Endangered and Threatened Wildlife and Plants; Final Rule To Designate Critical Habitat for the Santa Ana Sucker (Catostomus santaanae, 426-458 [04-28286]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Rules and Regulations]
[Pages 426-458]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-28286]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

Federal Register / Vol. 70 , No. 2 / Tuesday, January 4, 2005 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT57


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the threatened Santa Ana sucker (Catostomus 
santaanae) pursuant to the Endangered Species Act of 1973, as amended 
(Act). This 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, a tributary 
of the Los Angeles River in Los Angeles County. We have identified 
23,719 acres (ac) (9,599 hectares (ha)) of aquatic and riparian 
habitats essential to the conservation of the Santa Ana sucker. We are 
designating two areas in Los Angeles County, one along the San Gabriel 
River (Unit 2) and the other along the Big Tujunga Creek (Unit 3) as 
critical habitat for Santa Ana sucker. These units encompass 
approximately 8,305 ac (3,361 ha) of essential habitat for the Santa 
Ana sucker within Los Angeles County. Essential habitat for the Santa 
Ana sucker in Orange, Riverside, and San Bernardino counties has been 
excluded from the final critical habitat designation, because we have 
concluded that the benefits of excluding these lands from critical 
habitat designation outweigh the benefits of their inclusion pursuant 
to section 4(b)(2) of the Act.

DATES: This rule becomes effective on February 3, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
information used in this rulemaking, are available for inspection, by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, 
Carlsbad, California 92009. You may obtain copies of the final rule and 
the economic analysis from the field office address above or by calling 
(760) 431-9440, or from our Internet site at https://carlsbad.fws.gov.
    If you would like copies of the regulations on listed wildlife or 
have questions about prohibitions and permits, please contact the 
Carlsbad Fish and Wildlife Office (see ADDRESSES above).

FOR FURTHER INFORMATION CONTACT: Mr. Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office, at the address and phone number 
listed above.

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, and consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species or 36 percent 
of the 1,244 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat. We address the habitat needs 
of all 1,244 listed species through conservation mechanisms such as 
listing, section 7 consultations, the Section 4 recovery planning 
process, the Section 9 protective prohibitions of unauthorized take, 
Section 6 funding to the States, and the Section 10 incidental take 
permit process. The Service believes that it is these measures that may 
make the difference between extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed. The accelerated 
schedules of court ordered designations have left the Service with 
almost no ability to provide for adequate public participation or to 
ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals due to the risks associated with 
noncompliance with judicially-imposed deadlines. This in turn fosters a 
second round of litigation in which those who fear adverse impacts from 
critical habitat designations challenge those designations. The cycle 
of litigation appears endless, is very expensive, and in the final 
analysis provides relatively little additional protection to listed 
species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects, the cost of requesting and responding to public 
comment, and in some cases the costs of compliance with the National 
Environmental Policy

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Act (NEPA), all are part of the cost of critical habitat designation. 
None of these costs result in any benefit to the species that is not 
already afforded by the protections of the Act enumerated earlier, and 
they directly reduce the funds available for direct and tangible 
conservation actions.

Background

    This revised final rule addresses the designation of critical 
habitat for the Santa Ana sucker (Catostomus santaanae) (sucker), which 
is endemic to the Los Angeles River, the San Gabriel River, and the 
Santa Ana River, and assumed to be introduced to the Santa Clara River 
in California. In this revised final rule, we discuss information 
obtained since the proposed and original final critical habitat rules 
published concurrently in the Federal Register on February 26, 2004 (69 
FR 8911 and 69 FR 8839).
    The sucker has evolved in the dynamic hydrological systems of 
southern California and requires clean, clear, and relatively cool 
streams of varying width and depth with appropriate substrates (e.g., a 
mix of sand, gravel, cobble, and boulder). The sucker scrapes algae and 
invertebrates from hard substrates such as gravel and cobbles and 
spawns over a gravel and cobble substrate. Please refer to the final 
rule listing the species as threatened (65 FR 19686) and our previous 
final critical habitat rule (69 FR 8839) for a more detailed discussion 
about the species' physical description, ecology, range, distribution, 
and a discussion of factors affecting the species.

Previous Federal Action

    On July 9, 2001, California Trout, Inc., the California-Nevada 
Chapter of the American Fisheries Society, the Center for Biological 
Diversity, and the Friends of the River (plaintiffs) filed a 60-day 
notice of intent to sue over our failure to designate critical habitat 
for the Santa Ana sucker. The plaintiffs filed a second amended 
complaint for declaratory judgment and injunctive relief on March 19, 
2002, with the U.S. District Court for the Northern District of 
California. On February 26, 2003, the district court ordered the 
Service to designate final critical habitat for the Santa Ana sucker by 
no later than February 21, 2004, and enjoined the Service from issuing 
any section 7 concurrence letters or biological opinions on actions 
that ``may affect'' the sucker until such time as the final critical 
habitat is designated. The Service published the proposed and final 
rules concurrently on February 26, 2004 (69 FR 8911 and 69 FR 8839). As 
a result, the injunction prohibiting the issuance of biological 
opinions and concurrence letters was lifted. See the proposed rule (69 
FR 8911) for a discussion of why the final rule and proposed rule were 
published at the same time.
    The proposed critical habitat rule, published on February 26, 2004 
(69 FR 8911), included a 60-day comment period during which the public 
could submit comments on the proposed designation. On August 19, 2004, 
we published a notice in the Federal Register (69 FR 51416) announcing 
the reopening of a 30-day comment period on the proposed critical 
habitat rule and the scheduling of a public hearing, which was held in 
Pasadena, California on September 9, 2004. On October 1, 2004, we 
published a Federal Register notice (69 FR 58876) announcing the 
availability of the draft economic analysis of the proposed critical 
habitat designation and reopening a 10-day public comment period for 
the economic analysis and proposed designation. On October 25, 2004, we 
published another notice in the Federal Register (69 FR 62238) 
reopening a 30-day comment period on the draft economic analysis and 
the proposed designation.

