Under this final rule, the FWS has designated critical habitat for the Santa Ana Sucker, in 3 noncontiguous populations in The lower and middle Santa Ana River in San Bernardino, Riverside, and Orange counties; the East, West, and North Forks of the San Gabriel River in Los Angeles County; and lower Big Tujunga Creek, a tributary of the Los Angeles River in Los Angeles County. We have identified 23,719 acres (ac) (9,599 hectares (ha)) of aquatic and riparian habitats essential to the conservation of the Santa Ana sucker.

RULES and REGULATIONS

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT57

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

Tuesday, January 4, 2005

AGENCY: Fish and Wildlife Service, Interior.

*426 ACTION: Final rule.

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

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

ADDRESSES: Comments and materials received, as well as supporting information used in this rulemaking, are available for inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California 92009. You may obtain copies of the final rule and the economic analysis from the field office address above or by calling (760) 431-9440, or from our Internet site at http://carlsbad.fws.gov.

If you would like copies of the regulations on listed wildlife or have questions about prohibitions and permits, please contact the Carlsbad Fish and Wildlife Office (see ADDRESSES above).

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

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection to Species

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

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

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

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed. The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects, the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy *427 Act (NEPA), all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Background

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

Previous Federal Action

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

Summary of Comments and Recommendations

During the initial 60-day public comment period for the proposed rule (69 FR 8911), we contacted all appropriate State and Federal agencies, county governments, elected officials, scientific organizations, and other interested parties, via mail and/or fax, and invited them to submit comments and/or information concerning the proposed rule. We also published newspaper notices in the The Press-Enterprise, Riverside, CA, and in the Los Angeles Times, Los Angeles, CA, inviting public comment. During the first comment period, we received comments from three county agencies, three water districts, two businesses, three groups, and 14 individuals. Of the 22 letters we received, four letters supported the designation as proposed, six letters suggested expanding the designation, six letters suggested reducing the designation, one letter requested clarification of the designation, and five letters were neutral.
During the second comment period, we received comments from one utility agency, three groups, and four individuals. Of the six letters we received, one letter supported the designation as proposed, two letters suggested expanding the designation, one letter suggested reducing the designation, and two letters were neutral. At the public hearing during the second comment period, we received 21 oral comments, all of which requested a reduction in the designation. A transcript of the hearing is available for inspection (see ADDRESSES section).
During the third comment period (October 1 to 12, 2004), which regarded the draft economic analysis, we received comments from 1 county agency, 3 water districts, 1 business, 4 groups, and 2 individuals. Of the 7 letters we received, 4 letters were requests for an extension of the comment submission period, and 3 letters contained suggestions for improvements to the draft economic analysis. Of the latter 3 letters, 1 supported the designation as proposed and 2 suggested reducing the designation.
During the fourth comment period (October 25 to November 24, 2004), which regarded the draft economic analysis, we received comments from 7 groups, 8 individuals, and 1 project authority (representing 1 county agency and 4 water districts). Of the 13 letters we received, 10 letters supported the designation as proposed, 2 letters suggested reducing the designation, and 1 letter requested clarification of the draft economic analysis. (After the comments deadline, we received 2 letters with comments from 1 county agency suggested reducing the designation, and a letter from 1 business requesting an extension of the comments deadline.)
In accordance with our peer review policy published in the Federal Register on July 1, 1994 (59 FR 34270), we requested the expert opinions of seven independent specialists who are recognized authorities on freshwater fish of Southern California regarding pertinent scientific or commercial data and assumptions relating to the supporting biological and ecological information in the proposed designation. The purpose of such review is to ensure that the designation is based on scientifically sound data, assumptions, and analyses, including input of appropriate experts and specialists.
We reviewed all comments, including the oral statements presented at the public hearing and the written comments received from peer reviewers and the public during the comment periods, for substantive, relevant issues and new data regarding critical habitat and the Santa Ana sucker. Peer reviewer comments are summarized separately in the following section. We have grouped public comments into six general issues relating to critical habitat and the draft economic analysis, combined and *428 summarized similar comments, and provided our responses in the Public Comments section below.

