[Federal Register: February 26, 2004 (Volume 69, Number 38)]
[Proposed Rules]               
[Page 8911-8915]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT57

Endangered and Threatened Wildlife and Plants; Proposed Rule To 
Designate Critical Habitat for the Santa Ana Sucker (Catostomus 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Santa Ana sucker (Catostomus 
santaanae) pursuant to the 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. When final, this rulemaking would replace the critical habitat 
designation for Santa Ana sucker as promulgated today by a rule that 
amends 50 CFR 17.11(h) and 17.95(e).

DATES: We will accept comments from all interested parties until April 
26, 2004. We must receive requests for public hearings, in writing, at 
the address shown in the ADDRESSES section by April 12, 2004.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, California 92009 (telephone 760/431-9440 or facsimile 
    If you wish to comment, you may submit your comments and materials 
concerning this proposed rule by any one of several methods:
    1. You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife 
Office, 6010 Hidden Valley Road, Carlsbad, California 92009.
    2. You may hand-deliver written comments to our Office, at the 
address given above.
    3. You may send comments by electronic mail (e-mail) to 
fw1sasu@r1.fws.gov. Please see the Public Comments Solicited section 

below for file format and other information about electronic filing.

FOR FURTHER INFORMATION CONTACT: Jim Bartel at the address listed above 
(telephone 760/431-9440 or facsimile 760/431-9618).


Public Comments Solicited

    We solicit your comments on the proposed designation of critical 
habitat for the Santa Ana sucker. Comments particularly are sought 
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of Santa 
Ana sucker habitat, and what habitat is essential to the conservation 
of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other potential impacts resulting 
from the

[[Page 8912]]

proposed designation and, in particular, any impacts on small entities; 
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this rule by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to fw1sasu@r1.fws.gov in 
ASCII file format and avoid the use of special characters or any form 
of encryption. Please also include ``Attn: Santa Ana Sucker Critical 
Habitat'' in your e-mail subject header and your name and return 
address in the body of your message. If you do not receive a 
confirmation from the system that we have received your Internet 
message, contact us directly by calling our Carlsbad Fish and Wildlife 
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 


    The Santa Ana sucker was listed as a threatened species under the 
Act on April 12, 2000 (65 FR 19686). On March 19, 2002, California 
Trout, Inc., the California-Nevada Chapter of the American Fisheries 
Society, the Center for Biological Diversity, and the Friends of the 
River filed a complaint for declaratory and injunctive relief with the 
U.S. District Court for the Northern District of California. 
(California Trout v. DOI, No. 97-3779 (N.D.Cal.)). On February 26, 
2003, the district court 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. The court further enjoined the Service from issuing any section 7 
concurrence or biological opinion on a proposed Federal action that 
``may affect'' the Santa Ana sucker until completion of the 
    A final rule to designate critical habitat for the Santa Ana sucker 
is published in the Rules and Regulations section of this issue of the 
Federal Register. In order to comply with the designation deadline 
established by the district court, we were unable to open a public 
comment period, hold a public hearing, or complete an economic analysis 
of the final rule. However, we fully recognize the value and importance 
of public input in developing a critical habitat designation for the 
Santa Ana Sucker. Therefore, in order to allow members of the public an 
opportunity to comment on the critical habitat designation for the 
Santa Ana sucker, and to enable the Service to seek peer review of such 
designation and to complete and circulate for public review an economic 
analysis of critical habitat designation, we are publishing and 
soliciting comment on this proposed rule. The amendments made to 
17.11(h) and 17.95(e) in the final critical habitat rule published 
elsewhere in this issue of the Federal Register are the same as the 
amendments we are proposing in this proposed rule. In addition, the 
SUPPLEMENTARY INFORMATION for that final rule is the same as the 
SUPPLEMENTARY INFORMATION for this proposed rule. Because this proposed 

critical habitat rule incorporates by reference the substance of the 
final rule, please refer to the final rule in formulating your comments 
on this proposal. At the conclusion of this rulemaking process we will 
determine whether the final critical habitat rule for the Santa Ana 
sucker separately published in this issue of the Federal Register 
should be replaced with a new final rule.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as part of 
critical habitat. We cannot exclude such areas from critical habitat if 
such exclusion would result in the extinction of the species.
    An analysis of the economic impacts of proposing critical habitat 
for the Santa Ana sucker will be prepared. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. We specifically 
solicit public comment on exclusion under section 4(b)(2) of the Act of 
lands included within the Western Riverside Multi-Species Habitat 
Conservation Plan (MSHCP) and lands included within the Santa Ana 
Sucker Conservation Program on the Santa Ana River. When completed, 
copies of the draft economic analysis will be available for downloading 
from the Internet at http://carlsbad.fws.gov, or by contacting the 

