[Federal Register Volume 69, Number 81 (Tuesday, April 27, 2004)]
[Proposed Rules]
[Pages 23024-23049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9203]
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Part IV
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; Proposed Designation of
Critical Habitat for the Riverside Fairy Shrimp (Streptocephalus
woottoni); Proposed Rule
Federal Register / Vol. 69 , No. 81 / Tuesday, April 27, 2004 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT45
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Riverside Fairy Shrimp
(Streptocephalus woottoni)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the federally endangered Riverside fairy
shrimp (Streptocephalus woottoni) pursuant to the Endangered Species
Act of 1973, as amended (Act). We propose to designate a total of
approximately 5,795 acres (ac) (2,345 hectares (ha)) of critical
habitat in Los Angeles, Orange, Riverside, San Diego, and Ventura
Counties, California.
We hereby solicit data and comments from the public on all aspects
of this proposal, including data on economic and other impacts of the
designation. We may revise this proposal prior to final designation to
incorporate or address new information received during the two public
comment periods.
DATES: We will accept comments until May 27, 2004. Public hearing
requests must be received no later than June 11, 2004. A second comment
period will be opened upon the publication of the pending economic
analysis.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of the following methods:
1. You may submit written comments and information to the Field
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 6010 Hidden Valley Road, Carlsbad, California 92009.
2. You may hand-deliver written comments and information to our
Carlsbad Fish and Wildlife Office, at the above address, or fax your
comments to 760/731-9618.
3. You may send your comments by electronic mail (e-mail) to
[email protected]. For directions on how to submit electronic filing
of comments, see the ``Public Comments Solicited'' section below.
All comments and materials received, as well as supporting
documentation used in preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and
Wildlife Service (telephone 760/431-9440; facsimile 760/431-9618).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
It is our intent that any final action resulting from this proposal
will be as accurate as possible. Therefore, we solicit comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. Maps of essential habitat not included
in the proposed critical habitat are available for viewing by
appointment during regular business hours at the Carlsbad Fish and
Wildlife Office (see ADDRESSES section) or on the Internet at http://carlsbad.fws.gov. On the basis of public comment, during the
development of the final rule we may find that areas proposed are not
essential, are appropriate for exclusion under section 4(b)(2), or are
not appropriate for exclusion, and in all of these cases, this
information would be incorporated into the final designation. We
particularly seek comments concerning:
(1) The reasons why any areas should or should not be determined to
be critical habitat as provided by section 4 of the Act, including
whether the benefits of designation will outweigh any threats to the
species resulting from the designation;
(2) Specific information on the amount and distribution of
Riverside fairy shrimp and its habitat, and which habitat or habitat
components are essential to the conservation of this species and why;
(3) Land use designations and current or planned activities in or
adjacent to the areas proposed and their possible impacts on proposed
critical habitat;
(4) Any foreseeable economic or other potential impacts resulting
from the proposed designation, in particular, any impacts on small
entities;
(5) Some of the lands we have identified as essential for the
conservation of the Riverside fairy shrimp are not being proposed as
critical habitat. The following areas essential to the conservation of
the Riverside fairy shrimp are not being proposed as critical habitat:
Lands on Marine Corps Air Station Miramar (MCAS, Miramar); ``mission-
critical'' training areas on Marine Corps Base, Camp Pendleton (Camp
Pendleton); areas within San Diego Multiple Species Conservation
Program (MSCP) and the Orange County Central-Coastal Natural
Communities Conservation Program (NCCP); and areas in the Draft Western
Riverside Multiple Species Habitat Conservation Plan (MSHCP). These
areas have been excluded because we believe the benefit of excluding
these areas outweighs the benefit of including them. We specifically
solicit comment on the inclusion or exclusion of such areas and: (a)
Whether these areas are essential; (b) whether these areas warrant
exclusion; and (c) the basis for not designating these areas as
critical habitat (section 4(b)(2) of the Act);
(6) We request information from the Department of Defense to assist
the Secretary of the Interior in evaluating critical habitat on lands
administered by or under the control of the Department of Defense,
specifically information regarding impacts to national security
associated with proposed designation of critical habitat; and
(7) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please submit electronic comments in ASCII file format and
avoid the use of special characters or any form of encryption. Please
also include ``Attn: RIN 1018-AT45'' in your e-mail subject header and
your name and return address in the body of your message. If you do not
receive a confirmation from the system that we have received your
internet message, contact us directly by calling our Carlsbad Fish and
Wildlife Office at phone number 760-431-9440. Please note that the e-
mail address ``[email protected]'' will be closed out at the
termination of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review. Individual
respondents may request that we withhold their home address from the
rulemaking record, which we will honor to the extent allowable by law.
There also may be circumstances in which we would withhold from the
rulemaking record a respondent's identity, as allowable by law. If you
wish us to withhold your name and/or address, you must state this
prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as
[[Page 23025]]
representatives or officials of organizations or businesses, available
for public inspection in their entirety. Comments and materials
received will be available for public inspection, by appointment,
during normal business hours at the above address.
Background
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of conservation resources. The Service's present system for designating
critical habitat is driven by litigation rather than biology, limits
our ability to fully evaluate the science involved, consumes enormous
agency resources, and imposes huge social and economic costs. The
Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the ESA [Act]
can protect species with and without critical habitat designation,
critical habitat designation may be redundant to the other consultation
requirements of section 7.''
Currently, only 445, or 36 percent of the 1244 listed species in
the U.S. under the jurisdiction of the Service, have designated
critical habitat (Service 2004). We address the habitat needs of all
1244 listed species through conservation mechanisms such as listing,
section 7 consultations, the Section 4 recovery planning process, the
Section 9 protective prohibitions of unauthorized take, Section 6
funding to the States, and the Section 10 incidental take permit
process. The Service believes that it is these measures that may make
the difference between extinction and survival for many species.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits regarding critical habitat
designation, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits and to comply
with the growing number of adverse court orders. As a result, the
Service's own proposals to undertake conservation actions based on
biological priorities are significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for additional public
participation beyond those minimally required by the Administrative
Procedures Act (APA), the Act, and the Service's implementing
regulations, or to take additional time for review of comments and
information to ensure the rule has addressed all the pertinent issues
before making decisions on listing and critical habitat proposals, due
to the risks associated with noncompliance with judicially imposed.
This in turn fosters a second round of litigation in which those who
will suffer adverse impacts from these decisions challenge them. The
cycle of litigation appears endless, is very expensive, and in the
final analysis provides little additional protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with National
Environmental Policy Act (NEPA), all are part of the cost of critical
habitat designation. These costs result in minimal benefits to the
species that is not already afforded by the protections of the Act
enumerated earlier, and they directly reduce the funds available for
direct and tangible conservation actions.
Please see the prior final rule designating critical habitat for
the Riverside fairy shrimp (66 FR 29384; May 30, 2001), which was
subsequently vacated, and the Recovery Plan for the Vernal Pools of
Southern California (Service 1998) for a general discussion of the
biology of this species and vernal pools ecosystems.
Status and Distribution
Prior to the discovery of the Santa Rosa Plateau fairy shrimp and
new findings of Riverside fairy shrimp, the Riverside fairy shrimp was
believed to have the most restricted distribution of endemic California
fairy shrimp (Eng et al. 1990, Simovich and Fugate 1992). The range of
this species is still among the most limited and includes Ventura, Los
Angeles, Orange, San Diego, and Riverside Counties in southern
California, and Bajamar in Baja California, Mexico (Brown et al. 1993;
Service 1998). With the exception of the Riverside County populations,
and the population at Cruzan Mesa in Los Angeles County, all
populations are within approximately 15 miles (mi) (24 kilometers (km))
of the coast. The U.S. populations of Riverside fairy shrimp range over
a north-south distance of approximately 125 mi (200 km).
The known populations of Riverside fairy shrimp can be categorized
into core population areas and isolated populations. The core
population areas are defined by multiple pools or pool complexes
containing Riverside fairy shrimp that are within close proximity
(approximately 5 mi (8 km)) of other occupied pools and pool complexes.
Isolated populations are defined by single pools or pool complexes
known to contain Riverside fairy shrimp that are separated from other
known locations by greater than 10 mi (16 km). There are four core
population areas and seven isolated populations. The core population
areas are located in the Orange County Foothills, Western Riverside
County, the southern coastal portion of Camp Pendleton in San Diego
County, and Otay Mesa in San Diego County. Isolated populations are
found near the City of Moorpark in Ventura County, near the City of
Santa Clarita on Cruzan Mesa and at Los Angeles International Airport
in Los Angeles County, at March Air Reserve Base (ARB) and near the
City of Banning in Riverside County, and in the City of Carlsbad and on
Marine Corps Air Station (MCAS) Miramar in San Diego County.
In Ventura County, Riverside fairy shrimp occur within a single
large pool in a grassland area at Carlsberg Ranch. Recently, urban
development adjacent to this pool appears to have affected the pool's
hydrology (Rick Farris, U.S. Fish
[[Page 23026]]
and Wildlife Service, personal communication 2003).
In Los Angeles County, the species occurs at the Los Angeles
International Airport and Cruzan Mesa. Habitat at the Los Angeles
International Airport has been impacted by occasional scraping and
draining of pooling areas; however, viable Riverside fairy shrimp cysts
persist (U.S. Federal Aviation Administration et al. 2003). At Cruzan
Mesa, upland vegetation associated with the two occupied pools may have
recently been removed, which could result in siltation of these pools
(Rick Farris, U.S. Fish and Wildlife Service, personal communication
2003). In the Spring of 2003, a limited number of fairy shrimp cysts
likely to be Riverside fairy shrimp were found at Madrona Marsh in the
City of Torrence; however, these cysts have not yet been identified
conclusively to the species level. Ongoing work is being done in the
area to determine if there is a population of Riverside fairy shrimp at
Madrona Marsh.
Vernal pools occupied by Riverside fairy shrimp in Orange County
occur at the former MCAS El Toro, Edison Viejo Conservation Bank,
Saddleback Meadows, O'Neill Regional Park, Live Oak Plaza, Tijeras
Creek, Chiquita Ridge, and Radio Tower Road. The Orange County
populations of the species occur primarily within vernal pools formed
by depressions in slumping earth or impounded ephemeral streams
(Riefner and Pryor 1996). Many of these pools have been affected by
grazing and urban development (Service 2001). These vernal pool
complexes form a chain of pools along the Orange County Foothills. At
the south end of this chain is a pool located on the agricultural lease
land of Camp Pendleton, and at the north end is the pool on the former
MCAS, El Toro.
In Riverside County, there are seven naturally occurring
populations, one created population, and a proposed creation of habitat
for Riverside fairy shrimp, all of which are located within the
planning area for the Western Riverside County MSHCP. The naturally
occurring locations are the Banning Pool, the vernal pools on March
ARB, the Australia Pool in the Lake Elsinore Back Basin, the Schlinger
Pool, the Clayton Ranch Pools (slated for relocation in Fiscal Year
2004-2005), the Scott Road Pool, and the Skunk Hollow Pool and the
Field Pool. An artificial vernal pool complex has been created at
Johnson Ranch to offset the impacts to a population of Riverside fairy
shrimp by the Redhawk Development. Another artificial vernal pool
creation is planned on the Clayton Ranch project to offset the taking
of Riverside fairy shrimp in the Clayton Ranch Pool mentioned above.
