Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Tidewater Goby (Eucyclogobius newberryi), 5920-6006 [08-264]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 21 (Thursday, January 31, 2008)]
[Rules and Regulations]
[Pages 5920-6006]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-264]



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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; Revised Designation of 
Critical Habitat for the Tidewater Goby (Eucyclogobius newberryi); 
Final Rule

Federal Register / Vol. 73, No. 21 / Thursday, January 31, 2008 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0010; 92210-1117-0000-B4]
RIN 1018-AU81


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the Tidewater Goby (Eucyclogobius 
newberryi)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising 
the critical habitat designation for the tidewater goby (Eucyclogobius 
newberryi) under the Endangered Species Act of 1973, as amended (Act). 
In total, approximately 10,003 acres (ac) (4,050 hectares (ha)) fall 
within the boundaries of the final revised critical habitat 
designation. The revised critical habitat is located in Del Norte, 
Humboldt, Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, 
San Luis Obispo, Santa Barbara, Ventura, and Los Angeles Counties, 
California.

DATES: This rule becomes effective on March 3, 2008.

ADDRESSES: The final rule, final economic analysis, and map of critical 
habitat will be available on the Internet at https://www.regulations.gov 
and https://www.fws.gov/ventura. Supporting documentation we used in 
preparing this final rule will be available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, 
Suite B, Ventura, California 93003; telephone (805) 644-1766; facsimile 
(805) 644-3958.

FOR FURTHER INFORMATION CONTACT: Michael McCrary, Listing and Recovery 
Coordinator, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife 
Office, telephone (805) 644-1766 (see ADDRESSES section). If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the revised designation of critical habitat in this final rule. For 
additional information on the tidewater goby, refer to the final 
listing rule published in the Federal Register on February 4, 1994 (59 
FR 5494); the original proposed and final critical habitat rules 
published in the Federal Register on August 3, 1999 (64 FR 42250) and 
November 20, 2000 (65 FR 69693), respectively; and the proposed revised 
critical habitat designation published in the Federal Register on 
November 28, 2006 (71 FR 68914).

Species Description and Genetic/Morphological Characteristics

    The tidewater goby is a small, elongate, grey-brown fish rarely 
exceeding 2 inches (in) (5 centimeters (cm)) in length. This species 
possesses large pectoral fins, and the pelvic or ventral fins are 
joined to each other below the chest and belly from below the gill 
cover back to just anterior of the anus. Male tidewater gobies are 
nearly transparent with a mottled brownish upper surface. Female 
tidewater gobies develop darker colors, often black, on the body and 
dorsal and anal fins. The tidewater goby is a short-lived species; the 
lifespan of most individuals appears to be about 1 year (Irwin and 
Soltz 1984, pg 26; Swift et al. 1989, pg 4).
    Various genetic markers demonstrate that pronounced differences in 
the genetic structure of tidewater gobies exist, and that tidewater 
gobies in some locations are genetically distinct. A recent study of 
mitochondrial DNA and cytochrome b (molecular material used in genetic 
studies) sequences from tidewater gobies that were collected at 31 
locations throughout the species' range identified six major 
phylogeographic (geographic differences in the evolution of a species) 
or regional groups (Dawson et al. 2001, pg 1171). These six regional 
groups include the following areas: (1) Tillas Slough (Smith River) in 
Del Norte County to Lagoon Creek in Mendocino County, i.e., the North 
Coast (NC) Unit; (2) Salmon Creek in Sonoma County to Bennett's Slough 
in Monterey County, i.e., the Greater Bay (GB) Unit; (3) Arroyo del Oso 
to Morro Bay in San Luis Obispo County, i.e., the Central Coast (CC) 
Unit; (4) San Luis Obispo Creek in San Luis Obispo County to Rincon 
Creek in Santa Barbara County, i.e., the Conception (CO) Unit; (5) 
Ventura River in Ventura County to Topanga Creek in Los Angeles County, 
i.e., the Los Angeles-Ventura (LV) Unit; and (6) San Pedro Harbor in 
Los Angeles County to Los Pe[ntilde]asquitos Lagoon in San Diego 
County, i.e., the South Coast (SC) Unit.

Metapopulation Dynamics

    Local populations of tidewater gobies are best characterized as 
metapopulations (Lafferty et al. 1999a, p. 1448). First, local goby 
populations are frequently isolated from other local populations by 
extensive areas of unsuitable habitat. Second, gobies occupy coastal 
lagoons and estuaries that in most cases are separated from each other 
by the open ocean. Very few tidewater gobies have ever been captured in 
the marine environment (Swift et al. 1989, p. 7), which suggests this 
species rarely occurs in the open ocean. Studies of the tidewater goby 
suggest that some populations persist on a consistent basis (Lafferty 
et al. 1999a, p. 1452), while other tidewater goby populations appear 
to experience intermittent extirpations. These extirpations may result 
from one or a series of factors, such as the drying up of some small 
streams during prolonged droughts (Lafferty et al. 1999a, p. 1451). 
Some of the areas where tidewater gobies have been extirpated 
apparently have been recolonized when extant populations were present 
within a relatively short distance of the extirpated population (i.e., 
less than 6 miles (mi) (10 kilometers (km)). These recolonization 
events suggest that tidewater goby populations exhibit a metapopulation 
dynamic where some populations survive or remain viable by continually 
exchanging individuals, and recolonizations may occur after occasional 
extirpations (Doak and Mills 1994, pg 619).
    Lafferty et al. (1999b) monitored the post-flood persistence of 
several tidewater goby populations in Santa Barbara and Los Angeles 
Counties during and after the heavy winter floods of 1995. All of the 
monitored populations persisted after the floods, and no significant 
changes in population sizes were noted (Lafferty et al. 1999b, p. 621). 
Tidewater gobies apparently colonized Ca[ntilde]ada Honda in Santa 
Barbara County after one flood event (Lafferty et al. 1999b, p. 621). 
This information suggests that flooding may sometimes contribute to 
recolonization of habitats where a tidewater goby population has become 
extirpated.
    The largest wetland habitats where tidewater gobies have been known 
to occur are not necessarily the most secure, as evidenced by the fact 
that the Santa Margarita River in San Diego County and the San 
Francisco Bay have lost their populations of tidewater goby. Today, the 
majority of the most stable and largest tidewater goby populations 
consist of lagoons and estuaries of intermediate sizes, i.e., 5 to 125 
ac (2 to 50 ha) that have remained relatively unaffected by human 
activities (Service 2005, p. 12). Many of the localities where 
tidewater gobies are consistently present may be ``source'' 
populations, and such locations may provide the

