[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Rules and Regulations]
[Pages 8745-8819]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02057]



[[Page 8745]]

Vol. 78

Wednesday,

No. 25

February 6, 2013

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Tidewater Goby; Final Rule

Federal Register / Vol. 78 , No. 25 / Wednesday, February 6, 2013 / 
Rules and Regulations

[[Page 8746]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0085; 4500030114]
RIN 1018-AX39


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Tidewater Goby

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical 
habitat for the tidewater goby (Eucyclogobius newberryi) under the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 12,156 acres (4,920 hectares) in Del Norte, Humboldt, 
Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis 
Obispo, Santa Barbara, Ventura, Los Angeles, Orange, and San Diego 
Counties, California, fall within the boundaries of the critical 
habitat designation.

DATES: This rule becomes effective on March 8, 2013.

ADDRESSES: This final rule and the associated final economic analysis 
are available on the Internet at http://www.regulations.gov at Docket 
No. FWS-R8-ES-2011-0085, and from the Ventura Fish and Wildlife Office 
Web site at http://www.fws.gov/ventura/. Comments and materials 
received, as well as supporting documentation used in preparing this 
final rule, are available for public inspection, by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service, Ventura 
Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 
93003; telephone 805-644-1766; facsimile 805-644-3958.
    The coordinates or plot points or both from which the maps included 
in the regulation are generated are included in the administrative 
record for this critical habitat designation and are available at 
http://www.fws.gov/ventura/, at http://www.regulations.gov in Docket 
No. FWS-R8-ES-2011-0085, and at the Ventura Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT). Any additional tools or 
supporting information that has been developed for this critical 
habitat designation will also be available at the Fish and Wildlife 
Service Web site and Field Office set out above, and may also be 
included in the preamble and/or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general information, and 
information about the final designation in Santa Cruz, Monterey, San 
Luis Obispo, Santa Barbara, Ventura, and Los Angeles Counties, contact 
Diane K. Noda, Field Supervisor, U.S. Fish and Wildlife Service, 
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, 
CA 93003; telephone 805-644-1766; facsimile 805-644-3958. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.
    For information about the final designation in Del Norte, Humboldt, 
and Mendocino Counties, contact Nancy Finley, Field Supervisor, U.S. 
Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 
Heindon Road, Arcata, CA 95521; telephone 707-822-7201; facsimile 707-
822-8411.
    For information about the final designation in Sonoma, Marin, and 
San Mateo Counties, contact Susan Moore, Field Supervisor, U.S. Fish 
and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage 
Way, Suite W-2605, Sacramento, CA 95825; telephone 916-414-6600; 
facsimile 916-414-6712.
    For information about the final designation in Orange and San Diego 
Counties, contact Jim Bartel, Field Supervisor, U.S. Fish and Wildlife 
Service, Carlsbad Fish and Wildlife Service Office, 6010 Hidden Valley 
Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 
760-431-5901.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. This is a final rule to revise the 
designation of critical habitat for the endangered tidewater goby. 
Under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.) (Act), any species that is determined to be an endangered or 
threatened species requires critical habitat to be designated, to the 
maximum extent prudent and determinable. Designations and revisions of 
critical habitat can only be completed by issuing a rule. In total, 
approximately 12,156 acres (ac) (4,920 hectares (ha)) of critical 
habitat for the tidewater goby in California fall within the boundaries 
of the critical habitat designation.
    We designated critical habitat for this species in 2000 and again 
in 2008. As part of a settlement agreement, we agreed to reconsider the 
2008 designation. A proposed rule to revise the 2008 critical habitat 
designation was published in the Federal Register on October 19, 2011 
(76 FR 64996). This constitutes our final revised designation for the 
tidewater goby.
    We are making the following changes to the critical habitat 
designation. The 2008 final critical habitat designation (73 FR 5920) 
consisted of 44 units in Del Norte, Humboldt, Mendocino, Sonoma, Marin, 
San Mateo, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, 
Ventura, and Los Angeles Counties, California, totaling 10,003 ac 
(4,050 ha). In this final critical habitat designation, we have 
designated 65 critical habitat units for the tidewater goby throughout 
its range, including the 44 units designated in the 2008 final rule. 
These units are essential for the recovery of the tidewater goby as 
described in the Recovery Plan for the Tidewater Goby (Service 2005a; 
Recovery Plan).
    The basis for our action. Under the Act, we must determine critical 
habitat for any endangered or threatened species to the maximum extent 
prudent and determinable. We are required to base the designation on 
the best available scientific data after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact of specifying any particular area as critical habitat. 
The Secretary of the Department of the Interior (Secretary) may exclude 
an area from critical habitat if the benefits of exclusion outweigh the 
benefits of designation, unless the exclusion will result in the 
extinction of the species.
    We prepared an economic analysis. In order to consider economic 
impacts, we prepared a new analysis of the economic impacts of the 
proposed revised critical designation. We announced the availability of 
the draft economic analysis (DEA) in the Federal Register on July 24, 
2012 (77 FR 43222), allowing the public to provide comments on our 
analysis. We considered all comments and information received from the 
public during the comment period, incorporated the comments as 
appropriate, and have completed the final economic analysis (FEA) 
concurrently with this final determination. The economic analysis did 
not identify any areas with disproportionate costs associated with the 
designation, and no areas were excluded from the final designation 
based on economic reasons.
    Peer review and public comment. We sought comments and information 
from independent specialists to ensure that our critical habitat 
designation is based on scientifically sound data, assumptions, and 
analyses. We had invited these peer reviewers to comment on our 
specific assumptions and

[[Page 8747]]

conclusions in the proposed revision of the critical habitat 
designation. These peer reviewers generally concurred with our methods 
and conclusions and provided additional information, clarifications, 
and suggestions to improve this final rule. Information we received 
from peer review is incorporated in this final revised designation. We 
also considered all comments and information received from the public 
during the comment period.

Previous Federal Actions

    On April 15, 2009, the Natural Resources Defense Council (NRDC) 
filed a lawsuit in the U.S. District Court for the Northern District of 
California challenging a portion of the January 31, 2008, final rule 
that designated 44 critical habitat units in California (73 FR 5920, 
January 31, 2008). The lawsuit challenged the Service's failure to 
include any unoccupied habitat and the exclusion of some occupied 
habitat from critical habitat designation, and the failure to explain 
why unoccupied habitat previously included in the 2000 designation was 
not included in the 2008 designation. In a consent decree dated 
December 11, 2009, the U.S. District Court: (1) Stated that the 44 
critical habitat units should remain in effect; (2) stated that the 
final rule designating critical habitat was remanded in its entirety 
for reconsideration; and (3) directed the Service to promulgate a 
revised critical habitat rule that considers the entire geographic 
range of the tidewater goby and any currently unoccupied tidewater goby 
habitat. The consent decree requires that the Service submit proposed 
and final revised rules to the Federal Register no later than October 
7, 2011, and November 27, 2012, respectively. We published a proposed 
revised critical habitat in the Federal Register on October 19, 2011 
(76 FR 64996). Information on the associated draft economic analysis 
for the revised proposed critical habitat was published in the Federal 
Register on July 24, 2012 (77 FR 43222). At the request of the Service 
on November 26, 2012, the U.S. District Court granted a 60-day 
extension to submit the final revised rule to the Federal Register no 
later than January 26, 2013. By publishing this final revised 
designation we are complying with the consent decree established by the 
Court. For additional information on previous Federal actions please 
refer to the 1994 listing rule (59 FR 5494; February 4, 1994), and 
previous critical habitat designation (73 FR 5920; January 31, 2008).

Background

    It is our intent to discuss in this final rule only those topics 
directly relevant to the development and designation of critical 
habitat for the tidewater goby under the Act (16 U.S.C. 1531 et seq.). 
For more information on the biology and ecology of the tidewater goby, 
refer to the final listing rule published in the Federal Register on 
February 4, 1994 (59 FR 5494). For information on tidewater goby 
critical habitat, refer to the proposed rules to designate critical 
habitat for the tidewater goby published in the Federal Register on 
August 3, 1999 (64 FR 42250), November 28, 2006 (71 FR 68914), and 
October 19, 2011 (76 FR 64996); and the subsequent final critical 
habitat designations published in the Federal Register on November 20, 
2000 (65 FR 69693), and January 31, 2008 (73 FR 5920); and to our 
Recovery Plan (Service 2005a), which is available from the Ventura Fish 
and Wildlife Office (see ADDRESSES section or http://ecos.fws.gov). 
Information on the associated draft economic analysis for the proposed 
rule to revise critical habitat was published in the Federal Register 
on July 24, 2012 (77 FR 43222).

Species Description and Genetic/Morphological Characteristics

    The tidewater goby is a small, elongate, gray-brown fish rarely 
exceeding 2 inches (in) (5 centimeters (cm)) in length. This species 
possesses large pectoral fins, with the pelvic or ventral fins joined 
to each other beginning below the chest and belly and from below the 
gill cover back to just anterior of the anus. Male tidewater gobies are 
nearly transparent with a mottled brown upper surface. Female tidewater 
gobies develop darker colors, often black, on the body and dorsal and 
anal fins. The tidewater goby is a short-lived species; the lifespan of 
most individuals appears to be about 1 year (Irwin and Soltz 1984, p. 
26; Swift et al. 1989, p. 4; Hellmair 2011, p. 5).
    Various genetic markers demonstrate that pronounced differences 
exist in the genetic structure of the tidewater goby, and that 
tidewater goby populations in some locations are genetically distinct. 
A study of mitochondrial DNA and cytochrome b (molecular material used 
in genetic studies) sequences from tidewater gobies that were collected 
at 31 locations throughout the species' geographic range has identified 
six major phylogeographic (historical processes that may be responsible 
for the current geographic distributions) units (Dawson et al. 2001, p. 
1171). These six regional units are the basis for the recovery units in 
the Recovery Plan (Service 2005a, p. 30), and include the following 
areas: (1) Tillas Slough (Smith River) in Del Norte County to Lagoon 
Creek in Mendocino County (North Coast (NC) Recovery Unit); (2) Salmon 
Creek in Sonoma County to Bennett's Slough in Monterey County (Greater 
Bay (GB) Recovery Unit); (3) Arroyo del Oso to Morro Bay in San Luis 
Obispo County (Central Coast (CC) Recovery Unit); (4) San Luis Obispo 
Creek in San Luis Obispo County to Rincon Creek in Santa Barbara County 
(Conception (CO) Recovery Unit); (5) Ventura River in Ventura County to 
Topanga Creek in Los Angeles County (Los Angeles-Ventura (LV) Recovery 
Unit); and (6) San Pedro Harbor in Los Angeles County to Los 
Pe[ntilde]asquitos Lagoon in San Diego County (South Coast (SC) 
Recovery Unit).
    A more recent study to gather genetic distribution data for the 
tidewater goby used a panel of novel microsatellite loci (repeating 
sequences of DNA) assessed in a first-order (unbound strands of DNA) 
survey across its range (Earl et al. 2010, p. 104). More specifically, 
Earl et al. (2010, p. 103) described 19 taxon-specific microsatellite 
loci, and assessed genetic variation across the tidewater goby's range 
relative to genetic subdivision. The study concluded: (1) Populations 
of tidewater goby in northern San Diego County form a highly divergent 
clade (a genetically related group) with reduced genetic variation that 
appears to merit status as a separate species; (2) populations along 
the mid-coast of California are subdivided into regional groups, which 
are more similar to each other than different, contrary to conclusions 
from previous mitochondrial sequence-based studies (Dawson et al. 2001, 
p. 1176); and (3) that tidewater goby dispersal during the Pleistocene/
Holocene sea level rise (approximately 7,000 years ago), followed by 
increased isolation during the Holocene, formed a star phylogeny 
(recent population formed from a common ancestor) with geographic 
separation in the northernmost populations and some local 
differentiation (Earl et al. 2010, p. 103). Genetic diversity among 
populations within a species may be important to long-term persistence 
because it represents the raw material for adapting to differing local 
conditions and environmental stochasticity (Frankham 2005, p. 754).
    The conclusion that the populations of the tidewater goby in the 
North Coast Recovery Unit formed as a result of a single recent episode 
of colonization of newly formed habitats is supported by McCraney et 
al. (2010, p. 3325). They compared genetic variation of 13

[[Page 8748]]

naturally and artificially fragmented populations of the tidewater goby 
in northern California, including 8 Humboldt Bay populations and 5 
coastal lagoon populations (Lake Earl, Stone Lagoon, Big Lagoon, Virgin 
Creek, and Pudding Creek), and reached similar conclusions to Earl et 
al. (2010, p. 113). McCraney et al. (2010, p. 3325) also concluded that 
natural and artificial habitat fragmentation caused marked divergence 
among the tidewater goby in the North Coast populations. Their study 
showed that Humboldt Bay populations, due to isolation by manmade 
barriers, exhibited very high levels of genetic differentiation between 
populations, extremely low levels of genetic diversity within 
populations, and no migration among populations. They concluded that 
this pattern makes the Humboldt Bay populations of tidewater goby 
vulnerable to extirpation because artificial fragmentation and its 
resulting genetic differentiation between subpopulations, extremely low 
levels of genetic diversity within subpopulations, and lack of 
migration among the subpopulations reduces fitness and adaptive 
potential of a subpopulation (McCraney et al. 2010, p. 3325). In 
contrast, the study found that, while coastal lagoon populations also 
exhibited very high levels of genetic differentiation between 
populations, these populations displayed substantial levels of genetic 
diversity within populations indicating occasional migration among 
lagoons (McCraney et al. 2010, p. 3325). Populations in all coastal 
lagoons, with the exception of Lake Earl in Del Norte County, appear to 
be stable and genetically healthy (McCraney et al. 2010, p. 3325). The 
Lake Earl population exhibited reduced levels of genetic diversity in 
comparison to similar coastal lagoon populations (McCraney et al. 2010, 
p. 3324). McCraney et al. (2010, p. 3324) suspects that the reduced 
genetic diversity detected within Lake Earl is likely due to repeated 
population bottlenecks (reduced genetic diversity due to reduced 
population size) resulting from regular artificial breaching of the 
sandbar at the lagoon mouth.
    To summarize, the conclusions from these studies are:
    (1) The species can be divided into six phylogeographic units based 
upon genetic similarities and differences.
    (2) The tidewater goby to the south of the gap between Los Angeles 
and Orange Counties is probably a separate species from populations to 
the north based on its divergent genetic makeup.
    (3) Natural and anthropogenic barriers have contributed to genetic 
differentiation among populations.
    (4) Although genetic differences occur between populations north of 
the Los Angeles-Orange County line, they are not as divergent as those 
populations further south.
    (5) Some north coast populations exhibit significantly reduced 
genetic diversity, reduced growth potential, and reduced duration of 
spawning period. These populations appear to be vulnerable to 
extirpation.

Metapopulation Dynamics

    Local populations of tidewater goby are best characterized as 
metapopulations (Lafferty et al. 1999a, p. 1448; Smith, in litt. 2012). 
How a metapopulation functions through time is an important factor in 
the conservation of the tidewater goby and thus it is an important 
consideration in the designation of critical habitat. As such, using 
information primarily from Groom et al. (2006, pp. 216-219, 383-384, 
424-428) and Primack (2006, pp. 285-287) and elsewhere as noted below, 
we present the general concept of metapopulation dynamics followed by a 
discussion of its application to the tidewater goby.
    A metapopulation, in short, is a population of populations (often 
referred to as subpopulations). However, because of variations in the 
rates of birth, death, immigration, and emigration, each population is 
not static over time; as such, the interplay of a metapopulation's 
constituent populations results in a dynamic process of metapopulation 
maintenance. Thus, definitions of the term metapopulation within the 
scientific literature often incorporate the dynamic interaction of 
subpopulations, according to Groom et al. (2006, p. 706) a 
metapopulation consists of: ``A network of semi-isolated populations 
with some level of regular or intermittent migration and gene flow 
among them, in which individual populations may go extinct [become 
extirpated] but can then be recolonized from other populations.'' The 
Recovery Plan also incorporates interpopulation interaction in its 
definition of metapopulation: ``several to many subpopulations [of] 
tidewater goby that are close enough to one another that dispersing 
individuals could be exchanged'' (Service 2005a, p. A-3).
    Regarding this discussion, two points in particular are important 
to note in metapopulations: (1) Variability within subpopulations, and 
(2) connectivity between them through dispersing individuals. As 
mentioned above, subpopulations at different locations within a 
metapopulation vary over time. Because of intrinsic and extrinsic 
factors (Soul[eacute] and Simberloff 1986, pp. 27-28), some populations 
at given locations have high rates of growth in some years and other 
populations decline or even become extirpated. Yet, because 
subpopulations within a metapopulation are biologically connected 
through dispersing individuals, high-productivity subpopulations 
(sources) may augment the population size in low-productivity 
subpopulations (sinks); moreover, dispersing individuals may even 
recolonize extirpated areas. In this way, a metapopulation as a whole 
maintains a greater level of stability over time than its constituent 
subpopulations--in effect, metapopulation dynamics dampen the effects 
of variability. In addition to bolstering subpopulations or 
recolonizing extirpated areas, dispersing individuals are also 
important for maintaining gene flow between subpopulations (genetic 
connectivity) and thereby reducing the risk that certain alleles may be 
lost as a result of the extirpation of a subpopulation.
    Moreover, the greater the number of constituent subpopulations 
within a metapopulation, the greater the likelihood the effects of 
variability will be attenuated in that metapopulation. In short, 
because of metapopulation dynamics, extirpation of a subpopulation is 
not necessarily permanent. This results in a situation where 
constituent subpopulations ``blink out'' and ``blink on'' over time. A 
metapopulation persists through time because the rate of extirpation in 
subpopulations is balanced by the rate of recolonization. As a result, 
occupancy of an area may change over time.
    The balance discussed above is in large part dependent upon 
dispersal of individuals. Ultimately, when the rate of recolonization 
is reduced or eliminated, the effects of the threats are no longer 
dampened by metapopulation dynamics. In such a case, each constituent 
subpopulation becomes increasingly or completely independent, and 
extirpation of such a subpopulation is likely to be permanent.
    The pattern of extirpation and recolonization observed in the 
tidewater goby suggests that some tidewater goby populations exhibit a 
metapopulation dynamic where some populations survive or remain viable 
by continually exchanging individuals and recolonizing after occasional 
extirpations (Doak and Mills 1994, p. 619). Individual populations of 
tidewater goby occupy coastal lagoons and estuaries that are separated 
from each other by land and, in most cases, are separated from the open 
ocean by

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sandbars, or other barriers. Very few tidewater gobies have ever been 
captured in the marine environment (Swift et al. 1989, p. 7), which 
suggests that this species rarely occurs in the open ocean. Studies of 
the tidewater goby suggest that some populations persist on a 
consistent basis, while other populations appear to experience 
intermittent extirpations (local extinctions) (Lafferty et al. 1999a, 
p. 1452). These extirpations may result from one or a series of 
factors, such as the drying up of the lagoon during prolonged droughts 
(Lafferty et al. 1999a, p. 1451). Some of the areas where the tidewater 
goby has been extirpated apparently have been recolonized by nearby 
populations (those within approximately 6 miles (mi) (10 kilometers 
(km))) (Lafferty et al. 1999a, p. 1451; Smith, in litt. 2012). However, 
genetic research has revealed tidewater gobies are capable of 
dispersing up to 30 mi (48 km) (Jacobs et al. 2005, p.52).
    Lafferty et al. (1999b, p. 618) monitored the postflood persistence 
of several tidewater goby populations in Santa Barbara and Los Angeles 
Counties after the heavy winter floods of 1995. All of the monitored 
populations persisted after the floods, and no significant changes in 
population sizes were noted (Lafferty et al. 1999b, p. 621). However, 
tidewater goby apparently colonized Ca[ntilde]ada Honda in Santa 
Barbara County after one flood event (Lafferty et al. 1999b, p. 621). 
This suggests that flooding--where the barrier between the lagoon and 
the open ocean is breached and tidewater goby individuals are washed 
out to sea--may sometimes have a positive effect, forcing the dispersal 
of individuals and thereby allowing for recolonization of habitats 
where a tidewater goby population has become extirpated or allowing for 
genetic exchange between extant populations.
    Historical records and survey results for several areas occupied by 
the tidewater goby are available (Swift et al. 1989, pp. 18-19; Swift 
et al. 1994, pp. 8-16). These studies suggest that the persistence of 
tidewater goby populations is related to habitat size, configuration, 
location, and proximity to human development. In general, the most 
stable and persistent tidewater goby populations tend to occur in 
lagoons and estuaries that are more than 2.5 ac (1 ha) in size, and 
that have remained relatively unaffected by human activities (Lafferty 
et al. 1999a, pp. 1450-1453). Conversely, some habitats less than 2.5 
ac (1 ha) in size have tidewater goby populations that persist on a 
regular basis, such as Ca[ntilde]ada del Agua Caliente in Santa Barbara 
County (Swift et al. 1997, p. 3). We also note that some systems that 
are affected or altered by human activities also have relatively large 
and stable populations; examples include Pismo Creek in San Luis Obispo 
County, the Santa Ynez River in Santa Barbara County, and the Santa 
Clara River in Ventura County. The best available information suggests 
that the lagoons and estuaries with persistent tidewater goby 
populations likely serve as source populations that provide individuals 
that colonize adjacent locations with intermittent populations 
(Lafferty et al. 1999a, p. 1452). However, a rangewide metapopulation 
viability analysis for the tidewater goby has not been conducted; data 
from such a study would help inform which tidewater goby populations 
are source populations and which are sinks, and allow for the 
development of metapopulation-based recovery objectives for the 
species. Until data on demography and dynamics of tidewater goby 
metapopulations are available, the Recovery Plan for the species calls 
for interim objectives that emphasize consistent occupancy of habitat 
capable of sustaining viable tidewater goby populations (Service 2005a, 
p. 39).

Distribution

    The known geographic range of the tidewater goby is limited to the 
coast of California (Eschmeyer et al. 1983, p. 262; Swift et al. 1989, 
p. 12). The species historically occurred from locations 3 mi (5 km) 
south of the California--Oregon border (Tillas Slough in Del Norte 
County) to 44 mi (71 km) north of the United States--Mexico border 
(Agua Hedionda Lagoon in San Diego County). The available documentation 
(Eschmeyer et al. 1983, p. 262; Swift et al. 1989, p. 12) suggests that 
the northernmost extent of the current geographic range has not changed 
over time. Tidewater goby historically occurred in Agua Hedionda 
Lagoon, but the site is currently considered to be unoccupied. The 
species' southernmost, known, currently occupied locality is the San 
Luis Rey River, 5 mi (8 km) north of Agua Hedionda Lagoon in San Diego 
County. Although the northernmost extent of the tidewater goby's range 
has not changed and the southernmost extent has retracted by only 5 mi 
(8 km), its overall distribution has become patchy and fragmented along 
the coast. However, as discussed above in the Metapopulation Dynamics 
section, the occupancy of an area may change overtime and, when 
determining occupancy of an area, we first look at the rangewide 
occupancy for the species and then consider potential connectivity and 
source areas at the subpopulation or unit level.
    The tidewater goby appears to be naturally absent from several long 
(50 to 135 mi (80 to 217 km)) stretches of coastline lacking lagoons or 
estuaries, where steep topography or swift currents may prevent the 
tidewater goby from dispersing between adjacent locations (Swift et al. 
1989, p. 13; Earl et al. 2010, p. 104). One such gap occurs between the 
Eel River in Humboldt County and the Ten Mile River in Mendocino 
County. A second gap exists between Davis Lake in Mendocino County and 
Salmon Creek in Sonoma County. Another large natural gap exists between 
Monterey County and Arroyo del Oso in San Luis Obispo County. Habitat 
loss and other anthropogenic-related factors have resulted in the 
tidewater goby's absence from several locations where it historically 
occurred; the extirpation of tidewater goby from some of these 
locations has expanded gaps and created additional gaps in the species' 
geographic distribution (Capelli 1997, p. 7). Two examples of 
extirpations are San Francisco Bay in San Francisco and Alameda 
Counties, and Redwood Creek and Freshwater Lagoon in Humboldt County.
    Swift et al. (1989, p. 13) reported that, as of 1984, tidewater 
goby occurred or had been known to occur at 87 locations, including 
those at the extreme northern and southern end of the species' 
historical geographic range. An assessment of the species' distribution 
in 1993, using records that were limited to the area between the 
Monterey Peninsula in Monterey County and the United States--Mexico 
border, found the tidewater goby occurring at four additional sites 
since 1984 (Swift et al. 1993, p. 129). Other locations have been 
identified since 1993, and to date the tidewater goby has been 
documented to have occurred at 135 locations. Of these 135 locations, 
21 (16 percent) are no longer occupied by the tidewater goby.

Habitat

    The lagoons, estuaries, backwater marshes, and freshwater 
tributaries that tidewater goby occupy are dynamic environments subject 
to considerable fluctuations on a seasonal and annual basis. Typically, 
a sandbar forms in the late spring as flow into a lagoon declines 
enough to allow the ocean surf to build up sand at the mouth of the 
lagoon. Winter rains and increased stream flows may bring in 
considerable sediment and dramatically affect the bottom profile and 
substrate composition of a lagoon or estuary. Fine mud and clay either 
move through the

[[Page 8750]]

lagoon or estuary, or settle out in the backwater marshes, while 
heavier sand is left behind. High flows associated with winter rains 
can scour out the lagoon bottom to a lower level, especially after 
breaching the mouth sandbar, with sand building up again after flows 
decline. These dynamic processes result in wetland habitats that, over 
time, move both up or down coast, and inland or coastward.
    The horizontal extent of the lentic (pondlike) wetland habitat 
associated with a particular tidewater goby locality varies and is 
affected, in part, by local precipitation patterns and topography. In 
coastal areas where the topography is steep and precipitation 
relatively low, such as areas adjacent to the Santa Ynez Mountains in 
Santa Barbara County, the habitats occupied by tidewater goby may be a 
few acres in size and only extend a few hundred feet inland from the 
ocean, with backwater marshes small or absent. In other coastal 
settings where topography is less steep and precipitation is more 
abundant, surface streams are larger, and coastal lagoons or estuaries 
may be hundreds of acres in size and extend many miles inland and may 
include extensive backwater marshes (for example, Lake Earl in Del 
Norte County and Ten Mile River in Mendocino County). Some occupied 
locations, such as Bennett's Slough in Monterey County, receive water 
from upstream areas on a year-round basis. Such locations tend to 
possess wetland habitats that are larger and can extend inland for 
several miles. Other occupied locations do not possess stream channels 
or tributaries that provide a considerable amount of water throughout 
the summer or fall months. Such locations, such as Little Pico Creek in 
San Luis Obispo County, tend to possess wetland habitats that extend 
only a short distance inland.

Reproduction

    The tidewater goby has been observed to spawn in every month of the 
year except December (Swenson 1999, p. 107). Reproduction tends to peak 
in late April or May to July, and can continue into November depending 
on seasonal temperature and rainfall. Hellmair's (2011) findings reveal 
year-round reproduction for some tidewater goby populations that have 
high genetic diversity and restricted spawning periods for other 
populations with low genetic diversity. Swenson (1995, p. 31) has 
documented the spawning activities of adult fish or the presence of egg 
clutches at water temperatures between 48 and 77 degrees Fahrenheit 
([deg]F) (9 and 25 degrees Celsius ([deg]C)). Spawning tidewater gobies 
have been documented to breed in water salinities between 1 and 30 
parts per thousand (ppt) (Swenson 1995, p. 31, Smith, in litt. 2012). 
However, tidewater gobies prefer salinities less than 10 ppt (Moyle 
2002, p. 431).

Threats

    The final listing rule for the tidewater goby published in 1994 (59 
FR 5494; February 4, 1994) and the 5-year review (Service 2007) state 
that this species is threatened, or potentially threatened, by: (1) 
Coastal development projects that result in the loss or alteration of 
coastal wetland habitat; (2) water diversions and alterations of water 
flows upstream of coastal lagoons and estuaries that negatively impact 
the species' breeding and foraging activities; (3) groundwater 
overdrafting; (4) channelization of the rivers where the species 
occurs; (5) discharge of agricultural and sewage effluents; (6) cattle 
grazing and feral pig activity that results in increased sedimentation 
of coastal lagoons and riparian habitats, removal of vegetative cover, 
increased ambient water temperatures, and elimination of plunge pools 
and undercut banks utilized by the tidewater goby; (7) introduced 
species that prey on the tidewater goby (e.g., bass (Micropterus spp.), 
rainwater killifish (Lucania parva), and crayfish (Cambarus spp.)); (8) 
the inadequacy of existing regulatory mechanisms; (9) drought 
conditions that result in the deterioration of coastal and riparian 
habitats; and (10) competition with introduced species, such as the 
yellowfin goby (Acanthogobius flavimanus) and chameleon goby 
(Tridentiger trigonocephalus). Lastly, loss of genetic diversity has 
also been recently shown to threaten populations of tidewater goby 
(McCraney et al. 2010, Hellmair 2011).

Climate Change

    Our analyses under the Endangered Species Act include consideration 
of ongoing and projected changes in climate. The terms ``climate'' and 
``climate change'' are defined by the Intergovernmental Panel on 
Climate Change (IPCC). ``Climate'' refers to the mean and variability 
of different types of weather conditions over time, with 30 years being 
a typical period for such measurements, although shorter or longer 
periods also may be used (IPCC 2007, p. 78). The term ``climate 
change'' thus refers to a change in the mean or variability of one or 
more measures of climate (e.g., temperature or precipitation) that 
persists for an extended period, typically decades or longer, whether 
the change is due to natural variability, human activity, or both (IPCC 
2007, p. 78). Various types of changes in climate can have direct or 
indirect effects on species. These effects may be positive, neutral, or 
negative and they may change over time, depending on the species and 
other relevant considerations, such as the effects of interactions of 
climate with other variables (e.g., habitat fragmentation) (IPCC 2007, 
pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh 
relevant information, including uncertainty, in our consideration of 
various aspects of climate change.
    In addition to the threats listed above, tidewater goby populations 
are threatened by global climate change. Sea level rise and 
hydrological changes associated with climate change are having and will 
continue to have significant effects on tidewater goby habitat over the 
next several decades.
    Sea level rise is a result of two phenomena: thermal expansion 
(increased sea water temperatures) and global ice melt (Cayan et al. 
2006, p. 5, National Research Council 2012, p. 33). Between 1897 and 
2006, the observed sea level rise has been approximately 2 millimeters 
(0.08 in) per year, or a total of 20 cm (8 in) over that period 
(Heberger et al. 2009, p. 6). Older estimates projected that sea level 
rise along the California coast would follow a similar rate and reach 
0.2-0.6 meters (m) (0.7-2 feet (ft)) by 2100 (IPCC 2007). Recent 
observations and models indicate that those projections were 
conservative and ignored some critical factors, such as melting of the 
Greenland and Antarctica ice sheets (Heberger et al. 2009, p. 6; 
Rahmstorf 2010, p. 44). Heberger et al. (2009, p. 8) have updated the 
sea level rise projections for California to 1.0-1.4 m (3.3-4.6 ft) by 
2100, while Vermeer and Rahmstorf (2009, p. 21530) calculate the sea 
level rise globally at 0.57-1.9 m (2.4-6.2 ft); in both cases, recent 
estimates were more than twice earlier projections. Combined with 
California's normal dramatic tidal fluctuations and coincidental 
storms--the severity of the latter is projected to increase with more 
frequent El Ni[ntilde]o Southern Oscillations due to increasing surface 
water temperature (Cayan et al. 2006, p. 17)--the effects of sea level 
rise are expected to result in greater coastal erosion (Scripps 
Institution of Oceanography 2012, p. 24) and reach farther inland than 
previously anticipated (Cayan et al. 2006, pp. 48-49; Cayan et al. 
2009, p. 40).
    Park et al. (1989, pp. 1-52) projected that, of the saltmarshes 
along the coast of the contiguous United States: 30 percent would be 
lost with a 0.5-m (1.6-

[[Page 8751]]

ft) sea level rise, 46 percent with a 1-m (3.3-ft) sea level rise, 52 
percent with a 2-m (6.6-ft) sea level rise, and 65 percent with a 3-m 
(9.8-ft) sea level rise. While we cannot project directly to California 
from the estimates of Park et al. (1989, p. 1-52) who focused on the 
east coast and Gulf coast of the United States, we can anticipate that, 
with a projected global sea level rise of up to almost 2 m (6.6 ft), 46 
to 65 percent of the remaining coastal saltmarshes in California would 
be lost by 2100. Applying Heberger et al.'s (2009, p. 8) more 
conservative estimates for California to Park et al.'s calculations, 
with a projected sea level rise of 1.0-1.4 m (3.3-4.6 ft) by 2100, 
somewhere between 46 and 52 percent of the coastal saltmarshes in 
California would be inundated.
    For the tidewater goby, sea level rise estimates based on more 
recent projections, combined with the effects of storms and tidal 
fluctuations, have the potential to transform coastal lagoons into 
primarily saltwater bodies (Cayan et al. 2006, pp. 34, 48-49). More 
severe storms that are likely to result from climate change (Cayan et 
al. 2006, p. 17), especially along the northern coast of California 
(Cayan et al. 2009, p. 38), combined with the higher than normal sea 
levels, will breach lagoon mouths more frequently from the ocean side, 
allowing more saltwater intrusion, altering the physical conditions of 
the tidewater goby's habitat (increased salinity), and disrupting the 
tidewater goby's normal reproduction process that requires closed 
lagoons and a specific range of salinities. The conversion of coastal 
lagoons and estuaries from brackish to primarily saltwater bodies, in 
addition to the inundation and breaching of sandbars, would eliminate 
habitat for tidewater goby in many areas. For a species that exhibits 
metapopulation dynamics and was listed as endangered due to past 
habitat loss and fragmentation of metapopulations, the projection of 
further habitat loss due to sea level rise raises concerns for the 
tidewater goby's survival over the long term.