Peer Review Comments

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

Public Comments

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

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

Issue 2: Comments on Individual Units

(15) Comment: Commenters stated that Santa Ana suckers are declining as a result of heavy recreational use in the San Gabriel River. Conversely, some other commenters stated suckers in the San Gabriel River were not declining as the result of recreational activities or as a result of the use of summer homes.
Our Response: Based on the best available information, we believe that recreational suction dredging, artificial pool creation, off-road vehicle use, swimming, wading, bathing, and the use of recreational summer homes may have varying detrimental effects on the Santa Ana sucker.
Suction dredging, which occurs on a recreational basis in the San Gabriel River can result in the death of fish eggs, larvae, and fry (Harvey and Lisle 1998; Griffith and Andrews 1981). Suction dredging can also change the functional composition of the invertebrate community and increase sedimentation rates in sensitive spawning and feeding habitats (Somer and Hassler 1992).
The use of the river as an off-highway vehicle (OHV) recreational area may result in adverse effects to the sucker, if the OHV use occurs in areas used by the sucker during the spawning and nursery season, or if vehicles leak oil, gas, and other pollutants into the river. OHV use can change the physical structure of habitat (Wender and Walker 1998; Texas Chapter of American Fisheries Society 2002; Brown 1994), crush eggs and larvae within the substrate (Texas Chapter of American Fisheries Society 2002), and reduce the taxonomic diversity of the macroinvertebrate and algal species (Texas Chapter of American Fisheries Society 2002) which is the food base for the sucker (Haglund and Baskin 2003; Greenfield et al. 1970). Haglund and Baskin (2002) recently completed a one-year study in the San Gabriel River; their results suggest that macroinvertebrate diversity was reduced in vehicle ruts and tracks. However, they concluded there was no evidence at that time to indicate that the intensity of OHV usage was related to trends in native fish populations (although they recommended further investigation before drawing firm conclusions).
Swimming, wading, and bathing can degrade the physical structure and *430 water quality of streams. Erosion associated with heavy recreational use along streambanks contributes to degraded habitat conditions including increased sedimentation in potential spawning and feeding grounds and loss of habitat structure (e.g., pools, riffles, shallow sandy margins) that provide essential elements to the survival of the sucker. The damming of the river to create recreational swimming pools may temporarily eliminate fish passage and limit the availability of suitable habitat for the sucker (Ally, in litt. 2001). Pollution associated with personal care products (e.g., suntan lotion, shampoo, soap, insect repellent) that can be released into the aquatic environment during swimming, wading, and bathing can have adverse physiological effects on the endocrine system of fishes (Daughton and Ternes 1999).
We have been working and will continue to work with the U. S. Forest Service (Forest Service) to ensure their actions with respect to the sucker will not result in jeopardy to or take of the species. The Forest Service has recently implemented measures to reduce OHV activity in areas in which suckers are suspected to spawn as part of the Angeles National Forest Santa Ana Sucker Conservation Strategy.
(16) Comment: The San Gabriel Canyon OHV Area is currently a Department of Defense training facility and is also covered under a Forest Service management plan. Therefore, this area should be excluded from designated critical habitat.
Our Response: Section 4(b)(2) of the Act allows the Service to exclude any area from critical habitat if the Service determines the benefits of such exclusion outweigh the benefits of specifying such area as part of critical habitat, unless, based on the best scientific and commercial data available, the Service determines that failure to designate the area as critical habitat will result in the extinction of the species. Exclusions can be based on INRMPs for military lands, HCPs, and formal conservation plans. We have confirmed with the Forest Service that the Department of Defense does not currently use the San Gabriel Canyon OHV Area as a training facility (Bill Brown, U.S. Forest Service, pers. comm. 2004), and therefore does not qualify for exclusion as provided for military lands under section 4(b)(2) of the Act.
The Service must determine that a management plan provides a conservation benefit to the species, and assurances that the management plan will be implemented, and the conservation effort will be effective. We have reviewed the San Gabriel Canyon Off-Road Vehicle Management Plan (U.S. Forest Service 1985) for consistency with the aforementioned criteria. While we appreciate the significant amount of effort private individuals and the Forest Service have expended in the development of this management plan, it does not adequately address the conservation needs of the sucker in the San Gabriel River and therefore, we cannot exclude this area from the critical habitat designation under 4(b)(2) of the Act. We are working with the Forest Service to better conserve the sucker in this area.
(17) Comment: Only a small portion of the San Gabriel Canyon OHV Area contains suitable habitat for the Santa Ana sucker.
Our Response: Our regulations allow us to designate critical habitat in areas where the species is not present if they are in proximity to areas occupied by the species and are essential to their conservation (50 CFR 424.12(d)). Although suckers may not occupy this area when the reservoir is full, this area does provide a linkage between the West, East, and North Forks of the San Gabriel River. Linkages are essential to maintaining the genetic structure and viability of the species in this river. Therefore, we consider all portions of the San Gabriel Canyon OHV Area within the geographical boundaries of the designation as critical habitat.
(18) Comment: Habitat for the sucker is not present in the plunge pool immediately downstream of Cogswell Dam or for 1,000 feet downstream of Cogswell Dam in the West Fork of San Gabriel River. Therefore, this section of the river should be excluded from critical habitat.
Our Response: Based on the best available information, we have determined that this area of the West Fork of the San Gabriel River contains substrate, vegetation, and water that are essential for the conservation of the species (Haglund and Baskin 1996; Haglund and Baskin 1995; U.S. Forest Service 2003). The Santa Ana sucker was detected in the vicinity of this area during the last decade (Haglund and Baskin 1996). Therefore, since this area had been occupied and since it contains the primary constituent elements of critical habitat, this area will remain designated as critical habitat. Under the Act, we can revise critical habitat in the future, if new information becomes available.
(19) Comment: A 1,000-foot portion of the East Fork of the San Gabriel River downstream of the confluence of the East, West, and North forks should be excluded from critical habitat because critical habitat designation will limit the implementation of flood protection measures, the amount of water that can be stored behind the San Gabriel Dam, and revenue for the hydroelectric plant located downstream of the dam.
Our Response: This area was included in the critical habitat designation because it provides a linkage between the West, East, and North Forks of the San Gabriel River. Linkages are essential to maintaining the genetic structure and viability of the species in this river. Our regulations allow us to designate critical habitat in areas where the species is not present if they are in proximity to areas occupied by the species and are essential to their conservation (50 CFR 424.12(d)). In addition, significant numbers of suckers were detected in the vicinity of this area during recent surveys (M. Chimienti, Los Angeles County Department of Public Works, pers. comm. 2004). Therefore, this area of the East Fork of the San Gabriel River will remain in the critical habitat designation. Under the Act, we can revise critical habitat in the future, if new information becomes available.
(20) Comment: Within the San Gabriel River, critical habitat should be designated between Morris Dam and Fish Canyon as well as lower San Jose Creek, a tributary to San Gabriel River. The commenter did not state why this area should be designated.
Our Response: Although we appreciate the potential for habitat in this portion of the San Gabriel River and lower San Jose Creek, we do not have sufficient information to determine if these areas contain the primary constituent elements essential to the conservation of the sucker. Therefore, we cannot designate these areas as critical habitat. Under the Act, we can revise critical habitat in the future, if new information becomes available.
(21) Comment: Within Big Tujunga Creek, habitat for the sucker is not present in the plunge pool immediately below Big Tujunga Dam or for one mile downstream of Big Tujunga Dam. Therefore, these sections of Big Tujunga Creek should be excluded from critical habitat.