[[Page 5921]]

colonists for localities that intermittently lose their tidewater goby 
populations.
    Historical records and survey results for several localities 
occupied by the tidewater goby are available (e.g., Swift et al. 1989, 
pp. 18-19; Swift et al. 1994, pp. 8-16). These documents suggest the 
persistence of tidewater goby populations is related to habitat size, 
configuration, location, and proximity to human development. In 
general, the most stable and persistent tidewater goby populations 
occur in the lagoons and estuaries that are more than 2.47 ac (1 ha) in 
size and that have remained relatively unaffected by human activities 
(Lafferty et al. 1999a, pp. 1450-1453). We note, however, that some 
systems that are affected or altered by human activities also have 
relatively large and stable populations (e.g., Humboldt Bay in Humboldt 
County, Pismo Creek in San Luis Obispo County, Santa Ynez River in 
Santa Barbara County, and the Santa Clara River in Ventura County). 
Also, some habitats less than 2.47 ac (1 ha) in size have tidewater 
goby populations that persist on a regular basis (Swift et al. 1997, p. 
3; Keegan 2006, p. 8). The best available information suggests that the 
lagoons and estuaries that have persistent populations are likely the 
core populations that provide the individuals that colonize adjacent, 
smaller localities that have ephemeral tidewater goby populations 
(Lafferty et al. 1999a, p. 1452).

Distribution

    The known geographic range of the tidewater goby is limited to the 
coast of California (Eschmeyer et al. 1983, p. 262; Swift et al. 1989, 
p. 12). The species historically occurred from localities that extended 
from 3 mi (5 km) south of the California-Oregon border (i.e., Tillas 
Slough in Del Norte County) to 44 mi (71 km) north of the United 
States-Mexico border (i.e., Agua Hedionda Lagoon in San Diego County). 
The available documentation (e.g., Eschmeyer et al. 1983, p. 262; Swift 
et al. 1989, p. 12) suggests the northernmost locality that forms one 
end of the historical and current geographic range of the tidewater 
goby has not changed over time. Tidewater gobies do not currently occur 
in Agua Hedionda Lagoon, and the species' southernmost known locality 
currently is located in Cockleburr Canyon 9.2 mi (14.8 km) north of 
Agua Hedionda Lagoon. Although the northernmost and southernmost extent 
of the tidewater goby's range has not changed much over time, the 
tidewater goby's overall population has become patchy and fragmented 
along the coast.
    Tidewater gobies appear to be naturally absent from several large 
(50 to 135 mi (80 to 217 km)) stretches of coastline where lagoons or 
estuaries are absent, and steep topography or swift currents may 
prevent tidewater gobies from dispersing between adjacent localities 
(Swift et al. 1989, p. 13). One such gap in lagoons and estuaries 
occurs between the Eel River in Humboldt County and the Ten Mile River 
in Mendocino County. A second gap exists between Lagoon Creek in 
Mendocino County and Salmon Creek in Sonoma County. Another large, 
natural gap occurs between the Salinas River in Monterey County and 
Arroyo del Oso in San Luis Obispo County. Habitat loss and other 
anthropogenic-related factors have resulted in the tidewater goby now 
being absent from several locations where it historically occurred; 
their recent disappearance from specific locations has created smaller, 
artificial gaps in the species' geographic distribution (Capelli 1997, 
p. 7). Such locations include Buena Vista Lagoon and Agua Hedionda 
Lagoon in San Diego County, Calleguas Creek/Mugu Lagoon in Ventura 
County, San Francisco Bay in San Francisco and Alameda Counties, and 
Redwood Creek and Freshwater Lagoon in Humboldt County.
    Swift et al. (1989, p. 13) reported that, as of 1984, tidewater 
gobies occurred, or had been known to occur, at 87 localities; these 
localities included those at the extreme northern and southern end of 
the species' historical geographic range. An assessment of the species' 
distribution in 1993, using records that were limited to the area 
between the Monterey Peninsula in Monterey County and the United 
States-Mexico border, found tidewater gobies occurring at four 
additional localities (Swift et al. 1993, p. 129). Other goby 
localities have been identified since 1993, and currently tidewater 
gobies have been documented at 135 localities within the historical 
geographic range of the species (Service 2005, p. 6). Of these 135 
localities, 23 (17 percent) are no longer known to be occupied by 
tidewater gobies. Therefore, 112 localities are currently occupied.

Habitat

    The lagoons, estuaries, backwater marshes, and freshwater 
tributaries that tidewater gobies occupy are dynamic environments that 
are subject to considerable fluctuations on a seasonal and annual 
basis. In a typical year, the formation of a sandbar occurs in the late 
spring as flow into a lagoon declines enough to allow the ocean surf to 
build up the sandbar at the mouth of the lagoon. Winter rains and 
subsequently increased stream flows may bring in considerable sediment 
and dramatically affect the bottom profile and substrate composition of 
a lagoon or estuary. Fine mud and clay either moves through the lagoon 
or estuary or settles out in backwater marshes, while heavier sand is 
left in the lagoon or estuary. High flows associated with winter rains 
can scour out the lagoon bottom to lower levels, with sand building up 
again after flows decline. These dynamic processes result in wetland 
habitats that, over time, move both laterally and up-or-down-gradient 
relative to stationary features that exist outside the flood zone 
(e.g., roads or buildings).
    The horizontal extent of the lentic (pond-like) wetland habitat 
associated with a particular tidewater goby locality varies on a site-
specific basis, and is affected in part by local precipitation patterns 
and topography. In coastal areas where the topography is steep and 
precipitation is relatively low (e.g., areas adjacent to the Santa Ynez 
Mountains in Santa Barbara County), the habitats occupied by tidewater 
gobies may be a few acres in size, only extend a few hundred feet 
inland from the ocean, and backwater marshes may be small or absent. In 
other coastal settings where precipitation is more abundant: (1) 
Topography is less steep and surface streams are larger; (2) coastal 
lagoons or estuaries may be hundreds of acres in size and extend many 
miles inland; and (3) extensive backwater marshes may be present (e.g., 
Lake Earl in Del Norte County and Ten Mile River in Mendocino County).
    Some localities occupied by tidewater gobies receive surface or 
ground water from upstream areas on a year-round basis. Such localities 
(e.g., Bennett's Slough in Monterey County) tend to possess wetland 
habitats that are larger and can extend inland for several hundred feet 
or even miles. Other occupied locations do not possess stream channels 
or tributaries that provide a considerable amount of water throughout 
the summer or fall months. Such locations (e.g., Little Pico Creek in 
San Luis Obispo County) tend to possess wetland habitats that only 
extend a short distance inland from the ocean (i.e., 290 ft (88 m)).