Riverside County populations represent the most inland extent of the
species' range (Eriksen and Belk 1999). The type locality for the
species was located within Riverside County, but has since been
extirpated (Eriksen 1988). There were also two pools known to contain
Riverside fairy shrimp on, or near, Tribal lands of Pechanga Band of
Luiseno Indians, however, the current status of these pools is unknown.
In San Diego County, there are vernal pools that contain Riverside
fairy shrimp in the coastal regions of the County. In north coastal San
Diego County, the Riverside fairy shrimp occurs in vernal pools on Camp
Pendleton and in a pool in the City of Carlsbad. On Camp Pendleton, the
Riverside fairy shrimp locations are concentrated in the south coastal
section of the base near Interstate 5 (Recon 2001) and a single slump
pool, mentioned above, on the northern portion of the base on land
leased to the State of California (Michael Brandman Associates 1998).
The pools on Camp Pendleton near Interstate 5 occur in an area used for
training exercises (Moeur 1998). The pool complex containing Riverside
fairy shrimp in Carlsbad is conserved, but it is surrounded by urban
development. In central San Diego County, there is a single occupied
pool on MCAS, Miramar east of Interstate 15. In southern San Diego
County, the species occurs in several pool complexes on Otay Mesa near
the U.S./Mexico border. There has been significant work done to restore
and enhance vernal pools for listed species, including the Riverside
fairy shrimp, at three sites on Otay Mesa; The Cal Terraces site, Otay
High School site, and the Arnie's Point site. Other occupied pools on
Otay Mesa are threatened by off-road vehicle activity and urban
development (Bauder and McMillan 1998; The Environmental Trust 2003).
The Riverside fairy shrimp faces threats throughout its range.
These threats can be divided into three major categories: (1) Direct
destruction of vernal pools and vernal pool habitat as a result of
construction, vehicle traffic, domestic animal grazing, dumping, and
deep plowing; (2) indirect threats which degrade or destroy vernal
pools and vernal pool habitat over time including altered hydrology
(e.g., damming or draining), invasion of alien species, habitat
fragmentation, and associated deleterious effects resulting from
adjoining urban land uses; and (3) long-term threats including the
effect of isolation on genetic diversity and locally adapted genotypes,
air and water pollution, climatic variations, and changes in nutrient
availability (Bauder 1986; Service 1993).
Previous Federal Actions
Please see the prior final rule designating critical habitat for
the Riverside fairy shrimp for a description of previous Federal
actions through May 2001 (66 FR 29384; May 30, 2001). For the reasons
outlined in that rule, we have determined that the designation of
critical habitat for the Riverside fairy shrimp is prudent.
On November 6, 2001, the Building Industry Legal Defense
Foundation, Foothill/Eastern Transportation Corridor Agency, National
Association of Home Builders, California Building Industry Association,
and Building Industry Association of San Diego County filed a lawsuit
in the United States District Court for the District of Columbia
challenging the designation of Riverside fairy shrimp critical habitat
and alleging errors in our promulgation of the final rule. On March 13,
2002, the Court granted the request of the Center for Biological
Diversity, Inc. and Defenders of Wildlife, Inc. to intervene as
defendants in the case. We requested a voluntary remand, and on October
30, 2002, the Court vacated the designation and ordered the Service to
publish a new final rule with respect to the designation of critical
habitat for the Riverside fairy shrimp (Building Industry Legal Defense
Foundation, et al., v. Gale Norton, Secretary of the Interior, et al.,
and Center for Biological Diversity, Inc. and Defenders of Wildlife,
Inc. Civil Action No. 01-2311 (JDB) (U.S. District Court, District of
Columbia)).
Critical Habitat
Please see the prior final rule designating critical habitat for
the Riverside fairy shrimp for a general discussion on sections 3, 4,
and 7 of the Act and our policy in relation to critical habitat (66 FR
29384; May 30, 2001).
Criteria for Defining Essential Habitat
The Recovery Plan for Vernal Pools of Southern California (Recovery
Plan) (Service 1998) outlines areas essential to the conservation of
six species, including the Riverside fairy shrimp. The Recovery Plan
details the steps that are necessary to stabilize the decline of these
species and steps necessary to recover these species to the point where
protection under the Act is no longer required. These steps are
essential for the conservation of the Riverside fairy shrimp.
[[Page 23027]]
The Recovery Plan uses Management Areas to define regional
conservation needs. We have used these same Management Areas to assist
us in identifying specific areas essential to the conservation of the
species. The Recovery Plan identified vernal pool complexes essential
for the conservation of the Riverside fairy shrimp. Following the
publication of the Recovery Plan, additional populations essential to
the conservation of the Riverside fairy shrimp have been located.
The Riverside fairy shrimp has a narrow geographic distribution.
Within its range, the species has specialized habitat requirements. The
Riverside fairy shrimp requires vernal pools or ephemeral ponds that
pool for several months of each year but also have a dry period. These
pools do not naturally occur in great abundance, and in recent years,
this type of wetland has been degraded and lost to off-road vehicles,
grazing, farming, and development.
In this critical habitat proposal we have identified areas that are
essential to the conservation of Riverside fairy shrimp. Both core and
isolated populations are essential for conservation of a species of
limited numbers and distribution (Gilpin and Soul[eacute] 1986; Lesica
and Allendorf 1995; Lande 1999). We have determined that all of the
known locations of Riverside fairy shrimp are essential to the
conservation of the species. There are four areas with core population
areas of Riverside fairy shrimp occurrences. These areas are defined by
complexes of vernal pools or ephemeral ponds that are within 5 mi (8
km) of one another. These occurrences are essential as source
populations for this species.
In addition to the core population areas, there are seven outlying
or isolated occurrences of the Riverside fairy shrimp. These
occurrences may represent unique populations of the Riverside fairy
shrimp. Each of these isolated occurrences is greater than 10 mi (16
km) from the other known Riverside fairy shrimp locations. These
populations may have genetic characteristics that will allow the
species to adapt to changing environmental conditions and give the
species an opportunity to colonize or re-colonize potential habitat,
therefore, they are essential to the overall long-term conservation of
the species (i.e., they may be genetically different from more
centrally located populations) (Gilpin and Soule 1986; Lesica and
Allendorf 1995). The specific essential habitat is explained in greater
detail below in the Unit Descriptions.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to designate as critical
habitat, we consider those physical and biological features (primary
constituent elements) that are essential to the conservation of the
species, and that may require special management considerations or
protection. These features are used for all listed species and include,
but are not limited to: space for individual and population growth and
for normal behavior; food, water, or other nutritional or physiological
requirements; cover or shelter; sites for breeding and reproduction;
and habitats that are protected from disturbance or are representative
of the historic and geographical and ecological distributions of a
species.
The specific biological and physical features, otherwise referred
to as the primary constituent elements, which comprise Riverside fairy
shrimp habitat are based on specific components that provide for the
essential biological components of the species as described below.
Space for Individual and Population Growth, and for Normal Behavior
Riverside fairy shrimp are found in vernal pools and ephemeral
wetlands that range in size and quality. Some pools, such as the
smaller pools on Marine Corps Base, Camp Pendleton, have a surface area
of only 300-500 square feet (approximately 30 to 50 square meters) when
filled. Other pools that support Riverside fairy shrimp are large when
compared to the majority of southern California's vernal pools. For
example, the vernal pool at Skunk Hollow has a surface area of
approximately 33 ac (13 ha). Further, the associated watersheds of the
vernal pools that support Riverside fairy shrimp vary significantly in
size. The watershed associated with smaller pools in southern
California may only be on the order of a few acres, whereas the
watershed associated with the Skunk Hollow pool in western Riverside
County is greater than 125 ac (50 ha).
Vernal pools generally occur in complexes. Vernal pool complexes
are defined by two or more ephemeral or vernal pools in a larger
watershed basin with adjacent upland habitat that together form a
matrix of physical and ecological processes. To maintain high-quality
vernal pool ecosystems, all components of the matrix must be available
and functioning (Service 1998). Most of the remaining pools that
support the Riverside fairy shrimp are no longer in a pristine or
undisturbed state, yet these pools and the associated matrix of upland
habitat continue to provide essential biological and physical features
necessary for the conservation of this species. In many of these areas
it will be possible to improve the conditions for Riverside fairy
shrimp; however, irreversible actions that alter the hydrology of
vernal pool ecosystems or infringe on the pool basins threaten the
survival of this species.
Water and Physiological Requirements
Temperature, water chemistry, and length of time vernal pools are
inundated with water are important factors that effect and potentially
limit the distribution of the Riverside fairy shrimp. The water in the
pools that support Riverside fairy shrimp typically has low total
dissolved solids and alkalinity (means of 77 and 65 milligrams per
liter (mg/l) or parts per million (ppm), respectively), corroborated by
pH at neutral or just below (6.4-7.1) (Eng et al. 1990; Gonzalez et al.
1996; Eriksen and Belk 1999). Riverside fairy shrimp have been shown to
tightly regulate their internal body chemistry for pool environments
that have low salinity and low alkalinity (Gonzalez et al. 1996). In a
laboratory experiment, Riverside fairy shrimp had difficulty regulating
their body chemistry in conditions with concentrations of Sodium ion
(Na+) greater than 60 millimoles per liter (mmol/l) (1,380 mg/l) and
did not survive in conditions with concentrations higher than 100 mmol/
l (2,300 mg/l) (Gonzalez et al. 1996). These same experiments also
found that Riverside fairy shrimp could not survive in laboratory
environments where external alkalinity was higher than 800 to 1,000 mg/
l HCO3-. Riverside fairy shrimp is found in water
temperatures ranging between 50 and 77 degrees Fahrenheit (10 and 25
degrees Celsius) (Hathaway and Simovich 1996). Water within pools
supporting fairy shrimp may be clear, but more commonly it is
moderately turbid (Eriksen and Belk 1999).
Sites for Breeding, Reproduction and Rearing of Offspring
The Riverside fairy shrimp is restricted to a small subset of long-
lasting vernal pools and ephemeral wetlands in southern California
because this animal takes approximately two months to mature and
reproduce (Hathaway and Simovich 1996). In contrast, the San Diego
fairy shrimp, another federally endangered fairy shrimp species found
in southern
[[Page 23028]]
California, can mature and reproduce in less than one month. Most
vernal pools in southern California do not pool for a sufficient amount
of time to support the Riverside fairy shrimp. Pools that contain
Riverside fairy shrimp usually accumulate water to a depth greater than
10 in (25 cm) and some pools that support this species fill to a depth
of 5 to 10 feet (1.5 to 3 meters). In the years that Riverside fairy
shrimp successfully reproduce, pools fill for 2 to 3 months and some
pools have been reported to stay filled for up to 7 months. Riverside
fairy shrimp can survive as cysts for multiple years; therefore, it is
not necessary for ideal conditions to exist every year for this species
to persist.
