2024-29641. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the San Francisco Bay-Delta Distinct Population Segment of the Longfin Smelt

Table 1—Proposed Critical Habitat Unit for the Bay-Delta Longfin Smelt

[Area estimates reflect all water and land within the critical habitat unit boundary]

Critical habitat unit	Land ownership by type	Size of unit in acres/hectares		Occupied?
San Francisco Bay-Delta	Federal	20	8	Yes.
	State	257	104
	Local government	7	3
	Non-profit/nongovernmental organization	49	20
	Undetermined Shoreline	913	370
	Undetermined waters	90,384	36,578
	Total	91,630	37,082
Note: Area sizes may not sum due to rounding.

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We present a brief description of the unit, and reasons why it meets the definition of critical habitat for the Bay-Delta longfin smelt, below.

San Francisco Bay-Delta Unit

The San Francisco Bay-Delta Unit consists of 91,630 ac (37,082 ha) in total and is made up of 1,246 ac (504 ha) of shoreline area and 90,384 ac (36,578 ha) of stream and estuary water area within the San Francisco Bay estuary within Contra Costa, Napa, Sacramento, Solano, and Sonoma Counties, California. The unit extends from the numerous tributaries flowing into the Suisun Bay near the confluence of the Sacramento and San Joaquin Rivers at Sherman Island downstream approximately 7 to 10 miles (mi) (10 to 16 kilometers (km)) into San Pablo Bay near Point Pinole (Contra Costa County) and Midshipman Point at Tubbs Island (Sonoma County).

Ownership of shoreline areas within the proposed designation includes the U.S. Fish and Wildlife Service (20 ac (8 ha)), California Department of Fish and Wildlife (181 ac (73 ha)), California State Parks (3 ac (1.1 ha)), California Department of Water Resources (45 ac (18 ha)), California State Lands Commission (29 ac (12 ha)), local government (7 ac (3 ha)), and nonprofit and nongovernmental organizations (49 ac (20 ha)). Additionally, the proposed designation includes water areas of the San Francisco Bay estuary totaling approximately 90,384 ac (36,578 ha) of undetermined ownership. We have exempted Department of Defense (DoD) areas owned, managed, and controlled by the U.S. Army Military Ocean Terminal Concord (MOTCO) totaling approximately 753 ac (304 ha) under section 4(a)(3)(B)(i) of the Act (see Exemptions Application of Section 4(a)(3) of the Act, below).

The unit was occupied by the species at the time of listing and is still occupied. Seasonally, this unit contains all the identified PBFs essential to the conservation of the Bay-Delta longfin smelt. Particularly, those PBFs reflecting the habitat characteristics required by pre-spawning adults, eggs, larvae, and early juveniles for survival and successful reproduction are geographically associated with this area. The identified specific critical habitat areas may require special management considerations or protection to address activities that impact the PBFs identified for the Bay-Delta longfin smelt and may include those activities associated with habitat alteration (such as dredging, shoreline protection activities, or levee maintenance); changes to hydrology associated with reduced and altered freshwater flows and its resulting potential increases in saline habitat conditions; increased water temperatures; reduced food resource availability; and activities that introduce or increase pollutants and other contaminants into the estuary.

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 authorize, fund, 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 which 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.

Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species (50 CFR 402.02).

Compliance with the requirements of section 7(a)(2) is documented 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, and 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 formal 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 Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species 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 set forth requirements for Federal agencies to reinitiate consultation. Reinitiation of consultation is required and shall be requested by the Federal agency, where discretionary Federal involvement or control over the action has been retained or is authorized by law and: (1) if the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action. As provided in 50 CFR 402.16, the requirement to reinitiate consultations for new species listings or critical habitat designation does not apply to certain agency actions ( e.g., land management plans issued by the Bureau of Land Management in certain circumstances).

Destruction or Adverse Modification of Critical Habitat

The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires that our Federal Register documents “shall, to the maximum extent practicable, also include a brief description and evaluation of those activities (whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify such [critical] habitat, or may be affected by such designation.” Activities that may be affected by ( print page 3775) designation of critical habitat for the Bay-Delta longfin smelt include those that may affect the physical or biological features of the Bay-Delta longfin smelt's critical habitat. See the sections above on Physical or Biological Features Essential to the Conservation of the Species and Special Management Considerations or Protection for additional information.

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)) provides that 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 consult 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 proposed critical habitat designation for the Bay-Delta longfin smelt to determine if they meet the criteria for exemption from critical habitat under section 4(a)(3) of the Act. The following areas are Department of Defense (DoD) lands with completed, Service-approved INRMPs within the areas preliminarily identified as meeting the definition of critical habitat.

