02-23645. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Unarmored Threespine Stickleback

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Finding that the designation of critical habitat should not be made.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), find that the proposed designation of critical habitat for the unarmored threespine stickleback (Gasterosteus aculaetus williamsoni) pursuant to the Endangered Species Act of 1973, as amended, (Act) should not be made final. On November 17, 1980, we proposed designating approximately 51 kilometers (31.7 miles) of streams in Los Angeles and Santa Barbara Counties, California, as critical habitat for this species (45 FR 76012).

FOR FURTHER INFORMATION CONTACT:

Chief, Branch of Listing, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203 (telephone [phone]).

SUPPLEMENTARY INFORMATION:

Background

The unarmored threespine stickleback is a small fish that we listed as endangered on October 13, 1970 (35 FR 16047), under the authority of the Endangered Species Conservation Act of 1969 (Pub. L. 91-135, 83 Stat. 275 (1969)). The Endangered Species Conservation Act of 1969 had no requirement to designate critical habitat and accordingly, at the time of its listing, critical habitat was not proposed for the unarmored threespine stickleback.

The Endangered Species Act of 1973 referred to the concept of critical habitat, requiring that Federal agency actions not modify or destroy habitat determined to be critical. However, the 1973 Act did not define critical habitat or specify a procedure for its designation (Pub. L. 93-205, 87 Stat. 884 (1973), codified at 16 U.S.C. 1536).

Amendments to the Act, enacted on November 10, 1978, defined “critical habitat” and provided that critical habitat “may be established” for species listed prior to the date of enactment of the 1978 amendments, but did not make designation mandatory nor set a certain timeframe for designation (Pub. L. 95-632, section 2(2), 92 Stat. 3751 (1978)). In 1982, amendments to the Act established the requirement to designate critical habitat at the time of listing to the extent such designation was prudent and determinable, but excluded from that requirement any species listed prior to November 10, 1978 (Pub. L. 97-304, sections 2(a), 2(b)(4), 96 Stat. 1411 (1982)). Therefore, for species listed prior to the 1978 amendments, such as the unarmored threespine stickleback, we are not required to designate critical habitat.

At our discretion, on November 17, 1980, we published a proposal (45 FR 76012) to designate a total of approximately 51 kilometers (31.7 miles) of streams in Los Angeles and Santa Barbara Counties, CA, as critical habitat for the unarmored threespine stickleback. We have not made a final designation of critical habitat for this species. The Endangered Species Act amendments of 1982 specified that, for any proposed designation of critical habitat pending at the time of enactment of the 1982 amendments, the procedures for revisions to critical habitat would apply (Pub. L. 97-304, section 2(b)(2)). Consequently, our 1980 proposal to designate critical habitat for the unarmored threespine stickleback is subject to the procedures for revisions to critical habitat.

The relevant procedures for revisions to critical habitat are set out under section 4 of the Act. Section 4(a)(3)(B) provides that the Service “may” make revisions to critical habitat “from time-to-time * * * as appropriate” (16 U.S.C. 1533(a)(3)(B)). Section 4(b)(6)(A)(i) of the Act requires that within one year of publishing a proposed revision to critical habitat, the Service must publish in the Federal Register one of four possible actions: (1) A final rule to implement the revision; (2) a notice that the one-year period is being extended for up to six months for purposes of soliciting additional data due to substantial disagreement regarding the sufficiency or accuracy of the available data; (3) a notice that the proposed revision is being withdrawn, because there is insufficient evidence to justify the action; or (4) a finding that the revision should not be made. As explained below, we are taking the fourth of these possible actions.

Finding

This notice presents our finding that the November 17, 1980, proposed designation of critical habitat, which is subject to the procedures for revisions to critical habitat in accordance with the 1982 amendments to the Act, should not be made. In making this finding, we are exercising our discretion, provided under the 1978 and 1982 amendments to the Act, not to designate critical habitat for this species. The basis for this finding is described below.