Summary of Comments and Recommendations

    During the initial 60-day public comment period for the proposed 
rule (69 FR 8911), we contacted all appropriate State and Federal 
agencies, county governments, elected officials, scientific 
organizations, and other interested parties, via mail and/or fax, and 
invited them to submit comments and/or information concerning the 
proposed rule. We also published newspaper notices in the The Press-
Enterprise, Riverside, CA, and in the Los Angeles Times, Los Angeles, 
CA, inviting public comment. During the first comment period, we 
received comments from three county agencies, three water districts, 
two businesses, three groups, and 14 individuals. Of the 22 letters we 
received, four letters supported the designation as proposed, six 
letters suggested expanding the designation, six letters suggested 
reducing the designation, one letter requested clarification of the 
designation, and five letters were neutral.
    During the second comment period, we received comments from one 
utility agency, three groups, and four individuals. Of the six letters 
we received, one letter supported the designation as proposed, two 
letters suggested expanding the designation, one letter suggested 
reducing the designation, and two letters were neutral. At the public 
hearing during the second comment period, we received 21 oral comments, 
all of which requested a reduction in the designation. A transcript of 
the hearing is available for inspection (see ADDRESSES section).
    During the third comment period (October 1 to 12, 2004), which 
regarded the draft economic analysis, we received comments from 1 
county agency, 3 water districts, 1 business, 4 groups, and 2 
individuals. Of the 7 letters we received, 4 letters were requests for 
an extension of the comment submission period, and 3 letters contained 
suggestions for improvements to the draft economic analysis. Of the 
latter 3 letters, 1 supported the designation as proposed and 2 
suggested reducing the designation.
    During the fourth comment period (October 25 to November 24, 2004), 
which regarded the draft economic analysis, we received comments from 7 
groups, 8 individuals, and 1 project authority (representing 1 county 
agency and 4 water districts). Of the 13 letters we received, 10 
letters supported the designation as proposed, 2 letters suggested 
reducing the designation, and 1 letter requested clarification of the 
draft economic analysis. (After the comments deadline, we received 2 
letters with comments from 1 county agency suggested reducing the 
designation, and a letter from 1 business requesting an extension of 
the comments deadline.)
    In accordance with our peer review policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we requested the expert 
opinions of seven independent specialists who are recognized 
authorities on freshwater fish of Southern California regarding 
pertinent scientific or commercial data and assumptions relating to the 
supporting biological and ecological information in the proposed 
designation. The purpose of such review is to ensure that the 
designation is based on scientifically sound data, assumptions, and 
analyses, including input of appropriate experts and specialists.
    We reviewed all comments, including the oral statements presented 
at the public hearing and the written comments received from peer 
reviewers and the public during the comment periods, for substantive, 
relevant issues and new data regarding critical habitat and the Santa 
Ana sucker. Peer reviewer comments are summarized separately in the 
following section. We have grouped public comments into six general 
issues relating to critical habitat and the draft economic analysis, 
combined and

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summarized similar comments, and provided our responses in the Public 
Comments section below.

Peer Review Comments

    We received three written responses from peer reviewers 
recommending expansion of critical habitat and one written response 
supporting critical habitat as designated. One additional peer reviewer 
supported designated critical habitat, but this letter was received 
after the deadline. Two peer reviewers supplied specific edits and 
comments on the critical habitat unit boundaries and the primary 
constituent elements. Comments from peer reviewers have been 
incorporated into this final rule as appropriate.
    (1) Comment: The upper boundary of critical habitat on the East 
Fork of the San Gabriel River should be the Bridge-of-No-Return and was 
incorrectly delineated on the map in the final rule (69 FR 8859).
    Our Response: We acknowledge that this upper boundary was 
incorrectly delineated on the map of Unit 2 in the original final rule. 
This area was also inadvertently left out of the legal description of 
the unit. As a result, we cannot include the area in the revised final 
designation even though this area is essential to the conservation of 
the sucker. We may, under the Act, revise the designation of critical 
habitat in the future to include this area.
    (2) Comment: The stretches of the San Gabriel River between the San 
Gabriel Dam and the Morris Dam reservoir, between the Highway 39 bridge 
and the Fish Canyon confluence with the river, and upstream of Cogswell 
Dam should be included in critical habitat because these areas contain 
potentially occupied and/or restorable habitat.
    Our Response: Although we appreciate the importance of potentially 
suitable habitat within these stretches of the San Gabriel River, we do 
not have sufficient information to determine if these portions of the 
river contain the primary constituent elements essential to the 
conservation of the sucker and therefore, we could not designate these 
areas as critical habitat. Under the Act, we can revise critical 
habitat in the future if new information becomes available indicating 
that these areas are essential.
    (3) Comment: Devil's Gulch, a tributary to the East Fork of the San 
Gabriel River, should not have been included in designated critical 
habitat because it does not support the Santa Ana sucker.
    Our Response: Devil's Gulch was not designated as critical habitat.
    (4) Comment: There is a barrier to fish movement upstream from the 
San Gabriel River into Big Mermaid's Canyon and therefore Big Mermaid's 
Canyon should not be designated as critical habitat.
    Our Response: Using the best available information, including 
records from the California Natural Diversity Database (CNDDB), we 
determined that Big Mermaid's Canyon previously supported suckers and 
still is essential to the conservation of the sucker in that it 
transports water and substrate essential to the maintenance of occupied 
sucker habitat downstream.
    (5) Comment: Haines Creek should be specifically described as part 
of designated critical habitat for the sucker.
    Our Response: Haines Creek is located within the boundaries of the 
Big Tujunga Creek Critical Habitat Unit (Unit 3), and has been 
specifically listed in the description of this unit in this revised 
final rule.
    (6) Comment: The Service has not adequately supported its statement 
that the upper Santa Ana Wash and tributaries provide sediment 
transport to occupied habitat.
    Our Response: We based the Santa Ana sucker critical habitat 
designation on the best available information, including expert opinion 
(Dr. Thomas Haglund, Ichthyologist, pers. comm. 2004; Dr. Jonathan 
Baskin, Ichthyologist, California State Polytechnic University, Pomona, 
pers. comm. 2004) and studies in similar river systems in California 
(NOAA 2003).
    While the Santa Ana Wash was proposed as critical habitat based on, 
among other things, its contribution of sediments and maintenance of a 
functioning hydrograph, these attributes do not, of themselves, warrant 
determining that an area is ``essential to the conservation of the 
species'', which is the statutory standard for designation of 
unoccupied areas. Therefore, Unit 1B, Santa Ana Wash, has been removed 
from the revised designation. The basis for this removal is summarized 
in the section entitled ``Summary of Changes''.
    (7) Comment: The criteria used to designate individual tributaries 
in Unit 1B, the Santa Ana Wash and in Unit 3, Big Tujunga Creek as 
critical habitat were not consistently applied.
    Our Response: We based our determination to designate tributaries 
in Unit 1B and Unit 3 on the best available data, including aerial 
photographs and historical sucker occurrences. We determined that these 
tributaries maintain a functioning hydrological system, provide and 
transport sediment downstream to occupied habitat, support riparian 
systems, and maintain the long-term viability of the sucker 
populations. We believe that we applied these criteria consistently to 
each area designated as critical habitat. Please refer to the Methods 
and Criteria Used To Delineate Critical Habitat section of this rule 
for a more detailed discussion. However, the Santa Ana Wash and 
associated tributaries within Unit 1B have been excluded from the 
revised designation. The basis for this exclusion is summarized in the 
section entitled ``Summary of Changes''.
    (8) Comment: The primary constituent element describing substrate 
types should be refined to include low-embeddedness.
    Our Response: We concur and have revised the description of the 
primary constituent element describing substrate. Please refer to the 
Primary Constituent Elements section of this rule for a detailed 
description.
    (9) Comment: Minimum water depth of from 3 to 30 centimeters (cm) 
(1.2 to 11.8 inches (in)) should be changed. Depths less than 4 cm (1.6 
in) would not provide habitat for most life stages of the sucker.
    Our Response: We used 3 cm (1.2 in) as the minimum water depth 
because of the observations of larval suckers in sandy habitats with 
depths of 3 to 10 cm (1.2 to 3.9 in) of water along the margins of 
rivers and streams (Haglund et al., 2004).
    (10) Comment: Juvenile suckers migrate into tributaries, possibly 
attracted by the cooler temperatures these tributaries experience in 
the spring. Therefore, tributaries should be included as a primary 
constituent element in critical habitat. Sunnyslope Creek, Arroyo 
Tequesquite, Evans Lake Drain, Mt. Rubidoux Creek, Agua Mansa Drain, 
and the tributaries draining Hidden Valley Regional Park wetlands 
should be included as critical habitat.
    Our Response: If a tributary within the critical habitat boundaries 
contained one or more of the primary constituent elements, then it was 
considered essential habitat. Some tributaries within the critical 
habitat boundaries do not contain any of the primary constituent 
elements and were not, therefore, considered essential. For example, a 
concrete-lined storm drain directing urban runoff into one of the 
rivers is unlikely to provide any of the primary constituent elements 
essential to the conservation of the species. Although we did not 
specifically describe tributaries as a primary constituent element, 
they are necessary in a functioning hydrological system and are 
included in the critical habitat designation where appropriate.

