[Federal Register: July 2, 2010 (Volume 75, Number 127)]
[Proposed Rules]
[Page 38441-38451]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jy10-25]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0072]
[92210-1117-0000-B4]
RIN 1018-AW23
Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for Santa Ana Sucker
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service, are reopening the
comment period on our December 9, 2009, proposed revised designation of
critical habitat for Santa Ana sucker (Catostomus santaanae) under the
Endangered Species Act of 1973, as amended (Act). We are reopening the
comment period for an additional 30 days to allow all interested
parties an opportunity to comment simultaneously on the proposed
revised critical habitat designation, the draft economic analysis (DEA)
associated with the proposed critical habitat designation, proposed
revisions to one subunit, and the amended Required Determinations
section of the preamble. We are also announcing the location and time
of a public hearing to receive public comments on the proposal. If you
submitted comments previously, you do not need to resubmit them because
we have already incorporated them into the public record and will fully
consider them in preparation of the final rule.
DATES: Written comments: You may submit comments by one of the
following methods: We will consider comments that we receive on or
before August 2, 2010.
Public hearing: We will hold a public hearing on this proposed rule
on July 21, 2010, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-R8-
ES-2009-0072.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2009-0072; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
Public hearing: We will hold a public hearing at Ayres Suites
Corona West, 1900 W Frontage Road, Corona, CA 92882.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone (760) 431-
9440; facsimile (760) 431-5901. If you use a telecommunications device
for the deaf (TDD) you may call the Federal Information Relay Service
(FIRS) at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from the proposed rule
will be based on the best scientific data available and will be as
accurate and effective as possible. Therefore, we request comments or
information from other concerned government agencies, the scientific
community, industry, and other interested parties during this reopened
comment period on the proposed rule to revise critical habitat
[[Page 38442]]
for Santa Ana sucker that was published in the Federal Register on
December 9, 2009 (74 FR 65056), including the DEA of the proposed
revised critical habitat designation, the changes to proposed critical
habitat in Subunit 1A, the considered exclusion of critical habitat in
Subunits 1B and 1C, and the amended required determinations section
provided in this document. We are particularly interested in comments
concerning:
(1) The reasons we should or should not revise the designation of
habitat as ``critical habitat'' for Santa Ana sucker under section 4 of
the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et
seq.), including whether the benefit of designation would outweigh any
threats to the species caused by the designation, such that the
designation of critical habitat is prudent.
(2) Specific information on:
Areas that provide habitat for Santa Ana sucker that we did
not discuss in the proposed revised critical habitat rule;
Areas within the geographical area occupied by the species at
the time of listing that contain the physical and biological features
essential to the conservation of the species which may require special
management considerations or protection, that we should include in the
revised designation and reason(s) why (see the Physical and Biological
Features section of the revised proposed rule published December 9,
2009 (74 FR 65056), for further discussion);
Areas outside the geographical area occupied by the species at
the time of listing that are essential for the conservation of the
species and why; and
Special management considerations or protections that may be
required for the features essential to the conservation of the Santa
Ana Sucker identified in the proposed revised rule, including managing
for the potential effects of climate change.
(3) Information on the projected and reasonably likely impacts of
climate change on this species and the critical habitat areas we are
proposing.
(4) How the proposed revised critical habitat boundaries could be
refined to more closely circumscribe the areas identified as containing
the features essential to the species' conservation.
(5) Specific information on our proposed designation of City Creek,
Plunge Creek, and the Santa Ana River above Seven Oaks Dam to provide
habitat for future reintroduction of Santa Ana sucker to augment the
Santa Ana sucker population in the Santa Ana River. See Critical
Habitat Units section of the revised proposed rule (74 FR 65056), for
further discussion.
(6) Specific information on Santa Ana sucker, habitat conditions,
and the presence of physical and biological features essential to the
conservation of the species in Subunit 1B below Prado Dam.
(7) Specific information on the sediment contribution from
tributaries to the Santa Ana River below Prado Dam (Subunit 1B).
(8) Specific information on the Santa Ana sucker, habitat
conditions, and the presence of potential permanent barriers to
movement in Big Tujunga Wash (Subunit 3A), particularly between the Big
Tujunga Canyon Road Bridge and the Big Tujunga Dam. See Critical
Habitat Units section of the December 9, 2009, revised proposed rule
((74 FR 65056), for further discussion.
(9) Land-use designations and current or planned activities in the
areas proposed as critical habitat, as well as their possible effects
on the proposed critical habitat.
(10) Information that may assist us in identifying or clarifying
the PCEs. See the Primary Constituent Elements (PCEs) section of the
revised proposed rule (74 FR 65056), for further discussion.
(11) Specific information on instream gradient (slope) limitations
of the species. In the proposed rule, we assume that Santa Ana suckers
are unable to occupy stream sections where the instream slope exceeds 7
degrees. See the PCEs section of the December 9, 2009, proposed rule
(74 FR 65056), for further discussion.
(12) Any probable economic, national security, or other impacts of
designating particular areas as critical habitat, and, in particular,
any impacts on small entities (e.g., small businesses or small
governments), and the benefits of including or excluding areas that
exhibit these impacts.
(13) Whether any specific areas being proposed as critical habitat
should be excluded under section 4(b)(2) of the Act, and whether the
benefits of potentially excluding any particular area outweigh the
benefits of including that area under section 4(b)(2) of the Act. See
the Exclusions section of the December 9, 2009, the revised proposed
rule (74 FR 65056), and the Additional Areas Currently Considered for
Exclusion Under Section 4(b)(2) of the Act section of this document for
further discussion.