Vernal pool ecosystems are highly variable in the length of time
pools remain filled, and the Riverside fairy shrimp has adapted to
these conditions. One indication that Riverside fairy shrimp have
adapted to a system where the conditions needed for success occur
infrequently is the low percentage of total cysts that hatch each time
a pool fills with water. Since only small percentages of Riverside
fairy shrimp cysts hatch in any given year, if the pool dries before
the species is able to mature and reproduce, there are still many more
cysts left in the soil (cyst bank) that may hatch the next time the
pool fills (Simovich and Hathaway 1997). Allowing conditions within the
above physical parameters to occur on a naturally cyclic basis is
essential to the conservation of the Riverside fairy shrimp. Following
reproduction, newly produced cysts either fall to the bottom of the
pool or are carried in the brood sac of the female until the pool dries
or the female dies and sinks to the bottom of the pool (Eriksen and
Belk 1999).
Disturbance, Protection, and the Historical Geographical Distributions
The majority of sites currently supporting the Riverside fairy
shrimp have experienced disturbance, some more recently than others and
some to a greater extent than others. The pools that support Riverside
fairy shrimp are generally found in flat or moderately sloping areas.
Many of the pools are in grassland habitats. As a consequence, these
areas have been vulnerable to agriculture, cattle grazing, and off-road
vehicle activity. For example, many of the pools that currently support
Riverside fairy shrimp have been artificially deepened in the past by
ranchers to provide water for stock animals (Hathaway and Simovich
1996). This species has only been studied since the late 1980s;
therefore, the extent of its historical distribution is not well
understood. Current estimates suggest that 90 to 97 percent of vernal
pool habitat has been lost in southern California (Mattoni and Longcore
1997; Bauder and McMillan 1998; Keeler-Wolf et al. 1998; Service 1998).
The conservation and subsequent protection of the few remaining
occurrences of Riverside fairy shrimp are essential for its
conservation (Service 1998). In some places where the Riverside fairy
shrimp is found, such as on the Los Angeles coastal prairie, there were
historically larger complexes of vernal pools that no longer exist
(Mattoni and Longcore 1997). In other places, like Riverside County,
there are multiple locations where the Riverside fairy shrimp may still
be found. Because Riverside County has not yet been developed and
fragmented to the same extent as Los Angeles County, the Service
believes that new occurrences of the Riverside fairy shrimp may still
be located in Riverside County.
Pursuant to our regulations, we are required to identify the known
physical and biological features, i.e., primary constituent elements,
essential to the conservation of the Riverside fairy shrimp, together
with a description of any critical habitat that is proposed. In
identifying the primary constituent elements, we used the best
available scientific and commercial data available. The primary
constituent elements determined essential to the conservation of
Riverside fairy shrimp are:
1. Small to large pools or pool complexes that have the appropriate
temperature, water chemistry, and length of time of inundation with
water necessary for Riverside fairy shrimp incubation and reproduction,
as well as dry periods necessary to provide the conditions to maintain
a dormant and viable cyst bank. Specifically, the conditions necessary
to allow for successful reproduction of Riverside fairy shrimp fall
within the following ranges:
a. Moderate to deep depths ranging from 10 in (25 cm) to 5 to 10 ft
(1.5 to 3 m);
b. Ponding inundation that lasts for a minimum length of 2 months
and a maximum length of 5 to 8 months, i.e., a sufficient wet period in
winter and spring months to allow the Riverside fairy shrimp to hatch,
mature, and reproduce, followed by a dry period prior to the next
winter and spring rains;
c. Water temperature that falls within the range of 50 and 77
degrees Fahrenheit (10 and 25 degrees Celsius); and
d. Water chemistry with low total dissolved solids and alkalinity
(means of 77 and 65 parts per million, respectively), corroborated by
pH within a range of 6.4-7.1.
2. Associated watersheds that provide water to fill the pools in
the winter and spring months. The size of the associated watershed
varies greatly and cannot be generalized and has been assessed on a
case-by-case basis. Factors that affect the size of the watershed
include surface and underground hydrology, the topography of the area
surrounding the pool or pools, the vegetative coverage, and the soil
substrate in the area. Watershed sizes designated vary from a few acres
to greater than 100 ac (40 ha).
3. Any soil type with a clay component and/or an impermeable
surface or subsurface layer known to support vernal pool habitat.
The matrix of vernal pools/ephemeral wetlands, the associated
watershed, upland habitats, and underlying soil substrates form
hydrological and ecologically functional units. These features and the
lands that they represent are essential to the conservation of the
Riverside fairy shrimp. All lands identified as essential and proposed
as critical habitat contain one or more of the primary constituent
elements for the Riverside fairy shrimp.
Special Management Considerations or Protection
As we undertake the process of designating critical habitat for a
species, we first evaluate lands defined by those physical and
biological features essential to the conservation of the species for
inclusion in the designation pursuant to section 3(5)(A) of the Act.
Secondly, we then evaluate lands defined by those features to assess
whether they may require special management considerations or
protection. As discussed throughout this proposed rule, our previous
final designation of critical habitat for the Riverside fairy shrimp
(66 FR 29384, May 30, 2001) and in our final recovery plan for the
species (Service 1998), the Riverside fairy shrimp and its habitat are
threatened by a multitude of factors. Threats to those features that
define essential habitat (primary constituent elements) are caused by
changes in the hydrology of the vernal pools and their associated
watersheds; disturbance to the flora, fauna, and soil in and around the
vernal pools; and the invasion of exotic plant and animal species into
the vernal pool basin. Habitat loss continues to be the greatest threat
to Riverside fairy shrimp. It is essential for the survival of this
species to protect those features that define the remaining essential
habitat, through purchase or
[[Page 23029]]
special management plans, from irreversible threats and habitat
conversion.
Changes in hydrology which affect vernal pools or pool complexes
are caused by activities that alter the topography or change historical
water flow patterns in the watershed. Even slight alterations of the
hydrology can change the ponding duration of a pool, which in turn can
make the habitat unsuitable for Riverside fairy shrimp. Activities that
impact the hydrology include but are not limited to road building,
grading and earth moving, impounding natural water flows, and draining
of the pool(s). Impacts to the hydrology of vernal pools can be managed
through avoidance of such activities in and around the pools and the
associated watershed.
Disturbance to the flora, fauna, and soil in and around vernal
pools that contain Riverside fairy shrimp can impact the long term
sustainability of ecosystems used by Riverside fairy shrimp. Physical
disturbances to pools are caused by off-road vehicle traffic, military
training activities, agricultural activities, and cattle grazing. These
impacts can be ameliorated by educating landowners and managers about
the location and value of these resources and requesting that they
protect these resources.
Invasive exotic plant and animal species impact Riverside fairy
shrimp directly and indirectly. Bullfrogs and African clawed frogs have
been reported from some of the pools where Riverside fairy shrimp is
found. These exotic amphibians may eat Riverside fairy shrimp. Exotic
plant species, such as brass-buttons (Cotula coronopifolia) and Pacific
bentgrass (Agrostis avenaceae), compete with native vernal plant
species. Conflicts with exotic species can be managed by removal
techniques that do not negatively impact the native species in the
vernal pools.
Threats to the features that define habitat essential to the
conservation of the Riverside fairy shrimp should be assessed for each
site. Sites should be protected from activities that negatively alter
or destroy vernal pools. An appropriate management and monitoring plan
should address these threats. A potential strategy with appropriate
guidelines for the conservation of Riverside fairy shrimp has been
elaborated in the Recovery Plan for Vernal Pools of Southern California
(Service 1998). As such, we believe that within each area proposed for
designation as critical habitat the physical and biological features
essential for the conservation of the Riverside fairy shrimp may
require some level of management and/or protection to address the
current and future threats to the Riverside fairy shrimp and habitat
essential to its conservation to ensure the overall recovery of the
species.
Methods
In determining areas that are essential to conserve the Riverside
fairy shrimp, we used the best scientific and commercial data
available. These included data from research and survey observations
published in peer-reviewed articles, recovery criteria outlined in the
Recovery Plan (Service 1998), regional Geographic Information System
(GIS) vegetation, soil, and species coverages (including layers for
Ventura, Los Angeles, Orange, Riverside, and San Diego Counties), data
compiled in the California Natural Diversity Database (CNDDB), data
collected on MCAS, Miramar, and Camp Pendleton, information, data and
analysis used to develop regional Habitat Conservation Plans (HCPs),
and data collected from reports submitted by biologists holding section
10(a)(1)(A) recovery permits. In addition, information provided in
comments on the proposed designation and draft economic analysis will
be evaluated and considered in the development of the final designation
for Riverside fairy shrimp.
As stated earlier, Riverside fairy shrimp occur in ephemeral pools
and ponds that may not be present throughout a given year or from year
to year. Proposed critical habitat includes a mosaic of vernal pools,
ponds, and depressions currently supporting Riverside fairy shrimp and
vernal pool vegetation. The proposed critical habitat also includes the
upland areas surrounding these ephemeral wetlands that constitute the
microwatersheds for the pools. Vernal pool topography is such that the
vernal pool fills directly from rain fall or in other cases the
topography is such that the pool forms through the subsurface or
overland waterflow from the surrounding watershed. Two specific areas
have been included in this critical habitat proposal that occur within
the geographical area occupied by the species, but have not had focused
surveys for Riverside fairy shrimp conducted in them. One of these
areas is in Ventura County at a pool referred to as Southeast Tierra
Rejada pool; the other is in Riverside County on Santa Rosa Plateau.
Both of these locations are essential to the conservation of the
Riverside fairy shrimp because they contain the primary constituent
elements and occur in areas where the known occurrences of Riverside
fairy shrimp are extremely limited. Vernal pools at these locations
retain water for sufficient amounts of time to allow for the
reproduction of Riverside fairy shrimp. These pools also have rare
plants that are associated with known locations of Riverside fairy
shrimp. The preservation of both of these areas will provide habitat
essential to the conservation of Riverside fairy shrimp, and the
persistence of healthy populations of Riverside fairy shrimp in these
areas is identified in Vernal Pool Recovery Plan.
After all the information about the known occurrences of Riverside
fairy shrimp was compiled, we created maps indicating the essential
habitat associated with each of the occurrences. We used the
information outlined above to aid in this task. The essential habitat
was mapped using GIS and refined using topographical and aerial map
coverages. To accomplish this, we first identified and mapped vernal
pool basins and ephemeral wetlands supporting the Riverside fairy
shrimp that contained the primary constituent elements for the species.
Next, based on topographic features such as ridges, mima mounds, and
elevational gradients or slopes, the essential watershed associated
with the vernal pool basins and ephemeral wetlands that also contained
the primary constituent elements for the Riverside fairy shrimp were
then mapped. The combined extent of these mapped areas was defined as
the essential habitat for the Riverside fairy shrimp. Whenever
possible, areas not containing the primary constituent elements, such
as developed areas or open water, were not included in the boundaries
of proposed critical habitat. However, our smallest unit of mapping is
a 100-meter square, so it was not always possible to avoid these areas.
