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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
CFR Citation: 50 CFR Part 17
RIN ID: RIN 1018-AT57
NOTICE: RULES
ACTION: Endangered and threatened species:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Final Rule To Designate Critical Habitat for the Santa Ana Sucker (Catostomus santaanae)
DATES: This rule becomes effective on February 26, 2004.
DOCUMENT SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Santa Ana sucker (Catostomus santaanae) pursuant to the
[[Page 8840]]
Endangered Species Act of 1973, as amended (Act). This threatened
species is now restricted to three noncontiguous populations in three
different stream systems in southern California: The lower and middle
Santa Ana River in San Bernardino, Riverside, and Orange counties; the
East, West, and North Forks of the San Gabriel River in Los Angeles
County; and lower Big Tujunga Creek in Los Angeles County (Moyle et al.
1995, Swift et al. 1993).
SUMMARY: Critical habitat designations—; Santa Ana sucker,
SUPPLEMENTAL INFORMATION
Background The Santa Ana sucker inhabits streams that are generally small and
shallow, with currents ranging from swift (in canyons) to slow (in the
bottomlands). All the streams are subject to periodic severe flooding
(Moyle 1976). Santa Ana suckers appear to be most abundant where the water is cool (less than 22
Santa Ana suckers generally live no more than 3 years (Greenfield et al. 1970). Spawning generally occurs from early April to early July. A peak in spawning activity occurs in late May and June (Greenfield et al. 1970, Moyle 1976). However, the spawning period may be variable and protracted. Recent field surveys on the East Fork of the San Gabriel River found evidence of an extended spawning period. These surveys found small juveniles (less than 30 millimeters [mm] standard length (1.2 inch [in]) in December 1998, and March of 1999 at the San Gabriel River site (Saiki 2000). These data indicate that spawning may be very protracted in this stream, and begin as early as November. Fecundity appears to be exceptionally high for a small sucker species (Moyle 1976). Total fecundity of six females varying in size from 78 mm (3.1 in) to 158 mm (6.2 in) ranged from 4,423 to 16,151 eggs, respectively (Greenfield et al. 1970). The combination of early sexual maturity, protracted spawning period, and high fecundity should allow the Santa Ana sucker to quickly repopulate streams following periodic flood events that can decimate populations (Moyle 1976).
The Santa Ana sucker appears to be native to the larger streams of
the Los Angeles Basin; the Los Angeles, San Gabriel, and Santa Ana
River drainage systems in Los Angeles, Orange, Riverside, and San
Bernardino counties (Smith 1966). Although historic records are scarce,
Santa Ana suckers presumably ranged from near the Pacific Ocean to the
uplands of the Los Angeles and San Gabriel river systems, and to at
least Pump House
The Administrative Procedure Act (APA) generally requires that an agency provide public notice of and an opportunity for public comment on all proposed rulemakings (5 U.S.C. 553). However, section 553(b)(B) recognizes an exception to those requirements when for good cause an agency finds (and incorporates the finding and a brief statement of the reasons therefore into the rule) that notice and public procedure thereon are ``impracticable, unnecessary or contrary to the public interest.'' Similarly, section 553(d) of the APA allows publication of a final rule to take effect immediately upon publication if the agency for good cause so provides in the final rule. The Service finds good cause exists with regard to this final rule designating critical habitat for the Santa Ana sucker to forgo the standard notice and comment procedure provided by the APA because compliance with that procedure would be impracticable and contrary to the public interest within the meaning of 5 U.S.C. 553(b)(B). The Service further finds good cause under 5 U.S.C. 553(d) to make this final rule effective immediately upon publication in the Federal Register. The bases for our ``good cause'' findings are summarized below.
The Service is required by court order to designate critical habitat for the Santa Ana sucker by February 21, 2004. We have determined that we do not have sufficient time or budgetary resources to promulgate this rule under the standard noticeandcomment procedures mandated by the APA at 5 U.S.C. 533 and still meet the court's deadline. On February 26, 2003, the United States District Court for the Northern District of California held that the Service had failed to designate critical habitat for the listed populations of Santa Ana sucker within the statutory timeframe and ordered the Service to complete a final critical habitat designation for the Santa Ana sucker by February 21, 2004 (California Trout v. DOI, No. 973779 (N.D.Cal.)). However, due to lack of funding, the Service was unable to begin work on the critical habitat designation in Fiscal Year (FY) 2003. Complying with numerous court orders and courtapproved settlement agreements caused the Service to exhaust essentially its entire FY 2003 budget for critical habitat designations by the end of July, well before the end of the fiscal year. Anticipating this result, the Service suspended work on a number of designations that were required by court orders or settlement agreements until additional funding became available. This included the designation of critical habitat for the Santa Ana sucker.
The Service initiated work on the proposed designation for the
Santa Ana sucker on October 1, 2003, the beginning of FY 2004, even
though we had not yet received a final appropriation for this fiscal
year. As soon as we received a final appropriation, we requested more
time from the district court to complete a proposed and final
designation. In our request we documented for the court the numerous
steps that must be completed in order to promulgate a final critical
habitat rule and time required to complete those steps and produce a
legally defensible rule. We projected that a period of 24 months
beginning on October 1, 2003, would be required to comply with
applicable statutory requirements, including the mandated public review
process. However, the court declined to grant our motion for additional
time in her January 30, 2004, ruling from the bench, thereby keeping in
effect the order that the Service complete a final critical habitat
designation by February 21, 2004. Compliance with the APArequired
noticeandpublic comment procedure in promulgating a final critical habitat
[[Page 8841]]
designation for the Santa Ana sucker is impracticable given the
Service's inability to work on the rule in FY 2003 due to inadequate
budgetary resources and the inadequate 4.5month time period available
in FY 2004 to publish a proposed rule, allow for public comment,
complete an economic analysis of the proposed designation, respond to
public comment, and finalize the critical habitat designation.
Therefore, we find good cause for and invoke the exception under
section 553(b)(B) of the APA to publish this final rule without
following the standard public notice and comment procedure.