Reproduction

    Tidewater gobies have been observed spawning in every month of the 
year except December (Swenson 1999, p. 107). Reproduction tends to peak 
in late April or May to July, and can continue into November depending 
on seasonal

[[Page 5922]]

temperature and rainfall. Swenson (1995, p. 31) has documented spawning 
behavior in adult fish and the presence of egg clutches at water 
temperatures between 48 and 77 degrees Fahrenheit (F) (9 and 25 degrees 
Celsius (C)). Spawning tidewater gobies have been observed in water 
salinities between 2 and 27 parts per thousand (ppt) (Swenson 1999, p. 
31).

Threats

    The final listing rule for the tidewater goby that was published in 
1994 (59 FR 5494) states that this species is threatened, or 
potentially threatened, by: (1) Coastal development projects that 
result in the loss or alteration of coastal wetland habitat; (2) water 
diversions and alterations of water flows upstream of coastal lagoons 
and estuaries that negatively impact the species' breeding and foraging 
activities; (3) groundwater overdrafting; (4) channelization of the 
rivers where the species occurs; (5) discharge of agricultural and 
sewage effluents; (6) cattle grazing and feral pig activity that 
results in increased sedimentation of coastal lagoons and riparian 
habitats, removal of vegetative cover, increased ambient water 
temperatures, and elimination of plunge pools and undercut banks 
utilized by tidewater gobies; (7) introduced species that prey on the 
tidewater goby (e.g., bass (Micropterus spp.) and crayfish (Cambaris 
spp.)); (8) the inadequacy of existing regulatory mechanisms; (9) 
drought conditions that result in the deterioration of coastal and 
riparian habitats; and (10) competition with introduced species such as 
the yellowfin goby (Acanthogobius flavimanus) and chameleon goby 
(Tridentiger trigonocephalus).

Previous Federal Actions

    On August 31, 2001, Cabrillo Power L.L.C. (Cabrillo) filed a 
lawsuit in the U.S. District Court for the Southern District of 
California challenging a portion of the November 20, 2000, final rule 
(65 FR 69693) that designated the 10 critical habitat units for the 
tidewater goby in Orange and San Diego Counties. Specifically, Cabrillo 
objected to the critical habitat unit involving Agua Hedionda Lagoon 
and Creek. In a consent decree dated February 27, 2003, the U.S. 
District Court: (1) Agreed to vacate the critical habitat designation 
involving Agua Hedionda Lagoon and Creek; (2) stated the nine other 
critical habitat units should remain in effect; (3) stated the final 
rule designating critical habitat was remanded in its entirety for 
reconsideration; and (4) directed the Service to promulgate a revised 
critical habitat rule that considers the entire geographic range of the 
tidewater goby and any currently unoccupied tidewater goby habitat. The 
consent decree requires that the Service submit proposed and final 
revised rules to the Federal Register no later than November 15, 2006, 
and November 15, 2007, respectively. On November 28, 2006, we published 
the proposed revised critical habitat designation for the tidewater 
goby in the Federal Register (71 FR 68914). An extension of the due 
date for the final critical habitat rule was approved by the court on 
November 19, 2007, and the Service is now required to submit the final 
rule to the Federal Register by January 18, 2008.
    A draft economic analysis (DEA) for the proposed revised 
designation was completed on August 23, 2007, and a notice of 
availability for this DEA was published in the Federal Register on 
September 25, 2007 (72 FR 54411). Publication of the notice of 
availability opened a public comment period for the DEA as well as the 
proposed revised designation from September 25, 2007, to October 10, 
2007. For a discussion of additional Federal actions that occurred 
prior to the proposed revised designation of critical habitat for this 
species, please refer to the Previous Federal Actions section of the 
proposed revised critical habitat rule for the tidewater goby (71 FR 
68914).
    On September 28, 2007, we completed a 5-year review for the 
tidewater goby. In the 5-year review we recommended that the tidewater 
goby be downlisted to threatened because we believe that it is not in 
imminent danger of extinction. The main reason for this recommendation 
is that the number of localities known to be occupied has more than 
doubled since listing (from 48 to 106). We believe this indicates the 
tidewater goby is more resilient in the face of severe drought events 
than believed at the time of listing. Furthermore, we believe threats 
identified at the time of listing have been reduced or are not as 
serious as thought. One of the main reasons why the tidewater goby was 
listed was because of habitat destruction and alteration. Current laws 
and regulations have largely eliminated the major destruction of 
habitat that occurred in the past along the coast of California. The 5-
year review concluded that tidewater goby populations are highly 
dynamic and will periodically be extirpated or reach such low numbers 
that they cannot be detected at some localities. This is a natural 
occurrence within many species exhibiting a metapopulation dynamic 
including the tidewater goby. Although the rate of extirpation or 
reduction to low levels is expected to be higher during drought 
conditions, during wetter periods, we expect that these localities will 
again be occupied assuming that suitable habitat still exists.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
revised designation of critical habitat for tidewater goby in the 
proposed rule (71 FR 68914, November 28, 2006) and in the subsequent 
notice of availability for the DEA (72 FR 54411, September 25, 2007). 
We also contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed revised rule.
    During the comment period that opened on November 28, 2006, and 
closed on January 29, 2007, we received 23 comments directly addressing 
the proposed revised critical habitat designation: 4 from peer 
reviewers, 2 from Federal agencies, 1 from the State of California, 2 
from local government, and 14 from organizations or individuals. 
Seventeen commenters generally supported the revised designation of 
critical habitat for tidewater goby, 4 opposed it, and 2 were neither 
for nor against it. During the comment period that opened September 25, 
2007, and closed on October 10, 2007, we received seven comments 
addressing the proposed revised critical habitat designation and/or the 
draft economic analysis: two from local governments and five from 
organizations or individuals. One commenter supported the revised 
designation of critical habitat for the tidewater goby, five opposed it 
and/or the draft economic analysis, and one was neither for nor against 
it. Comments received were grouped into six general issues and are 
addressed in the following summary and incorporated into this final 
rule as appropriate. We did not receive any requests for a public 
hearing.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from seven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from four of the 
peer reviewers. The peer reviewers generally concurred with our methods 
and conclusions, and provided

[[Page 5923]]

additional information, clarifications, and suggestions to improve the 
final revised critical habitat rule. Peer reviewer comments are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Peer Reviewer Comments