(14) The potential exclusion of Subunits 1B and 1C under section
4(b)(2) of the Act based on the benefits to the species provided by
implementation of the Western Riverside County Multiple Species Habitat
Conservation Plan and Santa Ana Sucker Conservation Program and,
whether the benefits of exclusion of these areas outweigh the benefits
of including this area as critical habitat, and why. See Additional
Areas Currently Considered for Exclusion Under Section 4(b)(2) of the
Act section below and Exclusions section of the December 9, 2009,
revised proposed rule (74 FR 65056) for further discussion.
(15) Specific conservation that has been achieved for Santa Ana
sucker or its habitat as a result of the Santa Ana Sucker Conservation
Program, Western Riverside County Multiple Species Habitat Conservation
Plan, or other conservation or management programs within proposed
revised critical habitat.
(16) Information on any quantifiable economic costs or benefits of
the proposed revised designation of critical habitat.
(17) Information on the extent to which the description of
potential economic impacts in the DEA is complete and accurate.
(18) Whether our approach to designating critical habitat could be
improved or modified in any way to provide an opportunity for greater
public participation and understanding, or to assist us in
accommodating public concerns and comments.
If you submitted comments or information on the proposed rule (74
FR 65056) during the initial comment period from December 9, 2009, to
February 8, 2010, please do not resubmit them. These comments are
included in the public record for this rulemaking, and we will fully
consider them in the preparation of our final determination. Our final
determination concerning the revised critical habitat for Santa Ana
sucker will take into consideration all written comments and any
additional information we receive during both comment periods. On the
basis of public comments, we may, during the development of our final
determination, find that areas within the proposed revised critical
habitat designation do not meet the definition of critical habitat,
that some modifications to the described boundaries are appropriate, or
that areas may or may not be appropriate for exclusion under section
4(b)(2) of the Act.
You may submit your comments and materials concerning our proposed
revised rule, the associated DEA, and our amended required
determinations
[[Page 38443]]
by one of the methods listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
submission--including any personal identifying information--will be
posted on the website. If your submission is made via a hard copy that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so. We will
post all hard copy comments on http://www.regulations.gov. Please
include sufficient information with your comments to allow us to verify
any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation we used to prepare this notice, will be available for
public inspection at http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service's
Carlsbad Fish and Wildlife Office (see the FOR FURTHER INFORMATION
CONTACT section). You may obtain copies of the proposed revised
critical habitat (74 FR 65056) and the DEA on the Internet at http://
www.regulations.gov at Docket No. FWS-R8-ES-2009-0072, or by mail from
the Carlsbad Fish and Wildlife Office (see the FOR FURTHER INFORMATION
CONTACT section).
Public Hearings
The public hearings will take place on July 21, 2010, from 1 p.m.
to 3 p.m. and from 6 p.m. to 8 p.m. at Ayres Suites Corona West, 1900
W. Frontage Road, Corona, CA 92882. The public hearing location is
wheelchair-accessible. If you plan to attend the public hearing and
need special assistance such as sign language interpretation or other
reasonable accommodation, please notify the US FWS (see FOR FURTHER
INFORMATION CONTACT) at least 3 business days in advance. Include your
contact information as well as information about your specific needs.
Background
It is our intent to discuss only those topics directly relevant to
the proposed revised designation of critical habitat for Santa Ana
sucker in this document. For more detailed information on the taxonomy,
biology, and ecology of Santa Ana sucker, please refer to the final
listing rule published in the Federal Register on April 12, 2000 (65 FR
19686); the designation and revision of critical habitat for Santa Ana
sucker published in the Federal Register on February 26, 2004 (69 FR
8839); and on January 4, 2005 (70 FR 426); respectively; and the second
proposed revision of critical habitat for Santa Ana sucker published in
the Federal Register on December 9, 2009 (74 FR 65056), or the Carlsbad
Fish and Wildlife Office (see the FOR FURTHER INFORMATION CONTACT
section).
California Trout, Inc., et al. filed suit against the Service on
November 15, 2007, alleging that the January 4, 2005, final designation
of critical habitat violated provisions of the Act and Administrative
Procedure Act [(California Trout, Inc., et al., v. United States Fish
and Wildlife, et al., Case No. 07-CV-05798 (N.D. Cal.) transferred Case
No. CV 08-4811 (C.D. Cal.)]. The plaintiffs alleged that our January 4,
2005, revised critical habitat designation for Santa Ana sucker was
insufficient for various reasons and should include the Santa Clara
River population. We entered into a stipulated settlement agreement
with plaintiffs that was approved by the District Court on January 21,
2009. Pursuant to the District Court Order, we committed to submit a
proposed revised critical habitat designation for Santa Ana sucker to
the Federal Register by December 1, 2009, and submit a revised critical
habitat designation to the Federal Register by December 1, 2010. We
published the proposed revised critical habitat designation in the
Federal Register on December 9, 2009 (74 FR 65056).
Section 3 of the Act defines critical habitat as ``(i) the specific
areas within the geographical area occupied by a species, at the time
it is listed in accordance with [the Act], on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) 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 Act], upon a determination by the Secretary that
such areas are essential for the conservation of the species'' (16
U.S.C. 1532(5)(A)(i) and (ii)). If the proposed rule is made final,
section 7 of the Act will prohibit destruction or adverse modification
of critical habitat by any activity funded, authorized, or carried out
by any Federal agency. Federal agencies proposing actions that may
affect critical habitat must consult with us on the effects of their
proposed actions under section 7(a)(2) of the Act.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate critical
habitat based upon the best scientific data available after taking into
consideration the economic impact, impact on national security, or any
other relevant impact of specifying any particular area as critical
habitat.
