[Federal Register: September 17, 2002 (Volume 67, Number 180)]
[Proposed Rules]               
[Page 58580-58582]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Unarmored Threespine Stickleback

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Finding that the designation of critical habitat should not be 


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), find that 
the proposed designation of critical habitat for the unarmored 
threespine stickleback (Gasterosteus aculaetus williamsoni) pursuant to 
the Endangered Species Act of 1973, as amended, (Act) should not be 
made final. On November 17, 1980, we proposed designating approximately 
51 kilometers (31.7 miles) of streams in Los Angeles and Santa Barbara 
Counties, California, as critical habitat for this species (45 FR 

FOR FURTHER INFORMATION CONTACT: Chief, Branch of Listing, U.S. Fish 
and Wildlife Service, 4401 N. Fairfax Drive, Room 420, Arlington, VA 
22203 (telephone 703/358-2105).


[[Page 58581]]


    The unarmored threespine stickleback is a small fish that we listed 
as endangered on October 13, 1970 (35 FR 16047), under the authority of 
the Endangered Species Conservation Act of 1969 (Pub. L. 91-135, 83 
Stat. 275 (1969)). The Endangered Species Conservation Act of 1969 had 
no requirement to designate critical habitat and accordingly, at the 
time of its listing, critical habitat was not proposed for the 
unarmored threespine stickleback.
    The Endangered Species Act of 1973 referred to the concept of 
critical habitat, requiring that Federal agency actions not modify or 
destroy habitat determined to be critical. However, the 1973 Act did 
not define critical habitat or specify a procedure for its designation 
(Pub. L. 93-205, 87 Stat. 884 (1973), codified at 16 U.S.C. 1536).
    Amendments to the Act, enacted on November 10, 1978, defined 
``critical habitat'' and provided that critical habitat ``may be 
established'' for species listed prior to the date of enactment of the 
1978 amendments, but did not make designation mandatory nor set a 
certain timeframe for designation (Pub. L. 95-632, section 2(2), 92 
Stat. 3751 (1978)). In 1982, amendments to the Act established the 
requirement to designate critical habitat at the time of listing to the 
extent such designation was prudent and determinable, but excluded from 
that requirement any species listed prior to November 10, 1978 (Pub. L. 
97-304, sections 2(a), 2(b)(4), 96 Stat. 1411 (1982)). Therefore, for 
species listed prior to the 1978 amendments, such as the unarmored 
threespine stickleback, we are not required to designate critical 
    At our discretion, on November 17, 1980, we published a proposal 
(45 FR 76012) to designate a total of approximately 51 kilometers (31.7 
miles) of streams in Los Angeles and Santa Barbara Counties, CA, as 
critical habitat for the unarmored threespine stickleback. We have not 
made a final designation of critical habitat for this species. The 
Endangered Species Act amendments of 1982 specified that, for any 
proposed designation of critical habitat pending at the time of 
enactment of the 1982 amendments, the procedures for revisions to 
critical habitat would apply (Pub. L. 97-304, section 2(b)(2)). 
Consequently, our 1980 proposal to designate critical habitat for the 
unarmored threespine stickleback is subject to the procedures for 
revisions to critical habitat.
    The relevant procedures for revisions to critical habitat are set 
out under section 4 of the Act. Section 4(a)(3)(B) provides that the 
Service ``may'' make revisions to critical habitat ``from time-to-time 
* * * as appropriate'' (16 U.S.C. 1533(a)(3)(B)). Section 4(b)(6)(A)(i) 
of the Act requires that within one year of publishing a proposed 
revision to critical habitat, the Service must publish in the Federal 
Register one of four possible actions: (1) A final rule to implement 
the revision; (2) a notice that the one-year period is being extended 
for up to six months for purposes of soliciting additional data due to 
substantial disagreement regarding the sufficiency or accuracy of the 
available data; (3) a notice that the proposed revision is being 
withdrawn, because there is insufficient evidence to justify the 
action; or (4) a finding that the revision should not be made. As 
explained below, we are taking the fourth of these possible actions.


