Endangered and Threatened Wildlife and Plants; Reclassifying the Tidewater Goby From Endangered to Threatened, 14339-14362 [2014-05335]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 79, Number 49 (Thursday, March 13, 2014)]
[Proposed Rules]
[Pages 14339-14362]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-05335]



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Vol. 79

Thursday,

No. 49

March 13, 2014

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; Reclassifying the 
Tidewater Goby From Endangered to Threatened; Proposed Rule

Federal Register / Vol. 79, No. 49 / Thursday, March 13, 2014 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2014-0001;FXES11130900000C6-123-FF09E30000]
RIN 1018-AY03


Endangered and Threatened Wildlife and Plants; Reclassifying the 
Tidewater Goby From Endangered to Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and 12-month finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to reclassify the tidewater goby 
(Eucyclogobius newberryi) as threatened under the Endangered Species 
Act of 1973, as amended (Act). The species is currently listed as 
endangered. After review of all available scientific and commercial 
information, we find that reclassifying the tidewater goby as 
threatened is warranted, and, therefore, we propose to reclassify 
tidewater goby as threatened under the Act. We are seeking information 
and comments from the public regarding this proposed rule.

DATES: We will accept comments received or postmarked on or before May 
12, 2014. Please note that if you are using the Federal eRulemaking 
Portal (see ADDRESSES), the deadline for submitting an electronic 
comment is 11:59 p.m. Eastern time on this date. We must receive 
requests for public hearings, in writing, at the address shown in the 
FOR FURTHER INFORMATION CONTACT section by April 28, 2014.

ADDRESSES: Written comments: You may submit comments by one of the 
following methods:
     Electronically: Go to the Federal eRulemaking Portal: 
https://www.regulations.gov. In the Search box, enter Docket No. FWS-R8-
ES-2014-0001, which is the docket number for this rulemaking. Then, in 
the Search panel on the left side of the screen, under the Document 
Type heading, click on the Proposed Rules link to locate this document. 
You may submit a comment by clicking on ``Comment Now!''
     By hard copy: Submit by U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-R8-ES-2014-0001; Division of 
Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 
N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
    We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more information).
    Copies of documents: This proposed rule is available on https://www.regulations.gov. In addition, the supporting file for this proposed 
rule will be available for public inspection, by appointment, during 
normal business hours, at U.S. Fish and Wildlife Service (Service), 
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, 
CA 93003; telephone 805-644-1766. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Services (FIRS) at 800-877-8339.

FOR FURTHER INFORMATION CONTACT: Stephen P. Henry, Deputy Field 
Supervisor, telephone: 805-644-1766. Direct all questions or requests 
for additional information to: TIDEWATER GOBY QUESTIONS, U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, 
Suite B, Ventura, CA 93003. Individuals who are hearing-impaired or 
speech-impaired may call the Federal Relay Service at 1-800-877-8337 
for TTY assistance.

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of Regulatory Action

    On May 18, 2010, we received a petition dated May 13, 2010, from 
The Pacific Legal Foundation, requesting that the tidewater goby be 
reclassified as threatened under the Act. We published a 90-day finding 
on January 19, 2011 (76 FR 3069), that stated our conclusion that the 
petition presented substantial scientific or commercial information 
indicating that the petitioned action may be warranted. This document 
serves as the 12-month finding for the petition, as well as a proposed 
rule to reclassify the tidewater goby as threatened.

Description of Proposed Action

    On February 4, 1994, we listed the tidewater goby as endangered 
based on the threats described below in the Previous Determinations 
Regarding the Tidewater Goby section of this proposed rule.
    According to the Act and our regulations at 50 CFR 424.11(c), a 
species may be reclassified if the best scientific and commercial data 
available substantiate that the species is no longer endangered because 
of the following factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. After review of all available 
scientific and commercial information, we find that reclassifying the 
tidewater goby as threatened is warranted for the following reasons:
    (1) The number of localities known to be occupied has nearly 
tripled since listing (from 43 to 114; see 78 FR 8746).
    (2) The increase in occupied localities indicates that the 
tidewater goby is more resilient in the face of severe drought events 
than believed at the time of listing.
    (3) Threats identified at the time of listing have been reduced or 
are not as serious as previously thought. Threats appeared more 
pervasive due to the severe drought from 1987 to 1992.
    (4) Sea level rise poses a substantial threat to the species that, 
while not an imminent threat, is likely to lead to the species becoming 
endangered in the foreseeable future.
    We conclude that the endangered designation no longer correctly 
reflects the current status of the species and the tidewater goby is 
more appropriately classified as a threatened species.

Information Requested

    We want any final rule resulting from this proposal to be as 
effective as possible. Therefore, we invite tribal and governmental 
agencies, the scientific community, industry, and other interested 
parties to submit information, comments or recommendations concerning 
any aspect of this proposed rule. Comments should be as specific as 
possible. We are specifically requesting information regarding:
    (1) The potential effects of climate change on the tidewater goby's 
status, especially in regard to sea level rise;
    (2) Progress toward completion of metapopulation viability analyses 
for the species;
    (3) Any previously unknown threats not discussed in this proposed 
rule or threats that may be having an effect of the tidewater goby's 
status not fully analyzed in this proposed rule;
    (4) The development of management plans within the tidewater goby's 
range since its listing in 1994 that may have positive effects on the 
species' conservation; and
    (5) The appropriate taxonomic classification of the tidewater goby 
(particularly regarding the southern California populations), along 
with any

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additional supporting genetic, morphological, or other information.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include. Please 
note that submissions merely stating support for or opposition to the 
action under consideration without providing supporting information, 
although noted, will not be considered in making a determination, as 
section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section. Comments must be submitted to https://www.regulations.gov 
before 11:59 p.m. (Eastern Time) on the date specified in the DATES 
section.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. We must receive your request within 45 
days after the date of this Federal Register publication. Send your 
request to the address shown in FOR FURTHER INFORMATION CONTACT. We 
will schedule public hearings on this proposal, if any are requested, 
and announce the dates, times, and places of those hearings, as well as 
how to obtain reasonable accommodations, in the Federal Register and 
local newspapers at least 15 days before the hearing.

Peer Review

    In accordance with our joint policy, ``Notice of Interagency 
Cooperative Policy for Peer Review in Endangered Species Act 
Activities,'' which was published on July 1, 1994 (59 FR 34270), we 
will seek the expert opinion of at least three appropriate independent 
specialists regarding scientific data and interpretations contained in 
this proposed rule. We will send copies of this proposed rule to the 
peer reviewers immediately following publication in the Federal 
Register. The purpose of such review is to ensure that our decisions 
are based on scientifically sound data, assumptions, and analysis. Peer 
reviewers will conduct an assessment of the proposed rule, and the 
specific assumptions and conclusions regarding the proposed 
downlisting. This assessment will be completed during the public 
comment period.
    We will consider all comments and information we receive during the 
comment period on this proposed rule as we prepare the final 
determination. Accordingly, the final decision may differ from this 
proposal.

Previous Federal Action

    On October 24, 1990, we received a petition to add the tidewater 
goby to the Federal List of Endangered and Threatened Wildlife. We 
published a finding on March 22, 1991, that listing the tidewater goby 
as endangered may be warranted (56 FR 12146). A proposal to list the 
species as endangered was published on December 11, 1992 (57 FR 58770), 
and following a public comment period, we listed the tidewater goby as 
endangered throughout its entire range on February 4, 1994 (59 FR 
5494).
    On June 24, 1999, the Service published a proposed rule to remove 
the northern populations of tidewater goby from the List of Endangered 
and Threatened Wildlife (delist), concurrent with a proposal to keep 
listed as endangered a distinct population segment (DPS) of tidewater 
goby in Orange and San Diego Counties (64 FR 33816). On November 7, 
2002, we withdrew the proposed delisting and DPS designation rule 
because we determined, based upon comments received, that our specific 
conclusions in the proposal were not corroborated by the information we 
received during three comment periods (67 FR 67803). Withdrawing the 
delisting proposal for the northern populations of the tidewater goby 
made the establishment of an endangered southern California DPS 
unnecessary.
    On February 6, 2013, we published a final rule designating critical 
habitat in 65 units covering 12,156 acres in California (78 FR 8746). 
Details on the history of legal actions related to the critical habitat 
designation can be found in that final rule.
    We finalized the recovery plan for the tidewater goby on December 
7, 2005. A detailed discussion of the recovery plan and the downlisting 
and delisting criteria are provided below in the ``Recovery Plan'' 
section, following the analysis of the statutory factors.
    We published a notice announcing the initiation of a 5-year status 
review for the tidewater goby under section 4(c)(2) of the Act on March 
22, 2006 (71 FR 14538), and requested information from the public 
concerning the status of the tidewater goby (71 FR 14538). We notified 
the public of completion of the 5-year review on March 5, 2008 (73 FR 
11945). In the 5-year review, completed on September 28, 2007, we 
recommended that the tidewater goby be reclassified as threatened 
because we concluded that the species was not in imminent danger of 
extinction. A copy of the 2007 5-year review for the tidewater goby is 
available on the Service's Environmental Conservation Online System 
(https://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=E071) and at https://www.regulations.gov.
    On May 18, 2010, we received a petition dated May 13, 2010, from 
The Pacific Legal Foundation, requesting that the tidewater goby be 
reclassified as threatened under the Act. The petitioner cited the 5-
year review of the tidewater goby's status completed by the Service in 
2007 to support the petition. We published a 90-day finding on January 
19, 2011 (76 FR 3069), concluding that the petition presented 
substantial scientific or commercial information indicating that the 
petitioned action (reclassification of the tidewater goby) may be 
warranted. This proposed rule constitutes the 12-month finding on the 
May 13, 2010, petition to reclassify the tidewater goby as threatened.

Background

Species Information

Species Description and Taxonomy
    The tidewater goby is a small, elongate, gray-brown fish that 
rarely exceeds 5 centimeters (cm) (2 inches (in)) in length (Service 
2005, p. 2). 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,

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often black, on the body and dorsal and anal fins. Tidewater gobies 
have two dorsal fins set very close together or with a slightly 
confluent membrane. The first dorsal fin has five to seven slender 
spines, the second 11 to 13 soft, branched rays. The anal fin has 11 to 
13 rays as well. The median fins are usually dusky, and the pectoral 
fins are transparent.
    The tidewater goby is the only member of the genus Eucyclogobius in 
the Family Gobiidae. It was first described by Girard (1856), and Gill 
(1863) proposed it as a new species Eucyclogobius newberryi to 
distinguish the tidewater goby from other members of the family. 
Eucyclogobius newberryi is the currently published scientific name for 
the tidewater goby.
Distribution
    The 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 5 kilometers (km) (3 miles 
(mi)) south of the California-Oregon border (Tillas Slough in Del Norte 
County) to 71 km (44 mi) north of the United States-Mexico border (Agua 
Hedionda Lagoon in San Diego County). The available documentation 
suggests the northernmost locality that forms one end of the historical 
and current geographic range of the tidewater goby has not changed over 
time (see for example, Eschmeyer et al. 1983, p. 262; Swift et al. 
1989, p. 12). Tidewater gobies do not currently occur in Agua Hedionda 
Lagoon, and the species' southernmost known extant occurrence is the 
San Luis Rey River 8 km (5 mi) north of Agua Hedionda Lagoon. Although 
the northernmost and southernmost extent of the tidewater goby's range 
has not changed much over time, the species' distribution within the 
historical range has become patchy and fragmented.
    Tidewater gobies are naturally absent from several large (80 to 217 
km (50 to 135 mi)) stretches of coastline lacking lagoons or estuaries, 
and with steep topography or swift currents that may prevent the 
species from dispersing between adjacent localities (Earl et al. 2010, 
p. 104; Swift et al. 1989, p. 13). One such gap of approximately 160 km 
(100 mi) occurs from the Eel River in Humboldt County to Ten Mile River 
in Mendocino County. A second gap of approximately 97 km (60 mi) occurs 
between Lagoon Creek in Mendocino County to Salmon Creek in Sonoma 
County. Another large, natural gap of approximately 160 km (100 mi) 
occurs between the Salinas River in Monterey County and Arroyo del Oso 
in San Luis Obispo County. The southernmost gap, which is most likely 
the result of habitat loss and alteration, occurs between the Los 
Angeles Basin (city of Santa Monica, western Los Angeles County) and 
San Mateo Creek (Marine Corps Base (MCB) Camp Pendleton, San Diego 
County), a distance of approximately 130 km (80 mi).
    Habitat loss and other anthropogenic (human--caused) factors have 
resulted in the tidewater goby now being absent from several localities 
where it historically occurred. These disappearances from specific 
localities have created smaller, artificial gaps in the species' 
geographic distribution (Capelli 1997, p. 7). Such localities include 
San Francisco Bay in San Francisco and Alameda Counties, and Redwood 
Creek and Freshwater Lagoon in Humboldt County. In central and northern 
California, Swift (in litt. 2007) believes it very unlikely that 
genetic interchange is possible between several groups of populations 
naturally separated by 32 km (20 mi) or more of rugged coastline. As 
anthropogenic gaps are created of equal or greater distance, 
recolonization and genetic exchange becomes less likely.
    Swift et al. (1989, p. 13) reported that, as of 1984, tidewater 
gobies occurred, or had been known to occur, at 87 localities. This 
included localities 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 sites since 1984 (Swift et al. 1993, p. 129). Other 
tidewater goby localities have been identified since 1993. Considering 
all of the known historical and currently occupied sites, tidewater 
gobies have been documented at 135 localities. Of these localities, 
gobies have been extirpated from 21 (16 percent), for a total of 114 
localities that are known to be currently occupied (78 FR 8746) (see 
Figure 1); however, these localities are not regularly monitored, so 
the status of tidewater goby in many of these places may have changed 
since they were last surveyed.
BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TP13MR14.011

BILLING CODE 4310-55-C
Habitat
    The tidewater goby inhabits lagoons, estuaries, backwater marshes, 
and freshwater tributaries to estuarine environments that closely 
correspond to major stream drainages. Sediments provided by major 
drainages produce sandy beaches with low-lying coastal areas conducive 
to formation of coastal lagoons (Habel and Armstrong 1977, p. 6; Swift 
et al. 1989, p. 13). Tidewater