    1. Comment: Four peer reviewers stated that more extant populations 
need to be designated or new populations established in order to 
potentially increase connectivity and persistence of present tidewater 
goby distribution and diversity.
    Our Response: We have not designated all areas currently occupied 
by tidewater gobies as critical habitat, nor have we designated any 
areas that were historically occupied but are now unoccupied by the 
species. However, we believe the 44 critical habitat units we are 
designating for the tidewater goby, all of which are currently 
occupied, are the areas that are necessary for the conservation of the 
tidewater goby and, therefore, meet the definition of critical habitat 
in the Act. The goal of the recovery plan for the tidewater goby is to 
preserve the diversity of habitats that occur within the range of the 
species, the metapopulation structure of the species (see Criteria Used 
To Identify Critical Habitat section for a definition and additional 
details on the recovery plan for the tidewater goby), and genetic 
diversity (Service 2005). The recovery plan identifies 26 subunits 
throughout the range of the tidewater goby. We designated critical 
habitat in all 26 subunits included in the recovery plan, except for 
those on Vandenberg Air Force Base (Santa Barbara County) and Marine 
Corps Base, Camp Pendleton (San Diego County), which have Integrated 
National Resource Management Plans (INRMP) that provide protection for 
the tidewater goby. These areas have been exempted from this final 
designation of critical habitat (see Application of Section 4(a)(3) of 
the Act--Approved Integrated Natural Resource Management Plans 
section). We believe these 44 critical habitat units, in addition to 
those subunits covered by INRMPs, are sufficient for the conservation 
of the species throughout its range, as they adequately represent the 
variation of both the habitat and genetic composition of the species, 
and they will support the species' recovery. As such, we did not 
designate any areas that are not currently occupied (see Summary of 
Changes from Previously Designated Critical Habitat and 2006 Proposed 
Rule section for more information).
    We also agree with the commenters that the introduction of new 
populations could potentially benefit the tidewater goby. However, we 
did not include any unoccupied habitat in this designation because we 
concluded that the 44 units we are designating are the areas essential 
for conservation.
    2. Comment: Several peer reviewers stated that all available 
evidence suggests that the southern tidewater goby is a distinct taxon 
of, or equivalent to, species rank and given the critical habitat 
proposed, is very likely to go extinct.
    Our Response: At this time, the tidewater goby is listed as a 
single species, following the currently accepted taxonomy for the 
species. If a change in the taxonomy of the tidewater goby is published 
in a peer-reviewed journal, we will evaluate the listing status of the 
species at that time. We have not designated any critical habitat in 
Orange and San Diego Counties because all the areas in these Counties 
that meet the first part of the definition of critical habitat in 
section 3(5)(A) of the Act (``the specific areas within the 
geographical area occupied by the species, at the time it is listed in 
accordance with the provisions of section 4 of this Act, on which are 
found those physical or biological features (I) essential to the 
conservation of the species * * *'') are located on Camp Pendleton 
Marine Corps Base (Base). The Base has a completed INRMP that provides 
a conservation benefit to the tidewater goby. Section 4(a)(3) of the 
Act prohibits the Secretary from designating critical habitat on any 
lands owned or controlled by the Department of Defense that are subject 
to an INRMP if the Secretary has determined that such plan provides a 
benefit to the species for which critical habitat is being proposed for 
designation. As such, pursuant to section 4(a)(3) of the Act, we have 
exempted the Base from this final designation of critical habitat (see 
Application of Section 4(a)(3)--Marine Corps Base Camp Pendleton 
section). We also did not designate any areas outside the geographical 
area occupied by the species as critical habitat for the reasons given 
in our response to comment 1 above and the Summary of Changes from 
Previously Designated Critical Habitat and 2006 Proposed Rule section.
    3. Comment: One peer reviewer stated that our identification of 
tidewater goby populations serving as source populations for other 
areas is not supported by available information.
    Our Response: We are not aware of any single definition of source 
population that can be applied to every species. The recovery plan for 
the tidewater goby defines a source population as a subpopulation of a 
metapopulation that has an average birth rate that exceeds the average 
death rate, and therefore produces an excess of juveniles that may 
disperse to other areas (Service 2005). We do not have information on 
either tidewater goby population size or productivity for each occupied 
area. Therefore, for purposes of this rule, we have used the term 
``source population'' to describe those areas that are currently 
occupied and have been consistently occupied for three or more 
consecutive years based on presence/absence survey data and published 
reports. We believe these areas are more likely to be capable of 
maintaining populations over many years and more likely to be capable 
of providing individuals to recruit into surrounding subpopulations.
    4. Comment: Two peer reviewers asserted that coastal lagoon 
restoration plans that establish tidal salt marshes rather than 
brackish coastal lagoons should be included as an additional new 
threat.
    Our Response: We acknowledge that coastal lagoon restoration 
projects may be a threat to tidewater goby habitat. Although we have 
not specifically mentioned this type of project in this rule, we 
consider this as a coastal development project (see Critical Habitat 
Designation section and the Special Management Considerations or 
Protection section below).
    5. Comment: Two peer reviewers stated that critical habitat units 
should be related to recovery units because the units designated as 
they are now do not provide for recovery.
    Our Response: We believe that our approach to this designation 
complies with the definitions in the Act, reflects the intent of the 
recovery plan for the tidewater goby (Service 2005), and identifies the 
areas essential to the conservation of the species throughout its range 
(see our response to comment 1 above). Developing recovery plans and 
designating critical habitat are not necessarily synonymous under the 
Act. The Act does not include specific instructions as to the areas 
that should be included in recovery plans, and often recovery plans 
include redundant areas. In comparison, critical habitat is defined in 
section 3(5)(A) of the Act as, ``the specific areas within the 
geographical area occupied by the species, at the time it is listed * * 
*'' Critical habitat is further defined in the Act as those specific 
areas, ``on which are found those physical or biological features (I) 
essential to the conservation of the

[[Page 5924]]