We prepared a DEA (Industrial Economics, Inc. (IEC) 2010) that
identifies and analyzes the potential impacts associated with the
proposed revised critical habitat designation for Santa Ana sucker
published in the Federal Register on December 9, 2009 (74 FR 65056).
The DEA looks retrospectively at costs incurred since the April 12,
2000 (65 FR 19686), listing of Santa Ana sucker as a threatened
species. The DEA quantifies the economic impacts of all potential
conservation efforts for Santa Ana sucker. However, some of these costs
will likely be incurred regardless of whether or not we finalize the
revised critical habitat. The economic impact of the proposed revised
critical habitat designation is analyzed by comparing scenarios both
``with critical habitat'' and ``without critical habitat.'' The
``without critical habitat'' scenario represents the baseline for the
analysis, considering protections that are already in place for the
species (such as protections under the Act and other Federal, State,
and local regulations). The baseline, therefore, represents costs
incurred regardless of whether critical habitat is designated. The
``with critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of critical habitat for
the species. Incremental conservation efforts and associated impacts
are those not expected to occur absent the critical habitat designation
for Santa Ana sucker. In other words, incremental costs are those
attributable solely to the designation of critical habitat above and
beyond the baseline costs. The DEA also qualitatively discusses the
potential incremental economic benefits associated with the designation
of critical habitat. The incremental impacts are the impacts we may
consider in the revised designation of critical habitat relative to
areas that may be excluded under section 4(b)(2) of the Act. The
analysis forecasts both baseline and incremental impacts likely to
occur if we finalize the proposed revised critical habitat designation.
The revised DEA (made available with the publication of this notice
and referred to throughout this document unless otherwise noted)
estimates the foreseeable economic impacts of the proposed revised
critical habitat designation for Santa Ana sucker. The DEA describes
economic impacts of Santa Ana sucker conservation efforts associated
with the following categories
[[Page 38444]]
of activities: (1) Water management; (2) residential and commercial
development; (3) transportation-related projects; (4) point sources of
pollution including the Santa Ana Regional Interceptor line; (5)
recreational activities; and (6) commercial and recreational mining.
Baseline economic impacts are those impacts that result from
listing and other conservation efforts for Santa Ana sucker.
Conservation efforts related to water management, transportation, and
development activities constitute the majority of total baseline costs
(approximately 90 percent of post-designation upper-bound baseline
impacts when a 7 percent discount rate is used) in areas of proposed
revised critical habitat. Conservation efforts related to point source
pollution and off-highway vehicle recreation comprise the remaining
approximate 10 percent of post-designation upper-bound baseline impacts
when a 7 percent discount rate is used. Total future baseline impacts
are estimated to be $22.6 to $29.8 million ($1.99 to $2.62 million
annualized) in present value terms using a 7 percent discount rate over
the next 20 years (2011 to 2030) in areas proposed as revised critical
habitat (IEC 2010, p. ES-3).
Conservation efforts related to water management activities,
transportation projects, and residential and commercial development
projects comprise most (90 percent) of the quantified incremental
impacts for the proposed revised critical habitat rule. Impacts
associated with transportation projects make up the largest portion of
post-designation upper-bound incremental impacts, accounting for 38 to
53 percent of the forecast incremental impacts when a 7 percent
discount rate is used. The DEA estimates total potential incremental
economic impacts in areas proposed as revised critical habitat over the
next 20 years (2011 to 2030) to be $6.87 million to $9.45 million
($606,000 to $834,000 annualized) in present value terms applying a 7
percent discount rate (IEC 2010, p. ES-2).
The DEA considers both economic efficiency and distributional
effects. In the case of habitat conservation, efficiency effects
generally reflect the ``opportunity costs'' associated with the
commitment of resources to comply with habitat protection measures
(such as lost economic opportunities associated with restrictions on
land use). The DEA also addresses how potential economic impacts are
likely to be distributed, including an assessment of any local or
regional impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The DEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision makers can use this information to assess whether
the effects of the revised critical habitat designation might unduly
burden a particular group or economic sector.
Changes to Proposed Revised Critical Habitat
In this document, we are proposing revisions to Subunit 1A as
identified and described in the proposed revised critical habitat
designation that published in the Federal Register on December 9, 2009
(74 FR 65056). We received a public comment that identified specific
areas outside the geographical area occupied by the species at the time
it was listed that may be essential for the conservation of Santa Ana
sucker. The purpose of the revision described below is to ensure that
all areas are evaluated uniformly and equally to determine the areas
that meet the definition of critical habitat for Santa Ana sucker. The
area we are proposing to add to Subunit 1A contains the physical and
biological features essential for the conservation of the species. The
change we propose to Subunit 1A does not alter the description of this
subunit (see ``Critical Habitat Units'' section in the proposed revised
rule (74 FR 65070)); however, a revised map including this new area is
included in this document. We briefly describe the change made for
Subunit 1A below. As a result of this revision, the overall area
proposed for critical habitat, including all units and subunits, is
approximately 9,643 acres (ac) (3,902 hectares (ha)), an increase of
approximately 38 ac (15 ha) from the 9,605 ac (3,887 ha) that we
proposed as critical habitat in the December 9, 2009, proposed revised
critical habitat designation (74 FR 65056). A summary of the total area
of each proposed subunit is presented in Table 1. Additionally, we are
considering for exclusion lands covered by the Western Riverside County
Multiple Species Habitat Conservation Plan (Western Riverside County
MSHCP), described below in detail.