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gobies generally select habitat in the upper estuary, usually within 
the freshwater-saltwater interface. Although they may range upstream a 
short distance into freshwater, and downstream into water of up to 
about 75 percent saltwater (28 parts per thousand), the species is 
typically found in salinities of less than 12 parts per thousand (Swift 
et al. 1989, p. 7). These conditions occur in two relatively distinct 
situations: (1) The upper edge of large tidal bays, such as Tomales and 
Bolinas Bays near the entrance of freshwater tributaries; and (2) the 
coastal lagoons formed at the mouths of coastal rivers, streams, or 
seasonally wet canyons.
    The areas that tidewater gobies occupy are dynamic environments 
that are subject to considerable fluctuation on a seasonal and annual 
basis. For example, the formation of a sandbar at the mouth of a lagoon 
occurs in the late spring as freshwater flows into the lagoon decline 
enough to allow the ocean to build up the sandbar through wave action 
on the beach. 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 move through the lagoon or estuary or settle out in the 
backwater marshes, while heavier sand is left in the lagoon or estuary. 
High flows associated with winter rains can scour out the lagoon 
bottom, with sand building up again after flows decline. These dynamic 
processes result in wetland habitats that, over time, change in 
location relative to stationary features that exist outside the flood 
zone (such as roads or buildings).
    Tidewater gobies appear to be adapted to this broad range of 
environmental conditions (Worcester and Lea 1996, no pagination). 
Individuals held at the Granite Canyon Fish Culture Facility were 
subjected to a salinity tolerance test in hypersaline water (45 to 54 
parts per thousand) for 6 months, with no mortality (Worcester and Lea 
1996, no pagination). (The natural salinity of seawater ranges from 33 
to 37 parts per thousand.) Holding temperatures (freshwater) varied 
from 4.0 to 21.5 degrees Celsius (C[deg]) (39.2 to 70.7 degrees 
Fahrenheit (F[deg])). During the late 1980s and early 1990s, Karen 
Worcester (Morro Bay Estuary Program) conducted an investigation of 
habitat use in Pico Creek lagoon, and observed large numbers of 
tidewater gobies using the lower portion of the lagoon where highest 
salinities (up to 27 parts per thousand) were observed. In general, 
abundance did not appear to be associated with oxygen levels, which at 
times were quite low (Service 2007, p. 11).
    While tidewater gobies tolerate a wide range of salinity and water 
quality conditions, Smith (in litt. 2007) reports that sandbar 
formation is important to produce the calm conditions that bring about 
the very abundant late summer populations. Periodic natural or 
artificial breaching of sandbars in summer reverses the freshening 
process, and sandbar re-formation produces stratified salinity 
conditions, with resultant warm and hypoxic (lacking oxygen) bottom 
conditions unsuitable for benthic invertebrates and for lagoon fish. As 
a result, artificial breaching or lack of sandbar formation may result 
in smaller populations that are restricted to areas upstream of tidal 
action (where salinity is lower and dissolved oxygen is higher). Open 
lagoons can sometimes provide some marginal habitat for fish near the 
tidally mixed mouth, but the substantially reduced remainder of the 
lagoon tends to be stratified, warm, and relatively unproductive. 
Partially closed lagoons tend to have warm, stratified conditions 
except every 2 weeks when very high tides cool and mix the lagoon.
    Tidewater gobies also depend on calm backwaters as refuges against 
storm flows and/or draining of small lagoons when the sandbar is opened 
in winter. Populations are apparently periodically lost and then 
recolonize lagoon systems that provide poor winter refuges in flood 
years (such as Aptos, Soquel, and Moran lagoons in Santa Cruz County). 
At several localities, tidewater gobies have been apparently extirpated 
from lagoons that lack winter refugia (Waddell Lagoon in northern Santa 
Cruz County, for example).
    Another feature of lagoons important to the tidewater goby is the 
availability of sediments for burrow construction and spawning. The 
sediments are usually spread quite evenly by declining flows; lagoons 
often end up only 1 to 2 meters (m) (3.3 to 6.6 feet (ft)) deep despite 
a width of 30 to 150 m (100 to 500 ft) or more (Habel and Armstrong 
1977, pp. 4-7). This pattern holds true even in larger systems, such as 
the Santa Ynez River (Santa Barbara County) and Santa Margarita River 
(San Diego County). Half or more of the substrate of the lagoon will be 
soft sand, with mud in backwaters. Some rocks or gravel may be present, 
mostly at the upper (inlet) and lower (outlet) ends where constricted 
flow directly scours the channel. These rocks are exposed by high water 
flow. Declining flows continue to bring in sand that often covers the 
rocks by early spring.
Life History
    Tidewater gobies generally live for only 1 year, with few 
individuals living longer than a year (Moyle 2002, p. 432). They may 
reproduce only once during their lifetime. Reproduction can occur at 
any time of the year, but it tends to peak from late April or May to 
July, and can continue into November, depending on seasonal 
temperatures and rainfall (Swenson 1999, p. 107). Fluctuations in rates 
of reproduction are probably due to death of breeding adults in early 
summer and colder temperatures or hydrological disruptions in winter 
(Swift et al. 1989, p. 107). Reproduction takes place in water between 
9 to 25 C[deg] (48 to 77 F[deg]) at salinities of 2 to 27 parts per 
thousand (Swenson 1999, p. 103).
    Male tidewater gobies begin digging vertical breeding burrows 
approximately 10 to 20 cm (4 to 8 in) deep in relatively 
unconsolidated, clean, coarse sand (averaging 0.5 millimeter (mm) (0.02 
in) in diameter), after lagoons are closed off to the ocean by natural 
berms (Swift et al. 1989, p. 3; Swenson 1995). After the female lays 
eggs in the burrow, the male guards the eggs until they hatch. The 
larval gobies move to midwater vegetation until they mature enough to 
become benthic (free-swimming) and breed the next season.
Metapopulation Dynamics
    Local populations of tidewater gobies are best characterized as 
metapopulations (Lafferty et al. 1999a, p. 1448). A metapopulation is a 
collection of populations separated by geographic distance, but 
connected by dispersing individuals. Local tidewater goby populations 
that occupy coastal lagoons and estuaries are usually 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 suggest 
that some tidewater goby populations are persistent (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. For 
example, Lafferty et al. (1999b, p. 621) concluded that tidewater 
gobies had recolonized Ca[ntilde]ada Honda Creek in Santa Barbara

[[Page 14345]]

County from the Santa Ynez River approximately 9 km (5.5 mi) to the 
north. Recolonization may be occurring when high freshwater flows into 
lagoons and estuaries cause the entrance to the system to be breached 
and connect directly to the ocean. The high flows may flush tidewater 
gobies into the ocean and allow them to move up or down the coast with 
longshore currents and into adjacent lagoons where the species had been 
extirpated (Lafferty et al. 1999b, p. 621). 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 after occasional 
extirpations (Doak and Mills 1994, p. 619). They also suggest that 
flooding may sometimes have a positive effect by contributing to 
recolonization of localities 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 the tidewater goby. Water 
quality, habitat modification, and the introduction of numerous 
nonnative fish species (both competitors and predators) may have caused 
the tidewater goby to disappear from both areas (Service 2005, pp. 18-
21, Appendix E). Today, the majority of the most stable and largest 
tidewater goby populations consist of lagoons and estuaries of 
intermediate sizes (2 to 50 hectares (ha) or 5 to 125 acres (ac)) that 
have remained relatively unaffected by human activities (Service 2005, 
p. 12). Many of the localities where tidewater gobies are persistent 
are likely to be ``source'' populations, and such localities probably 
provide the 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 (see 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 1 ha (2.47 ac) 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 (for example, 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 1 ha (2.47 ac) in size have 
tidewater goby populations that persist (Swift et al. 1997, p. 3). The 
best available information suggests that the lagoons and estuaries that 
have persistent populations are likely the source populations that 
provide individuals that colonize adjacent, smaller localities that 
have ephemeral tidewater goby populations (Lafferty et al. 1999a, p. 
1452).
Genetics
    Various genetic markers demonstrate that pronounced differences in 
the genetic structure of tidewater goby metapopulations exist, and that 
tidewater gobies in many localities are genetically distinct. Genetic 
variability across a species' distribution may be important to long-
term species persistence because it represents the raw material for 
adaptation to differing local conditions and environmental change 
(Frankham 2005, p. 754). A study of mitochondrial control region and 
cytochrome b DNA sequences (molecular material used in genetic studies) 
from tidewater gobies that were collected at 31 localities throughout 
the species' geographic range has identified six major phylogeographic 
units (Dawson et al. 2001, p. 1171). These six regional units include 
the following areas: (1) North Coast (NC) Unit: Tillas Slough (Smith 
River) in Del Norte County to Lagoon Creek in Mendocino County; (2) 
Greater Bay (GB) Unit: Salmon Creek in Sonoma County to Bennett's 
Slough in Monterey County; (3) Central Coast (CC) Unit: Arroyo del Oso 
to Morro Bay in San Luis Obispo County; (4) Conception (CO) Unit: San 
Luis Obispo Creek in San Luis Obispo County to Rincon Creek in Santa 
Barbara County; (5) Los Angeles-Ventura (LV) Unit: Ventura River in 
Ventura County to Topanga Creek in Los Angeles County; and (6) South 
Coast (SC) Unit: San Pedro Harbor in Los Angeles County to Los 
Pe[ntilde]asquitos Lagoon in San Diego County. These units correspond 
to the recovery units identified in the recovery plan for the tidewater 
goby (Service 2005).
    A more recent study to gather genetic distribution data for 
tidewater goby (Earl et al. 2010) used microsatellite DNA (versus the 
mitochondrial control region and cytochrome b DNA used by Dawson et al. 
2001). Earl et al. concluded the following: (1) Populations of 
tidewater goby in northern San Diego County form a clade (a group of 
organisms that are more closely related to each other than any other 
group, implying a shared common ancestor) that has been reproductively 
isolated from all others for more than 2 million years (Earl et al. 
2010, p. 112), and which appears to merit formal description as a 
species-level taxon; (2) populations along the mid-coast of California 
are sub-divided into regional groups, which are more similar to each 
other than different as believed from previous studies based on 
mitochondrial DNA (such as Dawson et al. 2001); and (3) the tidewater 
goby dispersed widely during a sea-level rise event approximately 7,000 
years ago that connected separate watersheds, followed by increased 
isolation as the oceans receded again, resulting in geographic 
separation in the northernmost populations descended from a common 
ancestor (Earl et al. 2010, p. 111).
    The conclusion that the North Coast populations of tidewater goby 
formed as a result of a single, evolutionarily recent episode of 
colonization of newly formed habitats is supported by McCraney and 
Kinziger (2009). They compared genetic variation of 13 naturally and 
artificially fragmented populations of tidewater goby in Northern 
California, including eight Humboldt Bay populations and five coastal 
lagoon populations, and made conclusions similar to Earl et al. (2010). 
McCraney and Kinziger (2009) also concluded that natural and artificial 
habitat fragmentation caused marked divergence among tidewater gobies 
in the North Coast populations. Their study showed that Humboldt Bay 
populations, due to isolation by manmade barriers, exhibited very high 
levels of genetic differentiation between populations, extremely low 
levels of genetic diversity within populations, and no migration among 
populations. They concluded that this pattern makes the Humboldt Bay 
populations of tidewater goby vulnerable to extirpation. In contrast, 
the study found that while coastal lagoon populations also exhibited 
very high levels of genetic differentiation between populations, the 
coastal lagoon populations displayed substantial levels of genetic 
diversity within populations, indicating occasional migration among 
lagoons (McCraney and Kinziger 2009, p. 32).
    All coastal lagoons, with exception of Lake Earl in Del Norte 
County, appear to be stable and genetically healthy (McCraney and 
Kinziger 2009, p. 34). The Lake Earl population exhibited reduced 
levels of genetic diversity in comparison to similar coastal lagoon

[[Page 14346]]

populations (McCraney and Kinziger 2009. p. 34). They further concluded 
that reduced genetic diversity detected within Lake Earl is likely due 
to repeated population bottlenecking (previous reduction in population 
size that results in the population being descended from a small number 
of individuals, resulting in reduced genetic diversity within the 
population) that is a result of regular artificial breaching of the 
lagoon mouth.
    Earl et al. (2010, p. 112) have suggested that the southern 
population of the tidewater goby to the south of the gap between Los 
Angeles and Orange Counties may merit formal description as a distinct 
species based on their different genetic makeup. However, a formal 
description has not yet been published. The Service is evaluating the 
genetic and taxonomic information to determine if it would be 
appropriate to consider listing the tidewater goby as separate species 
or other taxonomic units. For example, this could include considering 
listing a goby species or taxonomic unit to the south of Los Angeles 
County and another to the north. We are requesting information and 
comments on this distinction.
    The conclusions from these genetic studies are: (1) Tidewater 
gobies exhibit considerable genetic diversity across their range; (2) 
the species can be divided into six phylogeographic units based on 
genetic similarities and differences; (3) the tidewater gobies to the 
south of the gap between Los Angeles and Orange Counties may be a 
distinct species based on their divergent genetic makeup compared to 
populations to the north; (4) the northernmost populations are also 
genetically distinct from other tidewater goby populations; (5) the 
populations at the north end of the species' distribution probably 
arose from a common ancestor at the end of sea level rises 7,000 years 
ago; and (6) natural and anthropogenic barriers have contributed to 
genetic differentiation among populations.

Previous Determinations Regarding the Tidewater Goby

Listing Rule
    The 1990 petition to list the tidewater goby was submitted at the 
end of an extended drought in California that resulted in loss of 
habitat for the tidewater goby and severe declines in the number of 
occupied localities. In the 1994 listing rule (59 FR 5494), we made our 
determination that the tidewater goby was endangered based on the 
following: (1) The tidewater goby had been extirpated from nearly 50 
percent of the lagoons and estuaries it had inhabited due to habitat 
alteration (channelization, water diversions, etc.) and drought; (2) 
only 43 populations remained, of which only 8 were considered large 
enough to be stable; (3) the tidewater goby was threatened by 
development, water quality issues, and other habitat alterations; and 
(4) the tidewater goby's downward trend was likely to continue 
regardless of the end of the drought due to the other threats acting on 
the species.
Proposed Delisting Rule
    In the 1999 proposed rule to delist the northern populations of the 
tidewater goby (64 FR 33816), we identified three major reasons for our 
proposed action: (1) There were more populations in the north than were 
known at the time of listing (85 extant populations); (2) threats to 
those populations were less severe than previously believed; and (3) 
the tidewater goby has a greater ability than was known at the time of 
listing to recolonize sites from which it is temporarily absent. On 
November 7, 2002, we withdrew the proposed delisting and DPS 
designation rule because we determined, based upon comments received, 
that our specific conclusions in the proposal were not corroborated by 
the information we received during three comment periods (67 FR 67803). 
We determined that the information provided by the scientific community 
indicated that our 1999 assessment of the importance of new tidewater 
goby populations and the recolonization ability of the tidewater goby 
in the proposed delisting rule were premature, and agreed that it was 
prudent to wait and assess the persistence of these populations for a 
longer period of time. Withdrawing the delisting proposal for the 
northern populations of the tidewater goby made the establishment of an 
endangered southern California DPS unnecessary. We stated that we would 
focus on proceeding with the recovery planning process that would both 
guide conservation activities for the species and make explicit under 
what criteria the tidewater goby should be considered for delisting. 
Importantly, at the time of the withdrawal of the proposed delisting 
rule, we did not evaluate the appropriateness of downlisting the 
species instead of delisting, and we did not attempt to provide a more 
in-depth analysis of the magnitude and imminence of the various threats 
to the species.
5-Year Review
    In conducting the 5-year status review (Service 2007), we performed 
an in-depth analysis of the magnitude and imminence of the various 
threats to the tidewater goby in light of the distribution of the 
species, and concluded that the tidewater goby should be reclassified 
as threatened because the species was not in imminent danger of 
extinction. The main reasons for this conclusion were: (1) The number 
of localities known to be occupied had increased since listing from 43 
to 106; (2) the increase in occupied localities indicated the tidewater 
goby was more resilient in the face of severe drought events than 
believed at the time of listing; and (3) threats identified at the time 
of listing had been reduced or were not as serious as previously 
thought. We also concluded that there was a high likelihood that the 
results of ongoing genetic studies would indicate potential changes to 
the tidewater goby taxonomic classification, and that we should review 
those results prior to publication of a proposed downlisting rule.

Summary of Previous Determinations

    At the time of its listing as endangered in 1994: (1) The tidewater 
goby had been extirpated from nearly 50 percent of the lagoons and 
estuaries it had inhabited due to an extended drought combined with 
habitat alteration (channelization, water diversions, etc.); (2) only 
43 populations remained, of which only eight were considered large 
enough to be stable; and (3) the tidewater goby was threatened by 
development, water quality issues, and other habitat alterations. We 
concluded that these factors were severe enough that the tidewater goby 
was in a downward trend that would continue regardless of the end of 
the 1987-1992 drought. When we prepared a review of the species' status 
in 2007, the number of known occupied localities had increased to 106 
at that time, and it was apparent that the predicted downward trend was 
in error. Although the other threats identified at the time of listing 
continued to impact the goby, we concluded that the main reason for the 
species' decline at the time of listing was the drought, and that the 
tidewater goby was more resilient than expected.
    In the following sections, we analyze the current threats to the 
species to determine if their severity and magnitude have increased, 
decreased, or remain unchanged from the time of listing. We also 
evaluate whether any changes in these threats are sufficient to warrant 
reclassification of the tidewater goby.

