal Register (59 FR 34272) indicating that the agencies would, to the maximum extent practicable at the time a species is listed, identify those activities that will not be considered likely to result in violations of section 9, as well as activities that will be considered likely to result in violations.  NMFS believes that, based on the best available information, the following actions will not result in a violation of section 9 with regard to steelhead in the redefined Southern California ESU:  -
        1.  Possession of steelhead which are acquired lawfully by permit issued by NMFS pursuant to section 10 of the ESA, or by the terms of an incidental take statement pursuant to section 7 of the ESA.  -
        2.  Federally funded or approved projects that involve activities such as military operations, agriculture, grazing, mining, road construction, discharge of fill material, stream channelization or diversion for which section 7 consultation has been completed, and when activities are conducted in accordance with any terms and conditions provided by NMFS in an incidental take statement accompanying a biological opinion. -
        Activities that NMFS believes could potentially harm steelhead in the redefined Southern California steelhead ESU, and, therefore, may violate the section 9 take prohibitions of the ESA include, but are not limited to:  -
        1.  Land-use activities that adversely affect steelhead habitat (e.g., agriculture, water extraction, recreational activities, road construction in riparian areas and areas susceptible to mass wasting and surface erosion). -
        2.  Destruction/alteration of steelhead habitat, such as removal of woody debris or riparian shade canopy, dredging, discharge of fill material, draining, ditching, diverting, blocking, or altering stream channels or surface or ground water flow.  -
        3.  Discharges or dumping of toxic chemicals or other pollutants (e.g., sewage, oil, gasoline) into waters or riparian areas supporting steelhead.   -
        4.  Violation of discharge permits. -
        5.  Pesticide applications.  -
        6.  Collecting or handling of steelhead.  Permits to conduct these activities are available for purposes of scientific research or to enhance the propagation or survival of the species. -
        7.  Introduction of non-native species likely to prey on steelhead or displace them from their habitat.   -

        These lists are not exhaustive.  They are intended to provide some examples of the types of activities that might or might not be considered by NMFS as constituting a prohibited take of steelhead in the Southern California steelhead ESU. Questions regarding whether specific activities may constitute a violation of the section 9 take prohibitions, and general inquiries regarding prohibitions and permits, should be directed to NMFS (see ADDRESSES). -
        Critical Habitat
        Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, NMFS designate critical habitat concurrently with a determination that a species is endangered or threatened.  While NMFS has completed its initial analysis and proposes that the San Mateo Creek population of steelhead be part of the Southern California steelhead ESU, and that the range of the ESU should, therefore, be extended from Malibu Creek to San Mateo Creek, the agency has not performed the full analysis necessary for determining whether the existing critical habitat designation for this ESU should be modified to include areas south of Malibu Creek.  Prior to making any determination regarding the modification of the existing critical habitat designation, NMFS intends to complete an analysis of the additional habitat, if any, which is necessary for the conservation and recovery of this ESU.  NMFS expects that a recovery team will be established in the near future to develop recovery goals for this ESU, and intends to rely on the team’s analysis and recommendations in making any determination to modify the existing critical habitat.  In conjunction with these efforts, NMFS also intends to work with Federal land managers (Camp Pendleton Marine Corps Base and Cleveland National Forest) to review and evaluate their existing land management and habitat protection programs to determine the extent to which they protect steelhead and its habitat in the San Mateo Creek watershed.  It is NMFS intent to complete its analysis and make a determination about whether or not any habitat south of Malibu Creek should be incorporated into the existing critical habitat designation within the next year. -
        Public Comments Solicited

        NMFS has exercised its best professional judgement in developing this proposal to redefine the Southern California steelhead ESU.  To ensure that the final action resulting from this proposal will be as accurate and effective as possible, NMFS is soliciting comments and suggestions from the public, other governmental agencies, the scientific community, industry, and any other interested parties regarding the proposal.  NMFS is interested in any relevant information concerning: (1) biological or other relevant data concerning any threats to steelhead or its habitat in this redefined ESU; (2) the range, distribution, and population size of steelhead in this redefined ESU or in areas outside its southern boundary, including habitat utilization; (3) current or planned activities in the redefined ESU and their possible impact on steelhead or its habitat; and (4) efforts being made to protect steelhead or its habitat in this redefined ESU.  Written comments on the proposal should be sent to NMFS (see ADDRESSES and DATES).
        Public Hearings
        NMFS has not scheduled any public hearings on this proposal. However, Joint Commerce-Interior ESA implementing regulations state that the Secretary “shall promptly hold at least one public hearing if any person so requests within 45 days of publication of a proposed regulation to list ... or to designate or revise critical habitat.” (see 50 CFR 424.16(c)(3)). Requests for public hearings must be received by February 2, 2001.
        References

        A complete list of all cited references is available upon request (see ADDRESSES).
        Classification
        National Environmental Policy Act