species and (II) which may require special management considerations or 
protection.'' Under section 3(5)(A)(ii) of the Act, areas outside the 
geographical area occupied by the species at the time it is listed may 
only be designated as critical habitat, ``upon a determination by the 
Secretary that such areas are essential for the conservation of the 
species.'' Each of these definitions requires us to look at what is 
essential to the conservation of the species. The word essential means 
``absolutely necessary, indispensable.'' We interpret this as 
Congressional direction to designate only those areas that are 
indispensable to conservation, not to designate areas that may be 
desirable or helpful for conservation. Furthermore, section 3(5)(C) of 
the Act prohibits us from designating the entire geographical area 
which can be occupied by a species without the approval of the 
Secretary. Thus, we considered the 26 subunits in the recovery plan and 
designated critical habitat units accordingly as discussed in more 
detail in comment 1 above.
    6. Comment: One peer reviewer questioned why we did not include the 
Smith River locality in the critical habitat designation and make it a 
priority for protection because it is the northernmost population and 
may be divergent genetically.
    Our Response: We determined that the survey history shows the 
species to be consistently rare at this location, and within the past 5 
years, surveys in this location have only sporadically located a few 
individuals. Based on this information, we believe this locality does 
not serve as a source population and does not provide connectivity 
between localities (see Criteria Used To Identify Critical Habitat 
section). We also do not have any information that indicates this 
locality is occupied by a genetically distinct population. Therefore, 
we do not consider this locality to have the features that are 
essential to the conservation of the species.
    7. Comment: One peer reviewer stated that Scott Creek lagoon in 
Santa Cruz County should be considered for addition to critical habitat 
because it is substantially isolated and could be genetically distinct 
and therefore, may be an important potential stepping stone site.
    Our Response: Scott Creek lagoon was not occupied at the time of 
listing, although it was subsequently colonized (Service 2005). Over 
the years, survey efforts indicate that occupancy by tidewater gobies 
at this locality is intermittent and therefore, we do not consider it a 
source population (Service 2005). We also do not have information that 
indicates this locality is occupied by a genetically distinct 
population. Finally, Scott Creek is not likely to provide connectivity 
between localities because the next locality to the north, Bean Hollow 
Creek, is 16.1 mi (26 km) from Scott Creek. This distance is well 
beyond what experts believe to be the dispersal abilities of the 
tidewater goby (see Background section). Therefore, we do not consider 
this locality to be essential to the conservation of the species.
    8. Comment: One peer reviewer stated that Wilder Creek lagoon in 
Santa Cruz County should be considered for addition to critical habitat 
because it has a larger late summer population than Baldwin Creek and 
may be more likely to supply large numbers of dispersing tidewater 
gobies to other sites in the metapopulation.
    Our Response: As described in the recovery plan for the tidewater 
goby (Service 2005), the subunit that includes Wilder Creek consists of 
several small, closely spaced localities. Only small numbers of 
individuals have been found in many of these localities and occupancy 
is intermittent in most areas; survey efforts indicate that occupancy 
by tidewater gobies at Wilder Creek is intermittent (Service 2005). 
Tidewater gobies are only regularly abundant at one locality in this 
subunit, Baldwin Creek, which we have designated as critical habitat. 
We consider Baldwin Creek to be the source population for this subunit. 
For these reasons, we do not consider the Wilder Creek lagoon to 
contain the features essential to the conservation of the species.
    9. Comment: One peer reviewer recognized that, while Marine Corps 
Base, Camp Pendleton (Base) may be providing some protection to those 
tidewater goby populations on the Base, the protection of these 
populations is not sufficient to protect the southern population of the 
species as a whole and that areas outside the Base that were 
historically occupied should be designated.
    Our Response: As discussed in the Marine Corps Base, Camp Pendleton 
section under Application of Section 4(a)(3), occupied tidewater goby 
habitat occurs on the Base. We have determined that the conservation 
efforts for estuarine habitat and species identified in the Base's 
INRMP provide a benefit to the tidewater goby. Section 4(a)(3) of the 
Act prohibits the Secretary from designating critical habitat on any 
lands owned or controlled by the Department of Defense that are subject 
to an INRMP if the Secretary has determined that such plan provides a 
benefit to the species for which critical habitat is being proposed for 
designation. As such, pursuant to section 4(a)(3) of the Act, we have 
exempted the Base from the designation of critical habitat.
    Additionally, none of the historically occupied sites in southern 
California outside of the Base supported tidewater gobies at the time 
the species was listed in 1994. In fact, tidewater gobies have not been 
detected at any of the off-Base southern California sites for several 
decades. As a result, none of these locations meets the first part of 
the definition of critical habitat.
    As noted above, section 3(5)(A)(ii) requires us to determine 
whether areas outside the geographical area occupied by the species at 
the time of listing are essential for the conservation of the species. 
While our final recovery plan for the tidewater goby identifies these 
off-Base southern California locations as potential reintroduction 
sites, it also acknowledges that habitat improvements will be needed 
before these sites can be recolonized. We acknowledge that some of 
these sites, if restored, may be helpful contributors to the recovery 
of the species in southern California. However, we did not designate 
any areas outside the geographical area occupied by the species as 
critical habitat for the reasons given in our response to comment 1 
above and the Summary of Changes from Previously Designated Critical 
Habitat and 2006 Proposed Rule section.

Public Comments Regarding Site-Specific Areas

    10. Comment: One commenter stated that we should have included the 
area around Lake Earl Lagoon above the 4-foot elevation, and we 
therefore, underestimated the size of the Lake Earl Lagoon critical 
habitat unit (see DN-1: Lake Earl/Lake Tolowa section).
    Our Response: Lake Earl is artificially breeched, and there are 
times when water level is well below the 4-foot elevation. We 
determined that the 4-foot elevation above mean sea level was 
appropriate for delineating critical habitat for Lake Earl because the 
portion of Lake Earl below that elevation is wetted during most times 
of the year, providing consistent habitat for tidewater goby. The area 
above the 4-foot elevation that is frequently not submerged does not 
contain the features essential to the conservation of the species.
    11. Comment: Several commenters wanted additional areas, including 
unoccupied areas, designated as critical habitat for the tidewater 
goby.
    Our Response: Please see our response to comment 1 above.

[[Page 5925]]