After creating a GIS coverage of the essential areas, we described
the boundaries of the essential areas using a 100-meter grid to
establish Universal Transverse Mercator (UTM) North American Datum 27
(NAD 27). The areas were then analyzed with respect to sections
4(a)(3), and 4(b)(2) of the Act, and any applicable and appropriate
exclusions were made. The remaining essential areas are the proposed
critical habitat. The essential areas, an elaboration on exclusions,
and the specific areas proposed for critical habitat are described
below. The proposed designation of critical habitat is presented as six
different habitat units.
[[Page 23030]]
Relationship to Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data available after taking into consideration the economic impact, the
effect on national security, and any other relevant impact of
specifying any particular area as critical habitat. An area may be
excluded from critical habitat if we determine, following an analysis,
that the benefits of such exclusion outweigh the benefits of specifying
a particular area as critical habitat, unless the failure to designate
such area as critical habitat will result in the extinction of the
species. Consequently, we may exclude an area from designated critical
habitat based on economic impacts, the effect on national security, or
other relevant impacts such as preservation of conservation
partnerships, if we determine that the benefits of excluding an area
from critical habitat outweigh the benefits of including the area in
critical habitat, provided the action of excluding the area will not
result in the extinction of the species.
In our critical habitat designations, we have used the provisions
outlined in section 4(b)(2) of the Act to evaluate those specific areas
that are proposed for designation as critical habitat and those areas
which are subsequently finalized (i.e., designated). We have applied
the provisions of this section of the Act to lands essential to the
conservation of the subject species to evaluate them and either exclude
them from final critical habitat or not include them in proposed
critical habitat. Lands which we have either excluded from or not
included in critical habitat based on those provisions include those
covered by: (1) Legally operative HCPs that cover the species and
provide assurances that the conservation measures for the species will
be implemented and effective; (2) draft HCPs that cover the species,
have undergone public review and comment, and provide assurances that
the conservation measures for the species will be implemented and
effective (i.e., pending HCPs); (3) Tribal conservation plans that
cover the species and provide assurances that the conservation measures
for the species will be implemented and effective; (4) State
conservation plans that provide assurances that the conservation
measures for the species will be implemented and effective; and (5)
Service National Wildlife Refuge System Comprehensive Conservation
Plans that provide assurances that the conservation measures for the
species will be implemented and effective.
Relationship of Critical Habitat to Approved Habitat Conservation Plans
Regional HCPs
As described above, section 4(b)(2) of the Act requires us to
consider other relevant impacts, in addition to economic and national
security impacts, when designating critical habitat. Section
10(a)(1)(B) of the Act authorizes us to issue permits for the take of
listed wildlife species incidental to otherwise lawful activities.
Development of an HCP is a prerequisite for the issuance of an
incidental take permit pursuant to section 10(a)(1)(B) of the Act. An
incidental take permit application must be supported by an HCP that
identifies conservation measures that the permittee agrees to implement
for the species to minimize and mitigate the impacts of the permitted
incidental take.
HCPs vary in size and may provide for incidental take coverage and
conservation management for one or many federally listed species.
Additionally, more than one applicant may participate in the
development and implementation of an HCP. Some areas occupied by the
Riverside fairy shrimp involve complex HCPs that address multiple
species, cover large areas, and have many participating permittees.
Large regional HCPs expand upon the basic requirements set forth in
section 10(a)(1)(B) of the Act because they reflect a voluntary,
cooperative approach to large-scale habitat and species conservation
planning. Many of the large regional HCPs in southern California have
been, or are being, developed to provide for the conservation of
numerous federally listed species and unlisted sensitive species and
the habitat that provides for their biological needs. These HCPs
address impacts in a planning area and create a preserve design within
the planning area. Over time, areas in the planning area are developed
according to the HCP, and the area within the preserve is acquired,
managed, and monitored. These HCPs are designed to implement
conservation actions to address future projects that are anticipated to
occur within the planning area of the HCP, in order to reduce delays in
the permitting process. The amount of land in the planning area and
preserves for the HCPs in the vicinity of known Riverside fairy shrimp
occurrences are presented in Table 1.
Table 1.--Habitat Conservation Plans (HCPs) Areas Within the General
Area of the Proposed Critical Habitat
------------------------------------------------------------------------
HCP Planning area Preserve area
------------------------------------------------------------------------
San Diego Multiple Species 582,000 ac 171,000 ac (69,573
Conservation Program (MSCP). (236,000 ha). ha)
Central-Coastal Orange County 208,713 ac (84,463 38,738 ac (15,677
NCCP/HCP. ha). ha)
Proposed Northwestern San Diego 111,908 ac (45,287 19,928 ac (8,064
Multiple Habitat Conservation ha). ha)
Program (MHCP).
Proposed Southern Subregion NCCP/ 128,000 ac (51,800 14,000 ac (5,666
HCP Orange County. ha). ha)
Proposed Western Riverside 1.3 million ac 153,000 ac (61,919
Multiple Species Habitat (530,000 ha). ha)
Conservation Plan (MSHCP).
------------------------------------------------------------------------
In the case of approved regional HCPs (e.g., those sponsored by
cities, counties or other local jurisdictions) that provide for
incidental take coverage for the Riverside fairy shrimp, a primary goal
is to provide for the protection and management of habitat essential
for the conservation of the species while directing development to
nonessential areas. The regional HCP development process provides an
opportunity for more intensive data collection and analysis regarding
the use of particular habitat areas by the Riverside fairy shrimp. The
process also enables us to construct a system habitat that provides for
the biological needs and long-term conservation of the species.
Completed HCPs and their accompanying Implementing Agreements (IA)
contain management measures and protections for identified preserve
areas that protect, restore, and enhance the value of these lands as
habitat for the Riverside fairy shrimp. These measures include explicit
standards to minimize any impacts to the covered species and its
habitat. In general, HCPs are designed to ensure that the value of the
conservation lands
[[Page 23031]]
are maintained, expanded, and improved for the species that they cover.
In approving these HCPs, the Service has provided assurances to
permit holders that once the protection and management required under
the plans are in place and for as long as the permit holders are
fulfilling their obligations under the plans, no additional mitigation
in the form of land or financial compensation will be required of the
permit holders and, in some cases, specified third parties. Similar
assurances will be extended to future permit holders in accordance with
the Service's HCP Assurance (``No Surprises'') rule codified at 50 CFR
17.22(b)(5) and (6) and 17.32(b)(5) and (6).
Portions of two proposed critical habitat units (Units 2 and 5)
warrant exclusion from the proposed designation of critical habitat
under section 4(b)(2) of the Act based on the special management
considerations and protections afforded the Riverside fairy shrimp
habitat through approved and legally operative HCPs or NCCP/HCPs. We
believe that in most instances, the benefits of excluding legally
operative HCPs from the proposed critical habitat designations will
outweigh the benefits of including them. The following represents our
rationale for excluding portions of Units 2 and 5 from the proposed
critical habitat.
A single subunit of Unit 2 is excluded from proposed critical
habitat because it is within the Central-Coastal NCCP/HCP in Orange
County. The Central-Coastal NCCP/HCP in Orange County was developed in
cooperation with numerous local and State jurisdictions and agencies
and participating landowners, including the cities of Anaheim, Costa
Mesa, Irvine, Orange, San Juan Capistrano; Southern California Edison;
Transportation Corridor Agencies; The Irvine Company; California
Department of Parks and Recreation; Metropolitan Water District of
Southern California; and the County of Orange. Approved in 1996, the
Central-Coastal NCCP/HCP provides for the establishment of
approximately 38,738 ac (15,677 ha) of reserve lands for 39 Federal-or
State-listed and unlisted sensitive species within the 208,713 ac
(84,463 ha) planning area. We issued an incidental take permit under
section 10(a)(1)(B) of the Act that provides conditional incidental
take authorization for the Riverside fairy shrimp for all areas within
the Central-Coastal Subregion except the North Ranch Policy Plan area.
Portions of Unit 5 are excluded from proposed critical habitat
because they are within the San Diego MSCP in southwestern San Diego
County. The San Diego MSCP effort encompasses more than 582,000 ac
(236,000 ha) and reflects the cooperative efforts of the local
jurisdictions, the State, the building industry, and environmentalists.
The San Diego MSCP provides for the establishment over the permit term
of approximately 171,000 ac (69,573 ha) of preserve areas to provide
conservation benefits for 85 federally listed and sensitive species.
The San Diego MSCP and its approved subarea plans provide measures to
conserve known Riverside fairy shrimp populations on Otay Mesa. In
addition, surveys for Riverside fairy shrimp are required in suitable
habitat (i.e., vernal pools, ephemeral wetlands, and seasonally ponded
areas). These lands are to be permanently maintained and managed for
the benefit of the Riverside fairy shrimp and other covered species:
however, ``take'' of Riverside fairy shrimp is not included in the MSCP
10(a)(1)(B) permit. The eastern portion of Otay Mesa includes Major and
Minor Amendment Areas. These areas require a special permitting
process; therefore, we included them in this critical habitat proposal.
There are currently several other regional NCCP/HCP efforts under
way in southern California that have not yet been completed but which,
upon approval, will provide conservation benefits to the Riverside
fairy shrimp (see Table 1). Lands within these HCPs, which are in
various stages of formulation, are not excluded from consideration for
proposed critical habitat. The Multiple Habitat Conservation Program
(MHCP) in northwestern San Diego County encompasses approximately
112,000 ac (45,324 ha) within the study area. Currently, seven cities
are participating in the development of the MHCP. Coverage for the
Riverside fairy shrimp has not yet been determined for this plan and,
therefore, we propose critical habitat within the planning area. In
addition, the majority of vernal pool habitat supporting Riverside
fairy shrimp in the planning area is located on land owned by the North
County Transit District. The proposed Southern Subregion NCCP/HCP in
Orange County encompasses approximately 128,000 ac (51,799 ha) in its
planning area. Jurisdictions and private landowners within the study
area include the cities of Rancho Santa Margarita, Mission Viejo, San
Juan Capistrano, San Clemente, and Rancho Mission Viejo. The Riverside
fairy shrimp is being proposed as one of the species covered under this
plan. The early versions of this plan convey the importance of
conservation of all known occurrences of the Riverside fairy shrimp.
The Western Riverside MSHCP is addressed in a separate discussion
because the plan is in its final stages of completion.
(1) Benefits of Inclusion
The principal benefit of any designated critical habitat is that
federally funded or authorized activities in such habitat may require
consultation under section 7 of the Act. Such consultation would ensure
that adequate protection is provided to avoid adverse modification of
critical habitat. Where HCPs are in place, our experience indicates
that this benefit is small or nonexistent. Currently approved and
permitted HCPs and NCCP/HCPs are designed to ensure the long-term
survival of covered species within the plan area. In an approved HCP or
NCCP/HCP, lands that we ordinarily would define as critical habitat for
covered species will normally be protected in reserves and other
conservation lands by the terms of the HCP or NCCP/HCP and its
Implementing Agreement (IA). These HCPs or NCCP/HCPs and IAs include
management measures and protections for conservation lands designed to
protect, restore, and enhance their value as habitat for covered
species and thus provide benefits to the species well in excess of
those that would result from a critical habitat designation.