Summary of Changes From Previously Designated Critical Habitat and 2011 
Proposed Revised Critical Habitat Designation

    In this section we present the differences between what was 
designated in the January 31, 2008, final rule (73 FR 5920), what was 
included in the October 19, 2011, proposed rule (76 FR 64996), and what 
is included in this final designation.
    The 2008 final critical habitat designation (73 FR 5920, January 
31, 2008) consisted of 44 units in Del Norte, Humboldt, Mendocino, 
Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis Obispo, Santa 
Barbara, Ventura, and Los Angeles Counties, California, totaling 10,003 
ac (4,050 ha). In this final critical habitat designation, we have 
designated 65 critical habitat units for the tidewater goby throughout 
its range, including the 44 units designated in the 2008 final rule. Of 
the 21 new units included in this designation, 5 units are within the 
geographical area occupied at the time of listing and 16 units are 
outside the geographical area occupied at the time of listing (Table 
1). Of the 16 new units that are outside the geographical area occupied 
at the time of listing, 8 units are currently occupied (Table 1). These 
16 units are essential for the conservation of the tidewater goby as 
described in the Recovery Plan (Service 2005a).
    This final critical habitat designation for the tidewater goby also 
differs from our October 19, 2011 (76 FR 64996) proposed rule. We 
reviewed and considered comments from the public and peer reviewers on 
the proposed revised designation, and from the public on the draft 
economic analysis published on July 24, 2012 (77 FR 43222). As a result 
of comments received, our final designation differs from our proposed 
designation, as follows:
    (1) Based on information we received in comments regarding our 
proposal to designate unoccupied units, we revised the language in the 
Criteria Used To Identify Critical Habitat section of this final rule 
to clarify our intent. In the proposed rule we stated that, ``We also 
are proposing to designate specific areas outside the geographical area 
occupied by the species at the time of listing that were historically 
occupied, but are presently unoccupied, because such areas are 
essential for the conservation of the species'' (p. 65004). However, we 
did not intend to limit the proposal to only specific areas outside the 
geographical area occupied by the species at the time of listing that 
were historically occupied. Our intent was to consider all areas that 
are essential for the conservation of the species and not only those 
that were known to be historically occupied; we were in error when we 
included ``that were historically occupied, but are presently 
unoccupied'' in the proposed rule. We proposed to designate six units 
that are outside the geographical area occupied by the species at the 
time of listing where the tidewater goby has not been detected 
historically. These units are: Pomponio Creek (SM-2), Bolinas Lagoon 
(MAR-5), Arroyo de la Cruz (SLO-1), Oso Flaco Lake (SLO-12), Arroyo 
Sequit (LA-1), and Zuma Canyon (LA-2). Subsequent to the publication of 
the proposed rule, tidewater gobies have been detected in Pomponio 
Creek (SM-2) (Rischbieter, in litt. 2012). These units are essential 
for the conservation of the tidewater goby as described in the Recovery 
Plan (Service 2005a) and the unit descriptions below.
    (2) We revised and expanded our discussion on tidewater goby 
metapopulation dynamics and provided a discussion on the effects of 
climate change on the tidewater goby and its habitat.
    (3) Based on comments received from the County of Santa Barbara 
pertaining to unit SB-12, Arroyo Paredon Creek, we reassessed the 
topography of the unit as originally proposed and determined that the 
gradient of the upper portion of the unit was a barrier to tidewater 
gobies. The unit now includes approximately 3 ac (1 ha), a net decrease 
of approximately 1 ac (less than 1 ha) from the proposal.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features.
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.

[[Page 8752]]

    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements that provide for a species' life-history 
processes, such as roost sites, nesting grounds, seasonal wetlands, 
water quality, tide, soil type) that, under the appropriate species-
specific circumstances, are essential to the conservation of the 
species.
    Under the second prong of the Act's definition of critical habitat, 
we designate critical habitat in areas outside the geographical area 
occupied by the species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. For 
example, we may determine that an area currently occupied by the 
species but outside the geographical area occupied at the time of 
listing is essential for the conservation of the species and include it 
in the critical habitat designation. We designate critical habitat in 
areas outside the geographical area occupied by a species only when a 
designation limited to its range would be inadequate to ensure the 
conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the Recovery Plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential to 
tidewater goby conservation from studies of this species' habitat, 
ecology, and life history as described in the Critical Habitat section 
of the proposed rule to revise critical habitat published in the 
Federal Register on October 19, 2011 (76 FR 64996), and in the 
information presented below. Additional information can be found in the 
final listing rule published in the Federal Register on February 4, 
1994 (59 FR 5494), and the Recovery Plan for the tidewater goby 
(Service 2005a). We have determined that the tidewater goby requires 
the following physical or biological features:

[[Page 8753]]

Space for Individual and Population Growth and for Normal Behavior

Saline Aquatic Habitat
    The tidewater goby occurs in lagoons, estuaries, and backwater 
marshes that are adjacent to the Pacific Ocean (Wang 1982, p. 14; Irwin 
and Soltz 1984, p. 27; Swift et al. 1989, p. 1; Swenson 1993, p. 3; 
Moyle 2002, p. 431). The tidewater goby is most commonly found in 
waters with relatively low salinities, that is, less than 10 to 12 
parts per thousand (ppt) (Swift et al. 1989, p. 7) (see below for 
further details). This species can, however, tolerate a wide range of 
salinities and is frequently found in coastal habitats with higher 
salinity levels (Swift et al. 1989, p. 7; Worcester 1992, p. 106; Swift 
et al. 1997, pp. 15-22); the species has been collected in salinities 
as high as 42 ppt (Swift et al. 1989, p. 7). The species' tolerance of 
high salinities likely enables it to withstand some exposure to the 
marine environment, which has a salinity of about 35 ppt, allowing it 
to recolonize nearby lagoons and estuaries following flood events 
(Swift et al. 1989, p. 7). However, tidewater gobies have only rarely 
been captured in the marine environment (Swift et al. 1989, p. 7), and 
they appear to enter the ocean only when flushed out of lagoons, 
estuaries, and river mouths by storm events or human-caused breaches of 
sand bars. Salinity tolerance studies indicate that larval stages are 
largely intolerant of high salinities whereas adult tidewater gobies 
can tolerate higher salinities. These findings suggest spawning in 
saline conditions is unlikely to be productive and that migration among 
subpopulations is most likely the result of adult tidewater goby 
movement (Kinziger, in litt. 2012). The goal of the Recovery Plan is to 
preserve the diversity of habitats that occur within the range of the 
species, the metapopulation structure of the species, and genetic 
diversity (Service 2005a, p. 28).
Water Depth, Velocity, and Temperature
    The tidewater goby is most commonly collected in water less than 6 
ft (2 m) deep (Wang 1982, pp. 4-5; Worchester 1992, p. 53). However, 
recently tidewater gobies were collected in Big Lagoon in Humboldt 
County during the breeding season at a water depth of 15 ft (4.6 m) 
(Goldsmith, in litt. 2006a). Whether use of these deeper waters is 
confined to this locality or is more widespread will require additional 
sampling at various depths and locations. The tidewater goby tends to 
avoid currents and concentrate in slack-water areas; this suggests it 
is less likely to occur in areas with a steep gradient or microhabitats 
that have a substantial current. At Pescadero Creek in San Mateo 
County, tidewater gobies were absent from portions of the flowing creek 
that had a surface velocity of 0.15 m per second (0.49 ft per second), 
and the species was instead more densely concentrated in nearby eddies 
with lower water velocities (Swenson 1993, p. 3). Backwater marshes may 
provide important refuges that reduce the likelihood that a substantial 
number of tidewater gobies will be flushed out of the lagoons or 
estuaries and into the marine environment during heavy winter floods 
(Lafferty et al. 1999b, p. 619). Evidence that increased flows can 
eliminate the tidewater goby from a locality is suggested by the 
elimination of the tidewater goby from Waddell Creek in Santa Cruz 
County following a flood event in the winter of 1972-73 (Nelson as 
cited in Swift 1990, p. 2); this creek had been channelized and no 
longer afforded protection from high flows during flood events. 
Likewise, the channelization and elimination of habitat lateral to the 
main stream channel upstream of San Onofre Lagoon in San Diego County 
probably led to the flushing and extirpation of the tidewater goby from 
this locality during a storm in 1993 (Swift et al. 1994, p. 22-23). The 
importance of backwater marshes is also highlighted by the fact that 
tidewater gobies in these habitats can achieve a greater size at 
maturity than in adjacent lagoons and creeks (Swenson 1993, pp. 6-7).
Freshwater Habitat
    The tidewater goby also occurs in freshwater streams up-gradient 
and tributary to brackish habitats; the salinity of these freshwater 
streams is typically less than 0.5 ppt. The available documentation 
demonstrates that, in some areas, tidewater goby can occur 1.6 to 7.3 
mi (2.6 to 11.7 km) upstream from the ocean environment (Irwin and 
Soltz 1984, p. 27; Swift et al. 1997, p. 20; Goldsmith, in litt. 
2006b). Within a 2-hour period, hundreds of tidewater gobies have been 
observed to move upstream of a fixed location into areas in the Santa 
Ynez River 3.2 mi (5.1 km) from the ocean in Santa Barbara County 
(Swift et al. 1997, p. 20). The fact that this many individuals were 
observed to move through an area suggests that freshwater tributaries 
in some riverine systems provide important habitat for individual and 
population growth. We have reviewed a variety of documents to determine 
how far tidewater gobies have been detected upstream from the ocean. 
Goldsmith (in litt. 2006b) found tidewater gobies 1.6 to 2.0 mi (2.6 to 
3.3 km) upstream from the ocean in the Ten Mile River in Mendocino 
County; Swift et al. (1997, p. 18) found tidewater gobies 4.6 mi (7.3 
km) upstream from the ocean in the San Antonio River in Santa Barbara 
County; Swift et al. (1997, p. 20) found tidewater gobies at various 
distances from 3.9 to 7.3 mi (6.2 to 11.7 km) upstream from the ocean 
in the Santa Ynez River in Santa Barbara County; and Holland (1992, p. 
9) found tidewater gobies 3 mi (5 km) upstream from the ocean in the 
Santa Margarita River in San Diego County. Collectively, these data 
suggest the average maximum distance tidewater gobies have been 
detected upstream from the ocean in medium to large rivers is 
approximately 4.0 mi (6.4 km). Other than high stream gradient, the 
reasons for the variation in upstream movement between one locality and 
another have not been determined; salinity could be an important 
factor. Upstream salinity levels may vary with time of year, tidal 
cycles, storm events, and topography. However, Swift et al. (1997, p. 
26) indicate that gradient and lack of barriers (e.g., beaver dams, 
sills) are more important factors than salinity to upstream dispersal.
Sandbars
    Many of the locations occupied by the tidewater goby closely 
correspond to stream drainages. Under natural conditions, these stream 
drainages and the marine environment collectively act to produce 
sandbars that form a barrier between the ocean and the lagoon, estuary, 
backwater marsh, and freshwater stream system (Habel and Armstrong 
1977, p. 39). These sandbars tend to be present during the late spring, 
summer, and fall seasons. The presence of a sandbar can create a lower 
salinity level (5 to 10 ppt) in the area up gradient from the sandbar 
(Carpelan 1967, p. 324) than would otherwise exist if there were no 
sandbar. The tidewater goby is more commonly associated with these 
lower salinity levels than with the salinity levels that occur in the 
ocean or an estuary without a sandbar, that is, about 35 ppt (Swift et 
al. 1989, p. 7). The formation of a sandbar also creates more habitat 
for aquatic organisms because water becomes ponded behind the sandbar. 
Artificial breaching of a sandbar tends to result in a rapid decrease 
in water levels, unlike natural breaching, and increases the likelihood 
that adult tidewater gobies, their nests, and their fry could become 
stranded and die, or become concentrated and subject to greater levels 
of predation pressure by birds or other predators. Natural breaching 
events tend to occur during

[[Page 8754]]

the late winter and early spring when tidewater goby breeding is at a 
low point in the reproduction cycle. Furthermore, tidewater gobies are 
likely able to detect storm events due to the increased inflow of fresh 
water that may cause a natural breaching event and swim upstream or 
take refuge in side channels (Lafferty et al. 1999b, p. 619).
    In Humboldt Bay and the Eel River estuary in Humboldt County, a 
large amount of salt and brackish marsh habitat was historically 
eliminated through the construction of levees and drainage channels. As 
a result, several of the locations occupied by the tidewater goby do 
not contain natural sandbars between the ocean and habitat where the 
species is present. Instead, manmade water control structures such as 
tidegates and culverts exist between tidal waters and the locations 
where tidewater goby occur. These tidegates have been in place for 
decades, and in some cases they provide habitat conditions similar to 
those created by the presence of a seasonal sandbar. In fact, most of 
the occupied tidewater goby habitats in the Humboldt Bay-Eel River 
estuaries are above tidegates. Other examples where large amounts of 
brackish marsh habitat have been lost due to construction of levees and 
drainage channels include the tributaries to the San Francisco Bay, 
Tomales Bay, Waddell Creek, Salinas River, Goleta Slough, Santa Clara 
River, and Mugu Lagoon.

Food

    The tidewater goby feeds mainly on macroinvertebrates (for example 
shrimp and aquatic insects) (Irwin and Soltz 1984, p. 21-23; Swift et 
al. 1989, p. 6; Swenson 1995, p. 87). The diets of adult and juvenile 
tidewater gobies tend to include the same relative abundance of 
different invertebrate species (Swenson and McCray 1996, p. 962). The 
nonnative New Zealand mudsnails (NZMS; Potamopyrgus antipodarum) have 
been a seasonally important component of the diet of tidewater gobies 
in the northcoast region (Hellmair et al. 2011, p. 1).

Cover or Shelter

    A variety of native and nonnative fish species and fish-eating bird 
species, such as egrets (Egretta spp.) and herons (e.g., great blue 
herons (Ardea herodias)), prey on tidewater gobies. Therefore, escape 
cover or shelter is necessary to reduce the likelihood that tidewater 
gobies will be preyed upon. A species' ability to persist when it is 
subject to predation pressure frequently depends on the presence of 
different features that provide a greater level of structure, which 
makes it more likely a prey species will avoid predation (Crowder and 
Cooper 1982, p. 1802; Gilinsky 1984, p. 455). At locations where the 
tidewater goby occurs, submerged and emergent aquatic vegetation has 
the potential to provide cover from predators, and provide a greater 
degree of habitat heterogeneity or structure that would not otherwise 
exist if the aquatic vegetation was absent. Stable lagoons often 
possess dense aquatic vegetation that frequently consists of sago 
pondweed (Potamogeton pectinatus) or widgeon grass (e.g., Ruppia 
maritima and R. cirrhosa). At some locations, juvenile tidewater gobies 
are more prevalent in areas with at least some submergent vegetation as 
compared to other areas with no or little vegetation (Wang 1984, p. 16; 
Swenson 1994, p. 6; Trihey & Associates, Inc. 1996, p. 11). It is 
reasonable to assume that the presence of submerged or emergent 
vegetation reduces the likelihood that tidewater gobies will be preyed 
upon by native and nonnative species because this vegetation provides 
cover and increases the level of habitat heterogeneity in a way that 
makes it more likely that tidewater gobies will persist where they co-
occur with predators.
    Aquatic vegetation may provide some degree of shelter or refuge 
during flash flood events (Lafferty et al. 1999b, p. 621). These 
refuges presumably would result because the presence of vegetation 
would create lower water velocities than might otherwise occur in 
unvegetated areas. Such refuges would be especially important to fish 
species that are not strong swimmers, such as the tidewater goby.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    The eggs of the tidewater goby are laid in burrows that are 
excavated by male fish. The available literature suggests that burrows 
most commonly occur in areas with relatively unconsolidated, clean, 
coarse sand (Swift et al. 1989, p. 8), while other documents 
demonstrate that burrows may also occasionally occur in silt or mud 
(Wang 1982, p. 6). Swenson (1995, p. 148) demonstrated that tidewater 
gobies prefer a sandy substrate in the laboratory. Male tidewater 
gobies remain in the burrow to guard the eggs attached to the burrow 
ceiling and walls. Male tidewater gobies care for the embryos for 
approximately 9 to 11 days until they hatch, rarely if ever emerging 
from the burrow to feed (Swift et al. 1989, p. 4). The tidewater goby 
larvae occupy the water column after the eggs hatch (Wang 1982, p. 15). 
As they mature, they occupy the bottom substrate. Worcester (1992, pp. 
77-79) found that larval tidewater gobies in Pico Creek Lagoon in San 
Luis Obispo County tended to use the deeper portion of the lagoon, that 
is, depths of 29 inches (in) (73 centimeters (cm)) versus 17 in (42 
cm).

Habitats Protected from Disturbance or Representative of the 
Historical, Geographical, and Ecological Distributions of the Species

    The majority of lagoons and estuaries that currently support the 
tidewater goby have experienced some level of disturbance. The lagoons 
and estuaries that support the tidewater goby range in size from 
approximately 3.5 square yards (3 m\2\) of surface area to about 2,000 
ac (800 ha). Most lagoons and estuaries that support the tidewater goby 
range from about 1.25 to 12.5 ac (0.5 to 5 ha). Surveys of tidewater 
goby locations and historical records indicate that size, 
configuration, location, and access by humans are all factors in the 
persistence of populations of this species (Swift et al. 1989, p. 15, 
1994, p. 26-27). Lagoons and estuaries smaller than about 5 ac (2 ha) 
generally have histories of extirpation or population reduction to very 
low levels. These small locations are also often within a mile or so of 
another locality from which recolonization could occur following 
natural episodic catastrophic events. The most stable or largest 
populations today are in locations of intermediate sizes, which range 
from 5 to 125 ac (2 to 50 ha). In many cases these intermediate-sized 
locations likely serve as source populations for the smaller ephemeral 
sites (Lafferty et al. 1999b, p. 1452).
Primary Constituent Elements for Tidewater Goby
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the tidewater goby within the geographical area 
occupied at the time of listing, focusing on the features' primary 
constituent elements. We consider primary constituent elements to be 
the elements of physical or biological features that provide for a 
species' life-history processes that are essential to the conservation 
of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
element (PCE) specific to the tidewater goby is:
    (1) Persistent, shallow (in the range of approximately 0.3 to 6.6 
ft (0.1 to 2 m)),

[[Page 8755]]

still-to-slow-moving lagoons, estuaries, and coastal streams with 
salinity up to 12 ppt, which provide adequate space for normal behavior 
and individual and population growth that contain one or more of the 
following:
    (a) Substrates (e.g., sand, silt, mud) suitable for the 
construction of burrows for reproduction;
    (b) Submerged and emergent aquatic vegetation, such as Potamogeton 
pectinatus, Ruppia maritima, Typha latifolia, and Scirpus spp., that 
provides protection from predators and high flow events; or
    (c) Presence of a sandbar(s) across the mouth of a lagoon or 
estuary during the late spring, summer, and fall that closes or 
partially closes the lagoon or estuary, thereby providing relatively 
stable water levels and salinity.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection. Special management considerations or protection may be 
necessary to eliminate or reduce the magnitude of threats that affect 
the physical or biological features essential to the conservation of 
the tidewater goby. Threats identified in the final listing rule for 
the tidewater goby include:
    (1) Coastal development projects, including proposed restoration 
projects that involve elimination of backwaters and loss or alteration 
of coastal wetland habitat, which may be crucial for flood refuge for 
the tidewater goby;
    (2) water diversions and alterations of water flows upstream of 
coastal lagoons and estuaries that negatively impact the species' 
breeding and foraging habitat and activities;
    (3) groundwater overdrafting that results in reduction of flows and 
negatively impacts the species' breeding and foraging habitat and 
activities;
    (4) channelization of habitats where the species occurs that 
removes or reduces quality of habitat;
    (5) discharge of agricultural and sewage effluents;
    (6) cattle grazing and feral pig activity that result in increased 
sedimentation of coastal lagoons and riparian habitats, remove 
vegetative cover, increase ambient water temperatures, and eliminate 
plunge pools and collapsed undercut banks utilized by the tidewater 
goby;
    (7) introduced species that prey on the tidewater goby (such as 
bass, rainwater killifish, African clawed frogs);
    (8) the inadequacy of existing regulatory mechanisms;
    (9) drought conditions that result in the deterioration of coastal 
and riparian habitats; and
    (10) competition with introduced species, such as the yellowfin 
goby and chameleon goby.
    For the purposes of this final rule, we have combined the ``water 
diversions and alterations of water flows upstream of coastal lagoons 
and estuaries that negatively impact the species' breeding and foraging 
activities'' threats category with ``drought conditions'' and 
``groundwater overdrafting,'' along with the addition of artificial 
breaching of sandbars, into one threat category. The combined category 
is referred to as ``water diversions, alterations of water flows, 
artificial sandbar breaching, and groundwater overdrafting that 
negatively impact the species' breeding and foraging activities.'' 
Similarly, we have combined the two threat categories of ``introduced 
species that prey on the tidewater goby (e.g., bass, African clawed 
frogs)'' and ``competition with introduced species such as the 
yellowfin goby and chameleon goby'' into one category called, 
``introduced species that prey on, or compete with, the tidewater goby 
(for example, yellowfin goby, and bass).'' We also recognize that where 
special management may be necessary, regulatory mechanisms may need to 
be added or amended by local, State, or Federal governmental entities 
if sufficient management is not achievable through voluntary 
mechanisms.
    The tidewater goby's distribution reflects a pattern of occupancy 
and extirpation. The species requires refugia under drought conditions 
and places to recolonize under wetter conditions; otherwise, the 
tidewater goby would be relegated to existing only within those few 
lagoons and estuaries large enough to support it during periods of 
drought. If the suitable localities that are occupied during periods of 
normal precipitation cease to function as tidewater goby habitat due to 
modification or destruction while the localities are unoccupied, the 
metapopulation dynamics may be disrupted and the species may not be 
able to respond by recolonizing unoccupied localities under favorable 
conditions. The tidewater goby is facing numerous threats, including 
habitat loss from multiple sources, habitat fragmentation due to the 
loss of ``stepping stone'' localities between subpopulations, predation 
and nonnative competitors, alterations to hydrology (sandbar breaching, 
channelization, for example), changes in water quality, stochastic 
events such as drought, and the growing and inevitable impact of sea 
level rise. While some of these threats can singly have a substantial 
impact on individual tidewater goby subpopulations, in most cases it is 
the combined impact that is a threat to the species, especially in 
light of global climate change. A more detailed discussion of threats 
to the tidewater goby can be found in the final listing rule (59 FR 
5494, February 4, 1994), and the final Recovery Plan (Service 2005a, 
pp. 16-19).
    We find that the components of the PCE present within all the areas 
we are designating as critical habitat may require special management 
considerations or protection due to threats to the tidewater goby or 
its habitat. Using current information provided in the Recovery Plan 
(Service 2005a, Appendix E) and other information in our files, we have 
identified the components of the PCE that may require special 
management considerations or protection from known threats within each 
of the critical habitat units (see Critical Habitat Designation and 
Table 2 below for a unit-by-unit description). Some of the special 
management actions that may be needed for essential features of 
tidewater goby habitat are briefly summarized below.
    (1) Implement measures to avoid, minimize or mitigate direct and 
indirect loss and modification of tidewater goby habitat due to 
dredging, draining, and filling of lagoons and estuaries. Additional 
management actions should be taken to restore historical tidewater goby 
locations and potential habitats as opportunities become available to 
eliminate, minimize, or mitigate the effects of existing structures and 
past activities that have destroyed or degraded tidewater goby habitat.
    (2) Develop and implement measures to minimize the adverse effects 
due to channelization that can eliminate crucial backwater habitats or 
other flood refuges.
    (3) Implement measures, such as best management practices, for 
managing excessive sedimentation in tidewater goby habitat. Measures 
should be implemented to control sedimentation in tidewater goby 
habitat due to cattle grazing, development, channel modification, 
recreational activity, and agricultural practices.
    (4) Implement measures to prevent further decrease in freshwater 
inflow, water depth, and surface area within

[[Page 8756]]

tidewater goby habitat due to dams, water diversions, and groundwater 
pumping.
    (5) Implement measures to avoid anthropogenic breaching of lagoons 
and use of pumping and other water control structures to regulate water 
levels, to maintain suitable habitat conditions during the summer and 
fall when tidewater goby reproduction is at its highest and freshwater 
inflow is at its lowest.
    (6) Implement measures to improve water quality degraded as a 
result of agricultural runoff and effluent, municipal runoff, golf 
course runoff, sewage treatment effluent, cattle grazing, development, 
oil spills, oil field runoff, toxic waste, and gray-water dumping. 
Also, measures should be implemented to prevent further degradation of 
the water quality due to dikes, tidal gates, and other impedances to 
the natural freshwater/saltwater interface that alter the salinity 
regime in some of the tidewater goby habitats.
    (7) Implement measures to control the abundance and distribution of 
nonnative species.
    (8) Implement measures to restore genetic diversity within 
populations where the natural metapopulation dynamic will be unable to 
do so.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we used the best 
scientific and commercial data available to designate critical habitat. 
We reviewed available information pertaining to the habitat 
requirements of this species. In accordance with the Act and its 
implementing regulation at 50 CFR 424.12(e), we considered whether 
designating areas outside those currently occupied as well as those 
occupied at the time of listing are essential to ensure the 
conservation of the species. We are designating critical habitat in 
areas within the geographical area occupied by the species at the time 
of listing in 1994. We also are designating specific areas outside the 
geographical area occupied by the species at the time of listing 
because such areas are essential for the conservation of the species.
    In revising critical habitat for the tidewater goby, we made 
extensive use of the information in the Recovery Plan (Service 2005a), 
and incorporated the recovery goals and strategy identified in the 
Recovery Plan for the development of our revised designation. We also 
reviewed other relevant information, including peer-reviewed journal 
articles, unpublished reports and materials (for example, survey 
results and expert opinions), the final listing rule (59 FR 5494; 
February 4, 1994), the 2000 final critical habitat rule (65 FR 69693; 
November 20, 2000), the 2006 proposed critical habitat rule (71 FR 
68914; November 28, 2006), the 2008 final critical habitat rule (73 FR 
5920; January 31, 2008), the 2011 proposed critical habitat rule (76 FR 
64996; October 19, 2011), the 5-year review for the tidewater goby 
(Service 2007), and regional databases and GIS coverages, for example, 
the California Natural Diversity Database, and National Wetlands 
Inventory maps. We analyzed this information to identify: (1) Specific 
areas within the geographical area occupied at the time of listing that 
contain the physical or biological features essential to the 
conservation of the tidewater goby and which may require special 
management considerations or protection, and (2) criteria for specific 
areas outside the geographical area occupied at the time of listing 
that are essential for the conservation of the tidewater goby.
    The Recovery Plan focuses on preserving the diversity of tidewater 
goby habitats throughout the range of the species, preserving the 
natural processes of recolonization and population exchange 
(metapopulation dynamics) that enable recovery following natural 
episodic catastrophic events, and preserving genetic diversity (Service 
2005a, p. 28). The conservation of the environmental, morphological, 
and genetic diversity across the range of the species is an important 
consideration in determining specific areas on which are found the 
physical or biological features essential to the conservation of the 
species and other specific areas that are essential for the 
conservation of the tidewater goby. For example, a population's ability 
to successfully adapt to changing environmental conditions is a 
function of the population size and genetic variation of the 
individuals at a given location (Reed and Frankham 2003, p. 233).
    Local adaptations to different environmental conditions and 
morphological differences are likely linked to genetic variations among 
populations. These features may in turn be best protected by: (1) 
Identifying areas that represent the range of environmental, genetic, 
and morphological diversity; and (2) maximizing within these areas the 
protection of contiguous environmental gradients across which selection 
and migration can interact to maintain population viability and 
(adaptive) genetic diversity (Moritz 2002, p. 238). The Recovery Plan 
subdivides the geographical distribution of the tidewater goby into 6 
recovery units, encompassing a total of 26 subunits defined according 
to genetic differentiation and geomorphology. We considered the 
conservation of the tidewater goby in each of the recovery units and 
subunits, as well as the species as a whole, in our analysis.
    Based on the information and recommendations in the Recovery Plan, 
we developed a conservation framework and criteria to identify the 
specific circumstances under which the presence of the components of 
the PCE within the geographical area occupied by the species at the 
time of listing provides the physical or biological features essential 
to the conservation of the tidewater goby, and additionally what areas 
outside the geographical area occupied at the time of listing are 
essential for the conservation of the species.

Areas Within the Geographical Area Occupied at the Time of Listing

    Within the geographical area occupied at the time of listing, the 
specific areas meeting the criteria below are designated as critical 
habitat in this final rule because they provide the physical or 
biological features essential to the conservation of the tidewater 
goby.
    (1) Areas that support source populations (populations where local 
reproductive success is greater than local mortality (Meffe and Carroll 
1994, p. 187)). For the purposes of this designation, we identified 
areas supporting source populations as those that are currently 
occupied and have been consistently occupied for 3 or more consecutive 
years based on survey data and published reports. Source populations 
are more likely to be capable of maintaining populations over many 
years and are, therefore, capable of providing individuals to recruit 
into surrounding subpopulations.
    (2) Areas that support subpopulations within each metapopulation in 
addition to source populations in the event that the source population 
is extirpated due to a natural episodic catastrophic event such as a 
major flood or drought.
    (3) Areas that provide connectivity between metapopulations. These 
areas are likely to act as ``stepping stones'' between more isolated 
populations, and thereby contribute to metapopulation persistence and 
genetic exchange. For the purposes of this designation, we generally 
identified locations that provide connectivity as those within 
approximately 6 mi (10 km) of another location. However, we included a 
few locations that exceeded 6 mi but were

[[Page 8757]]

within the maximum dispersal distance as determined through genetic 
research (Jacobs et al. 2005, p. 52) where there were no other 
locations with suitable habitat in that portion of the coast.