Our Response: We have determined that the upstream sections of the Big Tujunga Creek transport sediment from upstream tributaries to known occupied habitat in the lower Big Tujunga Creek. In addition, this portion of the creek meets the definition of critical habitat since it contains water, substrates, and riparian and aquatic vegetation essential for the conservation of the species (Andresen 2001; Haglund and Baskin 2001). Although some structures in this area may seasonally limit upstream movement of suckers, these structures *431 are not necessarily year-round impediments to fish passage (Swift 2002). Therefore, since this area maintains essential habitat downstream, has a strong potential to be occupied, and contains the primary constituent elements of critical habitat, this area is essential to the conservation of the species and will remain in the critical habitat designation. Under the Act, we can revise critical habitat in the future, if new information becomes available.
(22) Comment: Habitat is not present within an unnamed tributary of Big Tujunga Creek that is 500 feet downstream of Foothill Boulevard.
Our Response: We have not been provided with enough information to determine the location of this unnamed tributary. However, the floodplain of Big Tujunga Creek meets the definition of critical habitat since it contains the necessary hydrology, substrates, water, and vegetation essential to the conservation of the species. Therefore, any tributaries with these primary constituent elements are considered critical habitat when they are within the Big Tujunga Creek floodplain. Under the Act, we can revise critical habitat in the future, if new information becomes available.
(23) Comment: Some commenters stated that Little Tujunga Creek in Unit 3 should be excluded from critical habitat because it is not occupied by the sucker, and does not provide sediment or water to occupied habitat in Big Tujunga Creek. Other commenters emphasized the importance of maintaining the original area proposed as critical habitat, including Little Tujunga Creek.
Our Response: Based on comments and information we received during the public comment periods and additional field investigations, we have removed Little Tujunga Creek upstream of its confluence with Big Tujunga Creek from the final critical habitat designation and revised the maps accordingly.
(24) Comment: In Unit 3, critical habitat should be designated in Trail Canyon and La Paloma Canyon and all other tributaries to the Big Tujunga Creek.
Our Response: Although we appreciate the potential for habitat and water supply in Trail and La Paloma Canyons, as well as in many of the other tributaries to Big Tujunga Creek, we do not have sufficient information to determine if these tributaries contain the primary constituent elements essential to the conservation of the sucker. Therefore, we cannot designate these areas as critical habitat. Under the Act, we can revise critical habitat in the future, if new information becomes available.
(25) Comment: Critical habitat should be designated in the Los Angeles River between State Route 134 and Interstate 5.
Our Response: Although we appreciate the potential for habitat in this portion of the Los Angeles River, we do not have sufficient information to determine if it contains the primary constituent elements essential to the conservation of the sucker. Therefore, we cannot designate this area as critical habitat. Under the Act, we can revise critical habitat in the future, if new information becomes available.
(26) Comment: Unit 1B (Santa Ana Wash) is not occupied and therefore is not essential to the conservation of the species. Also, Mill Creek is generally dry and could not support the sucker. Furthermore, the Service has not demonstrated that Unit 1B supports a natural hydrograph, is essential to the conservation of the species, or is necessary for the long-term viability of the species.
Our Response: As stated in the previous final critical habitat rule or listing rule, Mill Creek, City Creek, and the upper Santa Ana Wash in Unit 1B are a source of sediment for the occupied portion of the Santa Ana River (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan Baskin, pers. comm. 2004; EIP Associates 2004). This sediment, which is composed of cobble, gravel, and sand, provides spawning and feeding substrates for the sucker and is essential to the conservation of the species.
In addition to sediment transport, Unit 1B supports a functioning hydrological system (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan Baskin, pers. comm. 2004) that experiences peaks and ebbs in water volume within the Santa Ana River watershed (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan Baskin, pers. comm. 2004). Although much of the surface water within Unit 1B has been diverted for municipal uses or other purposes, heavy rainstorms during the rainy season do provide flows that are biologically important to the sucker (Swift 2001; EIP Associates 2004).
While the Santa Ana Wash was proposed as critical habitat based on, among other things, its contribution of sediments and maintenance of a functioning hydrograph, these attributes do not, of themselves, warrant determining that an area is "essential to the conservation of the species", which is the statutory standard for designation of unoccupied areas. Therefore, Unit 1B, Santa Ana Wash, has been removed from the revised designation. The basis for this removal is summarized in the section entitled "Summary of Changes".
(27) Comment: Unit 1B does not support riparian systems that are essential to the conservation of the sucker.
Our Response: As stated in previous rules, the existing riparian habitat in City Creek, Mill Creek, and the upper Santa Ana Wash in Unit 1B contributes to maintaining water quality and the community structure essential for the conservation of the sucker. City Creek, Mill Creek, and the upper Santa Ana Wash contribute organic nutrients (e.g., woody debris, invertebrates) to the system (Klapproth and Johnson 2000a; Sweeney 1993) and filter pollutants and sediments entering the watershed (Mills and Stevenson 1999; Klapproth and Johnson 2000b.
Unit 1B, Santa Ana Wash, has been removed from the revised designation. The basis for this removal is summarized in the section entitled "Summary of Changes".
(28) Comment: In Unit 1B, the Service inconsistently and arbitrarily included a portion of the Santa Ana River covered by the Santa Ana Sucker (SAS) Conservation Program. This portion of the river extends upstream from the La Cadena Avenue bridge to the Mission Channel confluence with the Santa Ana River.
Our Response: The portion of Unit 1B between the La Cadena Avenue bridge and the Mission Channel confluence was inadvertently included in the previous critical habitat designation. The text and maps have been modified in this revised final rule to reflect the exclusion of all areas covered by the SAS Conservation Program as allowed under section 4(b)(2) of the Act (see Unit 1 map).
(29) Comment: There are no new anticipated impacts to the Santa Ana Wash (Unit 1B) and therefore, it should be excluded from critical habitat designation.
Our Response: The Santa Ana Wash is threatened by rapid development of the Santa Ana River watershed in San Bernardino County, and by the demand for increased building materials (e.g., sand and gravel) and water supplies. However, Unit 1B, Santa Ana Wash, has been removed from the revised designation. The basis for this removal is summarized in the section entitled "Summary of Changes".
(30) Comment: Chino Creek in Unit 1A does not contain habitat for the Santa Ana sucker and should be removed from the critical habitat designation.
*432 Our Response: Chino Creek supported the Santa Ana sucker historically (Koehn, in litt. 1966), and still contains one or more of the primary constituent elements (Swift, pers. comm. 2004). In addition, the riparian habitat adjacent to the stream and the stream's contribution to the overall hydrological regime help the sucker population in the Santa Ana River.
While Chino Creek in the Northern Prado Basin was proposed as critical habitat based on, among other things, its contribution of sediments and maintenance of a functioning hydrograph, these attributes do not, of themselves, warrant determining that an area is "essential to the conservation of the species", which is the statutory standard for designation of unoccupied areas. Therefore, Unit 1A, Northern Prado Basin, has been removed from the revised designation. The basis for this removal is summarized in the section entitled "Summary of Changes".
(31) Comment: Critical habitat should be designated in Cajon Creek, a tributary to the Santa Ana River.
Our Response: Although we appreciate the potential for sucker habitat in Cajon Creek, we do not have sufficient information to determine if this tributary contains the primary constituent elements essential to conservation of the sucker. Therefore, we cannot designate this tributary as critical habitat. Under the Act, we can revise critical habitat in the future, if new information becomes available.
(32) Comment: Please clarify if energy facilities are specifically excluded from the designated critical habitat and whether this includes powerhouse number 3 on Mill Creek in Unit 1B.
Our Response: We have clarified the language in the final rule to specifically exclude energy production facilities from the critical habitat designation. However, stream channels adjacent to energy production facilities within the geographical boundaries of the critical habitat designation that contain one or more of the primary constituent elements are considered critical habitat. Unit 1B, which includes Mill Creek, has been removed from the revised critical habitat designation.