In its 2003 order, the court also enjoined the Service from consulting under section 7(a)(2) of the Act until we publish a final rule designating critical habitat for the Santa Ana sucker. Under section 7, each Federal agency is required to consult with us to ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any listed species or result in the adverse modification of the designated critical habitat, if any, of the species. Consultation ensures that impacts to listed species are fully considered by the Federal action agency before it proceeds with the proposed action; consultation also ensures that the action does not go forward if it is likely to jeopardize the continued existence of the species. In addition, where we conclude that the proposed Federal action is not likely to jeopardize the species, section 7 requires us to prescribe reasonable and prudent measures, and specific terms and conditions to implement those measures, which the action agency, and its applicant, if any, must carry out to minimize the impacts of any take of a listed animal species likely to result from the proposed Federal action (16 U.S.C. 1536(b)(4)).
As a consequence of the injunction on consulting on any proposed Federal action that may affect the Santa Ana sucker, Federal action agencies and the Service are unable to meet our respective responsibilities pursuant to section 7(a)(2) of the Act. In the case of emergencies involving imminent risks to human health and safety (e.g., replacement of bridges threatened by floods), Federal agencies may be forced to undertake the projects absent consultation with us and thus without benefit of our determination regarding potential jeopardy and identification of reasonable and prudent alternatives to the proposed action that would avoid jeopardy. In addition, where such projects are not likely to result in jeopardy, the proscription on consultation eliminates our ability to identify reasonable and prudent measures to minimize the impacts of take on the sucker resulting from the proposed project. We are currently precluded from consulting with agencies even after the emergency has passed to evaluate the impacts of the emergency actions on the Santa Ana sucker and provide measures to the agencies to minimize the effects of any take on the species. Our current inability to complete section 7 consultations constitutes an emergency posing a significant risk to the wellbeing of Santa Ana sucker because of our inability to evaluate and minimize or eliminate threats to the species from proposed Federal actions that are also necessary to protect public health and safety.
In addition, the injunction has had the immediate effect of significantly delaying the orderly, expeditious, and timely completion of projects that are currently being planned and are needed to protect human life and safety. Examples of projects that would affect the sucker that have been delayed as a result of the Court's injunction include the replacement of the Van Buren Boulevard Bridge to meet seismic safety standards and the replacement of the River Road Bridge due to flooding.
The Van Buren Boulevard bridge replacement project in Riverside County would replace the existing bridge with a new longer span that would have no support pilings within the stream channel and increase the width of the bridge from two lanes to four lanes. The bridge is being replaced because of the need to meet updated seismic safety requirements. This bridge provides the only crossing of the Santa Ana River for a 9mile radius. In the next 40 years, there is an 80 percent chance for an earthquake to occur that can damage or destroy the existing bridge. This bridge provides for local traffic between City of Riverside and the communities of Pedley, Glen Avon, Mira Loma, and Jurupa. Average daily traffic at this Santa Ana River bridge crossing in 2001 was 54,300 vehicles. The 2005 traffic projection at this location is 57,500 average daily vehicles. An earthquake of this magnitude would eliminate an important bridge crossing of the Santa Ana River for local use and emergency vehicles. The driving distance would increase by as much as nine miles for emergency response vehicles. The Federal Highway Administration requested initiation of formal consultation on this project with the Service on November 14, 2002, to address effects of project implementation on the Santa Ana sucker and least Bell's vireo. The biological opinion was due to be issued on March 29, 2003.
The replacement of the River Road bridge is necessary because the existing bridge is at high risk of being damaged by high flows in the Santa Ana River. The River Road bridge is particularly sensitive to high flows because of its low clearance above the existing riverbed. During high flows, large amounts of sediment and debris are deposited adjacent to the bridge causing floodwaters to overtop the bridge. Under these flood conditions, the high flows will eventually push the bridge off its pilings and cause a catastrophic loss of the bridge. Riverside County estimates that if two or more 2year storm events were to occur consecutively, the bridge may be shifted off its pilings and portions of the bridge could be destroyed. In the last 10 years, the existing bridge and approach roadways were closed to traffic four times because the bridge had been shifted off its pilings as a result of floodwaters. Although a sand mining operation has been implemented as a temporary measure to provide additional freeboard for flood flows, this measure will not be sufficient to protect the River Road bridge if multiple and consecutive storms affect this watershed. Therefore, the replacement of the existing River Road bridge with a new bridge that provides a greater clearance above the existing riverbed is needed. Replacement of the River Road bridge had been anticipated to be completed in 2006 and requires funding from the Federal Highway Administration. Because replacement of the bridge ``may affect'' the Santa Ana sucker, a section 7 consultation with Federal Highway Administration will be required. In addition to providing traffic circulation to residents, the existing River Road bridge is the only emergency vehicle access route across the Santa Ana River within a 7mile radius for the cities of Norco and Corona and unincorporated Riverside County. If the River Road bridge is damaged by storms and cannot be used, then driving distance for emergency response vehicles will be increased by at least seven miles.
As described by the above examples, the injunction has resulted in
delays for projects that are needed to protect human life and safety.
The injunction and ensuing delays may very well be the root cause of
future emergencies that involve imminent risks to human health and
safety because the Federal action agency was unable to complete their
projects in an orderly, expeditious, and timely manner. For example, the delay
[[Page 8842]]
in completing the bridge replacement projects significantly increases
the risk of catastrophic losses of these bridges from seismic and
flooding events and significant delays in providing emergency response services.
As is the nature of rivers and weather, flood events can happen swiftly and unpredictably with dire consequences to human health and safety and loss of property. Structures and property along the Santa Ana River are at risk from emergency flood events. Apart from the specific projects identified above, other emergency conditions along the Santa Ana River may be avoided by the orderly, expeditious, and timely completion of the draft Programmatic Consultation on the Santa Ana Sucker Conservation Program and Associated Maintenance and Operation Activities of Existing Water Facilities on the Santa Ana River (SAS Programmatic Consultation). For example, Riverside County Flood Control and Water Conservation District (RCFCD) could receive authorization from the U.S. Army Corps of Engineers to maintain the structural integrity of levees and groins that protect industrial, commercial, and residential property along the Santa Ana River as a result of the SAS Programmatic Consultation. The RCFCD has predicted that the loss of the levee could result in the introduction of pollutants from residential, commercial, and industrial properties into the Santa Ana River as well as the loss of up to 3,000 acres of developed floodplain. The introduction of pollutants would significantly degrade the water quality and habitat of the Santa Ana River, as well as result in mortality of suckers. In addition, the loss of the levees could result in a loss of life and property. On September 23, 2003, the RCFCD notified the Service and the Corps that a portion of the northwestern levee along the Santa Ana River was being undermined by the lowflow channel. The RCFCD proposed to divert the lowflow channel away from the levee to prevent the destruction of the levee. The Corps declared the proposed diversion an emergency action, and requested that the Service provide them with avoidance and minimization measures for the Santa Ana sucker. Because of the injunction we were unable to complete an emergency section 7 consultation with the Corps, but we did recommend measures to avoid and minimize impacts to the sucker. The Corps issued an emergency Regional General Permit No. 63 permit that incorporated our recommended measures and RCFCD completed the diversion and repair of the levees. The diversion of the lowflow channel away from the levees was an action that was anticipated to be addressed in the SAS Programmatic Consultation. If this action had been addressed as part of a completed consultation, the need for an emergency permit would have been eliminated and the risk to human life and property would have been significantly reduced.