Approved INRMPs

U.S. Army Military Ocean Terminal Concord (MOTCO), Contra Costa and Solano Counties, California, 753 ac (304 ha).

Within the areas preliminarily identified as meeting the definition of critical habitat for the Bay-Delta longfin smelt, we identified a portion of shoreline (50 ac (20 ha)) and water area (703 ac (284 ha)) (753 ac (304 ha) total) of the San Francisco Bay estuary owned, controlled, and managed by the U.S. Army Military Surface Deployment and Distribution Command's 834th Transportation Battalion, which manages and operates the U.S. Army Military Ocean Terminal Concord (MOTCO). MOTCO is the primary munitions trans-shipment facility for the DoD on the West Coast of the United States.

The U.S. Army received full management authority for MOTCO on October 1, 2008, as a result of the 2005 Base Realignment and Closure process. Prior to this, MOTCO was a tenant command to Naval Weapon Station Seal Beach Detachment (NWSSBD) Concord, operating under the U.S. Navy. Military lands on MOTCO include a total of 6,641 ac (2,688 ha) of uplands, shoreline, and island areas adjacent to or within Suisun Bay in Contra Costa and Solano Counties, California. Other military lands formerly belonging to the NWSSBD have been declared surplus and have been operationally closed and transferred to the City of Concord.

In August 2023, staff at MOTCO in coordination with the Service and U.S. Department of Commerce National Oceanic and Atmospheric Administration-Fisheries, West Coast Region (NOAA) finalized and signed the Final MOTCO Integrated Natural Resources Management Plan (INRMP) (U.S. Army Corps of Engineers 2023, entire).

The INRMP provides the staff of MOTCO with an adaptive plan for managing natural resources to support and be consistent with the military mission while protecting and enhancing those natural resources for multiple use and ecological integrity. The INRMP is designed to meet statutory requirements of the Sikes Act as amended as well as manage and implement measures concerning conservation, protection, and management of fish and wildlife resources. The total area owned by the DoD at MOTCO includes inland areas (115 ac (47 ha)) and tidal areas (6,242 ac (2,526 ha)). The tidal area comprises a mainland operational portion and island areas that include approximately 5 miles (8 kilometers) of mainland shoreline; three ocean terminal piers and facilities for reception, staging, and loading of ammunition; railroad infrastructure; and the Los Medanos Hills. Approximately 703 ac (284 ha) of water area of the San Francisco Bay estuary are restricted use areas controlled by MOTCO that are used for docking and loading of vessels for military purposes. The offshore islands consist of approximately 2,045 ac (828 ha). The offshore islands and most of the marshlands within the tidal area at MOTCO are part of a wetland preserve area, established through a memorandum of understanding between the U.S. Navy and the Service (U.S. Navy and U.S. Fish and Wildlife Service 1984, entire). The islands are undeveloped, except for natural gas wells operated on the southern shore of Ryer Island operated by Chevron U.S.A. Inc. (California Department of Conservation 1982, pp. 1-11, 250). The mainland operational area is composed of old and new buildings, roads, and other developed infrastructure and landscaping.

The overall goal of the MOTCO INRMP is to integrate natural resources stewardship and compliance responsibilities with operational requirements to sustain the military mission at MOTCO as well as develop, initiate, and maintain programs for the conservation, utilization, and rehabilitation of natural resources at MOTCO. The following measures, objectives, and management strategies that have been identified and implemented to further the goal include:

• Ensure compliance with applicable Federal laws and regulations as they pertain to natural resources.
• Maintain and enhance biodiversity within the constraints of the military mission.
• Implement adaptive management strategies using flexible and responsive management techniques based upon scientific data gathered from monitoring programs, literature, and resource experts.
• Conserve the quality of habitat for Federal and State-listed endangered and threatened species. ( print page 3776)
• Maintain sufficient natural resources support personnel to implement, oversee, and monitor the management strategies of the INRMP.
• Provide for an institutional memory and Geographic Information System (GIS) based data inventory that may be used as a framework for future resources personnel to make installation management decisions.
• Maintain the distributions of sensitive plant and animal species and native plant communities, as well as their relationships to tidal hydrology and landscape features, until they become progressively better understood.
• Maintain or enhance levels of biodiversity and habitat quality on the installation.
• Maintain or enhance tidally influenced marsh habitats capable of supporting viable populations of the federally listed salt marsh harvest mouse (Reithrodontomys raviventris), California Ridgway's rail ( Rallus obsoletus obsoletus), and State listed California black rail ( Laterallus jamaicensis coturniculus).
• Maintain landscape-scale native habitat diversity and species richness.
• Monitor, control, and eventually eliminate the spread of nonnative invasive aquatic and marsh species, such as Brazilian waterweed (Egeria densa) and perennial pepperweed ( Lepidium latifolium), to enhance native aquatic and wetland communities.
• Adaptively manage approximately 3,227 ac (1,306 ha) of tidal wetlands at MOTCO using an improved understanding of the installation's tidal hydrology and its effects on native species diversity and habitat quality, as well as maintain and improve wetland functions and values.
• Continue management of the Wetland Preserve Area in collaboration with the Service and coordinate with other stakeholders on tidal wetland management issues.
• Ensure hydrologic regimes and erosion rates reflect natural conditions on-site.