Issue 3: Comments on Science

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

Issue 4: Procedural and Legal Comments

(34) Comment: The Service cannot exclude lands covered by conservation plans from critical habitat if those plans use public funds and lands to mitigate the taking of threatened and endangered species by private applicants for private purposes.
Our Response: Section 4(b)(2) of the Act allows the Service to exclude any area from critical habitat if the Service determines the benefits of such exclusion outweigh the benefits of designating such area as critical habitat, unless, based on the best scientific and commercial data available, the Service determines that failure to designate the area as critical habitat will result in the extinction of the species. Exclusions under section 4(b)(2) can be based on INRMPs, HCPs, and formal conservation plans, or other relevant considerations. In the case of HCPs and other formal conservation plans, the Service must determine that the plan provides conservation benefit to the species, and assurances that the management plan will be implemented and the conservation effort will be effective. The Service is not prohibited from excluding lands covered by plans using public funds or public lands if the plan meets the aforementioned criteria.
(35) Comment: The Service unlawfully pre-determined that the exclusion of essential sucker habitat from designated critical habitat outweighs any benefit.
Our Response: We issued the final rule (69 FR 8839) designating critical habitat for the sucker without the opportunity for public comment, because we found it would be impracticable and contrary to the public interest to delay the effective date of the final rule (see comment 37 for further details). In the proposed rule (69 FR 8911) that was published concurrently with the final rule, we specifically solicited comments from the public on the exclusion of essential habitat from the critical habitat designation. If additional information had been submitted during the comment period indicating that the conservation plans on which these exclusions were based were not conserving the sucker, we could have re-proposed critical habitat for the excluded areas. However, we did not receive any comments to that effect. Furthermore, the Western Riverside MSHCP has been finalized and an Incidental Take Permit has been issued for this plan. Significant progress has been made in the ongoing formal consultation with the U.S. Army Corps of Engineers (the Corps) on the SAS Conservation Program and we expect to issue a biological opinion on this program shortly. Therefore, we have excluded these areas of essential habitat from the critical habitat designation as allowed under section 4(b)(2).
(36) Comments: The Service did not comply with the National Environmental Policy Act (NEPA). Under NEPA, an Environmental Impact Statement or an Environmental Assessment must be prepared.
Our Response: Environmental impact statements and environmental assessments, as defined under NEPA, are not required for regulations enacted under section 4 of the Act (see 48 FR 49244; October 25, 1983). We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).
(37) Comment: The rights of concerned citizens were violated because they were not allowed to participate in the rule-making process.
Our Response: The Service published the previous final rule designating critical habitat for the sucker (69 FR 8839) without providing an opportunity for the public to comment under the good cause exemption of the Administrative Procedure Act (APA). Section 553(b)(B) of the APA recognizes an exemption to the public comment requirements. The Service issued the final rule designating critical habitat for the sucker without the opportunity for public comment, because we found it would be impracticable and contrary to the public interest to delay the effective date of the final rule (see comment 37 for further details). The Service also provided the opportunity for the public to comment on the proposed rule identical to and issued concurrently with the final rule. We have reviewed and responded to the substantive comments that we received by the deadline of the each of the 4 public comment periods. Based on these comments, we have revised the final rule to reflect corrections and modifications to the final rule designating critical habitat for the sucker as appropriate.
(38) Comment: The Service failed to hold formal public hearings as required under section 556 and 557 of title 5 of the APA. In addition, all settlements resulting from ongoing negotiations with the Service should be made part of the administrative record for this critical habitat designation.
Our Response: Section 553(d) of the APA allows publication of a final rule *433 to take effect immediately upon publication if the agency finds good cause for doing so and provides the reasoning in the final rule. In the final rule published on February 26, 2004, designating critical habitat for the Santa Ana sucker, we stated that we found good cause to make the final rule effective immediately upon publication for reasons outlined in the response to comment 37. Delaying publication of the rule to hold public hearings would have been impracticable and contrary to the public interest at that time (69 FR 8840). We subsequently held a public hearing on the proposed rule--which was identical to and published concurrently with the final rule--on September 9, 2004. Therefore, we have complied with the requirements of the APA and the Act.
(39) Comment: The Service can publish a rule that is effective immediately only if the Service has determined the sucker requires emergency protection. If the Service publishes a rule that is effective immediately, the Service must incorporate reasons for the emergency determination into the final rule. Since there was no justification for emergency designation included in the publication of the final rule, the final rule is invalid and unenforceable.
Our Response: Section 553(d) of the APA allows publication of a final rule to take effect immediately upon publication if the agency finds good cause for doing so and provides the reasoning in the final rule. In the final rule published on February 26, 2004, designating critical habitat for the Santa Ana sucker, we stated that we found good cause to make the final rule effective immediately upon publication for the following reasons: (1) To comply with the district court's order; (2) to conduct section 7 consultations and prepare written concurrences regarding projects funded, permitted, or carried out by Federal agencies that may affect the Santa Ana sucker or its essential habitat; (3) to ensure those activities will not jeopardize the continued existence of the species; and (4) to ensure Federal agencies can comply with the requirements of the Act, including section 9. Delaying the effective date of the rule would have been impracticable and contrary to the public interest (69 FR 8840). We complied with the requirements of the APA and the Act and therefore the rule is valid and effective. The Service did not issue the final rule based on an emergency finding requiring immediate designation of critical habitat for the sucker.
(40) Comment: Data were not made available for public review.
Our Response: As stated in the proposed and final critical habitat rules published on February 26, 2004, the supporting information for the rules is available to the public for inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service office in Carlsbad, California.
(41) Comment: The designation of critical habitat in the Santa Ana and San Gabriel Rivers, and the Big Tujunga Creek will limit the ability of flood control agencies and water conservation districts from maintaining sufficient flood protection and water supplies.
Our Response: The designation of critical habitat does not prevent public agencies from implementing flood control protection and water conservation actions. If these actions require a Federal permit, funding, or permission and if the Federal agency determines that these actions may adversely modify designated critical habitat, the Federal agency must request consultation with the Service prior to initiating that action.
(42) Comment: The designation of critical habitat should not preclude cooperative conservation efforts implemented in concert with actions that may adversely affect the sucker.
Our Response: We encourage cooperative conservation efforts by private individuals, organizations, and local, county, State, and Federal government agencies. We will continue to work with Federal, State, and local entities and private individuals to minimize project-related impacts to the sucker and its habitat.