The injunction against section 7 consultations is also preventing the Service from completing consultations on major habitat restoration projects in the Santa Ana River designed to improve the status of the sucker and its habitat; this also constitutes an emergency posing a significant risk to the wellbeing of the Santa Ana sucker. The SAS Conservation Program is a multiagency partnership of Federal and local government agencies and the private sector that encourages a riverwide approach to conservation of the Santa Ana sucker within the Santa Ana River and its tributaries; increases the knowledge base to implement recovery strategies for the sucker in the Santa Ana River; ensures that each participating agency minimizes, to the extent possible, effects of routine activities on the sucker; and develops habitat restoration and enhancement techniques for degraded habitat. The SAS Conservation Program has already benefited the Santa Ana sucker by improving our recommended avoidance and minimization measures for ongoing activities. For example, research funded by the SAS Conservation Program has resulted in a detailed description of spawning and nursery habitat. In addition, appropriate habitat restoration techniques are being developed that will be essential to maintain the sucker population in the Santa Ana River.
Finally, the current injunction has prevented the Service from completing internal consultation on the Western Riverside Multiple Species Habitat Conservation Plan (MSHCP) because the Santa Ana sucker is included as a ``covered species adequately conserved'' in the proposed plan and will otherwise be affected by the plan. The Western Riverside MSHCP will conserve over 94 percent of the modeled habitat within western Riverside County and all of the known and potential refugia and spawning areas within the MSHCP conservation area. In addition, the Western Riverside MSHCP will assess and implement measures to improve water quality, remove nonnative competitor and predator species, and eliminate barriers to fish passage within the Santa Ana River. The removal of nonnative predatory species should improve and secure the survival of the sucker in the Santa Ana River. The removal of barriers to fish passage should return the population to a contiguous breeding population. In addition, the maintenance and improvement of water quality standards are essential to a species that inhabits the highly urbanized Santa Ana River watershed, and depends on tertiarytreated wastewater for much of its spawning habitat.
Until a final critical habitat rule is published for the Santa Ana sucker, the injunction will remain in place and prevent completion of section 7 consultations on important projects necessary to protect public health and safety while also protecting the sucker, or on projects specifically designed to benefit the sucker. We therefore find that good cause exists under 5 U.S.C. 553(b)(B) to exempt this final rule from APA notice and comment procedures. In the unusual circumstances presented here, compliance with those procedures would be contrary to the public interest.
We also find that good cause exists under 5 U.S.C. 553(d) to make this final rule effective immediately for the reasons stated above with regard to section 553(b)(B). The immediate designation of critical habitat is necessary for the following reasons: (1) To comply with the district court's order; (2) to conduct section 7 consultations and prepare written concurrences regarding projects funded, permitted, or carried out by Federal agencies that may affect the Santa Ana sucker or its essential habitat; (3) to ensure those activities will not jeopardize the continued existence of the species; and (4) to ensure Federal agencies can comply with the requirements of the Act, including section 9.
Previous Federal Action
Please see the final listing rule for the Santa Ana sucker for a
description of Federal actions through April 2000 (65 FR 19686; April
12, 2000). On July 9, 2001, California Trout, Inc., the California
Nevada Chapter of the American Fisheries Society, the Center for
Biological Diversity, and the Friends of the River (plaintiffs) filed a
60day notice of intent to sue over our failure to designate critical
habitat for the Santa Ana sucker. The plaintiffs filed a second amended
complaint for declaratory judgment and injunctive relief on March 19,
2002, with the U.S. District Court for the Northern District of
California. On February 26, 2003, the district court ordered the
Service to designate a final critical habitat for the Santa Ana sucker
by no later than February 21, 2004, and enjoined the Service from issuing any
[[Page 8843]]
section 7 concurrence or biological opinion on a proposed Federal
action that ``may affect'' the Santa Ana sucker until such time as the
final critical habitat for the Santa Ana sucker is designated. Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as 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 essential to the conservation of the species and which may require special management considerations or protection and those specific areas outside the geographic area occupied by the species at the time it is listed upon a determination by the Service that such areas are essential for the conservation of the species. Under section 4(a)(3) and (b)(2) of the Act we are required to designate critical habitat to the maximum extent prudent and determinable on the basis of the best scientific data available and after taking into account the economic impact of specifying any particular area as critical habitat.
In the final listing rule (65 FR 19686), we indicated that designation of critical habitat was not determinable because the ``knowledge and understanding of the biological needs and environmental limitations of the Santa Ana sucker and the primary constituent elements of its habitat are insufficient to determine critical habitat for the fish.'' We also indicated that the Orange County Water District, County of Orange, Los Angeles County Department of Public Works, National Fish and Wildlife Foundation, and the Biological Resources Division of the U.S. Geological Survey were funding and implementing research on the environmental limitations of the Santa Ana sucker. This research has been completed and a final report has been published (Saiki 2000). Based on the available information on the biology of the Santa Ana sucker, we now believe that critical habitat for the Santa Ana sucker is determinable. We also find that there is no basis for a not prudent finding because we do not believe that the designation of critical habitat will result in an increase in the degree of threat from activities prohibited under section 9 of the Act. We are not aware of any apparent habitat destruction that has occurred since the listing of the Santa Ana sucker. Therefore, we find that designation of critical habitat for the Santa Ana sucker is prudent and determinable.