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    Several of the drains, creeks, and other tributaries listed by the 
commenter contain the primary constituent elements and are considered 
essential habitat but were excluded from the critical habitat 
designation under section 4(b)(2) of the Act, because they are 
protected under the Western Riverside Multiple Species Habitat 
Conservation Plan (MSHCP).
    (11) Comment: Unnatural or anthropogenic ebbs and peaks in water 
volume may be inadvertently included as primary constituent elements, 
since the description of a functioning hydrological system as a primary 
constituent element did not specify that it must contain a natural 
hydrograph.
    Our Response: We concur and have revised the primary constituent 
element describing a functional hydrological system. Please refer to 
the Primary Constituent Elements section of this rule for a detailed 
description.

Public Comments

Issue 1: Comments on the Adequacy and the Extent of Critical Habitat 
Designation

    (12) Comment: Critical habitat should be designated in the Santa 
Clara River because (1) the Santa Clara River is essential to the 
conservation of the Santa Ana sucker, (2) the population provides 
increased genetic variability to the overall sucker population, (3) the 
Santa Clara River is threatened by rapid development within its 
watershed, and (4) the Santa Clara River is not otherwise protected 
under the Act. The Santa Ana sucker in the Santa Clara River should be 
listed under the Act, since there remains much ambiguity regarding its 
status as an introduced species in the Santa Clara River.
    Our Response: Since the sucker population in the Santa Clara River 
is not federally listed (65 FR 79686), critical habitat could not be 
designated for that population. The sucker was not listed in the Santa 
Clara River due to the lack of evidence showing the sucker was native 
to the Santa Clara River. Our earliest record of the sucker in the 
Santa Clara River watershed is from 1934 (Hubbs et al. 1943). 
Conversely, we have records of the sucker in the Santa Ana River from 
1897 (Snyder 1908). Therefore, based on the best available data, we 
have presumed the sucker in the Santa Clara River was introduced. If we 
determine the Santa Clara River population to be crucial to the 
recovery of the species as we prepare the recovery plan, we may need to 
reevaluate the status of this population under the Act.
    (13) Comment: Since the area below Prado Dam in the Santa Ana River 
is not adequately protected by either the Santa Ana Sucker (SAS) 
Conservation Program or by the Western Riverside MSHCP, it should be 
included in the critical habitat designation. Since the SAS 
Conservation Program focuses conservation efforts on the upper stretch 
of the Santa Ana River, it may not adequately address the conservation 
needs of the sucker throughout the Santa Ana River. Another commenter 
stated that the benefits of including the areas covered by these plans 
in the critical habitat designation outweigh potential costs to other 
agencies and that critical habitat designation provides greater 
benefits to the sucker than either of the plans.
    Our Response: Section 4(b)(2) of the Act allows the Service to 
exclude any area from critical habitat if we determine that the 
benefits of such an exclusion outweigh the benefits of including the 
area in the critical habitat designation, unless, based on the best 
scientific and commercial data available, we determine that failure to 
designate the area as critical habitat will result in the extinction of 
the species. Exclusions can be based on Integrated Natural Resource 
Management Plans (INRMPs) on military lands, Habitat Conservation Plans 
(HCPs), or other formal conservation plans; except for INRMPs, plans 
must provide conservation benefits to the species as well as assurances 
that the plan will be implemented and the conservation effort will be 
effective. We have determined that both the Western Riverside MSHCP and 
the SAS Conservation Program satisfy these requisites, and have, 
therefore, concluded that the benefits of excluding the lands covered 
by these plans from the final critical habitat designation outweigh the 
benefits of including these areas. As such, they are excluded from 
critical habitat designation. See Lands Covered Under Existing 
Conservation Plans for a detailed discussion.
    (14) Comment: Habitat within the boundaries of the Western 
Riverside MSHCP and SAS Conservation Program meet the definition of 
critical habitat and should be included in designated critical habitat.
    Our Response: Although the habitat within the boundaries of these 
conservation plans contains one or more of the physical and biological 
characteristics essential to the conservation of the sucker, we have 
determined that these conservation plans provide special management 
and/or protection for the Santa Ana sucker, and have concluded that the 
benefits of excluding the lands covered by these plans from the final 
critical habitat designation outweigh the benefits of including these 
areas. Thus, we have excluded these areas from critical habitat 
designation under 4(b)(2) of the Act.