Issue 5: Misinterpretation of the Original Final Rule

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

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

(45) Comment: The Service violated the Act because it did not complete an economic analysis prior to issuing a final critical habitat rule, and therefore the rule should be vacated.
Our Response: As previously stated (see response to comments 35 and 37), we dispensed with the notice and comment period for the final designation of critical habitat under the good cause exemption of the APA (69 FR 8839), while concurrently publishing the proposed rule to allow for public comment. In the proposed rule (69 FR 8911), we announced our intention to prepare an economic analysis and seek public review and comment on the economic analysis.
(46) Comment: Several comments objected to the short timeframe allowed for comments and the lack of immediate availability of the draft economic analysis online.
Our Response: We had two comment periods for the draft Economic Analysis, the first for 10 days and the second for 30 days. A Notice of Availability (NOA) was published in the Federal Register on October 1, 2004 (69 FR 58876) opening a 10-day public comment period on the economic analysis. On October 25, 2004, we published another notice in the Federal Register (69 FR 62238) reopening a 30-day comment period on the draft economic analysis and the proposed designation. All comments on the economic analysis have been incorporated into the final economic analysis and the revised final rule as appropriate.
(47) Comment: Two groups suggested that prior written comments they had submitted concerning the economic impacts of the Santa Ana Sucker critical *434 habitat designation were not addressed by the draft economic analysis.
Our Response: Northwest Economic Associates (NEA) and the Service reviewed all of the previously submitted comments in the course of preparing the draft economic analysis. The comments provided useful insight into potential economic effects of the listing and designation of critical habitat for the sucker. However, in some cases, further research revealed that the economic effects could not be substantiated through available information or that the effects were considered too speculative to be considered reasonably foreseeable. For example, one commenter noted that private lands within critical habitat that are dedicated for recreational purposes but not excluded will require "re-evaluation of [previously approved] private projects." This re-evaluation would result in assessment of an "appropriate fee," with an effect of "greater than 100 million dollars." The authors found no evidence that such a fee would result from designation of critical habitat. In other cases, the draft economic analysis included costs that were not addressed by prior written comments.
(48) Comment: One comment suggested that the amenity values estimates should appear in the main report, not an appendix.
Our Response: See response to Comment 49.
(49) Comment: One comment suggested that the amenity values as analyzed are highly conservative and that a broader range should be presented, using a broader range of assumptions. This comment also stated that other benefits, such as indirect or non-use benefits, should be analyzed as well. It also criticized the use of different accounting standards in the evaluation of benefits (amenity values) and costs.
Our Response: We appreciate the comment in support of the approach used in the DEA to estimate some of the economic benefits that may be associated with designating riparian corridors as critical habitat for the SAS. However, after further consideration and consultation with the Office of Management and Budget (OMB), we have decided that this approach does not fully meet the minimum standards required by OMB in estimating the potential economic benefits of a proposed Federal action. OMB Circular A-4 stresses that the Benefit-Transfer method, which was the approach used in the DEA, should only be used as a last-resort option to measuring benefits and should not be used without explicit justification. The underlying rationale for this reasoning is that while the Benefit-Transfer method can provide a quick, low-cost approach for obtaining desired monetary values (as opposed to collecting original data), the methods are often associated with uncertainties and potential biases of unknown magnitude.
Circular A-4 is very specific in the criteria that must be satisfied in order to use the Benefit-Transfer method. Criteria include using studies that are based on adequate data, sound and defensible empirical methods and techniques, and ensuring that the studies relied upon are measuring similar values that do not have unique attributes. In the DEA, we relied on two studies (Colby and Wishart 2002, Streiner and Loomis 1995) the first measuring the property value premium riparian areas generate for nearby landowners in the arid West, the second measuring the benefits incurred by nearby landowners associated with restoring degraded urban streams. Neither study, it was determined after consultation with OMB, fully met the necessary criteria to base an assessment of the potential economic benefits of SAS critical habitat designation. In the Colby study, concern was expressed over the statistical robustness of the overall model. Concerns over the Loomis study focused on the fact that the measurement of the value associated with restoring degraded riparian corridors was not equivalent to the designation of critical habitat, which essentially recognizes healthy riparian corridors that can support the species. While we attempted to address these and other concerns in the DEA, we were not able to fully satisfy all of the necessary criteria that would allow us to transfer the findings of these two studies to the SAS.
In future analyses we will continue to investigate the appropriateness of using existing data to estimate the economic benefits of critical habitat designation. However, even if we are able to credibly measure such effects, we continue to believe that in carrying out our duty under section 4(b)(2) of the Act that the benefits associated with designating any particular area as critical habitat are best expressed and considered in biological terms.
(50) Comment: One comment questioned the failure of the draft economic analysis to address economic impacts to the mining industry. An independent report on potential economic impacts was attached to this comment in support.
Our Response: The draft economic analysis considered impacts to the sand and gravel mining industry. Sand and gravel are important resources in southern California that support development activities such as residential and commercial construction and road building. Due to the costs of transporting the material, sand and gravel mines tend to be located in areas relatively near development. Some of these mines have historically been, and continue to be, located within flood plains and can directly impact sucker habitat. The upper Santa Ana River area has had mining activities for many years.
The boundaries of the proposed critical habitat exclude existing mining activities and the Service has indicated that no burdens will be imposed on existing facilities that operate according to historic practices, as discussed in the draft economic analysis. The independent report suggests the possibility of future expansion of mining activities within Unit 1B. The Corps has received no request for permits to expand operations within the proposed critical habitat. There has only been one emergency consultation associated with sand and gravel mining since the sucker was listed, and it was conducted to protect a bridge and did not involve an ongoing commercial operation. While it is true that new mining activity is being considered within Unit 1B, there is no information with which to demonstrate economic effects. An HCP that will cover mining activities is in the initial stages of development but lacks sufficient detail to base reasonable predictions on how the critical habitat designation for the sucker will affect new mining activities within Unit 1B. However, the HCP has not yet specifically considered the Santa Ana sucker, and therefore no documentation is available to suggest additional conservation measures that may need to be adopted. Furthermore, Unit 1B is not included in the revised critical habitat designation.
(51) Comment: One comment questioned the failure of the draft economic analysis to address economic impacts of the water conservation project at Seven Oaks Dam in Unit 1B.
Our Response: The draft economic analysis considered potential economic impacts to the proposed water conservation project. According to the Corps, Seven Oaks Dam has not been permitted as a water conservation facility. Its primary purpose is for flood control. Several agencies have pursued the idea of using Seven Oaks as a source of municipal water supply. For example, a letter dated December 11, 2000 from the Service to the Corps attached to the comment letter refers to actions by the Corps and the San *435 Bernardino Valley Municipal Water District indicating that water conservation activities are reasonably certain to occur and that the application accompanying the petition to revise the appropriation of the Santa Ana River requests the right to store up to 50,000 acre-feet per annum in the reservoir formed by Seven Oaks Dam. However, recent discussions with the Corps suggest that no decisions to change the dam's purpose have been finalized. It is uncertain whether Seven Oaks Dam will be permitted for water conservation with or without critical habitat designation for the sucker. Furthermore, the Service has indicated that it will not require conservation measures unless the releases from the dam are altered from past practices. There is no indication how and if the flow regime will be altered even if the dam is used to provide additional water supply to municipalities. Furthermore, we find no evidence that the Corps is proposing a change of use of the facility to include water conservation.
(52) Comment: One comment stated that the although they believe the draft economic analysis underestimates the full economic impact of critical habitat designation, the estimates contained in the analysis still support the exclusion of Unit 1B as benefits do not outweigh costs.
Our Response: The draft economic analysis did consider the effects of mining and water conservation as described above. Also as discussed above, we did consider the economic and other impacts of the designation when we issued our interim rule, however we also conducted an economic analysis to more fully consider these impacts.