    12: Comment: One commenter believed that Hathaway Creek in 
Mendocino County should be included in the critical habitat designation 
because it is good tidewater goby habitat and is occupied by tidewater 
gobies.
    Our Response: We have no record that Hathaway Creek is occupied or 
has ever been occupied by tidewater gobies, and the commenter did not 
provide specific information that shows it to be occupied. As per our 
responses to comment 1 and 2 and as discussed in the Summary of Changes 
from Previously Designated Critical Habitat and 2006 Proposed Rule 
section, we have determined that unoccupied habitat is not essential 
for the conservation of the tidewater goby.
    13. Comment: Two commenters believed that Arroyo Grande Lagoon in 
San Luis Obispo County should be considered for addition to critical 
habitat because: it is likely a source population, it possesses all 
four primary constituents, and it provides connectivity for the Pismo 
Creek population with the Santa Maria River population.
    Our Response: We agree that Arroyo Grande Lagoon is likely to have 
some or all of the primary constituent elements (PCEs) for the 
tidewater goby; however, the mere presence of one or more PCEs does not 
mean that an area meets the definition of critical habitat. As 
described in the recovery plan for the tidewater goby (Service 2005), 
the subunit that includes Arroyo Grande Lagoon consists of five 
localities, of which four are currently occupied. Tidewater gobies 
occur only intermittently at San Luis Obispo Creek and Arroyo Grande 
Lagoon and only in small numbers. Tidewater gobies are only regularly 
abundant at two localities in this subunit, Pismo Creek and Santa Maria 
River, which we have designated as critical habitat. We consider Pismo 
Creek and Santa Maria River to be the source populations for this 
subunit. Survey efforts indicate that occupancy by tidewater gobies at 
Arroyo Grande Lagoon is intermittent (Service 2005) and therefore is 
not likely to be a source population. For these reasons, we do not 
consider this locality to contain the features essential to the 
conservation of the species.
    14. Comment: One commenter expressed concern over the effects of a 
proposed multi-lane toll road on tidewater gobies in San Mateo Creek 
and San Onofre Creek on Marine Corps Base Camp Pendleton (Base). The 
commenter stated that the Base's INRMP does not address potential 
impacts to the tidewater goby associated with the proposed toll road, 
and therefore we should designate habitat along San Mateo Creek and San 
Onofre on the Base as critical habitat.
    Our Response: The proposed toll road is not a Marine Corps project 
and therefore is not directly subject to the Base's INRMP. The toll 
road is a separate Federal action with the U.S. Department of 
Transportation, Federal Highway Administration as the lead agency; as 
such, any adverse effects to federally listed species, including 
tidewater gobies, will be addressed under section 7 of the Act.
    However, as described in the Base's INRMP, the Marine Corps agreed 
that (among other provisos) an on-Base alignment of the toll road could 
be evaluated provided ``that any adverse environmental impacts created 
as a result of siting this route on the Base * * * must be fully and 
properly mitigated.'' Further, the lower portion of San Mateo Creek and 
San Onofre Creek is leased to California Department of Parks and 
Recreation, who is required by the Marine Corps to ``conduct its 
natural resources management consistent with the philosophies and 
supportive of the objectives'' of the Camp Pendleton INRMP. Moreover, 
the Marine Corps is implementing the INRMP, including actions 
benefiting the tidewater goby, within the San Mateo Creek and San 
Onofre watersheds. As stated above, pursuant to section 4(a)(3) of the 
Act we are required to exempt the Base from critical habitat for the 
tidewater goby, which includes the lower portion of San Mateo Creek and 
San Onofre Creek.
    15. Comment: One commenter stated that unlike Stone or Big Lagoons, 
Lake Earl is artificially managed and consequently, there is no 
official monitoring or rescue effort for tidewater gobies, no 
established population baseline, and a consistent failure to reach the 
appropriate lagoon level during the summer during tidewater goby 
breeding season (April to August), making this critical habitat 
unavailable to tidewater gobies.
    Our Response: The current 10-year Army Corps permit for the 
breaching of Lake Earl includes the requirement of a monitoring plan. 
Currently, there are specific post-breach monitoring requirements that 
include surveying for tidewater gobies in areas suspected to cause 
stranding. The current permit to breach Lake Earl includes a 
restriction on breaching after February 15 which is designed to protect 
tidewater goby habitat during the breeding season, allowing the lagoon 
sufficient time to close and fill naturally during the spring and 
summer months, when breeding is thought to peak.
    The commenter is correct that there is not enough information 
available to precisely estimate population baseline. The Service is 
addressing this issue by looking into innovative methods of obtaining 
that information in a practical manner.
    We believe that the lake levels during most breeding seasons are 
adequate for tidewater goby breeding to take place if the permit 
conditions for the artificial breaching are attained.
    16. Comment: One commenter stated that the proposed revised rule 
did not provide an analysis of why each individual area with suitable 
habitat for tidewater gobies, regardless of occupancy, was or was not 
designated.
    Our Response: To determine which areas to designate as critical 
habitat for the tidewater goby, we developed a set of rules or criteria 
(see Criteria Used To Identify Critical Habitat section) specific to 
tidewater gobies. We believe our criteria identify those areas which 
meet the definition of critical habitat in the Act and reflect the 
intent of the recovery plan for the tidewater goby (Service 2005). 
Based on these criteria, we determined that not all habitat occupied at 
the time of listing contain the PCEs in the spatial arrangement and 
quantity essential to the conservation of the species. We also 
considered localities that we know from surveys, or the lack thereof, 
were not occupied at the time of listing. We included unoccupied-at-
time-of-listing localities in the designation when they met our 
criteria and were essential to the conservation of the species. See 
response to Comment 1 for more details.
    17. Comment: One commenter believed that the proposed critical 
habitat adjacent to the Mad River Slough Channel should not be 
designated because they do not include habitat for the tidewater goby.
    Our Response: We believe tidewater goby habitat occurs in these 
areas adjacent to the Mad River Slough, which are included in Unit Hum-
3: Humboldt Bay, because these areas are occupied by tidewater gobies 
(Goldsmith 2007). We have included these areas in this final revised 
designation because they form part of the hydrologically interconnected 
system of estuaries and seasonally flooded backwaters that make up the 
habitat of the tidewater goby along Humboldt Bay, and these areas have 
the features that are essential to the conservation of gobies.

Comments Related to Threats to the Species

    18. Comment: Two commenters stated that illegal breaching of sand 
bars across

[[Page 5926]]

lagoons should be included as an additional new threat.
    Our Response: Untimely breaching of sandbars may be a threat to 
tidewater gobies in areas where sandbars play a role in the hydrology 
of estuaries and lagoons. We have provided a discussion of the effects 
of artificial breaching of sandbars on tidewater gobies, which would 
include illegal breaching, in the Primary Constituent Elements and 
Effects of Critical Habitat Designation sections of this rule. We have 
also more clearly identified artificial breaching of sandbars as a 
threat to tidewater goby habitat in the Special Management 
Considerations or Protection section.
    19. Comment: One commenter stated that disease, particularly since 
a new species of microsporidian parasite was found in the tidewater 
goby population at Big Lagoon, should be included as an additional new 
threat.
    Our Response: The discovery of the parasitic microsporidian 
referred to by the commenter is a new development. Currently, the 
parasite has only been identified from Big Lagoon, Humboldt County, 
with a possible detection from Rodeo Lagoon, Marin County. Surveys 
evaluating the extent of the parasite, and its role in the decline of 
the tidewater goby are needed to assess the level of threat to the 
goby. We have not included this as a threat to the tidewater goby at 
this time, but will continue to monitor and address new information as 
it becomes available.
    20. Comment: One commenter stated we should take in account the 
potential effects of global warming on tidewater goby habitat and 
therefore the Service should expand its designation of critical habitat 
to include unoccupied habitat, particularly upstream of barriers.
    Our Response: The average surface temperature of the Earth is 
widely recognized by scientists throughout the world to be increasing 
(IPCC 2007, p. 4). Projected changes in climate include changes in 
precipitation, sea level rise, and increased frequency and intensity in 
extreme climatic events leading to increased climate variability (IPCC 
2002, p. 4). These changes will have a serious impact on the 
environment on a global scale. However, it is much more difficult to 
predict how the climate of a local area will change and how that change 
will affect the local environment. We are required by section 
4(b)(1)(A) of the Act to use the best scientific data available in 
determining the areas to designate as critical habitat for the 
tidewater goby. We simply do not have good science at this point that 
provides local predictions. Therefore, we cannot account for such 
potential but unknown changes in local climate in our critical habitat 
designation. However, we do believe this designation does address the 
potential for climate change by inclusion of critical habitat units 
over a wide range of latitudes.