        The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing.  Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).  See NOAA Administrative Order 216-6.  -
        Executive Order 12866 and Regulatory Flexibility Act
        As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of species.  Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process.  In addition this proposed rule is exempt from review under Executive Order 12866. -
        Paperwork Reduction Act
        This rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act. -
        Executive Order 13132 - Federalism
        In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual State and Federal interest, NMFS has conferred with state and local government agencies in the course of assessing the status of this ESU, and considered, among other things, state and local conservation measures.  State and local governments have expressed support for both the conservation of this ESU and for those activities which affect it.  NMFS staff have had discussions with various government agency representatives regarding the status of this ESU and have sought working relationships with them in order to promote restoration and conservation of this and other ESUs.  As the process continues, NMFS intends to continue engaging in informal and formal contacts with affected State, regional, or local entities, giving careful consideration to all written and oral comments received on the proposed action.  NMFS intends to consult, as needed, with appropriate elected officials in the promulgation of a final rule.

          List of Subjects in 50 CFR Part 224
          Administrative practices, and procedure, Endangered and threatened species, Exports, Imports, Reporting and record keeping requirements, Transportation.

          Dated: 11, 2000.
          William T. Hogarth,
          Deputy Assistant Administrator,  National Marine Fisheries Service.

          For the reasons set forth in the preamble, 50 CFR part 224 is proposed to be amended as follows:

            PART 224 -- ENDANGERED MARINE AND ANADROMOUS SPECIES

          1.  The authority citation for part 224 continues to read as follows:

            Authority:
            16 U.S.C. 1531-1543; and 16 U.S.C. 1361 et seq.

          2. In § 224.101, paragraph (a) is revised to read as follows:

            § 224.101
            Enumeration of endangered marine and anadromous species.
            (a) Marine and anadromous fish.The following table lists the common and scientific names of endangered species, the locations where they are listed, and the citations for the listings and critical habitat designations.

              Common and Scientific Names

                Species1

                Common name
                Scientific name
                Where listed
                When listed
                Critical habitat

                Shortnose sturgeon

                  Acipenser brevirosrtum

                U.S.A., northwestern Atlantic, in river systems from the Saint John River in New Brunswick, Canada, to the St. Johns River, Florida
                32 FR 4001,  Mar. 11, 1967
                NA

                Southern California steelhead

                  Oncorhynchus mykiss

                U.S.A., CA, including all naturally spawned populations of steelhead (and their progeny) in streams from the Santa Maria River, San Luis Obispo County, California (inclusive) to San Mateo Creek, San Diego County, California (inclusive)
                62 FR 43937, Aug. 18, 1997
                64 FR 5740, Feb. 5, 1999

                Upper Columbia River steelhead

                  Oncorhynchus mykiss

                U.S.A., WA, including the Wells Hatchery stock and all naturally spawned populations of steelhead (and their progeny) in streams in the Columbia River Basin upstream from the Yakima River, Washington, to the U.S.- Canada Border
                62 FR 43937, Aug. 18, 1997
                64 FR 5740, Feb. 5, 1999

                Snake River sockeye salmon

                  Oncorhynchus nerka

                U.S.A., ID, Snake River
                56 FR 58619, Nov. 20, 1991
                58 FR 68543, Dec. 28, 1993

                Upper Columbia River spring-run chinook salmon

                  Oncorhynchus tshawytscha

                U.S.A., WA, including all naturally spawned populations of chinook salmon in Columbia River tributaries upstream of the Rock Island Dam and downstream of Chief Joseph Dam in Washington (excluding the Okanogan River), the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to Chief Joseph Dam in Washington, and the Chiwawa River (spring run), Methow River (spring run), Twisp River (spring run), Chewuch River (spring run), White River (spring run), and Nason Creek (spring run) hatchery stocks (and their progeny)
                64 FR 14308, Mar. 24, 1999
                65 FR 7764, Feb. 16, 2000

                Sacramento River winter-run chinook salmon

                  Oncorhynchus tshawytscha

                U.S.A., CA, Sacramento River
                59 FR 13836, Mar. 23, 1994
                58 FR 33212, Jun. 16, 1993

                Salmon, Atlantic

                  Salmo Salar

                U.S.A., ME   Gulf of Maine Atlantic Salmon Distinct Population Segment, which includes all naturally reproducing wild populations and those river-specific hatchery populations of Atlantic salmon having historical, river-specific characteristics found north of and including tributaries of the lower Kennebec River to, but not including, the mouth of the St. Croix River at the U.S.-Canada border.  To date, the Services have determined that these populations are found in the Dennys, East Machias, Machias, Pleasant, Narraguagus, Sheepscot, and Ducktrap Rivers and in Cove Brook, Maine.

                NA

                Totoaba

                  Cynoscion macdonaldi

                Mexico, Gulf of CA
                44 FR 29480, May 21, 1979
                NA

                1Species includes taxonomic species, subspecies, distinct population segments (or DPSs, as defined in 61 FR 4722, February 7, 1996), and evolutionarily significant units (or ESUs, as defined in 56 FR 58612, November 20, 1991)

      [FR Doc. 00-32167 Filed 12-18-00; 8:45 am]
      BILLING CODE 3510-22-S