Carlsbad Fish and Wildlife Office directly (see ADDRESSES section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period. We will 
schedule public hearings on this proposal, if any are requested, and 
announce the dates, times, and places of those hearings in the Federal 
Register and local newspapers at least 15 days prior to the first 

[[Page 8913]]

Required Determinations

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has not reviewed this 
proposed critical habitat designation in accordance with Executive 
Order 12866. In order to comply with the critical habitat designation 
deadline established by the district court, there was insufficient time 
for OMB to formally review this proposal.
    We are preparing a draft economic analysis of this proposed action, 
which will be available for public comment, to determine the economic 
consequences of designating the proposed areas as critical habitat.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by any Federal agency;
    (3) Road construction and maintenance, right-of-way designation, or 
any activity funded or permitted by the Federal Highway Administration;
    (4) Voluntary conservation measures by private landowners funded by 
the Natural Resources Conservation Service;
    (5) Regulation of airport improvement activities by the Federal 
Aviation Administration;
    (6) Licensing of construction of communication sites by the Federal 
Communications Commission; and,
    (7) Funding of activities by the U.S. Environmental Protection 
Agency, Department of Energy, Federal Emergency Management Agency, 
Federal Highway Administration, or any other Federal agency.
    The availability of the draft economic analysis will be announced 
in the Federal Register and in local newspapers so that it is available 
for public review and comments.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities. However, the SBREFA does not explicitly define 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. The 
SBREFA also amended the RFA to require a certification statement. We 
are hereby certifying that this proposed rule will not have a 
significant effect on a substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as 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 
rule as well as the 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.
    If this critical habitat designation is finalized, Federal agencies 
must consult with us if their activities may affect designated critical 
habitat. Measures to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
    Since the Santa Ana sucker was listed (2000), we have conducted 
approximately seven formal consultations involving this species. These 
formal consultations included: an intra-Service study investigating the 
effects of temporary cessation of water discharge on the sucker, flood 
control improvements in Reach 8 and 9 of the Santa Ana River, flood 
control improvements in Prado Basin, the operation of Prado Dam for 
water conservation, emergency sand mining activity to maintain safety 
of a bridge, the widening of Interstate 71, and a programmatic 
consultation for the Angeles National Forest. These consultations 
resulted in non-jeopardy biological opinions.
    We also conducted approximately five informal consultations since 
this species was listed. These informal consultations concerned 
activities such as: A seismic retrofit of six bridges, removal of 
nonnative vegetation, maintaining sewer line manholes and access, and 
continued use of recreational residences in the Angeles National 
Forest. Informal consultations regarding the Santa Ana sucker usually 
resulted in recommendations to employ erosion control measures, conduct 
certain activities by hand, conduct activities outside of spawning 
season, implement best management practices to avoid spilling hazardous 
materials, and avoidance of habitat, and resulted in little to no 
modification of the proposed activities. In reviewing these past 
informal consultations and the activities involved in light of proposed 
critical habitat, we do not believe the outcomes would have been 
different in areas designated as critical habitat.
    In summary, we have considered whether this proposed designation 
would result in a significant economic impact on a substantial number 
of small entities, and we have concluded that it would not. Future 
consultations are not likely to affect a substantial number of small 
entities. We have no indication that the types of activities we review 
under section 7 of the Act will change significantly in the future. 
Given that a large part of the critical habitat designation overlaps 
with already designated critical habitat (i.e., least Bell's vireo, 
southwestern willow flycatcher, San Bernardino kangaroo rat), or 
occupied habitat for other species (mountain yellow-legged frog, 
slender-horn spineflower, and woolly-star), we would expect no more 
than 1 additional section 7 consultation per year resulting from this 
rule as certain of the proposed critical habitat units are currently 
unoccupied by Santa Ana suckers. These consultations would likely 
address bridge widening, seismic retrofits of bridges, water diversion, 
water conservation, pipeline construction, post-fire actions, and fuel 

[[Page 8914]]