Issue 2: Comments on Individual Units

    (15) Comment: Commenters stated that Santa Ana suckers are 
declining as a result of heavy recreational use in the San Gabriel 
River. Conversely, some other commenters stated suckers in the San 
Gabriel River were not declining as the result of recreational 
activities or as a result of the use of summer homes.
    Our Response: Based on the best available information, we believe 
that recreational suction dredging, artificial pool creation, off-road 
vehicle use, swimming, wading, bathing, and the use of recreational 
summer homes may have varying detrimental effects on the Santa Ana 
sucker.
    Suction dredging, which occurs on a recreational basis in the San 
Gabriel River can result in the death of fish eggs, larvae, and fry 
(Harvey and Lisle 1998; Griffith and Andrews 1981). Suction dredging 
can also change the functional composition of the invertebrate 
community and increase sedimentation rates in sensitive spawning and 
feeding habitats (Somer and Hassler 1992).
    The use of the river as an off-highway vehicle (OHV) recreational 
area may result in adverse effects to the sucker, if the OHV use occurs 
in areas used by the sucker during the spawning and nursery season, or 
if vehicles leak oil, gas, and other pollutants into the river. OHV use 
can change the physical structure of habitat (Wender and Walker 1998; 
Texas Chapter of American Fisheries Society 2002; Brown 1994), crush 
eggs and larvae within the substrate (Texas Chapter of American 
Fisheries Society 2002), and reduce the taxonomic diversity of the 
macroinvertebrate and algal species (Texas Chapter of American 
Fisheries Society 2002) which is the food base for the sucker (Haglund 
and Baskin 2003; Greenfield et al. 1970). Haglund and Baskin (2002) 
recently completed a one-year study in the San Gabriel River; their 
results suggest that macroinvertebrate diversity was reduced in vehicle 
ruts and tracks. However, they concluded there was no evidence at that 
time to indicate that the intensity of OHV usage was related to trends 
in native fish populations (although they recommended further 
investigation before drawing firm conclusions).
    Swimming, wading, and bathing can degrade the physical structure 
and

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water quality of streams. Erosion associated with heavy recreational 
use along streambanks contributes to degraded habitat conditions 
including increased sedimentation in potential spawning and feeding 
grounds and loss of habitat structure (e.g., pools, riffles, shallow 
sandy margins) that provide essential elements to the survival of the 
sucker. The damming of the river to create recreational swimming pools 
may temporarily eliminate fish passage and limit the availability of 
suitable habitat for the sucker (Ally, in litt. 2001). Pollution 
associated with personal care products (e.g., suntan lotion, shampoo, 
soap, insect repellent) that can be released into the aquatic 
environment during swimming, wading, and bathing can have adverse 
physiological effects on the endocrine system of fishes (Daughton and 
Ternes 1999).
    We have been working and will continue to work with the U. S. 
Forest Service (Forest Service) to ensure their actions with respect to 
the sucker will not result in jeopardy to or take of the species. The 
Forest Service has recently implemented measures to reduce OHV activity 
in areas in which suckers are suspected to spawn as part of the Angeles 
National Forest Santa Ana Sucker Conservation Strategy.
    (16) Comment: The San Gabriel Canyon OHV Area is currently a 
Department of Defense training facility and is also covered under a 
Forest Service management plan. Therefore, this area should be excluded 
from designated critical habitat.
    Our Response: Section 4(b)(2) of the Act allows the Service to 
exclude any area from critical habitat if the Service determines the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of critical habitat, unless, based on the best scientific 
and commercial data available, the Service determines that failure to 
designate the area as critical habitat will result in the extinction of 
the species. Exclusions can be based on INRMPs for military lands, 
HCPs, and formal conservation plans. We have confirmed with the Forest 
Service that the Department of Defense does not currently use the San 
Gabriel Canyon OHV Area as a training facility (Bill Brown, U.S. Forest 
Service, pers. comm. 2004), and therefore does not qualify for 
exclusion as provided for military lands under section 4(b)(2) of the 
Act.
    The Service must determine that a management plan provides a 
conservation benefit to the species, and assurances that the management 
plan will be implemented, and the conservation effort will be 
effective. We have reviewed the San Gabriel Canyon Off-Road Vehicle 
Management Plan (U.S. Forest Service 1985) for consistency with the 
aforementioned criteria. While we appreciate the significant amount of 
effort private individuals and the Forest Service have expended in the 
development of this management plan, it does not adequately address the 
conservation needs of the sucker in the San Gabriel River and 
therefore, we cannot exclude this area from the critical habitat 
designation under 4(b)(2) of the Act. We are working with the Forest 
Service to better conserve the sucker in this area.
    (17) Comment: Only a small portion of the San Gabriel Canyon OHV 
Area contains suitable habitat for the Santa Ana sucker.
    Our Response: Our regulations allow us to designate critical 
habitat in areas where the species is not present if they are in 
proximity to areas occupied by the species and are essential to their 
conservation (50 CFR 424.12(d)). Although suckers may not occupy this 
area when the reservoir is full, this area does provide a linkage 
between the West, East, and North Forks of the San Gabriel River. 
Linkages are essential to maintaining the genetic structure and 
viability of the species in this river. Therefore, we consider all 
portions of the San Gabriel Canyon OHV Area within the geographical 
boundaries of the designation as critical habitat.
    (18) Comment: Habitat for the sucker is not present in the plunge 
pool immediately downstream of Cogswell Dam or for 1,000 feet 
downstream of Cogswell Dam in the West Fork of San Gabriel River. 
Therefore, this section of the river should be excluded from critical 
habitat.
    Our Response: Based on the best available information, we have 
determined that this area of the West Fork of the San Gabriel River 
contains substrate, vegetation, and water that are essential for the 
conservation of the species (Haglund and Baskin 1996; Haglund and 
Baskin 1995; U.S. Forest Service 2003). The Santa Ana sucker was 
detected in the vicinity of this area during the last decade (Haglund 
and Baskin 1996). Therefore, since this area had been occupied and 
since it contains the primary constituent elements of critical habitat, 
this area will remain designated as critical habitat. Under the Act, we 
can revise critical habitat in the future, if new information becomes 
available.
    (19) Comment: A 1,000-foot portion of the East Fork of the San 
Gabriel River downstream of the confluence of the East, West, and North 
forks should be excluded from critical habitat because critical habitat 
designation will limit the implementation of flood protection measures, 
the amount of water that can be stored behind the San Gabriel Dam, and 
revenue for the hydroelectric plant located downstream of the dam.
    Our Response: This area was included in the critical habitat 
designation because it provides a linkage between the West, East, and 
North Forks of the San Gabriel River. Linkages are essential to 
maintaining the genetic structure and viability of the species in this 
river. Our regulations allow us to designate critical habitat in areas 
where the species is not present if they are in proximity to areas 
occupied by the species and are essential to their conservation (50 CFR 
424.12(d)). In addition, significant numbers of suckers were detected 
in the vicinity of this area during recent surveys (M. Chimienti, Los 
Angeles County Department of Public Works, pers. comm. 2004). 
Therefore, this area of the East Fork of the San Gabriel River will 
remain in the critical habitat designation. Under the Act, we can 
revise critical habitat in the future, if new information becomes 
available.
    (20) Comment: Within the San Gabriel River, critical habitat should 
be designated between Morris Dam and Fish Canyon as well as lower San 
Jose Creek, a tributary to San Gabriel River. The commenter did not 
state why this area should be designated.
    Our Response: Although we appreciate the potential for habitat in 
this portion of the San Gabriel River and lower San Jose Creek, we do 
not have sufficient information to determine if these areas contain the 
primary constituent elements essential to the conservation of the 
sucker. Therefore, we cannot designate these areas as critical habitat. 
Under the Act, we can revise critical habitat in the future, if new 
information becomes available.
    (21) Comment: Within Big Tujunga Creek, habitat for the sucker is 
not present in the plunge pool immediately below Big Tujunga Dam or for 
one mile downstream of Big Tujunga Dam. Therefore, these sections of 
Big Tujunga Creek should be excluded from critical habitat.
    Our Response: We have determined that the upstream sections of the 
Big Tujunga Creek transport sediment from upstream tributaries to known 
occupied habitat in the lower Big Tujunga Creek. In addition, this 
portion of the creek meets the definition of critical habitat since it 
contains water, substrates, and riparian and aquatic vegetation 
essential for the conservation of the species (Andresen 2001; Haglund 
and Baskin 2001). Although some structures in this area may seasonally 
limit upstream movement of suckers, these structures