Table 1. Summary of subunits proposed as critical habitat. Area estimates and land ownership for Santa Ana sucker proposed revised critical habitat.
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Ownership
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Unit Counties State or Local Total Area\2\
Federal Government Private
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Unit 1: Santa Ana River
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Subunit 1A: Upper Santa Ana River San Bernardino 284 ac (115 ha) 95 ac (38 ha) 1559 ac (631 ha) 1,938 ac (784 ha)
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Subunit 1B: Santa Ana River San Bernardino and 13 ac (5 ha) 2,390 ac (967 ha) 2,301 ac (931 ha) 4,704 ac\1\ (1,903
Riverside ha)
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Subunit 1C: Lower Santa Ana River Riverside and Orange 0 ac (0 ha) 56 ac (23 ha) 711 ac (288 ac) 767 ac\1\ (311 ha)
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Unit 1 Total 287 ac (116 ha) 2,541 ac (1,028 ha) 4,570 ac (1,849 ha) 7,409 ac (2,998 ha)
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Unit 2: San Gabriel River
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[[Page 38445]]
Unit 2: San Gabriel River Los Angeles 917 ac (371 ha) 0 ac (0 ha) 83 ac (34 ha) 1,000 ac (405 ha)
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Unit 3: Big Tujunga Creek
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Subunit 3A: Big Tujunga and Haines Los Angeles 242 ac (98 ha) 0 ac (0 ha) 947 ac (383 ha) 1,189 ac (481 ha)
Creeks
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Subunit 3B: Gold, Delta, and Stone Los Angeles 44 ac (18 ha) 0 ac (0 ha) 0 ac (0 ha) 44 ac (18 ha)
Creeks
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Unit 3 Total 286 ac (116 ha) 0 ac (0 ha) 947 ac (383 ha) 1,233 ac (499 ha)
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Total 1,490 ac (603 ha) 2,541 ac (1,028 ha) 5,600 ac (2,266 ha) 9,643 ac (3,902 ha)
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\1\ Contains areas being considered for exclusion in the final critical habitat rule under section 4(b)(2) of the Act.
\2\ Values in this table may not sum due to rounding.
Subunit 1A: Upper Santa Ana River
We received a comment indicating that we did not include in the
proposed revised critical habitat designation a portion of the upper
Santa Ana River watershed that meets the definition of critical
habitat, is essential for the conservation of the species, and is a
site for possible reintroduction or refugia (i.e., area that provides
for establishment of populations with minimal to no threats) for Santa
Ana sucker. We reviewed aerial imagery, topographic maps, and
information in our files for this area and verified that a portion of
Plunge Creek meets the definition of critical habitat for Santa Ana
sucker. Plunge Creek, a tributary of the Santa Ana River, is located in
San Bernardino County upstream of the Santa Ana River's confluence with
City Creek. Plunge Creek above Greenspot Road and north into the
foothills of the San Bernardino Mountains is relatively unmodified, as
are the other areas proposed for critical habitat designation in
Subunit 1A. The approximate 3-mi (4.83-km) section of Plunge Creek that
we are now proposing as critical habitat encompasses 11.1 ac (4.5 ha)
of land owned by the U.S. Forest Service and 26.6 ac (10.7 ha) of
privately owned land.
We determined that this area contains PCEs 1-7 and is essential for
the conservation of the species. While we do not have information
indicating this creek is currently occupied, we believe it is
reasonable to assume that Santa Ana sucker could have inhabited these
waters before the existing barriers to dispersal were present. The area
that we are proposing for critical habitat designation maintains a
perennial flow of cool and clear (not turbid) water, has a diverse
composition of substrates, and a complex system of riffles, runs,
pools, and shallow marginal areas covered with native riparian
vegetation that would provide highly suitable habitat for
reintroduction or establishment of a refugia population of Santa Ana
sucker (OCWD 2009, pp. 5-66-69, 6-2, 6-6).
In addition to including the Plunge Creek area as proposed revised
critical habitat, we are clarifying the description of Subunit 1A,
(Upper Santa Ana River). The area proposed for critical habitat
designation (74 FR 65056) in the upper Santa Ana River includes
approximately 0.2 mi (0.32 km) of Bear Creek (identified as the Santa
Ana River in the December 9, 2009, proposed rule) above its confluence
with the Santa Ana River.
As stated in the December 9, 2009, proposed revised critical
habitat designation (74 FR 65056), it is essential to maintain areas of
suitable habitat in the Santa Ana River watershed where Santa Ana
suckers could be reintroduced or areas that provide refugia necessary
to decrease the risk of extirpation in the Santa Ana River or
extinction due to stochastic events and provide for species' recovery.
Like other areas proposed for designation as critical habitat for the
purpose of reintroduction or establishment of a refugia population of
Santa Ana sucker, Plunge Creek is also likely to require active
management to transport individuals back to the upstream areas if they
were flushed downstream during a flood event (74 FR 65071). We
encourage public comment regarding the addition of the Plunge Creek
area as proposed critical habitat in Subunit 1A (see Public Comments
section above).
Additional Areas Currently Considered For Exclusion Under Section
4(b)(2) of the Act
Western Riverside County Multiple Species Habitat Conservation Plan
(MSHCP)
The Western Riverside County MSHCP is a regional, multi-
jurisdictional HCP encompassing about 1.26 million ac (510,000 ha) in
western Riverside County. The Western Riverside County MSHCP addresses
146 listed and unlisted ``covered species,'' including the Santa Ana
sucker. Participants in the Western Riverside County MSHCP include 16
cities; the County of Riverside, including the Riverside County Flood
Control and Water Conservation Agency (County Flood Control), Riverside
County Transportation Commission, Riverside County Parks and Open Space
District, and Riverside County Waste Department; California Department
of Parks and Recreation; and the California Department of
Transportation. The Western Riverside County MSHCP was designed to
establish a multi-species conservation program that minimizes and
mitigates the effects of expected habitat loss and associated
incidental take of covered species. The Service issued a single
incidental take permit on June 22, 2004 (Service 2004), under section
10(a)(1)(B) of the Act, to 22 permittees under the Western Riverside
County MSHCP for a period of 75 years.