    This rule would result in major project modifications only when 
proposed activities with a Federal nexus would destroy or adversely 
modify critical habitat. Based on our experience in consultations 
involving designated critical habitat for other listed species, we are 
almost always able to work with the Federal action agency, and non-
Federal applicant, if any, to incorporate minor changes into a proposed 
project to avoid adverse modification of critical habitat and enable 
the project to go forward. While it is possible that major 
modifications to a proposed action might be necessary to avoid adverse 
modification of critical habitat, it is not expected to occur 
frequently enough to affect a substantial number of small entities. 
Therefore, we are certifying that the proposed designation of critical 
habitat for the Santa Ana sucker will not have a significant economic 
impact on a substantial number of small entities, and an initial 
regulatory flexibility analysis is not required.
    Our determination is based upon the information regarding potential 
economic impact that is available to us at this time. This assessment 
of economic effect may be modified prior to final rulemaking based upon 
review of the draft economic analysis prepared pursuant to section 
4(b)(2) of the ESA and E.O. 12866. This analysis is for the purposes of 
compliance with the Regulatory Flexibility Act and does not reflect our 
position on the type of economic analysis required by New Mexico Cattle 
Growers Assn. v. U.S. Fish & Wildlife Service 248 F.3d 1277 (10th Cir. 

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et. 

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 801 et seq.), this rule is not a major rule. As previously 
discussed, we have excluded critical habitat from private lands within 
the draft Western Riverside MSHCP and the SAS Conservation Program 
under section 4(b)(2) of the Act. The exclusion of these private lands 
and the activities associated with the draft Western Riverside MSHCP 
and SAS Conservation Program eliminates the potential for critical 
habitat in these excluded areas to have any effect on the increase in 
costs or prices for consumers or any significant adverse effects on 
competition, employment, investment, productivity, innovation or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. Moreover, approximately 48 percent of the designated 
critical habitat is on Forest Service lands that are not intensively 
used for commercial or business purposes and we anticipate that the 
designation will have little to no effect on costs or prices for 
consumers or any other significant commercial or business related 
activities. The remaining 52 percent of designated critical habitat 
that occurs on private lands is constrained by other existing 
conditions, such as being within wetlands regulated by the U.S. Army 
Corps of Engineers, floodplains identified by FEMA, or by the presence 
of listed species or other designated critical habitat. Therefore, we 
believe that this critical habitat designation will not have an effect 
on the economy of $100 million or more, will not cause a major increase 
in costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (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. 
This proposed rule to designate critical habitat for the Santa Ana 
sucker is not a significant regulatory action under Executive Order 
12866, and it 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 (2 U.S.C. 1501 
et seq.):
    (a) This rule will not produce a Federal mandate on State or local 
governments or the private sector of $100 million or greater in any 
year, that is, it is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act. The designation of critical habitat 
imposes no direct obligations on State or local governments.
    (b) This rule will not ``significantly or uniquely'' affect small 
governments so a Small Government Agency Plan is not required. Small 
governments will not be affected unless they propose an action 
requiring Federal funds, permits, or other authorizations. Any such 
activities will require that the Federal agency ensure that the action 
will not adversely modify or destroy designated critical habitat.


    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Santa Ana sucker in a takings 
implications assessment. The takings implications assessment concludes 
that this final designation of critical habitat for the Santa Ana 
sucker does not pose significant takings implications.


    In accordance with Executive Order 13132, this final rule does not 
have Federalism implications or impose substantial direct compliance 
costs on State and local governments. This designation requires Federal 
agencies to ensure that their actions do not adversely modify critical 
habitat; it does not impose direct obligations on State or local 
governments. A Federalism assessment is not required.
    The designations may have some benefit to the State of California 
and local government, in that the areas essential to the conservation 
of the Santa Ana sucker are more clearly defined, and the primary 
constituent elements of the habitat necessary to their survival are 
specifically identified. While this definition and identification do 
not alter where and what federally sponsored activities may occur, they 
may assist these local governments in long-range planning, rather than 
causing them to wait for case-by-case section 7 consultation to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Endangered Species Act. This 
proposed rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of the Santa Ana sucker.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not

[[Page 8915]]

conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244). This final determination 
does not constitute a major Federal action significantly affecting the 
quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands essential for the conservation of the Santa 
Ana sucker. Therefore, critical habitat for the Santa Ana sucker has 
not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Carlsbad Fish and 
Wildlife Office (see ADDRESSES section).


    The primary author of this document is the Carlsbad Fish and 
Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Rule Promulgation

    For the reasons set out in the preamble, we propose to amend 50 CFR 
17.11(h) and 17.95(e) to designate critical habitat for the Santa Ana 
sucker. The text of the proposed amendments is identical to the text of 
the final rule amendments made to 17.11(h) and 17.95(e) for the Santa 
Ana sucker, published elsewhere in this issue of the Federal Register.

    Dated: February 20, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-4226 Filed 2-25-04; 8:45 am]