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are not necessarily year-round impediments to fish passage (Swift 
2002). Therefore, since this area maintains essential habitat 
downstream, has a strong potential to be occupied, and contains the 
primary constituent elements of critical habitat, this area is 
essential to the conservation of the species and will remain in the 
critical habitat designation. Under the Act, we can revise critical 
habitat in the future, if new information becomes available.
    (22) Comment: Habitat is not present within an unnamed tributary of 
Big Tujunga Creek that is 500 feet downstream of Foothill Boulevard.
    Our Response: We have not been provided with enough information to 
determine the location of this unnamed tributary. However, the 
floodplain of Big Tujunga Creek meets the definition of critical 
habitat since it contains the necessary hydrology, substrates, water, 
and vegetation essential to the conservation of the species. Therefore, 
any tributaries with these primary constituent elements are considered 
critical habitat when they are within the Big Tujunga Creek floodplain. 
Under the Act, we can revise critical habitat in the future, if new 
information becomes available.
    (23) Comment: Some commenters stated that Little Tujunga Creek in 
Unit 3 should be excluded from critical habitat because it is not 
occupied by the sucker, and does not provide sediment or water to 
occupied habitat in Big Tujunga Creek. Other commenters emphasized the 
importance of maintaining the original area proposed as critical 
habitat, including Little Tujunga Creek.
    Our Response: Based on comments and information we received during 
the public comment periods and additional field investigations, we have 
removed Little Tujunga Creek upstream of its confluence with Big 
Tujunga Creek from the final critical habitat designation and revised 
the maps accordingly.
    (24) Comment: In Unit 3, critical habitat should be designated in 
Trail Canyon and La Paloma Canyon and all other tributaries to the Big 
Tujunga Creek.
    Our Response: Although we appreciate the potential for habitat and 
water supply in Trail and La Paloma Canyons, as well as in many of the 
other tributaries to Big Tujunga Creek, we do not have sufficient 
information to determine if these tributaries contain the primary 
constituent elements essential to the conservation of the sucker. 
Therefore, we cannot designate these areas as critical habitat. Under 
the Act, we can revise critical habitat in the future, if new 
information becomes available.
    (25) Comment: Critical habitat should be designated in the Los 
Angeles River between State Route 134 and Interstate 5.
    Our Response: Although we appreciate the potential for habitat in 
this portion of the Los Angeles River, we do not have sufficient 
information to determine if it contains the primary constituent 
elements essential to the conservation of the sucker. Therefore, we 
cannot designate this area as critical habitat. Under the Act, we can 
revise critical habitat in the future, if new information becomes 
available.
    (26) Comment: Unit 1B (Santa Ana Wash) is not occupied and 
therefore is not essential to the conservation of the species. Also, 
Mill Creek is generally dry and could not support the sucker. 
Furthermore, the Service has not demonstrated that Unit 1B supports a 
natural hydrograph, is essential to the conservation of the species, or 
is necessary for the long-term viability of the species.
    Our Response: As stated in the previous final critical habitat rule 
or listing rule, Mill Creek, City Creek, and the upper Santa Ana Wash 
in Unit 1B are a source of sediment for the occupied portion of the 
Santa Ana River (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan 
Baskin, pers. comm. 2004; EIP Associates 2004). This sediment, which is 
composed of cobble, gravel, and sand, provides spawning and feeding 
substrates for the sucker and is essential to the conservation of the 
species.
    In addition to sediment transport, Unit 1B supports a functioning 
hydrological system (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan 
Baskin, pers. comm. 2004) that experiences peaks and ebbs in water 
volume within the Santa Ana River watershed (Dr. Thomas Haglund, pers. 
comm. 2004; Dr. Jonathan Baskin, pers. comm. 2004). Although much of 
the surface water within Unit 1B has been diverted for municipal uses 
or other purposes, heavy rainstorms during the rainy season do provide 
flows that are biologically important to the sucker (Swift 2001; EIP 
Associates 2004).
    While the Santa Ana Wash was proposed as critical habitat based on, 
among other things, its contribution of sediments and maintenance of a 
functioning hydrograph, these attributes do not, of themselves, warrant 
determining that an area is ``essential to the conservation of the 
species'', which is the statutory standard for designation of 
unoccupied areas. Therefore, Unit 1B, Santa Ana Wash, has been removed 
from the revised designation. The basis for this removal is summarized 
in the section entitled ``Summary of Changes''.
    (27) Comment: Unit 1B does not support riparian systems that are 
essential to the conservation of the sucker.
    Our Response: As stated in previous rules, the existing riparian 
habitat in City Creek, Mill Creek, and the upper Santa Ana Wash in Unit 
1B contributes to maintaining water quality and the community structure 
essential for the conservation of the sucker. City Creek, Mill Creek, 
and the upper Santa Ana Wash contribute organic nutrients (e.g., woody 
debris, invertebrates) to the system (Klapproth and Johnson 2000a; 
Sweeney 1993) and filter pollutants and sediments entering the 
watershed (Mills and Stevenson 1999; Klapproth and Johnson 2000b.
    Unit 1B, Santa Ana Wash, has been removed from the revised 
designation. The basis for this removal is summarized in the section 
entitled ``Summary of Changes''.
    (28) Comment: In Unit 1B, the Service inconsistently and 
arbitrarily included a portion of the Santa Ana River covered by the 
Santa Ana Sucker (SAS) Conservation Program. This portion of the river 
extends upstream from the La Cadena Avenue bridge to the Mission 
Channel confluence with the Santa Ana River.
    Our Response: The portion of Unit 1B between the La Cadena Avenue 
bridge and the Mission Channel confluence was inadvertently included in 
the previous critical habitat designation. The text and maps have been 
modified in this revised final rule to reflect the exclusion of all 
areas covered by the SAS Conservation Program as allowed under section 
4(b)(2) of the Act (see Unit 1 map).
    (29) Comment: There are no new anticipated impacts to the Santa Ana 
Wash (Unit 1B) and therefore, it should be excluded from critical 
habitat designation.
    Our Response: The Santa Ana Wash is threatened by rapid development 
of the Santa Ana River watershed in San Bernardino County, and by the 
demand for increased building materials (e.g., sand and gravel) and 
water supplies. However, Unit 1B, Santa Ana Wash, has been removed from 
the revised designation. The basis for this removal is summarized in 
the section entitled ``Summary of Changes''.
    (30) Comment: Chino Creek in Unit 1A does not contain habitat for 
the Santa Ana sucker and should be removed from the critical habitat 
designation.