Areas Outside the Geographical Area Occupied at the Time of Listing

    We have determined that the specific areas within the geographical 
area occupied at the time of listing alone are not sufficient to meet 
the recovery goals for the species because:
    (1) The Recovery Plan recommends a targeted program of introduction 
and reintroduction of tidewater gobies into suitable habitat to 
minimize the chance of local extirpations resulting in extinction of a 
broader metapopulation (see the Metapopulation Dynamics section, above, 
for details) and resultant loss of its unique genetic traits (Service 
2005a, p. 29);
    (2) There has been loss and degradation (see the Threats section, 
above, for details) of habitat throughout the species' range since the 
time of listing;
    (3) We anticipate a further loss of habitat in the future due to 
sea-level rise resulting from climate change (see the Climate Change 
section, above, for details); and
    (4) The species needs habitat areas that are arranged spatially in 
a way that will maintain connectivity and allow dispersal within and 
between units (see the Metapopulation Dynamics section, above, for 
details).
    One example of the need to designate areas outside the geographical 
area occupied at the time of listing is where distances between areas 
occupied at the time of listing may make it difficult for tidewater 
goby to disperse from one area to the next. Another example is to help 
prevent the extirpation of a metapopulation in which only one or two 
occupied sites remain. These areas that are outside the geographical 
area occupied at the time of listing include locations that are 
currently occupied and, in a few cases, ones that were historically 
occupied. In some unoccupied areas, the habitat would require some 
management: For example, restoration of a natural breaching regime, 
exotic predator management, or freshwater inflow enhancement.
    Therefore, for areas outside the geographical area occupied at the 
time of listing, those meeting the criteria below are designated as 
critical habitat in this final rule because they are essential for the 
conservation of the species.
    (1) Areas of aquatic habitat in coastal lagoons and estuaries with 
still-to-slow-moving water that allow for the conservation of viable 
metapopulations under varying environmental conditions, such as, for 
example, drought.
    (2) Areas that provide connectivity between source populations or 
may provide connectivity in the future. These areas are likely to act 
as ``stepping stones'' between more isolated populations, and thereby 
contribute to metapopulation persistence and genetic exchange. For the 
purposes of this designation, we generally identified locations that 
provide connectivity as those within approximately 6 mi (10 km) of 
another location.
    (3) Additional areas that may be more isolated but may represent 
unique adaptations to local features (habitat variability, hydrology, 
microclimate). For example, the Eel River (HUM-4) is essential for the 
conservation of tidewater goby because it possesses ecological 
characteristics that are important in maintaining the species' ability 
to adapt to changing environments, including the ability to disperse 
into higher channels and marsh habitat during severe flood events.
    By applying the two sets of criteria to the 26 recovery subunits 
described in the Recovery Plan, we have identified 45 critical habitat 
units within the geographical area occupied by the species at the time 
of listing that we have determined contain the physical or biological 
features essential to the conservation of the tidewater goby and which 
may require special management considerations or protection, and 20 
critical habitat units outside the geographical area occupied by the 
species at the time of listing that we have determined are essential 
for the conservation of the species. Please see Table 1, below, for the 
occupancy status of each of the 65 critical habitat units.
    As emphasized throughout this rule and the Recovery Plan, the 
conservation of the tidewater goby is dependent on maintaining the 
metapopulation dynamics of the species, and we have therefore 
designated all those locations that we determined are essential for 
achieving that goal. In order to maintain metapopulation dynamics, we 
have determined that some locations where tidewater gobies have never 
been found or have not been found in recent years are essential for the 
conservation of the species. It should be noted, however, that some 
subpopulations within a metapopulation tend to decline or disappear 
periodically due to events such as drought and severe flooding, but 
then reappear or increase in abundance during more optimal conditions. 
However, surveys to determine the presence or absence of tidewater 
gobies are not usually conducted every year, and therefore the presence 
of tidewater gobies may have been missed. For example, tidewater gobies 
were known to occur in the San Luis Rey River in 1958. However, the 
river has only been surveyed five times in the last 65 years since 
1958, and tidewater gobies were found in 2010.
    As discussed previously, a metapopulation is generally considered 
to consist of several distinct but related subpopulations that are 
within dispersal distance of each other. Although the individual 
subpopulations may sometimes disappear, the metapopulation as a whole 
is often stable because immigrants from one population (which may, for 
example, be experiencing a population boom) are likely to re-colonize 
habitat which has been left open by the extirpation of another 
population as long as the habitat still remains. They may also emigrate 
to a small population and rescue that population from extirpation. In a 
metapopulation dynamic, connectivity of source populations is crucial, 
and locations considered unoccupied may serve this purpose. Although no 
single tidewater goby subpopulation may be able to guarantee the long-
term survival of this species, the combined effect of many sporadically 
connected subpopulations may. Therefore, although a particular location 
may not be occupied at one point in time, or even for long periods of 
time, that location may be important for maintaining the connectivity 
between subpopulations, and hence contribute to the species' overall 
survival and conservation. For example, although tidewater gobies have 
not been detected in Arroyo del la Cruz, it is within dispersal 
distance of Arroyo del Corral, which is considered currently to be 
occupied in critical habitat. Arroyo de la Cruz is located 
approximately 2.0 mi (3.2 km) north of the Arroyo de Corral. Arroyo de 
la Cruz provides habitat for tidewater gobies that disperse from Arroyo 
del Corral, which may serve to decrease the risk of extirpation of this 
metapopulation through stochastic events. Arroyo de la Cruz is one of 
two locations with suitable habitat within the Central Coast Recovery 
Subunit (CC 1), as described in the Recovery Plan. Therefore, although 
tidewater gobies have not been detected at Arroyo de la Cruz, we 
consider this area to be essential to the conservation of the species 
because it contributes to ensuring the viability of the metapopulation 
because if the subpopulation within the Arroyo de

[[Page 8758]]

Corral unit (SLO-2) is extirpated, the entire metapopulation would be 
lost.
    The process of making exclusions under Section 4(b)(2) considers 
the extent to which habitat restoration would be necessary to support 
the species in areas currently unoccupied. Where restoration is not 
likely due to cost or other factors, the benefits in terms of 
conservation value may not be as strong. Restoration activities would 
benefit all of the critical habitat units in this designation, and some 
form of restoration will be necessary to support the successful 
reintroduction or recolonization of the tidewater goby in the units 
that are unoccupied. For example, some of the unoccupied locations need 
improvements to water quality, barrier removal, exotic species 
management (e.g., Walker Creek, Salinas River, Arroyo de la Cruz, Oso 
Flaco Lake, etc.). However, designation of critical habitat does not 
mandate restoration or management of any areas. However, we determined 
it is feasible to restore all of the unoccupied habitat designated in 
this rule to the point where it can support gobies and we avoided 
designating unoccupied areas that are highly degraded or fragmented and 
not likely restorable (e.g., Los Angeles River, Mugu Lagoon). Such 
areas provide little or no long-term conservation value, and are not 
essential for the conservation of the species.
Mapping
    After determining the lagoons and estuaries necessary for the 
conservation of the tidewater goby by applying criteria outlined above, 
the boundaries of each critical habitat unit were mapped. Unit 
boundaries were based on several factors, including species occurrence 
data that demonstrated where tidewater gobies have been observed, the 
presence of barriers and stream gradients that limit tidewater goby 
movements, and the presence and extent of the essential physical or 
biological features.
    The geographic extent of each critical habitat unit was delineated, 
in part, using existing digital data. To determine the lateral 
boundaries of each critical habitat unit, we most frequently relied on 
the Pacific Institute global climate change model and National Wetland 
Inventory (NWI) maps that were prepared by the Service in 2006. The NWI 
maps are based on the Cowardin classification system (Cowardin et al. 
1979, pp. 1-103). The Service has adopted this classification system as 
its official standard to describe wetland and deepwater habitats. 
Specifically, the following wetland types based on Cowardin (1979, p. 
5) were used to delineate unit boundaries: Lake, Estuarine and Marine 
Deepwater, Estuarine and Marine Wetland, Freshwater Pond, Freshwater 
Emergent Wetland, Freshwater Forested/Shrub Wetland, and Riverine. 
These wetland types have, or are likely to have, components of the PCE 
at various times throughout the year, depending on the season and 
environmental factors such as storm or drought events. In some cases, 
we used existing anthropogenic structures, such as concrete or riprap 
channel linings that occur within wetland habitat types, to delineate 
the lateral boundaries of units. To a lesser extent, we also used 
aerial imagery from the National Agricultural Imagery Program (NAIP) to 
delineate the lateral boundaries of a critical habitat unit where 
insufficient NWI data were available.
    The precise location of tidewater goby habitat at a particular 
locality may vary on a daily, seasonal, and annual basis; the habitats 
occupied by tidewater goby exist in a dynamic environment that varies 
over time. For example, the size and lateral extent of a coastal lagoon 
or estuary varies with daily tide cycles. Flood events may also change 
the precise location where surface water exists within a given lagoon, 
estuary, backwater marsh, or freshwater tributary. Therefore, it is 
appropriate to delineate each critical habitat unit to encompass the 
entire area that may be occupied by tidewater goby on a daily, 
seasonal, or annual basis. This was accomplished by using the 
boundaries delineated on the NWI maps to determine the lateral extent 
of each unit.
    The delineation of the farthest upstream extent of a particular 
critical habitat unit was determined using one of four features that 
include:
    (1) The average distance that tidewater gobies are known to move 
upstream from the ocean (4.0 mi (6.4 km)),
    (2) the presence of barriers, such as culverts that may prevent 
tidewater gobies from moving upstream,
    (3) the presence of a vertical drop, for example more than 4 to 8 
in (10 to 20 cm) high, or steep gradient that precludes tidewater 
gobies from swimming upstream or can act as a barrier that makes it 
less likely tidewater gobies will be able to swim upstream (Swift et 
al. 1997, p. 20)), or
    (4) limited surface water in the tributary up-gradient from the 
lagoon or estuary.
    Each of the above features describes a barrier to upstream 
movement; therefore, the upstream extent of a particular unit was 
determined by whichever barrier was identified first through the 
mapping process regardless of whether or not components of the PCE were 
still present above it.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by bridges, docks, and other structures because such 
lands cannot provide habitat for the tidewater goby. The scale of the 
maps we prepared under the parameters for publication within the Code 
of Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this final rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands will not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action may affect adjacent 
critical habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0085, on our Internet 
sites at http://www.fws.gov/ventura/, and at the field office 
responsible for the designation (see FOR FURTHER INFORMATION CONTACT 
above).
    We are designating as critical habitat lands that we have 
determined are within the geographical area occupied at the time of 
listing and contain sufficient physical or biological features to 
support life-history processes essential to the conservation of the 
species, and lands outside of the geographical area occupied at the 
time of listing that we have determined are essential for the 
conservation of tidewater goby.
    Units within the geographical area occupied at the time of listing 
are designated based on sufficient elements of physical or biological 
features being present to support tidewater goby life processes. Some 
units contain all of the identified elements of physical or biological 
features and support multiple life processes. Some units contain only 
some elements of the physical or biological features necessary to 
support the tidewater goby's particular use of that habitat.

[[Page 8759]]

Final Critical Habitat Designation

    We are designating 65 units as critical habitat for tidewater goby 
(see Table 1 below). The critical habitat areas described below 
constitute our best assessment at this time of areas that meet the 
definition of critical habitat.

                                        Table 1--Occupancy of Tidewater Goby by Designated Critical Habitat Units
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Within the geographical area occupied at
                Unit                            Name                         time of listing?                           Currently occupied \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
DN-1................................  Tillas Slough (Smith     Yes.........................................  Yes.
                                       River).
DN-2................................  Lake Earl/Lake Tolowa..  Yes.........................................  Yes.
HUM-1...............................  Stone Lagoon...........  Yes.........................................  Yes.
HUM-2...............................  Big Lagoon.............  Yes.........................................  Yes.
HUM-3...............................  Humboldt Bay...........  Yes.........................................  Yes.
HUM-4...............................  Eel River..............  No..........................................  Yes.
MEN-1...............................  Ten Mile River.........  Yes.........................................  Yes.
MEN-2...............................  Virgin Creek...........  Yes.........................................  Yes.
MEN-3...............................  Pudding Creek..........  Yes.........................................  Yes.
MEN-4...............................  Davis Lake and           Yes.........................................  Yes.
                                       Manchester State Park
                                       Ponds.
SON-1...............................  Salmon Creek...........  Yes.........................................  Yes.
MAR-1...............................  Estero Americano.......  Yes.........................................  Yes.
MAR-2...............................  Estero de San Antonio..  Yes.........................................  Yes.
MAR-3...............................  Walker Creek...........  No..........................................  No.
MAR-4...............................  Lagunitas (Papermill)    No..........................................  Yes.
                                       Creek.
MAR-5...............................  Bolinas Lagoon \2\.....  No..........................................  No.
MAR-6...............................  Rodeo Lagoon...........  Yes.........................................  Yes.
SM-1................................  San Gregorio Creek.....  Yes.........................................  Yes.
SM-2................................  Pomponio Creek.........  No..........................................  Yes.
SM-3................................  Pescadero-Butano Creek.  Yes.........................................  Yes.
SM-4................................  Bean Hollow Creek        Yes.........................................  Yes.
                                       (Arroyo de Los
                                       Frijoles).
SC-1................................  Waddell Creek..........  Yes.........................................  Yes.
SC-2................................  Scott Creek............  No..........................................  Yes.
SC-3................................  Laguna Creek...........  Yes.........................................  Yes.
SC-4................................  Baldwin Creek..........  Yes.........................................  Yes.
SC-5................................  Moore Creek............  Yes.........................................  Yes.
SC-6................................  Corcoran Lagoon........  Yes.........................................  Yes.
SC-7................................  Aptos Creek............  Yes.........................................  Yes.
SC-8................................  Pajaro River...........  Yes.........................................  Yes.
MN-1................................  Bennett Slough.........  Yes.........................................  Yes.
MN-2................................  Salinas River..........  No..........................................  No.
SLO-1...............................  Arroyo de la Cruz \2\..  No..........................................  No.
SLO-2...............................  Arroyo del Corral......  Yes.........................................  Yes.
SLO-3...............................  Oak Knoll Creek (Arroyo  Yes.........................................  Yes.
                                       Laguna).
SLO-4...............................  Little Pico Creek......  Yes.........................................  Yes.
SLO-5...............................  San Simeon Creek.......  Yes.........................................  Yes.
SLO-6...............................  Villa Creek............  Yes.........................................  Yes.
SLO-7...............................  San Geronimo Creek.....  Yes.........................................  Yes.
SLO-8...............................  Toro Creek.............  Yes.........................................  Yes.
SLO-9...............................  Los Osos Creek.........  No..........................................  Yes.
SLO-10..............................  San Luis Obispo Creek..  Yes.........................................  Yes.
SLO-11..............................  Pismo Creek............  Yes.........................................  Yes.
SLO-12..............................  Oso Flaco Lake \2\.....  No..........................................  No.
SB-1................................  Santa Maria River......  Yes.........................................  Yes.
SB-2................................  Ca[ntilde]ada de las     Yes.........................................  Yes.
                                       Agujas.
SB-3................................  Ca[ntilde]ada de Santa   Yes.........................................  Yes.
                                       Anita.
SB-4................................  Ca[ntilde]ada de         Yes.........................................  Yes.
                                       Alegria.
SB-5................................  Ca[ntilde]ada de Agua    Yes.........................................  Yes.
                                       Caliente.
SB-6................................  Gaviota Creek..........  Yes.........................................  Yes.
SB-7................................  Arroyo Hondo...........  No..........................................  Yes.
SB-8................................  Winchester-Bell Canyon.  Yes.........................................  Yes.
SB-9................................  Goleta Slough..........  No..........................................  Yes.
SB-10...............................  Arroyo Burro...........  No..........................................  Yes.
SB-11...............................  Mission Creek-Laguna     Yes.........................................  Yes.
                                       Channel.
SB-12...............................  Arroyo Paredon.........  No..........................................  Yes.
VEN-1...............................  Ventura River..........  Yes.........................................  Yes.
VEN-2...............................  Santa Clara River......  Yes.........................................  Yes.
VEN-3...............................  J Street Drain-Ormond    Yes.........................................  Yes.
                                       Lagoon.
VEN-4...............................  Big Sycamore Canyon....  No..........................................  Yes.
LA-1................................  Arroyo Sequit \2\......  No..........................................  No.
LA-2................................  Zuma Creek \2\.........  No..........................................  No.
LA-3................................  Malibu Lagoon..........  Yes.........................................  Yes.

[[Page 8760]]

 
LA-4................................  Topanga Creek..........  No..........................................  Yes.
OR-1................................  Aliso Creek............  No..........................................  No.
SAN-1...............................  San Luis Rey River.....  No..........................................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Based on the Recovery Plan and subsequent survey information where available.
\2\ Tidewater gobies have never been recorded from this location; however, regularly scheduled monitoring of these subpopulations has not been
  conducted.

    The approximate area of each critical habitat unit is shown in 
Table 2.

 Table 2--Critical Habitat Units Designated for the Tidewater Goby and Known Threats That May Require Special Management Considerations or Protection of
           the Essential Physical or Biological Features for Units Within the Geographical Area Occupied by the Species at the Time of Listing
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Known threats
                                                                                                                                             that may
                                                                                                                                              require
                                                                                                                                              special
                                                            Federal ac                                      Private ac     Total \1\ ac     management
                        Unit name                              (ha)        State ac (ha)   Local ac (ha)       (ha)            (ha)       considerations
                                                                                                                                           or protection
                                                                                                                                              of the
                                                                                                                                             essential
                                                                                                                                           features \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
DN-1: Tillas Slough (Smith River).......................           0 (0)           0 (0)           0 (0)          21 (8)          21 (8)         2, 3, 5
DN-2: Lake Earl/Lake Tolowa.............................           0 (0)     2,335 (945)           0 (0)       348 (141)   2,683 (1,086)         1, 2, 4
HUM-1: Stone Lagoon.....................................           0 (0)       653 (264)           0 (0)           0 (0)       653 (264)               4
HUM-2: Big Lagoon.......................................           0 (0)     1,527 (618)           0 (0)           2 (1)     1,529 (619)            2, 4
HUM-3: Humboldt Bay.....................................       652 (264)         61 (24)         45 (18)         81 (33)       839 (339)      1, 3, 4, 5
HUM-4: Eel River........................................           0 (0)           5 (2)           0 (0)         34 (13)         39 (15)             N/A
MEN-1: Ten Mile River...................................           0 (0)          17 (7)           0 (0)         56 (23)         73 (30)               4
MEN-2: Virgin Creek.....................................           0 (0)           2 (1)           0 (0)           2 (1)           4 (2)            1, 4
MEN-3: Pudding Creek....................................           0 (0)          10 (4)           1 (1)           6 (2)          17 (7)         1, 2, 4
MEN-4: Davis Lake and Manchester State Park Ponds.......           0 (0)         29 (12)           0 (0)           0 (0)         29 (12)               4
SON-1: Salmon Creek.....................................           0 (0)         47 (19)          14 (6)         47 (19)        108 (44)      1, 2, 4, 5
MAR-1: Estero Americano.................................           0 (0)           0 (0)           0 (0)       465 (188)       465 (188)         1, 4, 5
MAR-2: Estero De San Antonio............................           0 (0)           0 (0)           0 (0)       285 (115)       285 (115)      1, 2, 4, 5
MAR-3: Walker Creek.....................................           0 (0)           9 (4)           0 (0)        109 (44)        118 (48)             N/A
MAR-4: Lagunitas (Papermill) Creek......................       318 (129)       459 (186)           0 (0)        221 (90)       998 (405)             N/A
MAR-5: Bolinas Lagoon...................................         29 (12)           0 (0)     1,048 (424)         37 (15)     1,114 (451)             N/A
MAR-6: Rodeo Lagoon.....................................         40 (16)           0 (0)           0 (0)           0 (0)         40 (16)               1
SM-1: San Gregorio Creek................................           0 (0)         33 (13)           0 (0)          12 (5)         45 (18)            1, 3
SM-2: Pomponio Creek....................................           0 (0)           1 (1)           0 (0)           6 (2)           7 (3)             N/A
SM-3: Pescadero-Butano Creek............................           0 (0)        241 (97)           0 (0)           4 (2)        245 (99)         1, 3, 4
SM-4: Bean Hollow Creek (Arroyo de Los Frijoles)........           0 (0)           3 (1)           0 (0)           7 (3)          10 (4)            1, 2
SC-1: Waddell Creek.....................................           0 (0)         39 (16)           0 (0)         36 (14)         75 (30)         2, 3, 4
SC-2: Scott Creek.......................................           0 (0)         66 (27)           6 (2)           2 (1)         74 (30)             N/A
SC-3: Laguna Creek......................................           0 (0)         26 (11)           0 (0)           0 (0)         26 (11)            2, 4
SC-4: Baldwin Creek.....................................           0 (0)         27 (11)           0 (0)           0 (0)         27 (11)            2, 4
SC-5: Moore Creek.......................................          15 (6)           0 (0)           0 (0)           0 (0)          15 (6)            2, 4
SC-6: Corcoran Lagoon...................................           0 (0)           1 (1)           6 (2)          21 (8)         28 (11)            1, 4
SC-7: Aptos Creek.......................................           0 (0)           9 (4)           0 (0)           0 (0)           9 (4)         1, 3, 4
SC-8: Pajaro River......................................           0 (0)        158 (64)          11 (4)         46 (19)        215 (87)         1, 3, 4
MN-1: Bennett Slough....................................           0 (0)        108 (44)           5 (2)         54 (22)        167 (68)      1, 2, 3, 4
MN-2: Salinas River.....................................        195 (79)         33 (13)           1 (1)        237 (96)       466 (189)             N/A
SLO-1: Arroyo de la Cruz................................           0 (0)         25 (10)           0 (0)           8 (3)         33 (13)             N/A
SLO-2: Arroyo del Corral................................           0 (0)           4 (2)           0 (0)           1 (1)           5 (3)            1, 5
SLO-3: Oak Knoll Creek (Arroyo Laguna)..................           0 (0)           4 (2)           0 (0)           1 (1)           5 (3)            1, 3
SLO-4: Little Pico Creek................................           0 (0)           2 (1)           0 (0)           7 (3)           9 (4)               5
SLO-5: San Simeon Creek.................................           0 (0)          17 (7)           0 (0)           0 (0)          17 (7)         2, 4, 5
SLO-6: Villa Creek......................................           0 (0)          14 (6)           0 (0)           1 (1)          15 (7)      1, 2, 4, 5
SLO-7: San Geronimo Creek...............................           0 (0)           1 (1)           0 (0)           0 (0)           1 (1)               5
SLO-8: Toro Creek.......................................           0 (0)           1 (1)           0 (0)           8 (3)           9 (4)         2, 3, 4
SLO-9: Los Osos Creek...................................           0 (0)         62 (25)           1 (1)          10 (4)         73 (30)             N/A
SLO-10: San Luis Obispo Creek...........................           0 (0)           0 (0)           3 (1)         28 (11)         31 (12)      1, 2, 3, 4
SLO-11: Pismo Creek.....................................           0 (0)          14 (6)           1 (1)           5 (2)          20 (9)         1, 3, 4
SLO-12: Oso Flaco Lake..................................           0 (0)        165 (67)           0 (0)           6 (2)        171 (69)             N/A
SB-1: Santa Maria River.................................           0 (0)           0 (0)         42 (17)       432 (174)       474 (192)      1, 2, 4, 5

[[Page 8761]]

 
SB-2: Ca[ntilde]ada de las Agujas.......................           0 (0)           0 (0)           0 (0)           1 (1)           1 (1)            1, 4
SB-3: Ca[ntilde]ada de Santa Anita......................           0 (0)           0 (0)           0 (0)           3 (1)           3 (1)               4
SB-4: Ca[ntilde]ada de Alegria..........................           0 (0)           0 (0)           0 (0)           2 (1)           2 (1)      1, 2, 4, 5
SB-5: Ca[ntilde]ada de Agua Caliente....................           0 (0)           0 (0)           0 (0)           1 (1)           1 (1)            1, 4
SB-6: Gaviota Creek.....................................           0 (0)          10 (4)           0 (0)           1 (1)          11 (5)      1, 3, 4, 5
SB-7: Arroyo Hondo......................................           0 (0)           0 (0)           0 (0)           1 (1)           1 (1)             N/A
SB-8: Winchester-Bell Canyon............................           0 (0)           0 (0)           1 (1)           5 (2)           6 (3)            2, 4
SB-9: Goleta Slough.....................................           0 (0)           0 (0)        164 (66)         26 (10)        190 (76)             N/A
SB-10: Arroyo Burro.....................................           0 (0)           0 (0)           3 (1)           0 (0)           3 (1)             N/A
SB-11: Mission Creek-Laguna Channel.....................           0 (0)           3 (1)           4 (2)           0 (0)           7 (3)         1, 3, 4
SB-12: Arroyo Paredon...................................           0 (0)           1 (1)           1 (1)           1 (1)           3 (3)             N/A
VEN-1: Ventura River....................................           0 (0)         25 (10)          16 (7)           9 (4)         50 (20)      1, 2, 3, 4
VEN-2: Santa Clara River................................           0 (0)        199 (80)          14 (6)        110 (44)       323 (130)      1, 2, 3, 4
VEN-3: J Street Drain-Ormond Lagoon.....................           0 (0)           5 (2)         49 (20)         67 (27)        121 (49)      1, 2, 3, 4
VEN-4: Big Sycamore Canyon..............................           0 (0)           1 (1)           0 (0)           0 (0)           1 (1)             N/A
LA-1: Arroyo Sequit.....................................           0 (0)           1 (1)           0 (0)           0 (0)           1 (1)             N/A
LA-2: Zuma Canyon.......................................           0 (0)           0 (0)           5 (2)           0 (0)           5 (2)             N/A
LA-3: Malibu Lagoon.....................................           0 (0)         41 (17)           1 (1)          22 (9)         64 (27)      1, 2, 3, 4
LA-4: Topanga Creek.....................................           0 (0)           4 (1)           0 (0)           2 (1)           6 (2)             N/A
OR-1: Aliso Creek.......................................           0 (0)           0 (0)           8 (3)           6 (2)          14 (5)             N/A
SAN-1: San Luis Rey River...............................           0 (0)           3 (1)         49 (20)           4 (2)         56 (23)             N/A
                                                         -----------------------------------------------------------------------------------------------
    Total \1\...........................................     1,249 (506)   6,501 (2,636)     1,501 (611)   2,905 (1,177)  12,156 (4,920)  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
\1\ Area estimates in ac (ha) reflect the entire area within the critical habitat unit boundaries. Area estimates are rounded to the nearest whole
  integer that is equal to or greater than 1.
\2\ Codes of known threats that may require special management considerations or protection of the essential physical or biological features are as
  follows:
1. Coastal development projects that result in the loss or alteration of coastal wetland habitat affecting the PCE components 1a, 1b, or 1c.
2. Water diversions, alterations of water flows, and groundwater overdrafting upstream of coastal lagoons and estuaries that negatively impact the
  species' breeding and foraging activities and the PCE components 1a or 1b.
3. Channelization of habitats where the species occurs affecting the PCE components 1a, 1b, or 1c.
4. Nonpoint- and point-source pollution or discharge of agricultural and sewage effluents that are likely to impact the species' health or breeding and
  foraging activities and the PCE.
5. Cattle grazing that results in increased sedimentation of coastal lagoons and riparian habitats, removes vegetative cover, increases ambient water
  temperatures, and eliminates plunge pools and undercut banks utilized by tidewater goby affecting the PCE.
N/A--Not applicable because location is outside the geographical area occupied by the species at the time of listing.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for tidewater goby, below. The 
first two or three letters in the code for each critical habitat unit 
description reflect the county where the unit occurs: DN = Del Norte, 
HUM = Humboldt, MEN = Mendocino, SON = Sonoma, MAR = Marin, SM = San 
Mateo, SC = Santa Cruz, MN = Monterey, SLO = San Luis Obispo, SB = 
Santa Barbara, VEN = Ventura, LA = Los Angeles, OR = Orange, and SAN = 
San Diego. In Tables 1 and 2 above, these units are listed in 
sequential order from north to south. For the purposes of this 
document, the term ``local ownership'' refers to land owned or managed 
by a city, county, or municipal government entity.

DN-1: Tillas Slough

    DN-1 consists of 21 ac (8 ha) of private lands. This unit is 
located in Del Norte County, approximately 3.0 mi (4.8 km) west of the 
community of Smith River and 8.0 mi (12.8 km) north of Lake Earl/Lake 
Tolowa (DN-2), which is also the next nearest extant subpopulation.
    DN-1 was occupied at the time of listing. This unit supports the 
northernmost tidewater goby subpopulation. DN-1 will support the 
recovery of the tidewater goby subpopulation within the North Coast 
Recovery Unit. This unit is important for maintaining the tidewater 
goby metapopulation in the region, and plays an important role in 
dispersal of the tidewater goby, which could prove vital if certain 
factors, such as climate change, adversely impact the tidewater goby 
habitat locally or to the south. A culvert that serves as a grade 
control structure, which mutes the tide cycle, provides relatively 
stable water levels in this unit (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

[[Page 8762]]

DN-2: Lake Earl/Lake Tolowa

    DN-2 consists of 2,683 ac (1,086 ha). This unit is located in Del 
Norte County, approximately 3 mi (4.8 km) north of the town of Crescent 
City. The unit consists of 2,335 ac (945 ha) of State lands and 348 ac 
(140 ha) of private lands. This unit includes two contiguous lagoons 
(Lake Tolowa and Lake Earl), referred to collectively as Lake Earl. DN-
2 is located 8.0 mi (12.8 km) south of (DN-1), which is also the 
nearest extant subpopulation.
    DN-2 was occupied at the time of listing. The tidewater goby 
subpopulation in DN-2 is likely a source population, which is important 
in maintaining metapopulation dynamics, and hence the long-term 
viability, of the North Coast Recovery Unit.
    DN-2 is representative of extensive coastal lagoons and bays north 
of Cape Mendocino formed over uplifting Holocene sediments on broad 
flat coastal benches. These coastal benches include an intricate 
network of estuaries and other channels that are features essential to 
the conservation of the tidewater goby because they provide refugia 
during seasonal floods and breeding habitat through the full range of 
drought cycles. The water level and salinity within the lagoon varies 
seasonally and annually in response to: (a) Periods of high 
precipitation or drought within its watershed; (b) the timing, 
duration, and frequency of breaching events; (c) the water level in the 
lagoon at the time of breaching; and (d) ocean tidal cycles during and 
immediately following a breach. As a result of natural and human-
induced environmental changes, including artificial breaching, maximum 
water depth within Lake Earl/Lake Tolowa varies during an annual cycle 
from less than 5 ft (1.5 m) deep to more than 10 ft (3 m) deep. The 
distribution of tidewater goby and the PCE within Lake Earl/Lake Tolowa 
changes in response to these dynamic short-term habitat conditions; 
over a multiyear cycle, tidewater goby may persist and breed anywhere 
within the lagoon. McCraney et al. (2010) indicate that artificial 
breaching activities may be reducing genetic diversity in this 
subpopulation by repeated bottlenecking.
    On an intermittent basis, DN-2 possesses a sandbar across the mouth 
of the lagoon or estuary during the majority of the late spring, 
summer, and fall that closes or partially closes the lagoon or estuary, 
and thereby provides relatively stable conditions during those times 
(PCE 1c). PCE 1a and 1b occur throughout the unit, although their 
precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation. The physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to address threats described in Table 2. 
Please see Special Management Considerations or Protection section of 
this rule for a discussion of the threats to tidewater goby habitat and 
potential management considerations.

HUM-1: Stone Lagoon

    HUM-1 consists of 653 ac (264 ha). This unit is located in Humboldt 
County, approximately 11 mi (18 km) north of the City of Trinidad. The 
unit consists entirely of State lands. HUM-1 is located 3.1 mi (5.0 km) 
north of Big Lagoon (HUM-2), which is also the nearest extant 
subpopulation.
    HUM-1 was occupied at the time of listing. The tidewater goby 
subpopulation in HUM-1 is likely a source population, which is 
important in maintaining metapopulation dynamics, and hence the long-
term viability, of the North Coast Recovery Unit.
    On an intermittent basis, HUM-1 possesses a sandbar across the 
mouth of the lagoon or estuary during the majority of the late spring, 
summer, and fall that closes or partially closes the lagoon or estuary, 
and thereby provides relatively stable conditions (PCE 1c). PCE 1a and 
1b occur throughout the unit, although their precise location during 
any particular time period may change in response to seasonal 
fluctuations in precipitation and tidal inundation. The physical or 
biological features essential to the conservation of the species in 
this unit may require special management considerations or protection 
to address threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

HUM-2: Big Lagoon

    HUM-2 consists of 1,529 ac (619 ha). This unit is located in 
Humboldt County, approximately 7 mi (11 km) north of the City of 
Trinidad. The unit consists of 1,527 ac (618 ha) of State lands and 2 
ac (1 ha) of private lands. HUM-2 is located 3.1 mi (5.0 km) south of 
Stone Lagoon (HUM-1), which is also the nearest extant subpopulation.
    HUM-2 was occupied at the time of listing. The tidewater goby 
subpopulation in HUM-2 is likely a source population, which is 
important in maintaining metapopulation dynamics, and hence the long-
term viability, of the North Coast Recovery Unit.
    Mark and recapture surveys for tidewater goby were conducted by 
Humboldt State University in a large cove near the State Park boat ramp 
in Big Lagoon during the fall of 2008, 2009, and 2010, to estimate the 
minimum tidewater goby subpopulation for each year (Hellmair 2011, p. 
47). Results indicate that, in 2008, the tidewater goby subpopulation 
was approximately 21,000 individuals. In 2009, the subpopulation was 
approximately 1.7 to 3.4 million individuals in the cove. In 2010, the 
subpopulation was approximately 30,000 individuals in the same cove. 
Based on the results of this research, which estimated that the 
subpopulation fluctuated between 21,000 and 1.7-3.4 million 
individuals, and the relatively large size of the lagoon, Big Lagoon 
likely has the largest and most robust tidewater goby subpopulation in 
northern California. The results of the study also reflect how variable 
tidewater goby subpopulation numbers can be from year to year in a 
given location.
    On an intermittent basis, HUM-2 possesses a sandbar across the 
mouth of the lagoon or estuary during the majority of the late spring, 
summer, and fall that closes or partially closes the lagoon or estuary, 
and thereby provides relatively stable conditions during those times 
(PCE 1c). PCE 1a and 1b occur throughout the unit, although their 
precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation. The physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to address threats described in Table 2. 
Please see Special Management Considerations or Protection section of 
this rule for a discussion of the threats to tidewater goby habitat and 
potential management considerations.