    This notice presents our finding that the November 17, 1980, 
proposed designation of critical habitat, which is subject to the 
procedures for revisions to critical habitat in accordance with the 
1982 amendments to the Act, should not be made. In making this finding, 
we are exercising our discretion, provided under the 1978 and 1982 
amendments to the Act, not to designate critical habitat for this 
species. The basis for this finding is described below.
    Under the 1978 and 1982 amendments to the Act, the Service is not 
required to designate critical habitat for the unarmored threespine 
stickleback, but may do so at our discretion. Since the Service decided 
in 1980 to exercise its discretion and propose the designation of 
critical habitat for the species, section 4(b)(6)(A)(i) of the Act 
requires the Service to take one of four actions: implement the 
proposed designation, extend the time for taking action on the proposed 
designation, withdraw the proposed designation, or make a finding that 
the designation should not be made. After considering all of the 
relevant factors, we have determined that taking any of the first three 
actions is not justified, and have concluded that the critical habitat 
designation should not be made.
    We cannot justify exercising our discretion to issue a final rule 
to implement the proposed critical habitat designation, because the 
1980 proposal clearly does not satisfy the Act's requirement that the 
designation or revision of critical habitat shall be made on the basis 
of the best scientific data available and after taking into 
consideration the economic impact of specifying any particular area as 
critical habitat (16 U.S.C. 1533(b)(2)). The degree of specificity and 
scientific rigor that the Service now uses for designating critical 
habitat has evolved considerably since 1980. Moreover, it is likely 
that considerable new information regarding changes in habitat or other 
conditions has become available since 1980, and would need to be 
assessed to determine if the proposal needs to be revised. The economic 
information associated with the 1980 proposal is also out of date, and 
would need to be completely replaced with a new economic analysis.
    We also cannot justify formally extending the proposed action for 
six months to solicit additional data to address concerns regarding the 
sufficiency or accuracy of the data in the proposal. Considerable time 
and effort would be needed to update the information and conduct new 
analyses to bring the 1980 proposal to the point at which it would meet 
current standards, and to complete other procedural steps that would be 
associated with completing this discretionary action. Such an effort 
would come at the expense of critical habitat designations that the 
Service is required to make for other species. At the present time, we 
have a backlog of actions involving non-discretionary designations of 
critical habitat for approximately 475 species. These include actions 
that are mandated by court orders and court-approved settlement 
agreements, as well as actions necessary to implement the requirements 
of the Act pertaining to critical habitat designations. It will take us 
several years to clear this backlog, and during that time we also will 
need to meet non-discretionary requirements to designate critical 
habitat as additional species are listed. Meeting these requirements, 
for which we have no discretion, is a higher priority than taking 
discretionary actions.
    Finally, we cannot justify withdrawing the proposed regulation. To 
withdraw the proposed regulation, we must have made a judicially 
reviewable finding that ``there is not sufficient evidence to justify 
the action proposed by the regulation'' (16 U.S.C. 1533(b)(6)(B)(ii)). 
We have not made such a finding and would need to compile and analyze 
all the existing available information in order to determine whether 
such a finding could be made. Such an effort would come at the expense 
of critical habitat designations that the Service is required to make 
for other species. As discussed above, we currently have a large 
backlog of non-discretionary critical habitat

[[Page 58582]]

designations, and meeting those requirements is a higher priority than 
taking discretionary actions.
    Due to the discretion we have regarding the designation of critical 
habitat for species listed prior to the 1978 amendments to the Act, the 
staleness of the proposed rule, and our need to give priority to 
funding the large number of outstanding non-discretionary designations 
and to address new designations that will be required as additional 
species are listed, we find that the proposed designation of critical 
habitat for the unarmored threespine stickleback should not be made.
    This finding means that Federal agencies no longer are required to 
confer with us, under section 7(a)(4) of the Act, regarding any agency 
action that is likely to result in the destruction or adverse 
modification of the areas that were proposed for designation as 
critical habitat. The fact that we are making this finding and 
exercising our discretion not to designate critical habitat for the 
unarmored threespine stickleback does not, however, alter the 
protection this species and its habitat will continue to receive under 
the Act. Specifically, it does not alter the requirement of section 
7(a)(2) of the Act that all Federal agencies must insure that actions 
they authorize, fund, or carry out are not likely to ``jeopardize the 
continued existence'' of a listed species. Further, the section 9 
prohibition of take of the species, which applies to all land 
ownerships, is independent of whether critical habitat is designated 
and is unchanged by this finding.


    The authority for this action is section 4(b)(6)(A)(i)(II) of the 
Endangered Species Act of 1973, as amended, (16 U.S.C. 
1533(b)(6)(A)(i)(II)), Pub. L. 95-632, at 2(2), 92 Stat. 3751 (November 
10, 1978), and Pub. L. 97-304, at 2(b)(2), 2(b)(4), 96 Stat. 1411, 1416 
(October 13, 1982).

    Dated: September, 11, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-23645 Filed 9-12-02; 4:09 pm]