[[Page 432]]

    Our Response: Chino Creek supported the Santa Ana sucker 
historically (Koehn, in litt. 1966), and still contains one or more of 
the primary constituent elements (Swift, pers. comm. 2004). In 
addition, the riparian habitat adjacent to the stream and the stream's 
contribution to the overall hydrological regime help the sucker 
population in the Santa Ana River.
    While Chino Creek in the Northern Prado Basin was proposed as 
critical habitat based on, among other things, its contribution of 
sediments and maintenance of a functioning hydrograph, these attributes 
do not, of themselves, warrant determining that an area is ``essential 
to the conservation of the species'', which is the statutory standard 
for designation of unoccupied areas. Therefore, Unit 1A, Northern Prado 
Basin, has been removed from the revised designation. The basis for 
this removal is summarized in the section entitled ``Summary of 
Changes''.
    (31) Comment: Critical habitat should be designated in Cajon Creek, 
a tributary to the Santa Ana River.
    Our Response: Although we appreciate the potential for sucker 
habitat in Cajon Creek, we do not have sufficient information to 
determine if this tributary contains the primary constituent elements 
essential to conservation of the sucker. Therefore, we cannot designate 
this tributary as critical habitat. Under the Act, we can revise 
critical habitat in the future, if new information becomes available.
    (32) Comment: Please clarify if energy facilities are specifically 
excluded from the designated critical habitat and whether this includes 
powerhouse number 3 on Mill Creek in Unit 1B.
    Our Response: We have clarified the language in the final rule to 
specifically exclude energy production facilities from the critical 
habitat designation. However, stream channels adjacent to energy 
production facilities within the geographical boundaries of the 
critical habitat designation that contain one or more of the primary 
constituent elements are considered critical habitat. Unit 1B, which 
includes Mill Creek, has been removed from the revised critical habitat 
designation.

Issue 3: Comments on Science

    (33) Comment: Information used in designating critical habitat was 
inaccurate, insufficient, and not the best available data.
    Our Response: We believe we used the best available commercial and 
scientific data to designate critical habitat for the sucker, including 
peer-reviewed primary source journal articles, expert opinions, species 
survey reports, project reports, and other scientific studies. All new 
information provided during the public comment periods was considered 
in this final designation as appropriate.