Comments Related to Criteria and Methodology

    21. Comment: One commenter stated that our approach to designating 
critical habitat could be improved or modified through more public 
outreach, such as providing information about tidewater goby life 
history or habitat requirements at some of the critical habitat 
localities.
    Our Response: We published the Recovery Plan for the Tidewater Goby 
in 2005. The recovery plan provides detailed information on the biology 
of the species, reasons for its decline, habitat requirements, the 
actions needed for recovery of the species, and additional information 
for each of the localities designated as critical habitat for the 
species. The recovery plan is available on the Web at https://
ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=E071. For future 
reference, all recovery plans and other documents relating to a species 
can be found on our Web site at https://ecos.fws.gov.
    22. Comment: One commenter stated that critical habitat for 
tidewater gobies should not be limited to only those areas downstream 
of barriers.
    Our Response: We consider a barrier, such as sills, dams, and 
raised culverts, to be impassable by tidewater gobies. Therefore, we 
consider the areas above the barriers to not contain the features 
essential to the conservation of the species.

Comments on Other Critical Habitat Related Issues

    23. Comment: One commenter's opinion was that designation of 
critical habitat is of little additional value for the tidewater goby.
    Our Response: The process of designating critical habitat as 
described in the Act requires that the Service identify those lands on 
which are found the physical or biological features essential to the 
conservation of the species that may require special management 
considerations or protection, and the areas outside the current range 
of the species that are essential for its conservation. In identifying 
those lands, the Service must consider the recovery needs of the 
species, such that the habitat that is identified, if managed, could 
provide for the survival and recovery of the species. Furthermore, once 
critical habitat has been designated, Federal agencies must consult 
with the Service under section 7(a)(2) of the Act to ensure that their 
actions will not adversely modify designated critical habitat or 
jeopardize the continued existence of the species. As noted in the 
Ninth Circuit's Gifford Pinchot decision, the jeopardy and adverse 
modification standards are distinct, and adverse modification 
evaluations require consideration of impacts to the recovery of 
species. Thus, through the section 7(a)(2) consultation process, 
critical habitat designations provide recovery benefits to species by 
ensuring that Federal actions will not destroy or adversely modify 
designated critical habitat.
    Another benefit of including lands in critical habitat is that 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. Although the designation of critical habitat may not, 
in and of itself, restrict human activities within an area or mandate 
any specific management or conservation actions, it does help focus 
Federal, Tribal, State, and private conservation and management efforts 
in such areas by clearly delineating areas of high conservation value 
for the tidewater goby. In general, critical habitat designation always 
has educational benefits; however, in some cases, they may be redundant 
with other educational effects.
    24. Comment: One commenter requested clarification regarding the 
October 9, 2007, press release noticing the completion of the tidewater 
goby 5-year review and its recommendation to downlist the species 
throughout its range. More specifically, the commenter wanted to know 
how a reclassification to threatened would affect the status of 
designated critical habitat.
    Our Response: Critical habitat applies equally to both endangered 
and threatened species. Therefore, reclassifying the tidewater goby 
from endangered to threatened would have no affect on the designated 
critical habitat.
    25. Comment: One commenter expressed concern that designation of 
critical habitat for the tidewater goby may conflict with management of 
Aleutian Canada goose (Branta Canadensis leucopareia) habitat (Humboldt 
Bay and Eel River Delta areas) (grazing benefits the goose by improving 
its habitat), by restricting grazing in upland areas.
    Our Response: The designation of critical habitat does not, in and 
of itself, restrict human activities within an area or mandate any 
specific management or conservation actions. However, one of

[[Page 5927]]

the benefits of critical habitat is to help focus Federal, Tribal, 
State, and private conservation and management efforts in such areas. 
With the knowledge that there is an area that is important to both the 
Aleutian Canada goose and the tidewater goby, management actions 
compatible with both species may be undertaken.

Comments Related to Policy Compliance

    26. Comment: One commenter stated that Federal statutes and 
regulations require Federal agencies to coordinate their initial 
planning efforts with local government. Presidential Executive Order 
12372 requires Federal agencies to coordinate actions and projects with 
local governments. To date, the Service has failed to initiate 
coordination with Del Norte County as required by Federal statute.
    Our Response: Executive Order 12372 (47 FR 30959; July 14, 1982), 
Intergovernmental Review of Federal Programs pertains to Federal 
Assistance and is not directly pertinent to this designation of 
critical habitat. However, we do address the issue of Federal-State 
Coordination below. Please see the Federalism section for additional 
information.