(2) Benefits of Exclusion
The benefits of excluding lands within HCPs from critical habitat
designation include carrying out the assurances provided by the Service
to landowners, communities, and counties in return for their voluntary
adoption of the HCP, including relieving them of the additional
regulatory burden that might be imposed by critical habitat. Many HCPs,
particularly large regional HCPs, take many years to develop and, upon
completion, become regional conservation plans that are consistent with
the recovery objectives for listed species that are covered within the
plan area. Additionally, many of these HCPs provide conservation
benefits to unlisted, sensitive species. Imposing an additional
regulatory review after an HCP is completed solely as a result of the
designation of critical habitat may undermine conservation efforts and
partnerships in many areas. In fact, it could result in the loss of
species' benefits if participants abandon the voluntary HCP process
because it may result in an additional regulatory burden requiring more
of them than of
[[Page 23032]]
other parties who have not voluntarily participated in species
conservation. Designation of critical habitat within the boundaries of
approved HCPs it is likely to be viewed as a disincentive to those
entities currently developing HCPs or contemplating them in the future.
A related benefit of excluding lands within HCPs from critical
habitat designation is the unhindered, continued ability to seek new
partnerships with future HCP participants, including States, counties,
local jurisdictions, conservation organizations, and private
landowners, which together can implement conservation actions that we
would be unable to accomplish otherwise. If lands within HCP plan areas
are designated as critical habitat, it would likely have a negative
effect on our ability to establish new partnerships to develop HCPs. By
preemptively excluding these lands, we preserve our current
partnerships and encourage additional conservation actions in the
future.
Furthermore, an HCP or NCCP/HCP application must itself be
consulted upon. While this consultation will not look specifically at
the issue of adverse modification to critical habitat, unless critical
habitat has already been designated within the proposed plan area, it
will determine if the HCP jeopardizes the species in the plan area. In
addition, Federal actions not covered by the HCP in areas occupied by
listed species would still require consultation under section 7 of the
Act. HCPs and NCCP/HCPs typically provide for greater conservation
benefits to a covered species than section 7 consultations because HCPs
and NCCP/HCPs assure the long-term protection and management of a
covered species and its habitat, and funding for such management
through the standards found in the 5 Point Policy for HCPs (64 FR
35242) and the HCP ``No Surprises'' regulation (63 FR 8859). Such
assurances are typically not provided by section 7 consultations which,
in accordance with the provisions of the Act, are limited to requiring
that the specific action being consulted upon not jeopardize the
continued existence of the species. Thus, a consultation typically does
not accord the lands it covers the extensive benefits an HCP or NCCP/
HCP provides. The development and implementation of HCPs or NCCP/HCPs
provide other important conservation benefits, including the
development of biological information to guide the conservation efforts
and assist in species conservation, and the creation of innovative
solutions to conserve species while allowing for development.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We have reviewed and evaluated HCPs and NCCP/HCPs currently
approved and implemented within the areas being proposed as critical
habitat for the Riverside fairy shrimp. Based on this evaluation, we
find that the benefits of exclusion outweigh the benefits of proposing
portions of Units 2 and 6 as critical habitat.
The San Diego MSCP in southwestern San Diego County and the
Central-Coastal NCCP/HCP in Orange County include the Riverside fairy
shrimp as a covered species. These HCP and NCCP/HCPs provide protection
for the Riverside fairy shrimp and its associated habitat in
perpetuity, although, in the San Diego MSCP, ``take'' of the Riverside
fairy shrimp is handled through separate Section 7 consultations or
HCP. The exclusion of these lands from critical habitat will help
preserve the partnerships that we have developed with the local
jurisdiction and project proponent in the development of the HCP and
NCCP/HCP. The educational benefits of critical habitat, including
informing the public of areas that are essential for the long-term
survival and conservation of the species, is still accomplished from
material provided on our website and through public notice and comment
procedures required to establish an HCP or NCCP/HCP. The public has
also been informed through the public participation that occurs in the
development of many regional HCPs or NCCP/HCPs. For these reasons, we
believe that proposing critical habitat has little benefit in areas
covered by HCPs, provided that the HCP or NCCP/HCP specifically and
adequately covers the species for which critical habitat is being
proposed. We do not believe that this exclusion would result in the
extinction of the species because the essential habitat within these
two HCPs will ostensibly be conserved.
Relationship of Critical Habitat to the Draft Western Riverside
Multiple Species Habitat Conservation Plan (MSHCP)
The Draft Western Riverside Multiple Species Habitat Conservation
Plan (MSHCP) has been in development from 1993 to the present.
Participants in this HCP include 14 cities; the County of Riverside,
including the Riverside County Flood Control and Water Conservation
Agency, Riverside County Transportation Commission, Riverside County
Parks and Open Space District, Riverside County Waste Department; the
California Department of Parks and Recreation; and the California
Department of Transportation. The Western Riverside MSHCP is also being
proposed as a subregional plan under the State's NCCP and is being
developed in cooperation with the California Department of Fish and
Game. Within the 1,260,000 ac (510,000 ha) planning area of the MSHCP,
approximately 153,000 ac (62,000 ha) of diverse habitats are proposed
for sole conservation uses. The proposed conservation of 153,000 ac
(62,000 ha) will complement other existing natural and open space areas
(e.g., State Parks, Forest Service, and County Park Lands).
The County of Riverside and the participating jurisdictions have
signaled their sustained support for the Western Riverside MSHCP as
evidenced by the November 5, 2002, passage of a local bond measure to
fund the acquisition of land in support of the MSHCP. On November 15,
2002, a Notice of Availability of a Draft Environmental Impact Report
(EIS/EIR) and Receipt of an Application for an Incidental Take Permit
was published in the Federal Register (67 FR 69236). Public comment on
these documents was accepted until January 14, 2003. Subsequently, on
June 17, 2003, the County of Riverside Board of Supervisors voted
unanimously to support the completion of the Western Riverside MSHCP.
Conservation actions within Western Riverside MSHCP planning area
will be implemented to promote the long-term conservation of the
Riverside fairy shrimp. Although the MSHCP is not yet completed and
implemented, significant progress has been achieved in the development
of this HCP, including the circulation of the final EIS/EIR, the
solicitation of public review and comment, and intra-Service section 7
consultation has been initiated for the issuance of incidental take
permit for those species identified for coverage within the draft plan.
We are proposing to exclude portions of essential habitat in Riverside
County from proposed critical habitat pursuant to section 4(b)(2) of
the Act because they are within the planning area boundary for the
proposed Western Riverside MSHCP. We are proposing portions of Unit 3
on Federal lands within the planning area boundary of the Western
Riverside MSHCP as critical habitat because the activities of Federal
agencies are not covered under a section 10(a)(1)(B) permit. Our
analysis for excluding portions of Units 3 from proposed critical
habitat has been outlined below.
[[Page 23033]]
(1) Benefits of Inclusion
As stated previously, the benefits of designating critical habitat
on lands within the boundaries of approved HCPs are small. The
principal benefit of designating critical habitat is that federally
authorized or funded activities that may affect a species' critical
habitat would require consultation with us under section 7 of the Act
which can prevent adverse modification or destruction of the habitat,
but cannot compel positive management or restoration of the habitat for
the benefit of the species. In the case of the proposed Western
Riverside MSHCP, we must evaluate the impact of the plan on the species
for which the participants are seeking incidental take permits,
pursuant to section 7 of the Act.
(2) Benefits of Exclusion
Where HCPs are in place, the HCPs and their Implementing Agreements
(IAs) include management measures and protections designed to protect,
restore, monitor, manage, and enhance the habitat to benefit the
conservation of the species. This includes actions for the Riverside
fairy shrimp. The Western Riverside MSHCP seeks to accomplish these
goals for the Riverside fairy shrimp through the implementation of
species-specific conservation objectives. Excluding lands within Unit 3
from the proposed critical habitat will provide several benefits, as
follows: (1) exclusion of the lands from the final designation will
allow us to continue working with the participants in a spirit of
cooperation and partnership; (2) other jurisdictions, private
landowners, and other entities will see the benefit of working
cooperatively with us to develop HCPs, which will provide the basis for
future opportunities to conserve species and their essential habitat.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We believe the analysis conducted to evaluate the benefits of
excluding HCPs from critical habitat versus the benefits of including
these lands, which was previously discussed for the exclusion of
approved HCPs, is applicable and appropriate for the exclusion of HCPs
that are in the final permit decision phase, such as the Western
Riverside MSHCP. In the event that the Service does not grant coverage
for this species under the Western Riverside MSHCP, we will include the
areas essential to the conservation of the riverside fairy shrimp in
Unit 3 in the final designation of Critical Habitat. The exclusion of
the essential habitat in the Western Riverside MSHCP will not result in
the extinction of the Riverside fairy shrimp because measures included
within the MSHCP protect and manage areas of long-term conservation
value for the Riverside fairy shrimp.
Relationship to Department of Defense Lands
The Sikes Act Improvements Act of 1997 (Sikes Act) requires each
military installation that includes land and water suitable for the
conservation and management of natural resources to complete, by
November 17, 2001, an Integrated Natural Resources Management Plan
(INRMP). An INRMP integrates implementation of the military mission of
the installation with stewardship of the natural resources found there.
Each INRMP includes an assessment of the ecological needs on the
installation, including needs to provide for the conservation of listed
species; a statement of goals and priorities; a detailed description of
management actions to be implemented to provide for these ecological
needs; and a monitoring and adaptive management plan. We consult with
the military on the development and implementation of INRMPs for
installations with listed species.
Section 318 of the Fiscal Year 2004 National Defense Authorization
Act (Pub. L. 108-136) amended section 4(a)(3) of the Act to address the
relationship of INRMPs to critical habitat. MCAS Miramar has an INRMP
in place that provides a benefit for the Riverside fairy shrimp. Camp
Pendleton has an INRMP in place that provides a framework for managing
natural resources. MCAS El Toro is no longer owned by the Department of
Defense and March Air Reserve Base (March ARB) has not yet completed an
INRMP. Lands essential to the conservation of the Riverside fairy
shrimp on those installations are proposed as critical habitat.
Marine Corps Air Station Miramar
MCAS Miramar completed a final INRMP in May 2000 that provides a
benefit to the Riverside fairy shrimp. The INRMP is legally operative
and is being implemented. The INRMP identifies sensitive natural
resources on the installation and discusses the management and
conservation of these areas. MCAS Miramar has identified management
areas with different resource conservation requirements and management
concerns, and identifies them with five separate levels that correspond
to their sensitivity. The majority of vernal pools and habitats that
support vernal pool species, including the single known occurrence of
Riverside fairy shrimp, are located in ``Level I Management Areas
(MAs).'' Preventing damage to vernal pool resources is the highest
conservation priority in Management Areas with the ``Level I''
designation. The conservation of vernal pools in this MA is achieved
through education of base personnel, proactive measures to avoid
accidental impacts, and maintenance of an updated inventory of vernal
pool basins and the associated vernal pool watersheds.