HUM-3: Humboldt Bay

    HUM-3 consists of 839 ac (339 ha). This unit is located in Humboldt 
County, within an approximate 8-mi (13-km) radius to the north, south, 
and west of the City of Eureka. The unit consists of 652 ac (264 ha) of 
Federal lands, 61 ac (24 ha) of State lands, 45 ac (18 ha) of local 
lands, and 81 ac (33 ha) of private lands. HUM-3 is located 18.4 mi 
(29.7 km) north of the Eel River (HUM-4), which is also the nearest 
extant subpopulation. HUM-3 was

[[Page 8763]]

occupied at the time of listing. The tidewater goby subpopulation in 
HUM-3 is likely a source population, which is important in maintaining 
the metapopulation dynamics, and hence the long-term viability, of the 
North Coast Recovery Unit. This subpopulation may provide essential 
demographic and genetic support to HUM-4, especially after periods of 
extreme floods, for example, after the 1964 ``Christmas Flood,'' when 
the subpopulation of tidewater goby at the Eel River estuary may have 
been extirpated.
    Humboldt Bay and its adjacent marshes and estuaries are a complex 
mixture of natural and human-made aquatic features that have 
experienced many decades of human-induced changes. These changes 
include the construction of levees, tidegates, culverts, and other 
water control structures, and extensive dredging of sandbars. 
Surrounding the Bay itself is a generally broad bench historically 
dominated by mudflats, tidal marshes, estuarine channels, and brackish 
marshes. Substantial portions of these habitats were converted to 
agricultural, urban, and industrial uses in recent history, resulting 
in the loss of as much as 10,000 ac (4,047 ha) of potentially suitable 
tidewater goby habitat. This critical habitat unit consists of a 
complex of interconnected estuary channels and tidegates along the 
eastern edge of Humboldt Bay, which collectively mimic, on a much-
reduced scale, suitable habitat for tidewater goby. Many of these 
channels and marshes are themselves the result of changes to historical 
habitats, and depend on specific, yet generally undocumented, 
management activities, such as dredging or sandbar breaches, for their 
continued function.
    To address the dynamic variability of these habitats resulting from 
seasonal and inter-annual precipitation differences, we have included 
both the actual known locations where the tidewater goby has been 
documented, as well as portions of those channels contiguous to, and 
upchannel or downchannel from, occupied habitat. We have not designated 
Humboldt Bay proper as critical habitat, nor have we proposed major 
channels subject to substantial daily tidal fluctuations, as tidewater 
gobies are not known to breed there. Similarly, we have not designated 
channels that are discontiguous with occupied habitat, nor have we 
included intervening marsh or agricultural lands that may occasionally 
be flooded during severe winter storm events.
    Based on several recent surveys, we have found that the precise 
locations of tidewater goby use within the channel complex during any 
particular year may change in response to variations in precipitation 
and channel hydrology. We anticipate that the persistence of the 
tidewater goby source population within this unit may require 
protection of lagoons and estuaries that are not occupied every year, 
but collectively support a source population through an interconnected 
complex of channels and shallow water habitats. That is, any of the 
several known occupied locations within a channel complex may be used 
by tidewater goby during various years in response to dynamic habitat 
conditions during seasonal, annual, and longer term climatic cycles, 
such as drought.
    PCE 1c (a sandbar(s) across the mouth of a lagoon or estuary) is 
not likely to occur within this unit because a navigable, dredged 
channel with a permanent open connection to the ocean is maintained on 
a regular basis. PCE 1a and 1b occur throughout the unit, although 
their precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation. The physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to address threats described in Table 2. 
Please see Special Management Considerations or Protection section of 
this rule for a discussion of the threats to tidewater goby habitat and 
potential management considerations.

HUM-4: Eel River

    This unit is located in Humboldt County, approximately 4.0 mi (6.5 
ha) northwest of the City of Ferndale. The unit consists of two 
subunits, totaling 5 ac (2 ha) of State lands and 34 ac (13 ha) of 
private lands.
    Both subunits are outside the geographical area occupied by the 
species at the time of listing but are now occupied. The Eel River 
estuary is similar to Humboldt Bay (HUM-3) in that tidewater goby 
subpopulations have been found in isolated populations in severely and 
artificially fragmented habitats, which are often found behind 
tidegates, culverts, and other manmade structures. In Humboldt Bay 
(HUM-3), McCraney et al. (2010, p. 3315) found that artificial 
fragmentation reduced dispersal and gene flow in these subpopulations. 
The same may be true for the Eel River estuary subpopulations with 
isolated populations that are genetically distinct from each other. 
Therefore, until additional information is available regarding 
population genetics, distribution, and other parameters, we consider 
these two areas, the Eel River North Area (Subunit-4a) and the Eel 
River South Area (Subunit-4b), to be distinct from each other. 
Artificially fragmented habitats in the Eel River estuary may have 
genetically isolated or weakened populations of tidewater goby, as has 
been identified in Humboldt Bay (HUM-3) (McCraney et al. 2010, p. 
3315). Current and proposed estuarine restoration projects in the Eel 
River estuary may improve dispersal of tidewater goby, increase genetic 
diversity, and aid in recovery of the species in these locations as 
well.

Subunit-4a (Eel River North Area)

    Subunit-4a encompasses approximately 16 ac (6 ha), and consists of 
5 ac (2 ha) of State lands and 11 ac (4 ha) of private lands. Subunit-
4a is located 3.3 mi (5.3 km) north of Subunit-4b, which is also the 
nearest extant subpopulation. This subunit is essential for the 
conservation of the species because it possesses ecological 
characteristics that are important in maintaining the species' ability 
to adapt to changing environments, including the ability to disperse 
into higher channels and marsh habitat during severe flood events. The 
Eel River delta includes a large, complex estuary with a network of 
diked and natural slough channels with suitable tidewater goby habitat. 
The Eel River delta contains many small unsurveyed slough channels and 
other backwater areas that provide suitable habitat for tidewater goby, 
but it also contains larger channels open to direct tidal influence 
that do not provide suitable habitat and are not included in this 
subunit. This subunit consists of backwater channels and immediately 
adjacent marsh contiguous to the known-occupied habitat.
    This unit is subject to infrequent, yet severe, flooding from the 
nearby Eel River proper. The major flood event of 1964 (``Christmas 
Flood''), and other major floods during the past century, may have 
severely altered habitat in most channels, including those currently 
occupied. Tidewater goby may have survived the flood and resulting loss 
of habitat in the refugia provided in upper channels and swales. 
Alternatively, the species may have been extirpated at the Eel River 
delta during those severe events, and become reestablished through 
recolonization by individuals from Humboldt Bay populations (HUM-3). Of 
particular importance, the Eel River location is at the north end of 
one of the largest natural geographic gaps in the tidewater goby's 
geographic range. The gap

[[Page 8764]]

extends to the Ten Mile River (Mendocino County) to the south, 
representing a coastline distance in excess of 135 mi (217 km).
    This unit is outside the geographical area occupied by the species 
at the time of listing, but is considered to be currently occupied. 
Although Subunit-4a is outside the geographical area occupied at the 
time of listing, it does possess the PCE that is needed to support 
tidewater goby. On an intermittent basis, Subunit-4a possesses a 
sandbar across the mouth of the lagoon or estuary during the majority 
of the late spring, summer, and fall that closes or partially closes 
the lagoon or estuary, and thereby provides relatively stable 
conditions (PCE 1c). PCE 1a and 1b occur throughout the unit, although 
their precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation.

Subunit-4b (Eel River South Area)

    Subunit-4b encompasses approximately 23 ac (9 ha), and consists 
entirely of private lands. Subunit-4b is located 3.3 mi (5.3 km) south 
of Subunit-4a, which is also the nearest extant subpopulation. This 
subunit is essential for the conservation of the species because it 
possesses ecological characteristics that are important in maintaining 
the species' ability to adapt to changing environments, including the 
ability to disperse into higher channels and marsh habitat during 
severe flood events. The Southern Eel River delta includes a large 
complex estuary with a network of diked and natural slough channels, 
and other backwater areas that provide suitable habitat for tidewater 
goby. It also contains larger channels open to direct tidal influence 
that do not provide suitable habitat and are not included in this unit. 
This unit consists of backwater channels and immediately adjacent marsh 
contiguous to the known-occupied habitat.
    This unit is subject to infrequent, yet severe, flooding from the 
nearby Eel River proper. The major flood event of 1964 (``Christmas 
Flood''), and other major floods during the past century, may have 
severely altered habitat in most channels, including those currently 
occupied. Tidewater goby may have survived the flood and resulting loss 
of habitat in the refugia provided in upper channels and swales. 
Alternatively, the species may have been extirpated at the Eel River 
delta during those severe events, and become reestablished through 
recolonization by individuals from Humboldt Bay populations (HUM-3). Of 
particular importance, the Eel River location is at the north end of 
one of the largest natural geographic gaps in the tidewater goby's 
geographic range. The gap extends to the Ten Mile River (Mendocino 
County) to the south, representing a coastline distance in excess of 
135 mi (217 km).
    This unit is outside the geographical area occupied by the species 
at the time of listing, but is considered to be currently occupied. 
Although Subunit-4b was outside the geographical area occupied at the 
time of listing, it does possess the PCE that is needed to support 
tidewater goby. On an intermittent basis, Subunit-4b possesses a 
sandbar across the mouth of the lagoon or estuary during the majority 
of the late spring, summer, and fall that closes or partially closes 
the lagoon or estuary, and thereby provides relatively stable 
conditions (PCE 1c). PCE 1a and 1b occur throughout the unit, although 
their precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation.

MEN-1: Ten Mile River

    MEN-1 consists of 73 ac (30 ha). This unit is located in Mendocino 
County, approximately 9.0 mi (14.5 km) north of the Town of Fort Bragg. 
The unit consists of 17 ac (7 ha) of State lands and 56 ac (23 ha) of 
private lands. MEN-1 is located 5.6 mi (8.9 km) north of the Virgin 
Creek (MEN-2), which is also the nearest extant subpopulation. MEN-1 
was occupied by tidewater goby at the time of listing. The tidewater 
goby subpopulation in MEN-1 is likely a source population, which is 
important in maintaining metapopulation dynamics, and hence the long-
term viability, of the North Coast Recovery Unit. Furthermore, this 
unit is the largest block of habitat along the coast of Mendocino 
County, and is the first location on the southern end of one of the 
longest stretches of unsuitable habitat in the species' range 
(previously described under HUM-4). Thus, this unit is important to 
connect subpopulations within Mendocino County. South of Ten Mile 
River, only three other small isolated locations (MEN-2, 3, 4) occupied 
by the tidewater goby are known to exist across the more than 100 miles 
of rugged coastline between MEN-1 and SON-1 in south coastal Sonoma 
County.
    On an intermittent basis, MEN-1 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

MEN-2: Virgin Creek

    MEN-2 consists of 4 ac (2 ha). This unit is located in Mendocino 
County, approximately 3.5 mi (5.6 km) north of the Town of Fort Bragg. 
The unit consists of 2 ac (1 ha) of State lands and 2 ac (1 ha) of 
private lands. MEN-2 is located 1.2 mi (2.0 km) north of Pudding Creek 
(MEN-3), which is also the nearest extant subpopulation.
    MEN-2 was occupied by tidewater goby at the time of listing. The 
tidewater goby subpopulation in MEN-2 is likely a source population, 
which is important in maintaining metapopulation dynamics, and hence 
the long-term viability, of the North Coast Recovery Unit.
    On an intermittent basis, MEN-2 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

MEN-3: Pudding Creek

    MEN-3 consists of 17 ac (7 ha). This unit is located in Mendocino 
County, approximately 2.5 mi (4.0 km) north of the town of Fort Bragg. 
The unit consists of 10 ac (4 ha) of State lands, 1 ac (less than 1 ha) 
of local lands, and 6 ac (2 ha) of private lands. MEN-3 is located 1.2 
mi (2.0 km) south of Virgin Creek (MEN-2), which is also the nearest 
extant subpopulation.
    MEN-3 was occupied by the tidewater goby at the time of listing.

[[Page 8765]]

This unit allows for connectivity between tidewater goby source 
populations, and thereby supports gene flow and metapopulation dynamics 
within the North Recovery Unit.
    On an intermittent basis, MEN-3 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

MEN-4: Davis Lake and Manchester State Park Ponds

    MEN-4 consists of 29 ac (12 ha). This unit is located in Mendocino 
County, approximately 1.2 mi (1.9 ha) west of the community of 
Manchester. The unit consists entirely of State lands. MEN-4 is located 
32.4 mi (52.2 km) south of Pudding Creek (MEN-3), which is also the 
nearest extant subpopulation.
    MEN-4 was occupied by tidewater goby at the time of listing. The 
tidewater goby subpopulation in MEN-4 is likely a source population, 
which is important in maintaining metapopulation dynamics, and hence 
the long-term viability, of the North Coast Recovery Unit.
    On an intermittent basis, MEN-4 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

SON-1: Salmon Creek

    SON-1 consists of 108 ac (44 ha). This unit is located in Sonoma 
County, approximately 7 mi (11.3 km) south of the community of Jenner. 
The unit consists of 47 ac (19 ha) of State lands, 14 ac (6 ha) local 
lands, and 47 ac (19 ha) of private lands. SON-1 is located 5.3 mi (8.5 
km) north of the Estero Americano unit (MAR-1), which is also the 
nearest extant subpopulation.
    SON-1 was occupied by tidewater goby at the time of listing. The 
geological feature known as Bodega Head separates Salmon Creek and 
Estero Americano, and could reduce the exchange of tidewater goby 
between these two locations. The tidewater goby population in this unit 
is likely a source population, and is therefore important for 
maintaining metapopulation dynamics. This critical habitat unit 
provides habitat for a tidewater goby subpopulation that is important 
to the conservation of one of the genetically distinct recovery units 
as described in the Recovery Plan (Dawson et al. 2001, p. 1172). 
Maintaining this unit will reduce the chance of losing the tidewater 
goby within the Greater Bay Area Recovery Unit, and help conserve 
genetic diversity within the species.
    On an intermittent basis, SON-1 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

MAR-1: Estero Americano

    MAR-1 consists of 465 ac (188 ha). This unit is located in Marin 
County, approximately 3.5 mi (5.7 km) south of Bodega Bay. The unit 
consists entirely of private lands. MAR-1 is located 2.2 mi (3.5 km) 
north of the Estero de San Antonio (MAR-2), which is also the nearest 
extant subpopulation.
    MAR-1 was occupied by tidewater goby at the time of listing. The 
tidewater goby subpopulation in MAR-1 is likely a source population, 
which is important in maintaining metapopulation dynamics, and hence 
the long-term viability, of the Greater Bay Area Recovery Unit.
    On an intermittent basis, MAR-1 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

MAR-2: Estero de San Antonio

    MAR-2 consists of 285 ac (115 ha). This unit is located in Marin 
County, approximately 5.6 mi (9 km) south of Bodega Bay. The unit 
consists entirely of private lands. MAR-2 is located 2.2 mi (3.5 km) 
south of the Estero Americano (MAR-1), which is also the nearest extant 
subpopulation.
    MAR-2 was occupied by tidewater goby at the time of listing. This 
critical habitat unit supports a source population of tidewater goby 
that likely provides individuals that are recruited into surrounding 
subpopulations. Given the close proximity of the MAR-1 and MAR-2 units 
and the dispersal capabilities of tidewater goby, it is likely that the 
two subpopulations have exchanged individuals in the past and will 
continue to exchange individuals in the future. Exchange between these 
subpopulations would bolster the continued sustainable existence of the 
two subpopulations, which would, together with unit SON-1, provide for 
natural colonization of available, but is considered to be currently 
unoccupied, estuaries within the region south of the Russian River and 
north of Point Reyes. This critical habitat unit provides habitat for a 
tidewater goby population that is important to the conservation of one 
of the genetically distinct recovery units as described in the Recovery 
Plan (Dawson et al. 2001, p. 1172). Maintaining this unit will reduce 
the chance of losing the tidewater goby within the Greater Bay Area 
Recovery Unit, and help conserve genetic diversity within the species.

[[Page 8766]]

    On an intermittent basis, MAR-2 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

MAR-3: Walker Creek

    MAR-3 consists of 118 ac (48 ha). This unit is located in Marin 
County, approximately 2.5 mi (4 km) southwest of the Town of Tomales. 
The unit consists of 9 ac (4 ha) of State lands and 109 ac (44 ha) of 
private lands. MAR-3 is located 4.6 mi (7.4 km) southeast of the Estero 
de San Antonio unit (MAR-2), which is also the nearest extant 
subpopulation.
    This unit is outside the geographical area occupied by the species 
at the time of listing and is not considered to be currently occupied. 
However, tidewater gobies were collected at Walker Creek in 1897, but 
were not found in sampling efforts conducted in 1996 or 1999 (Service 
2005a, p. C-8). This unit is identified in the Recovery Plan as a 
potential reintroduction site, and could provide habitat for 
maintaining the tidewater goby metapopulation in the region. MAR-3 is 
essential for the conservation of the species because establishing a 
tidewater goby population in this unit will support the recovery of the 
tidewater goby population within the Greater Bay Area Recovery Unit and 
help facilitate additional colonization of currently unoccupied 
locations.
    Although MAR-3 is outside the geographical area occupied at the 
time of listing and is not currently occupied, it does possess the PCE 
that is needed to support tidewater goby. PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation.

MAR-4: Lagunitas (Papermill) Creek

    MAR-4 consists of 998 ac (405 ha). This unit is located in Marin 
County, approximately 20.5 mi (33 km) south of Bodega Bay. The unit 
consists of 318 ac (129 ha) of Federal lands, 459 ac (186 ha) of State 
lands, and 221 ac (90 ha) of private lands. MAR-4 is located 15.5 mi 
(25.0 km) south of the Estero de San Antonio unit (MAR-2), which is 
also the nearest extant subpopulation. Records indicate tidewater goby 
occurred at this location historically.
    This unit is outside the geographical area occupied by the species 
at the time of listing, but recent surveys have confirmed that the unit 
is currently occupied. This unit is essential for the conservation of 
the species because it is the only known location of the tidewater goby 
to remain within the greater Tomales Bay area. Without this 
subpopulation, there would be no source population within dispersal 
distance of Tomales Bay to maintain the metapopulation dynamics of 
subpopulations within the area. Tomales Bay is designated as ``wetlands 
of significant importance'' under the International Convention on 
Wetlands (http://sanctuarysimon.org/farallones/sections/estuaries/overview.php).
    Although MAR-4 is outside the geographical area occupied at the 
time of listing, it does possess the PCE that is needed to support 
tidewater goby. We do not have information that confirms that PCE 1c (a 
sandbar(s) across the mouth of the lagoon or estuary) is present within 
this unit on at least an intermittent basis. However, PCE 1a and 1b 
occur throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation.

MAR-5: Bolinas Lagoon

    MAR-5 consists of 1,114 ac (451 ha). This unit is located in Marin 
County, approximately 0.5 mi (0.81 km) east of the community of 
Bolinas. The unit consists of 29 ac (12 ha) of Federal Lands, 1,048 ac 
(424 ha) of local lands, and 37 ac (15 ha) of private lands. MAR-5 is 
located 9.4 mi (15.1 km) northwest of the Rodeo Lagoon unit (MAR-6), 
which is also the nearest extant subpopulation.
    This unit is outside the geographical area occupied by the species 
at the time of listing and is not known to be currently occupied, and 
there are no historical tidewater goby records for this location. 
However, this unit is essential for the conservation of the species 
because it provides suitable habitat within potential dispersal 
distance of nearby occupied units, is identified in the Recovery Plan 
as a potential introduction site, and could help maintain tidewater 
goby metapopulations in the region. Bolinas Lagoon is designated as 
``wetlands of significant importance'' under the International 
Convention on Wetlands (http://sanctuarysimon.org/farallones/sections/estuaries/overview.php ).If a tidewater goby subpopulation is 
established in this unit, MAR-5 unit will support the recovery of the 
tidewater goby population within the Greater Bay Recovery Unit and help 
facilitate colonization of currently unoccupied locations.
    Although MAR-5 is outside the geographical area occupied at the 
time of listing and is not currently occupied, it does possess the PCE 
that is needed to support tidewater goby. We do not have information 
that confirms that PCE 1c (a sandbar(s) across the mouth of the lagoon 
or estuary) is present within this unit on at least an intermittent 
basis. However, PCE 1a and 1b occur throughout the unit, although their 
precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation.

MAR-6: Rodeo Lagoon

    MAR-6 consists of 40 ac (16 ha). This unit is located in Marin 
County, approximately 3.8 mi (6 km) north of San Francisco. The unit 
consists entirely of Federal lands. MAR-6 is located 9.4 mi (15.1 km) 
south of Bolinas Lagoon (MAR-5), and is separated from the nearest 
extant subpopulation to the south, San Gregorio Creek (SM-1), by 36 mi 
(58 km).
    MAR-6 was occupied by tidewater goby at the time of listing. MAR-6 
is the only known location where the tidewater goby remains within the 
greater San Francisco Bay Area. This critical habitat unit provides 
habitat for a tidewater goby subpopulation that is important to the 
conservation of one of the genetically distinct recovery units as 
described in the Recovery Plan (Dawson et al. 2001, p. 1172). It also 
provides habitat for a subpopulation of tidewater goby that could 
disperse to other adjoining habitats. Maintaining this unit will reduce 
the chance of losing the tidewater goby in the Greater Bay Recovery 
Unit and help conserve genetic diversity within the species.
    On an intermittent basis, MAR-6 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in

[[Page 8767]]

precipitation and tidal inundation. The physical or biological features 
essential to the conservation of the species in this unit may require 
special management considerations or protection to address threats 
described in Table 2. Please see Special Management Considerations or 
Protection section of this rule for a discussion of the threats to 
tidewater goby habitat and potential management considerations.

SM-1: San Gregorio Creek

    SM-1 consists of 45 ac (18 ha). This unit is located in San Mateo 
County, approximately 28 mi (45 km) south of the San Francisco-San 
Mateo County line. The unit consists of 33 ac (13 ha) of State lands 
and 12 ac (5 ha) of private lands. SM-1 is located 1.5 mi (2.4 km) 
north of Pomponio Creek (SM-2), and is separated from the nearest 
extant subpopulation to the south, Pescadero-Butano Creek (SM-3), by 
3.8 mi (6.1 km).
    SM-1 was occupied by tidewater goby at the time of listing. The 
tidewater goby subpopulation in this unit is likely a source population 
and is, therefore, important for maintaining metapopulation dynamics. 
This critical habitat unit provides habitat for a tidewater goby 
subpopulation that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172). This unit is noted for high densities of 
tidewater goby (Swenson 1993, p. 3).
    On an intermittent basis, SM-1 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SM-2: Pomponio Creek

    SM-2 consists of 7 ac (3 ha). This unit is located in San Mateo 
County, approximately 3.5 mi (5.6 km) north of the community of 
Pescadero. The unit consists of 1 ac (less than 1 ha) of State lands 
and 6 ac (2 ha) of private lands. SM-2 is located 1.5 mi (2.4 km) south 
of the San Gregorio Creek unit (SM-1), which is also the nearest extant 
subpopulation.
    This unit is outside the geographical area occupied by the species 
at the time of listing, but is considered to be currently occupied. 
This unit is essential for the conservation of the species because it 
provides habitat for the species, allows for connectivity between 
tidewater goby source populations from nearby units, supports gene 
flow, and provides for metapopulation dynamics in the region.
    Although SM-2 is outside the geographical area occupied at the time 
of listing, it does possess the PCE that supports tidewater goby. On an 
intermittent basis, SM-2 possesses a sandbar across the mouth of the 
lagoon or estuary during the late spring, summer, and fall that closes 
or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation.

SM-3: Pescadero-Butano Creek

    SM-3 consists of 245 ac (99 ha). This unit is located in San Mateo 
County, approximately 32.0 mi (51.0 km) south of the San Francisco-San 
Mateo County line. This unit consists of 241 ac (97 ha) of State lands 
and 4 ac (2 ha) of private lands. SM-3 is located 2.2 mi (3.5 km) south 
of Pomponio Creek (SM-2), and is separated from the nearest extant 
subpopulation to the south, in Bean Hollow Creek (SM-4), by 3.0 mi (4.8 
km).
    SM-3 was occupied by tidewater goby at the time of listing. This 
unit allows for connectivity between tidewater goby source populations, 
and thereby supports gene flow and metapopulation dynamics within the 
Greater Bay Area Recovery Unit.
    On an intermittent basis, SM-3 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring and early fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SM-4: Bean Hollow Creek (Arroyo de Los Frijoles)

    SM-4 consists of 10 ac (4 ha). This unit is located in San Mateo 
County, approximately 34.8 mi (56.0 km) south of the San Francisco-San 
Mateo County line. The unit consists of 3 ac (1 ha) of State lands and 
7 ac (3 ha) of private lands. SM-4 is located approximately 3.0 mi (4.8 
km) south of the Pescadero-Butano Creek (SM-3), which is also the 
nearest extant subpopulation.
    SM-4 was occupied by tidewater goby at the time of listing. 
Maintaining this unit, together with the two units to the north, will 
reduce the chance of losing the tidewater goby along this important 
coastal range and allow for connectivity between tidewater goby source 
populations, thereby supporting gene flow and metapopulation dynamics 
within the Greater Bay Recovery Unit.
    On an intermittent basis, SM-4 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SC-1: Waddell Creek

    SC-1 consists of 75 ac (30 ha). This unit is located in Santa Cruz 
County, approximately 18 mi (29 km) northwest of the city of Santa 
Cruz. The unit consists of 39 ac (16 ha) of State lands and 36 ac (14 
ha) of private lands. SC-1 is located approximately 5.0 mi (8.0 km) 
north of the Scott Creek (SC-2), which is also the nearest extant 
subpopulation. This unit is at the northern extent of this 
metapopulation as described in the Recovery Plan. Tidewater gobies were 
present in low numbers in 1991 through 1996, but were not detected 
during surveys from 1997 to 2000 (Service 2005a, p. C-12). Tidewater 
gobies were again detected

[[Page 8768]]

during surveys in August 2012 (Rischbieter, in litt. 2012).
    SC-1 was occupied by tidewater goby at the time of listing. This 
unit provides habitat for tidewater gobies dispersing from Scott Creek 
(SC-2), which may serve to decrease the risk of extirpation of this 
metapopulation through stochastic events. This unit allows for 
connectivity between tidewater goby source populations, and thereby 
supports gene flow and metapopulation dynamics within the Greater Bay 
Area Recovery Unit.
    On an intermittent basis, SC-1 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SC-2: Scott Creek

    SC-2 consists of 74 ac (30 ha). This unit is located in Santa Cruz 
County, approximately 11.8 mi (19.0 km) northwest of the City of Santa 
Cruz. The unit consists of 66 ac (27 ha) of State lands, 6 ac (2 ha) of 
local lands, and 2 ac (1 ha) of private lands. SC-2 is located 5.0 mi 
(8.0 km) south of Waddell Creek (SC-1), and is separated from the 
nearest extant subpopulation to the south, in Laguna Creek (SC-3), by 
6.0 mi (9.6 km).
    SC-2 is outside the geographical area occupied by the species at 
the time of listing, but is considered to be currently occupied. This 
unit is essential for the conservation of the species because it 
provides habitat for the species, allows for connectivity between 
tidewater goby source populations from nearby units, supports gene 
flow, and provides for metapopulation dynamics within the Greater Bay 
Area Recovery Unit.
    Although SC-2 is outside the geographical area occupied at the time 
of listing, it does possess the PCE that supports tidewater goby. On an 
intermittent basis, SC-2 possesses a sandbar across the mouth of the 
lagoon or estuary during the late spring, summer, and fall that closes 
or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation.

SC-3: Laguna Creek

    SC-3 consists of 26 ac (11 ha). This unit is located in Santa Cruz 
County, approximately 7.5 mi (12.0 km) west of the City of Santa Cruz. 
The unit consists entirely of State lands. SC-3 is located 6.0 mi (9.6 
km) south of Scott Creek (SC-2), the nearest extant population to the 
north, and is separated from the nearest extant subpopulation to the 
south, in Baldwin Creek (SC-4), by 2.0 mi (3.2 km).
    SC-3 was occupied by tidewater goby at the time of listing. The 
tidewater goby subpopulation in this unit is likely a source population 
and is, therefore, important for maintaining metapopulation dynamics. 
This critical habitat unit provides habitat for a tidewater goby 
population that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172). Together with Baldwin Creek (SC-4) to 
the south, this unit helps conserve the genetic diversity of the 
species.
    On an intermittent basis, SC-3 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SC-4: Baldwin Creek

    SC-4 consists of 27 ac (11 ha). This unit is located in Santa Cruz 
County, approximately 6 mi (9.7 km) west of the City of Santa Cruz. The 
unit consists entirely of State lands. SC-4 is located 2.0 mi (3.2 km) 
south of Laguna Creek (SC-3), and is separated from the nearest extant 
subpopulation to the south, Lombardi Creek (not designated as critical 
habitat), by 0.7 mi (1.2 km).
    SC-4 was occupied by tidewater goby at the time of listing. The 
tidewater goby population in this unit is likely a source population 
and is, therefore, important for maintaining metapopulation dynamics. 
This critical habitat unit provides habitat for a tidewater goby 
population that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172) and, together with Laguna Creek (SC-3) to 
the north, helps conserve genetic diversity within the species.
    On an intermittent basis, SC-4 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SC-5: Moore Creek

    SC-5 consists of 15 ac (6 ha). This unit is located in Santa Cruz 
County, approximately 2.0 mi (3.2 km) west of the City of Santa Cruz. 
The unit consists entirely of Federal lands. SC-5 is located 4.0 mi 
(6.4) south of Baldwin Creek. SC-5 is separated from the nearest extant 
subpopulation to the north, Younger Lagoon (not designated as critical 
habitat), by 0.5 mi (0.8 km).
    SC-5 was occupied by tidewater goby at the time of listing. 
Maintaining this unit will reduce the chance of losing the tidewater 
goby within the Greater Bay Area Recovery Unit, and help conserve 
genetic diversity within the species.
    On an intermittent basis, SC-5 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The

[[Page 8769]]

physical or biological features essential to the conservation of the 
species in this unit may require special management considerations or 
protection to address threats described in Table 2. Please see Special 
Management Considerations or Protection section of this rule for a 
discussion of the threats to tidewater goby habitat and potential 
management considerations.

SC-6: Corcoran Lagoon

    SC-6 consists of 28 ac (11 ha). This unit is located in Santa Cruz 
County, approximately 3 mi (4.8 km) east of the City of Santa Cruz. 
This unit consists of 1 ac (less than 1 ha) of State lands, 6 ac (2 ha) 
of local lands, and 21 ac (8 ha) of private lands. SC-6 is located 4.0 
mi (6.4 km) south of Moore Creek (SC-5), and the unit is separated from 
the nearest extant subpopulation to the south, in Moran Lake (not 
designated as critical habitat), by 0.7 mi (1.1 km).
    SC-6 was occupied by tidewater goby at the time of listing. The 
tidewater goby subpopulation in this unit is likely a source population 
and is, therefore, important for maintaining metapopulation dynamics. 
This critical habitat unit provides habitat for a tidewater goby 
population that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172). Maintaining this unit will reduce the 
chance of losing the tidewater goby within the Greater Bay Area 
Recovery Unit, and help conserve genetic diversity within the species.
    On an intermittent basis, SC-6 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SC-7: Aptos Creek

    SC-7 consists of 9 ac (4 ha). This unit is located in Santa Cruz 
County, approximately 0.5 mi (0.8 km) southwest of the City of Aptos. 
The unit consists entirely of State lands. SC-7 is located 4.1 mi (6.6 
km) east of Corcoran Lagoon (SC-6), and is separated from the nearest 
extant subpopulation to the north, Moran Lake (not designated as 
critical habitat), by 4.2 mi (6.75 km).
    SC-7 was occupied by tidewater goby at the time of listing. The 
tidewater goby population in SC-7 is likely a source population, which 
is important in maintaining metapopulation dynamics, and hence the 
long-term viability, of the Greater Bay Area Recovery Unit.
    On an intermittent basis, SC-7 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SC-8: Pajaro River

    SC-8 consists of 215 ac (87 ha). This unit is located in Santa Cruz 
County, approximately 5 mi (8 km) southwest of the City of Watsonville. 
The unit consists of 158 ac (64 ha) of State lands, 11 ac (4 ha) of 
local lands, and 46 ac (19 ha) of private lands. SC-8 is located 9.7 mi 
(15.6 km) south of Aptos Creek (SC-7), and is separated from the 
nearest extant subpopulation to the south, in Bennett Slough (MN-1), by 
3.0 mi (4.7 km).
    SC-8 was occupied by tidewater goby at the time of listing. 
Maintaining this unit will reduce the chance of losing the tidewater 
goby within the Greater Bay Area Recovery Unit, and help conserve 
genetic diversity within the species.
    On an intermittent basis, SC-8 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

MN-1: Bennett Slough

    MN-1 consists of 167 ac (68 ha). This unit is located in Monterey 
County, approximately 3.7 mi (6 km) northwest of the Town of 
Castroville. This unit consists of 108 ac (44 ha) of State lands, 5 ac 
(2 ha) of local lands, and 54 ac (22 ha) of private lands. MN-1 is 
located 4.1 mi (6.6 km) south of the Pajaro River (SC-8), and is 
separated from the nearest extant subpopulation to the south, Moro Cojo 
Slough (not designated as critical habitat), by 1.3 mi (2.1 km).
    MN-1 was occupied by tidewater goby at the time of listing. The 
tidewater goby population in this unit is likely a source population 
and is, therefore, important for maintaining metapopulation dynamics. 
This critical habitat unit provides habitat for a tidewater goby 
population that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172), and maintaining it will reduce the 
chance of losing the tidewater goby within the Greater Bay Area 
Recovery Unit, and help conserve genetic diversity within the species.
    PCE 1c (a sandbar(s) across the mouth of lagoon or estuary) is not 
likely to occur within this unit because it has a navigable, dredged 
channel with a permanent open connection to the ocean that is 
maintained on a regular basis. However, PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

MN-2: Salinas River

    MN-2 consists of 466 ac (189 ha). This unit is located in Monterey 
County, approximately 7.5 mi (12 km) north of the City of Seaside. The 
unit consists of 195 ac (79 ha) of Federal lands, 33 ac (13 ha) of 
State lands, 1 ac (less than 1 ha) of local lands, and 237 ac (96 ha) 
of

[[Page 8770]]

private lands. Unit MN-2 is located 4.0 mi (8.0 km) south of the 
Bennett Slough unit (MN-1).
    This unit is outside the geographical area occupied by the species 
at the time of listing and is not considered to be currently occupied; 
however, this unit is essential for the conservation of the species. 
Tidewater gobies were last collected here in 1951, but were not present 
during surveys in 1991, 1992, and 2004 (Service 2005a, p. C-16). This 
unit is identified in the Recovery Plan as a potential reintroduction 
site. This unit would provide habitat for tidewater goby that disperse 
from Bennett Slough and Moro Cojo Slough, either through natural means 
or by reintroduction, which may serve to decrease the risk of 
extirpation of this metapopulation through stochastic events. This unit 
will also allow for connectivity between tidewater goby source 
populations, and thereby support gene flow and metapopulation dynamics 
within the Greater Bay Area Recovery Unit. Lastly, this unit is one of 
only three locations in Monterey County that have harbored tidewater 
goby and is one of the two subpopulations in the metapopulation as 
described in the Recovery Plan. Therefore, this unit is especially 
important for ensuring the viability of the metapopulation.
    Although MN-2 is outside the geographical area occupied at the time 
of listing, it does possess the PCE that is needed to support tidewater 
goby. On an intermittent basis, MN-2 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation.