Methods
We mapped critical habitat based on the known distribution and habitat requirements of the Santa Ana sucker using published literature and available reports. We delineated essential habitat on aerial and satellite imagery on a GIS system along each stream reach. Essential habitat is the stream and the associated riparian habitat.
Primary Constituent Elements
In accordance with sections 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas are critical habitat, we are required to consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These include, but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.
The primary constituent elements for the Santa Ana sucker were determined by reviewing studies that examined the habitat requirements and ecology of the sucker in the Santa Ana River (Allen 2003; Baskin and Haglund 2001; Haglund et al. 2003; Saiki 2000; Swift 2001), the San Gabriel River (Saiki 2000; Haglund and Baskin 2002), and the Santa Clara River (Greenfield et al. 1970). Primary constituent elements essential for the conservation of the sucker are found in an ecosystem that includes a functioning hydrological system that experiences peaks and ebbs in water volume and maintains a sand, gravel, and cobble substrate in a mosaic of sandy stream margins, deep water pools, riffles (i.e., welloxygenated, shallow water over rough substrate), and runs (i.e., shallow water over generally smooth substrate); sufficient water volume and quality; and complex, native floral and faunal associations.
The Santa Ana sucker evolved in a typical southern Californian hydrological regime that included periodic flooding (Greenfield et al. 1970). Life history characteristics, such as prolonged breeding periods and short hatching times, have allowed the sucker to survive in dynamic hydrological systems. Periodic floods may also remove exotic predators and competitors (Swift 2001). Therefore, a functioning hydrological system should experience peaks and ebbs in the water volume throughout the year. The hydrological regime should also maintain a mosaic of sand, gravel, cobble, and boulder substrates in a series of sandy stream margins, riffles, runs, and pools. Adult suckers spawn in gravel beds while larvae and juveniles are generally associated with shallow, sandy margins during their development (Haglund et al. 2003). Gravel and cobble substrate, often associated with riffles, provide habitat for algae and macroinvertebrates, the primary prey of adult suckers. Pools provide food for adult suckers and refuge from warm water (Allen 2003).
Sufficient water volume, described in velocity and depth, is an important element of habitat essential for the conservation of the Santa Ana sucker. Water volume may vary between seasons, but enough water should be present during the spawning season (March 1June 30) to support reproduction and larval development. For the remainder of the year, water volume must be sufficient to support prey of the sucker and the development and growth of the sucker. In the San Gabriel River, Haglund and Baskin (2002) found that adult and juvenile suckers were present in bottom velocities between 0.17 and 0.68 feet per second, while midcolumn velocities reached 1.95 feet per second. Haglund et al. (2003) reported spawning in bottom velocities of 0.65 and 0.77 feet per second.
Depth is also an important descriptor of water volume. Saiki (2000) showed that suckers were fairly equally distributed among depths of 1 to 39 cm in the Santa Ana River and among depths of 1 to 69 cm in the San Gabriel River. In the Santa Ana River, Swift (2001) reported detecting suckers in depths as great as 150 cm. Suckers were present in pools as deep as 200 to 300 cm (Brandt Allen, University of California at Davis, pers. comm. 2004). Suckers likely prefer various water depths depending on their life history stage and activity. Larval and early juvenile suckers prefer shallow margins of 5 to 10 cm in depth (Haglund et al. 2003) while adult suckers prefer deep pools of 40 cm or greater (Haglund and Baskin 2002). Adult suckers prefer deep pools for feeding and refuge, riffles of varying depths for spawning, and riffles and runs of varying depths for movement between pools.
Water quality must support sucker reproduction, diet, and
development. Saiki (2000) reported sucker abundance was negatively
correlated with turbidity. Saiki (2000) found that suckers were [[Page 8844]]
more abundant at a site in the San Gabriel River, where turbidity
averaged 5.5 Nephelometric turbidity units (NTUs) and ranged from 0.1
to 165.0 NTUs than at a site in the Santa Ana River, where turbidity
averaged 21.7 NTUs and ranged from 0.6 to 405.0 NTUs. Suckers were not
detected at a different site in the Santa Ana River, where turbidity
averaged 57.4 NTUs and ranged from 1.9 to 214.0 NTUs (Saiki 2000).
However, in 2000, Baskin and Haglund (2001) captured 10 suckers
immediately upstream of this site in water that was between 85 and 112
NTUs. Therefore, a high turbidity level does not necessarily eliminate
suckers from using habitat. Saiki (2000) determined that suckers likely
avoid continuously turbid conditions but could survive in seasonally
turbid conditions. In addition to turbidity, temperature appears to be
a limiting factor in sucker distribution. Suckers were found in waters
between 15 and 28
Suitable sucker habitat must contain algae, aquatic emergent vegetation, macroinvertebrates, and riparian vegetation. Suckers feed by scraping algae, insects, and detritus from gravel and cobble substrate (Greenfield et al. 1970; Saiki 2000). In addition, riparian vegetation and emergent aquatic vegetation moderate stream temperature (Allen 2003), and provide additional sources of detritus and insects (Diana 1995). Riparian and aquatic emergent vegetation can also provide refuge from predators. Therefore, complex native floral and faunal associations are required for sucker survival.
The primary constituent elements for the sucker are the following:
(1) A functioning hydrological system that experiences peaks and ebbs in the water volume throughout the year;
(2) A mosaic of sand, gravel, cobble, and boulder substrates in a
series of riffles, runs, pools and shallow sandy stream margins;
(3) Water depths greater than 3 cm and water bottom velocities greater than 0.03 meters per second;
(4) Nonturbid conditions or only seasonally turbid conditions;
(5) Water temperatures less than 30
Critical Habitat Designation
The designated critical habitat encompasses Santa Ana sucker
habitat throughout the range of the listed species in the United States
(Los Angeles and San Bernardino Counties, California). Essential
habitat for the Santa Ana sucker in San Bernardino, Riverside County
and Orange County has been excluded under section 4(b)(2) of the Act.
Areas designated as critical habitat are under Federal and private
ownership. The approximate area of designated critical habitat by county and land ownership is shown in Table 1.
Table 1.Approximate Designated Critical Habitat Area (ac (ha)) by County and Land Ownership
[Estimates reflect the total area within critical habitat unit boundaries.]