Since the completion of MCAS Miramar's INRMP, the Service has
received reports on Miramar's vernal pool monitoring and restoration
program and correspondence detailing the installation's expenditures on
the objectives outlined in its INRMP. MCAS Miramar continues to monitor
and manage its vernal pool resources; programs include a study in
progress on the effects of fire on vernal pool resources, venal pool
mapping and species surveys, and a study of Pacific bentgrass (Agrostis
avenaceae), an invasive exotic grass found in some vernal pools on the
base. During a recent visit to the Riverside fairy shrimp site at MCAS
Miramar, natural resources staff indicated that the station has no
plans for changes in land use or future developments that would affect
the site (D. Boyer, personal communication 2003b). We believe this
INRMP benefits this species. The pooling area on MCAS Miramar which
supports Riverside fairy shrimp is considered essential for the
conservation of this species. This occurrence is included in the
Recovery Plan for the Vernal Pools of Southern California with the San
Diego County Central Coastal Management Area. In accordance with the
amended section 4(a)(3) of the Act, these lands that are essential to
the conservation of the Riverside fairy shrimp on MCAS Miramar have not
been included in the proposed designation of critical habitat for the
species.
Marine Corps Base Camp Pendleton
Under 4(b)(2) of the Act, we have considered the effect of a
critical habitat designation on national security. We are, therefore,
not proposing critical habitat on ``mission-critical'' training areas
on Camp Pendleton. In this proposal we refer areas designated as
training areas on maps created by MCB, Camp Pendleton as ``mission-
critical'' training areas. Camp Pendleton operates an amphibious
training base that promotes the combat readiness of military forces and
is the only west coast Marine Corps facility where amphibious
operations can be combined
[[Page 23034]]
with air, sea, and ground assault training activities year-round.
Currently, the Marine Corps has no alternative installation available
for the types of training that occur on Camp Pendleton.
The Marine Corps consults with us under section 7 of the Act for
activities that may affect federally threatened or endangered species
on Camp Pendleton. On March 30, 2000, at the request of the Marine
Corps, we initiated a formal consultation regarding their activities on
upland areas of Camp Pendleton. The consultation covers approximately
150,000 ac (60,703 ha) of land within the upland areas of Camp
Pendleton, including combat readiness operations, air operations,
vehicle operations, facility maintenance and operations, fire
management, recreation activities, and housing. The upland consultation
that addresses vernal pool habitat, the Riverside fairy shrimp, and
other species is not yet complete. We are currently working
cooperatively with Camp Pendleton to facilitate the completion of this
upland consultation.
In order to continue its critical training mission pending
completion of the consultation, the Marine Corps has implemented
measures it believes will avoid jeopardy to the continued existence of
the Riverside fairy shrimp and other listed species within the uplands
area and comply with section 7(d) of the Act. In particular, the Marine
Corps is implementing a set of ``programmatic instructions'' to avoid
adverse effects to the Riverside fairy shrimp.
Critical habitat is being proposed for the Riverside fairy shrimp
on some areas of Camp Pendleton that are not considered ``mission-
critical'' training areas or are leased to the State of California.
Areas proposed as critical habitat for the Riverside fairy shrimp on
Camp Pendleton meet the definition of critical habitat in that they
contain those primary constituent elements that are essential to the
conservation of the species and that may require special management or
protection. Based upon our examination of whether Camp Pendleton's
INRMP addresses the species, the lands not leased to the State of
California may be excluded in the final rule under the section 4(a)(3)
of the Act, as amended by provisions referenced above.
(1) Benefits of Inclusion
The primary benefit of proposing critical habitat is to identify
lands essential to the conservation of the species which, if critical
habitat was designated, would require consultation with us to ensure
activities would not adversely modify critical habitat or jeopardize
the continued existence of the species. We are already in formal
consultation with the Marine Corps on its upland activities to ensure
that current and proposed actions will not jeopardize the species'
continued existence. Therefore, we do not believe that designation of
``mission-critical'' training areas on Camp Pendleton as critical
habitat will appreciably benefit the Riverside fairy shrimp beyond the
protection already afforded the species under the Act. Exclusion of
these lands will not result in the extinction of the species because
the conservation of the Riverside fairy shrimp populations will be
addressed through our uplands consultation. The lands involved in this
consultation are ``mission-critical'' training areas, and essential
populations of the Riverside fairy shrimp occupy them.
(2) Benefits of Exclusion
In contrast to the absence of an appreciable benefit resulting from
designation of Camp Pendleton training areas as critical habitat, there
are substantial benefits to excluding these areas from critical
habitat. Essential habitat for the Riverside fairy shrimp that occurs
within ``mission-critical'' training areas on Camp Pendleton is
occupied by the species, and, as stated above, consultations to ensure
activities do not jeopardize the species' existence have been completed
or are in progress. If essential habitat that occurs within ``mission-
critical'' training areas is proposed as critical habitat, the Marine
Corps would be required to determine if activities would adversely
modify or destroy proposed critical habitat, and, if such a
determination was made, the Marine Corps would be compelled to
conference with us pursuant to the requirements of section 7 of the
Act. Additionally, if proposed critical habitat within training areas
is included in a final designation, the Marine Corps would likely be
compelled to review consultations already completed or in progress to
determine if activities may affect designated critical habitat. If a
``may affect'' determination were to be made, the Marine Corps would be
further obligated to initiate or reinitiate consultations with us. The
Marine Corps would likely feel an increased burden of responsibility to
make these determinations, and the potential for them to be obligated
to conduct conferences or to reinitiate consultations with us may delay
the timely implementation of ``mission-critical'' training activities
(Hanlon, Edward Jr., Major General Commanding, U.S. Marine Corps Base,
Camp Pendleton letter to Ken Berg, Field Supervisor, Carlsbad Fish and
Wildlife Office, April 7, 2000). In addition, should consultation
result in a destruction or adverse modification finding, the Corps
might be unable to conduct their training in a timely fashion.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We consider specific lands that provide benefits to the Riverside
fairy shrimp essential for its conservation. For those areas that are
proposed as critical habitat that are not considered ``mission-
critical'' training areas or are leased to the State of California, we
will complete the balancing analysis under section 4(b)(2) in the final
rule. We have considered these lands and excluded the lands in
``mission-critical'' training areas on Camp Pendleton from proposed
critical habitat. We are soliciting public review and comment on our
decision to consider, but not propose critical habitat for the
Riverside fairy shrimp on ``mission-critical'' training areas of Camp
Pendleton, based on section 4(b)(2) of the Act. Maps delineating
habitat for the Riverside fairy shrimp, overlaid with ``mission-
critical'' training areas on Camp Pendleton, are available for public
review and comment at the Carlsbad Fish and Wildlife Office (see
ADDRESSES section) or on the Internet at http://carlsbad.fws.gov. These
maps are provided to allow the public the opportunity to adequately
comment on these exclusions.
Critical Habitat Designation
The proposed critical habitat includes Riverside fairy shrimp
habitat throughout the species' range in the United States (i.e.,
Ventura, Los Angeles, Orange, Riverside and San Diego Counties,
California). Areas proposed as critical habitat are under Federal,
State, local, and private ownership. The approximate area of proposed
critical habitat by county and land ownership is shown in Table 2.
Certain lands that are considered essential to the Riverside fairy
shrimp have been excluded from critical habitat based on our 4(b)(2)
analysis; the exclusions are summarized in Table 3.
[[Page 23035]]
Table 2.--Approximate Proposed Critical Habitat Area (ha (ac)) by County and Land Ownership. Estimates Reflect
the Total Area Within Critical Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
County Federal* Local/State Private Total
----------------------------------------------------------------------------------------------------------------
Los Angeles..................... 0 ac (0 ha)....... 0 ac (0 ha)....... 638 (258 ha)...... 638 ac (258 ha)
Orange.......................... 1 ac (0 ha)....... 326 ac (132 ha)... 2,156 ac (873 ha). 2,483 ac (1,005
ha)
Riverside....................... 146 ac............ 0 ac (0 ha)....... 0 ac (0 ha)....... 146 ac
San Diego....................... 939 ac (380 ha)... 107 ac (43 ha).... 971 ac (393 ha)... 2,017 ac (816 ha)
Ventura......................... 0................. 45 ac (18 ha)..... 466 ac (189 ha)... 511 ac (207 ha)
---------------------
Total....................... 1,086 ac (439 ha). 478 ac (193 ha)... 4,231 ac (1,713 5,795 ac (2,345
ha). ha)
----------------------------------------------------------------------------------------------------------------
*Federal lands include Department of Defense, U.S. Forest Service, and other Federal land.
Table 3.--Approximate Proposed Critical Habitat Area (ac (ha)),
Essential Area, and Excluded Area
------------------------------------------------------------------------
------------------------------------------------------------------------
Area determined to be essential to the 18,330 ac (7,418 ha)
conservation of the Riverside fairy
shrimp.
Area not included pursuant to section 113 ac (46 ha)
4(a)(3) of the Act due to an INRMP that
benefits Riverside fairy shrimp (MCAS,
Miramar).
Area excluded pursuant to section 4(b)(2) 9,414 ac (3,810 ha)
of the Act: Completed and pending HCPs
(San Diego MSCP, Orange County Central-
Coastal NCCP/HCP and Western Riverside
County MSHCP).
Area excluded pursuant to section 4(b)(2) 3,008 ac (1,217 ha)
of the Act: ``Mission-critical''
Department of Defense lands (Camp
Pendleton).
Proposed Critical Habitat................ 5,795 ac (2,345 ha)
------------------------------------------------------------------------
Lands proposed as critical habitat are divided into six Units,
which are based on the Management Areas identified in the Recovery Plan
(Service 1998). The Units are generally based on geographical location
of the vernal pools, soil types, associated watersheds, and local
variation of topographic position (i.e., coastal mesas, inland valley).
Descriptions of each unit and the reasons for designating it as
critical habitat are presented below.
Map Unit 1: Transverse Range Critical Habitat Unit, Ventura and Los
Angeles Counties, California (1,045 ac (423 ha))
The proposed Transverse Range Unit includes the vernal pools at
Cruzan Mesa, Los Angeles County, and vernal pools near the city of
Moorpark in Ventura County. These vernal pools represent the northern
limit of occupied habitat for the Riverside fairy shrimp and are some
of the last remaining vernal pools in Los Angeles and Ventura Counties
known to support this species. The areas that are proposed for
designation of critical habitat in Unit 1 contain the primary
constituent elements described above relating to the pooling basins,
watersheds, underling soil substrate and topography. The majority of
the land in this unit provides the essential watershed primary
constituent element that contributes to the pooling basins that support
the Riverside fairy shrimp.
There are two subunits of critical habitat near the city of
Moorpark in Ventura County. The northernmost of these two subunits is
located on what was formerly the Carlsberg Ranch. Development has
occurred adjacent to this vernal pool, which is now protected from
future development. The other subunit in Ventura County is located a
short distance to the south of the Carlsberg Ranch pool. This subunit
has not been surveyed for Riverside fairy shrimp; however, it is
considered essential due to biotic and abiotic conditions that indicate
it is highly likely it provides habitat for Riverside fairy shrimp.