Comments Related to the Draft Economic Analysis

    27. Comment: Several commenters requested that we extend the 
comment period on the draft economic analysis.
    Our Response: Due to time constraints associated with the consent 
decree dated February 27, 2003, we were not able to extend or open an 
additional public comment period.
    28. Comment: One commenter stated that the economic analysis does 
not provide grounds for exclusion of any critical habitat because it 
does not include benefits.
    Our Response: The economic analysis for the tidewater goby did 
consider economic benefits. Our draft economic analysis predicted an 
overall net cost savings of $10.2 million to $65.2 million 
(undiscounted) over the next 20 years.
    29. Comment: One commenter stated that the economic analysis fails 
to estimate the benefits of critical habitat designation. This comment 
includes concerns that the Service: Did not identify the vast majority 
of benefits from designating critical habitat, including benefits to 
ecosystem services, wetland protection, and other use and non-use 
values of habitat; violated the Act by failing to quantify benefits; 
improperly relied on flawed OMB guidance regarding the estimation of 
benefits; does not properly qualitatively describe the benefits of 
designation; improperly establishes the baseline because benefits are 
not estimated; does not prove the infeasibility of estimating and 
monetizing benefits in the analysis; could easily quantify the benefits 
of designating critical habitat; and ignores available information from 
multiple sources that could have been used to estimate benefits.
    Our Response: The economic analysis for the tidewater goby did 
include benefits. Our draft economic analysis predicted an overall net 
cost savings of $10.2 million to $65.2 million (undiscounted) over the 
next 20 years. The only quantifiable benefit of goby conservation 
identified through the economic analysis is the saving associated with 
not constructing a sewage bypass system. While the economic analysis 
acknowledges the potential for other types of economic benefits, data 
were not available, for example, to identify where and to what extent 
property values may be affected by tidewater goby conservation efforts. 
For example, while property valuation studies may provide estimates of 
the value to property of being near environmentally pristine area, 
these studies do not address what changes in property values will 
result from critical habitat designation.
    Section 4(b)(2) of the Act requires the Secretary to designate 
critical habitat based on the best scientific data available after 
taking into consideration the economic impact, impact on national 
security, and any other relevant impact, of specifying any particular 
area as critical habitat. Where data are available, the economic 
analyses do attempt to measure the net economic impact.
    Most of the other benefit categories submitted by the commenter 
reflect broader social values, which are not the same as economic 
impacts. While the Secretary must consider economic and other relevant 
impacts as part of the final decision-making process under section 
4(b)(2) of the Act, the Act explicitly states that it is the 
government's policy to conserve all threatened and endangered species 
and the ecosystems upon which they depend. Thus, we believe that 
explicit consideration of broader social values for the subspecies and 
its habitat, beyond the more traditionally defined economic impacts, is 
not necessary as Congress has already clarified the social importance.
    30. Comment: One commenter stated that the baseline is improperly 
set because it relies on the Tenth Circuit Court of Appeals instead of 
the Ninth Circuit, and that the baseline should be compared with the 
incremental impacts of the designation. Similarly, another commenter 
expressed concern that the economic analysis improperly measures the 
impacts of designation by including costs that would have been incurred 
regardless of critical habitat designation. This commenter stated that 
impacts such as land acquisition and grazing costs are not properly 
integrated into the baseline and should not be considered as a 
consequence of designation, and that the economic analysis does not 
describe the costs attributable solely to designation.
    Our Response: Appendix B of the Final Economic Analysis (FEA) 
estimates the potential incremental impacts of critical habitat 
designation for the goby. It does so by attempting to isolate those 
direct and indirect impacts that are expected to be triggered 
specifically by the critical habitat designation. The incremental 
conservation efforts and associated impacts included in Appendix B 
would not be expected to occur absent the designation of critical 
habitat for the tidewater goby. Total present value potential 
incremental impacts are estimated to be $206,000 discounted at three 
percent. All other impacts quantified in the FEA are considered 
baseline impacts and are not expected to be affected by the critical 
habitat designation.
    31. Comment: One commenter requested clarification regarding the 
50-meter (m) buffer used in the analysis of the study areas for the 
economic analysis. The commenter was concerned that the term ``buffer'' 
indicated that these areas will be barred from use.
    Our Response: The study area analyzed in the draft economic 
analysis included the critical habitat units, which are primarily 
lagoons, estuaries, and coastal streams, and a 50-meter (m) wide stream 
buffer that extended 100 m upstream of the critical habitat units. 
These buffer areas are not included in the critical habitat units. 
However, for the purposes of the analysis it was assumed that 
activities conducted in these areas could indirectly affect the 
critical habitat units. Therefore, the draft economic analysis took 
into consideration the potential economic costs that could result from 
conservation efforts for the tidewater goby within the buffer areas. 
Also, the term ``buffer'' as used in Chapter 3 of the FEA has been 
clarified to indicate that it is for analytical purposes only.
    32. Comment: Two commenters stated that the land identified as 
private land within the grazing study area, which the economic analysis 
determined as

[[Page 5928]]

lacking a Federal nexus compelling consultation, should have been 
addressed in the economic analysis. The commenter is concerned that 
some combination of Federal, State, and local laws may affect grazing 
on those private lands.
    Our Response: Review of existing land management documents, section 
7 consultations, and State and private grazing practices do not 
indicate that this private land is likely to be affected. Private 
grazers have not been affected by goby conservation in the past, there 
are no known voluntary private grazing restrictions, and, under the 
Act, the critical habitat designation will not affect grazing on 
private land absent a Federal nexus. Further, no information is 
available to suggest that critical habitat designation may trigger 
additional regulation under other State and local laws concerning 
grazing. This analysis therefore forecasts that private grazing 
activity is not likely to be affected by goby conservation.
    33. Comment: One commenter stated that the draft economic analysis 
does not address municipal land ownership of grazing land, but counts 
it as privately-owned land instead. The commenter expressed concern 
that the economic analysis should predict future conservation efforts 
on municipal land.
    Our Response: Review of existing land management documents, 
consultations, and State and private grazing practices do not indicate 
that municipal land is likely to be affected differently than private 
land. Grazing on municipal land has not been affected by goby 
conservation in the past, and information gathered in the development 
of the analysis did not suggest that it was likely to be affected in 
the future. Under the Act, the critical habitat designation will not 
affect grazing on municipal land absent a Federal nexus, and there is 
no information to suggest that State or local regulation may be 
tightened because of the designation of critical habitat. This analysis 
therefore forecasts that grazing on municipal lands is unlikely to be 
affected by goby conservation.
    34. Comment: One commenter expressed concern about impacts of 
potential changes in grazing restrictions and management practices on 
the state lands due to critical habitat.
    Our Response: Information received during the comment period 
concerning the California Department of Fish and Game's (CDFG) grazing 
management practices on State lands in the study area has prompted 
changes in Chapter 3 of the economic analysis. The FEA estimates 
foregone forage values and construction costs as part of the baseline 
impacts of CDFG management. These ongoing, co-extensive impacts are 
expected to continue into the future. There are no anticipated changes 
for grazing practices in the study area that will result from the 
critical habitat designation. Further, no additional impacts to grazing 
activities are expected to result from this rulemaking as described in 
Chapter 3 of the FEA.
    35. Comment: One commenter stated that there are alternative ways 
to manage grazing other than exclusion.
    Our Response: The commenter is correct; there are alternative ways 
to manage grazing other than exclusion. However, CDFG currently manages 
grazing in tidewater goby habitat through exclusion. As noted in 
Chapter 3 of the FEA, the practice of excluding livestock from 
tidewater goby habitat is unlikely to change after critical habitat 
designation as CDFG does not anticipate that there will be any future 
changes to grazing management practices. Chapter 3 provides post-
designation cost estimates for current CDFG management practices that 
CDFG has validated and indicates are unlikely to change. Total impacts 
to grazing are estimated to be $1.53 million, undiscounted (20 percent 
lost grazing value and 80 percent fencing maintenance and construction 
costs).
    36. Comment: Two commenters stated that the undiscounted impacts to 
gra