[[Page 38446]]
Specifically, the Secretary is considering whether to exercise his
discretion to exclude 3,048 ac (1,234 ha) in Unit 1 (portions of
Subunits 1B and 1C) within the Western Riverside County MSHCP plan area
(see table 2 for the acreage of land being considered for exclusion in
each subunit). We are considering the exclusion of non-Federal lands
that are either owned by or under the jurisdiction of permittees under
the Western Riverside County MSHCP. There are approximately 1,036 ac
(420 ha) in Subunit 1B and 23 ac (10 ha) in Subunit 1C that are within
the plan boundary of Western Riverside County MSHCP but are not being
considered for exclusion because they are owned by non-permittees of
the Western Riverside County MSHCP or are federally owned.
Table 2. Santa Ana sucker proposed critical habitat areas considered for
exclusion under section 4(b)(2) of the Act under the Western Riverside
County MSHCP, presented per land ownership.
------------------------------------------------------------------------
Permittees under the Western
Riverside County MSHCP Subunit 1B Subunit 1C
------------------------------------------------------------------------
County of Riverside 428 ac (173 ha) 19 ac (8 ha)
------------------------------------------------------------------------
City of Norco 234 ac (95 ha) .................
------------------------------------------------------------------------
City of Riverside 52 ac (21 ha) .................
------------------------------------------------------------------------
Riverside County Flood 324 ac (131 ha) 13 ac (5 ha)
Control and Water
Conservation Agency (County
Flood Control)
------------------------------------------------------------------------
Riverside County Parks and 215 ac (87 ha) .................
Open Space District
------------------------------------------------------------------------
California Department of 54 ac (22 ha)
Parks and Recreation
------------------------------------------------------------------------
California Department of 3 ac (1 ha) .................
Transportation
------------------------------------------------------------------------
State of California 1,125 ac (455 ha) .................
(Wildlife Conservation
Board in collaboration with
California Department of
Fish and Game and Riverside
County Parks and Open Space
District)
------------------------------------------------------------------------
Private 577 ac (234 ha) 6 ac (2 ha)
------------------------------------------------------------------------
Total land considered for 2,957 ac (1,197 ha) 91 ac (37 ha)
exclusion*
------------------------------------------------------------------------
* Values in this table may not sum due to rounding.
The Western Riverside County MSHCP will establish approximately
153,000 ac (61,917 ha) of new conservation lands (Additional Reserve
Lands) to complement the approximately 347,000 ac (140,426 ha) of pre-
existing natural and open space areas (Public/Quasi-Public (PQP)
lands). These PQP lands include those under ownership of public or
quasi-public agencies, and also permittee-owned or controlled open-
space areas. Collectively, the Additional Reserve Lands and PQP lands
form the overall Western Riverside County MSHCP Conservation Area. The
configuration of the 153,000 acres (61,916 ha) of Additional Reserve
Lands is based on textual descriptions of habitat conservation
necessary to meet the conservation goals for all covered species within
the bounds of the approximately 310,000-ac (125,453-ha) Criteria Area
and is determined as implementation of the Western Riverside County
MSHCP takes place.
The Western Riverside County MSHCP identifies five conservation
objectives that will be implemented to provide long-term conservation
of the Santa Ana sucker:
(1) Include within the Western Riverside County MSHCP Conservation
Area 3,480 ac (1,408 ha) of habitat for the Santa Ana sucker, including
the Santa Ana River within the natural river bottom and banks;
(2) Include within the MSHCP Conservation Area the following areas
(known as core areas for this species in the Western Riverside County
MSHCP): Upstream of River Road, between River Road and Prado Dam, and
downstream of Prado Dam; the known spawning areas at Sunnyslope Creek
and within the area just below Mission Boulevard upstream to the Rialto
Drain; and refugia and dispersal areas including the Market Street
Seep, Mount Rubidoux Creek, Anza Park Drain, Arroyo Tequesquite, Hidden
Valley Drain, and Evans Lake Drain;
(3) Include within the MSHCP Conservation Area the natural river
bottom and banks of the Santa Ana River from the Orange County and
Riverside County line to the upstream boundary of the Western Riverside
County MSHCP plan area, including the adjacent upland habitat, where
available, to provide shade and suitable microclimate conditions (such
as alluvial terraces and riparian vegetation);
(4) Within the MSHCP Conservation Area, the Reserve Managers
responsible for the areas identified in Objectives 2 and 3 will assess
barriers to sucker movement and the need for connectivity and identify
measures to restore connectivity to be implemented as feasible; and
(5) Within the MSCHP Conservation Area, the Reserve Managers
responsible for the areas identified in Objectives 2 and 3 will assess
threats to the sucker from degraded habitat (such as reduced water
quality, loss of habitat, presence of nonnative predators and
vegetation), identify areas of the watershed that are necessary for
successful sucker spawning, identify areas for creation of stream
meanders, and pool riffle complexes and reestablishment of native
riparian vegetation as appropriate and feasible, and identify and
implement management measures to address threats and protect critical
areas (Dudek and Associates, Inc. 2003, pp. F-19-20; Service 2004, p.