(53) Comment: Two groups asserted that the draft economic analysis mischaracterizes the San Gabriel Canyon OHV Area status, and expressed a desire to have local efforts toward sucker recovery be included in the draft economic analysis.
Our Response: The draft economic analysis included efforts to properly characterize the status of OHV use in the San Gabriel Canyon. In response to the Santa Ana sucker's listing and critical habitat designation, the Forest Service has installed information signs in the OHV area. In the OHV staging area, there are some educational brochures available with general information on acceptable and unacceptable behaviors. There is also a kiosk with informational signs relating to the sucker. In the past three years, the Forest Service has coordinated with the Service and California Department of Fish and Game (CDFG) to develop "avoidance criteria" for OHV users at San Gabriel OHV Park, to include the elimination of two stream crossings and the placement of rock and boulders along the riverbank to prevent people from driving into the river. Patrols have increased in sensitive areas, especially during weekends. The Forest Service also has worked with the local OHV club to develop sucker education programs. In addition to the Forest Service efforts, the OHV club is self-policing its members. The OHV club has placed at least one vehicle and drivers per weekend at the San Gabriel OHV Area for the past several years. The draft economic analysis included costs associated with efforts by local OHV groups to provide protection measures and minimize impacts to sucker habitat (pp. 75-78). These costs are shown in Tables 30 and 31 of the draft economic analysis.
(54) Comment: Two groups claim that mitigation of other projects, such as dams, is incorrectly described within the draft economic analysis and that the costs of mitigation are understated.
Our Response: There are five flood control dams and multiple hydroelectric facilities operating in and around the essential habitat units for the sucker. The economic effects on these operations were quantified in Section 6.6 of the draft economic analysis.
(55) Comment: Two groups suggest that the draft economic analysis should address recovery.
Our Response: Economic analyses only address cost associated with designation of critical habitat, as required by the Act.
(56) Comment: One group suggests that the draft economic analysis findings support the inclusion of all areas currently designated as critical habitat for the sucker.
Our Response: The Secretary considers the draft economic analysis along with other information in determining whether the benefits of excluding particular areas from a revised final critical habitat designation outweigh the biological benefits of including those areas in a revised final designation.
(57) Comment: One comment from the Santa Ana Watershed Project Authority provided a number of details on the Santa Ana Regional Interceptor (SARI) line to correct information presented in the draft economic analysis. The comment noted the difficulty in estimating costs for a project that is still conceptual and suggests that the ultimate design choice will likely result in costs "significantly less" than those in the draft economic analysis.
Our Response: We appreciate the comment from the watershed authority. The draft economic analysis was based at the time on the information obtained through the Corps, Orange County Sanitation District, and public information about the line available through the internet. The analysis recognizes that a variety of alternatives are under consideration at this time and that associated construction cost estimates are preliminary. However, because the commenter did not provide any specific new estimates, we will rely on those presented in the draft economic analysis, with the understanding that they may overstate actual final costs should one of the design alternatives be implemented.
(58) Comment: The County of Los Angeles Department of Public Works submitted a very detailed comment letter addressing a number of specific areas in the draft economic analysis. This letter was received after the deadline for comments. Nevertheless, the comments are addressed below.
Our Response: The County of Los Angeles Department of Public Works (Public Works) provides several comments that argue for exclusion of Unit 3, Big Tujunga Creek. In addition, Public Works provides several comments that can be addressed through minor changes and additions to the text in the draft economic analysis and do not result in changes to estimated economic effects. Public Works expressed concern that future utilization of sediment placement sites may be affected by sucker conservation activities. However, there is no evidence from past consultations to suggest that current sediment placement sites will be affected or will be the subject of future consultations. In the comment letter, Public Works speculates that future sucker conservation activities will affect the availability of water conservation storage in San Gabriel Reservoir. However, as stated in the draft economic analysis, no conservation measure or ponding restrictions are anticipated as protection measures for the sucker. Consequently, it was considered to be reasonable to exclude water conservation losses in San Gabriel Reservoir in the draft economic analysis.
Several of the comments from Public Works addressed sediment removal activities. Public Works stated that the draft economic analysis failed to mention the sediment management plan for Cogswell Reservoir and associated sucker conservation activities. While the draft economic analysis does not mention the plan or consider sucker-related costs, the authors believe that *436 the conservation measures discussed in the comment letter would be implemented with or without the sucker listing and critical habitat designation. It appears that these measures were in place prior to the sucker listing and that they were instituted for the benefit of a number of fish species and have not been altered to specifically address the Santa Ana sucker. Public Works states that periodic cleanouts of Big Tujunga Reservoir will also be necessary in the future and that annual monitoring of the sucker will likely be required as a result. This is new information that was not considered in the draft economic analysis, as it was received after the close of the comment period. Public Works estimates that annual sucker-related costs for the routine cleanouts, which will occur once every ten years, will be $82,350.
Public Works also contends that ongoing costs associated with the Big Tujunga Wash Mitigation Bank should be included in the economic analysis. Mitigation Bank costs were not included in the draft economic analysis because the site was purchased as mitigation for flood control activities prior to the sucker listing. Furthermore, it appears that the activities related to the Mitigation Bank cited in the comment letter would have occurred with or without the sucker listing and critical habitat designation. While it is possible that a small portion of the costs of these activities could be attributed to sucker-related conservation activities, the consultation history reveals that these activities presented only minor concerns for the sucker.
Finally, Public Works argues for inclusion of potential impacts to energy supply at San Gabriel Dam and provides an estimate of losses between $300,000 and $1 million annually. However, Public Works admits that it is "not aware of any final Santa Ana Sucker Conservation Strategy adopted yet for the San Gabriel River." The estimates of hydropower losses are contingent upon hypothetical reservoir level restrictions. Such restrictions have not been imposed and there is little indication to suggest that they will be imposed in the foreseeable future.
(59) Comment: Public Works states that the draft economic analysis does not fully consider the economic costs of components of private development projects that are transferred to public agencies for management.
Our Response: The draft economic analysis utilized the development mitigation costs as presented in the Western Riverside MSHCP as a means of estimating economic costs of private development. These costs are considered to be representative of the full costs of mitigation, including ongoing management. While there may be some additional costs associated with ongoing operation and maintenance of specific components of development projects, at this time there is inadequate information available to support their inclusion in the draft economic analysis.
(60) Comment: Public Works states that the effects on road maintenance and transportation are underestimated in the analysis because it only considers costs related to past transportation projects, noting: "There were only 4 past project[s], all of which were related to Bridge Projects."
Our Response: The draft economic analysis considered a broader approach in estimating future costs. Future projects were estimated using Geographic Information System (GIS) coverage of past Corps permitting within the Santa Ana sucker critical and essential habitat boundaries to identify projects occurring within sucker habitat. In total, 49 Corps permits were issued within sucker habitat between 1999 and 2003. All permits involving construction and maintenance of transportation facilities were selected from this list. In total, ten permits were issued for transportation projects over the five-year period. Thus, the draft economic analysis considers future sucker-related costs on transportation activities by assuming that past permits are appropriate indicators of future costs. Public Works further contends that affected transportation projects are likely to increase in the future. However, no evidence was uncovered during research for the draft economic analysis to support this conclusion.
(61) Comment: One comment notes that "the ensuing analysis on small entities [addressed in Appendix A] appears to not include costs to the Corps and Public Works. The comment quotes Paragraph 3 of Page A-4, which includes: "There are five flood control dams operating in and around the critical and essential habitat units for the sucker * * *. The facilities are operated by the U.S. Army Corps of Engineers or owned by [Public Works], and do qualify as small entities."
Our Response: Although the authors acknowledge the quote on Page A-4, the statement in the draft economic analysis is in error. The last sentence should state, "The facilities are operated by the USACE or owned by the LADPW, and do not qualify as small entities." The analysis remains unchanged, as these facilities exceed the size standards for small entities, and were properly omitted from the analysis.