[[Page 14347]]

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct vertebrate population segment of fish or 
wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species 
may be determined to be an endangered or threatened species because of 
one or more of the five factors described in section 4(a)(1) of the 
Act: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or human made factors affecting its 
continued existence. A species may be reclassified on the same basis.
    Determining whether the status of a species has improved to the 
point that it can be downlisted requires consideration of whether the 
species is endangered or threatened because of the same five categories 
of threats specified in section 4(a)(1) of the Act. For species that 
are already listed as endangered or threatened, this analysis of 
threats is an evaluation of both the threats currently facing the 
species and the threats that are reasonably likely to affect the 
species in the foreseeable future following the delisting or 
downlisting and the removal or reduction of the Act's protections.
    A species is an ``endangered species'' for purposes of the Act if 
it is in danger of extinction throughout all or a significant portion 
of its range and is a ``threatened species'' if it is likely to become 
an endangered species within the foreseeable future throughout all or a 
significant portion of its range. The word ``range'' in the significant 
portion of its range phrase refers to the range in which the species 
currently exists at the time of this status review. For the purposes of 
this analysis, we first evaluate the status of the species throughout 
all its range, then consider whether the species is in danger of 
extinction or likely to become so in any significant portion of its 
range.
    The following analysis examines all five factors currently 
affecting, or that are likely to affect, the tidewater goby within the 
foreseeable future.
    The tidewater goby was listed as endangered on February 4, 1994 (59 
FR 5494). We made our determination based on the following: (1) The 
tidewater goby had been extirpated from nearly 50 percent of the 
lagoons and estuaries it had inhabited; (2) only 43 populations 
remained, and only eight of those were considered large enough to be 
stable; (3) the tidewater goby would continue to be at risk due to 
development, water quality issues, and other habitat alterations; and 
(4) the tidewater goby's downward trend was likely to continue 
regardless of the end of the drought due to the other threats acting on 
the species.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Capelli (1997, p. 7) estimated that 75 to 90 percent of the 
original estuarine acreage of California had been lost since 1850. Many 
of these wetlands were probably entirely lost to development (including 
development of harbors, channels, agriculture, industrial and business 
uses, residential development, and road construction) before surveys 
for tidewater gobies were being conducted. For example, over 95 percent 
of the wetlands that existed prior to 1850 in the San Francisco Bay 
have been lost (U.S. Geological Survey 2003), most of which were filled 
in entirely and are now covered by development.
    By 1994, when the tidewater goby was listed, researchers believed 
that the species had been extirpated from nearly 50 percent of the 
lagoons within its historical range and that only 43 occupied 
localities remained (59 FR 5497). The final rule stated that the 
tidewater goby had experienced a substantial decline throughout its 
historical range and faced threats indicating the downward trend would 
continue because the species lives within specific habitat zones that 
have been, and would continue to be, targeted for development and 
degraded by human activities. In our 5-year review of the species 
(Service 2007), we recommended downlisting the tidewater goby to 
threatened because we concluded, in part, that threats such as habitat 
loss were not as severe as originally believed, as shown by the 
species' rebound from the drought (the number of occupied localities 
had increased from 43 to 106 at that time) despite continued effects of 
development and altered wetlands.
    According to the recovery plan, approximately 55 to 70 of the 
localities recolonized since the listing in 1994 are naturally so small 
or have been so degraded over time that long-term persistence is 
uncertain (Service 2005, p. 6). By our calculation, approximately 60 
percent of the recolonized localities are classified ``small habitat 
size'' (Service 2005, Appendix E). These small habitat areas are more 
likely to support ephemeral tidewater goby populations that may 
disappear when adverse conditions, such as drought or a rise in sea 
level (discussed below), affect the region (Lafferty et al. 1999a, p. 
1452). Larger core or source populations may persist through conditions 
that would extirpate small populations. According to the recovery plan 
(Service 2005, Appendix E), 10 of these large core or source 
populations (described as large habitat size, abundant population 
density, regular presence) are known to exist.
Habitat Loss, Hydrology, and Sandbar Breaching
    As described above, an estimated 75 to 90 percent of estuarine 
wetlands that possibly could have supported tidewater gobies have been 
lost in California (Capelli 1997, p. 7). Consequently, tidewater gobies 
likely occurred historically in more localities than at present. In 
many cases, these losses resulted in artificial gaps between localities 
or the widening of existing gaps. The habitat at many of these 
historical localities was lost to development (for example, harbors, 
channels, agriculture, industrial and business uses, residential 
development, road construction) before surveys for tidewater gobies 
were being conducted (see San Francisco Bay example, above). Most of 
these wetlands were filled in entirely and are now covered by 
development. Given that tidewater gobies may be able to disperse along 
sandy shores to some degree, it is likely that tidewater gobies in the 
southern portion of their range occupied estuaries and lagoons along 
the shores from Palos Verdes to the headlands at La Jolla when and 
where appropriate intermittently closed habitat occurred (Jacobs, in 
litt. 2007). Nearly all of this habitat has been opened for marinas and 
harbors (or closed to create freshwater impoundments). This has 
produced an anthropogenic (human-caused) gap between those occupied 
localities in Los Angeles and San Diego Counties of at least 130 km (80 
mi).
    Large areas of estuarine and coastal wetland habitat and many 
smaller estuaries and lagoons had been lost prior to the enactment of 
certain regulations that protect wetlands. Those losses that occurred 
in the past have largely been eliminated as a result of current laws 
and regulations protecting coastal habitats (see section below on 
Factor D). Although major habitat loss is

[[Page 14348]]

now unlikely, minor habitat disturbances (mostly less than one acre) 
will continue to occur throughout the tidewater goby's range, which in 
turn will result in impacts to the species. The amount of habitat 
disturbed varies widely from year-to-year, and we have no way of 
predicting how much will occur in any given year. However, Toline et 
al. (2006, no pagination) reported that since the tidewater goby was 
listed in 1994, over 100 biological opinions had been written by the 
Service to address adverse effects to the species (averaging 
approximately 8 projects per year, none of which posed jeopardy to the 
species). Projects covered by these biological opinions included: Flood 
control projects, removal of pipelines, bridge or crossing replacement 
and installations, water diversions, channel maintenance, sand and 
gravel extraction, and others. Many of these projects had a temporary 
effect on tidewater goby habitat, but some resulted in permanent 
changes, such as creation of permanent connections to seawater and 
channelization to encourage flushing of estuaries, that continue to 
have adverse effects on the tidewater goby throughout its range.
    Some type of habitat degradation has occurred or is currently 
occurring throughout the current range of the species (Service 2005, 
Appendix E). Examples of ongoing activities that are occurring within 
tidewater goby habitat include annual dredging (such as that at Goleta 
Slough, Santa Barbara County), habitat restoration projects that are 
not compatible with tidewater goby needs (examples include Malibu 
Lagoon, Los Angeles County; Mission Creek, Santa Barbara County), and 
bridge widening projects (like Mission Creek). These projects are small 
in scale compared to large-scale habitat losses that occurred in the 
past; however, even small projects can have substantial effects on the 
species. One example of a small project that had a substantial effect 
on a tidewater goby population was repair work that began on February 
24, 1998, on railroad trestles crossing San Mateo Creek Lagoon, San 
Diego County. This work included dredging portions of the creek and 
lagoon, and filling freshwater marshes that functioned as tidewater 
goby refugia. Previous surveys had found tidewater gobies to be 
abundant, but no tidewater gobies were found after the construction was 
completed (Swift and Holland 1998, pp. 5-7). The locality has since 
been recolonized or the numbers have rebounded after being driven to 
undetectable levels by the project (Toline et al. 2006, no pagination).
    Based on the best available information, we conclude that these 
small projects generally have isolated, temporary effects and are not, 
by themselves, likely to significantly reduce the number of localities 
occupied by the tidewater goby in the future, compared to the extensive 
habitat losses that occurred prior to the species' listing in 1994. Our 
conclusion is based on the fact that the species continues to occupy 
those localities where these minor projects have occurred. Also, the 
current information indicates the tidewater goby has the capacity to 
recover from a severe drought that reduced its numbers dramatically, 
despite the ongoing effect of these smaller habitat disturbances.
    Prior to the listing of the tidewater goby, modifications to the 
hydrology upstream of the lagoons and estuaries were common. These 
changes ranged from the installation and operation of tide gates (such 
as those at Humboldt Bay) to channelization for flood control. The 
functioning of these structures is intended to control water entering 
the lagoons from the watershed, and they are typically operated to 
minimize flooding of adjacent low-lying features like roads and 
buildings. McCraney et al. (2010, p. 3325) showed that artificial 
fragmentation of tidewater goby populations, such as those in Humboldt 
Bay caused by floodgates and levees, can lead to genetic isolation and 
possibly interfere with the long-term persistence of the tidewater goby 
in some localities. These current operations and potential future 
modifications for flood control do not mimic the natural conditions 
that tidewater gobies require for reproduction and may adversely 
influence salinities and the distribution of tidewater gobies in 
localities where they occur.
    One method of controlling water levels in lagoons and estuaries is 
the breaching of sandbars. Such breaching occurs throughout the range 
of the tidewater goby. The main purpose of authorized breaching 
(pursuant to existing regulations) is to prevent inundation of nearby 
roads and private property (such as that at Lake Earl, Del Norte County 
and Goleta Slough, Santa Barbara County). Unauthorized breaching occurs 
periodically at the mouth of the Santa Clara River; the purpose is 
unknown but may be intended to expose mudflats for shorebirds, to 
enhance local surfing conditions, or to prevent inundation of the 
adjacent campgrounds at McGrath State Beach. In some instances, 
breaching is intended to move the stagnant water behind the sandbar out 
to the ocean due to the offensive odor or poor water conditions (Malibu 
Lagoon, Los Angeles County, for example). At the Bolsa Chica Reserve in 
Orange County, the lagoon has been permanently breached to encourage 
saltwater flow into the lagoon for the benefit of nesting birds such as 
plovers, terns, and gulls, and is no longer viable as tidewater goby 
habitat. Whatever the reason, breaching of sandbars drains lagoons and 
estuaries and results in habitat alterations that strand tidewater 
gobies and their eggs, leaving them vulnerable to predation by seabirds 
or desiccation, and may disrupt the normal breeding cycle (depending on 
when breaching occurs) (Capelli 1997, pp. 8-10). Where it happens, 
sandbar breaching has a substantial effect on the population at that 
locality.
    Breaching is ongoing and likely to continue into the future to 
reduce upstream flooding when lagoons and estuaries are closed to the 
ocean. Other than permanent breaching, such as that at Bolsa Chica, 
these specific breaching activities and others do not happen every 
year, and the frequency at which they occur is dependent upon weather, 
tides, and other factors that we cannot predict very far into the 
future. Breaching occurs throughout the range of the species but is 
usually random, irregular, and sporadic. However, in response to 
climate change and sea level rise, we anticipate that sandbar breaching 
may occur more frequently in the future.
    In terms of habitat loss and modification, our information 
indicates that despite advances in halting large-scale loss of wetland 
habitat that could support tidewater gobies, losses and alterations 
still occur and are expected to continue, but we cannot predict the 
number and locations of such projects in the future. Large projects 
have been replaced by multiple smaller projects, as demonstrated by the 
numerous biological opinions we have prepared for adverse effects to 
the tidewater goby since it was listed in 1994. Many of these projects 
are currently affecting tidewater goby habitat, and we expect more to 
occur in the future. We also know that hydrological changes to 
tidewater goby habitat have occurred and continue to occur, and that 
these changes are detrimental to tidewater goby persistence in some 
localities, and that sandbar breaching is a fairly widespread activity 
in the range of the tidewater goby. Some localities have experienced or 
are experiencing multiple threats; according to the recovery plan 
(Service 2005, Appendix E), more than 75 localities are likely subject 
to 2 or more kinds of habitat

[[Page 14349]]