MOTCO has shown a track record of implementing conservation actions related to their activities that protect and maintain habitat for sensitive species including reducing erosion and run-off into the estuary, protecting water quality, and managing, conserving, and protecting wetland and estuary habitat adjacent to the San Francisco Bay-Delta and areas occupied by the Bay-Delta longfin smelt. The conservation efforts identified in the INRMP and being implemented by MOTCO will provide a benefit to the Bay-Delta longfin smelt by reducing or eliminating negative water quality impacts from erosion, maintaining tidally influenced wetland habitat adjacent to the bay, providing better water conditions for the DPS's food resources, and adaptively managing tidal wetlands to maintain and improve wetland functions and values.

Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the MOTCO INRMP and that conservation efforts identified in the INRMP will provide a benefit to the Bay-Delta longfin smelt. Therefore, lands within this installation are exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including approximately 753 ac (304 ha) of shoreline and water habitat used by the Bay-Delta longfin smelt in this proposed critical habitat designation because of this exemption.

Consideration of Impacts Under 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 designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (hereafter, the “2016 Policy”; 81 FR 7226, February 11, 2016), both of which were developed jointly with the National Marine Fisheries Service (NMFS). We also refer to a 2008 Department of the Interior Solicitor's opinion entitled “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act” (M-37016).

In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. In our final rules, we explain any decision to exclude areas, as well as decisions not to exclude, to make clear the rational basis for our decision. We describe below the process that we use for taking into consideration each category of impacts and any initial analyses of the relevant impacts.

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed 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, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat ( e.g., under the Federal listing as well as other Federal, State, and local regulations). Therefore, the baseline represents the costs of all efforts attributable to the listing of the species under the Act ( i.e., conservation of the species and its habitat 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 would not be expected without 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 use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we ( print page 3777) choose to conduct a discretionary 4(b)(2) exclusion analysis.

Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with these E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. To determine whether the designation of critical habitat may have an economic effect of $200 million or more in any given year (which would trigger section 3(f)(1) of E.O. 12866, as amended by E.O. 14094), we used a screening analysis to assess whether a designation of critical habitat for the Bay-Delta longfin smelt is likely to exceed this threshold.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat (Service 2023b, entire). The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Bay-Delta longfin smelt (Industrial Economic Inc. (IEc) 2024, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographical areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs ( i.e., absent critical habitat designation) and includes any probable incremental economic impacts where land and water use may already be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation.

The presence of the listed species in occupied areas of critical habitat means that any destruction or adverse modification of those areas is also likely to jeopardize the continued existence of the species. Therefore, designating occupied areas as critical habitat typically causes little if any incremental impacts above and beyond the impacts of listing the species. As a result, we generally focus the screening analysis on areas of unoccupied critical habitat (unoccupied units or unoccupied areas within occupied units). Overall, the screening analysis assesses whether designation of critical habitat is likely to result in any additional management or conservation efforts that may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our economic analysis of the proposed critical habitat designation for the Bay-Delta longfin smelt and is summarized in the narrative below.

As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Bay-Delta longfin smelt, first we identified, in the IEM dated December 29, 2023 (Service 2023b), probable incremental economic impacts associated with the following categories of activities: (1) dredging; (2) levee construction; (3) sand mining; (4) in-water construction; (5) aquatic weed control; (6) flood/sea level rise protection projects; (7) habitat restoration projects; and (8) scientific monitoring activities. Indirect upstream impacts associated with water management or water withdrawal activities associated with water infrastructure and agriculture or municipal water use may also occur but the impacts associated with these activities would be overshadowed by the effects of climate change and reduced precipitation and water flows into the estuary. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies.

In areas where the Bay-Delta longfin smelt is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they authorize, fund, or carry out that may affect the species. If we finalize this critical habitat designation as proposed, Federal agencies would be required to consider the effects of their actions on the designated habitat, and if the Federal action may affect critical habitat, our consultations would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat.