Under the 1978 and 1982 amendments to the Act, the Service is not required to designate critical habitat for the unarmored threespine stickleback, but may do so at our discretion. Since the Service decided in 1980 to exercise its discretion and propose the designation of critical habitat for the species, section 4(b)(6)(A)(i) of the Act requires the Service to take one of four actions: implement the proposed designation, extend the time for taking action on the proposed designation, withdraw the proposed designation, or make a finding that the designation should not be made. After considering all of the relevant factors, we have determined that taking any of the first three actions is not justified, and have concluded that the critical habitat designation should not be made.

We cannot justify exercising our discretion to issue a final rule to implement the proposed critical habitat designation, because the 1980 proposal clearly does not satisfy the Act's requirement that the designation or revision of critical habitat shall be made on the basis of the best scientific data available and after taking into consideration the economic impact of specifying any particular area as critical habitat (16 U.S.C. 1533(b)(2)). The degree of specificity and scientific rigor that the Service now uses for designating critical habitat has evolved considerably since 1980. Moreover, it is likely that considerable new information regarding changes in habitat or other conditions has become available since 1980, and would need to be assessed to determine if the proposal needs to be revised. The economic information associated with the 1980 proposal is also out of date, and would need to be completely replaced with a new economic analysis.

We also cannot justify formally extending the proposed action for six months to solicit additional data to address concerns regarding the sufficiency or accuracy of the data in the proposal. Considerable time and effort would be needed to update the information and conduct new analyses to bring the 1980 proposal to the point at which it would meet current standards, and to complete other procedural steps that would be associated with completing this discretionary action. Such an effort would come at the expense of critical habitat designations that the Service is required to make for other species. At the present time, we have a backlog of actions involving non-discretionary designations of critical habitat for approximately 475 species. These include actions that are mandated by court orders and court-approved settlement agreements, as well as actions necessary to implement the requirements of the Act pertaining to critical habitat designations. It will take us several years to clear this backlog, and during that time we also will need to meet non-discretionary requirements to designate critical habitat as additional species are listed. Meeting these requirements, for which we have no discretion, is a higher priority than taking discretionary actions.

Finally, we cannot justify withdrawing the proposed regulation. To withdraw the proposed regulation, we must have made a judicially reviewable finding that “there is not sufficient evidence to justify the action proposed by the regulation” (16 U.S.C. 1533(b)(6)(B)(ii)). We have not made such a finding and would need to compile and analyze all the existing available information in order to determine whether such a finding could be made. Such an effort would come at the expense of critical habitat designations that the Service is required to make for other species. As discussed above, we currently have a large backlog of non-discretionary critical habitat designations, and meeting those requirements is a higher priority than taking discretionary actions.

Due to the discretion we have regarding the designation of critical habitat for species listed prior to the 1978 amendments to the Act, the staleness of the proposed rule, and our need to give priority to funding the large number of outstanding non-discretionary designations and to address new designations that will be required as additional species are listed, we find that the proposed designation of critical habitat for the unarmored threespine stickleback should not be made.

This finding means that Federal agencies no longer are required to confer with us, under section 7(a)(4) of the Act, regarding any agency action that is likely to result in the destruction or adverse modification of the areas that were proposed for designation as critical habitat. The fact that we are making this finding and exercising our discretion not to designate critical habitat for the unarmored threespine stickleback does not, however, alter the protection this species and its habitat will continue to receive under the Act. Specifically, it does not alter the requirement of section 7(a)(2) of the Act that all Federal agencies must insure that actions they authorize, fund, or carry out are not likely to “jeopardize the continued existence” of a listed species. Further, the section 9 prohibition of take of the species, which applies to all land ownerships, is independent of whether critical habitat is designated and is unchanged by this finding.

Authority

The authority for this action is section 4(b)(6)(A)(i)(II) of the Endangered Species Act of 1973, as amended, (16 U.S.C. 1533(b)(6)(A)(i)(II)), Pub. L. 95-632, at 2(2), 92 Stat. 3751 (November 10, 1978), and Pub. L. 97-304, at 2(b)(2), 2(b)(4), 96 Stat. 1411, 1416 (October 13, 1982).

Dated: September, 11, 2002.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.