degradation. Cumulatively, these activities are having a negative 
effect on tidewater goby habitat throughout its range, and other less 
common impacts, such as those resulting from agriculture, cattle 
grazing, and sewage treatment plant discharge, are also contributing to 
habitat loss and alteration.
    While many sources of habitat loss or alteration are evident, 
compared to the large-scale habitat losses that occurred prior to the 
tidewater goby's listing, these are generally temporary and isolated or 
small in scale, so we do not anticipate severe impacts to the tidewater 
goby throughout its range in the short term. Where small and usually 
temporary effects occur, the tidewater goby has been able to persist 
(we do not have data on the size of populations following small 
projects, but the species reproduces profusely under proper conditions, 
and we expect it to rebound effectively). Over time, as these habitat 
alterations continue and other factors develop (such as climate 
change), we expect there may be a cumulative habitat loss that will 
result in loss of populations at some localities and that will reduce 
the range of the species. However, we conclude that the types of 
habitat alteration described above are not sufficient to currently 
cause rangewide declines in the tidewater goby's abundance or 
distribution.
Climate Change
    In addition to the threats to tidewater goby habitat due to 
development, water quality, upstream flood control, and other 
alterations, the localities where tidewater gobies occur are threatened 
by global climate change. Sea level rise and hydrological changes 
associated with climate change are anticipated to have significant 
effects on tidewater goby habitat over the next several decades.
    Sea level rise is a result of two phenomena: Thermal expansion 
(increased sea water temperatures) and global ice melt (Cayan et al. 
2006, p. 5). Between 1897 and 2006, the observed sea level rise has 
been approximately 2 mm (0.08 in) per year, or a total of 20 cm (8 in) 
over that period (Heberger et al. 2009, p. 6). Older estimates 
projected that sea level rise along the California coast would follow a 
similar rate and reach 0.2-0.6 m (0.7-2 ft) by 2100 (IPCC 2007). More 
recent observations and models indicate that those projections were 
conservative and ignored some critical factors, such as melting of the 
Greenland and Antarctica ice sheets (Heberger et al. 2009, p. 6). 
Heberger et al. (2009, p. 8) have updated the sea level rise 
projections for California to 1.0-1.4 m (3.3-4.6 ft) by 2100, while 
Vermeer and Rahmstorf (2009, p. 21530) calculate the sea level rise 
globally at 0.57-1.9 m (2.4-6.2 ft); in both cases, recent estimates 
are more than twice earlier projections.
    The effects of sea level rise could be compounded by and work 
synergistically with normal hydrological and meteorological phenomena 
along the California coast. The normal, but dramatic, tidal 
fluctuations that occur in California could be further increased with 
sea level rise. Storm severity is projected to increase with more 
frequent El Ni[ntilde]o Southern Oscillations due to increasing surface 
water temperature (Cayan et al. 2006, p. 17). Storm severity is 
projected to increase to the north and decrease to the south, likely a 
consequence of the winter storm track shifting to the north (Cayan et 
al. 2009, p. 38). The combined effect of these phenomena could result 
in sea level rise reaching farther inland than previously anticipated 
in some models (Cayan et al. 2006, pp. 48-49; Cayan et al. 2009, p. 
40).
    Park et al. (1989, pp. 1-52) projected that of the saltmarshes 
along the coast of the contiguous United States, 30 percent would be 
lost with a 0.5-m (1.6-ft) sea level rise, 46 percent with a 1-m (3.3-
ft) sea level rise, 52 percent with a 2-m (6.6-ft) sea level rise, and 
65 percent with a 3-m (9.8-ft) sea level rise. While we cannot project 
directly to California from the estimates of Park et al. (1989, pp. 1-
52), who focused on the east coast and Gulf coast of the United States, 
we can use it to make some estimates of what could happen along the 
West Coast. Assuming their estimates are accurate, we can anticipate 
that with a projected global sea level rise of up to almost 2 m (6.6 
ft), approximately 52 percent of the remaining coastal saltmarshes in 
California could be inundated by 2100. Applying Heberger et al.'s 
(2009, p. 8) more conservative estimates for California to Park et 
al.'s calculations, with a projected sea level rise of 1.0-1.4 m (3.3-
4.6 ft) by 2100, somewhere between 46 and 52 percent of the coastal 
saltmarshes in California would be inundated.
    For the tidewater goby, these projections indicate that seal level 
rise has the potential to inundate coastal lagoons and transform them 
into primarily saltwater bodies (Cayan et al. 2006, pp. 34, 48-49). 
More severe storms that are likely to result from climate change (Cayan 
et al. 2006, p. 17), especially along the northern coast of California 
(Cayan et al. 2009, p. 38), combined with the higher than normal sea 
levels, will breach lagoon mouths more frequently from the ocean side. 
These breaches would increase the salinity within the tidewater goby's 
habitat. This would likely disrupt the tidewater goby's normal 
reproduction process, which requires closed lagoons and a specific 
range of salinities. The conversion of coastal lagoons and estuaries 
from brackish to primarily saltwater bodies, in addition to the 
inundation and breaching of sandbars, would eliminate habitat for 
tidewater gobies in many areas.
    In addition to sea level rise, projections are that climate change 
will result in reduced freshwater flows into coastal lagoons and 
estuaries due to the following: (1) Decreased Sierra snowpack and more 
frequent droughts; (2) the need to extract more freshwater for human 
use (agriculture, growing populations) before it enters estuarine 
ecosystems; and (3) the likely intrusion of saltwater into California's 
single largest source of freshwater (the Sacramento-San Joaquin Delta) 
(Anderson et al. 2008, p. 4). Reduced freshwater supplies to coastal 
lagoons and estuaries, besides simulating the effects of drought on the 
tidewater goby, will exacerbate the intrusion of saltwater into coastal 
lagoons and estuaries that may result from sea level rise, thus 
converting lagoons and estuaries into primarily saltwater bodies that 
are not conducive to supporting tidewater gobies.
    Although currently occupied localities may be inundated with 
saltwater due to sea level rise and declining freshwater input, 
currently freshwater habitats upstream of existing tidewater goby 
locations may become brackish as a result of sea level rise and develop 
habitat conditions suitable for the tidewater goby. In areas where this 
occurs, tidewater gobies may be able to move farther upstream as 
seawater moves farther inland. The ability of new habitat to develop 
and tidewater gobies to move upstream in response to saltwater 
intrusion is limited in many places by upstream modifications for flood 
control or other purposes (Service 2005, p. 17). In these locations, 
hard structures or development limit the extent of upstream habitat 
available that could potentially be converted to suitable brackish 
water areas suitable for gobies. These barriers are found throughout 
the range of the tidewater goby, and among regularly occupied tidewater 
goby localities, a few examples where upstream modifications may 
prevent migration include: Lagunitas Creek which has been subjected to 
channelization; the Santa Ynez River, which is channelized in portions 
and is diverted in some areas; Bennett Slough, which is channelized 
upstream, has been diverted, and for which flood control structures 
have

[[Page 14350]]

been installed; and the J Street Drain, which is concrete-lined and 
flows are controlled with a tide gate (Service 2005, Appendices C and 
E). As the sea level rises, the ability of tidewater gobies to move 
upstream to seek the habitat conditions they need may be impeded by 
these and other modifications. In addition, the lack of a natural 
interface between seawater and freshwater inflows may result in an 
abrupt change between saltwater and freshwater (instead of the mixing 
zone that exists under current conditions) and create unsuitable 
habitat for the tidewater goby.
    The recovery plan (Service 2005, Appendix E) lists the localities 
currently and historically occupied by the tidewater goby and the 
threats to those localities. We assume that a shift upstream by 
tidewater gobies would be precluded at ``regularly'' and 
``intermittently'' occupied localities where ``stream channelization'' 
is listed as a threat because the interface between saltwater and 
freshwater would not inundate areas where lagoons could form, but would 
be an abrupt interface where mixing of saltwater and freshwater occurs 
and does not allow tidewater goby habitat to establish. Similarly, 
those occupied localities for which ``salinity regime: dikes, levees, 
dams, etc.'' was listed as a threat could also form an abrupt fresh/
saltwater interface where tidewater goby habitat could not form. Based 
on this assumption, we can calculate the number of localities where 
suitable tidewater goby habitat is not likely to form in response to 
sea level rise. Of the 124 localities considered ``regularly'' or 
``intermittently'' occupied at the time the recovery plan was published 
(2005), 52 have ``stream channelization'' listed as a threat, 50 have 
``salinity regime'' listed as a threat, and 26 localities have both 
listed as a threat. In total, 73 localities occupied by tidewater goby 
have either ``stream channelization'' or ``salinity regime'' or both 
listed as a threat. That would indicate that at least 59 percent (73 of 
124) of the occupied localities that would be inundated by sea level 
rise may have little or no opportunity for suitable tidewater goby 
habitat to form upstream.
    Another consideration is the human response to sea level rise. 
Existing development and infrastructure are at increasing risk, and 
those planning responses to sea level rise in California are exploring 
several options, including hard engineering, soft engineering, 
accommodation/adaptation, or retreat (California Coastal Commission 
2001, pp. 18-25). While none of the responses have been ruled out, hard 
engineering (like sea walls or levees) and soft engineering (beach 
replenishment, sand bar protection) may be the most viable options 
(accommodation/adaptation could require costly structural fixes, and 
retreat requires the use of land that may not be available). Both of 
these engineering solutions are designed to work against sea level rise 
and will create an abrupt interface between saltwater and freshwater as 
opposed to allowing flooding of low-lying coastal areas. Consequently, 
areas where sea level rise is met by engineering solutions are less 
likely to accommodate a shift in tidewater goby habitat.
    To summarize our analysis of the potential for upstream shifts in 
tidewater goby habitat in response to sea level rise, we estimate that 
up to 59 percent of the 124 localities considered regularly or 
intermittently occupied in the 2005 recovery plan (Service 2005, 
Appendix E) are not likely to accommodate higher sea levels such that 
``new'' habitat for tidewater gobies would be created. Thus, we 
anticipate that by 2100, as much as 59 percent, and perhaps more, of 
the occupied localities could be extirpated by the combination of sea 
level rise with existing and future barriers to tidal inflow.
    A less well-known aspect of climate change is ocean acidification. 
The increased amount of carbon dioxide in the atmosphere means rainfall 
captures more carbon dioxide and delivers it to the oceans. When carbon 
dioxide dissolves in seawater, the concentration of hydrogen ions 
increases, thereby increasing the acidity (Orr et al. 2005, p. 1). The 
lowering pH makes calcium carbonate less available for organisms that 
use it to form shells and exoskeletons. Projections are that ocean 
acidification, which began shortly after the Industrial Revolution and 
is accelerating in the 21st century, could disrupt the life cycles of 
many marine organisms that form the basis of complex ecosystems (Orr et 
al. 2005, p. 685). The tidewater goby forages on a variety of small 
organisms that may rely on the availability of calcium carbonate to 
form exoskeletons and shells. If ocean acidification decreases the 
availability of such prey, tidewater goby populations could be 
affected. While the effects of carbon dioxide dissolving in the oceans 
are apparent in some cases (coral reefs), the impacts to tidewater goby 
habitat and prey are speculative. Although acidification may have some 
effect on the species, at this time we cannot make meaningful 
projections on either the degree of acidification that is likely to 
occur within the range of the tidewater goby, or how the species may 
react to acidification.
    Considering the number of historical localities listed as 
extirpated (24) in the recovery plan (Service 2005, p. 27), and those 
considered so small or degraded that long-term persistence is 
questionable (55 to 70; Service 2005, p. 6), the additional threat due 
to climate change and sea level rise increases the likelihood that the 
number of tidewater goby populations will decline and those that remain 
will be further fragmented.
Summary of Factor A
    On the basis of this analysis, we find that the destruction, 
modification, or curtailment of tidewater goby habitat is currently a 
threat to the tidewater goby rangewide, and we expect the threat to 
continue in the future. While the large-scale impacts to tidewater goby 
habitat have slowed due to regulations that protect wetland areas, 
multiple small losses and alterations still occur and are expected to 
continue to degrade tidewater goby habitat throughout the species' 
range. Hydrological changes to tidewater goby habitat, such as flood 
control and bridge replacement, continue to occur, and these changes 
are detrimental to tidewater goby persistence in some localities. 
Sandbar breaching is a fairly pervasive activity throughout the range 
of the tidewater goby and has a significant negative impact on the 
populations where it occurs. Cumulatively, while these activities are 
having a negative effect on tidewater goby habitat throughout its 
range, and we predict that activities that remove or degrade tidewater 
goby habitat will continue, we conclude that impacts to the tidewater 
goby from these activities are not currently having a substantial 
effect on the species throughout its range, but may in the future as 
these effects accumulate.
    A primary reason for the above conclusion is the tidewater goby's 
ability to rebound after prolonged periods of unsuitable habitat 
conditions (e.g., prolonged drought). At the time of listing in 1994, 
when the tidewater goby was known to occupy only 43 localities, we 
concluded that the species' ``downward trend was likely to continue'' 
due to threats posed by, among others, habitat loss. When the drought 
that had reduced the number of localities to 43 ended, the tidewater 
goby numbers rebounded to a now estimated 114 occupied localities (78 
FR 8746). This indicates that the species is able to recover from a 
serious drought and that the threats we believed would cause a 
continuing downward trend are not as serious as previously determined.
    In addition to the direct human-caused losses of tidewater goby 
habitat described above, climate change

[[Page 14351]]

(including ocean acidification), and sea level rise in particular, will 
have a significant negative impact on the species. Sea levels have been 
rising since the last century, and we can project how sea level rise 
will affect the tidewater goby; however, sea level rise is happening 
gradually and demonstrable effects to the tidewater goby will only be 
manifested after decades of global temperature increases. Thus, we 
conclude that sea level rise is a threat to the species in the 
foreseeable future, but is not an imminent threat.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Based on our review of the available information, we found no 
evidence of risks from overutilization for commercial, recreational, 
scientific, or educational purposes affecting the tidewater goby or 
potential risks in the future. While some scientific collecting has 
been done for genetic analysis, the number of individual gobies removed 
has been kept to levels that would not have a noticeable impact on 
discrete populations. We therefore conclude that overutilization for 
commercial, recreational, scientific, or educational purposes is not a 
threat to the tidewater goby now, and we do not anticipate 
overutilization becoming a threat in the future.

C. Disease or Predation

Disease/Parasites
    Disease was not considered a threat to the tidewater goby in the 
final listing rule for the species; however, concern exists over the 
effects of certain parasites on the tidewater goby. Cryptocotyle lingua 
is one parasite that has been documented in the tidewater goby (Swift 
et al. 1989, p. 7; Swenson 1999). It is an introduced fluke (flatworm) 
native to the eastern Atlantic Ocean that infects marine fish as an 
intermediate host (Sindermann and Farrin 1962, pp. 69-75). The source 
of this parasite is not known, but it may have been introduced in 
ballast water from vessels from eastern Atlantic ports. As a trigenetic 
parasite, Cryptocotyle lingua has two intermediate hosts; the first is 
a snail, the second a fish like the tidewater goby. The second 
intermediate host passes along the parasite to the final host, such as 
a bird or mammal, when the fish is consumed. The intermediate host is 
weakened by the parasite but not killed. Although all localities may 
potentially support this parasite, it has only been documented to 
infect tidewater gobies at Gannon Slough, Humboldt County, Pescadero 
Creek, San Mateo County, and possibly Corcoran Lagoon, Santa Cruz 
County (Swenson 1999). While a typical trigenetic parasite has effects 
on its intermediate hosts described above, we have no information 
indicating that Cryptocotyle lingua infestations of the tidewater goby 
are substantial enough to cause the loss of populations or have caused 
a decline in the species' distribution or numbers. In the future, if 
Cryptocotyle lingua spreads, it may have a greater effect on the 
tidewater goby than currently observed.
    McGourty et al. (2007, pp. 655-660) report that a newly recognized 
species of protozoan parasite, Kabatana newberryi, may be specific to 
the tidewater goby. Their data suggest that Kabatana newberryi occurs 
sympatrically (overlaps geographically) with the tidewater goby 
throughout northern California. During presence-absence surveys of 
tidewater gobies in 2003 and 2004, McGourty et al. (2007, p. 655) found 
individuals throughout the northern range of the species infected with 
Kabatana newberryi, as shown by the presence of opaque white muscle 
tissue. Voucher specimens of tidewater gobies taken from Rodeo Lagoon, 
Marin County, California in 2005 exhibited similar infections (D. Fong, 
pers. comm. as cited in McGourty et al. 2007, p. 659). No specific 
identification of the parasites could be made because the voucher 
specimens were preserved in formalin; however, the parasite from the 
Rodeo Lagoon specimens appears very similar to Kabatana newberryi in 
that it infects muscle cells. Kabatana newberryi has not been reported 
in the southern portion of the tidewater goby's range, and the 
dispersal mechanism of Kabatana newberryi is not well understood 
(McGourty et al. 2007, pp. 659-670). Surveys evaluating the presence 
and potential effects of Kabatana newberryi on tidewater gobies are 
needed to assess whether this parasite represents a significant threat 
to its host and could contribute to its decline. Because this parasite 
was discovered in tidewater goby specimens captured in Big Lagoon, 
Humboldt County, an otherwise large and reasonably secure population, 
this suggests that even populations at otherwise low risk from habitat 
loss or destruction may be at risk from disease or parasites (Service 
2007, p. 24).
    Although parasites have been found in tidewater gobies, diseases 
and parasites and how they affect tidewater goby populations are not 
well understood at this time. Only recently has research begun to 
analyze the relationship between tidewater gobies and parasites, and 
how the tidewater goby populations are affected. Native parasites, such 
as Kabatana newberryi, that target a specific host (in this case, the 
tidewater goby) are probably not a threat because a successful 
monospecific parasite does not decimate its host populations, although 
it can affect individual animals. Nonnative parasites, such as 
Cryptocotyle lingua, may be more of a threat because they did not 
evolve a host-parasite relationship with the tidewater goby, they can 
occupy more than one host species, and an infestation could possibly 
reduce tidewater goby numbers.
    Although parasites can have effects on individual tidewater gobies, 
we have no information attributing any population declines or loss of 
localities to parasitic infestations. The best available information 
does not indicate that these parasites pose a significant threat to the 
tidewater goby now. We have no data with which to predict the future 
impacts of parasites on the tidewater goby, but the potential exists 
for parasites to reduce tidewater goby numbers if the parasites spread 
or increase in number.
Predation
    Native fish species, such as some salmonids, may prey on tidewater 
gobies (Moyle 2002, p. 432). This is a natural phenomenon, and we 
expect gobies to be adapted to some level of predation by native 
species with which they have evolved, but when tidewater goby numbers 
and habitat are reduced through human-induced threats, these native 
predators may have a greater effect on a tidewater goby population. 
Introduced aquatic species that may have arrived in ballast water from 
foreign vessels or been deliberately released may be more damaging 
because they did not evolve in conjunction with native species, and 
they can be prolific in the absence of their own natural controls (that 
is, disease or predators). We know that introduced predatory fish have 
a negative impact on most of California's native coastal species and 
some prey on tidewater gobies (Service 2007, p. 21). According to the 
recovery plan, approximately 65 localities are known to have native and 
nonnative predators that feed on tidewater gobies (Service 2005, 
Appendix E). Introduced species may affect tidewater goby populations 
by preying on adults, larvae, or eggs. Predation by introduced or 
native species can be particularly damaging to species, such as 
tidewater goby, that are generally distributed across small, isolated 
populations and are prone to fluctuations in population