In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation ( i.e., difference between the jeopardy and adverse modification standards) for the Bay-Delta longfin smelt's critical habitat. Because the designation of critical habitat for Bay-Delta longfin smelt is being proposed nearly concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would likely adversely affect the essential physical or biological features of occupied critical habitat are also likely to adversely affect the Bay-Delta longfin smelt. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

The proposed critical habitat designation for the Bay-Delta longfin smelt includes a single occupied unit, totaling approximately 91,630 ac (37,082 ha). The areas being considered are shoreline areas ((less than 1 percent of the proposed designation) that are Federal (2 percent), State (21 percent), local government (1 percent), private or other non-profit areas (4 percent), and other undetermined shoreline areas (73 percent)) and a water area of undetermined ownership (over 99 percent of the proposed designation) within the San Francisco Bay-Delta. In these areas, any actions that may affect the Bay-Delta longfin smelt or its habitat would also affect the proposed critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to ( print page 3778) avoid jeopardizing the continued existence of Bay-Delta longfin smelt. The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies (such as the Bureau of Reclamation, U.S. Army Corps of Engineers, Federal Highway Administration, U.S. Fish and Wildlife Service, and U.S. Department of Agriculture) and, in some cases, third parties, most frequently State agencies, local government entities, and private land-owners. While this additional analysis will require time and resources by both the Federal action agency and the Service, in most circumstances, these costs would be administrative in nature.

The total number of formal consultations expected to occur is between 7 and 13 consultations annually and the number of informal consultations is 7 to 15 annually (IEc 2024, Table 2, p. 12). The total incremental costs for each technical assistance interaction and informal, formal, and programmatic section 7 consultation conducted is estimated to total $440, $2,700, $5,700, and $11,000, respectively, across all Federal and third party participants. These estimates assume that consultations would occur even in the absence of critical habitat due to the presence of the listed Bay-Delta longfin smelt, and the amount of administrative effort to address critical habitat during this process is relatively minor.

Applying these incremental costs to the estimated future consultations forecast, we estimate the incremental annual administrative costs of consultations pursuant to the proposed critical habitat for the Bay-Delta longfin smelt is likely between $56,500 to $120,000 per year (2024 dollars), including approximately $38,000 to $76,000 for formal consultations, and $18,000 to $42,000 for informal consultations.

We are soliciting data and comments from the public on the economic analysis discussed above. During the development of a final designation, we will consider the information presented in the economic analysis and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2), our implementing regulations at 50 CFR 424.19, and the 2016 Policy. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. The benefits of designating areas as critical habitat include identifying and informing landowners and the public of which specific areas are important to a species' conservation and recovery. Critical habitat designation also raises awareness of the habitat needs of imperiled species and focuses efforts of our conservation partners.

Consideration of National Security Impacts

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns ( e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), then national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” However, we must still consider impacts on national security, including homeland security, on those lands or areas not covered by section 4(a)(3)(B)(i) because section 4(b)(2) requires us to consider those impacts whenever it designates critical habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns, or we have otherwise identified national-security or homeland-security impacts from designating particular areas as critical habitat, we generally have reason to consider excluding those areas.

However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, we must conduct an exclusion analysis if the Federal requester provides information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.

Under section 4(b)(2) of the Act, we also consider whether a national security or homeland security impact might exist on lands owned or managed by DoD or DHS. In preparing this proposal, we have determined that, other than the land exempted under section 4(a)(3)(B)(i) of the Act based upon the existence of an approved INRMP (see Exemptions, above), the lands and water area within the proposed designation of critical habitat for the Bay-Delta longfin smelt are not owned or managed by DoD or DHS. Therefore, we anticipate no impact on national security or homeland security.

Consideration of 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 discussed above. To identify other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are approved and permitted conservation agreements or plans covering the species in the area—such as safe harbor agreements (SHAs), candidate conservation agreements with assurances (CCAAs) or “conservation benefit agreement” or “conservation agreement” (“CBAs”) (CBAs are a new type of agreement replacing SHAs and CCAAs in use after April 2024 (89 FR 26070; April 12, 2024)) or HCPs—or whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-to-government ( print page 3779) relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, social, or other impacts that might occur because of the designation.

Summary of Exclusions Considered Under 4(b)(2) of the Act

In preparing this proposal, we have determined that no HCPs or other management plans for the Bay-Delta longfin smelt currently exist, and the proposed designation does not include any Tribal lands or trust resources or any lands for which designation would have any economic or national security impacts. Therefore, we anticipate no impact on Tribal lands, partnerships, or HCPs from this proposed critical habitat designation, and thus, as described above, we are not considering excluding any particular areas on the basis of the presence of conservation agreements or impacts to trust resources.