SLO-1: Arroyo de la Cruz

    SLO-1 consists of 33 ac (13 ha). This unit is located in San Luis 
Obispo County, approximately 8.0 mi (13.0 km) northwest of San Simeon. 
The unit consists of 25 ac (10 ha) of State lands and 8 ac (3 ha) of 
private lands. SLO-1 is located approximately 2.0 mi (3.2 km) north of 
the Arroyo de Corral unit (SLO-2), which is also the nearest extant 
subpopulation.
    This unit is outside the geographical area occupied by the species 
at the time of listing and is not known to be currently occupied, and 
there are no historical tidewater goby records for this location. 
However, this unit is essential for the conservation of the species 
because it provides habitat to nearby units and is identified in the 
Recovery Plan as a potential introduction site, and could provide 
habitat for maintaining the tidewater goby metapopulation in the 
region.
    This unit will provide habitat for tidewater goby that disperse 
from Arroyo del Corral through introduction of the species, which may 
serve to decrease the risk of extirpation of this metapopulation 
through stochastic events. This unit is one of two locations with 
suitable habitat within the Central Coast Recovery Subunit (CC 1), as 
described in the Recovery Plan. Therefore, this unit is especially 
important for ensuring the viability of the metapopulation because if 
the subpopulation within the Arroyo de Corral unit (SLO-2) is 
extirpated, the entire metapopulation would be lost.
    Although SLO-1 is outside the geographical area occupied at the 
time of listing and is not currently occupied, it does possess the PCE 
that is needed to support tidewater goby. SLO-1 possesses a sandbar 
across the mouth of the lagoon or estuary during the late spring, 
summer, and fall that closes or partially closes the lagoon or estuary, 
and thereby provides relatively stable conditions (PCE 1c). PCE 1a and 
1b occur throughout the unit, although their precise location during 
any particular time period may change in response to seasonal 
fluctuations in precipitation and tidal inundation.

SLO-2: Arroyo del Corral

    SLO-2 consists of 5 ac (3 ha). This unit is located in San Luis 
Obispo County, approximately 6 mi (9.7 km) northwest of San Simeon. The 
unit consists of 4 ac (2 ha) of State lands and 1 ac (less than 1 ha) 
of private lands. SLO-2 is located 2 mi (3.2 km) south of Arroyo de la 
Cruz (SLO-1) and is separated from the nearest extant subpopulation to 
the south, Oak Knoll Creek (SLO-3), by 4.3 mi (6.9 km).
    SLO-2 was occupied at the time of listing. The tidewater goby 
subpopulation in this unit is likely a source population and is, 
therefore, important for maintaining metapopulation dynamics. This 
critical habitat unit provides habitat for a tidewater goby 
subpopulation that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172). Maintaining this unit will reduce the 
chance of losing the tidewater goby within the Central Coast Recovery 
Unit, and help conserve genetic diversity within the species.
    On an intermittent basis, SLO-2 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

SLO-3: Oak Knoll Creek (Arroyo Laguna)

    SLO-3 consists of 5 ac (3 ha). This unit is located in San Luis 
Obispo County, approximately 2 mi (3.2 km) northwest of San Simeon. The 
unit consists of 4 ac (2 ha) of State lands and 1 ac (less than 1 ha) 
of private lands. SLO-3 is located 4.3 mi (6.9 km) south of Arroyo del 
Corral (SLO-2) and is separated from the nearest extant subpopulation 
to the south, in Arroyo de Tortuga (not designated as critical 
habitat), by 0.5 mi (0.8 km).
    SLO-3 was occupied at the time of listing. This unit allows for 
connectivity between tidewater goby source populations, and thereby 
supports gene flow and metapopulation dynamics within the Central Coast 
Recovery Unit.
    On an intermittent basis, SLO-3 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

SLO-4: Little Pico Creek

    SLO-4 consists of 9 ac (4 ha). This unit is located in San Luis 
Obispo County, approximately 6.7 mi (10.8 km) northwest of the Town of 
Cambria. The

[[Page 8771]]

unit consists of 2 ac (1 ha) of State lands and 7 ac (3 ha) of private 
lands. SLO-4 is located 3.7 mi (5.9 km) south of Oak Knoll Creek (SLO-
3). The unit is separated from the nearest extant subpopulation to the 
north, in Broken Bridge Creek (not designated as critical habitat), by 
1.4 mi (2.2 km).
    SLO-4 was occupied at the time of listing. The tidewater goby 
subpopulation in SLO-4 is likely a source population, which is 
important in maintaining metapopulation dynamics, and hence the long-
term viability, of the Central Coast Recovery Unit.
    On an intermittent basis, SLO-4 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

SLO-5: San Simeon Creek

    SLO-5 consists of 17 ac (7 ha). This unit is located in San Luis 
Obispo County, approximately 3.3 mi (5.3 km) northwest of the Town of 
Cambria. The unit consists entirely of State lands. SLO-5 is located 
3.8 mi (6.1 km) south of Little Pico Creek (SLO-4), and is separated 
from the nearest extant subpopulation to the south, in Santa Rosa Creek 
(not designated as critical habitat), by 2.6 mi (4.2 km).
    SLO-5 was occupied at the time of listing. The tidewater goby 
subpopulation in SLO-5 is likely a source population, which is 
important in maintaining metapopulation dynamics, and hence the long-
term viability, of the Central Coast Recovery Unit.
    On an intermittent basis, SLO-5 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

SLO-6: Villa Creek

    SLO-6 consists of 15 ac (7 ha). This unit is located in San Luis 
Obispo County, approximately 9.6 mi (15.4 km) southeast of Cambria. The 
unit consists of 14 ac (6 ha) of State lands and 1 ac (less than 1 ha) 
of private lands. SLO-6 is located 12.3 mi (19.8 km) south of San 
Simeon Creek (SLO-5), and is separated from the nearest extant 
subpopulation to the south, in San Geronimo Creek (SLO-7), by 2.3 mi 
(3.7 km).
    SLO-6 was occupied at the time of listing. The tidewater goby 
subpopulation in this unit is likely a source population and is, 
therefore, important for maintaining metapopulation dynamics. This 
critical habitat unit provides habitat for a tidewater goby 
subpopulation that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172). Maintaining this unit will reduce the 
chance of losing the tidewater goby within the Central Coast Recovery 
Unit, and help conserve genetic diversity within the species.
    On an intermittent basis, SLO-6 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

SLO-7: San Geronimo Creek

    SLO-7 consists of 1 ac (less than 1 ha). This unit is located in 
San Luis Obispo County, approximately 7.6 mi (12.2 km) northwest of the 
Town of Morro Bay, and approximately 1.4 mi (2.5 km) west of the Town 
of Cayucos. The unit consists entirely of State lands. SLO-7 is located 
2.3 mi (3.7 km) south of Villa Creek (SLO-6), and is separated from the 
nearest extant subpopulation to the south, in Cayucos Creek (not 
designated as critical habitat), by 1.5 mi (2.4 km).
    SLO-7 was occupied at the time of listing. The tidewater goby 
subpopulation in SLO-7 is likely a source population, which is 
important in maintaining metapopulation dynamics, and hence the long-
term viability, of the Central Coast Recovery Unit.
    On an intermittent basis, SLO-7 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

SLO-8: Toro Creek

    SLO-8 consists of 9 ac (4 ha). This unit is located in San Luis 
Obispo County, approximately 2.3 mi (3.7 km) south of the Town of 
Cayucos. The unit consists of 1 ac (less than 1 ha) of State lands and 
8 ac (3 ha) of private lands. SLO-8 is located 5 mi (8.0 km) south of 
San Geronimo Creek (SLO-7), and is separated from the nearest extant 
subpopulation to the north, in Old Creek (not designated as critical 
habitat), by 1.8 mi (2.9 km).
    SLO-8 was occupied at the time of listing. Maintaining this unit 
will reduce the chance of losing the tidewater goby within the Central 
Coast Recovery Unit, and help conserve genetic diversity within the 
species. On an intermittent basis, SLO-8 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular

[[Page 8772]]

time period may change in response to seasonal fluctuations in 
precipitation and tidal inundation. The physical or biological features 
essential to the conservation of the species in this unit may require 
special management considerations or protection to address threats 
described in Table 2. Please see Special Management Considerations or 
Protection section of this rule for a discussion of the threats to 
tidewater goby habitat and potential management considerations.

SLO-9: Los Osos Creek

    SLO-9 consists of 73 ac (30 ha). This unit is located in San Luis 
Obispo County, within the Town of Baywood. The unit consists of 62 ac 
(25 ha) of State lands, 1 ac (less than 1 ha) of local lands, and 10 ac 
(4 ha) of private lands. The unit is separated from the nearest extant 
subpopulation to the north, in Toro Creek (SLO-8), by 8.0 mi (12.8 km). 
Tidewater gobies were present during surveys in 2001 (Service 2005a, p. 
C-21). Prior to the observations in 2001, tidewater goby had not been 
seen here since 1981 (Service 2005a, p. C-21).
    Therefore, SLO-9 is outside the geographical area occupied by the 
species at the time of listing but is currently occupied. This unit is 
essential for the conservation of the species because it provides 
habitat to nearby units and is identified in the Recovery Plan as a 
potential introduction site, and could provide habitat for maintaining 
the tidewater goby metapopulation in the region. Maintaining this unit 
will also reduce the chance of losing the tidewater goby within the 
Central Coast Recovery Unit.
    Although SLO-9 is outside the geographical area occupied at the 
time of listing, it does possess the PCE that is needed to support 
tidewater goby. PCE 1c (a sandbar(s) across the mouth of lagoon or 
estuary) is not likely to occur within this unit because it has a 
navigable channel with an open connection to Morro Bay, which is 
dredged on a regular basis. However, PCE 1a and 1b occur throughout the 
unit, although their precise location during any particular time period 
may change in response to seasonal fluctuations in precipitation and 
tidal inundation.

SLO-10: San Luis Obispo Creek

    SLO-10 consists of 31 ac (12 ha). This unit is located in San Luis 
Obispo County, within the Town of Avila Beach. The unit consists of 3 
ac (1 ha) of local lands, and 28 ac (11 ha) of private lands. The unit 
is separated from the nearest extant subpopulation to the south, in 
Pismo Creek (SLO-11), by 7.0 mi (11.2 km).
    SLO-10 was occupied at the time of listing. The tidewater goby 
subpopulation in this unit is likely a source population and is, 
therefore, important for maintaining metapopulation dynamics. This 
critical habitat unit provides habitat for a tidewater goby 
subpopulation that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172). On an intermittent basis, SLO-10 
possesses a sandbar across the mouth of the lagoon or estuary during 
the late spring, summer, and fall that closes or partially closes the 
lagoon or estuary, and thereby provides relatively stable conditions 
(PCE 1c). PCE 1a and 1b occur throughout the unit, although their 
precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation. The physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to address threats described in Table 2. 
Please see Special Management Considerations or Protection section of 
this rule for a discussion of the threats to tidewater goby habitat and 
potential management considerations.

SLO-11: Pismo Creek

    SLO-11 consists of 20 ac (9 ha). This unit is located in San Luis 
Obispo County, within the Town of Pismo Beach. The unit consists of 14 
ac (6 ha) of State lands, 1 ac (less than 1 ha) of local lands, and 5 
ac (2 ha) of private lands. SLO-11 is located 7 mi (11.2 km) south of 
San Luis Obispo Creek (SLO-10). The unit is separated from the nearest 
extant subpopulation to the south, in Arroyo Grande Creek (not 
designated as critical habitat), by 2.6 mi (4.2 km).
    SLO-11 was occupied at the time of listing. The tidewater goby 
subpopulation in SLO-11 is likely a source population, which is 
important in maintaining metapopulation dynamics, and hence the long-
term viability, of the Conception Recovery Unit. On an intermittent 
basis, SLO-11 possesses a sandbar across the mouth of the lagoon or 
estuary during the late spring, summer, and fall that closes or 
partially closes the lagoon or estuary, and thereby provides relatively 
stable conditions (PCE 1c). PCE 1a and 1b occur throughout the unit, 
although their precise location during any particular time period may 
change in response to seasonal fluctuations in precipitation and tidal 
inundation. The physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to address threats described in Table 2. 
Please see Special Management Considerations or Protection section of 
this rule for a discussion of the threats to tidewater goby habitat and 
potential management considerations.

SLO-12: Oso Flaco Lake

    SLO-12 consists of 171 ac (69 ha). This unit is located in San Luis 
Obispo County, approximately 5 mi (8.0 km) northwest of the City of 
Santa Maria. The unit consists of 165 ac (67 ha) of State lands and 6 
ac (2 ha) of private lands. The unit is separated from the nearest 
extant subpopulation to the south, the Santa Maria River (SB-1), by 4 
mi (6.4 km).
    This unit is outside the geographical area occupied by the species 
at the time of listing and is not known to be currently occupied, and 
there are no historical tidewater goby records for this location. 
However, this unit is essential for the conservation of the species 
because it provides habitat to nearby units and is identified in the 
Recovery Plan as a potential introduction site, and could provide 
habitat for maintaining the tidewater goby metapopulation in the 
region. This unit will provide habitat for tidewater goby that disperse 
from Arroyo Grande Creek and the Santa Maria River, either through 
natural means or by introduction, which may serve to decrease the risk 
of extirpation of this metapopulation through stochastic events. This 
unit would also allow for connectivity between tidewater goby source 
populations, and thereby supports gene flow and metapopulation dynamics 
in this region. Although tidewater goby may be presently precluded from 
this location due to water quality impairments, the California Regional 
Water Control Board is currently working with the Service to remedy 
these impairments. Therefore, we anticipate the habitat at this 
location will be suitable for tidewater goby in the future and have 
determined that this unit is essential for the conservation of the 
species as described above.
    Although SLO-12 is outside the geographical area occupied at the 
time of listing and is not currently occupied, it does possess the PCE 
that is needed to support tidewater goby. On an intermittent basis, 
SLO-12 possesses a sandbar across the mouth of the lagoon or estuary 
during the late spring, summer, and fall that closes or partially 
closes the lagoon or estuary, and thereby

[[Page 8773]]

provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation.

SB-1: Santa Maria River

    SB-1 consists of 474 ac (192 ha). This unit is located in Santa 
Barbara County, approximately 13 mi (21 km) west of the City of Santa 
Maria. The unit consists of 42 ac (17 ha) of local lands and 432 ac 
(175 ha) of private lands. SB-1 is located 4 mi (6.4 km) south of Oso 
Flaco Lake (SLO-12), and is separated from the nearest extant 
subpopulation to the south, in Shuman Canyon (not designated as 
critical habitat; see Application of Section 4(a)(3) of the Act--
Vandenberg Air Force Base section below), by 8.6 mi (13.9 km).
    SB-1 was occupied at the time of listing. The tidewater goby 
subpopulation in this unit is likely a source population and is, 
therefore, important for maintaining metapopulation dynamics. This 
critical habitat unit provides habitat for a tidewater goby 
subpopulation that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172). Maintaining this unit will reduce the 
chance of losing the tidewater goby within the Conception Recovery 
Unit, and help conserve genetic diversity within the species.
    On an intermittent basis, SB-1 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SB-2: Ca[ntilde]ada de las Agujas

    SB-2 consists of 1 ac (less than 1 ha). This unit is located in 
Santa Barbara County, approximately 7.2 mi (11.6 km) west of Gaviota. 
The unit consists entirely of private lands. SB-2 is located 38.8 mi 
(62.5 km) south of the Santa Maria River (SB-1), and is separated from 
the nearest extant subpopulation to the south, in Arroyo El Bulito (not 
designated as critical habitat), by 0.4 mi (0.7 km).
    SB-2 was occupied at the time of listing. This unit allows for 
connectivity between tidewater goby source populations, and thereby 
supports gene flow and metapopulation dynamics within Conception 
Recovery Unit. Furthermore, this unit, and units SB-3, SB-4, SB-5, and 
SB-6, likely act as a metapopulation as defined in the Background 
section. These units are no more than 2.0 mi (3.3 km) from each other, 
which facilitates higher dispersal rates between sites. Because these 
units are of relatively small size in area (1 to 9 ac (less than 1 to 4 
ha)), they are more susceptible to drying or shrinking due to drought 
conditions, which increases the likelihood of local extirpation. 
Lastly, because these units are small, they are likely to be dependent 
upon some degree of periodic exchange of tidewater goby between units 
for any one unit to persist over time. Therefore, designation of 
critical habitat at these five locations is necessary for the 
conservation of the tidewater goby along the Gaviota Coast in Santa 
Barbara County.
    On an intermittent basis, SB-2 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SB-3: Ca[ntilde]ada de Santa Anita

    SB-3 consists of 3 ac (1 ha). This unit is located in Santa Barbara 
County, approximately 5.2 mi (8.4 km) west of Gaviota. The unit 
consists entirely of private lands. SB-3 is located 2.0 mi (3.2 km) 
south of Ca[ntilde]ada de las Agujas (SB-2), and is separated from the 
nearest extant subpopulation to the north, in Ca[ntilde]ada del Agua 
(not designated as critical habitat), by 0.4 mi (0.7 km).
    SB-3 was occupied at the time of listing. This unit is important to 
the conservation of the species because it allows for connectivity 
between tidewater goby source populations, and thereby supports gene 
flow and metapopulation dynamics within the Conception Recovery Unit. 
Furthermore, as described above in SB-2, this unit, and units SB-2, SB-
4, SB-5, and SB-6, likely act as a metapopulation as defined in the 
Background section, and designation of critical habitat at these five 
locations is necessary for the conservation of the tidewater goby along 
the Gaviota Coast in Santa Barbara County.
    On an intermittent basis, SB-3 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SB-4: Ca[ntilde]ada de Alegria

    SB-4 consists of 2 ac (1 ha). This unit is located in Santa Barbara 
County, approximately 3.2 mi (5.1 km) west of Gaviota. The unit 
consists entirely of private lands. SB-4 is located 2.0 mi (3.3 km) 
south of Ca[ntilde]ada de Santa Anita (SB-3), and is separated from the 
nearest extant subpopulation to the south, in Ca[ntilde]ada del Agua 
Caliente (SB-5), by 1.1 mi (1.8 km).
    SB-4 was occupied at the time of listing. This unit is important to 
the conservation of the species because it allows for connectivity 
between tidewater goby source populations, and thereby supports gene 
flow and metapopulation dynamics in this region. Furthermore, as 
described above in SB-2, this unit, and units SB-2, SB-3, SB-5, and SB-
6, likely act as a metapopulation as defined in the Background section, 
and designation of critical habitat at these five locations is 
necessary for the conservation of the tidewater goby along the Gaviota 
Coast in Santa Barbara County.
    On an intermittent basis, SB-4 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or

[[Page 8774]]

partially closes the lagoon or estuary, and thereby provides relatively 
stable conditions (PCE 1c). PCE 1a and 1b occur throughout the unit, 
although their precise location during any particular time period may 
change in response to seasonal fluctuations in precipitation and tidal 
inundation. The physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to address threats described in Table 2. 
Please see Special Management Considerations or Protection section of 
this rule for a discussion of the threats to tidewater goby habitat and 
potential management considerations.

SB-5: Ca[ntilde]ada del Agua Caliente

    SB-5 consists of 1 ac (less than 1 ha). This unit is located in 
Santa Barbara County, approximately 2.1 mi (3.4 km) west of Gaviota. 
This unit consists entirely of private lands. SB-5 is located 1.1 mi 
(1.8 km) south of Ca[ntilde]ada de Alegria (SB-4), which is also the 
nearest extant subpopulation.
    SB-5 was occupied at the time of listing. This critical habitat 
unit provides habitat for a tidewater goby subpopulation that is 
important to the conservation of one of the genetically distinct 
recovery units as described in the Recovery Plan (Dawson et al. 2001, 
p. 1172). This unit helps conserve genetic diversity within the 
species. This unit also allows for connectivity between tidewater goby 
source populations, and thereby supports gene flow and metapopulation 
dynamics in this region. Furthermore, as described above in SB-2, this 
unit, and units SB-2, SB-3, SB-4, and SB-6, likely act as a 
metapopulation as defined in the Background section, and designation of 
critical habitat at these five locations is necessary for the 
conservation of the tidewater goby along the Gaviota Coast in Santa 
Barbara County.
    On an intermittent basis, SB-5 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SB-6: Gaviota Creek

    SB-6 consists of 11 ac (5 ha). This unit is located in Santa 
Barbara County, approximately 0.8 mi (1.3 km) west of Gaviota. This 
unit consists of 10 ac (4 ha) of State lands and 1 ac (less than 1 ha) 
of private lands. SB-6 is located 1.5 mi (2.4 km) south of 
Ca[ntilde]ada del Agua Caliente (SB-5), which is also the nearest 
extant subpopulation.
    SB-6 was occupied at the time of listing. This unit is important to 
the conservation of the species because maintaining it will reduce the 
chance of losing the tidewater goby within the Conception Recovery 
Unit. It also allows for connectivity between tidewater goby source 
populations, and thereby supports gene flow and metapopulation dynamics 
in this region. Furthermore, as described above in SB-2, this unit, and 
units SB-2, SB-3, SB-4, and SB-5, likely act as a metapopulation as 
defined in the Background section, and designation of critical habitat 
at these five locations is necessary for the conservation of the 
tidewater goby along the Gaviota Coast in Santa Barbara County.
    On an intermittent basis, SB-6 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

SB-7: Arroyo Hondo

    SB-7 consists of 1 ac (less than 1 ha). This unit is located in 
Santa Barbara County, approximately 5.0 mi (8.0 km) east of Gaviota. 
This unit consists entirely of private lands. SB-7 is located 5.0 mi 
(8.0 km) south of Gaviota Creek (SB-6), and is separated from the 
nearest extant subpopulation to the south, in Arroyo Quemado (not 
designated as critical habitat), by 1.3 mi (2.0 km).
    This unit is outside the geographical area occupied by the species 
at the time of listing, but is considered to be currently occupied. 
This unit is essential for the conservation of the species because it 
provides habitat to nearby units and could provide habitat for 
maintaining the tidewater goby metapopulation within the Conception 
Recovery Unit. Maintaining this unit will reduce the chance of losing 
the tidewater goby within the Conception Recovery Unit, and help 
conserve genetic diversity within the species.
    Although SB-7 is outside the geographical area occupied at the time 
of listing, it does possess the PCE that supports tidewater goby. On an 
intermittent basis, SB-7 possesses a sandbar across the mouth of the 
lagoon or estuary during the late spring, summer, and fall that closes 
or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation.

SB-8: Winchester/Bell Canyon

    SB-8 consists of 6 ac (3 ha). This unit is located in Santa Barbara 
County, approximately 2.2 mi (3.5 km) west of the community of El 
Encanto Heights. The unit consists of 1 ac (less than 1 ha) of local 
lands and 5 ac (2 ha) of private lands. SB-8 is located 6.0 mi (9.6 km) 
north of Goleta Slough (SB-9), and is separated from the nearest extant 
subpopulation to the north, Tecolote Canyon (not designated as critical 
habitat), by 0.3 mi (0.4 km).
    SB-8 was occupied at the time of listing. This unit is important to 
the conservation of the species because it allows for connectivity 
between tidewater goby source populations, and thereby supports gene 
flow and metapopulation dynamics in this region. On an intermittent 
basis, SB-8 possesses a sandbar across the mouth of the lagoon or 
estuary during the late spring, summer, and fall that closes or 
partially closes the lagoon or estuary, and thereby provides relatively 
stable conditions (PCE 1c). PCE 1a and 1b occur throughout the unit, 
although their precise location during any particular time period may 
change in response to seasonal fluctuations in precipitation and tidal 
inundation. The physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to address threats described in Table 2. 
Please see Special Management Considerations or

[[Page 8775]]

Protection section of this rule for a discussion of the threats to 
tidewater goby habitat and potential management considerations.

SB-9: Goleta Slough

    SB-9 consists of 190 ac (76 ha). This unit is located in Santa 
Barbara County, within the City of Goleta. The unit consists of 164 ac 
(66 ha) of local lands and 26 ac (10 ha) of private lands. SB-9 is 
located 6.0 mi (9.6 km) south of Winchester/Bell Canyon (SB-8), and is 
separated from the nearest extant subpopulation to the north, Devereux 
Slough (not designated as critical habitat), by 4.0 mi (6.4 km).
    This unit is outside the geographical area occupied by the species 
at the time of listing, but is currently occupied. This unit is 
essential for the conservation of the species because it provides 
habitat for the species, allows for connectivity between tidewater goby 
source populations from nearby units, supports gene flow, and provides 
for metapopulation dynamics within the Conception Recovery Unit.
    Although SB-9 is outside the geographical area occupied at the time 
of listing, it does possess the PCE that is needed to support tidewater 
goby. On an intermittent basis, SB-9 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation.

SB-10: Arroyo Burro

    SB-10 consists of 3 ac (1 ha). This unit is located in Santa 
Barbara County, approximately 3.6 mi (5.8 km) west of the City of Santa 
Barbara. The unit consists entirely of local lands. SB-10 is located 
4.0 mi (6.4 km) north of Mission Creek-Laguna Channel (SB-11), which is 
also the nearest extant subpopulation.
    This unit is outside the geographical area occupied by the species 
at the time of listing, but is considered to be currently occupied. 
This unit is essential for the conservation of the species because it 
provides habitat for the species, allows for connectivity between 
tidewater goby source populations from nearby units, supports gene 
flow, and provides for metapopulation dynamics within the Conception 
Recovery Unit.
    Although SB-10 is outside the geographical area occupied at the 
time of listing, it does possess the PCE that is needed to support 
tidewater goby. On an intermittent basis, SB-10 possesses a sandbar 
across the mouth of the lagoon or estuary during the late spring, 
summer, and fall that closes or partially closes the lagoon or estuary, 
and thereby provides relatively stable conditions (PCE 1c). PCE 1a and 
1b occur throughout the unit, although their precise location during 
any particular time period may change in response to seasonal 
fluctuations in precipitation and tidal inundation.

SB-11: Mission Creek-Laguna Channel

    SB-11 consists of 7 ac (3 ha). This unit is located in Santa 
Barbara County, within the City of Santa Barbara. The unit consists of 
3 ac (1 ha) of State lands and 4 ac (2 ha) of local lands. SB-11 is 
located 4.0 mi (6.4 km) south of Arroyo Burro (SB-10), and is separated 
from the nearest extant subpopulation to the south, in Sycamore Creek 
(not designated as critical habitat), by 1.0 mi (1.5 km).
    SB-11 was occupied at the time of listing. The tidewater goby 
subpopulation in SB-11 is likely a source population, which is 
important in maintaining metapopulation dynamics, and hence the long-
term viability, of the Conception Recovery Unit.
    On an intermittent basis, SB-11 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

SB-12: Arroyo Paredon

    SB-12 consists of 3 ac (1 ha). This unit is located in Santa 
Barbara County, within the City of Santa Barbara. The unit consists of 
1 ac (less than 1 ha) of State lands, 1 ac (less than 1 ha) of local 
lands, and 1 ac (less than 1 ha) of private lands. SB-12 is located 8.0 
mi (12.8 km) south of Mission Creek-Laguna Channel (SB-11), and is 
separated from the nearest extant subpopulation to the south, in 
Carpinteria Creek (not designated as critical habitat), by 2.7 mi (4.3 
km).
    This unit is outside the geographical area occupied by the species 
at the time of listing, but is considered to be currently occupied. 
This unit is essential for the conservation of the species because it 
provides habitat for the species, allows for connectivity between 
tidewater goby source populations from nearby units, supports gene 
flow, and provides for metapopulation dynamics within the Conception 
Recovery Unit.
    Although SB-12 is outside the geographical area occupied at the 
time of listing, it does possess the PCE that is needed to support 
tidewater goby. On an intermittent basis, SB-12 possesses a sandbar 
across the mouth of the lagoon or estuary during the late spring, 
summer, and fall that closes or partially closes the lagoon or estuary, 
and thereby provides relatively stable conditions (PCE 1c). PCE 1a and 
1b occur throughout the unit, although their precise location during 
any particular time period may change in response to seasonal 
fluctuations in precipitation and tidal inundation.

VEN-1: Ventura River

    VEN-1 consists of 50 ac (21 ha). This unit is located in Ventura 
County, within the City of Ventura. The unit consists of 25 ac (10 ha) 
of State lands, 16 ac (7 ha) of local lands, and 9 ac (4 ha) of private 
lands. VEN-1 is located 4.3 mi (7.0 km) north of the Santa Clara River 
(VEN-2), which is also the nearest extant subpopulation.
    VEN-1 was occupied at the time of listing. The tidewater goby 
population in this unit is likely a source population and is, 
therefore, important for maintaining metapopulation dynamics. This 
critical habitat unit provides habitat for a tidewater goby 
subpopulation that is important to the conservation of one of the 
genetically distinct recovery units as described in the Recovery Plan 
(Dawson et al. 2001, p. 1172). Maintaining this unit will reduce the 
chance of losing the tidewater goby within the LA/Ventura Recovery 
Unit, and help conserve genetic diversity within the species.
    On an intermittent basis, VEN-1 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The

[[Page 8776]]

physical or biological features essential to the conservation of the 
species in this unit may require special management considerations or 
protection to address threats described in Table 2. Please see Special 
Management Considerations or Protection section of this rule for a 
discussion of the threats to tidewater goby habitat and potential 
management considerations.

VEN-2: Santa Clara River

    VEN-2 consists of 323 ac (130 ha). This unit is located in Ventura 
County, approximately 4 mi (6.4 km) southeast of the City of Ventura. 
This unit consists of 199 ac (80 ha) of State lands, 14 ac (6 ha) of 
local lands, and 110 ac (44 ha) of private lands. VEN-2 is located 4.3 
mi (7.0 km) south of the Ventura River unit (VEN-1), which is also the 
nearest extant subpopulation.
    VEN-2 was occupied by tidewater goby at the time of listing. The 
tidewater goby subpopulation in VEN-2 is likely a source population, 
which is important in maintaining metapopulation dynamics, and hence 
the long-term viability, of the LA/Ventura Recovery Unit Recovery Unit. 
This unit is known to have tens of thousands of tidewater goby during 
certain times of the year (Dellith, pers. comm. 2010), and is 
considered one of the largest tidewater goby populations in southern 
California.
    On an intermittent basis, VEN-2 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation. The physical or biological 
features essential to the conservation of the species in this unit may 
require special management considerations or protection to address 
threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

VEN-3: J Street Drain-Ormond Lagoon

    VEN-3 consists of 121 ac (49 ha). This unit is located in Ventura 
County, approximately 1 mi (1.6 km) east of Port Hueneme. This unit 
consists of 5 ac (2 ha) of State lands, 49 ac (20 ha) of local lands, 
and 67 ac (27 ha) of private lands. VEN-3 is located 4.3 mi (6.9 km) 
south of the Santa Clara River (VEN-2), which is also the nearest 
extant subpopulation.
    VEN-3 was occupied at the time of listing. This unit allows for 
connectivity between tidewater goby source populations, and thereby 
supports gene flow and metapopulation dynamics within the LA/Ventura 
Recovery Unit. On an intermittent basis, VEN-3 possesses a sandbar 
across the mouth of the lagoon or estuary during the late spring, 
summer, and fall that closes or partially closes the lagoon or estuary, 
and thereby provides relatively stable conditions (PCE 1c). PCE 1a and 
1b occur throughout the unit, although their precise location during 
any particular time period may change in response to seasonal 
fluctuations in precipitation and tidal inundation. The physical or 
biological features essential to the conservation of the species in 
this unit may require special management considerations or protection 
to address threats described in Table 2. Please see Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to tidewater goby habitat and potential management 
considerations.

VEN-4: Big Sycamore Canyon [Note that the Recovery Plan refers to this 
location as ``Sycamore Canyon'']

    VEN-4 consists of 1 ac (less than 1 ha). This unit is located in 
Ventura County, approximately 12.0 mi (19.3 km) northwest of the City 
of Malibu. The unit consists entirely of State lands. VEN-4 is located 
5.0 mi (8.0 km) north of Arroyo Sequit (LA-1), and is separated from 
the nearest extant subpopulation to the north, in the Calleguas Creek 
(not designated as critical habitat), by 5.0 mi (8.0 km).
    This unit is outside the geographical area occupied by the species 
at the time of listing, but is considered to be currently occupied. 
This unit is essential for the conservation of the species because it 
provides habitat for the species, allows for connectivity between 
tidewater goby source populations from nearby units, supports gene 
flow, and provides for metapopulation dynamics within the LA/Ventura 
Recovery Unit.
    Although VEN-4 is outside the geographical area occupied at the 
time of listing, it does possess the PCE that is needed to support 
tidewater goby. On an intermittent basis, VEN-4 possesses a sandbar 
across the mouth of the lagoon or estuary during the late spring, 
summer, and fall that closes or partially closes the lagoon or estuary, 
and thereby provides relatively stable conditions (PCE 1c). PCE 1a and 
1b occur throughout the unit, although their precise location during 
any particular time period may change in response to seasonal 
fluctuations in precipitation and tidal inundation.