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size (Pimm et al. 1988, p. 777; Lafferty et al. 1999a, p. 1448).
    Specific examples of situations where predation by nonnative 
species may have negatively affected tidewater goby populations can be 
found in M. Capelli, in litt. 1999, p. 13; D. Holland, in litt. 1999, 
pp. 5-6; and C. Swift, in litt. 1999, no pagination. In the Santa Ynez 
River system, tidewater gobies accounted for 61 percent of the prey 
volume of 55 percent (10 of 18) of the juvenile largemouth bass sampled 
(Swift et al. 1997; M. Capelli, in litt. 1999, p. 13). The decline and 
subsequent recovery of the tidewater goby population in Las Pulgas 
Creek closely tracked the presence and absence of green sunfish in the 
lagoon of this system (Swift and Holland 1998, p. 10). The elimination 
of tidewater gobies from the Santa Margarita River, San Diego County, 
may have been due to the combined influence of nonnative species and 
decreasing habitat available for the tidewater goby (Swift and Holland 
1998, pp. 14-17). Largemouth bass in Old Creek of San Luis Obispo 
County are likely responsible for the elimination and prevention of re-
establishment of tidewater gobies there (D. Holland, in litt. 1999, p. 
6). This evidence, though indirect, suggests that some nonnative 
predators can have significant negative impacts on tidewater gobies, up 
to and including extirpation from individual localities (K. Lafferty, 
in litt. 1999). In addition, predation by nonnatives may have negative 
effects short of extirpation, reducing tidewater goby population sizes 
and thereby rendering populations more vulnerable over the long term to 
extirpation as a result of natural perturbations of habitat conditions 
at the site (M. Capelli, in litt. 1999, p. 11).
    Fish surveys along the California coast conducted by the California 
Department of Fish and Wildlife's (CDFW) Office of Spill Prevention and 
Response identified the presence of numerous introduced predatory 
species, including striped bass (Morone saxatilis), white catfish 
(Amerius catus), largemouth bass (Micropterus salmoides), common carp 
(Cyprinus carpio), threadfin shad (Dorosoma petenense), redear sunfish 
(Lepomis microlophus), black crappie (Pomoxis nigromaculatus), bluegill 
(Lepomis macrochirus), and inland silverside (Menidia beryllina). These 
fish have been introduced historically in California waters as sport 
fish or forage.
    Currently, the impact of nonnative fish appears to be isolated and 
infrequent (see examples above); however, if introductions of nonnative 
fish continue in the future and more waters that support tidewater 
gobies are affected, we can expect nonnative predators to have a more 
widespread negative impact on tidewater goby populations.
    Amphibians are also known predators of native fish species (Swift 
and Holland 1998, p. 26). Bullfrogs (Rana catesbeiana) have been 
introduced to California either accidentally through the aquarium trade 
and during trout stocking, or deliberately for pest control or sport. 
Bullfrogs are known predators on a wide variety of species, including 
many fish, and are suspected to have significant negative impacts on 
tidewater goby populations (Swift and Holland 1998, p. 26; Holland et 
al. 2001, pp. 35-36). Furthermore, bullfrogs have been implicated in 
the demise of the Old Creek, San Luis Obispo County, tidewater goby 
population (Rathbun 1991, p. 4).
    In summary, numerous native and nonnative predators have been 
documented in tidewater goby habitat. While there is evidence that 
predators can affect individual tidewater goby localities, the impacts 
do not appear to be widespread and are more acute where predation is 
occurring in the presence of other factors that have depressed the 
species' numbers, such as drought. We conclude predation alone is not a 
severe threat to the species as a whole. As discussed under Factor D 
below, subsequent to the listing of the species, the State of 
California has enacted regulations to help control aquatic invasive 
species, including those that may arrive in ballast water, and this may 
reduce the threat from nonnative predators.
Summary of Factor C
    The best available information indicates that at current population 
levels, parasitic infections and nonnative predators are not a major 
threat to the tidewater goby rangewide; however, under certain 
conditions (for example, poor water quality, drought), parasites and 
nonnative predators could have substantial negative impacts to 
populations of tidewater goby at specific localities in the future. At 
the time of listing in 1994, when the tidewater goby occupied only 43 
localities and a severe drought was ending, parasites and predators 
posed a relatively greater threat to species. After the drought ended, 
the number of localities known to be occupied by tidewater gobies has 
increased to an estimated 114 (78 FR 8746), and currently available 
information does not indicate that parasites and predators are having a 
substantial effect on the tidewater goby's numbers or distribution at 
current levels.

D. The Inadequacy of Existing Regulatory Mechanisms

    Reclassifying the tidewater goby from endangered to threatened 
would not change the protections afforded to this species under the Act 
or other regulations. The listing rule for the tidewater goby described 
several Federal and State regulations that provide protection for the 
tidewater goby and its habitat including the Rivers and Harbors Act (33 
U.S.C. 401 et seq.), the Clean Water Act (33 U.S.C. 1251 et seq.), and 
the California Coastal Act (see the final listing rule for details on 
these and other regulations (59 FR 5494)). These regulations all remain 
in effect and continue to provide substantial protections for the 
tidewater goby and its habitat. However, while regulations have largely 
eliminated the large-scale destruction of habitat, these same 
regulations contain permitting processes that allow certain actions to 
continue, and small-scale habitat loss or degradation (meaning roughly 
a few acres per project) continues to occur (California Coastal 
Commission 1994, no pagination).
    Subsequent to the listing of the tidewater goby as endangered, 
three new regulations have been enacted that provide additional 
protection for the species, the Federal Sikes Act Improvement Act, the 
California Ballast Management for Control of Nonindigenous Species Act, 
and the California Marine Invasive Species Act.
    The Sikes Act Improvement Act of 1997 (16 U.S.C. 670 et seq.) 
authorizes the Secretary of Defense to develop cooperative plans with 
the Secretaries of Agriculture and the Interior for natural resources 
on public lands. The Sikes Act Improvement Act requires Department of 
Defense installations to prepare integrated natural resources 
management plans (INRMPs) that manage natural resources on military 
lands consistent with the use of military installations to ensure the 
readiness of the Armed Forces. INRMPs incorporate, to the maximum 
extent practicable, ecosystem management principles and provide the 
landscape necessary to sustain military land uses. INRMPs are developed 
in coordination with the State and the Service, and are generally 
updated every 5 years although they remain in effect during that 
process. Although implementation is subject to funding availability, 
INRMPs are important guiding documents that help to integrate natural 
resource conservation with military readiness

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and training. Each INRMP includes the following:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    Vandenberg Air Force Base (VAFB) is located on the central 
California coast, approximately 225 km (140 mi) northwest of Los 
Angeles and is approximately 67 km (42 mi) in length. VAFB completed an 
INRMP in 2011 that protects in several ways the five localities on the 
base occupied by the tidewater goby. These measures include: (1) 
Avoiding the tidewater goby and its habitat, whenever possible, in 
project planning; (2) scheduling activities that may affect tidewater 
goby outside of the peak breeding period (March to July); (3) 
coordinating with VAFB water quality staff to prevent degradation and 
contamination of aquatic habitats; and (4) prohibiting the introduction 
of nonnative fishes into streams on-base (VAFB 2011, Tab D, p. 15). 
Furthermore, VAFB's environmental staff reviews projects and enforces 
existing regulations and orders that, through their implementation, 
avoid and minimize impacts to natural resources, including the 
tidewater goby and its habitat. In addition, VAFB's INRMP protects 
aquatic habitats for the tidewater goby by excluding cattle from 
wetlands and riparian areas through the installation and maintenance of 
fencing.
    Seven of the eight occupied localities remaining in southern 
California are on MCB Camp Pendleton, which is located on the southern 
coast of California approximately 132 km (82 mi) south of Los Angeles 
and is approximately 21 km (13 mi) in length. MCB Camp Pendleton 
completed its INRMP in 2001, followed by a revised and updated version 
in 2007, which includes several measures that protect the tidewater 
goby and its habitat.
    Management and protection measures that benefit the tidewater goby 
identified in Appendix B of the INRMP (MCB Camp Pendleton 2007, 
Appendix B, pp. B5-B7) include, but are not limited to, the following: 
(1) Maintaining connectivity of beach and estuarine ecosystems with 
riparian and upland ecosystems; (2) promoting natural hydrological 
processes to maintain estuarine water quality and quantity; and (3) 
maximizing the probability of tidewater goby metapopulation existence 
within the lagoon complex. Management and protection measures that 
benefit tidewater goby identified in Appendix C of the INRMP (MCB Camp 
Pendleton 2007, Appendix C, pp. C5-C8) include, but are not limited to, 
the following: (1) Eliminating nonnative, invasive species (such as 
Arundo donax (giant reed)) on the installation and off the installation 
in partnership with upstream landowners to enhance ecosystem value; (2) 
providing viable riparian corridors and promoting connectivity of 
native riparian habitats; (3) providing for unimpeded hydrologic and 
sedimentary floodplain dynamics to support the maintenance and 
enhancement of biota; (4) maintaining natural floodplain processes and 
extent of these areas by avoiding and minimizing further permanent loss 
of floodplain habitats; (5) maintaining to the maximum extent possible 
natural flood regimes; (6) maintaining to the extent practicable stream 
and river flows needed to support riparian habitat; (7) monitoring and 
maintaining groundwater levels and basin withdrawals to avoid loss and 
degradation of habitat quality; (8) restoring areas to their original 
condition after disturbance, such as following project construction or 
fire damage; and (9) promoting increased tidewater goby populations in 
watersheds through perpetuation of natural ecosystem processes and 
programmatic instruction application for avoidance and minimization of 
impacts.
    MCB Camp Pendleton's INRMP also benefits tidewater goby through 
ongoing monitoring and research efforts. The installation conducts 
monitoring of tidewater goby populations at least once every 3 years 
(MCB Camp Pendleton 2007, Appendix B, p. B8). Additionally, MCB Camp 
Pendleton collaborated with the U.S. Geological Survey's Biological 
Resources Division to develop and implement a rigorous, science-based 
monitoring protocol for tidewater goby populations throughout the 
installation, including monitoring water quality variables at all 
historically occupied sites regardless of current occupation status.
    The completion of the MCB Camp Pendleton INRMP and the protections 
it affords to the tidewater goby and its habitat on the base is of 
particular significance to the status of the species as seven of the 
eight occupied localities remaining in southern California (south of 
Los Angeles County) are on MCB Camp Pendleton. As recently as 1999, the 
Service considered southern California to be the most seriously 
threatened portion of the tidewater goby's range (64 FR 33816). 
However, the MCB Camp Pendleton INRMP has substantially reduced threats 
in the region.
    The California Ballast Management for Control of Nonindigenous 
Species Act of 1999 was adopted by the State of California to establish 
a multi-agency program to prevent the introduction and spread of 
nonnative aquatic species from the ballast of ships into the State 
waters of California. The program was designed to determine the current 
level of species invasions while researching alternative control 
strategies. Under this program, the CDFW is required to study the 
extent of nonnative species introductions into the coastal waters of 
the State. To fulfill this requirement, the CDFW's Office of Spill 
Prevention and Response initiated several baseline field surveys of 
ports and bays along the California coast and a literature survey of 
records of nonindigenous species.
    The California Marine Invasive Species Act was passed in 2003, 
widening the scope of the original ballast water program (CDFG 2008, p. 
47). The 2003 act requires ballast water management for all vessels 
that intend to discharge ballast water in California waters. All 
qualifying vessels coming from ports within the Pacific Coast region 
must conduct an exchange [in waters at least 50 nautical mi offshore 
and 200 m (656 ft) deep], or retain all ballast water and associated 
sediments. To determine the effectiveness of the management provisions 
of this act, the legislation also requires State agencies to conduct a 
series of biological surveys to monitor new introductions to coastal 
and estuarine waters. Implementation of these measures should further 
reduce the frequency of new introductions of invasive species into 
California's coastal waters that could be a threat to the tidewater 
goby. The Coastal Ecosystems Protection Act of 2006 deleted a sunset 
provision of the Marine Invasive Species Act, making the program 
permanent.
    Upon its listing as endangered, the tidewater goby benefited from 
the protections of Act, which include the prohibition against take and 
the requirement for interagency consultation for Federal actions that 
may affect the species. Section 9 of the

[[Page 14354]]