This area is currently in private ownership and we are unaware of any
plans to develop this site. The subunit in Los Angeles County is
located on Cruzan Mesa near the city of Santa Clarita. It is within an
area that is being proposed by Los Angeles County as a Significant
Ecological Unit in its General Plan. These pools are isolated from the
other occurrences of Riverside fairy shrimp, and the Ventura population
is isolated from the population at Cruzan Mesa. The preservation and
management of these vernal pools are essential for the conservation the
populations of Riverside fairy shrimp in the Transverse Range
Management Area described by the Recovery Plan.
The occurrences of Riverside fairy shrimp in northern Los Angeles
County and in Ventura County represent isolated occurrences at the
northern most extent of the range of the Riverside fairy shrimp.
Conservation biologists have demonstrated that populations at the edge
of a species' distribution can be important sources of genetic
variation and represent the best opportunity for colonization or re-
colonization of unoccupied vernal pools and, thus, long-term
conservation (Gilpin and Soule 1986; Lande 1999). These outlying
populations may be genetically divergent from populations in the center
of the range and, therefore, may have genetic characteristics that
would allow adaptation in the face of environmental change. Such
characteristics may not be present in other parts of the species' range
(Lesica and Allendorf 1995).
Map Unit 2: Los Angeles Basin-Orange Management Area, Los Angeles and
Orange Counties, California. (3,180 ac (1,287 ha))
The Los Angeles Basin-Orange Management Area encompasses two
distinct regions where Riverside fairy shrimp are known to occur:
coastal Los Angeles County; and the foothills of Orange County. Along
the Los Angeles County coast, there are two Riverside fairy shrimp
locations: Los Angeles International Airport and Madrona Marsh. In the
past, vernal pools in coastal Los Angeles had a much greater
distribution (Mattoni and Longcore 1997). The other region in this Unit
includes vernal pools that occur along a north-south band in the Orange
County Foothills. The areas that are proposed for designation of
critical habitat in Unit 2 contain the primary constituent elements
described above relating to the pooling basins, watersheds, underling
soil substrate and topography. The majority of the land in this unit
provides the essential watershed primary constituent element that
contributes to the pooling basins that support the Riverside fairy
shrimp.
[[Page 23036]]
The Los Angeles Coastal Prairie Unit includes an approximately 198
ac (80 ha) area at the Los Angeles International Airport. This
landscape historically included the federally endangered California
Orcutt grass (Orcuttia californica) and San Diego button-celery
(Eryngium aristulatum var. parishii). This unit also supports versatile
fairy shrimp (Branchinecta lindahli) and western spadefoot toad
(Scaphiopus hammondii). Riverside fairy shrimp cysts were first
collected east of Pershing Drive in 1997. Considering the extensive
habitat once available, populations of Riverside fairy shrimp in this
region were likely robust and formed the core population between the
limited Cruzan Mesa and Carlsberg Ranch pools (Unit 1) at the northern
end of the range of the species, and the pool groups in central and
southern Orange County. Conservation of a population of the Riverside
fairy shrimp in the coastal region of Los Angeles County is essential
to the conservation of the species. This area is essential because it
represents the remnants of a large historical vernal pool complex in
the Los Angeles Basin. It is likely that this and other isolated
populations of Riverside fairy shrimp have unique genetic differences
that will contribute to the long-term survival of this species.
Research on the San Diego fairy shrimp has shown that geographically
distinct populations are genetically distinct as well (Bohonak 2003).
The preservation of genetic diversity can also provide insight into the
evolutionary history of a species that can be helpful for its future
preservation.
This Unit also includes the vernal pools and vernal pool-like
ephemeral ponds located along the Orange County Foothills. These pools
are found at the Marine Corps Air Station El Toro, Edison Viejo
Conservation Bank, Saddleback Meadows, O'Neill Regional Park, east of
Tijeras Creek at the intersection of Antonio Parkway and the FTC-north
segment, Chiquita Ridge, and Radio Tower Road. These vernal pools are
the last remaining vernal pools in Orange County known to support this
species (58 FR 41384). These pools represent a unique type of vernal
pool habitat much different from the traditional mima mound vernal pool
complexes. They are also different from coastal pools at Camp Pendleton
and the inland pools of Riverside County. The Orange County vernal pool
habitat and essential associated watershed represent the majority of
Riverside fairy shrimp habitat within the Los Angeles Basin-Orange
Management Area discussed in the Recovery Plan.
The Edison Viejo Conservation Bank is considered essential, but
excluded from critical habitat because it is within the Central-Coastal
NCCP/HCP. The ephemeral pond on MCAS El Toro is within the boundary of
the Central-Coastal HCP planning area. However, because coverage for
the Riverside fairy shrimp is not provided on these lands, we are
proposing this area as critical habitat. All of the other occurrences
of Riverside fairy shrimp mentioned above are included in this Unit.
Map Unit 3: Western Riverside County Critical Habitat Unit, Riverside
County, California (146 ac (58 ha))
The Western Riverside County Unit includes vernal pools and
ephemeral wetlands that provide essential habitat for the Riverside
fairy shrimp. The areas that are proposed for designation of critical
habitat in Unit 3 contain the primary constituent elements described
above relating to the pooling basins, watersheds, underling soil
substrate and topography. The majority of the pools discussed it this
Unit description are excluded from the proposed designation of critical
habitat. With the exception of the vernal pools on the Santa Rosa
Plateau, all of the areas in this unit are known to be occupied. The
pools on Santa Rosa Plateau support vegetation associated with
Riverside fairy shrimp (Lathrop and Thorne 1983); however, additional
surveys are needed to determine the presence of the Riverside fairy
shrimp. This Unit encompasses vernal pools in the general vicinity of
the Back Basin of Lake Elsinore, Murrieta, Temecula, Banning, March
ARB, and Santa Rosa Plateau. These populations represent the eastern
limit of occupied habitat. The pools in Western Riverside County
represent a unique type of pool. These pools occur in an inland valley,
rather than on a mesa or on the coast. These pools also have much
larger watersheds and likely contain unique genetic diversity essential
to the long-term conservation of the species. This Unit supports the
federally endangered California Orcutt grass (Orcuttia californica) and
vernal pool fairy shrimp (Branchinecta lynchi). Preservation and
management of these pools will contribute to the conservation of the
Riverside fairy shrimp.
Specifically, this Unit contains the following vernal pools: March
ARB pools, Banning pools, the Australia pool, the Clayton Ranch pools,
the Johnson Ranch pools, the Scott pool, the Schleuniger Pool, Skunk
Hollow and the Field pool, and the pools on Santa Rosa Plateau. The
majority of the land in this unit provides the essential watershed
primary constituent element that contributes to the pooling basins that
support the Riverside fairy shrimp. We have excluded the majority of
pools in this Unit from proposed critical habitat designation because
they are encompassed in the planning area of the Draft Western
Riverside MSHCP. The areas that we are proposing for critical habitat
are the two vernal pools on March ARB.
Map Unit 4: North San Diego County Critical Habitat Unit, San Diego
County, California (397 ac (161 ha))
The North San Diego County Unit includes vernal pools at Camp
Pendleton and one pool complex within the City of Carlsbad. The areas
that are proposed for designation of critical habitat in Unit 4 contain
the primary constituent elements described above relating to the
pooling basins, watersheds, underling soil substrate and topography.
The majority of the land in this unit provides the essential watershed
primary constituent element that contributes to the pooling basins that
support the Riverside fairy shrimp.
This Unit encompasses ``mission-critical'' training areas within
Camp Pendleton at Los Pulgas Creek in the Oscar Two Training Area and
on Upper Stuart Mesa in the Oscar One Training Area, and non-training
areas within Camp Pendleton, including lands at the Cockleburr
Sensitive Area and lands leased to the State of California that are
included within San Onofre State Park and lands along San Mateo Creek.
The Recovery Plan includes these pool complexes within the San Diego
North Coastal Mesas Management Area. Based on the recent amendments to
section 4(a)(3) of the Act, we request specific information from the
Department of Defense regarding Camp Pendleton's INRMP and conservation
of the Riverside fairy shrimp to assist the Secretary of the Interior
in determining if the INRMP provides a benefit to Riverside fairy
shrimp. We propose to include the subunits that encompass essential
habitat in the Cockleburr Sensitive Area on Camp Pendleton; this area
is not known to be a ``mission-critical'' training area. The essential
habitat within ``mission-critical'' training areas is excluded, but
considered essential for the conservation of the species.
Within the jurisdiction of the City of Carlsbad, one vernal pool
complex is located at the Poinsettia Lane train station. This complex
is associated with a remnant of coastal terrace habitat and is
essential for the conservation of the species in northern San Diego
County. This pool is one of the last remaining
[[Page 23037]]
coastal occurrences of Riverside fairy shrimp that is not on military
land.
Map Unit 5: South San Diego County Critical Habitat Unit, San Diego
County, California (1,121 ac (453 ha))
The South San Diego Management Area identified in the Recovery Plan
contains several vernal pools essential to the conservation of
Riverside fairy shrimp. The areas that are proposed for designation of
critical habitat in Unit 3 contain the primary constituent elements
described above relating to the pooling basins, watersheds, underling
soil substrate and topography. The majority of the land in this unit
provides the essential watershed primary constituent element that
contributes to the pooling basins that support the Riverside fairy
shrimp. This region represents a core area for the species. Pools in
this area are threatened by off-road vehicle activity and development.
The majority of pools in this area are part of San Diego's MSCP. This
plan details a policy of ``no-net-loss'' for vernal pools. There is
currently an effort to develop a management plan for vernal pools
within the MSCP which will provide further conservation benefit to the
Riverside fairy shrimp. Specifically, the Recovery Plan identifies the
following vernal pool complexes as essential: J2, 5, 7, 11-21, 23-30.
In addition, the Riverside fairy shrimp has recently been located at
complex J3, the building site for Saint Jerome's Church, and on east
Otay Mesa near the International Border with Mexico. Of these essential
locations, only the vernal pools and their watersheds that occur on
lands not protected by the MSCP are proposed as critical habitat. The
subunits for this region include the J15 complex or Arnie's Point, the
watershed for the J29 complex on federally managed land, and the
watershed, vernal pools, and ephemeral ponds that occur on east Otay
Mesa that are in the Major and Minor Amendment Areas of the MSCP.
Effects of Critical Habitat Designation
Section 7 Consultation
The regulatory effects of a critical habitat designation under the
Act are triggered through the provisions of section 7, which applies
only to activities conducted, authorized, or funded by a Federal agency
(Federal actions). Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR 402.
Individuals, organizations, States, local governments, and other non-
Federal entities are not affected by the designation of critical
habitat unless their actions occur on Federal lands, require Federal
authorization, or involve Federal funding.