258).
Additionally, riparian and riverine areas located within and
outside of the Western Riverside County MSHCP Conservation Area are
subject to the ``Protection of Species Associated with Riparian/
Riverine Areas and Vernal Pools'' policy presented in Section 6.1.2 of
the Western Riverside County MSHCP, Volume I. This policy provides for
the avoidance and minimization of impacts to riparian and riverine
habitats, if feasible. According to the plan, unavoidable impacts will
be mitigated such that the lost habitat functions and values related to
covered
[[Page 38447]]
species will be replaced (Dudek and Associates, Inc. 2003, pp. 6-24).
The goal of conserving 3,480 ac (1,408 ha) of habitat for the Santa
Ana sucker in the Western Riverside County MSHCP Conservation Area
relies primarily on coordinated management of existing PQP lands and to
a lesser extent on acquisition or other dedications of land assembled
from within the Criteria Area (i.e., the Additional Reserve Lands). We
internally mapped a ``Conceptual Reserve Design,'' which illustrates
existing PQP lands and predicts the geographic distribution of the
Additional Reserve Lands based on our interpretation of the textual
descriptions of habitat conservation necessary to meet conservation
goals. Our Conceptual Reserve Design is intended to predict one
possible future configuration of the eventual approximately 153,000 ac
(61,916 ha) of Additional Reserve Lands in conjunction with the
existing PQP lands, including the approximate 3,480 ac (1,408 ha) of
Santa Ana sucker habitat, intended to be conserved to meet the goals
and objectives of the plan (Service 2004, pp. 257-258). In our analysis
of conservation for the Santa Ana sucker under the Western Riverside
County MSHCP, we anticipate that, over the term of the permit, up to
443 ac (179 ha) of Santa Ana sucker habitat will be impacted within the
plan area (Service 2004, p. 260).
The preservation and management of approximately 3,480 ac (1,408
ha) of Santa Ana sucker habitat under the Western Riverside County
MSHCP is intended to contribute to the conservation and ultimate
recovery of this species. The Santa Ana sucker is at risk due to its
small population sizes and specifically threatened by habitat
destruction, degradation, and fragmentation; dewatering; reductions in
water quality; fire; recreational activities; and competition and
predation from nonnative species within the plan area (Service 2004,
pp. 254-255). The Western Riverside County MSHCP is intended to reduce
threats to this species and the physical and biological features
essential to its conservation as the plan is implemented by placing
large blocks of habitat into preservation throughout the Conservation
Area. The plan also generates funding for long-term management of
conserved lands for the benefit of the species it protects. Core Areas
identified for preservation and conservation include upstream of River
Road, between River Road and Prado Dam, and downstream of Prado Dam;
the known spawning areas at Sunnyslope Creek and within the area just
below Mission Boulevard upstream to the Rialto Drain; and refugia and
dispersal areas including the Market Street Seep, Mount Rubidoux Creek,
Anza Park Drain, Arroyo Tequesquite, Hidden Valley Drain, and Evans
Lake Drain (Dudek and Associates, Inc. 2003, p. F-20; Service 2004, p.
258).
The Western Riverside County MSHCP has several measures in place
intended to ensure the plan is implemented in a way that conserves
Santa Ana sucker in accordance with the species-specific criteria and
objectives for this species. Permittee-owned PQP lands are to be
managed in a manner that contributes to the conservation of the covered
species. In the event that a permittee elects to alter their PQP lands
such that they would not contribute to the conservation of covered
species, lands would need to be replaced at a minimum 1:1 ratio. The
proposed critical habitat designation includes lands owned by non-
permittees of the Western Riverside County MSHCP in Subunit 1B and
portions of Subunit 1C. The Western Riverside County MSHCP states that
non-permitteeowned lands will be managed through Memorandums of
Understanding or other appropriate agreements (MSHCP Implementation
Agreement 2003, p. 60). Additional Reserve Lands would be acquired
consistent with the plan criteria and conserved. The collective
management of PQP and Additional Reserve Lands in accordance with the
plan is intended to contribute to conservation of Santa Ana sucker.
The Western Riverside County MSHCP permittees are required to
implement management and monitoring activities within the Additional
Reserve Lands and PQP-owned lands. They must conduct baseline surveys
at known occupied locations within the first 5 years of the plan and
conduct additional surveys every 8 years to verify occupancy at a
minimum of 75 percent of the MSHCP Conservation Area the Core Areas
(listed above). Additionally, permittees and Reserve Managers must work
cooperatively with Federal, State, and local agencies on conservation
measures addressing connectivity and movement, nonnative predator
removals, and riparian and instream vegetation maintenance or
enhancement (Dudek and Associates, Inc. 2003, pp. F-23-25; Service
2004, p. 259).
The Western Riverside County MSHCP incorporates several processes
that allow for Service oversight and participation in program
implementation. These processes include: (1) Consultation with the
Service on development of a long-term management and monitoring plan
that addresses covered species; (2) submission of annual monitoring
reports; (3) annual status meetings with the Service; and (4)
submission of annual implementation reports to the Service (Service
2004, pp. 9-10).