LA-1: Arroyo Sequit

    LA-1 consists of 1 ac (less than 1 ha). This unit is located in Los 
Angeles County, approximately 7.5 mi (12.0 km) northwest of the City of 
Malibu. The unit consists entirely of State lands. LA-1 is located 5.0 
mi (8 km) south of Big Sycamore Canyon (VEN-4), which is the nearest 
extant subpopulation.
    This unit is outside the geographical area occupied by the species 
at the time of listing, is not known to be currently occupied, and 
there are no historical tidewater goby records for this location. 
However, this unit is essential for the conservation of the species 
because it is identified in the Recovery Plan as a potential 
introduction site, and could provide habitat for maintaining the 
tidewater goby metapopulation in the region. This unit will provide 
habitat for tidewater goby that may be introduced, which may serve to 
decrease the risk of extirpation of this metapopulation through 
stochastic events. This unit would also allow for connectivity between 
tidewater goby source populations, and thereby supports gene flow and 
metapopulation dynamics within the LA/Ventura Recovery Unit.
    Although LA-1 is outside the geographical area occupied at the time 
of listing and is not currently occupied, it does possess the PCE that 
is needed to support tidewater goby. On an intermittent basis, LA-1 
possesses a sandbar across the mouth of the lagoon or estuary during 
the late spring, summer, and fall that closes or partially closes the 
lagoon or estuary, and thereby provides relatively stable conditions 
(PCE 1c). PCE 1a and 1b occur throughout the unit, although their 
precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation.

LA-2: Zuma Canyon

    LA-2 consists of 5 ac (2 ha). This unit is located in Los Angeles 
County, approximately 7.5 mi (12.0 km) northwest of the City of Malibu. 
The unit consists entirely of local lands administered by Los Angeles 
County. LA-2 is located 6.8 mi (11 km) south of Arroyo Sequit (LA-1), 
and is separated from the nearest extant subpopulation to the south, in 
the Malibu Lagoon (LA-3), by 10.0 mi (16.0 km).
    LA-2 is outside the geographical area occupied by the species at 
the time of listing, is not known to be currently occupied, and there 
are no historical tidewater goby records for this location. However, 
this unit is essential for the

[[Page 8777]]

conservation of the species because it could provide habitat to nearby 
occupied units and is identified in the Recovery Plan as a potential 
introduction site, and it could provide habitat for maintaining the 
tidewater goby metapopulation within the LA/Ventura Recovery Unit. This 
unit will provide habitat for tidewater goby that are introduced, which 
may serve to decrease the risk of extirpation of this metapopulation 
through stochastic events. This unit would also allow for connectivity 
between tidewater goby source populations, and thereby supports gene 
flow and metapopulation dynamics within the LA/Ventura Recovery Unit.
    Although LA-2 is outside the geographical area occupied at the time 
of listing and is not currently occupied, it does possess the PCE that 
is needed to support tidewater goby. On an intermittent basis, LA-2 
possesses a sandbar across the mouth of the lagoon or estuary during 
the late spring, summer, and fall that closes or partially closes the 
lagoon or estuary, and thereby provides relatively stable conditions 
(PCE 1c). PCE 1a and 1b occur throughout the unit, although their 
precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation.

LA-3: Malibu Lagoon

    LA-3 consists of 64 ac (27 ha). This unit is located in Los Angeles 
County, approximately 0.6 mi (1 km) east of Malibu Beach. The unit 
consists of 41 ac (27 ha) of State lands, 1 ac (less than 1 ha) of 
local lands, and 22 ac (9 ha) of private lands. LA-3 is located 6.0 mi 
(9.6 km) north of Topanga Canyon (LA-4), which is also the nearest 
extant subpopulation.
    LA-3 was occupied at the time of listing. The tidewater goby 
subpopulation in LA-3 is likely a source population, which is important 
in maintaining metapopulation dynamics, and hence the long-term 
viability, of the LA/Ventura Recovery Unit. LA-3 supports one of the 
two remaining extant populations of tidewater goby within Los Angeles 
County.
    On an intermittent basis, LA-3 possesses a sandbar across the mouth 
of the lagoon or estuary during the late spring, summer, and fall that 
closes or partially closes the lagoon or estuary, and thereby provides 
relatively stable conditions (PCE 1c). PCE 1a and 1b occur throughout 
the unit, although their precise location during any particular time 
period may change in response to seasonal fluctuations in precipitation 
and tidal inundation. The physical or biological features essential to 
the conservation of the species in this unit may require special 
management considerations or protection to address threats described in 
Table 2. Please see Special Management Considerations or Protection 
section of this rule for a discussion of the threats to tidewater goby 
habitat and potential management considerations.

LA-4: Topanga Creek

    LA-4 consists of 6 ac (2 ha). This unit is located in Los Angeles 
County, approximately 5.5 mi (8.9 km) northwest of the City of Santa 
Monica. The unit consists of 4 ac (1 ha) of State lands and 2 ac (1 ha) 
of private lands. LA-4 is located 6.0 mi (9.6 km) south of Malibu 
Lagoon (LA-3), which is also the nearest extant subpopulation.
    This unit is outside the geographical area occupied by the species 
at the time of listing, but is currently occupied. Tidewater gobies 
were first detected at this locality in 2001 (Service 2005a, p. C-30). 
Tidewater goby in Topanga Creek are probably derived from fish that 
dispersed from Malibu Creek. This unit is essential for the 
conservation of the species because it allows for connectivity between 
tidewater goby source populations, and thereby supports gene flow and 
metapopulation dynamics within the LA/Ventura Recovery Unit. This 
location is one of the two remaining locations in Los Angeles County 
known to be occupied by tidewater goby.
    Although LA-4 is outside the geographical area occupied at the time 
of listing, it does possess the PCE that is needed to support tidewater 
goby. On an intermittent basis, LA-4 possesses a sandbar across the 
mouth of the lagoon or estuary during the late spring, summer, and fall 
that closes or partially closes the lagoon or estuary, and thereby 
provides relatively stable conditions (PCE 1c). PCE 1a and 1b occur 
throughout the unit, although their precise location during any 
particular time period may change in response to seasonal fluctuations 
in precipitation and tidal inundation.

OR-1: Aliso Creek

    OR-1 consists of 14 ac (5 ha). This unit is located in Orange 
County, within the City of Laguna Beach. The unit consists of 8 ac (3 
ha) of local lands and 6 ac (2 ha) of private lands. OR-1 is located 
13.5 mi (21.7 km) north of the San Mateo Creek (not designated as 
critical habitat, see Application of Section 4(a)(3) of the Act--Marine 
Corps Base Camp Pendleton section below), which supports the nearest 
extant subpopulation.
    This unit is outside the geographical area occupied by the species 
at the time of listing, and is not known to be currently occupied. OR-1 
was last known to be occupied in 1977 (Swift et al. 1989, p. 1). The 
reason for the extirpation of the historical subpopulation at this site 
is unknown. However, this unit is essential for the conservation of the 
species because it would aid recovery of the tidewater goby in the 
genetically unique South Coast Recovery Unit. The Recovery Plan notes 
that the species should be reintroduced into as many localities as 
possible to the north and south of MCB Camp Pendleton (Service 2005a, 
p. G-16). Aliso Creek is identified in the Recovery Plan as a potential 
reintroduction site (Service 2005a, p. G-20). If tidewater goby become 
established at this location, this unit's primary function would be to 
help maintain the genetic diversity of the Southern Coast Recovery Unit 
(especially Recovery Subunit SC1). Moreover, a level of population 
redundancy would help prevent the extirpation of a metapopulation in 
which only one or two occupied sites remain, which is the case for 
Recovery Subunit SC1.
    Although OR-1 is outside the geographical area occupied at the time 
of listing and is not currently occupied, it does possess the PCE that 
is needed to support tidewater goby. On an intermittent basis, OR-1 
possesses a sandbar across the mouth of the lagoon or estuary during 
the late spring, summer, and fall that closes or partially closes the 
lagoon or estuary, and thereby provides relatively stable conditions 
(PCE 1c). PCE 1a and 1b occur throughout the unit, although their 
precise location during any particular time period may change in 
response to seasonal fluctuations in precipitation and tidal 
inundation.

SAN-1: San Luis Rey River

    SAN-1 consists of 56 ac (23 ha). This unit is located in San Diego 
County, within the City of Oceanside. The unit consists of 3 ac (1 ha) 
of State lands, 49 ac (20 ha) of local lands, and 4 ac (2 ha) of 
private lands. SAN-1 is located approximately 2.5 mi (4.0 km) south of 
the Santa Margarita River (not designated as critical habitat; see 
Application of Section 4(a)(3) of the Act--Marine Corps Base Camp 
Pendleton section below), which supports the nearest known extant 
subpopulation.
    This unit is outside the geographical area occupied by the species 
at the time of listing, but tidewater gobies were detected at this 
location in 2010

[[Page 8778]]

(Lafferty 2010, not paginated), which indicates that this location is 
one of the suite of occupied and intermittently occupied locations that 
contributes to tidewater goby metapopulation on MCB Camp Pendleton. 
This unit is essential for the conservation of the species because it 
serves as one of a limited number of locations that contribute toward 
metapopulation dynamics of the genetically unique South Coast Recovery 
Unit. As discussed in the Metapopulation Dynamics section, the number 
of subpopulations is important to the long-term stability of a 
metapopulation. As such, SAN-1 will help the species to survive and 
support the recovery of the tidewater goby population within the South 
Coast Recovery Unit, even potentially facilitating natural 
recolonization of currently unoccupied locations to the south. The 
Recovery Plan notes that the species should be reintroduced into as 
many localities as possible to the north and south of MCB Camp 
Pendleton (Service 2005a, p. G-16). The San Luis Rey River was 
identified in the Recovery Plan as a potential reintroduction site 
(Service 2005a, p. G-20). Prior to 2010, tidewater gobies were last 
detected in this unit in 1958 (Lafferty, pers. comm. 2010). This unit 
now represents the southernmost occupied area of the species' 
distribution, and is important for maintaining the tidewater goby 
metapopulation in the region.
    Although SAN-1 is outside the geographical area occupied at the 
time of listing, it does possess the PCE that is needed to support 
tidewater goby. On an intermittent basis, SAN-1 possesses a sandbar 
across the mouth of the lagoon or estuary during the late spring, 
summer, and fall that closes or partially closes the lagoon or estuary, 
and thereby provides relatively stable conditions (PCE 1c). PCE 1a and 
1b occur throughout the unit, although their precise location during 
any particular time period may change in response to seasonal 
fluctuations in precipitation and tidal inundation.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of this consultation, we document compliance with the 
requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for tidewater goby. As discussed 
above, the role of critical habitat is to support life-history needs of 
the species and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that

[[Page 8779]]

designates critical habitat, activities involving a Federal action that 
may destroy or adversely modify such habitat, or that may be affected 
by such designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the tidewater goby. These activities include, but are 
not limited to:
    (1) Actions that would channelize or divert water reducing the 
amount of space that is available for individual and population growth 
and normal behavior, and reduce or eliminate sites for breeding, 
reproduction, and rearing (or development) of offspring.
    (2) Actions that would substantially alter the natural hydrologic 
regime upstream of the designated critical habitat units. Such 
activities could include, but are not limited to, ground water pumping 
or surface water diversion activities, construction of impoundments or 
flood control structures, or the release of water in excess of levels 
that historically occurred. These activities could result in atypical 
reduction or increases in the amount of water that is present in the 
aquatic habitats that tidewater goby occupy, and alter salinity 
conditions that support this species.
    (3) Actions that would substantially alter the channel morphology 
of the designated critical habitat units, or the areas up-gradient from 
these units. Such activities could include, but are not limited to, 
channelization projects, road and bridge projects, removal of 
substrates, destruction and alteration of riparian vegetation, 
reduction of available floodplain, and removal of gravel or floodplain 
terrace materials. These activities could result in increased water 
velocities and flush large numbers of tidewater goby into the ocean 
especially during flood events.
    (4) Actions that would result in the discharge of agricultural and 
sewage effluents, or chemical or biological pollutants into the aquatic 
habitats where tidewater goby occur. Such activities could include, but 
are not limited to, grazing, fertilizer application, sewage treatment, 
pesticide application, and herbicide application. These activities 
could degrade the water quality where tidewater goby live, introduce 
toxic substances that can poison individual fish, adversely affect fish 
immune systems, and decrease the amount of oxygen in aquatic habitats 
where the species occurs.
    (5) Actions that would cause atypical levels of sedimentation in 
coastal wetland habitats or remove vegetative cover that stabilizes 
stream banks. Such activities could include, but are not limited to, 
grazing or mining activities, road construction projects, off-road 
vehicle use, and other watershed and floodplain-disturbance activities. 
These activities could have the potential to alter the amount and 
composition of the substrate in the habitats where tidewater goby 
occur, and thereby affect the species' ability to construct breeding 
burrows.
    (6) Actions that would result in the artificial breaching of lagoon 
habitats. Such activities could include, but are not limited to, lagoon 
breaching for mosquito control, flood management, and recreational 
opportunities such as creating surf breaks. These activities could 
reduce the amount of space that is available for individual and 
population growth; strand and desiccate tidewater goby adults, fry, or 
eggs; and increase the risk they will be preyed upon by native or 
nonnative predators as they become concentrated and exposed as water 
levels drop.
    (7) Actions that would create barriers that prevent tidewater goby 
from accessing areas they would normally be able to access. These 
activities, which may include, but are not limited to, water 
diversions, road crossings, and sills. These activities could reduce 
the amount of space that is available for individual and population 
growth, and reduce the number and extent of sites for breeding, 
reproduction, and rearing (or development) of offspring.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consulted with the military on the development and 
implementation of INRMPs for installations with listed species. We 
analyzed INRMPs developed by military installations located within the 
range of the critical habitat designation for tidewater goby to 
determine if they are exempt under section 4(a)(3) of the Act. The 
following areas are Department of Defense lands with completed, 
Service-approved INRMPs within the areas identified as meeting the 
definition of critical habitat.
Approved INRMPs
    Vandenberg Air Force Base (VAFB) and Marine Corps Base (MCB) Camp 
Pendleton have approved INRMPs. The U.S. Air Force and Marine Corps (on 
VAFB and MCB Camp Pendleton, respectively) have committed to working 
closely with us, and the State (California Department of Fish and Game 
(CDFG) and California Department of Parks and Recreation (CDPR)) with 
regard to lands leased by MCB Camp Pendleton, to continually refine the 
existing INRMPs as part of the Sikes Act's INRMP review process. Based 
on our review of the INRMPs for these military installations, and in 
accordance with section 4(a)(3)(B)(i) of the Act, we have determined 
that the lands within these installations identified as meeting the 
definition of critical habitat are subject to the INRMPs, and that 
conservation efforts identified in these INRMPs will provide a benefit 
to the tidewater goby (see the following sections that detail this 
determination for each installation). Therefore, lands within these 
installations are exempt from critical habitat designation under 
section

[[Page 8780]]

4(a)(3)(B) of the Act. We are not including approximately 727 ac (294 
ha) of habitat on VAFB, and approximately 1,156 ac (468 ha) of habitat 
on MCB Camp Pendleton, in this critical habitat designation because of 
this exemption.
    Table 3 below provides approximate areas (ac, ha) of lands that 
meet the definition of critical habitat, but are exempt from 
designation under section 4(a)(3)(B) of the Act.

  Table 3--Exemptions From Critical Habitat Designation for the Tidewater Goby Under Section 4(a)(3) of the Act
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting the
                                                                 definition of critical  Areas exempted in acres
                         Specific area                              habitat in acres            (Hectares)
                                                                       (Hectares)
----------------------------------------------------------------------------------------------------------------
Shuman Canyon.................................................                   16 (7)                   16 (7)
San Antonio Creek.............................................                  63 (25)                  63 (25)
Santa Ynez River..............................................                638 (258)                638 (258)
Ca[ntilde]ada Honda...........................................                    4 (2)                    4 (2)
Jalama Creek..................................................                    6 (2)                    6 (2)
San Mateo Creek...............................................                  73 (30)                  73 (30)
San Onofre....................................................                   20 (8)                   20 (8)
Las Flores/Las Pulgas Creek...................................                  36 (14)                  36 (14)
Hidden Lagoon.................................................                  39 (16)                  39 (16)
Aliso Canyon..................................................                  65 (26)                  65 (26)
French Lagoon.................................................                  60 (24)                  60 (24)
Cockleburr Canyon.............................................                  74 (30)                  74 (30)
Santa Margarita River.........................................                789 (319)                789 (319)
                                                               -------------------------------------------------
    Totals....................................................              1,883 (762)              1,883 (762)
----------------------------------------------------------------------------------------------------------------

Vandenberg Air Force Base
    VAFB is headquarters for the 30th Space Wing, the Air Force's Space 
Command unit that operates VAFB and the Western Test Range/Pacific 
Missile Range. VAFB operates as an aerospace center supporting west 
coast launch activities for the Air Force, Department of Defense, 
National Aeronautics and Space Administration, and commercial 
contractors. The three primary operational missions of VAFB are to 
launch, place, and track satellites in near-polar orbit; to test and 
evaluate the intercontinental ballistic missile systems; and to support 
aircraft operations in the western range. VAFB lies on the south-
central California coast, approximately 275 mi (442 km) south of San 
Francisco, 140 mi (225 km) northwest of Los Angeles, and 55 mi (88 km) 
northwest of Santa Barbara. The 99,100-ac (40,104-ha) base extends 
along approximately 42 mi (67 km) of Santa Barbara County coast, and 
varies in width from 5 to 15 mi (8 to 24 km).
    The VAFB INRMP was prepared to provide strategic direction to 
ecosystem and natural resources management on VAFB. The long-term goal 
of the INRMP is to integrate all management activities in a manner that 
sustains, promotes, and restores the health and integrity of VAFB 
ecosystems using an adaptive management approach. The INRMP was 
designed to: (1) Summarize existing management plans and natural 
resources literature pertaining to VAFB; (2) identify and analyze 
management goals in existing plans; (3) integrate the management goals 
and objectives of individual plans; (4) support base compliance with 
applicable regulatory requirements; (5) support the integration of 
natural resource stewardship with the Air Force mission; and (6) 
provide direction for monitoring strategies.
    VAFB completed an INRMP in 2011, which benefits the tidewater goby 
by: (1) Avoiding the tidewater goby and its habitat, whenever possible, 
in project planning; (2) scheduling activities that may affect 
tidewater goby outside of the peak breeding period (March to July); (3) 
coordinating with VAFB water quality staff to prevent degradation and 
contamination of aquatic habitats; and (4) prohibiting the introduction 
of nonnative fishes into streams on-base (VAFB 2011, Tab D, p. 15). 
Furthermore, VAFB's environmental staff reviews projects and enforces 
existing regulations and orders that, through their implementation, 
avoid and minimize impacts to natural resources, including the 
tidewater goby and its habitat. In addition, VAFB's INRMP protects 
aquatic habitats for the tidewater goby by excluding cattle from 
wetlands and riparian areas through the installation and maintenance of 
fencing.
    Habitat features essential to the conservation of the tidewater 
goby exist on VAFB, and activities occurring on VAFB are currently 
being conducted in a manner that minimizes impacts to tidewater goby 
habitat. This military installation has an approved INRMP that provides 
a benefit to the tidewater goby, and VAFB has committed to work closely 
with the Service and the CDFG to continually refine their existing 
INRMP as part of the Sikes Act's INRMP review process. Based on the 
above considerations, and in accordance with section 4(a)(3)(B)(i) of 
the Act, we have determined that conservation efforts identified in the 
2011 INRMP for VAFB provide a benefit to the tidewater goby and its 
habitat. This includes habitat located in the following areas: Shuman 
Canyon, San Antonio Creek, Santa Ynez River, Ca[ntilde]ada Honda, and 
Jalama Creek. Therefore, lands subject to the INRMP for VAFB, which 
includes the lands leased from the Department of Defense by other 
parties, are exempt from critical habitat designation under section 
4(a)(3)(B) of the Act, and we are not including approximately 727 ac 
(294 ha) of habitat in this critical habitat designation because of 
this exemption.
Marine Corps Base Camp Pendleton
    MCB Camp Pendleton is the Marine Corps' premier amphibious training 
installation, and its only west coast amphibious assault training 
center. The installation has been conducting air, sea, and ground 
assault training since World War II. MCB Camp Pendleton occupies over 
125,000 ac (50,586 ha) of coastal southern California in the northwest 
corner of San Diego County. Aside from nearly 10,000 ac (4,047 ha) that 
are developed, most of the installation consists of undeveloped land 
used for training. MCB Camp Pendleton is situated between two major 
metropolitan areas: Los Angeles, 82 mi (132 km) to the north, and San 
Diego,

[[Page 8781]]

38 mi (61 km) to the south. Nearby communities include Oceanside to the 
south, Fallbrook to the east, and San Clemente to the northwest. Aside 
from a portion of the installation's border that is shared with the San 
Mateo Wilderness Area and the Fallbrook Naval Weapons Station, the 
surrounding land use is urban development, rural residential 
development, and agricultural farming and ranching. The largest single 
leaseholder on the installation is California State Parks, which 
includes a 50-year real estate lease granted on September 1, 1971, for 
2,000 ac (809 ha) that encompass San Onofre State Beach.
    The MCB Camp Pendleton INRMP is a planning document that guides the 
management and conservation of natural resources under the 
installation's control. The INRMP was prepared to assist installation 
staff and users in their efforts to conserve and rehabilitate natural 
resources consistent with the use of MCB Camp Pendleton to train 
Marines and set the agenda for managing natural resources on MCB Camp 
Pendleton. MCB Camp Pendleton completed its INRMP in 2001, followed by 
a revised and updated version in 2007 to address conservation and 
management recommendations within the scope of the installation's 
military mission, including conservation measures for tidewater goby 
(MCB Camp Pendleton 2007, Appendix F, Section F.22, pp. F-78-F-85). 
Additionally, according to the 2007 INRMP, California State Parks is 
required to conduct its natural resources management consistent with 
the philosophies and objectives of the revised 2007 INRMP (MCB Camp 
Pendleton 2007, Chapter 2, p. 31).
    The tidewater goby receives programmatic protection from training 
and other installation activities within the estuarine component of its 
habitat, as outlined and required in both the Estuarine and Beach 
Ecosystem Conservation Plan and the Riparian Ecosystem Conservation 
Plan (MCB Camp Pendleton 2007, Appendices B and C, respectively). 
Management and protection measures that benefit the tidewater goby 
identified in Appendix B of the INRMP include, but are not limited to, 
the following: (1) Maintaining connectivity of beach and estuarine 
ecosystems with riparian and upland ecosystems; (2) promoting natural 
hydrological processes to maintain estuarine water quality and 
quantity; and (3) maximizing the probability of tidewater goby 
metapopulation existence within the lagoon complex (MCB Camp Pendleton 
2007, Appendix B, pp. B5-B7).
    Management and protection measures that benefit tidewater goby 
identified in Appendix C of the INRMP include, but are not limited to, 
the following: (1) Eliminating nonnative invasive species (such as 
Arundo donax (giant reed)) on the installation and off the installation 
in partnership with upstream landowners to enhance ecosystem value; (2) 
providing viable riparian corridors and promoting connectivity of 
native riparian habitats; (3) providing for unimpeded hydrologic and 
sedimentary floodplain dynamics to support the maintenance and 
enhancement of biota; (4) maintaining natural floodplain processes and 
extent of these areas by avoiding and minimizing further permanent loss 
of floodplain habitats; (5) maintaining to the maximum extent possible 
natural flood regimes; (6) maintaining to the extent practicable stream 
and river flows needed to support riparian habitat; (7) monitoring and 
maintaining groundwater levels and basin withdrawals to avoid loss and 
degradation of habitat quality; (8) restoring areas to their original 
condition after disturbance, such as following project construction or 
fire damage; and (9) promoting increased tidewater goby populations in 
watersheds through perpetuation of natural ecosystem processes and 
programmatic instruction application for avoidance and minimization of 
impacts (MCB Camp Pendleton 2007, Appendix C, pp. C5-C8).
    Current environmental regulations and restrictions apply to all 
threatened and endangered species on the installation (including 
tidewater goby) and are provided to all users of ranges and training 
areas to guide activities and protect the species and its habitat. 
First, specific conservation measures are applied to the tidewater goby 
and its habitat that include: (1) Controlling nonnative animal species 
(such as bullfrogs) and nonnative plant species (such as Arundo donax 
and Rorippa spp. (watercress)); and (2) restricting military-related 
traffic use within riparian areas to existing roads, trails, and 
crossings. Second, MCB Camp Pendleton's environmental security staff 
review projects and enforce existing regulations and orders that, 
through their implementation, avoid and minimize impacts to natural 
resources, including the tidewater goby and its habitat. Third, MCB 
Camp Pendleton provides training to personnel on environmental 
awareness for sensitive resources on the base, including the tidewater 
goby and its habitat. As a result of these regulations and 
restrictions, activities occurring on MCB Camp Pendleton are currently 
conducted in a manner that minimizes impacts to tidewater goby habitat.
    MCB Camp Pendleton's INRMP also benefits tidewater goby through 
ongoing monitoring and research efforts. The installation conducts 
monitoring of tidewater goby populations at least once every 3 years, 
and also conducts monitoring to determine impacts of relocation of 
effluent infiltration ponds (MCB Camp Pendleton 2007, Appendix B, p. 
B8). Data are provided to all necessary personnel through MCB Camp 
Pendleton's GIS database on sensitive resources and in their published 
resource atlas. Additionally, MCB Camp Pendleton collaborated with the 
U.S. Geological Survey's Biological Resources Division to develop and 
implement a rigorous science-based monitoring protocol for tidewater 
goby populations throughout the installation, including monitoring 
water quality variables at all historically occupied sites regardless 
of current occupation status (Lafferty 2010, pp. 10-11).
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2007 INRMP for MCB Camp Pendleton provide a benefit 
to the tidewater goby and its habitat. This includes habitat located in 
the following areas: San Mateo Creek, San Onofre Creek, Las Flores/Las 
Pulgas Creek, Hidden Lagoon, Aliso Canyon, French Lagoon, Cockleburr 
Canyon, and Santa Margarita River (names of areas follow those used in 
the Recovery Plan (Service 2005a, pp. B21-22)). Therefore, lands 
subject to the INRMP for MCB Camp Pendleton, which includes the lands 
leased from the Department of Defense by other parties, are exempt from 
critical habitat designation under section 4(a)(3)(B) of the Act, and 
we are not including approximately 1,156 ac (468 ha) of habitat in this 
critical habitat designation because of this exemption.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he

[[Page 8782]]

determines, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species. The statute on its face, as well as the 
legislative history, is clear that the Secretary has broad discretion 
regarding which factor(s) to use and how much weight to give to any 
factor in making that determination.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis of the 
proposed critical habitat designation (Industrial Economics 
Incorporated (IEc) 2012). The draft analysis, dated March 16, 2012, was 
made available for public review from July 24, 2012, through August 23, 
2012 (77 FR 43222). Following the close of the comment period, a final 
analysis of the potential economic effects of the designation was 
developed taking into consideration the public comments and any new 
information.
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of all potential conservation efforts for tidewater 
goby; some of these costs will likely be incurred regardless of whether 
we designate critical habitat (baseline). The economic impact of the 
final critical habitat designation is analyzed by comparing scenarios 
both ``with critical habitat'' and ``without critical habitat.'' The 
``without critical habitat'' scenario represents the baseline for the 
analysis, considering protections already in place for the species (for 
example, under the Federal listing and other Federal, State, and local 
regulations). The baseline, therefore, represents the costs incurred 
regardless of whether critical habitat is designated. The ``with 
critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat 
above and beyond the baseline costs; these are the costs we consider in 
the final designation of critical habitat. The analysis looks 
retrospectively at baseline impacts incurred since the species was 
listed, and forecasts both baseline and incremental impacts likely to 
occur with the designation of critical habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decisionmakers can use this information to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Finally, the FEA looks retrospectively at costs that 
have been incurred since 1994 (year of the species' listing) (59 FR 
5494), and considers those costs that may occur in the 20 years 
following the designation of critical habitat, which was determined to 
be the appropriate period for analysis because limited planning 
information was available for most activities to forecast activity 
levels for projects beyond a 20-year timeframe. The FEA quantifies 
economic impacts of tidewater goby conservation efforts associated with 
the following categories of activity: (1) Water management, (2) cattle 
grazing, (3) transportation (roads, highways, bridges), (4) utilities 
(oil and gas pipelines), (5) residential, commercial, and industrial 
development, and (6) natural resource management.
    Baseline protections for the tidewater goby address a broad range 
of habitat threats within a significant portion of the proposed 
critical habitat area. A key consideration in the incremental analysis 
is that, where tidewater goby critical habitat overlaps with steelhead 
(Oncorhynchus mykiss) critical habitat, steelhead conservation measures 
would be sufficiently protective for tidewater goby as well, and, 
therefore, few incremental project modification costs are anticipated 
in these areas. Across the designation, incremental costs primarily 
include costs of administrative efforts associated with new and 
reinitiated consultations to consider adverse modification of critical 
habitat for tidewater goby. In addition, only minor incremental project 
modification costs are forecast to result from critical habitat. This 
result is attributed to the following key findings: (1) Baseline 
protections exist for tidewater goby, (2) steelhead critical habitat 
overlaps with a large portion of the unoccupied units, and (3) minimal 
economic activity occurs on private lands in the study area.
    In total, the incremental impacts to all economic activities are 
estimated to be $558,000 over the 20-year timeframe, or $49,300 on an 
annualized basis (assuming a 7 percent discount rate). Approximately 98 
percent of these incremental costs result from administrative costs of 
considering adverse modification in section 7 consultations.
    Incremental conservation efforts are estimated to be $11,500 over 
the 20-year timeframe or $1,090 on an annualized basis (both assuming a 
7 percent discount rate). These include the costs of adding the 
tidewater goby to the environmental impact reports (EIR) required for 
projects that are being proposed in critical habitat unit MAR-5 Bolinas 
Lagoon and SLO-12 Oso Flaco Lake, as well as additional surveying for 
tidewater goby in Oso Flaco Lake. Our economic analysis did not 
identify any disproportionate costs that are likely to result from the 
designation.
    After considering the economic impacts, the Secretary is not 
exercising his discretion to exclude any areas from this designation of 
critical habitat for the tidewater goby based on economic impacts.
    A copy of the FEA with supporting documents may be obtained by 
contacting the Ventura Fish and Wildlife Office (see ADDRESSES) or by 
downloading from the Internet at http://www.regulations.gov.
Exclusions Based on National Security Impacts
    In preparing this final rule, we have exempted from the designation 
of critical habitat those Department of Defense lands subject to 
completed INRMPs determined to provide a benefit to the tidewater goby. 
We have also determined that the remaining lands within the designation 
of critical habitat for the species are not owned or managed by the 
Department of Defense, and, therefore, we anticipate no impact on 
national security. Consequently, the Secretary is not exercising his 
discretion to exclude any areas from this final designation based on 
impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are

[[Page 8783]]

conservation partnerships that would be encouraged by designation of, 
or exclusion from, critical habitat. In addition, we look at any tribal 
issues, and consider the government-to-government relationship of the 
United States with tribal entities. We also consider any social impacts 
that might occur because of the designation.
    In preparing this final rule, we have determined that there are 
currently no HCPs or other management plans for tidewater goby, and the 
final designation does not include any tribal lands or trust resources. 
We anticipate no impact on tribal lands, partnerships, or HCPs from 
this critical habitat designation. Accordingly, the Secretary is not 
exercising his discretion to exclude any areas from this final 
designation based on other relevant impacts.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
revised designation of critical habitat for the tidewater goby during 
two comment periods. The first comment period associated with the 
publication of the proposed rule (76 FR 64996) opened on October 19, 
2011, and closed on December 19, 2011. We also requested comments on 
the proposed revised critical habitat designation and associated draft 
economic analysis during a comment period that opened July 24, 2012, 
and closed on August 23, 2012 (77 FR 43222). We did not receive any 
requests for a public hearing. We also contacted appropriate Federal, 
State, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule and 
draft economic analysis during these comment periods.
    During the first comment period, we received 10 comment letters 
directly addressing the proposed revised critical habitat designation. 
During the second comment period, we received three comment letters 
addressing the proposed revised critical habitat designation or the 
draft economic analysis. All substantive information provided during 
comment periods has either been incorporated directly into this final 
determination or addressed below. Comments received were grouped into 
four general issues specifically relating to the proposed revised 
critical habitat designation for tidewater goby, and are addressed in 
the following summary and incorporated into the final rule as 
appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from seven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles associated with tidewater goby. We 
received responses from four of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the tidewater goby. The peer reviewers generally concurred with our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. Peer reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: Two peer reviewers suggested that the proposed 
critical habitat designation contained too few areas to allow for 
establishment of a more continuous metapopulation dynamic in the north 
coast and central coast regions.
    Our Response: We agree with the reviewers that it is important to 
maintain metapopulation dynamics throughout the range of the tidewater 
goby, including the north coast and central coast regions. Accordingly, 
we included connectivity in our criteria for determining critical 
habitat (see Criteria Used To Identify Critical Habitat section), and 
we designated those sites that are an integral part of metapopulation 
dynamics.
    Section 3(5)(C) of the Act states that, except in particular 
circumstances determined by the Secretary, critical habitat shall not 
include the entire geographical area that can be occupied by the 
threatened or endangered species. It is not the intent of the Act to 
designate critical habitat for every population and every documented 
historical location of a species, nor is it the intent to designate all 
areas supporting metapopulations as critical habitat. We have 
considered all existing and potential habitat for the tidewater goby, 
and using the best scientific and commercial data available, we have 
designated all areas that meet the definition of critical habitat. 
However, the purpose of critical habitat designations is not to signal 
that habitat outside the designation is unimportant or may not 
contribute to recovery of the species, and we also recognize that the 
designation of critical habitat may not include all of the habitat that 
may eventually be determined to be necessary for the recovery of the 
tidewater goby. Also, areas outside the final revised critical habitat 
designation will continue to be subject to conservation actions 
implemented under section 7(a)(1) of the Act, regulatory protections 
afforded by the section 7(a)(2) jeopardy standard, and the prohibitions 
of section 9 of the Act. These protections and conservation tools will 
continue to contribute to recovery of this species.
    (2) Comment: One peer reviewer suggested that we give consideration 
in our PCE to habitats that tidewater goby must periodically traverse, 
but that are otherwise unoccupied, and that we expand the PCE to 
include population connectivity allowing for metapopulation dynamics to 
function.
    Our Response: Expanding the PCE to include areas of the ocean and 
large bays (Humboldt Bay and San Francisco Bay) would not address the 
threat of fragmentation because isolation of the components of a 
metapopulation is the result of the loss of locations (i.e., lagoons, 
estuaries, saltmarshes, etc.) that support tidewater goby. When a 
location is lost, the distance between the components of a 
metapopulation may be too great to allow the species to disperse 
through otherwise inhospitable conditions. Furthermore, we are not 
aware of any threats to these stretches of coastline within the Pacific 
Ocean that need special management in terms of tidewater goby dispersal 
within and between metapopulations. Consequently, designating areas of 
the ocean and large bays to accommodate this dispersal would not be 
essential to the conservation of the species, nor would it be 
practical.
    (3) Comment: Two peer reviewers recommended that we designate 
subunits within Humboldt Bay unit (HUM-3) in a manner similar to the 
approach used for the Eel River unit (HUM-4). The peer reviewers' 
reasoning for this approach includes: (a) Research indicates that a 
metapopulation dynamic may not be currently occurring within Humboldt 
Bay (McCraney et al. 2010) due to isolation by tidegates and other 
artificial features theoretically rendering each location occupied by 
tidewater gobies as a separate subpopulation. (Available evidence 
indicates that these subpopulations are isolated from one another and 
are not continuously distributed despite their relatively close 
proximity (McCraney et al. 2010).); and (b) the extent of connectivity 
between Humboldt Bay to

[[Page 8784]]

nearby areas such as the Eel River is uncertain. The reviewers noted 
that, because of the great distance (approximately 18.4 mi (29.6 km)) 
between Humboldt Bay and the Eel River, genetic exchange is unlikely to 
occur naturally. Therefore, the reviewers stated it is important to 
identify separate units in Humboldt Bay and reestablish connectivity 
between those locations.
    Our Response: We respectfully disagree with the two peer reviewers. 
We have designated Humboldt Bay (HUM-3) as a single, large unit because 
of the relatively close proximity of the locations that are occupied by 
tidewater goby within the bay. Although as the reviewers pointed out 
these locations may be threatened by reduced genetic and life-history 
diversity, assigning subunits (or not) will not increase (or decrease) 
the level of protection under the Act for the tidewater goby. Rather, 
at this time the threats to the habitat at these locations are the same 
or similar and conservation of the species will be better served by 
including them in a single unit.
    In contrast to Humboldt Bay (HUM-3), we identified Eel River unit 
(HUM-4) as consisting of two subunits because of the greater separation 
of the subunits within the Eel River unit, and because the southern Eel 
River subunit was only recently discovered and the metapopulation 
dynamic between the two subunits is unclear.
    (4) Comment: Two peer reviewers suggested that we consider an 
additional threat to the tidewater goby and its habitat involving 
projects categorized as habitat restoration. The reviewers noted that 
it is not uncommon for proposed estuary and lagoon alterations to 
include ``restoration'' projects that are proposed to ``restore 
connectivity'' or ``improve water quality.'' These projects sometimes 
involve elimination of backwaters, which may be crucial for flood 
refuge for the tidewater goby, because they may have poor water quality 
in late summer.
    Our Response: We acknowledge that coastal lagoon restoration 
projects may be a threat to tidewater goby habitat. As such, we have 
added language in this rule to reflect this potential threat (see 
Special Management Considerations or Protection section above).