Act and Federal regulations prohibit the take of endangered and 
threatened species without special exemption. The Act defines ``take'' 
as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct (16 U.S.C. 
1532(19)). Our regulations define ``harm'' to include significant 
habitat modification or degradation that results in death or injury to 
listed species by significantly impairing essential behavioral 
patterns, including breeding, feeding, or sheltering (50 CFR 17.3). Our 
regulations also define ``harass'' as intentional or negligent actions 
that create the likelihood of injury to a listed species by annoying it 
to such an extent as to significantly disrupt normal behavior patterns, 
which include, but are not limited to, breeding, feeding, or sheltering 
(50 CFR 17.3). Section 7(a)(1) of the Act requires all Federal agencies 
to utilize their authorities in furtherance of the purposes of the Act 
by carrying out programs for the conservation of endangered species and 
threatened species. Section 7(a)(2) of the Act requires Federal 
agencies to ensure that any action they authorize, fund, or carry out 
is not likely to jeopardize the continued existence of listed species 
or destroy or adversely modify their critical habitat. Section 6 of the 
Act, which authorizes us to enter into cooperative conservation 
agreements with States, and to allocate funds for conservation programs 
to benefit threatened or endangered species, provides another potential 
benefit. Neither section 6 of the Act nor Service policy gives higher 
priority to endangered species over threatened species for conservation 
funding.
    Thus, listing the tidewater goby provided a variety of protections, 
including the prohibition against take and the conservation mandates of 
section 7 for all Federal agencies. Because the Service has regulations 
that prohibit take of all threatened wildlife species (50 CFR 
17.31(a)), unless modified by a special rule issued under section 4(d) 
of the Act (50 CFR 17.31(c)), the regulatory protections of the Act are 
largely the same for wildlife species listed as endangered and as 
threatened; thus, the protections provided by the Act will remain in 
place if the tidewater goby is reclassified as a threatened species.
Summary of Factor D
    In summary, the tidewater goby is currently protected by a variety 
of regulatory mechanisms throughout its range, and we anticipate those 
protections will continue for the foreseeable future. Regulations in 
place when the tidewater goby was listed continue to provide 
substantial protection for the species and its habitat. The passing of 
the Sikes Act Improvement Act subsequent to the listing has been 
particularly beneficial to the tidewater goby in southern California 
where seven of the eight occupied locations in that region receive a 
substantial level of protection through the INRMP developed by MCB Camp 
Pendleton. Although the INRMP developed by VAFB provides substantial 
protections to the tidewater goby and its habitat, the VAFB INRMP only 
covers the five localities on the base. The other two regulations 
passed since the species was listed, the California Ballast Management 
for Control of Nonindigenous Species Act and the California Marine 
Invasive Species Act, help reduce the threat of the introduction of new 
invasive species from ballast water throughout the entire range of the 
species. Overall, regulations in effect at the time of listing and new 
regulations passed subsequent to listing have substantially reduced, 
but have not eliminated any of, the threats to the tidewater goby and 
its habitat. Therefore, we conclude that existing regulatory mechanisms 
are inadequate to protect the tidewater goby without the additional 
protections afforded under the Act.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Competition
    One of the potential threats to the tidewater goby is competition 
from nonnative species. This competition is mainly for prey, but can 
also be competition for other resources. For example, Big Lagoon and 
Freshwater Lagoon in Humboldt County support populations of the 
nonnative New Zealand mudsnail (Potamopyrgus antipodarum) that was 
likely introduced by fisherman or boats, either on the outside of the 
vessels or in ballast water (Service 2008, no pagination). The New 
Zealand mudsnail blankets the bottom of these lagoons and may 
outcompete other native species, including the tidewater goby, for 
space and resources. The New Zealand mudsnail may have the overall 
effect of altering the ecosystem to the point it cannot support other 
native species.
    Several small, potentially competitive, estuarine fishes have also 
been introduced into tidewater goby habitat. These include the 
rainwater killifish (Lucania parva), chameleon goby (Tridentiger 
trigonocephalus), yellowfin goby (Acanthogobius flavimanus), and 
shimofuri goby (Tridentiger bifasciatus). The first three species 
appeared in the 1960s in San Francisco Bay, coincident with the last 
collections of tidewater gobies there (Haaker 1979; Swift et al. 1989). 
Rainwater killifish have become widespread in San Francisco Bay, and 
have recently become established in Upper Newport Bay, Orange County, 
but have not become established elsewhere (Moyle 2002, p. 315). 
Yellowfin gobies have seldom been collected in the smaller, brackish, 
non-tidal systems where tidewater gobies are found (Swift et al. 1994, 
p. 21); however, in 1992 and 1993, yellowfin gobies were collected in 
the Santa Clara River (Ventura County) and Santa Margarita River (San 
Diego County) lagoons (Swift et al. 1994, p. 15). The recent appearance 
of yellowfin gobies in southern California and the coincident 
disappearance of the tidewater goby in the Santa Margarita River in 
late 1993 suggest that the species is slowly spreading to brackish 
habitats and may be eliminating tidewater gobies.
    Chameleon gobies have been locally abundant on hard substrates in 
San Francisco and Los Angeles harbors since the 1960s and 1970s, 
respectively (Haaker 1979, p. 59). Initial experiments by Swenson and 
Matern (1995, p. 3) indicated that shimofuri gobies aggressively 
intimidate, outcompete, and prey on tidewater gobies in the laboratory. 
However, like the chameleon goby, the shimofuri goby prefers hard 
substrates. Thus, it might be expected to remain in such habitats in 
coastal lagoons, and perhaps not interact extensively with tidewater 
gobies. To date, the possible effects of interactions in the wild 
between these nonnative estuarine fish and tidewater gobies are largely 
conjectural.
    These nonnative competitors may be having a negative effect on 
tidewater goby numbers, but the relationship is not demonstrated by the 
best available information. We can infer from the overall impact of 
introducing nonnative competitors in other situations that nonnative 
species like the New Zealand mussel will deplete resources used by the 
tidewater goby, but based on the best available information, we 
conclude that competition is not a substantial, uniform threat to the 
species throughout its range. As discussed under Factor D above, the 
State of California has enacted regulations to help control aquatic 
invasive species (CDFG 2008), including those introduced in ballast 
water, and while these regulations may not eliminate competition from 
nonnative species, they should help reduce the future threat.

[[Page 14355]]

Water Quality
    Impaired water quality was cited as a potential threat to the 
tidewater goby in the recovery plan (Service 2005, p. 21, 28, Appendix 
C). Water quality issues still affect some of the localities occupied 
by tidewater gobies. For example, the Tillas Slough in Del Norte County 
is subject to runoff from pastures that carry nitrogenous waste, which 
in turn increases algae production and depletes oxygen levels in the 
water. In the Santa Clara River estuary, the natural flows are 
augmented by discharges from a wastewater treatment plant that have 
degraded water quality. These impacts on the tidewater goby habitat are 
not uncommon and appear ongoing and are likely to continue into the 
future in many parts of its range.
    At the time the recovery plan was published (Service 2005), we 
determined that 54 localities that currently or historically supported, 
or could potentially support, tidewater gobies were ``Water Quality 
Limited'' as defined by the State Water Resources Control Board's 2002 
Clean Water Act Section 303(d) List of Water Quality Limited Segments. 
The designation indicates that the listed water bodies do not meet 
current water quality standards set by the U.S. Environmental 
Protection Agency. Contaminants may include everything from sediment to 
coliform bacteria to polychlorinated biphenyls (PCBs).
    Although the 2010 303(d) list includes an additional 30 localities 
listed in the recovery plan (Service 2005, Appendix C) that currently 
or historically supported, or could potentially support, tidewater 
gobies and are now considered ``Water Quality Limited'' (for a total of 
84 localities), no link has been established between impaired water 
quality and negative impacts on tidewater goby populations (Service 
2005, pp. 47, 50, 52). Therefore, based on the best available 
information, we conclude that impaired water quality is not a 
substantial threat to the tidewater goby. The recovery plan cites the 
need to explore water quality issues to ascertain the level of threat 
posed in these ``Water Quality Limited'' segments. This need may become 
more critical as more localities that support the species are added to 
the 303(d) list. (Note: Some additions to the list may be due to 
changes in the criteria for meeting the ``Water Quality Limited'' 
standards and not solely to declining water quality.)
Habitat Fragmentation
    Metapopulation dynamics are an important aspect of tidewater goby 
biology and, in turn, the species' conservation. Maintaining 
metapopulation relationships ensures that processes of extirpation and 
recolonization, genetic exchange leading to enhanced fitness, and 
connectivity between populations are preserved. Studies such as 
Lafferty et al. (1999a, 1999b) and recovery planning efforts (Service 
2005) emphasize the need to understand metapopulation dynamics for 
conserving the tidewater goby.
    Tidewater goby metapopulation structures that may have existed in 
the past have been altered by the creation of additional gaps and 
increases in the number and size of gaps in the species' distribution 
(Smith, in litt. 2007) as a result of habitat alteration and other 
factors that have rendered some localities unsuitable for tidewater 
gobies. Connectivity of many populations has been reduced or eliminated 
by loss of localities, increased distance between localities, and lack 
of suitable, intermediate habitats (``stepping stones''). For example: 
(1) Waddell Creek in Santa Cruz County has been lost as a possible 24-
km (15-mi) stepping stone between those localities to the north in San 
Mateo County and those to the south (for example, Scott Creek); (2) 
Schwans and Woods Lagoons have been lost as suitable stepping stones 
between the Baldwin/Wilder metapopulation north of the Santa Cruz and 
Corcoran/Moran metapopulation south of Santa Cruz; and (3) San Vicente 
and Liddell Creeks have been lost between Scott and Laguna Creeks 
(Santa Cruz County) (Smith, in litt. 2007).
    In central and northern California, Swift (in litt. 2007) believes 
it very unlikely that genetic interchange (sharing of genes among 
populations that may allow for exchange of beneficial mutations that 
enhance survival under changing conditions, usually through dispersal 
of breeding individuals) is possible between several groups of 
populations naturally separated by 32 km (20 mi) or more of rugged 
coastline. For example, isolated populations in Mendocino County in the 
Ten Mile River-Virgin Creek-Pudding Creek group are unlikely to receive 
dispersing tidewater gobies and their genetic material from either the 
north or the south. These populations are too far away from other 
populations to be recolonized if lost and are unlikely to contribute 
genetic material in either direction as well. Farther south, a wide gap 
exists between Gaviota Creek and Winchester/Bell Canyon in Santa 
Barbara County (Swift, in litt. 2007). Similar long distances exist 
between Winchester/Bell Canyon and Arroyo Burro and Mission Creek-
Laguna Channel (in Santa Barbara County) and between these latter two 
and the Ventura River and Santa Clara River pair (Ventura County). 
These large gaps seem to disrupt the metapopulations along most of the 
coast from Point Conception to Rincon Point (Swift, in litt. 2007), 
leaving individual populations vulnerable to loss of both the 
recolonization potential and the benefits of genetic interchange.
    The substantial destruction of coastal wetlands, lagoons, and 
estuaries in the past has also contributed to many tidewater goby 
localities becoming more isolated, thus threatening the stability of 
some metapopulations through the potential loss of recolonization 
opportunities and the benefits of genetic interchange. An example of 
where this has occurred is the San Francisco Bay area. We have no means 
to determine how many tidewater goby localities existed in this area 
prior to development, but we do know that approximately 95 percent of 
the wetlands in this area have been filled (Josselyn 1983). Available 
records indicate at least seven tidewater goby localities have been 
extirpated, and there are now no occupied localities within the San 
Francisco Bay (see Figure 1, above). Lagunitas Creek is the only 
remaining occupied locality within Tomales Bay in Marin County, and is 
now separated from its nearest neighbor to the north, Estero de San 
Antonio, by a distance of about 25 km (15.5 mi), and from its nearest 
neighbor to the south, Rodeo Lagoon, by a distance of 38 km (23.6 mi). 
If tidewater gobies at Lagunitas Creek were extirpated during a 
drought, it is unlikely that the location would be recolonized 
naturally. The Rodeo Lagoon locality is also isolated. The closest 
known existing localities of tidewater goby to Rodeo Lagoon are 
Lagunitas Creek in Tomales Bay, 38 km (23.6 mi) to the north, and San 
Gregorio Creek, 58 km (36 mi) to the south. If the population at Rodeo 
Lagoon were extirpated, the tidewater goby would disappear from about a 
70-km (60-mi) portion of the coast.
    Another complicating factor that may be important to recolonization 
is the direction of long-shore currents. These currents flow 
predominantly from north to south. Because tidewater gobies are 
considered to be weak swimmers, recolonization may be limited to 
extirpated localities to the south of occupied ones.

[[Page 14356]]

    While the metapopulation structure of tidewater gobies has been 
disrupted to some extent by an increase in the number and size of gaps 
between localities, we are aware that some 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. For example, Lafferty et al. (1999b, p. 621) 
concluded that tidewater gobies had recolonized Ca[ntilde]ada Honda 
Creek in Santa Barbara County from the Santa Ynez River approximately 9 
km (5.5 mi) to the north. Recolonization may be occurring when high 
freshwater flows into lagoons and estuaries cause the entrance to the 
system to be breached and connect directly to the ocean. Additionally, 
as discussed above, the number of tidewater goby localities has 
increased from 43 at the time of listing to an estimated 114 localities 
occupied currently (78 FR 8746), indicating that the species has been 
able to recolonize many localities that had become extirpated during 
the extended drought that occurred immediately prior to the species' 
listing. Local extirpations and recolonizations are a natural part of 
tidewater goby metapopulation dynamics. We expect some local 
extirpations as part of this natural dynamic. However, because of 
increasing fragmentation, we expect that some populations will be 
extirpated over the long term and will not be recolonized. We cannot 
predict with certainty which populations may become permanently 
extirpated and which will eventually be recolonized, but we expect any 
permanent loss of populations to be gradual.
    When metapopulations are fragmented and isolated from each other, 
genetic exchange within and between them is correspondingly limited, 
which may result in increased genetic drift (random changes in gene 
frequencies within populations resulting because each generation 
contains only a subset, or sample, of all the genes present in the 
previous generation) and inbreeding (mating between close relatives). 
Genetic drift can result in loss of alleles (gene variants), 
particularly those that occur in low frequencies within populations, 
and can contribute to loss of genetic diversity within and among 
populations. Loss of genetic diversity in small populations may 
decrease the potential for persistence in the face of long-term 
environmental change (Shaffer 1981, p. 133). Loss of genetic diversity 
can also result in decline in fitness from expression of deleterious 
recessive alleles (Meffe and Carroll 1994, pp. 150-152). Change in the 
distribution of diversity can destroy local adaptations or break up 
coadapted gene complexes (outbreeding depression). These problems can 
lead to a poorer ``match'' of the organism to its environment, reducing 
individual fitness and increasing the probability of population or 
species extinction (Meffe and Carroll 1994, p. 131). Genetic drift and 
inbreeding are reduced when there is genetic exchange among 
populations, which can restore genes lost through drift or bring in new 
genes, while also increasing the likelihood of matings between 
unrelated individuals.
    As discussed above in the ``Genetics'' section, tidewater goby 
populations currently exhibit population genetic structuring (groups of 
populations are genetically more similar to each other than to other 
populations). This indicates that some degree of isolation/genetic 
differentiation is probably normal for tidewater gobies and is the 
result of the evolutionary history of the species. Under this 
situation, we expect greater gene flow within major phylogeographic 
groups (groups of closely related populations) than between the groups. 
However, habitat loss and anthropogenic factors have resulted in the 
creation of additional gaps in the species' distribution. This 
fragmentation may be resulting in isolation not only among major groups 
of related populations, but also between populations within groups, and 
thus reducing the levels of normally expected gene flow. For the 
tidewater goby, where metapopulation dynamics dictate gene flow and 
genetic diversity, the observed fragmentation of some parts of the 
species' distribution indicate that some subpopulations are likely 
genetically isolated from others. The effects of this genetic isolation 
are exhibited by the results of genetics studies cited earlier that 
conclude that natural and anthropogenic barriers have contributed to 
genetic differentiation among populations. The implications for the 
survival of the tidewater goby are not clear, but the loss of genetic 
interchange between populations may cause increased inbreeding and the 
loss of fitness afforded a species by having a diverse genetic makeup. 
While we expect that increased fragmentation and isolation may 
adversely affect gene flow and eventually lead to reduced fitness of 
populations, these processes generally occur over many generations.
Stochastic Events
    Stochastic events in ecology are random, usually natural 
occurrences, which can affect a species or its ecosystem. Such events 
may include wildfire, earthquakes, landslides, and climatic phenomena 
such as floods or drought. These events can have a substantial impact 
on a species at any level, from individuals to rangewide. Of particular 
concern for the tidewater goby are the stochastic events related to 
climate, including drought and flood.
    The most significant natural factor adversely affecting the 
tidewater goby is drought and the resultant alteration of coastal and 
riparian habitats. Periodic droughts are a historical feature of 
California, which has been repeatedly subject to prolonged droughts 
(U.S. Geological Survey 2004). When the tidewater goby was proposed for 
listing as endangered in 1992 (57 FR 58770; December 11, 1992), 
California had just experienced what is considered the most severe 
drought in the history of the State; the drought lasted for 5 years 
from 1987 to 1992 (Priest et al. 1993, p. 1). Although some localities 
may have actually been occupied but at such low numbers as to be 
undetectable, at the time of listing in 1994, we concluded that all but 
43 tidewater goby localities had been extirpated. During such periods, 
when the number of localities is severely reduced or the size of 
populations declines drastically, the risk of extinction increases.
    Drought conditions, when combined with human-induced water 
reductions (diversions of water from streams, excessive groundwater 
withdrawals), have degraded coastal and riparian ecosystems and have 
created extremely stressful conditions for most aquatic species, 
including the tidewater goby. Drought can have dramatic negative 
effects on tidewater gobies, at times decreasing their populations to 
very low levels (perhaps to the point where they are undetectable) and 
at the extreme, extirpating populations. For example, we state in the 
final listing rule for the tidewater goby (59 FR 5494; February 4, 
1994) that formerly large populations of tidewater gobies had declined 
in numbers because of the reduced availability of suitable lagoon 
habitats (San Simeon Creek and Pico Creek in San Luis Obispo County), 
while others disappeared when the lagoons dried (as seen at Santa Rosa 
Creek, San Luis Obispo County).
    Despite the tidewater goby's negative response to the extreme 
drought of 1987-1992, when normal rainfall patterns returned, the 
species either recolonized localities that had been dry or numbers 
increased in localities where drought conditions had reduced numbers to 
an undetectable level. When the species was listed in 1994, this level 
of resiliency was not well-documented.