County Federal* Local/State Private Total
Los Angeles.................... 6,483 ac.......... 0 ac.............. 2,937 ac......... 9,420 ac
(2,624 ha)........ .................. (1,189 ha)....... (3,812 ha)
San Bernardino................. 3,582 ac.......... 0 ac.............. 8,127 ac......... 11,709 ac
(1,450 ha)........ .................. (3,289 ha)....... (4,738 ha)
Total...................... 10,065 ac......... 0 ac.............. 11,064 ac........ 21,129 ac (4,074 ha)........ .................. (4,478 ha)....... (8,551 ha) \*\ Federal lands include National Forest lands.
We have designated three critical habitat units based on the geographical location of the three existing, listed populations of Santa Ana sucker. Major tributaries that are important for their role in contributing water, sediment, and improved water quality (components of the primary constituent elements) for the species are included. Each of these few remaining disjunct populations is essential to maintain genetic diversity, decrease the likelihood of the species becoming extinct due to small numbers, and decrease the likelihood of species extinction due to stochastic events (e.g., floods) (Lande 1988, Saccheri et al. 1998). The fragmented and disjunct distribution of the species prevents any possibility that an extirpated population would recover. The areas being designated are either within the geographical area occupied by one of the three populations of Santa Ana sucker, contain those physical and biological features essential for the conservation of that population and may require special management considerations or protection, or are outside of the geographic area occupied by the species but are nevertheless essential for the conservation of the sucker. Descriptions of each unit and the reasons for designating them as critical habitat are presented below. Map Unit 1: Santa Ana River Critical Habitat Unit (Unit 1A, Northern Prado Basin and Unit 1B, Santa Ana Wash), San Bernardino County, California (11,709 ac (4,738 ha))
The Santa Ana River Unit consists of Unit 1A, Northern Prado Basin and Unit 1B, Santa Ana Wash and the essential habitat along portions of the mainstem of the Santa Ana River and the following tributaries: City Creek, Mill Creek, Chino Creek, and Cucamonga Creek. The occupied essential habitat adjacent to Unit 1A (Northern Prado Basin) and the occupied essential habitat downstream from Unit 1B (Santa Ana Wash) has been excluded under section 4(b)(2). The Santa Ana River supports one of three listed populations of the Santa Ana sucker. Approximately 60 percent of the total remaining range of the listed Santa Ana sucker is in the Santa Ana River (65 FR 19686).
Our designation excludes essential occupied habitat along portions of the Santa Ana River that are within the draft Western Riverside Multiple Species Habitat Conservation Plan (Riverside County) or the SAS Conservation Program (Orange, Riverside, and San Bernardino counties). The bases for those exclusions are summarized below under ``Section 4(b)(2) Exclusions.''
We are designating Northern Prado Basin (Unit 1A) and Santa Ana
Wash (Unit 1B) because these essential habitat areas are not covered by
the draft Western Riverside County Multiple Species Habitat Conservation Plan or
[[Page 8845]]
the SAS Conservation Program. While Units 1A and 1B are not known to be
occupied, they are essential for the conservation of the Santa Ana
sucker because they provide and transport sediment necessary to
maintain the preferred substrates utilized by this fish (Dr. Thomas
Haglund, pers. comm. 2004; Dr. Jonathan Baskin, Professor Emeritus,
California State Polytechnic University, Pomona, pers. comm. 2004; NOAA
2003); convey stream flows and flood waters necessary to maintain
habitat conditions for the Santa Ana sucker; and support riparian
habitats that protect water quality in the downstream portions of the
Santa Ana River occupied by the sucker. Moreover, the Northern Prado
Basin Unit is contiguous with occupied habitat and may support the
Santa Ana sucker. City Creek, a tributary of the Santa Ana River, was
documented as containing Santa Ana suckers as recently as 1982, but has
not been recently surveyed. Protection of these unoccupied areas is
essential to provide the downstream habitat conditions necessary to
maintain the Santa Ana River population of the sucker (Dr. Thomas
Haglund, pers. comm. 2004; Dr. Jonathan Baskin, Professor Emeritus,
California State Polytechnic University, Pomona, pers. comm. 2004).
Unit 1B is essential because it provides the source for preferred spawning and feeding substrate of the Santa Ana sucker. Although portions of Unit 1B (Santa Ana Wash) are generally dry during the summer, this portion of the river has a higher gradient and a greater percentage of gravel and cobble substrate than the occupied areas that are downstream (Dr. Jonathan Baskin, Professor Emeritus, California State Polytechnic University, Pomona, pers. comm. 2004). Suckers spawn over gravel substrates where their eggs can adhere to gravel before hatching into larvae. Winter flows from upstream areas annually replenish this substrate and clean sand from it (Dr. Jonathan Baskin, Professor Emeritus, California State Polytechnic University, Pomona, pers. comm. 2004; Dr. Thomas Haglund, pers. comm. 2004; NOAA 2003). In addition, suckers feed by scraping algae, insects, and detritus from gravel and cobble. Therefore, the upstream source of spawning and feeding substrates (gravel and cobble) are essential to the reproductive ability and development of the sucker in the downstream occupied reaches (Dr. Jonathan Baskin, Professor Emeritus, California State Polytechnic University, Pomona, pers. comm. 2004; Dr. Thomas Haglund, pers. comm. 2004).
Unit 1A and Unit 1B are essential to the conservation of the sucker because they maintain a relatively natural hydrograph. The Santa Ana sucker evolved in the naturally dynamic hydrological systems of southern California. Therefore, as a larger intact river system has greater potential to provide a more natural hydrograph, Unit 1A and Unit 1B are essential to maintain the natural hydrograph of the Santa Ana River and ensure the continued existence of the sucker in the Santa Ana River (Dr. Thomas Haglund, pers. comm. 2004). The importance of a natural hydrograph for native fishes has been demonstrated for many systems (Moyle and Light 1996). For example, nonnative fishes can more easily invade systems where the natural hydrograph has been disrupted by dams and reservoirs and these nonnative fishes can contribute to the decline of native fishes through predation and competition (Moyle et al. 1986).
Unit 1A and Unit 1B are also essential because they maintain
habitat for the southernmost extent of the existing distribution of the
Santa Ana sucker. Consequently, these units enhance the longterm
sustainability of the sucker by maintaining its genetic adaptive
potential and a welldistributed geographical range to buffer the
sucker's particular vulnerability to environmental fluctuations and catastrophes because of its limited number of populations.