Summary of Changes From the Proposed Rule and the Original Final Rule

On the basis of public comments, we reviewed our description and delineation of critical habitat in the Big Tujunga Creek and the San Gabriel and Santa Ana Rivers. Using information provided in these comments and obtained from field work, we removed Little Tujunga Creek upstream of its confluence with Big Tujunga Creek in Los Angeles County from the critical habitat designation in Unit 3, Big Tujunga Creek. We also refined the text to accurately reflect the critical habitat designation in the San Gabriel River. The text in the proposed rule stated that the upper boundary of Unit 2 along the East Fork of the San Gabriel River in Los Angeles County extended to the Bridge-of-No-Return. However, this upper boundary was not delineated on the map or the legal description of this unit. While this area is essential to the conservation of the species, it cannot be included in the revised final rule since it was never actually proposed.
We also removed proposed units 1A and B from the designation. Units 1A and 1B were proposed because are a source of sediment for the occupied portion of the Santa Ana River. This sediment, which is composed of cobble, gravel, and sand, provides spawning and feeding substrates for the sucker downstream of the proposed units. They were also proposed due to their conveying flood waters to help maintain variability in the hydrological system downstream, because they support riparian vegetation that provides organic nutrients and woody debris which becomes food for the species downstream, and because potions were historically, but not currently, occupied.
However, these attributes do not, of themselves, warrant determining that an area is "essential to the conservation of the species", which is the statutory standard for designation of unoccupied areas. There are many things--indeed, an almost endless range of possibilities--which contribute to the maintenance of primary constituent elements or otherwise provide a beneficial influence to areas designated as critical habitat. That does not warrant also designating the areas from which they originate, or pass through, as critical habitat.
In fact, Congress has instructed us to be "exceedingly circumspect" in designating critical habitat outside of areas currently occupied by the species (House Report 95-1625). With that guidance in mind, we do not find these unoccupied areas essential to the *437 conservation of the species, and so have not designated them as critical habitat.
Overall, these changes resulted in reducing the designated critical habitat by 12,824 ac (5,190 ha). Table 1 outlines the changes in acreages for each unit between the original and revised final rules.
 
 Table 1.--Changes in Acreages (ac; ha) for Each of the Units Between Original 
                            and Revised Final Rules                            
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              Unit                 Original final rule     Revised final rule  
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Santa Ana River, San Bernardino                                                
  County (Units 1A and 1B) ...... 11,709 ac (4,738 ha) .. 0 ac (0 ha)          
San Gabriel River, Los Angeles                                                 
  County (Unit 2) ............... 5,765 ac (2,333 ha) ... 5,765 ac (2,333 ha)  
Big Tujunga Creek, Los Angeles                                                 
  County (Unit 3) ............... 3,655 ac (1,479 ha) ... 2,540 ac (1,028 ha)  
Total ........................... 21,129 ac (8,551 ha) .. 8,305 ac (3,361 ha)  
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Critical Habitat

Please refer to the previous final rule designating critical habitat for the Santa Ana sucker for a general discussion of sections 3, 4, and 7 of the Act and our policy in relation to the designation of critical habitat (69 FR 8839).