[[Page 14357]]

By the time we conducted our 5-year review of the species' status 
(Service 2007), the overall tidewater goby population numbers had 
continued to rise, and we concluded that the tidewater goby was much 
more resilient than previously believed, thus leading us to conclude 
that the species may not be at risk of imminent extinction.
    Flooding following severe storm events can wash tidewater gobies 
out of an estuary, which may play an important role in recolonizing 
localities where the species has been extirpated (Lafferty et al. 
1999a, p. 1448). The mixing of freshwater from a flood and the 
saltwater offshore, and the resulting reduction in salinity, may allow 
tidewater gobies to make limited alongshore migrations to other 
suitable habitat. Evidence indicates that this is part of the mechanism 
that has allowed the species to recover its numbers following the 1987-
1992 drought in California. Conversely, the potential positive effects 
of flooding may be negated when channelization has occurred upstream 
and alters the flood dynamics of the system. In these cases, 
channelization can increase the duration and intensity of flood events, 
not only contributing to loss of tidewater gobies from the estuary, but 
also reducing the likelihood of recolonization because the high volume 
flows of water may prevent tidewater gobies from entering an estuary 
they might otherwise be able to colonize.
    Stochastic events may have both positive and negative effects on 
the tidewater goby. Drought has been shown to have substantial negative 
effects on the species by drying up estuaries and reducing the 
population size at individual localities. In a positive sense, periodic 
flooding may promote dispersal and colonization between estuaries that 
are otherwise separated by beaches or bluffs by allowing tidewater 
gobies to move along the coast when salinity would otherwise be too 
high under non-flood conditions. Under certain situations, flooding may 
also have a negative effect on the tidewater goby; when upstream 
modifications for flood control alter the intensity of outflow through 
an estuary, tidewater gobies may be flushed into the ocean and 
prevented from returning when flows are too strong for them to 
navigate. As discussed under the section on climate change, we expect 
the freshwater flows into coastal estuaries to decrease over time as 
droughts become more frequent or severe. This combination of factors 
could have a substantial negative impact on tidewater goby habitat in 
the foreseeable future.
Summary of Factor E
    For Factor E, we conclude that some aspects of the threats due to 
other natural or manmade factors are currently having a negative effect 
on the tidewater goby, while others may be acting on the species but 
the effects do not appear to be significant. For example, competition 
for resources is always a concern for wildlife, and we know competition 
from nonnative species has operated negatively on some populations and 
may have resulted in the extirpation of one tidewater goby locality; 
however, the best available scientific and commercial information does 
not indicate that competition is significantly impacting the tidewater 
goby at current population levels, and we consider competition to be a 
minor threat to the species as a whole. We also note that water quality 
was poor in many localities occupied by the tidewater goby in 2005, and 
that even more of its localities may have experienced declining water 
quality since then; however, the best available information has not 
established a link between water quality and an impact on tidewater 
goby populations.
    In contrast, habitat fragmentation has been shown to be a concern 
both for wildlife in general and especially for a species like the 
tidewater goby that exists as metapopulations for which connectivity 
may be critical for their persistence and for the maintenance of 
genetic diversity that imparts fitness in the face of environmental 
change. Stochastic events like periodic drought are of special concern 
because we have observed the number of occupied localities drop to as 
low as 43 at the height of a prolonged drought. This means that any 
time we enter a period of drought, tidewater goby numbers are likely to 
drop; however, we have also seen that the tidewater goby populations 
are resilient in the face of such events and population numbers can 
rebound when climatic conditions change. We conclude that the threat 
due to habitat fragmentation persists throughout the species' range, 
and that the effects of stochastic events may be severe, such as may 
occur during the next drought, similar to the drought of the late 1980s 
and early 1990s. The tidewater goby has shown its ability to recover 
from the effects of drought once rainfall returns, but the effects of 
the other natural or manmade factors (such as fragmentation) may 
persist.

Cumulative Impacts

    As noted in the sections above, some of the threats to the 
tidewater goby may be exacerbated under certain conditions where the 
individual threats may not otherwise be severe. While any likely 
combination of threats will have an additive effect on the species in a 
particular location, any of the threats combined with drought would 
appear to pose the greatest risk to the tidewater goby. As observed 
when the tidewater goby was listed as endangered in 1994 after several 
years of drought in California, the species declined to the point where 
the Service believed it faced extinction. A drought of the magnitude 
that lead to the species' listing could have the same impact, but even 
short periods of drought may have a substantial effect on individual 
populations if other threats are in place.
    For example, we recognize that predation by nonnative species is 
likely not a major factor in the tidewater goby's status overall, 
although it may be important in some localities (Service 2007, p. 22). 
However, because predation may depress population numbers in some 
areas, another factor, such as drought, may have a greater effect 
because the population is already reduced or stressed by the presence 
of predators. We can conclude that such a locality is more likely to 
lose its tidewater goby population during a drought than one where 
predation is not an additional stressor.
    A more dramatic cumulative effect resulting from drought may be due 
to upstream diversion or withdrawal of water from drainages. Where 
water may already be limited due to upstream uses before it can reach 
tidewater goby habitat and create the brackish conditions the species 
requires, even a small period of drought is likely to cause the 
species' habitat to dry up; this is especially of concern at smaller 
watersheds. If the drought is extended, the return of tidewater gobies 
to that locality would be dependent on proper functioning of the 
metapopulation dynamics that allow recolonization from adjacent 
refugia, as we conclude happened at the end of the drought in the late 
1980s and early 1990s in California.
    This same principle applies to those localities where threats such 
as water pollution, upstream barriers, and disease or parasites may be 
a limiting factor in the tidewater goby's numbers. Because adequate 
water supply is critical to the species' life cycle, large declines in 
water in the tidewater goby's habitat are likely to exacerbate threats 
that alone are not limiting.
    A cursory review of the known occupied localities and the threats 
identified for those localities (Service 2005, Appendix E) does not 
reveal a correlation between the number of

[[Page 14358]]

threats and the status of the tidewater goby at those localities. In 
other words, localities with a large number of threats do not appear to 
have lower or more variable population densities than locations with 
fewer threats. The most likely correlation is between the status and 
the size of the habitat, with larger habitats having abundant numbers 
and less vulnerable populations (Service 2005, Appendix E). A more 
vigorous statistical analysis may reveal some pattern of correlation, 
but we conclude that combinations of threats and the cumulative impact 
on tidewater goby populations in those localities with smaller habitats 
are likely to be greater than they are for larger habitat localities. 
The reasons for this include the following: (1) There are more refugia 
in larger habitats; (2) threats are more dispersed; and (3) larger 
habitats are less vulnerable to short-term impacts.

Summary of Factors

    The primary factors that led to the listing of the tidewater goby 
as endangered in 1994 were: (1) The tidewater goby had been extirpated 
from nearly 50 percent of the lagoons and estuaries it had inhabited 
due to habitat alteration (channelization, water diversions, etc.) and 
drought; (2) only 43 populations remained, of which only 8 were 
considered large enough to be stable; and (3) the tidewater goby was 
threatened by development, water quality issues, and other habitat 
alterations. We concluded in the 1994 listing rule that the downward 
trend in the tidewater goby's populations was likely to continue; 
however, when the prolonged drought in California ended and normal 
rainfall patterns resumed, the number of occupied localities grew 
through recolonization (or apparent recolonization as greater numbers 
increased the species' detectability) from 43 up to 114 as of the 
publication of the final revised critical habitat designation (78 FR 
8746), showing the species' resiliency in the face of changing 
conditions. The other factors that led to the tidewater goby's listing 
are still acting on the species, but it appears that they are not 
severe enough at current population levels to place the species 
currently in danger of extinction.
    As an example, our analysis of Factor A concludes that the 
destruction, modification, or curtailment of tidewater goby habitat is 
currently a threat, and we expect the threat to continue in the future. 
While the elements that constitute the Factor A threats (habitat 
disturbance, sandbar breaching, etc.) that destroy, modify, or curtail 
habitat are having a negative effect on tidewater goby habitat 
throughout its range, we conclude that impacts to the tidewater goby 
from these relatively small projects and activities are not having a 
substantial effect on the species throughout its range. This is based 
on the fact that these threats were in place prior to and after the 
species was listed in 1994 and have continued, yet the tidewater goby 
rebounded from a severe drought in the face of the Factor A elements 
(other than climate change). This indicates that the Factor A threats 
alone are not severe enough to cause the species' decline.
    We further conclude that predation or disease alone are not a 
significant threat to the tidewater goby, although we do have evidence 
that predation by nonnative fishes may have contributed to the 
extirpation of some populations. Throughout the species' range, the 
loss of tidewater goby populations has not been attributed solely to 
disease, parasites, predation, or competition from other species, and 
the best available information indicates that such threats are 
currently only moderately important in the species' survival, although 
such threats may exacerbate or combine with other threats to increase 
the species' vulnerability. While we conclude these are only moderately 
important threats, we cannot reasonably predict whether new nonnative 
species will be introduced, to what extent they will become established 
in tidewater goby habitat, and what their effects will be on tidewater 
goby populations. We may draw different conclusions regarding future 
introductions of nonnative species, depending on the specific 
circumstances.
    The listing of the tidewater goby under the Act benefits the 
species in several ways. For example, listing under the Act often 
requires coordination with the Service if the tidewater goby is present 
in a project area so that conservation of that species can be 
considered in the planning and implementation, and requires interagency 
consultation if a federal action may affect a listed species to ensure 
that such action is not likely to jeopardize the listed species or 
destroy or adversely modify its critical habitat. Another potential 
benefit of the Act is under section 6, which authorizes us to enter 
into cooperative conservation agreements with States, and to allocate 
funds for conservation programs to benefit endangered or threatened 
species. Reclassifying tidewater goby from endangered to threatened 
would not change any the protections afforded to this species under the 
Act or other regulations.
    With the addition of three new regulations enacted subsequent to 
the listing of the tidewater goby, existing regulations have slowed the 
loss, especially on a large scale, of the tidewater goby's habitat. One 
of the new regulations in particular, the Sikes Act Improvement Act, 
has resulted in substantial new protections to the tidewater goby and 
its habitat in southern California.
    Although regulations are in place that provide substantial 
protections to the tidewater goby and its habitat, small-scale loss of 
habitat continues to occur throughout the range of the species as many 
regulations allow impacts to habitat to occur under certain conditions, 
and we therefore conclude that existing regulatory mechanisms are 
inadequate to protect the tidewater goby without the additional 
protections afforded under the Act.
    From our review of the most recent data and analyses, we conclude 
that sea levels are rising and may eventually eliminate much of the 
tidewater goby habitat due to seawater intrusion and changes in 
hydrology. Combined with past habitat losses and current threats, sea 
level rise due to climate change poses a severe threat to the species' 
survival. While sea level rise is occurring and has been since the last 
century, and we can project what effect rising sea levels will have on 
the tidewater goby, sea level rise is happening gradually, and 
demonstrable effects to the tidewater goby will only be manifested 
after decades of global temperature increases. Habitat at some 
localities that are small in size and constrained by natural or manmade 
features will be lost. Some larger localities are less constrained and 
new habitat may form in upstream areas, but the number of sites where 
this is likely to occur is limited. While gobies may persist at a 
limited number of larger sites, by that time, the numbers and sizes of 
tidewater goby populations will be reduced and populations will be more 
vulnerable to remaining threats. Thus, sea level rise is a threat to 
the species in the foreseeable future, but is not an imminent threat.
    The tidewater goby is facing numerous threats, including habitat 
loss from multiple sources, habitat fragmentation due to the loss of 
stepping stone localities between populations, disruption of 
metapopulation dynamics and loss of genetic exchange among populations, 
predation and nonnative competitors, alterations to hydrology (for 
example, sandbar breaching and channelization), changes in water 
quality, stochastic events such as drought, and the growing

[[Page 14359]]

and inevitable impact of sea level rise. While some of these threats 
can singly have a substantial impact on individual tidewater goby 
localities, in most cases it is the combined impact of those threats 
with prolonged drought and eventually sea level rise that will have the 
greatest effect on the species.
Recovery Plan
    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include: 
``Objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of [section 4 of the 
Act], that the species be removed from the list.'' However, revisions 
to the list (adding, removing, or reclassifying a species) must reflect 
determinations made in accordance with sections 4(a)(1) and 4(b) of the 
Act. Section 4(a)(1) requires that the Secretary determine whether a 
species is endangered or threatened (or not) because of one or more of 
five threat factors. Section 4(b) of the Act requires that the 
determination be made ``solely on the basis of the best scientific and 
commercial data available.'' Therefore, recovery criteria should help 
indicate when we would anticipate an analysis of the five threat 
factors under section 4(a)(1) would result in a determination that the 
species is no longer an endangered species or threatened species 
because of any of the five statutory factors.
    Thus, while recovery plans provide important guidance to the 
Service, States, and other partners on methods of minimizing threats to 
listed species and measurable objectives against which to measure 
progress towards recovery, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulations 
required under section 4(a)(1) of the Act. A decision to revise the 
status of or remove a species from the Federal List of Endangered and 
Threatened Wildlife (50 CFR 17.11) is ultimately based on an analysis 
of the best scientific and commercial data then available to determine 
whether a species is no longer an endangered species or a threatened 
species, regardless of whether that information differs from the 
recovery plan.
    The Recovery Plan for the Tidewater Goby was approved by the 
Service on December 7, 2005 (Service 2005). The recovery plan has as 
its overall recovery objective to downlist the species to threatened 
status, then delist. The primary objective of the recovery plan is to 
manage the threats to and improve the population status of the 
tidewater goby sufficiently to warrant reclassification (from 
endangered to threatened status) or delisting.
    The recovery plan established the following criteria for 
downlisting the tidewater goby from endangered to threatened (Service 
2005, pp. 40-41):
    (1)(a) Specific threats to each metapopulation, such as habitat 
destruction and alteration (including coastal development, upstream 
diversion, channelization of rivers and streams, discharge of 
agriculture and sewage effluents), introduced predators (such as 
centrarchid fishes), and competition with introduced species (yellowfin 
and chameleon gobies, for example), have been addressed through the 
development and implementation of individual management plans that 
cumulatively cover the full range of the species.
    (1)(b) A metapopulation viability analysis based on scientifically 
credible monitoring over a 10-year period indicates that each Recovery 
Unit is viable, with at least 5 subunits in the North Coast Unit, 8 
subunits in the Greater Bay Unit, 3 subunits in the Central Coast Unit, 
3 subunits in the Conception Unit, 1 subunit in the Los Angeles/Ventura 
Unit, and 2 subunits in the South Coast Unit to individually having a 
75 percent chance of persisting for 100 years.
    The first criterion was intended to identify the point at which 
specific threats to each metapopulation were being adequately managed 
and addressed. Under criterion (1)(a), some of the past habitat 
alteration has been addressed through implementation of existing 
regulations (such as the Clean Water Act), although it has not been 
eliminated. Only limited, rangewide efforts to eliminate introduced 
predators have been implemented for the benefit of the tidewater goby. 
The only management plans of which we are aware that address 
conservation of the tidewater goby are the INRMPs for MCB Camp 
Pendleton and VAFB, and plans under development for Mission Creek in 
Santa Barbara County, the Santa Clara River estuary in Ventura County, 
and Malibu Lagoon in Los Angeles County. In any case, plans to manage 
specific threats to the tidewater goby do not cumulatively cover the 
full range of the species; therefore, recovery criterion 1(a) has not 
been fully met. However, as discussed above, we have determined that 
the threats this criterion was intended to address are not as severe as 
previously thought. We conclude that none of these threats is likely to 
cause the imminent extinction of the tidewater goby, and therefore, the 
threats are sufficiently reduced that the requirement to have plans 
specifically addressing them is no longer an appropriate criterion for 
downlisting the species to threatened.
    The second criterion was intended to indicate whether the species 
has responded as expected to measures to reduce threats and to ensure 
that the tidewater goby remains well-distributed and resilient in the 
face of stochastic events throughout its range. None of the 
metapopulation viability analyses described in the recovery plan 
(criterion 1(b)) have been completed, as far as we know. While 
metapopulation viability analyses have not been conducted, the 
tidewater goby currently occurs at localities in all six recovery 
units. The species now occupies nearly three times as many localities 
as it did at the time of listing, indicating the species is more 
resilient than previously thought. While we do not have detailed 
analyses of viability for individual metapopulations, the species' 
ability to respond positively to the end of drought conditions over 
approximately a 20-year period and for populations to be recolonized or 
recover, indicates the species likely has generally exhibited positive 
demographic characteristics such as reproductive rate and survival. So, 
while criterion (1)(b) has not been met, we conclude we have sufficient 
evidence that the species has responded positively to the end of the 
drought and that previously identified threats have not had as severe 
an effect on the species as expected.
    Despite the fact that none of the downlisting criteria from the 
recovery plan have been fully achieved, we have concluded that other 
factors presented in this proposed rule provide sufficient support for 
our determination. When the tidewater goby was listed in 1994, the 
number of occupied localities had dropped to 43 in the face of an 
extended drought, and we were not certain that the unoccupied 
localities would be recolonized after the drought ended. We had 
concluded that the species' downward trend would continue due to the 
other threats, so even when the drought ended we believed the tidewater 
goby would continue to decline. Upon the resumption of ``normal'' 
rainfall patterns, the number of localities found to be occupied 
rebounded to almost three times the number known in 1992, when listing 
was first proposed, despite the continuing effects of the remaining 
threats. This indicated to us that species