Map Unit 2: San Gabriel River Critical Habitat Unit, Los Angeles County, California (5,765 ac (2,333 ha))
The San Gabriel River Unit consists of the West, North, and East Forks of the San Gabriel River and the following tributaries: Cattle Canyon Creek, Bear Creek, and Big Mermaids Canyon Creek. The San Gabriel River portion of the unit extends from the Cogswell Dam on the West Fork to the BridgeofNo Return on the East Fork, and portions of the North Fork. Santa Ana sucker occupies the West, North, and East Forks of the San Gabriel River. Suckers occupy the West Fork from the Cogswell Dam to the San Gabriel Reservoir. The North Fork and East Fork are occupied by suckers upstream from the San Gabriel Reservoir. Suckers also occupy the following tributaries: Cattle Canyon Creek, Bear Creek, and Big Mermaids Canyon Creek.
Approximately 15 percent of the total remaining range of the listed Santa Ana sucker is in the San Gabriel River (65 FR 19686). Approximately 15 percent of its distribution in the San Gabriel River Basin occurs on private lands, and the remaining 85 percent occurs in the Angeles National Forest (65 FR 19686). This river has the least developed watershed of the three critical habitat units. Data gathered during sampling indicated that the San Gabriel River may contain the largest population of Santa Ana suckers (R. Ally, in litt. 1996; Mike Gusiti, CDFG, in litt. 1996; M. Wickman, in litt., 1996; Juan Hernandez, CDFG, in litt. 1997; M. Saiki, pers. comm. 1999).
The San Gabriel River Unit is essential to the conservation of the
sucker because the San Gabriel River drainage system supports one of
only three extant populations of this listed species which has a highly
fragmented and limited distribution. In addition, the San Gabriel River
Unit provides the best remaining habitat capable of sustaining the
Santa Ana sucker. Moyle and Yoshiyama (1992) consider the population of
suckers in the San Gabriel River drainage to be the only viable
population of the Santa Ana sucker within the species' native range (65
FR 19686). This population is found in the relatively undisturbed
watershed of the Angeles National Forest, unlike the population within
the Santa Ana River which is within a highly urbanized watershed that
receives urban and agricultural runoff and other environmental
contaminants. Thus, this unit supports a population that occurs within
a relatively intact watershed that provides good water quality and
thereby, ensures the conservation of the only extant population of
listed suckers that will likely avoid the potential for chronic
exposure to water quality degraded by urban runoff or tertiarytreated wastewater discharges.
Map Unit 3: Big Tujunga Creek Critical Habitat Unit, Los Angeles County, California (3,655 ac (1,479 ha))
The Big Tujunga Creek Unit consists of the stretch of Big Tujunga Creek between the Big Tujunga Dam and Hansen Dam and the following tributaries: Stone Canyon Creek, Delta Canyon Creek, Gold Canyon Creek, and Little Tujunga Creek. The Santa Ana sucker occupies the Big Tujunga Creek between Big Tujunga Dam and Hansen Dam.
Approximately 25 percent of the total remaining range of the Santa Ana sucker is within the Big Tujunga Creek (65 FR 19686). In the Big Tujunga Creek, approximately 60 percent of the current range of the Santa Ana sucker occurs on private lands. The remaining 40 percent of the range occurs on Angeles National Forest lands managed by the U.S. Forest Service.
The Big Tujunga Creek Unit is essential to the conservation of the sucker because this stream segment
[[Page 8846]]
supports one of only three extant populations of this listed species
which has a highly fragmented and limited distribution. In addition,
the upstream portion of this population is largely contained within the
Angeles National Forest and therefore is not exposed to the effects of
urban runoff and tertiary treated wastewater discharge. This unit is
also essential because it maintains habitat for the northernmost extent
of the existing distribution of the Santa Ana sucker. Consequently, the
unit enhances the longterm sustainability of the sucker by maintaining
its genetic adaptive potential and a welldistributed geographical
range to buffer the sucker's particular vulnerability to environmental fluctuations and catastrophes.
The tributaries to the Big Tujunga Creek that are within the unit (Stone Canyon Creek, Delta Canyon Creek, Gold Canyon Creek, and Little Tujunga Creek) are not known to be occupied, but are essential to the conservation of the sucker because they provide and transport sediment necessary to maintain the preferred substrates utilized by this fish; convey stream flows and flood waters necessary to maintain habitat conditions for the Santa Ana sucker; and support riparian habitats that protect water quality in the occupied portions of the Big Tujunga Creek. Similar to the Santa Ana River, these tributaries are essential to the Big Tujunga Creek sucker population because it they provide renewal of spawning and feeding substrates and peaks and ebbs in water volumes. These tributaries are particularly essential to the conservation of the sucker since the Big Tujunga Dam has reduced the transfer of sediment downstream and altered the natural flow in the upper Big Tujunga Creek. The sucker has been able to maintain its population in the Big Tujunga Creek despite the fragmented habitat and presence of nonnative species. Most likely, the sucker population has survived because of the presence of the relatively undisturbed condition of the tributaries to Big Tujunga Creek.
Exclusions Under Section 4(b)(2)
Section 4(b)(2) of the Act allows the Secretary to exclude any area
from critical habitat if she determines the benefits of such exclusion
outweigh the benefits of specifying such area as part of critical
habitat, unless, based on the best scientific and commercial data
available, she determines that failure to designate the area as
critical habitat will result in the extinction of the species. We have
determined that the benefits of excluding essential habitat within the
boundaries of the Western Riverside MSHCP and essential habitat within
the area covered by SAS Conservation Program outweigh the benefits of
including these areas as critical habitat. Exclusion of these areas will not result in the extinction of the sucker.