Issue 4: Procedural and Legal Comments

    (34) Comment: The Service cannot exclude lands covered by 
conservation plans from critical habitat if those plans use public 
funds and lands to mitigate the taking of threatened and endangered 
species by private applicants for private purposes.
    Our Response: Section 4(b)(2) of the Act allows the Service to 
exclude any area from critical habitat if the Service determines the 
benefits of such exclusion outweigh the benefits of designating such 
area as critical habitat, unless, based on the best scientific and 
commercial data available, the Service determines that failure to 
designate the area as critical habitat will result in the extinction of 
the species. Exclusions under section 4(b)(2) can be based on INRMPs, 
HCPs, and formal conservation plans, or other relevant considerations. 
In the case of HCPs and other formal conservation plans, the Service 
must determine that the plan provides conservation benefit to the 
species, and assurances that the management plan will be implemented 
and the conservation effort will be effective. The Service is not 
prohibited from excluding lands covered by plans using public funds or 
public lands if the plan meets the aforementioned criteria.
    (35) Comment: The Service unlawfully pre-determined that the 
exclusion of essential sucker habitat from designated critical habitat 
outweighs any benefit.
    Our Response: We issued the final rule (69 FR 8839) designating 
critical habitat for the sucker without the opportunity for public 
comment, because we found it would be impracticable and contrary to the 
public interest to delay the effective date of the final rule (see 
comment 37 for further details). In the proposed rule (69 FR 8911) that 
was published concurrently with the final rule, we specifically 
solicited comments from the public on the exclusion of essential 
habitat from the critical habitat designation. If additional 
information had been submitted during the comment period indicating 
that the conservation plans on which these exclusions were based were 
not conserving the sucker, we could have re-proposed critical habitat 
for the excluded areas. However, we did not receive any comments to 
that effect. Furthermore, the Western Riverside MSHCP has been 
finalized and an Incidental Take Permit has been issued for this plan. 
Significant progress has been made in the ongoing formal consultation 
with the U.S. Army Corps of Engineers (the Corps) on the SAS 
Conservation Program and we expect to issue a biological opinion on 
this program shortly. Therefore, we have excluded these areas of 
essential habitat from the critical habitat designation as allowed 
under section 4(b)(2).
    (36) Comments: The Service did not comply with the National 
Environmental Policy Act (NEPA). Under NEPA, an Environmental Impact 
Statement or an Environmental Assessment must be prepared.
    Our Response: Environmental impact statements and environmental 
assessments, as defined under NEPA, are not required for regulations 
enacted under section 4 of the Act (see 48 FR 49244; October 25, 1983). 
We published a notice outlining our reasons for this determination in 
the Federal Register on October 25, 1983 (48 FR 49244).
    (37) Comment: The rights of concerned citizens were violated 
because they were not allowed to participate in the rule-making 
process.
    Our Response: The Service published the previous final rule 
designating critical habitat for the sucker (69 FR 8839) without 
providing an opportunity for the public to comment under the good cause 
exemption of the Administrative Procedure Act (APA). Section 553(b)(B) 
of the APA recognizes an exemption to the public comment requirements. 
The Service issued the final rule designating critical habitat for the 
sucker without the opportunity for public comment, because we found it 
would be impracticable and contrary to the public interest to delay the 
effective date of the final rule (see comment 37 for further details). 
The Service also provided the opportunity for the public to comment on 
the proposed rule identical to and issued concurrently with the final 
rule. We have reviewed and responded to the substantive comments that 
we received by the deadline of the each of the 4 public comment 
periods. Based on these comments, we have revised the final rule to 
reflect corrections and modifications to the final rule designating 
critical habitat for the sucker as appropriate.
    (38) Comment: The Service failed to hold formal public hearings as 
required under section 556 and 557 of title 5 of the APA. In addition, 
all settlements resulting from ongoing negotiations with the Service 
should be made part of the administrative record for this critical 
habitat designation.
    Our Response: Section 553(d) of the APA allows publication of a 
final rule

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to take effect immediately upon publication if the agency finds good 
cause for doing so and provides the reasoning in the final rule. In the 
final rule published on February 26, 2004, designating critical habitat 
for the Santa Ana sucker, we stated that we found good cause to make 
the final rule effective immediately upon publication for reasons 
outlined in the response to comment 37. Delaying publication of the 
rule to hold public hearings would have been impracticable and contrary 
to the public interest at that time (69 FR 8840). We subsequently held 
a public hearing on the proposed rule--which was identical to and 
published concurrently with the final rule--on September 9, 2004. 
Therefore, we have complied with the requirements of the APA and the 
Act.
    (39) Comment: The Service can publish a rule that is effective 
immediately only if the Service has determined the sucker requires 
emergency protection. If the Service publishes a rule that is effective 
immediately, the Service must incorporate reasons for the emergency 
determination into the final rule. Since there was no justification for 
emergency designation included in the publication of the final rule, 
the final rule is invalid and unenforceable.
    Our Response: Section 553(d) of the APA allows publication of a 
final rule to take effect immediately upon publication if the agency 
finds good cause for doing so and provides the reasoning in the final 
rule. In the final rule published on February 26, 2004, designating 
critical habitat for the Santa Ana sucker, we stated that we found good 
cause to make the final rule effective immediately upon publication for 
the following reasons: (1) To comply with the district court's order; 
(2) to conduct section 7 consultations and prepare written concurrences 
regarding projects funded, permitted, or carried out by Federal 
agencies that may affect the Santa Ana sucker or its essential habitat; 
(3) to ensure those activities will not jeopardize the continued 
existence of the species; and (4) to ensure Federal agencies can comply 
with the requirements of the Act, including section 9. Delaying the 
effective date of the rule would have been impracticable and contrary 
to the public interest (69 FR 8840). We complied with the requirements 
of the APA and the Act and therefore the rule is valid and effective. 
The Service did not issue the final rule based on an emergency finding 
requiring immediate designation of critical habitat for the sucker.
    (40) Comment: Data were not made available for public review.
    Our Response: As stated in the proposed and final critical habitat 
rules published on February 26, 2004, the supporting information for 
the rules is available to the public for inspection, by appointment, 
during normal business hours at the U.S. Fish and Wildlife Service 
office in Carlsbad, California.
    (41) Comment: The designation of critical habitat in the Santa Ana 
and San Gabriel Rivers, and the Big Tujunga Creek will limit the 
ability of flood control agencies and water conservation districts from 
maintaining sufficient flood protection and water supplies.
    Our Response: The designation of critical habitat does not prevent 
public agencies from implementing flood control protection and water 
conservation actions. If these actions require a Federal permit, 
funding, or permission and if the Federal agency determines that these 
actions may adversely modify designated critical habitat, the Federal 
agency must request consultation with the Service prior to initiating 
that action.
    (42) Comment: The designation of critical habitat should not 
preclude cooperative conservation efforts implemented in concert with 
actions that may adversely affect the sucker.
    Our Response: We encourage cooperative conservation efforts by 
private individuals, organizations, and local, county, State, and 
Federal government agencies. We will continue to work with Federal, 
State, and local entities and private individuals to minimize project-
related impacts to the sucker and its habitat.