[[Page 14360]]

was more resilient than we had known and that the low numbers seen in 
response to drought did not mean the species was in imminent danger of 
extinction. Also, the number of occupied localities had increased so 
much that even in the face of the ongoing threats and the likelihood 
that these would continue to affect the tidewater goby in the future, 
the species is no longer currently at risk of extinction.

Proposed Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the tidewater goby (Eucyclogobius newberryi). In our analysis of the 
5 factors relating to the species' status we have reached the following 
conclusions:
    Factor A (The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range): We have found that the tidewater 
goby is currently experiencing some habitat loss and will continue to 
experience small losses in the foreseeable future. We do not anticipate 
any repeat of the large losses that occurred prior to regulations that 
protected coastal wetlands. At the time of listing in 1994, when the 
tidewater goby occupied only 43 localities and a severe drought was 
ending, habitat loss posed a relatively greater threat to species. 
After the drought ended, the number of localities known to be occupied 
by tidewater gobies has increased to at least 114, and currently 
available information does not indicate that habitat loss alone is 
having a substantial effect on the tidewater goby's numbers or 
distribution. We do anticipate that global sea level rise will have a 
profound effect on the species' habitat in the foreseeable future; 
however, we do not believe that the threat from sea level rise is 
imminent. While sea level rise is occurring and has been since the last 
century, the change has been and will be gradual, perhaps over decades 
instead of months or years. The threats discussed under Factor A are 
not likely to cause the tidewater goby's extinction in the near future; 
however, sea level rise by itself poses a substantial threat to the 
species that, while not an imminent threat, is reasonably foreseeable 
and could lead to the species' extinction.
    Factor B (Overutilization for Commercial, Recreational, Scientific, 
or Educational Purposes): We found no evidence of risk to the tidewater 
goby from overutilization, nor do we anticipate any such impacts to the 
species in the foreseeable future.
    Factor C (Disease or Predation): Parasites and nonnative predators 
are likely to be having some negative effects on the tidewater goby. 
Our review of the available information does not indicate that these 
negative effects are reducing the tidewater goby's numbers rangewide, 
but may act in concert with other stressors to have a greater impact at 
a local level. Disease or predation alone are not sufficient to cause 
the species' extinction in the foreseeable future.
    Factor D (Inadequacy of Existing Regulatory Mechanisms): Existing 
regulations have been effective at protecting the tidewater goby from 
large-scale habitat loss, and the enactment of the Sikes Act 
Improvement Act subsequent to listing has been a major benefit to the 
species in southern California. However, small-scale, localized habitat 
loss and alteration continue to occur, and existing regulatory 
mechanisms are inadequate to protect the tidewater goby without the 
additional protections afforded under the Act.
    Factor E (Other Natural or Manmade Factors Affecting Its Continued 
Existence): We conclude that some natural or human-caused factors are 
having a negative effect on the tidewater goby, but we cannot 
reasonably determine whether the effects of some other factors are 
negatively impacting the tidewater goby. Habitat fragmentation (natural 
or anthropogenic) and stochastic events (like drought) have clearly had 
a negative impact on the tidewater goby since the species has been 
monitored. However, the best available information does not indicate 
that competition with other species (native or nonnative) and poor 
water quality are having an influence on the species' overall status. 
Our conclusion is that drought and additional fragmentation are 
foreseeable threats to the tidewater goby and could contribute to the 
species' extinction in the future, while the rangewide influence of 
other factors cannot be demonstrated.
    Based on the analysis above, we conclude that the tidewater goby is 
not in danger of extinction throughout all of its range, but instead is 
threatened; that is, the species is likely to become endangered in the 
foreseeable future throughout all of its range.

Significant Portion of the Range Analysis

    Having examined the status of the tidewater goby throughout all its 
range and determined that the species is threatened throughout all its 
range, we next examine whether the species is in danger of extinction 
in a significant portion of its range. The range of a species can 
theoretically be divided into portions in an infinite number of ways; 
however, there is no purpose in analyzing portions of the range that 
have no reasonable potential to be significant or in analyzing portions 
of the range in which there is no reasonable potential for the species 
to be endangered or threatened. To identify only those portions that 
warrant further consideration, we determine whether there is 
substantial information indicating that: (1) The portions may be 
``significant'' and (2) the species may be in danger of extinction 
there or likely to become so within the foreseeable future. Depending 
on the biology of the species, its range, and the threats it faces, it 
might be more efficient for us to address the significance question 
first or the status question first. Thus, if we determine that a 
portion of the range is not ``significant,'' we do not need to 
determine whether the species is endangered or threatened there; if we 
determine that the species is not endangered or threatened in a portion 
of its range, we do not need to determine if that portion is 
``significant.'' In practice, a key part of the determination that a 
species is in danger of extinction in a significant portion of its 
range is whether the threats are geographically concentrated in some 
way. If the threats to the species are essentially uniform throughout 
its range, no portion is likely to warrant further consideration. 
Moreover, if any concentration of threats to the species occurs only in 
portions of the species' range that clearly would not meet the 
biologically based definition of ``significant,'' such portions will 
not warrant further consideration.
    The 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 5 km (3 mi) south of the 
California-Oregon border (Tillas Slough in Del Norte County) to 71 km 
(44 mi) north of the United States-Mexico border (Agua Hedionda Lagoon 
in San Diego County). The available documentation suggests the 
northernmost locality that forms one end of the historical and current 
geographic range of the tidewater goby has not changed over time (see 
for example, Eschmeyer et al. 1983, p. 262; Swift et al. 1989, p. 12). 
Tidewater gobies do not currently occur in Agua Hedionda Lagoon, and 
the species' southernmost known extant occurrence is the San Luis Rey 
River 8 km (5 mi) north of Agua Hedionda Lagoon.

[[Page 14361]]

Although the northernmost and southernmost extent of the tidewater 
goby's range has not changed much over time, the species' distribution 
within the historical range has become patchy and fragmented.
    Tidewater gobies are naturally absent from several large (80 to 217 
km (50 to 135 mi)) stretches of coastline lacking lagoons or estuaries, 
and with steep topography or swift currents that may prevent the 
species from dispersing between adjacent localities (Earl et al. 2010, 
p. 104; Swift et al. 1989, p. 13). One such gap of approximately 160 km 
(100 mi) occurs from the Eel River in Humboldt County to Ten Mile River 
in Mendocino County. A second gap of approximately 97 km (60 mi) occurs 
between Lagoon Creek in Mendocino County to Salmon Creek in Sonoma 
County. Another large, natural gap of approximately 160 km (100 mi) 
occurs between the Salinas River in Monterey County and Arroyo del Oso 
in San Luis Obispo County. The southernmost gap, which is most likely 
the result of habitat loss and alteration, occurs between the Los 
Angeles Basin (city of Santa Monica, western Los Angeles County) and 
San Mateo Creek (MCB Camp Pendleton, San Diego County), a distance of 
approximately 130 km (80 mi).
    Habitat loss and other anthropogenic (human-caused) factors have 
resulted in the tidewater goby now being absent from several localities 
where it historically occurred. These disappearances from specific 
localities have created smaller, artificial gaps in the species' 
geographic distribution (Capelli 1997, p. 7). Such localities include 
San Francisco Bay in San Francisco and Alameda Counties, and Redwood 
Creek and Freshwater Lagoon in Humboldt County. In central and northern 
California, Swift (in litt. 2007) believes it very unlikely that 
genetic interchange is possible between several groups of populations 
naturally separated by 32 km (20 mi) or more of rugged coastline. As 
anthropogenic gaps are created of equal or greater distance, 
recolonization and genetic exchange becomes less likely.
    Swift et al. (1989, p. 13) reported that, as of 1984, tidewater 
gobies occurred, or had been known to occur, at 87 localities. This 
included localities 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 sites since 1984 (Swift et al. 1993, p. 129). Other 
tidewater goby localities have been identified since 1993. Considering 
all of the known historical and currently occupied sites, tidewater 
gobies have been documented at 135 localities, and of these 135 
localities, 21 (16 percent) are no longer known to be occupied by 
tidewater gobies (78 FR 8746). Therefore, we conclude that 114 
localities are currently occupied (see Figure 1, above). These 
localities are not regularly monitored so the current status of 
tidewater goby in many of these places may have changed.
    Given their patchy distribution and metapopulation dynamics of 
extirpation and recolonization, no individual area is likely to be of 
greater biological or conservation importance than any other area. 
Additionally, all recovery units, which span the entire extent of the 
species' range, are currently occupied, so no major portion of the 
species' range has been lost. Therefore, we conclude that the lost 
historical range is not a significant portion of the tidewater goby's 
range.
    To further identify potentially significant portions of the range 
that might warrant further analysis, we considered whether the threats 
facing the tidewater goby are geographically concentrated or different 
in some fashion, which could indicate a portion or portions of the 
range where the species is likely to be endangered and could warrant 
further consideration of whether it is a significant portion of the 
species' range.
    In the recovery plan (Service 2005, pp. 30-35), we divided the 
range of the tidewater goby into six recovery units based on observed 
genetic and morphological differences. Each of the recovery units 
provides important increments of redundancy, resiliency, and 
representation that contribute to the species' long-term viability. In 
our five-factor analysis in this proposed rule, based on the best 
available information we have identified several threats to the species 
including small-scale habitat loss, nonnative predators, habitat 
fragmentation, and competition with other species (see Summary of 
Factors Affecting the Species section). All these threats occur in each 
of the recovery units, and the threats are not concentrated more in one 
unit than another. Additionally, as described above, a cursory review 
of the known occupied localities and the threats identified for those 
localities (Service 2005, Appendix E) does not reveal a correlation 
between the number of threats and the status of the tidewater goby at 
those localities. In other words, localities with a large number of 
threats do not appear to have lower or more variable population 
densities than locations with fewer threats. While threats may vary 
from locality to locality, differences in number and type of threats 
don't appear to be causing a greater risk of extirpation in some 
localities as opposed to others. More importantly, the most serious 
threats to the tidewater goby are drought and sea level rise, which 
would have relatively the same effect on each recovery unit. Therefore, 
we find that none of the six recovery units is likely to be at greater 
risk of extinction than any other, and therefore none warrants further 
consideration as potentially endangered significant portions of the 
range.
    Southern California, in particular, could potentially be considered 
a significant portion of the range for two reasons: (1) In 1999, the 
Service proposed that threats to the tidewater goby were more 
concentrated and therefore more severe in the southern California 
portion of the species' range than they were elsewhere in the range to 
the north because only six occupied localities remained in southern 
California (64 FR 33816), and (2) tidewater gobies in the southern 
California portion of the range have been found to be genetically 
distinct from those in the rest of the range (see Species Information 
section). Since the Service's 1999 proposal, tidewater gobies now occur 
at two additional localities bringing the total occupied localities in 
southern California to eight. More importantly, as discussed under 
factor D, MCB Camp Pendleton's INRMP, which was put into effect 
subsequent to the 1999 proposal, provides substantial protections for 
seven of the eight populations that occur in southern California that 
were not in place at the time of the proposed rule. Therefore, we no 
longer consider threats in southern California to be more severe or 
different from other areas, and therefore conclude the tidewater goby 
is not likely to be danger of extinction (as opposed to the rangewide 
status of threatened) in the southern California portion of its range.
    In summary, we did not find that any portion of the species' range 
has a greater concentration of threats than others and, therefore, 
conclude that no portion warrants further consideration.

Conclusion

    Based on the analysis above, we conclude that the tidewater goby is 
no longer in danger of extinction throughout all or a significant 
portion of its range, but instead is likely to become endangered in the 
foreseeable future throughout all or a significant portion of

[[Page 14362]]

its range. The species more appropriately meets the definition of a 
threatened species. Therefore, we propose to reclassify the tidewater 
goby from an endangered species to a threatened species.

Effects of This Rule

    This proposal, if made final, would revise 50 CFR 17.11(h) to 
reclassify the tidewater goby from endangered to threatened. This rule 
formally recognizes that this species is no longer in imminent danger 
of extinction throughout all or a significant portion of its range. 
However, this reclassification does not significantly change the 
protection afforded this species under the Act. The regulatory 
protections of section 9 and section 7 of the Act remain in place. 
Anyone taking, attempting to take, or otherwise possessing a tidewater 
goby or parts thereof, in violation of section 9 of the Act, is still 
subject to a penalty under section 11 of the Act, unless their action 
is covered under a special rule under section 4(d) of the Act. At this 
time, we are not proposing a special rule under section 4(d) of the Act 
for the tidewater goby. Under section 7 of the Act, Federal agencies 
must ensure that any actions they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of the tidewater goby.
    Recovery actions directed at the tidewater goby will continue to be 
implemented as outlined in the recovery plan for the tidewater goby 
(Service 2005), including development of management plans such as those 
at MCB Camp Pendleton and VAFB.

Required Determinations

Clarity of This Proposed Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited in this final rule is 
available at https://www.regulations.gov at Docket No. FWS-R8-ES-2014-
0001 or upon request from the Ventura Fish and Wildlife Office (see 
ADDRESSES).

Authors

    The primary authors of this proposed rule are staff members of the 
Service's Ventura Fish and Wildlife Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless 
otherwise noted.

0
2. Amend Sec.  17.11 by revising the entry for ``Goby, tidewater'' in 
the List of Endangered and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Goby, tidewater..................  Eucyclogobius         U.S.A. (CA)........  Entire.............  T                       527     17.95(e)           NA
                                    newberryi.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    Dated: March 5, 2014.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-05335 Filed 3-12-14; 8:45 am]
BILLING CODE 4310-55-P