Exclusion of Critical Habitat Within the Draft Western Riverside
Multiple Species Habitat Conservation Plan and the SAS Conservation Program
Draft Western Riverside Multiple Species Habitat Conservation Plan
The Western Riverside MSHCP has been in development for several years. Participants in the Western Riverside MSHCP include 14 cities; the County of Riverside (including the Riverside County Flood Control and Water Conservation District, Riverside County Transportation Commission, Riverside County Parks and Open Space District, and Riverside County Waste Department); the California Department of Parks and Recreation; and the California Department of Transportation. The Western Riverside MSHCP is also being proposed as a subregional plan under the State's Natural Community Conservation Program (NCCP) and is being developed in cooperation with the California Department of Fish and Game. Within the 1.26 millionacre (510,000 ha) planning area of the Western Riverside MSHCP, approximately 153,000 ac (62,000 ha) of diverse habitats are proposed for conservation. The proposed conservation of 153,000 ac (62,000 ha) will complement other, existing natural and open space areas that are already conserved through other means (e.g., State Parks, Forest Service, and county park lands).
The County of Riverside and the participating jurisdictions have signaled their sustained support for the Western Riverside MSHCP as evidenced by the November 5, 2002, passage of a local bond measure to fund the acquisition of land in support of the MSHCP. On November 14, 2002, a notice of availability of a draft environmental impact report (EIS/EIR) and receipt of and application for an incidental take permit was accepted and published in the Federal Register. We accepted public comment on these documents until January 14, 2003. Subsequently, on June 17, 2003, the County of Riverside Board of Supervisors voted unanimously to support the completion of the Western Riverside MSHCP.
The Western Riverside MSHCP incorporates conservation actions
within the planning area, such as implementing a nonnative species
removal program, maintaining or improving water quality standards, and
removing or modifying barriers to fish passage within the Santa Ana
River to address the longterm conservation of the Santa Ana sucker.
Although the Western Riverside MSHCP is not yet approved by the
Service, significant progress has been achieved in the development of
this HCP, including the preparation of the EIS/EIR, the solicitation of
public review and comment, and the initiation of a consultation with us
on the issuance of incidental take permits for those species identified for coverage in the draft plan.
Santa Ana Sucker Conservation Program and Associated Maintenance and
Operation Activities of Existing Water Facilities on the Santa Ana River
The Santa Ana Sucker (SAS) Conservation Program is a multiagency partnership of Federal, and local government agencies and the private sector that encourages a riverwide approach to conservation of the Santa Ana sucker within the Santa Ana River and its tributaries. This partnership also increases the knowledge base to implement recovery strategies for the sucker in the Santa Ana River; ensures that each participating agency minimizes, to the extent possible, effects from routine activities to the sucker; and develops restoration techniques for degraded habitat. Partners in the SAS Conservation Program include the Santa Ana Watershed Project Authority, the Army Corps of Engineers (Corps), the Fish and Wildlife Service, and the following participating agencies: Orange County Water District, Orange County Resources and Development Department, Riverside County Flood Control and Water Conservation District, Riverside County Transportation Department, City of Riverside Regional Water Quality Control Plant, San Bernardino County Flood Control District, and the City of San Bernardino Municipal Water Department Rapid Infiltration and Extraction Facility.
The partnership was initially formed in the spring of 1999, when an
informal group of concerned local, regional, State, and Federal
agencies formed the AdHoc Santa Ana Sucker Discussion Team (Discussion
Team) to assist in reconciling economic activities with the
conservation of the sucker and to identify and implement conservation
measures that would contribute to the survival and recovery of the
sucker, primarily within the Santa Ana River watershed. Research
priorities and funding sources were identified, and a threephase, coordinated effort was
[[Page 8847]]
initiated and completed during 1999 and 2000. These initial scientific
studies concentrated on physiochemical variables, migration patterns,
predatory fish relationships, and tributary analysis. As an outgrowth
of these studies, the Discussion Team proposed the SAS Conservation Program, for an initial term of 5 years.
The purpose of the draft Programmatic Consultation on the SAS Conservation Program is to promote the conservation (i.e., survival and recovery) of the sucker, while providing the necessary authorization, pursuant to the ESA, to allow for the incidental take of a limited number of suckers that is anticipated to occur when the participating agencies implement their covered activities. Covered activities include operation, maintenance, repair, and reconstruction of (e.g., rebuilding existing levees for water conservation, constructed wetlands, and flood control) existing projects and facilities and the continuation of existing programs for flood control, water conservation, water treatment and discharge, protection of transportation routes, and wildlife conservation. Impact minimization measures for the Santa Ana sucker are integral to the SAS Conservation Program and are identified for each of the agencies' covered activities.
The SAS Conservation Program has funded research efforts to define habitat affinities for various life history stages of the sucker, investigate reproductive patterns of the sucker, develop a population trend database, examine aspects of sucker migration in the Santa Ana River, and examine effects on the sucker of temporary shutdowns of tertiarytreated wastewater discharge water to the Santa Ana River. Planned research projects of the SAS Conservation Program in 2004 include the development of habitat restoration methods, characterize the movement and diet of various life history stages of suckers, and investigate the effects of nonnative adult fish on larval and juvenile suckers. Again, funding for all of these research efforts will be provided by the participating agencies.
We are excluding from critical habitat designation areas along the Santa Ana River because they are either within the planning area boundary for the draft Western Riverside MSHCP or the SAS Conservation Program. Our justification for excluding these areas is outlined below. (1) Benefits of Inclusion
The benefits of designating critical habitat on lands within the boundaries of HCPs that cover the species for which critical habitat is being designated are small. HCPs generally include management measures and protections designed to protect, restore, monitor, manage, and enhance the habitat to benefit the conservation of the species. The draft Western Riverside MSHCP seeks to accomplish these goals for the Santa Ana sucker through the implementation of specific conservation measures. The principal benefit of designating critical habitat is that federally authorized or funded activities that may affect a species' critical habitat would require consultation with us under section 7 of the Act. Under section 7, proposed actions that would adversely modify or destroy designated critical habitat cannot go forward, unless they are altered to eliminate the adverse modification or destruction of critical habitat.