Federal Agency Comments

    (5) Comment: The U.S. Army Corps of Engineers (ACOE) opposed 
designating locations as critical habitat that were unoccupied at the 
time of listing regardless of their historical or current occupancy 
(see Table 1 for a list of locations that were unoccupied at the time 
of listing). The ACOE also opposed designating locations that are not 
currently occupied even if they were occupied at the time of listing 
(see Table 1), and are opposed to designating those that have never 
been known to be occupied (areas that meet this criteria are footnoted 
in Table 1). They contend that the lack of detection of tidewater 
gobies in an area is an indication that the habitat is not suitable for 
this species. For this reason, the ACOE requested the Service withdraw 
the proposed rule, revise it, and then recirculate the proposed rule 
for more comments.
    Our Response: We respectfully disagree with the ACOE's contention 
that the lack of detection of tidewater gobies in an area is an 
indication that the habitat is not suitable for this species. The lack 
of detection of tidewater gobies in a particular area does not 
necessarily indicate that suitable habitat is not present or in some 
cases could not be restored. As summarized below, we used the best 
available scientific data to identify the specific areas that meet the 
definition of critical habitat, and we are appropriately designating 
those areas.
    We developed criteria for determining the specific areas within the 
geographical area occupied at the time of listing that have the 
physical or biological features essential to the conservation of the 
tidewater goby. These criteria consist of the following:
    (1) Areas that support source populations (populations where local 
reproductive success is greater than local mortality (Meffe and Carroll 
1994, p. 187)). For the purposes of this designation, we identified 
areas supporting source populations as those that are currently 
occupied and have been consistently occupied for 3 or more consecutive 
years based on survey data and published reports. Source populations 
are more likely to be capable of maintaining populations over many 
years and are, therefore, capable of providing individuals to recruit 
into surrounding subpopulations.
    (2) Areas that support subpopulations within each metapopulation in 
addition to source populations in the event that the source population 
is extirpated due to a natural episodic catastrophic event such as a 
major flood or drought.
    (3) Areas that provide connectivity between metapopulations. These 
areas are likely to act as ``stepping stones'' between more isolated 
populations, and thereby contribute to metapopulation persistence and 
genetic exchange. For the purposes of this designation, we generally 
identified locations that provide connectivity as those within 
approximately 6 mi (10 km) of another location.
    After determining the specific areas within the geographical area 
occupied at the time of listing that have the physical or biological 
features essential to the conservation of the tidewater goby, we 
concluded that they were not adequate to ensure the conservation of the 
species. Therefore, we developed criteria for determining the specific 
areas outside the geographical area occupied by the species at the time 
it is listed that are essential for the conservation of the species. In 
some cases, these areas were known to be historically occupied but not 
occupied at the time of listing. Others were not occupied at the time 
of listing but are currently occupied, while a few areas have never 
been known to be occupied.
    The criteria for determining the specific areas outside the 
geographical area occupied at the time of listing that are essential 
for the conservation of the tidewater goby are:
    (1) Areas of aquatic habitat in coastal lagoons and estuaries with 
still-to-slow-moving water that allow for the conservation of viable 
metapopulations under varying environmental conditions, such as, for 
example, drought.
    (2) Areas that provide connectivity between source populations or 
may provide connectivity in the future. These areas are likely to act 
as ``stepping stones'' between more isolated populations, and thereby 
contribute to metapopulation persistence and genetic exchange. For the 
purposes of this designation, we generally identified locations that 
provide connectivity as those within approximately 6 mi (10 km) of 
another location.
    (3) Additional areas that may be more isolated but may represent 
unique adaptations to local features (habitat variability, hydrology, 
microclimate).
    The areas outside the geographical area occupied at the time of 
listing that were selected for designation are essential for the 
conservation of the tidewater goby for various reasons depending on 
their location. Some of these areas are essential because they provide 
habitat for maintaining tidewater goby metapopulations where the 
distances between units that were occupied at the time of listing make 
it difficult for tidewater goby to disperse. Other areas are essential 
to help prevent the extirpation of a metapopulation in which only one 
or two occupied sites remain. As discussed in the Metapopulation 
Dynamics section, the number of subpopulations is important to the 
long-term stability of a

[[Page 8785]]

metapopulation. Furthermore, some of these areas were selected or 
expanded to take into account sea-level rise as projected by climate 
change models.
    All of these areas have also been identified in the Recovery Plan 
as being important for the conservation of the species. As mentioned 
previously, the goal of the Recovery Plan is to preserve the diversity 
of habitats that occur within the range of the species, the 
metapopulation structure of the species, and genetic diversity (Service 
2005a, p. 28).
    (6) Comment: The ACOE recommended that we remove sites that are 1 
ac (0.4 ha) or less from the designation because the proposed rule 
states that these locations tend not to be suitable for breeding. These 
sites include San Geronimo Creek (SLO-7), Ca[ntilde]ada de las Agujas 
(SB-2), Ca[ntilde]ada del Agua Caliente (SB-5), Arroyo Hondo (SB-7), 
Big Sycamore Canyon (VEN-4), and Arroyo Sequit (LA-1). The ACOE also 
commented that the extent of the designation on Aliso Creek (OR-1) 
extends beyond a barrier and the unit should be revised.
    Our Response: While there is a general trend for sites 1 ac (0.4 
ha) or less not to be suitable for breeding there are some important 
exceptions; for example San Geronimo Creek (SLO-7) is a source 
population, as evidenced by its tidewater goby population's persistence 
during severe drought conditions (Swift et al. 1991, p. 33), that is 
capable of maintaining its current population levels and capable of 
providing individuals to recruit into subpopulations found in adjacent 
areas despite being less than 1 ac (0.4 ha) in area. Additionally, 
suitable breeding habitat was not the only criteria we used in 
selecting units to be included in the designation. We also considered 
important connectivity sites that are an integral part of 
metapopulation dynamics. Without maintaining the connectivity between 
source populations, we are likely to see entire metapopulations become 
extirpated, which would hinder recovery. The remaining locations 1 ac 
(0.4 ha) or less that the commenter recommended be removed are 
important connectivity sites and meet the definition of critical 
habitat.
    In regard to the potential barrier on unit OR-1 (Aliso Creek), we 
reviewed our information on the extent of the designation and the 
specific site identified as a barrier. After further review and 
discussion with the ACOE, the area was more appropriately characterized 
as a grade control structure about 2-3 ft (0.6-2 m) in height (T. 
Keeney, Senior Ecologist, Corps, pers. comm. 2013). Based on the 
Service's evaluation of the information on the site and review of the 
our record for this designation, we determined the subject location 
corresponds to a riffle area we are already aware of on Aliso Creek. We 
have determined the riffle area does not present a barrier to fish 
passage.
    (7) Comment: The ACOE stated that the San Luis Rey River (SAN-1) 
does not contain the PCE as described in the proposed rule. 
Specifically, this commenter claimed that PCE 1a, 1b, and 1c have not 
been met. The ACOE also commented that the upstream limit of the unit 
is not appropriate.
    Our Response: To designate critical habitat within the geographical 
area occupied by the species at the time of listing, we are required to 
identify the physical or biological features essential to the 
conservation of the species. We have determined the specific areas 
within the geographical area occupied at the time of listing that 
contain the PCE essential to the conservation of the species and have 
included these areas in the designation. When designating critical 
habitat outside the geographical area occupied by a species at the time 
it was listed, we are required to determine that such areas are 
essential for the conservation of the species; the presence of one or 
more PCE(s) is not required by the Act to designate such areas as 
critical habitat. Unit SAN-1 is outside the geographical area occupied 
by the tidewater goby at the time of listing; thus, the presence of the 
PCE is not required.
    Although the presence of the PCE is not required in this case, we 
include the San Luis Rey in the designation of critical habitat because 
(1) it is identified in the recovery plan as a potential site for 
reintroduction (see Table G-1 in the recovery plan); (2) the site was 
naturally recolonized in 2010 and is now considered occupied; and (3) 
it is essential for the conservation of the species because it serves 
as one of a limited number of locations that contribute toward 
metapopulation dynamics of the genetically unique South Coast Recovery 
Unit (Service 2005a, pp. 32-39).
    Natural recolonization of the San Luis Rey in 2010 shows that a 
metapopulation dynamic is still occurring within the suite of occupied 
and potentially occupiable sites within the recovery plan's South Coast 
Recovery Unit. The natural recolonization of the San Luis Rey River by 
tidewater goby in 2010 further demonstrates the area is capable of 
supporting the species and possesses the PCE needed to support the 
tidewater goby. As discussed in the Metapopulation Dynamics section, 
the number of subpopulations is important to the long-term stability of 
a metapopulation. As such, SAN-1 will help the species to survive and 
will help support the recovery of the tidewater goby population within 
the South Coast Recovery Unit, even potentially facilitating natural 
recolonization of currently unoccupied locations to the south. This 
unit now represents the southernmost occupied area of the species' 
distribution, and is important for maintaining the tidewater goby 
metapopulation in the region.
    With regard to the delineation of the proposed critical habitat 
boundary, the Service reviewed information in its files used to develop 
the designation. Available information indicates the upstream boundary 
of unit SAN-1 was determined, in part, to account for expected sea-
level rise. The upstream extent of the unit in the San Luis Rey River 
included almost all the area predicted to be inundated by the ``Mean 
Higher High Water (MHHW) 2100'' model. The MHHW 2100 model is a GIS-
based model predicting the area inundated after a 1.4-meter sea-level 
rise--the scenario for year 2100. Given the timeframe of the model's 
projection, the critical habitat boundary does extend beyond what is 
currently estuary in order to accommodate predicted changes in 
estuarine and riverine habitats over time.
    (8) Comment: Implying that the San Luis Rey River (SAN-1) should 
not be designated as critical habitat or should be excluded under 
section 4(b)(2) of the Act, the ACOE noted that the area is part of the 
City of Oceanside's proposed Subarea Habitat Conservation Plan/Natural 
Communities Conservation Plan (HCP/NCCP) and that the area will also be 
managed per the ACOE-proposed Adaptive Habitat Management Plan (AHMP) 
for the San Luis Rey River Flood Risk Management Project.
    Our Response: Based on our review of the best available data, the 
San Luis Rey River should be designated as critical habitat for the 
tidewater goby. Per section 3(5)(A)(ii) of the Act and its implementing 
regulations, designating critical habitat outside the geographical area 
occupied by the tidewater goby at the time of listing is based upon a 
determination that such areas are essential for the conservation of the 
species. As explained in the unit description for SAN-1, we have made 
that determination. However, under section 4(b)(2) of the Act, the 
Secretary may exclude any area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits

[[Page 8786]]

of specifying such area as part of the critical habitat.
    Collaborative processes, such as those mentioned by the commenter, 
can benefit listed and sensitive species, including the tidewater goby. 
When considering whether a current land management or conservation plan 
(HCPs as well as other types) provides adequate management or 
protection for the tidewater goby and its habitat, we consider a number 
of factors, including, but not limited to, the following:
    (1) Whether the plan is complete and provides the same or better 
level of protection from adverse modification or destruction than that 
provided through a consultation under section 7 of the Act;
    (2) Whether there is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future and effective, based on past practices, written 
guidance, or regulations; and
    (3) Whether the plan provides adaptive management and conservation 
strategies and measures consistent with currently accepted principles 
of conservation biology.
    We have been working with the City of Oceanside for several years; 
however, the City's HCP/NCCP plan is not yet finalized. The City's plan 
will be an individually permitted Subarea Plan under the Multiple 
Habitat Conservation Program (MHCP). The MHCP Subregional Plan, 
finalized in 2003, is a comprehensive, multiple jurisdictional planning 
program in northwestern San Diego County (SANDAG 2003, entire). It 
serves as the ``umbrella'' document for individual Subarea Plans under 
its jurisdiction. The combination of the MHCP Subregional Plan and the 
City's Subarea Plan will serve as a multiple species HCP pursuant to 
Section 10(a)(1)(B) of the Act. The MHCP Subregional Plan does not 
address the tidewater goby. At the time this rule was prepared, the 
City of Oceanside had no plans to include the tidewater goby in its 
Subarea Plan, and the City has indicated it is not likely to seek 
coverage for the goby in the near future. Thus, at this time, we have 
found no basis to support exclusion of the area.
    The AHMP for the San Luis Rey River Flood Risk Management Project 
is being developed as part of a flood control project on the lower San 
Luis Rey River. The ACOE consulted with us on this project to address 
impacts to several federally listed species; however, the tidewater 
goby was not one of them (Service 2005b, entire; Service 2006, entire). 
At the time this rule was prepared, the AHMP had not been finalized, 
and the geographical scope of the AHMP, as currently planned, will be 
the portion of the lower San Luis Rey River that is upstream of the 
Interstate 5 bridge. Only 19 ac (8 ha), or 33 percent, of the area 
designated as critical habitat for the tidewater goby in SAN-1 is above 
the bridge; the remainder is downstream. More importantly, the AHMP 
does not address the tidewater goby.
    Therefore, after considering the proposed HCP/NCCP and AHMP plans, 
the Secretary is not exercising his discretion under section 4(b)(2) of 
the Act to exclude unit SAN-1 from the final revised designation of 
critical habitat. We will continue to work with the City of Oceanside 
and the ACOE on the respective plans, including addressing the 
tidewater goby and unit SAN-1 should the parties deem it appropriate to 
do so.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' We 
received no comments from the State regarding the proposal to designate 
critical habitat for the tidewater goby.

Public Comments

Public Comments on Criteria Used To Identify Critical Habitat
    (9) Comment: Several commenters opposed designating locations as 
critical habitat that were unoccupied at the time of listing (see Table 
1 for a list of locations that were unoccupied at the time of listing). 
One commenter opposed designating locations that are not currently 
occupied (see Table 1), and one commenter opposed designating locations 
that have never been known to be occupied (see Table 1).
    Our Response: Please refer to our response to Comment 5 above.
    (10) Comment: One commenter opposed designating the Salinas River 
(MN-2) because a resource plan is under development for that area, 
which would provide for conservation of the species.
    Our Response: Please refer to our response to Comment 8 above for 
the types of factors we consider when evaluating the conservation 
benefits provided by a land management or conservation plan (HCPs as 
well as other types).
    At this time, we have not received a complete final resource 
management plan for the Salinas River, and the Secretary is not 
exercising his discretion under section 4(b)(2) of the Act to exclude 
unit MN-2 from the final revised designation of critical habitat.
    (11) Comment: One commenter opposed expanding critical habitat in 
Ca[ntilde]ada de Alegria (SB-4) because the Service has concurred with 
a 2009 petition that downlisting the species to threatened is 
warranted.
    Our Response: In our 90-day finding on a petition to downlist the 
tidewater goby from endangered to threatened, we determined that the 
petition presented substantial scientific or commercial information 
indicating that the petitioned action may be warranted and that we 
would conduct a review of the status of the species (76 FR 3069; 
January 19, 2011). This determination was based in part on our 5-year 
review of the species. Section 4(b)(3)(A) of the Act (16 U.S.C. 
1533(b)(3)(A)) requires that we make a finding on whether a petition to 
list, delist, or reclassify a species presents substantial scientific 
or commercial information indicating that the petitioned action may be 
warranted. We are to base this finding on information provided in the 
petition, supporting information submitted with the petition, and 
information otherwise available in our files. Our standard for 
substantial scientific or commercial information within the Code of 
Federal Regulations (CFR) with regard to a 90-day petition finding is 
``that amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted'' 
(50 CFR 424.14(b)). If we find that substantial scientific or 
commercial information meeting the above definition was presented, we 
are required to promptly conduct a species status review, which we 
subsequently summarize in our 12-month finding. However, we have not 
yet made a final determination as to whether or not the downlisting of 
the tidewater goby is warranted. More importantly, regardless of the 
status of threatened or endangered, we are still required under the Act 
to designate critical habitat.
    (12) Comment: One commenter requested that we exclude private lands 
in Arroyo de la Cruz (SLO-1), Arroyo del Corral (SLO-2), Oak Knoll 
Creek (SLO-3), and Little Pico Creek (SLO-4) from the designations 
because an existing conservation easement and associated management 
plan includes those areas.
    Our Response: We value our partnerships with Federal and State 
agencies and local jurisdictions. Collaborative processes, such as 
those mentioned by the commenter, can benefit listed and sensitive 
species,

[[Page 8787]]

including the tidewater goby. Please refer to our response to Comment 8 
above for the types of factors we consider when evaluating the 
conservation benefits provided by a current land management or 
conservation plan (HCPs as well as other types).
    As noted in the Recovery Plan and Table 2, threats that may require 
special management in these units include: highway construction, which 
may remove aquatic habitat, and grazing of aquatic and riparian 
habitats. These threats do not appear to be adequately addressed in the 
conservation easement and associated management plan. After considering 
the existing conservation easement and associated management plan, the 
Secretary is not exercising his discretion under section 4(b)(2) of the 
Act to exclude units SLO-1, SLO-2, SLO-3, and SLO-4 from the final 
revised designation of critical habitat.
    (13) Comment: One commenter questioned why we expanded critical 
habitat by 1 ac (0.4 ha) in Ca[ntilde]ada de Alegria (SB-4) and 
requested that we exclude this additional area from the final 
designation because it is protected by a preserve.
    Our Response: We value our partnerships with Federal and State 
agencies and local jurisdictions. Collaborative processes, such as 
those mentioned by the commenter, can benefit listed and sensitive 
species, including the tidewater goby. Please refer to our response to 
Comment 8 above for the types of factors we consider when evaluating 
the conservation benefits provided by a current land management or 
conservation plan (HCPs as well as other types).
    As noted in the Recovery Plan and Table 2, threats that may require 
special management in this additional area include: roadway maintenance 
that may affect aquatic habitat, upstream water diversions, alterations 
of water flows, groundwater overdrafting, and upstream grazing of 
aquatic and riparian habitats. These threats do not appear to be 
adequately addressed in the management of the preserve. After 
considering the preserve, the Secretary is not exercising his 
discretion under section 4(b)(2) of the Act to exclude the additional 
area in unit SB-4 from the final revised designation of critical 
habitat.
    (14) Comment: One commenter is opposed to designating critical 
habitat in the Goleta Slough (SB-9) because of a belief that drainages 
within the slough do not have the PCE for the tidewater goby.
    Our Response: To designate critical habitat within the geographical 
area occupied by the species at the time of listing, we are required to 
identify the physical or biological features essential to the 
conservation of the species. We have determined the specific areas 
within the geographical area occupied at the time of listing that 
contain the PCE essential to the conservation of the species and have 
included these areas in this designation. When designating critical 
habitat outside the geographical area occupied by a species at the time 
it was listed, we are required to determine that such areas are 
essential for the conservation of the species; the presence of one or 
more PCE(s) is not required by the Act to designate such areas as 
critical habitat. Unit SB-9 is outside the geographical area occupied 
by the tidewater goby at the time of listing; thus, the presence of the 
PCE is not required. Although the presence of the PCE is not required 
in this case, we do note in our discussion of SB-9 that it appears that 
SB-9 possesses the PCE needed to support the tidewater goby. SB-9 is 
essential for the conservation of the species because it provides 
habitat for the species, allows for connectivity between tidewater goby 
source populations from nearby units, supports gene flow, and provides 
for metapopulation dynamics within the Conception Recovery Unit. As 
discussed in the Metapopulation Dynamics section, the number of 
subpopulations is important to the long-term stability of a 
metapopulation. As such, SB-9 will help the species to survive and will 
help support the recovery of the tidewater goby population within the 
Conception Recovery Unit.
    (15) Comment: One commenter stated that designated critical habitat 
should not extend beyond the lower 750 feet of Arroyo Paredon Creek 
(SB-12) because suitable habitat for the tidewater goby does not exist 
upstream of this reach and the stream gradient is too steep.
    Our Response: In response to this comment, we reexamined the 
boundaries of unit SB-12. Based on information we obtained from a field 
investigation and recently available high-resolution LiDAR (Light 
Detection and Ranging) elevation data, we have identified a steep 
gradient that could act as a barrier to upstream dispersal and refuge 
for tidewater goby. Therefore, we have revised the upstream limit of 
the unit and removed those areas that we determined are not accessible 
to tidewater goby downstream of the gradient, and thus not part of the 
critical habitat unit. The changes resulted in a net decrease of 
approximately 1 ac (less than 1 ha) for the designated area in unit SB-
12 (see Summary of Changes From Previously Designated Critical Habitat 
and 2011 Proposed Revised Critical Habitat Designation section for more 
information).
Public Comments Regarding Legal or Policy Compliance
    (16) Comment: One commenter stated that laws enacted since the time 
of listing have reduced the need for critical habitat designation. One 
commenter also claimed that threats to the tidewater goby have been 
reduced or the nature of the threat is less serious than originally 
believed to be the case; therefore, the need for critical habitat is 
reduced.
    Our Response: Although the combined effectiveness of existing laws 
and regulations, including the protections afforded a listed species 
under the Act, have substantially reduced large-scale habitat loss and 
alteration, numerous small-scale projects do have an effect on 
tidewater goby habitat. Furthermore, while some threats to the 
tidewater goby have been reduced, numerous threats to the species and 
its habitat still exist. While some of these threats can singly have a 
substantial impact on individual tidewater goby localities, in most 
cases it is the cumulative impact that has and will continue to 
threaten the species. Regardless, the tidewater goby remains listed as 
an endangered species and therefore designation of critical habitat is 
required under section 4(a)(3)(A) of the Act.
    (17) Comment: One commenter claims that provisions of the Act have 
been ignored by including areas of habitat that ``can be occupied,'' 
even though there is no evidence that such areas are essential for the 
conservation of the species. Furthermore, one commenter, citing 16 
U.S.C. 1533(a)(3), disputes the legality to designate unoccupied 
critical habitat based on speculation that it may be needed in the 
future.
    Our Response: We are required by the Act to designate areas that 
are essential for the conservation of the species. Conservation is 
defined as ``the use of all methods and procedures, which are necessary 
to bring an endangered species or threatened species to the point at 
which the measures provided pursuant to this chapter are no longer 
necessary'' (16 U.S.C. 1532(3)). Because the designation of critical 
habitat is thus focused on the future recovery of listed species, it is 
by necessity a forward-looking exercise. Therefore, we are designating 
critical habitat, based on the best available science, to ensure 
tidewater goby recovery is not precluded, even if this designation is

[[Page 8788]]

made in response to a future threat to the species or the need to 
restore habitat so that the species may be reintroduced there. The 
areas designated as critical habitat in this rule are essential for the 
conservation of the tidewater goby for various reasons depending on 
their location. Some of these areas are essential because they provide 
habitat for maintaining tidewater goby metapopulations where the 
distances between units that were occupied at the time of listing make 
it difficult for tidewater goby to disperse. Other areas are essential 
to help prevent the extirpation of a metapopulation in which only one 
or two occupied sites remain. As discussed in the Metapopulation 
Dynamics section, the number of subpopulations is important to the 
long-term stability of a metapopulation. In addition to serving as 
``stepping stones'' between subpopulations, these areas have also been 
identified in the Recovery Plan as being important for the conservation 
of the species because they would serve as a buffer, decreasing the 
vulnerability of an entire metapopulation to natural episodic 
catastrophic events, maintaining its genetic diversity, and increasing 
its probability of persistence.
    (18) Comment: One commenter suggested we provide site-specific 
explanations for why we did not propose some occupied sites and some of 
the potential reintroduction sites identified in the Recovery Plan.
    Our Response: The 2005 Recovery Plan lists all areas known to be 
occupied or to have been historically occupied or to have the potential 
for being occupied if habitat is restored. However, it is not the 
intent of the Act to designate critical habitat for every population 
and every documented historical location of a species. Rather, the Act 
requires that we designate only specific areas within the geographical 
area occupied by the species, at the time it is listed in accordance 
with the Act, on which are found those physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protection. In addition, the Act 
requires that we determine whether specific areas outside the 
geographical area occupied by the species at the time it is listed are 
essential for the conservation of the species.
    In the Criteria Used To Identify Critical Habitat section above, we 
used the best scientific and commercial data available to set out the 
criteria for identifying the areas that meet the requirements of the 
Act. These criteria include: areas that support source populations; 
areas that support subpopulations in addition to source populations 
within each metapopulation; areas that provide connectivity between 
metapopulations; areas of aquatic habitat in coastal lagoons and 
estuaries with still-to-slow-moving water that allow for the 
conservation of viable metapopulations under varying environmental 
conditions; areas that provide connectivity between source populations 
or may provide connectivity in the future; and additional areas that 
may be more isolated but may represent unique adaptations to local 
features. We applied these criteria to all existing and potential 
habitat for the tidewater goby in this designation, and have designated 
the areas that meet the definition of critical habitat. In some cases 
we included areas recommended as potential introduction and 
reintroduction sites that, because of their location, could provide 
important connectivity. In addition, occupied areas outside the final 
revised critical habitat designation will continue to be subject to 
conservation actions implemented under section 7(a)(1) of the Act, 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, and the prohibitions of section 9 of the Act. These 
protections and conservation tools will continue to contribute to 
recovery of this species.
    (19) Comment: One commenter suggested the final revised critical 
habitat designation should not interrupt ongoing management plans and 
projects, and should not require reinitiation of consultation for 
existing permits and consultations.
    Our Response: Because the critical habitat designation only applies 
to actions that are authorized, funded, or carried out by a Federal 
agency, ongoing management plans and projects may be unaffected by the 
final designation. Only those plans and projects where a Federal agency 
has continuing discretionary authority may be affected. The regulations 
that implement section 7(a)(2) of the Act require reinitiation of 
formal consultation when certain criteria are met, including when a new 
species is listed or critical habitat is designated that may be 
affected by the action (50 CFR 402.16). Therefore, we cannot formulate 
the final rule to eliminate the requirement to reinitiate formal 
consultation when an ongoing project under continuing Federal 
discretionary authority may affect the designated critical habitat. 
However, if an ongoing management plan or project upon which we had 
previously consulted would not have an adverse effect on the designated 
critical habitat, reinitiation would not be required.
Public Comments Regarding Threats to the Species
    (20) Comment: One commenter disputed the listing of the tidewater 
goby based on a lack of scientific research on threats to tidewater 
goby.
    Our Response: The final rule to list the tidewater goby was 
published in the Federal Register on February 4, 1994 (59 FR 5494). The 
final rule determined the tidewater goby to be an endangered species in 
part because of past and continuing losses of coastal and riparian 
habitats within the historical range of the species. Since the 
publication of the final listing rule, we have published a recovery 
plan for the species (2005), and a 5-Year Review (2007), both of which 
contain a threats analysis describing threats to the species and 
present the best available scientific information regarding the status 
of the species.
    (21) Comment: One commenter opposed the expansion of critical 
habitat, and has a specific issue with the citation of ``cattle grazing 
and feral pig activity that results in increased sedimentation of 
coastal lagoons and riparian habitats, removal of vegetative cover, 
increased ambient water temperatures and elimination of plunge pools 
and undercut banks utilized by the tidewater goby'' as a threat.
    Our Response: Threats to the tidewater goby due to poor livestock 
grazing practices are well-documented in the scientific literature. 
Adverse effects occur through watershed alteration and subsequent 
changes in the natural flow regime, sediment production, and stream 
channel morphology (Platts 1990, pp. I-9-I-11; Belsky et al. 1999, pp. 
1-3, 8-10; Service 2001, pp. 50-67). Livestock grazing can destabilize 
stream channels and disturb riparian ecosystem functions (Platts 1990, 
pp. I-9-I-11; Armour et al. 1991, pp. 7-10; Tellman et al. 1997, pp. 
20-21, 33, 47, 101-102; Wyman et al. 2006, pp. 5-7). Furthermore, 
improper livestock grazing can negatively affect tidewater goby through 
removal of riparian vegetation (Propst et al. 1986, p. 3; Clary and 
Webster 1989, p. 1; Clary and Medin 1990, p. 1; Schulz and Leininger 
1990, p. 295; Fleishner 1994, pp. 631- 633, 635-636), which can result 
in reduced bank stability and higher water temperatures (Kauffman and 
Krueger 1984, pp. 432-434; Platts and Nelson 1989, pp. 453, 455; 
Fleishner 1994, pp. 635-636; Belsky et al. 1999, pp. 2-5, 9-10). 
Livestock grazing can also cause increased sediment in the stream 
channel due to streambank trampling