The majority of the lands that are being considered for exclusion
within the Western Riverside County MSHCP are PQP lands that could be
conserved through the implementation of the plan. Lands within Subunit
1B that are being considered for exclusion (2,957 ac (1,197 ha)) are
owned by the County of Riverside, the cities of Norco and Riverside,
the Riverside County Open Space and Parks, the Riverside County Flood
Control District, the California Department of Parks and Recreation,
the California Department of Transportation, the State of California
Wildlife Conservation Board (which manages the area known as the Hidden
Valley Wildlife Area and is comprised of the California Department of
Fish and Game and Riverside County Open Space and Parks) and private
land owners (see Table 2). Lands (91 ac (37 ha)) within Subunit 1C that
are being considered for exclusion are owned by the County of
Riverside, the Riverside County Flood Control District, the California
Department of Parks and Recreation, and private land owners (see Table
2). Within the proposed revised critical habitat designation, no
Additional Reserve Lands have been secured since the time of the
approval of the Western Riverside County MSHCP. Under the incidental
take permit for the Western Riverside County MSHCP (Service 2004, pp.
253-261), impacts to Santa Ana sucker habitat within the plan area are
limited to a total of 443 acres (179 ha). In summary, the Secretary is
considering exercising his discretion under section 4(b)(2) of the Act
to exclude 3,048 ac (1,234 ha) of proposed critical habitat for the
Santa Ana sucker within Western Riverside County MSHCP permittee-owned
or controlled lands in Subunits 1B and 1C.
The 2000 final listing rule for the Santa Ana sucker identified the
following primary threats to the Santa Ana sucker: Habitat destruction,
natural and human-induced changes in streamflows, urban development and
related land-use practices, intensive recreation, introduction of
nonnative competitors and predators, and demographics associated with
small populations (65 FR 19686; April 12, 2000). Implementation of the
Western Riverside County MSHCP is intended to help alleviate these
threats through a regional planning effort rather than
[[Page 38448]]
through a project-by-project approach, and outlines species-specific
objectives and criteria for the conservation of the Santa Ana sucker.
In the final revised critical habitat rule for the Santa Ana sucker, we
will analyze the benefits of inclusion and exclusion of this area from
critical habitat under section 4(b)(2) of the Act. We encourage public
comment regarding our consideration of areas in Subunits 1B and 1C for
exclusion (see Public Comments section above).
Required Determinations--Amended
In our proposed revised rule published in the Federal Register on
December 9, 2009 (74 FR 65056), we indicated that we would defer our
determination of compliance with several statutes and Executive Orders
until the information concerning potential economic impacts of the
designation and potential effects on landowners and stakeholders became
available in the DEA. We have now made use of the DEA to make these
determinations. In this document, we affirm the information in our
proposed rule concerning Executive Order (E.O.) 12866 (Regulatory
Planning and Review), EO 13132 (Federalism), E.O. 12988 (Civil Justice
Reform), E.O. 12630 (Takings), the Paperwork Reduction Act, the
National Environmental Policy Act, and the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951). However, based on the DEA
data, we are amending our required determinations concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy
Supply, Distribution, or Use), and the Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) (5 U.S.C. 802(2)), whenever an agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions),
as described below. However, no regulatory flexibility analysis is
required if the head of an agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
Our analysis for determining whether the proposed designation would
result in a significant economic impact on a substantial number of
small entities follows. Based on comments we receive, we may revise
this determination as part of a final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the proposed revised designation of critical
habitat for Santa Ana sucker would affect a substantial number of small
entities, we consider the number of small entities affected within
particular types of economic activities, such as residential and
commercial development. In order to determine whether it is appropriate
for our agency to certify that this rule would not have a significant
economic impact on a substantial number of small entities, we
considered each industry or category individually. If we finalize this
proposed revised critical habitat designation, Federal agencies must
consult with us under section 7 of the Act if their activities may
affect designated critical habitat. Incremental impacts to small
entities may occur as a result of a required consultation under section
7 of the Act. Additionally, even in the absence of a Federal nexus,
incremental impacts may still result because, for example, a city may
request project modifications due to the designation of critical
habitat via its review under the California Environmental Quality Act
(CEQA). Consultations to avoid the destruction or adverse modification
of critical habitat would be incorporated into the existing
consultation process due to the current status of Santa Ana sucker
under the Act as a threatened species.
In the DEA, we evaluate the potential economic effects on small
business entities resulting from implementation of conservation actions
related to the proposed revision to critical habitat for Santa Ana
sucker. The DEA is based on the estimated incremental impacts
associated with the proposed rulemaking as described in Chapters 3
through 7 of the DEA. The SBREFA analysis evaluates the potential for
economic impacts related to several categories, including: (1) Water
management, (2) residential and commercial development, and (3)
transportation activities (IEC 2010, p. A-7). On the basis of our draft
analysis, we have determined that no incremental impacts attributed to
water management or transportation activities are expected to be borne
by entities that meet the definition of small entities (IEC 2010, p. A-
7-8). Potential impact in these sectors are expected to be borne by
water management agencies, States, Federal agencies and other
governmental non-governmental agencies that are not considered to be
small business entities. However, the DEA concludes that the proposed
rulemaking potentially may affect small entities in the residential and
commercial development sector (IEC 2010, p. A-8). There are 25,300
businesses involved in development activities within San Bernardino,
Riverside, Orange, and Los Angeles Counties and, of these, 24,800 are
considered small. The DEA estimates that 67 small entities may be
affected, with estimated revenues of $2.8 million per entity. Assuming
impacts are shared equally among entities, the analysis concludes that
the annualized impacts may represent approximately 0.16 percent of
annual revenues. However, this assumption is likely to overstate the
actual impacts to small development firms because some or all of the
costs of Santa Ana sucker conservation efforts to development
activities may ultimately be borne by current landowners in the form of
reduced land values. Many of these landowners may be individuals or
families that are not legally considered to be businesses. No NAICS
code exists for landowners, and the SBA does not provide a definition
of a small landowner.