An important objective of the Western Riverside MSHCP is to implement measures, including monitoring and management, necessary to conserve important habitat for the Santa Ana sucker within the plan's boundaries. Thus, the purposes of the Western Riverside MSHCP are consistent with the purpose served by undergoing consultation under section 7 which is to ensure that critical habitat of the sucker is not adversely modified by a proposed Federal action. Because issuance of an incidental take permit (ITP) under section 10 is a Federal action, prior to approving the Western Riverside MSHCP we must complete an internal section 7 consultation for every species, including the Santa Ana sucker, proposed to be covered under the proposed plan and permit. The consultation will require us to analyze the impacts of the proposed ITP and HCP on the Santa Ana sucker and its essential habitat within the plan boundaries, whether or not that habitat has been officially designated as critical habitat. Therefore, including that portion of the Santa Ana River basin that is within the boundaries of the proposed Western Riverside MSHCP as critical habitat would provide little benefit to the Santa Ana sucker because the potential impacts to the species' essential habitat within the MSHCP area are already addressed under the plan and will be analyzed in our internal section 7 consultation on the proposed ITP.
The SAS Conservation Program includes measures to restore, monitor, and enhance habitat for the Santa Ana sucker in the Santa Ana River. Similar to the Western Riverside MSHCP, the SAS Conservation Program is specifically designed to benefit the sucker and its essential habitat within the Santa Ana River. The SAS Conservation Program is a comprehensive conservation program for the sucker that includes measures to minimize the impacts of routine water management activities on the sucker and restore degraded river habitat to improve the species' prospects for survival and recovery. Because the SAS Conservation Program is specifically designed to benefit the sucker and its essential habitat within the Santa Ana River habitat and the Programmatic Consultation on the SAS Conservation Program will analyze the effects of the SAS Conservation Program on the sucker and its habitat, the designation of critical habitat within the boundaries of the SAS Conservation Program would provide little or no additional benefits to this species.
(2) Benefits of Exclusion
Excluding from critical habitat lands within the Western Riverside MSHCP or within the area covered by the SAS Conservation Program will provide several benefits. Exclusion of the lands from the final designation will allow us to continue working with the participants in a spirit of cooperation and partnership. In the past, HCP applicants and participants in voluntary conservation programs have generally viewed the designation of critical habitat as having a potential negative regulatory effect that discourages voluntary, cooperative and proactive efforts to conserve listed species and their habitats by non Federal parties. They generally view designation of critical habitat as an indication by the Federal government that their proactive actions to protect the species and its habitat are inadequate. Excluding these areas from the perceived negative consequences of critical habitat, will likely encourage other jurisdictions, private landowners, and other entities to work cooperatively with us to develop HCPs and conservation plans, which will provide the basis for future opportunities to conserve species and their essential habitat. (3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We have reviewed and evaluated the nearly finished draft Western Riverside MSHCP and SAS Conservation Program and find that the benefits of exclusion outweigh the benefits of designating the areas covered by the MSHCP and SAS Conservation Program as critical habitat.
The exclusion of these areas from critical habitat will help
preserve the partnerships that we have developed with the local
jurisdictions and agencies in the development of the draft Western Riverside MSHCP and SAS
[[Page 8848]]
Conservation Program. The only potential benefit of designating
critical habitat within these areas would be educational: informing the
public of areas that are essential for the longterm survival and
conservation of the species. However, this information has already
largely been provided to the public through the material provided on
our Web site and through the ample opportunity for public participation
provided throughout the development of the Western Riverside MSHCP. The
Corps of Engineers is also likely to issue a public notice and solicit
public comment on the issuance of a permit for activities related to
the maintenance and operation of existing water facilities on the Santa
Ana River in association with the SAS Conservation Program further
increasing the public's knowledge of the importance of the Santa Ana
River to the sucker. For these reasons, we believe that designating
critical habitat has little benefit in areas covered by the draft
Western Riverside MSHCP and SAS Conservation Program. Exclusion of
these areas will not result in the extinction of the species because
the Western Riverside MSHCP and SAS Conservation Program are designed
to ensure that activities authorized within these areas include measures to protect the Santa Ana Sucker and its habitat.
Based on our evaluation of our past consultation history on the Santa Ana Sucker and the analysis conducted for those consultations, the Western Riverside MSHCP, and the SAS Conservation Program, we believe that we have a general understanding of potential impacts, including those related to economics, of this designation. We have considered these potential impacts in the development of this designation and do not believe, at this time, that additional exclusion, including those based on economics, pursuant to section 4(b)(2) of the Act are warranted.
Santa Clara River
We listed as threatened only those Santa Ana sucker populations
thought to occur within the native range of the species. The native
range of the Santa Ana sucker is considered to be the streams of the
Los Angeles, San Gabriel, and Santa Ana River basins. The Santa Clara
River population is presumed to be an introduced population, although
this presumption is based entirely on negative data, and not on a
documented record of introduction (Hubbs et al. 1943, Miller 1968,
Moyle 1976, Bell 1978). The Santa Clara population was not listed; thus
critical habitat cannot be designated for this population. As we stated
in the final listing rule, we will further evaluate the role of the
Santa Clara River population in the recovery of the species. If the
Santa Clara River population is determined to be crucial to the
recovery of the species, we may reevaluate the status of this
population, threats to its conservation, and the status of the population under the Act.
Effects of Critical Habitat Designation
Section 7 Consultation
The regulatory effects of a critical habitat designation under the Act are triggered through the provisions of section 7, which applies only to activities conducted, authorized, or funded by a Federal agency (Federal actions). Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Individuals, organizations, States, local governments, and other non Federal entities are not affected by the designation of critical habitat unless their actions occur on Federal lands, require Federal authorization, or involve Federal funding.
Section 7(a)(2) of the Act requires Federal agencies, including us, to ensure that their actions are not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. This requirement is met through section 7 consultation under the Act. Our regulations define ``jeopardize the continued existence'' as to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species (50 CFR 402.02). ``Destruction or adverse modification of designated critical habitat'' is defined as a direct or indirect alteration that appreciably diminishes the value of the critical habitat for both the survival and recovery of the species (50 CFR 402.02). Such alterations include, but are not limited to, adverse changes to the physical or biological features, i.e., the primary constituent elements, that were the basis for determining the habitat to be critical. However, in a March 15, 2001, decision of the United States Court of Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434), the Court found our definition of destruction or adverse modification to be invalid. In response to this decision, we are reviewing the regulatory definition of adverse modification in relation to the conservation of the species.
Section 7(a)(4) requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory.
We may issue a formal conference report, if requested by the Federal action agency. Formal conference reports include an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).
If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the action agency would
FOR FURTHER INFORMATION CONTACT Jim Bartel at the address listed above (telephone 760/4319440 or facsimile 760/4319618).
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