[[Page 8789]]

and riparian vegetation loss (Weltz and Wood 1986, pp. 364-368; Pearce 
et al. 1998, pp. 302, 307; Belsky et al. 1999, p. 10). Livestock can 
physically alter the streambank through trampling and shearing, leading 
to bank erosion (Trimble and Mendel 1995, pp. 243-244; Belsky et al. 
1999, p. 1). In combination, loss of riparian vegetation and bank 
erosion can alter channel morphology, including increased erosion and 
deposition, increased sediment loads, downcutting, and an increased 
width-to-depth ratio, all of which lead to a loss of tidewater goby 
habitat components. Lastly, livestock grazing management also continues 
to include construction and maintenance of open stocktanks, which are 
often stocked with nonnative aquatic species that are harmful to 
tidewater goby if they escape or are transported to waters where the 
tidewater goby occurs. In some cases, stocktanks are used to stock 
nonnative fish for sportfishing, or they may support other nonnative 
aquatic species such as African clawed frogs, or bullfrogs. In cases 
where stocktanks are in close proximity to live streams, they may 
occasionally be breached or flooded, resulting in nonnative fish 
escaping from the stocktank and entering stream habitats (Hedwall and 
Sponholtz 2005, pp. 1-2; Stone et al. 2007, p. 133).
    (22) Comment: One commenter stated that we have neglected to take 
the benefits of grazing into consideration and have omitted mention of 
the effects of feral pigs throughout the proposed rule with the one 
exception of the first mention on page 64999. The commenter also states 
that the censure of cattle grazing and its effects on the tidewater 
goby discounts an entire body of scientific work, which has determined 
that proper monitoring and grazing of riparian zones has helped to 
provide habitat for the tidewater goby.
    Our Response: We acknowledge that improved livestock grazing 
practices have reduced impacts to native fishes including the tidewater 
goby. However, although adverse effects are less than in the past, 
livestock grazing within watersheds where tidewater goby and its 
habitat are located continues to cause adverse effects, and on Federal 
lands, improvements occurred primarily by discontinuing grazing in 
riparian and stream corridors (Service 1997, pp. 121-129, 137-141; 
Service 2001, pp. 50-67). Furthermore, we do recognize that feral pigs 
are a threat in this final critical habitat rule (see ``Threats'' 
section), the final listing rule (59 FR 5494), and the Recovery Plan 
(Service 2005, p. 16).
    (23) Comment: One commenter suggested that, in lieu of designating 
critical habitat, we should implement existing grazing programs and 
Federal programs to minimize impacts to habitat.
    Our Response: Please refer to our response to Comment 21 above. 
Impacts from livestock grazing on species such as the tidewater goby 
are decreasing due to improved management on Federal lands. However, 
implementation of the existing grazing programs and Federal programs 
only minimizes impacts to a certain extent, and livestock grazing 
within watersheds where tidewater goby and its habitat is located 
continues to cause adverse effects.
    (24) Comment: One commenter implied that eliminating grazing 
activities from areas designated as critical habitat will not improve 
tidewater goby habitat or recover the species.
    Our Response: Although we are not suggesting in this critical 
habitat designation for the tidewater goby that all livestock grazing 
activities be eliminated from critical habitat, studies on Federal 
lands found that improvements occurred primarily by discontinuing 
grazing in riparian and stream corridors (Service 1997, pp. 121-129, 
137-141; Service 2001, pp. 50-67).
Public Comments Regarding Climate Change
    (25) Comment: One commenter suggested we augment the connection we 
draw between the designation of unoccupied critical habitat and the 
threat of global warming.
    Our Response: We agree and have added a discussion on climate 
change in the ``Background'' section accordingly.
    (26) Comment: One commenter states there is a discrepancy in the 
proposed rule regarding the expansion of critical habitat in 
anticipation of sea-level rise. The commenter points out that we have 
stated in the 5-Year Review (Service 2007) that information currently 
available on the effects of global climate change is not sufficiently 
precise to determine what additional areas, if any, may be appropriate 
to include in the revised critical habitat designation for this species 
to address the effects of climate change.
    Our Response: We have added a discussion on climate change in the 
``Background'' section of this rule that includes information on sea 
level rise published subsequent to the 5-year review.
    Substantial advances in our ability to predict changes that will 
occur as a result of climate change such as sea level rise have been 
made since the publication of the 5-year review in 2007. For example, 
between 1897 and 2006, the observed sea level rise has been 
approximately 2 millimeters (0.08 in) per year, or a total of 20 cm (8 
in) over that period (Heberger et al. 2009, p. 6). Estimates prior to 
the 2007 5-year review projected that sea level rise along the 
California coast would follow a similar rate and reach 0.2-0.6 m (0.7-2 
ft) by 2100 (IPCC 2007). Observations and modeling conducted since the 
2007 5-year review indicate that earlier projections were conservative 
and ignored some critical factors, such as melting of the Greenland and 
Antarctica ice sheets (Heberger et al. 2009, p. 6). Heberger et al. 
(2009, p. 8) have updated the sea level rise projections for California 
to 1.0-1.4 m (3.3-4.6 ft) by 2100, while Vermeer and Rahmstorf (2009, 
p. 21530) calculate the sea level rise globally at 0.57-1.9 m (2.4-6.2 
ft); in both cases, recent estimates were more than twice earlier 
projections.
    Based on the information above and in the ``Background'' section, 
sea levels have been rising and are continuing to rise. Rising sea 
levels will affect the tidewater goby and its habitat in several ways. 
Many coastal lagoons and estuaries where tidewater goby occur will be 
converted from brackish to primarily saltwater bodies. In addition, 
more severe storms that are likely to result from climate change (Cayan 
et al. 2009, p. 38), combined with the higher than normal sea levels, 
will breach sand bars at lagoon mouths more frequently. Therefore, it 
is appropriate to include the threat of global climate change as a 
basis for the designation of critical habitat units for the tidewater 
goby.

Comments Related to the Draft Economic Analysis

    (27) Comment: One commenter expressed concern over the use of 
annualized values in the DEA. This comment suggests that the use of 
values annualized over a 20-year period mischaracterizes the impact of 
the proposed rule because all costs will be one-time costs.
    Our Response: The DEA adopts the standard practice of reporting 
both present value and annualized impacts. Incremental project 
modification costs are assigned to the year in which they are assumed 
to occur. In cases where the timing of project modification costs is 
unknown, the DEA conservatively assumes that the costs occur in the 
first year of the study period. For example, the incorporation of 
tidewater goby into two habitat conservation plans in units MAR-5 and 
SLO-12 is assumed to occur immediately following the designation of 
critical habitat in year 2012. Species surveying in unit SLO-12 is 
assumed to occur every 2 years

[[Page 8790]]

beginning in 2012. Lacking information on when administrative impacts 
due to potential section 7 consultations will occur, the DEA assumes 
these costs are spread evenly over the 20-year analysis period.
    (28) Comment: One commenter asserted that the DEA fails to mention 
compliance costs, such as the cost of fencing riparian grazing areas 
that may be required as a result of consultation.
    Our Response: As described in Section 2.4.4 of the DEA, we are 
unlikely to request additional conservation efforts to avoid the 
destruction or adverse modification of critical habitat compared to 
efforts to avoid jeopardy of the species. As a result, project 
modifications such as fencing are considered baseline impacts in areas 
occupied by the tidewater goby. While these types of project 
modifications are discussed in the DEA (see Exhibit 3-1), baseline 
impacts are not monetized in the DEA. In areas not considered occupied 
by the tidewater goby, potential incremental project modifications are 
identified through communication with land managers and are described 
and monetized in the DEA. We did not identify any areas where 
incremental project modifications to grazing activities would be 
expected to occur as a result of critical habitat designation for the 
tidewater goby.
    (29) Comment: One commenter expressed concern that the designation 
of critical habitat could result in increased State regulation. This 
comment suggests that the DEA should consider potential indirect 
impacts of additional conservation measures requested by State 
agencies.
    Our Response: Chapter 2 of the DEA acknowledges the potential for 
several types of indirect impacts, including increased State and local 
regulation. There is no indication that States or local agencies will 
change the types of conservation efforts requested following the 
designation of critical habitat for the tidewater goby. In addition, we 
believe that the public is well aware of areas considered to be 
critical habitat given the lengthy history of the designation and the 
existence of the tidewater goby recovery plan. As a result, the DEA 
does not anticipate any costs associated with increased State 
regulation.
    (30) Comment: One commenter noted that Del Norte County has 
suffered economically in recent years, in part due to cumulative 
effects of regulatory restrictions. This comment implies that the 
designation of critical habitat for the tidewater goby would have a 
substantial economic impact on the County.
    Our Response: As described in Section 2.4.4 of the DEA, we are 
unlikely to request additional conservation efforts to avoid the 
destruction or adverse modification of critical habitat compared to 
efforts to avoid jeopardy of the species. Because all critical habitat 
within Del Norte County is considered occupied by the tidewater goby, 
no incremental conservation measures are anticipated. The DEA does 
forecast administrative impacts associated with the additional 
consideration of adverse modification of critical habitat in three 
section 7 consultations within Del Norte County over a 20-year period. 
Appendix A of the DEA identifies Del Norte County as a small 
governmental jurisdiction and evaluates the likelihood that these 
incremental administrative impacts will substantially affect the 
County's economy. For this analysis, the DEA makes the conservative 
assumption that all three forecast consultations will occur in the same 
year, and concludes that impacts will not exceed one percent of annual 
County revenues.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. The Office of Information and Regulatory 
Affairs has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of an agency certifies the rule will not have a significant 
economic impact on a substantial number of small entities. The SBREFA 
amended the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. In this final rule, we are certifying that the critical 
habitat designation for tidewater goby will not have a significant 
economic impact on a substantial number of small entities. The 
following discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts on 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (for example, 
water management, transportation and utilities, livestock grazing, 
natural resource management). We apply the ``substantial number'' test 
individually to each industry to determine if certification is 
appropriate. However, the SBREFA does not

[[Page 8791]]

explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the tidewater goby. Federal agencies also must consult 
with us if their activities may affect critical habitat. Designation of 
critical habitat, therefore, could result in an additional economic 
impact on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities (see Application of the 
``Adverse Modification Standard'' section).
    In our final economic analysis (FEA) of the critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
designation of critical habitat. The analysis is based on the estimated 
impacts associated with the rulemaking as described in Chapters 1 
through 6 and Appendix A of the analysis and evaluates the potential 
for economic impacts related to: (1) Water management; (2) cattle 
grazing; (3) transportation (roads, highways, bridges); (4) utilities 
(oil and gas pipelines); (5) residential, commercial, and industrial 
development; and (6) natural resource management.
    As described in Chapters 4 and 5 of the FEA, estimated incremental 
impacts consist primarily of administrative costs and time delays 
associated with section 7 consultation. The Service and the Federal 
action agency are the only entities with direct compliance costs 
associated with this proposed critical habitat designation, although 
small entities may participate in section 7 consultation as an 
applicant. It is therefore possible that the small entities may spend 
additional time considering critical habitat during section 7 
consultation for the tidewater goby. The FEA indicated that the 
incremental impacts potentially incurred by small entities are limited 
to development, natural resource management, transportation, utilities, 
and water management activities.
    Chapter 5 of the FEA discusses the potential for proposed revised 
critical habitat to affect development through additional costs of 
section 7 consultation. These costs are borne by developers and 
existing landowners, depending on whether developers are able to pass 
all or a portion of their costs back to landowners in the form of lower 
prices paid for undeveloped land. Of the total number of entities 
engaged in land subdivision and residential, commercial, industrial and 
institutional construction, nearly 99 percent are small entities.
    Whether individual developers are affected depends on the specific 
characteristics of a particular land parcel as well as the availability 
of land within the affected region. If land is not scarce, the price of 
a specific parcel will likely incorporate any regulatory restrictions 
on that parcel. Therefore, any costs associated with conservation 
efforts for tidewater goby will likely be reflected in the price paid 
for the parcel. In this case, the costs of conservation efforts are 
ultimately borne by the current landowner in the form of reduced land 
values. Many of these landowners may be individuals or families that 
are not legally considered to be businesses.
    If, however, land in the affected region is scarce, or the 
characteristics of the specific parcel are unique, the price of a 
parcel may not incorporate regulatory restrictions associated with that 
parcel. In this case, the project developer may be required to incur 
the additional costs associated with the section 7 consultation 
process. To understand the potential impacts on small entities, we 
conservatively assumed that all of the private owners of developable 
lands affected by proposed revised critical habitat designation are 
developers.
    In Chapter 5 of the FEA, we estimated that a total of 20 formal, 
informal, and technical assistance consultations, plus one 
reinitiation, may require additional effort to consider adverse 
modification of revised critical habitat. Assuming that each 
consultation is undertaken by a separate entity, we estimate that 21 
developers may be affected by the designation. For purposes of this 
analysis, and because nearly 99 percent of developers in the study area 
are small, we assume that all 21 are small entities. These developers 
represent less than 0.1 percent of small developers in the study area.
    Excluding costs borne by Federal agencies, costs per consultation 
range from $260 for technical assistance to $1,800 for reinitiation of 
a formal consultation. Because we were unable to identify the specific 
entities affected, the impact relative to those entities' annual 
revenues or profits is unknown. However, assuming the average small 
entity has annual revenues of approximately $5.1 million, this maximum 
annualized impact of $1,800 represents less than 0.1 percent of annual 
revenues.
    The consultation history for natural resource management projects 
suggests that these projects are generally undertaken by Federal and 
State agencies, or County departments. The DEA estimated incremental 
administrative costs for section 7 consultation on natural resource 
management in every County except Orange County. Only one of these 
entities, Del Norte County, meets the threshold for small governmental 
jurisdiction. Del Norte County is anticipated to incur administrative 
costs associated with addressing adverse modification in approximately 
three consultations, including one reinitiation. Even if all 
consultations occur in the same year, total impacts to Del Norte County 
will be less than 1 percent of the County's annual revenue.
    The consultation history for tidewater goby includes several 
consultations regarding utilities and oil and gas development. In 
Chapter 5 of the FEA, we estimate that 24 consultations involving 
utility activities will occur during the 20-year period. Based on the 
overall percentage of all small entities in the study area (56 
percent), we estimated that 14 of the 24 total entities that will be 
affected over the 20-year period are small entities. Excluding costs to 
Federal agencies, the cost per entity of addressing adverse 
modification in section 7 consultation ranges from $260 for technical 
assistance to $880 for a formal consultation (no reinitiations are 
predicted for utility activities.). Because we are unable to identify 
the specific entities affected, the impact relative to those entities' 
annual revenues or profits is unknown. However, assuming the average 
small entity in this industry has annual revenues of approximately $9.3 
million, this maximum annualized impact of $880 represents less than 
0.01 percent of annual revenues.
    Chapter 5 of the FEA also discusses the potential for water 
management

[[Page 8792]]

activities to be affected by the designation. Over the 20-year period, 
we estimate that 125 consultations involving water management 
activities, including reinitiations, will occur. Based on the overall 
percentage of all small entities in the study area (83 percent), we 
estimate that 104 of the 125 total entities that will be affected over 
the 20-year period are small entities. Excluding costs to Federal 
agencies, the cost per entity of addressing adverse modification in 
section 7 consultation ranges from $260 for technical assistance to 
$1,800 for reinitiation of a formal consultation. Because we are unable 
to identify the specific entities affected, the impact relative to 
those entities' annual revenues or profits is unknown. However, 
assuming the average small entity in this industry has annual revenues 
of approximately $5.0 million, this maximum annualized impact of $1,800 
represents less than 0.1 percent of annual revenues.
    The DEA also concludes that none of the government entities with 
which we might consult on tidewater goby for transportation or 
recreation meet the definitions of small as defined by the Small 
Business Act (SBE) (IEC 2012, p. A-6); therefore, impacts to small 
government entities due to transportation and recreation are not 
anticipated. A review of the consultation history for tidewater goby 
suggests that future section 7 consultations on livestock grazing (for 
example, ranching operations) are unlikely, and as a result are not 
anticipated to be affected by the critical habitat designation (IEC 
2012, p. 5-13). Please refer to the DEA for a more detailed discussion 
of potential economic impacts.
    In summary, we considered whether this designation would result in 
a significant economic impact on a substantial number of small 
entities. Based on the above reasoning and currently available 
information, we are certifying that the designation of critical habitat 
for tidewater goby will not have a significant economic impact on a 
substantial number of small entities, and a regulatory flexibility 
analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. Chapter 5 of the economic analysis 
discusses the potential for critical habitat to affect utilities 
through the additional cost of considering adverse modification in 
section 7 consultation. Excluding the portion of administrative costs 
accruing to Federal agencies, we forecast incremental costs of less 
than $9,700 over 20 years to be incurred by the energy and utility 
industry for section 7 consultations. In annualized terms, this 
represents less than $500 annually. The additional costs are unlikely 
to increase the costs of energy production or distribution in the 
United States in excess of one percent.
    The economic analysis finds that none of the nine outcomes are 
relevant to this analysis. Thus, based on information in the economic 
analysis, energy-related impacts associated with tidewater goby 
conservation activities within critical habitat are not expected. As 
such, the designation of critical habitat is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it would not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The FEA concludes only Del Norte County meets the threshold for 
small governmental jurisdiction. Del Norte County is anticipated to 
incur administrative costs associated with addressing adverse 
modification in approximately three consultations, including one 
reinitiation. Even if all consultations occur in the same year, total 
impacts to Del Norte County will be less than one percent of the 
County's annual revenue, which was $65 million in 2012. Consequently, 
we do not believe that the critical habitat designation would 
significantly or uniquely affect small government entities. As such, a 
Small Government Agency Plan is not required.

[[Page 8793]]

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for tidewater goby in a takings implications 
assessment. As discussed above, the designation of critical habitat 
affects only Federal actions. Although private parties that receive 
Federal funding, assistance, or require approval or authorization from 
a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency. The FEA has concluded that this critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. The 
takings implications assessment concludes that this designation of 
critical habitat for tidewater goby does not pose significant takings 
implications for lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this critical habitat designation 
with appropriate State resource agencies in California. We solicited 
but did not receive comments from the California Department of Parks 
and Recreation, California Department of Fish and Game, California 
Coastal Conservancy, and California Coastal Commission. The designation 
of critical habitat for the tidewater goby may impose nominal 
additional regulatory restrictions to those currently in place and, 
therefore, may have some incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas that contain the physical or 
biological features essential to the conservation of the species are 
more clearly defined, and the elements of the features of the habitat 
necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the species. The designated 
areas of critical habitat are presented on maps, and the rule provides 
several options for the interested public to obtain more detailed 
location information, if desired.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no tribal 
lands within the geographical area occupied by the tidewater goby at 
the time of listing that contain the features essential for 
conservation of the species, and no tribal lands outside the 
geographical area occupied by the tidewater goby at the time of listing 
that are essential for the conservation of the species. Therefore, we 
are not designating critical habitat for the tidewater goby on tribal 
lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the, 
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary authors of this rulemaking are the staff members of the 
Ventura Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

[[Page 8794]]

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

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

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


0
2. In Sec.  17.95(e), revise the entry for ``Tidewater goby 
(Eucyclogobius newberryi)'', to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Tidewater Goby (Eucyclogobius newberryi)
    (1) Critical habitat units are depicted for Del Norte, Humboldt, 
Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis 
Obispo, Santa Barbara, Ventura, Los Angeles, Orange, and San Diego 
Counties, California, on the maps below.
    (2) Within these areas, the primary constituent element of the 
physical or biological features essential to the conservation of 
tidewater goby consist of persistent, shallow (in the range of 
approximately 0.3 to 6.6 ft (0.1 to 2 m)), still-to-slow-moving 
lagoons, estuaries, and coastal streams with salinity up to 12 parts 
per thousand (ppt), which provides adequate space for normal behavior 
and individual and population growth that contain:
    (i) Substrates (e.g., sand, silt, mud) suitable for the 
construction of burrows for reproduction;
    (ii) Submerged and emergent aquatic vegetation, such as Potamogeton 
pectinatus, Ruppia maritima, Typha latifolia, and Scirpus spp., that 
provides protection from predators and high flow events; or
    (iii) Presence of a sandbar(s) across the mouth of a lagoon or 
estuary during the late spring, summer, and fall that closes or 
partially closes the lagoon or estuary, thereby providing relatively 
stable water levels and salinity.
    (3) Critical habitat does not include manmade structures (such as 
bridges, docks, aqueducts, and other paved areas) and the land on which 
they are located existing within the legal boundaries on March 8, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created for most units using National Wetlands Inventory (NWI) data 
(both published data available over the Internet and in publication 
provisional data). Where NWI data was lacking, unit boundaries were 
digitized directly on imagery from the Department of Agriculture's 
National Aerial Imagery Program data (NAIP) acquired in 2005. Critical 
habitat units were mapped using Universal Transverse Mercator (UTM), 
zones 10 and 11. The maps in this entry, as modified by any 
accompanying regulatory text, establish the boundaries of the critical 
habitat designation. The coordinates or plot points or both on which 
each map is based are available to the public at the Service's internet 
site, http://www.fws.gov/ventura/, http://www.regulations.gov at Docket 
No. FWS-R8-ES-2011-0085, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Index map of critical habitat units for the tidewater goby 
(Eucyclogobius newberryi) in Northern California follows:
BILLING CODE 4310-55-P

[[Page 8795]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.008

    (6) Unit DN 1: Tillas Slough, Del Norte County California. Map of 
Units DN 1 and DN 2 follows:

[[Page 8796]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.009

    (7) Unit DN 2: Lake Talawa/Lake Earl, Del Norte County, California. 
Map of Unit DN 1 and DN 2 is provided at paragraph (6) of this entry.
    (8) Unit HUM 1: Stone Lagoon, Humboldt County California. Map of 
Units HUM 1 and HUM 2 follows:

[[Page 8797]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.010

    (9) Unit HUM 2: Big Lagoon, Humboldt County, California. Map of 
Units HUM 1 and HUM 2 is provided at paragraph (8) of this entry.
    (10) Unit HUM 3: Humboldt Bay, Humboldt County, California. Map 
follows:

[[Page 8798]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.011

    (11) Subunit HUM 4a: Eel River North Area. Map of Subunits HUM 4a 
and HUM 4b follows:

[[Page 8799]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.012

    (12) Subunit HUM 4b: Eel River South Area. Map of Subunits HUM 4a 
and HUM 4b is provided at paragraph (11) of this entry.
    (13) Unit MEN 1: Tenmile River, Mendocino County, California. Map 
of Units MEN 1, MEN 2, and MEN 3 follows:

[[Page 8800]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.013

    (14) Unit MEN 2: Virgin Creek, Mendocino County, California. Map of 
Units MEN 1, MEN 2, and MEN 3 is provided at paragraph (13) of this 
entry.
    (15) Unit MEN 3: Pudding Creek, Mendocino County, California. Map 
of Units MEN 1, MEN 2, and MEN 3 is provided at paragraph (13) of this 
entry.
    (16) Unit MEN 4: Davis Lake and Manchester Sate Park Ponds, 
Mendocino
    County, California. Map follows:

[[Page 8801]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.014

    (17) Unit SON 1: Salmon Creek, Sonoma County California. Map of 
Units SON 1, MAR 1, MAR 2, MAR 3, and MAR 4 follows:

[[Page 8802]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.015

    (18) Unit MAR 1: Estero Anericano, Marin County, California. Map of 
Units SON 1, MAR 1, MAR 2,MAR 3 and MAR 4 is provided at paragraph (17) 
of this entry.
    (19) Unit MAR 2: Estero de San Antonio, Marin County, California. 
Map of Units SON 1, MAR 1, MAR 2, MAR 3, and MAR 4 is provided at 
paragraph (17) of this entry.
    (20) Unit MAR 3: Walker Creek, Marin County, California. Map of 
Units SON 1, MAR 1, MAR 2, MAR 3, and MAR 4 is provided at paragraph 
(17) of this entry.
    (21) Unit MAR 4: Lagunitas (Pepermill) Creek, Marin County, 
California. Map of Units SON 1, MAR 1, MAR 2, MAR 3, and MAR 4 is 
provided at paragraph (17) of this entry.
    (22) Unit MAR 5: Bolinas Lagoon, Marin County, California. Map of 
Units MAR 5 and MAR 6 follows:

[[Page 8803]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.016

    (23) Unit MAR 6: Rodeo Lagoon, Marin County, California. Map of 
Units MAR 5 and MAR 6 is provided at paragraph (21) of this entry.
    (24) Unit SM 1: San Gregorio Creek, San Mateo County, California. 
Map of Units SM 1, SM 2, SM 3, and SM 4 follows:

[[Page 8804]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.017

    (25) Unit SM 2: Pomponio Creek, San Mateo County, California. Map 
of Units SM 1, SM 2, SM 3, and SM 4 is provided at paragraph (24) of 
this entry.
    (26) Unit SM 3: Pescadero-Butano Creeks, San Mateo County, 
California. Map of Units SM 1, SM 2, SM 3, and SM 4 is provided at 
paragraph (24) of this entry.
    (27) Unit SM 4: Bean Hollow Creek, San Mateo County, California. 
Map of Units SM 1, SM 2, SM 3, and SM 4 is provided at paragraph (24) 
of this entry.
    (28) Index map of critical habitat units for the tidewater goby 
(Eucyclogobius newberryi) in Southern California follows:

[[Page 8805]]

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    (29) Unit SC 1: Waddell Creek, Santa Cruz County, California. Map 
of Unit SC 1, SC 2, SC 3, and SC 4 follows:

[[Page 8806]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.019

    (30) Unit SC 2: Scott Creek, Santa Cruz County, California. Map of 
Units SC 1, SC 2, SC 3, and SC 4 is provided at paragraph (29) of this 
entry.
    (31) Unit SC 3: Laguna Creek, Santa Cruz County, California. Map of 
Units SC 1, SC 2, SC 3, and SC 4 is provided at paragraph (29) of this 
entry.
    (32) Unit SC 4: Baldwin Creek, Santa Cruz County, California. Map 
of Units SC 1, SC 2, SC 3, and SC 4 is provided at paragraph (29) of 
this entry.
    (33) Unit SC 5: Moore Creek, Santa Cruz County, California. Map of 
Units SC 5, SC 6, and SC 7 follows:

[[Page 8807]]

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    (34) Unit SC 6: Corcoran Lagoon, Santa Cruz County, California. Map 
of Units SC 5, SC 6, and SC 7 is provided at paragraph (33) of this 
entry.
    (35) Unit SC 7: Aptos Creek, Santa Cruz County, California. Map of 
Units SC 5, SC 6, and SC 7 is provided at paragraph (33) of this entry.
    (36) Unit SC 8: Pajaro River, Santa Cruz County, California. Map of 
Units SC 8, MN 1, and MN 2 follows:

[[Page 8808]]

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    (37) Unit MN 1: Bennett Slough, Monterey County, California. Map of 
Units SC 8, MN 1, and MN 2 is provided at paragraph (36) of this entry.
    (38) Unit MN 2: Salinas River, Monterey County, California. Map of 
Units SC 8, MN 1, and MN 2 is provided at paragraph (36) of this entry.
    (39) Unit SLO 1: Arroyo de la Cruz, San Luis Obispo County, 
California. Map of Unit SLO 1, SLO 2, SLO 3, SLO 4, and SLO 5 follows:

[[Page 8809]]

[GRAPHIC] [TIFF OMITTED] TR06FE13.022

    (40) Unit SLO 2: Arroyo del Corral, San Luis Obispo County, 
California. Map of Units SLO 1, SLO 2, SLO 3, SLO 4 and SLO 5 is 
provided at paragraph (39) of this entry.
    (41) Unit SLO 3: Oak Knoll Creek, San Luis Obispo County, 
California. Map of Units SLO 1, SLO 2, SLO 3, SLO 4 and SLO 5 is 
provided at paragraph (39) of this entry.
    (42) Unit SLO 4: Little Pico Creek, San Luis Obispo County, 
California. Map of Units SLO 1, SLO 2, SLO 3, SLO 4 and SLO 5 is 
provided at paragraph (39) of this entry.
    (43) Unit SLO 5: San Simeon Creek, San Luis Obispo County, 
California. Map of Units SLO 1, SLO 2, SLO 3, SLO 4 and SLO 5 is 
provided at paragraph (39) of this entry.
    (44) Unit SLO 6: Villa Creek, San Luis Obispo County, California. 
Map of Units SLO 6, SLO 7, SLO 8 and SLO 9 follows:

[[Page 8810]]

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    (45) Unit SLO 7: San Geronimo Creek, San Luis Obispo County, 
California. Map of Units SLO 6, SLO 7, SLO 8, and SLO 9 is provided at 
paragraph (44) of this entry.
    (46) Unit SLO 8: Toro Creek, San Luis Obispo County, California. 
Map of Units SLO 6, SLO 7, SLO 8, and SLO 9 is provided at paragraph 
(44) of this entry.
    (47) Unit SLO 9: Los Osos Creek, San Luis Obispo County, 
California. Map of Units SLO 6, SLO 7, SLO 8, and SLO 9 is provided at 
paragraph (44) of this entry.
    (48) Unit SLO 10: San Luis Obispo Creek, San Luis Obispo County, 
California. Map of Units SLO 10, SLO 11, SLO 12, and SB 1 follows:

[[Page 8811]]

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    (49) Unit SLO 11: Pismo Creek, San Luis Obispo County, California. 
Map of Units SLO 10, SLO 11, SLO 12, and SB 1 is provided at paragraph 
(48) of this entry.
    (50) Unit SLO 12: Oso Flaco Lake, San Luis Obispo County, 
California. Map of Units SLO 10, SLO 11, SLO 12, and SB 1 is provided 
at paragraph (48) of this entry.
    (51) Unit SB 1: Santa Maria River, San Luis Obispo County, 
California. Map of Units SLO 10, SLO 11, SLO 12, and SB 1 is provided 
at paragraph (48) of this entry.
    (52) Unit SB 2: Ca[ntilde]ada de las Agujas, Santa Barbara County, 
California. Map of Units SB 2, SB 3, SB 4, SB 5, SB 6, and SB 7 
follows:

[[Page 8812]]

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    (53) Unit SB 3: Ca[ntilde]ada de Santa Anita, Santa Barbara County, 
California. Map of Units SB 2, SB 3, SB 4, SB 5, SB 6, and SB 7 is 
provided at paragraph (52) of this entry.
    (54) Unit SB 4: Ca[ntilde]ada de Alegria, Santa Barbara County, 
California. Map of Units SB 2, SB 3, SB 4, SB 5, SB 6, and SB 7 is 
provided at paragraph (52) of this entry.
    (55) Unit SB 5: Ca[ntilde]ada del Agua Caliente, Santa Barbara 
County, California. Map of Units SB 2, SB 3, SB 4, SB 5, SB 6, and SB 7 
is provided at paragraph (52) of this entry.
    (56) Unit SB 6: Gaviota Creek, Santa Barbara County, California. 
Map of Units SB 2, SB 3, SB 4, SB 5, SB 6, and SB 7 is provided at 
paragraph (52) of this entry.
    (57) Unit SB 7: Arroyo Hondo, Santa Barbara County, California. Map 
of Units SB 2, SB 3, SB 4, SB 5, SB 6, and SB 7 is provided at 
paragraph (52) of this entry.
    (58) Unit SB 8: Winchester-Bell Canyon, Santa Barbara County, 
California. Map of SB 8, SB 9, and SB 10 follows:

[[Page 8813]]

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    (59) Unit SB 9: Goleta Slough, Santa Barbara County, California. 
Map of Units SB 8, SB 9, and SB 10 is provided at paragraph (58) of 
this entry.
    (60) Unit SB 10: Arroyo Burro, Santa Barbara County, California. 
Map of Units SB 8, SB 9, and SB 10 is provided at paragraph (58) of 
this entry.
    (61) Unit SB 11: Mission Creek--Laguna Channel, Santa Barbara 
County, California. Map of Units SB 11 and SB 12 follows:

[[Page 8814]]

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    (62) Unit SB 12: Arroyo Paredon, Santa Barbara County, California. 
Map of Units SB 11 and SB 12 is provided at paragraph (61) of this 
entry.
    (63) Unit VEN 1: Ventura River, Ventura County, California. Map of 
VEN 1, VEN 2, and VEN 3 follows:

[[Page 8815]]

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    (64) Unit VEN 2: Santa Clara River, Ventura County, California. Map 
of Units VEN 1, VEN 2, and VEN 3 is provided at paragraph (63) of this 
entry.
    (65) Unit VEN 3: J Street Drain--Ormond Lagoon, Ventura County, 
California. Map of Units VEN 1, VEN 2, and VEN 3 is provided at 
paragraph (63) of this entry.
    (66) Unit VEN 4: Big Sycamore Canyon, Ventura County, California. 
Map of Units VEN 1, LA 1, and LA 2 follows:

[[Page 8816]]

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    (67) Unit LA 1: Arroyo Sequit, Los Angeles County, California. Map 
of Units VEN 4, LA 1, and LA 2 is provided at paragraph (66) of this 
entry.
    (68) Unit LA 2: Zuma Canyon, Los Angeles County, California. Map of 
Units VEN 4, LA 1, and LA 2 is provided at paragraph (66) of this 
entry.
    (69) Unit LA 3: Malibu Creek, Los Angeles County, California. Map 
of Units LA 3, and LA 4 follows:

[[Page 8817]]

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    (70) Unit LA 4: Topanga Creek, Los Angeles County, California. Map 
of Units LA 3, and LA 4 is provided at paragraph (69) of this entry.
    (71) Unit OR 1: Aliso Creek, Orange County, California. Map of Unit 
OR 1 follows:

[[Page 8818]]

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    (72) Unit SAN 1: San Luis Rey River, San Diego County, California. 
Map of Unit SAN 1 follows:

[[Page 8819]]

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* * * * *

    Dated: November 26, 2012.
Eileen Sobeck,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-02057 Filed 2-5-13; 8:45 am]
BILLING CODE 4310-55-C