To evaluate whether this proposed rule will result in a significant
effect on a substantial number of small business entities, we first
determined whether the proposed regulation will likely affect a
substantial number of entities. Guidance from the Small Business
[[Page 38449]]
Administration (SBA) indicates that if ``more than just a few'' small
business entities in a given sector are affected by a proposed
regulation, then a substantial number of entities may be affected.
``More than just a few'' is not defined, and SBA suggests that a case-
by-case evaluation be done. The DEA prepared for the proposed
designation of critical habitat for the Santa Ana sucker predicts that
67 out of 24,800 small business entities in the residential and
commercial development sector may be affected by the rule. Adopting a
conservative approach in our analysis, we conclude that 67 entities
equate to ``more than just a few'' small entities and, therefore, a
substantial number of small business entities may be affected by the
rule.
Next, we determined if the proposed revised designation of critical
habitat would result in a significant economic effect on those 67 small
business entities. There is no specific guidance under the RFA as to
what constitutes a significant effect or at what scale the effect is
measured - nationally or regionally. In implementing the RFA, the
Service evaluates potential effects on a regional or local scale which,
in most instances, results in a more conservative analysis. For the
proposed revised critical habitat rule the Service relied on a
threshold of three percent of annual revenues to evaluate whether the
potential economic impacts of the designation on small business
entities in the residential and commercial development sector may be
significant. The DEA estimates that the annualized impacts of the
proposed revised rule on the 67 potentially affected entities would be
of 0.16 percent of their annual sales revenue. We have determined that
a potential economic impact of a fraction of one percent of annual
revenues is not significant.
In summary, we considered whether the proposed revised critical
habitat designation would result in a significant economic impact on a
substantial number of small entities. On the basis of our draft
economic analysis, we determined that there would be a substantial
number of small business entities potential affected by the proposed
designation (67 entities), but that the estimated economic effect of
less than one percent of annual revenues is not significant. For the
above reasons and based on currently available information, we certify
that, if promulgated, the proposed revised critical habitat for Santa
Ana sucker would not have a significant economic impact on a
substantial number of small entities.
Executive Order 13211--Energy Supply, Distribution, and Use
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use.
Executive Order 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. The OMB's guidance for
implementing this Executive Order outlines nine outcomes that may
constitute ``a significant adverse effect'' when compared to no
regulatory action. Based on an analysis conducted for this designation,
we determined that the final designation of critical habitat for Santa
Ana Sucker is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, the Service
makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments,'' with
two exceptions. First, it excludes ``a condition of federal
assistance.'' Second, it also excludes ``a duty arising from
participation in a voluntary Federal program,'' unless the regulation
``relates to a then-existing Federal program under which $500,000,000
or more is provided annually to State, local, and Tribal governments
under entitlement authority,'' if the provision would ``increase the
stringency of conditions of assistance'' or ``place caps upon, or
otherwise decrease, the Federal Government's responsibility to provide
funding'' and the State, local, or Tribal governments ``lack
authority'' to adjust accordingly. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
Critical habitat designation does not impose a legally binding duty
on non-Federal Government entities or private parties. Under the Act,
the only regulatory effect is that Federal agencies must ensure that
their actions do not destroy or adversely modify critical habitat under
section 7. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits,
or that otherwise require approval or authorization from a Federal
agency. However, the legally binding duty to avoid destruction or
adverse modification of critical habitat rests squarely on the Federal
agency. Furthermore, to the extent that non-Federal entities are
indirectly impacted because they receive Federal assistance or
participate in a voluntary Federal aid program, the Unfunded Mandates
Reform Act would not apply, nor would critical habitat shift the costs
of the large entitlement programs listed above on to State governments.
(b) As discussed in the DEA of the proposed revised designation of
critical habitat for Santa Ana sucker, we do not believe that this rule
would significantly or uniquely affect small governments because it
would not produce a Federal mandate of $100 million or greater in any
year; that is, it is not a ``significant regulatory action'' under the
Unfunded Mandates Reform Act. The DEA concludes incremental impacts may
occur due to administrative costs of section 7 consultations for
development, transportation, and flood control projects activities;
however, these are not expected to affect small governments.
Incremental impacts stemming from various species conservation and
development control activities are expected to be borne by the Federal
Government, California Department of Transportation, California
Department of Fish and Game, Riverside County, Riverside County Flood
Control and Water Conservation District, and City of Perris, which are
not considered small governments. Consequently, we do not believe that
the revised critical habitat designation would significantly or
uniquely affect small government entities. As such, a Small Government
Agency Plan is not required.
References Cited
A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at http://
www.regulations.gov or by contacting the Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT section).
[[Page 38450]]
Author
The primary authors of this notice are the staff members of the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT
section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended at 74 FR 65056, December 9, 2009, as follows:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Critical habitat for the Santa Ana sucker (Catostomus santaanae)
in Sec. 17.95(e), which was proposed to be revised on December 9,
2009, at 74 FR 65056, is proposed to be further amended by revising
paragraph (e)(6)(i)(B) as follows:
a. By revising the introductory text of paragraph (e)(6)(i)(B);
b. By removing the map of subunit 1A; and
c. By adding a new map of subunit 1A in its place, as set forth
below.
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Santa Ana sucker (Catostomus santaanae)
* * * * *
(6) * * *
(i) * * *
(B) Map of Subunit 1A (Plunge Creek) follows:
BILLING CODE 4310-55-S
[[Page 38451]]
[GRAPHIC] [TIFF OMITTED] TP02JY10.004
* * * * *
Dated: June 18, 2010
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-15953 Filed 7-1-10; 8:45 am]
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