However, if through the public comment period we receive information that we determine indicates that there are potential economic, national security, or other relevant impacts from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will evaluate that information and may conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. If we receive a request for exclusion of a particular area and after evaluation of supporting information we do not exclude, we will fully describe our decision in the final rule for this action.

Required Determinations

Clarity of the Rule

We are required by E.O.s 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866, 13563 and 14094)

Executive Order 14094 amends and reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, and E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. 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 proposed rule in a manner consistent with these requirements.

Executive Order 12866, as reaffirmed by E.O. 13563 and amended and reaffirmed by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is significant.

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 of 1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), whenever an agency is required to 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 ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the 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.

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; and small businesses (13 CFR 121.201). 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 whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as 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.

Under the RFA, as amended, and as understood in light of court decisions ( see, e.g., American Trucking Ass'ns v. U.S. Envtl. Protection Agency, 175 F.3d 1027, 1044 (D.C. Cir. 1999)), Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. The RFA does not require evaluation of the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the critical habitat designation will not have a significant economic impact on a substantial number of small entities. ( print page 3780)

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial 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 “to the extent permitted by law” when undertaking actions identified as significant energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a “significant energy action” as an action that (i) is a significant regulatory action under E.O. 12866 or any successor order; and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy. This proposed rule is a significant regulatory action under E.O. 12866, as amended by E.O. 14094 (88 FR 21879; April 11, 2023). In our economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use. This is because the proposed critical habitat is limited to a portion of the water and shoreline area of the San Francisco Bay estuary which is not used for energy supply, 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 finding:

(1) This proposed rule would 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 are not likely to 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 proposed rule would significantly or uniquely affect small governments because the majority of area associated with the proposal is water area of the San Francisco Bay estuary and not owned or managed by small governments. Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not be likely to result in destruction or adverse modification of the species' critical habitat. Therefore, a small government agency plan is not required.

Takings—Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Bay-Delta longfin smelt in a takings implications assessment. The Act does not authorize the Services to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat 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. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for the Bay-Delta longfin smelt, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.

Federalism—Executive Order 13132

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact 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 proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the Federal government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed ( print page 3781) designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for 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 State and local governments in long-range planning because they no longer have to 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) of the Act 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 E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the proposed rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the physical or biological features essential to the conservation of the species. The proposed areas of critical habitat are presented on maps, and the proposed 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 information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and you are 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.)

Regulations adopted pursuant to section 4(a) of the Act are exempt from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and do not require an environmental analysis under NEPA. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This includes listing, delisting, and reclassification rules, as well as critical habitat designations. In a line of cases starting with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this position.

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, May 4, 1994), E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), the President's memorandum of November 30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes and Alaska Native Corporations (ANCs) on a government-to-government basis. In accordance with Secretary's 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 have determined that no Tribal lands fall within the boundaries of the proposed critical habitat for the Bay-Delta longfin smelt, so no Tribal lands would be affected by the proposed designation. Accordingly, we have concluded that this action does not have Tribal implications as specified in E.O. 13175 because it will not have substantial direct effects on Tribal governments, on the relationship between the Federal Government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

References Cited

A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the San Francisco Bay-Delta Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Authors

The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Species Status Assessment Team, which includes staff from the Region 8 Regional Office and the San Francisco Bay-Delta Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Plants
• Reporting and recordkeeping requirements
• Transportation
• Wildlife

Signing Authority

Martha Williams, Director of the U.S. Fish and Wildlife Service, approved this action on December 11, 2024, for publication. On December 11, 2024, Martha Williams authorized the undersigned to sign the document electronically and submit it to the Office of the Federal Register for publication as an official document of the U.S. Fish and Wildlife Service.

Proposed Regulation Promulgation

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

PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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.

2. In § 17.11, amend paragraph (h) in the List of Endangered and Threatened Wildlife under Fishes by revising the entry for “Smelt, longfin [San Francisco Bay-Delta DPS]” to read as follows:

§ 17.11

Endangered and threatened wildlife.

* * * * *

(h) * * * ( print page 3782)

Common name	Scientific name	Where listed	Status	Listing citations and applicable rules
*         *         *         *         *         *         *
Fishes
*         *         *         *         *         *         *
Smelt, longfin [San Francisco Bay-Delta DPS]	Spirinchus thaleichthys	U.S.A. (CA)	E	89 FR 61029, 07/30/2024; 50 CFR 17.95(e).CH
*         *         *         *         *         *         *