Methods

As required by section 4(b) of the Act and its implementing regulations (50 CFR 424.12), this rule is based on the best scientific and commercial data available concerning the species' current and historical range, habitat, biology, and threats. In preparing this rule, we reviewed and summarized the current information available on the Santa Ana sucker, including the physical and biological features essential for the conservation of the species (see "Primary Constituent Elements" section), and identified the areas containing these features. We also identified areas outside the geographic range of the species that are essential for its conservation. These areas contribute sediment necessary to maintain breeding and feeding substrates in occupied areas. The information used in the preparation of this designation includes: site-specific species and habitat information collected and/or maintained by the Service; the California Natural Diversity Database (CNDDB); unpublished survey reports, notes, and communications with qualified biologists or experts; peer reviewed scientific publications; the Angeles National Forest Santa Ana Sucker Conservation Strategy (U.S. Forest Service 2003); the SAS Conservation Program (Conservation Team 2003); the final listing rule for the sucker published April 12, 2000 (65 FR 19686); and discussions and recommendations from Santa Ana sucker experts.

Primary Constituent Elements

In accordance with sections 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat, we are required to base critical habitat determinations on the best scientific and commercial data available and to focus on those physical and biological features (primary constituent elements) essential to the conservation of the species and may require special management considerations or protection. These primary constituent elements include, but are not limited to: space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.
Much of what is known about the physical and biological requirements of Santa Ana sucker was described in the previously published final rule designating critical habitat for the species (69 FR 8839). The primary constituent elements for the Santa Ana sucker were determined by reviewing studies examining the habitat requirements and ecology of the sucker in the Santa Ana River (Allen 2003; Baskin and Haglund 2001; Haglund et al. 2003; Haglund et al. 2004; Saiki 2000; Swift 2001), the San Gabriel River (Saiki 2000; Haglund and Baskin 2002; Haglund and Baskin 2003), and the Santa Clara River (Greenfield et al. 1970). Designated critical habitat has been designed to provide sufficient habitat to maintain self-sustaining populations of sucker throughout its range, and to provide those physical or biological features essential for the conservation of the species. These physical or biological features provide for the following: (1) Space for individual and population growth and for normal behavior (primary constituent elements 1, 2, 3, and 6); (2) food, water, air, light, minerals, or other nutritional or physiological requirements (primary constituent elements 1, 2, 3, 4, 5, and 6); (3) cover or shelter (primary constituent elements 2 and 6); (4); sites for breeding, reproduction, and development of offspring (primary constituent elements 1, 2, 3, and 6); and (5) habitats that are representative of the historic geographical and ecological distribution of the species (primary constituent elements 1, 2, 3, 4, 5, and 6). Based on the occurrence of this species and associated biological information, all of these physical or biological features are essential to the conservation of the species.
We believe conservation of the Santa Ana sucker is dependent upon multiple factors, including the conservation and management of areas to maintain "normal" ecological functions where existing populations survive and reproduce. The areas we are designating as critical habitat provide some or all of the physical or biological features essential for the conservation of this species. Based on the best available information, the primary constituent elements essential for the conservation of the sucker are the following:
(1) A functioning hydrological system that experiences peaks and ebbs in the water volume reflecting seasonal variation in precipitation throughout the year;
(2) A mosaic of loose sand, gravel, cobble, and boulder substrates in a series of riffles, runs, pools, and shallow sandy stream margins;
(3) Water depths greater than 3 cm (1.2 in) and bottom water velocities greater than 0.03 m per second (0.01 ft per second);
(4) Non-turbid water or only seasonally turbid water;
(5) Water temperatures less than 30° C (86° F); and
(6) Stream habitat that includes algae, aquatic emergent vegetation, macroinvertebrates, and riparian vegetation.
Based on the specific biological and physical requirements of this species, critical habitat units contain many of the same physical and biological features. Management, therefore, will *438 address both the maintenance of these features and the reduction of threats specific to each critical habitat unit.

Criteria Used To Identify Essential Habitat

We considered several factors in selecting areas essential to the conservation of the Santa Ana sucker. We reviewed all streams and rivers currently occupied by the sucker and those areas outside of the current geographical distribution supporting one or more of the primary constituent elements.
We analyzed the known historical and current distribution of suckers based on data from the Carlsbad Fish and Wildlife Office internal geographic information systems (GIS) database, California Natural Diversity Database (CNNDB), Los Angeles County Museum Ichthyology Catalog, and the Fish Division of the University of Michigan Museum of Zoology. We also reviewed various scientific articles and reports on the Santa Ana River (Allen 2003; Baskin and Haglund 2001; Haglund et al. 2003; Haglund et al. 2004; Saiki 2000; Swift 2001), the Big Tujunga Creek (Haglund and Baskin 2001; Holland and Swift 2002), and the San Gabriel River (Saiki 2000; Haglund and Baskin 2002; Haglund and Baskin 2003).
Historically occupied river stretches that have been highly modified by the construction of canals with concrete-lining on sides and bottoms were not considered essential habitat. Other historically occupied habitat no longer providing primary constituent elements were eliminated from this analysis. We selected areas essential for the conservation of the sucker based on the potential for restoration and the presence of one or more of the primary constituent elements in currently occupied and potentially occupied habitat. We eliminated the Santa Clara River population in Ventura and Los Angeles counties from this analysis because it does not appear to represent a native population of the Santa Ana sucker (and it is not listed). We determined that streams, rivers, and associated riparian habitat within the Santa Ana River, San Gabriel River, and Big Tujunga Creek and associated tributaries provide essential habitat for the sucker.
We then considered if this essential area was adequate for the conservation of the Santa Ana sucker, and concluded that it is. The greatest threat to the conservation of the sucker lies in the human-generated alteration of the function, physical structure, water supply, and water quality of existing habitat. The physical structure of and water supply to each of the three currently occupied streams have been altered by flood control structures (e.g., dams, drop structures, concrete-lined channels), and water conservation operations. In addition to these easily identifiable threats, pollution and water quality standards that are not protective of the sucker also threaten the survival and recovery of the species.
We used the best available scientific and commercial information to determine which areas are essential to the conservation of the sucker. However, we recognize that the historic and recent collection records for this species are incomplete. River segments or small tributaries not included in this final designation may harbor small limited populations of the sucker or may become occupied in the future. The exclusion of such areas does not diminish their potential individual or cumulative importance to the conservation of the species. We believe that proper management of each of the three designated critical habitat units will provide lasting conditions capable of supporting sucker populations and allow for assisted or natural dispersal into adjacent streams in each watershed.
We will continue (with the assistance of State, Federal, and private researchers), to conduct surveys, research, and conservation actions on the species and its habitat in areas designated and not designated as critical habitat. When additional scientific