Issue 5: Misinterpretation of the Original Final Rule

    (43) Comment: The Service unfairly exempted Federal agencies and 
private individuals from the requirements of critical habitat.
    Our Response: In the previous final rule, the Service did not 
exempt Federal agencies or private individuals from regulations 
regarding critical habitat. Instead, the Service described potential 
Federal actions that may be affected by the critical habitat 
designation or that may affect critical habitat. If a Federal agency 
determines their action may affect critical habitat, then they will be 
required to consult with the Service under section 7 of the Act. 
Private individuals do not have to consult with the Service if their 
actions may affect critical habitat unless their actions are permitted 
or funded by a Federal agency. However, private individuals should 
consult with the Service if their actions have the potential to result 
in take of individual suckers and therefore violate section 9 of the 
Act.
    (44) Comment: The critical habitat designation will result in the 
closure of the National Forest lands to the public resulting in 
significant effects to many recreational users.
    Our Response: The designation of critical habitat does not require 
the Forest Service to close critical habitat areas within the National 
Forest to the public. The Forest Service will be required to consult 
with the Service under section 7 of the Act, if they determine that any 
of their actions may adversely modify critical habitat. However, we 
intend to continue working with the Forest Service to minimize any 
impacts to the sucker and its habitat that may result from recreation 
activities.

Issue 6: Comments on Economic Analysis or Lack of Economic Analysis

    (45) Comment: The Service violated the Act because it did not 
complete an economic analysis prior to issuing a final critical habitat 
rule, and therefore the rule should be vacated.
    Our Response: As previously stated (see response to comments 35 and 
37), we dispensed with the notice and comment period for the final 
designation of critical habitat under the good cause exemption of the 
APA (69 FR 8839), while concurrently publishing the proposed rule to 
allow for public comment. In the proposed rule (69 FR 8911), we 
announced our intention to prepare an economic analysis and seek public 
review and comment on the economic analysis.
    (46) Comment: Several comments objected to the short timeframe 
allowed for comments and the lack of immediate availability of the 
draft economic analysis online.
    Our Response: We had two comment periods for the draft Economic 
Analysis, the first for 10 days and the second for 30 days. A Notice of 
Availability (NOA) was published in the Federal Register on October 1, 
2004 (69 FR 58876) opening a 10-day public comment period on the 
economic analysis. On October 25, 2004, we published another notice in 
the Federal Register (69 FR 62238) reopening a 30-day comment period on 
the draft economic analysis and the proposed designation. All comments 
on the economic analysis have been incorporated into the final economic 
analysis and the revised final rule as appropriate.
    (47) Comment: Two groups suggested that prior written comments they 
had submitted concerning the economic impacts of the Santa Ana Sucker 
critical

[[Page 434]]

habitat designation were not addressed by the draft economic analysis.
    Our Response: Northwest Economic Associates (NEA) and the Service 
reviewed all of the previously submitted comments in the course of 
preparing the draft economic analysis. The comments provided useful 
insight into potential economic effects of the listing and designation 
of critical habitat for the sucker. However, in some cases, further 
research revealed that the economic effects could not be substantiated 
through available information or that the effects were considered too 
speculative to be considered reasonably foreseeable. For example, one 
commenter noted that private lands within critical habitat that are 
dedicated for recreational purposes but not excluded will require ``re-
evaluation of [previously approved] private projects.'' This re-
evaluation would result in assessment of an ``appropriate fee,'' with 
an effect of ``greater than 100 million dollars.'' The authors found no 
evidence that such a fee would result from designation of critical 
habitat. In other cases, the draft economic analysis included costs 
that were not addressed by prior written comments.
    (48) Comment: One comment suggested that the amenity values 
estimates should appear in the main report, not an appendix.
    Our Response: See response to Comment 49.
    (49) Comment: One comment suggested that the amenity values as 
analyzed are highly conservative and that a broader range should be 
presented, using a broader range of assumptions. This comment also 
stated that other benefits, such as indirect or non-use benefits, 
should be analyzed as well. It also criticized the use of different 
accounting standards in the evaluation of benefits (amenity values) and 
costs.
    Our Response: We appreciate the comment in support of the approach 
used in the DEA to estimate some of the economic benefits that may be 
associated with designating riparian corridors as critical habitat for 
the SAS. However, after further consideration and consultation with the 
Office of Management and Budget (OMB), we have decided that this 
approach does not fully meet the minimum standards required by OMB in 
estimating the potential economic benefits of a proposed Federal 
action. OMB Circular A-4 stresses that the Benefit-Transfer method, 
which was the approach used in the DEA, should only be used as a last-
resort option to measuring benefits and should not be used without 
explicit justification. The underlying rationale for this reasoning is 
that while the Benefit-Transfer method can provide a quick, low-cost 
approach for obtaining desired monetary values (as opposed to 
collecting original data), the methods are often associated with 
uncertainties and potential biases of unknown magnitude.
    Circular A-4 is very specific in the criteria that must be 
satisfied in order to use the Benefit-Transfer method. Criteria include 
using studies that are based on adequate data, sound and defensible 
empirical methods and techniques, and ensuring that the studies relied 
upon are measuring similar values that do not have unique attributes. 
In the DEA, we relied on two studies (Colby and Wishart 2002, Streiner 
and Loomis 1995) the first measuring the property value premium 
riparian areas generate for nearby landowners in the arid West, the 
second measuring the benefits incurred by nearby landowners associated 
with restoring degraded urban streams. Neither study, it was determined 
after consultation with OMB, fully met the necessary criteria to base 
an assessment of the potential economic benefits of SAS critical 
habitat designation. In the Colby study, concern was expressed over the 
statistical robustness of the overall model. Concerns over the Loomis 
study focused on the fact that the measurement of the value associated 
with restoring degraded riparian corridors was not equivalent to the 
designation of critical habitat, which essentially recognizes healthy 
riparian corridors that can support the species. While we attempted to 
address these and other concerns in the DEA, we were not able to fully 
satisfy all of the necessary criteria that would allow us to transfer 
the findings of these two studies to the SAS.
    In future analyses we will continue to investigate the 
appropriateness of using ex