Section 7(a)(2) of the Act requires Federal agencies, including us,
to insure that their actions are not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. This requirement is met
through section 7 consultation under the Act. Our regulations define
``jeopardize the continued existence of'' as to engage in an action
that reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or
distribution of that species (50 CFR 402.02). ``Destruction or adverse
modification of designated critical habitat'' is defined as a direct or
indirect alteration that appreciably diminishes the value of the
critical habitat for both the survival and recovery of the species (50
CFR 402.02). Such alterations include, but are not limited to, adverse
changes to the physical or biological features, i.e., the primary
constituent elements, that were the basis for determining the habitat
to be critical. However, in a March 15, 2001, decision of the United
States Court of Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish
and Wildlife Service et al., 245 F.3d 434), the Court found our
definition of destruction or adverse modification to be invalid. In
response to this decision, we are reviewing the regulatory definition
of adverse modification in relation to the conservation of the species.
Section 7(a)(4) requires Federal agencies to confer with us on any
action that is likely to jeopardize the continued existence of a
proposed species or result in destruction or adverse modification of
proposed critical habitat. Conference reports provide conservation
recommendations to assist the agency in eliminating conflicts that may
be caused by the proposed action. The conservation recommendations in a
conference report are advisory.
We may issue a formal conference report, if requested by the
Federal action agency. Formal conference reports include an opinion
that is prepared according to 50 CFR 402.14, as if critical habitat
were designated. We may adopt the formal conference report as the
biological opinion when critical habitat is designated, if no
substantial new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)).
If a species is listed or critical habitat is designated, section
7(a)(2) requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. 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. Through this consultation, the
action agency would ensure that the permitted actions do not destroy or
adversely modify critical habitat.
If we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we would also provide reasonable and prudent alternatives to
the project, if any are identifiable. Reasonable and prudent
alternatives are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Service's Regional Director believes would avoid the
destruction or adverse modification of 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 critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Federal activities that may affect vernal pool crustaceans or
vernal pool plants or their critical habitat will require consultation
under section 7. Activities on private, State, or county lands, or
lands under local jurisdictions requiring a permit from a Federal
agency, such as Federal Highway Administration or Federal Emergency
Management Act funding, or a permit from the Corps under section 404 of
the Clean Water Act, will continue to be
[[Page 23038]]
subject to the section 7 consultation process. Federal actions not
affecting listed species or critical habitat, and actions on non-
Federal lands that are not federally funded, authorized, or permitted,
do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to evaluate briefly and
describe, in any proposed or final regulation that designates critical
habitat, those activities involving a Federal action that may adversely
modify such habitat or that may be affected by such designation. We
note that such activities may also jeopardize the continued existence
of the species.
Activities that, when carried out, funded, or authorized by a
Federal agency may directly or indirectly destroy or adversely modify
critical habitat for Riverside fairy shrimp include, but are not
limited to:
(1) Any activity, including the regulation of activities by the
Corps of Engineers under section 404 of the Clean Water Act or
activities carried out by or licensed by the Environmental Protection
Agency (EPA), that could alter the watershed, water quality or water
quantity to an extent that water quality becomes unsuitable to support
Riverside fairy shrimp, or any activity that significantly affects the
natural hydrologic function of the vernal pool system and/or ephemeral
pond or depression;
(2) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities, or any activity funded or
carried out by the Department of Transportation or Department of
Agriculture that results in discharge of dredged or fill material,
excavation, or mechanized land clearing of ephemeral and/or vernal pool
basins;
(3) Airport construction, improvement, or maintenance activities
funded or authorized by the Federal Aviation Administration;
(4) Sale or exchange of lands by a Federal agency to a non-Federal
entity;
(5) Licensing of construction of communication sites by the Federal
Communications Commission;
(6) Funding of construction or development activities by the U.S.
Department of Housing and Urban Development;
(7) Military training and maneuvers on DOD lands;
(8) Funding and implementation of disaster relief projects by the
FEMA and the Natural Resource Conservation Service's Emergency
Watershed Program, including erosion control, flood control, and stream
bank repair to reduce the risk of loss of property; and
(9) Promulgation and implementation of a land use plan by a Federal
agency such as the Bureau of Land Management, U.S. Forest Service, or
DOD that may alter management practices for critical habitat.
If you have questions regarding whether specific activities may
constitute adverse modification of critical habitat in California,
contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see
ADDRESSES section). Requests for copies of the regulations on listed
plants and wildlife, and inquiries about prohibitions and permits may
be addressed to the U.S. Fish and Wildlife Service, Branch of
Endangered Species, 911 NE 11th Ave, Portland, OR 97232 (telephone 503/
231-2063; facsimile 503/231-6243).
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial data
available, and to consider the economic, national security, and other
relevant impacts of designating a particular area as critical habitat.
We may exclude areas from critical habitat upon a determination that
the benefits of such exclusions outweigh the benefits of specifying
such areas as critical habitat. We cannot exclude such areas from
critical habitat when such exclusion will result in the extinction of
the species.
An analysis of the economic impacts of proposing critical habitat
for Riverside fairy shrimp is being prepared. We will announce the
availability of the draft economic analysis as soon as it is completed,
at which time we will seek public review and comment. When published,
copies of the draft economic analysis will be available for downloading
from the Internet at http://carlsbad.fws.gov, by contacting the
Carlsbad Fish and Wildlife Office directly (see ADDRESSES section)
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of this review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will send these peer reviewers
copies of this proposed rule immediately following publication in the
Federal Register. We will invite the selected peer reviewers to
comment, during the public comment period, on the specific assumptions
and conclusions regarding the proposed designation of critical habitat.
We will consider all comments and information received during the
public comment periods on this proposed rule during the preparation of
a final rulemaking. Accordingly, the decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made in writing no
later than 45 days following the publication of this proposal in the
Federal Register. We will schedule public hearings on this proposal, if
any are requested, and will announce the dates, times, and locations of
those hearings in the Federal Register and local newspapers at least 15
days prior to the first hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (groupings and order of the sections, use of
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is
the description of the notice in the SUPPLEMENTARY INFORMATION section
of the preamble helpful in understanding the proposed rule? What else
could we do to make this proposed rule easier to understand?
Send a copy of any comments on how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but it is not anticipated to have an annual effect on the economy of
$100 million or more or affect the economy in a material way. As such,
the Office of Management and Budget (OMB) has reviewed this rule. The
Service is preparing a draft economic analysis of this proposed action.
The Service will use this analysis to meet the requirement of section
4(b)(2) of the Act to determine the economic consequences of
designating the specific
[[Page 23039]]
areas as critical habitat and possibly excluding any area from critical
habitat if it is determined that the benefits of such exclusion
outweigh the benefits of specifying such areas as part of the critical
habitat, unless failure to designate such area as critical habitat will
lead to the extinction of the Riverside fairy shrimp. This analysis
will also be used to determine compliance with Executive Order 12866,
Regulatory Flexibility Act, Small Business Regulatory Enforcement
Fairness Act, and Executive Order 12630.
This analysis will be made available for public review and comment.
Copies may be obtained from the Carlsbad Fish and Wildlife Office's
Internet Web site at http://carlsbad.fws.gov or by contacting the
Carlsbad Fish and Wildlife Office directly (see ADDRESSES section).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 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 effect 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
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as 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 if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
proposed rule 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.
To determine if the proposed rule would affect a substantial number
of small entities, we considered the number of small entities affected
within particular types of economic activities (e.g., housing
development, oil and gas production, timber harvesting etc.). We
considered each industry individually to determine if certification is
appropriate. In estimating the numbers of small entities potentially
affected, we also considered whether their activities have any Federal
involvement; some kinds of activities are unlikely to have any Federal
involvement and so will not be affected by the designation of critical
habitat. Designation of critical habitat only affects activities
conducted, funded, permitted or authorized by Federal agencies; non-
Federal activities are not affected by the designation.
If this critical habitat designation is made final, Federal
agencies must consult with us if their activities may affect designated
critical habitat. Consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process. In areas where occupancy by Riverside
fairy shrimp is unknown, the designation of critical habitat could
trigger additional review of Federal agencies pursuant to section 7 of
the Act and may result in additional requirements on Federal activities
to avoid destruction or adverse modification of critical habitat. There
is one area proposed as critical habitat for the Riverside fairy shrimp
that is within the geographical area occupied by the species for which
the occupancy by the species has not been determined. The area is on
private land, but we have not received any information indicating the
area is anticipated to be developed. Only those activities involving a
Federal agency that may affect designated critical habitat would
require consultation with us. In reviewing the activities in this area,
we have no information indicating future activities on those areas
would involve permitting, authorization or funding by a Federal agency.
We also reviewed 10 formal consultations involving this species
that were conducted since its listing under the Act in 1993, including
one consultation conducted in 2001 when critical habitat for the
Riverside fairy shrimp was previously designated and in place. These
formal consultations, which all involved Federal actions, included five
construction projects, vegetation management activities, airport
construction and improvement, military training, and road construction.
These 10 consultations resulted in non-jeopardy biological opinions,
including a determination of no adverse modification of critical
habitat for the consultation completed during the time when critical
habitat for the species was previously designated and in place.
In reviewing these past formal consultations and the activities
they involved in the context of the proposed critical habitat, we do
not believe the outcomes would have been different in areas designated
as critical habitat.
In summary, we have considered whether this proposed rule would
result in a significant economic impact on a substantial number of
small entities, and we have concluded that it would not. We have no
indication that the types of activities we review under section 7 of
the Act will change significantly in the future.
Therefore, we are certifying that this proposed designation of
critical habitat is not expected to have a significant adverse impact
on a substantial number of small entities, and an initial regulatory
flexibility analysis is not required.
The preceding discussion is based on information regarding
potential economic impacts that is currently available to us. This
assessment of economic effect may be modified prior to publication of a
final rule, based on a review of the draft economic analysis currently
being prepared pursuant to section 4(b)(2) of the Act, Executive Order
12866, and public comments received during the public comment period.
This analysis is for the purposes of compliance with the Regulatory
Flexibility Act and does not reflect our position on the type of
economic analysis required by New Mexico Cattle Growers Assn. v. U.S.
Fish & Wildlife Service 248 F. 3d 1277 (10th Cir. 2001).
Executive Order 13211
On May 18, 2001, the President issued an Executive Order 13211
(E.O. 13211) on regulations that significantly affect energy supply,
distribution, and use. E.O. 13211 requires agencies to prepare
Statements of Energy Effects when undertaking certain actions. This
proposed rule is considered a significant regulatory action under E.O.
12866 due to it potentially raising novel legal and policy issues, but
it is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
action and no Statement of Energy Effects is required.
[[Page 23040]]
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) 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, 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; AFDC 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 who receive Federal
funding, assistance, permits or 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
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. As such, Small Government Agency Plan is not
required. We will, however, further evaluate this issue as we conduct
our economic analysis and as appropriate, review and revise this
assessment as warranted.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for Riverside fairy shrimp. Critical habitat
designation does not affect actions of the landowners which do not
require federal funding or permits, nor preclude development of HCPs
and the issuance of incidental take permits to permit actions which do
require federal funding or permits to go forward. This takings
assessment concludes that this proposed rule does not pose significant
takings implications.
Federalism
In accordance with Executive Order 13132, this proposed rule does
not have significant Federalism effects. A Federalism assessment 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 proposal with appropriate State
resource agencies in California. We will continue to coordinate any
future designation of critical habitat for the Riverside fairy shrimp
with the appropriate State agencies. The designation of critical
habitat in areas currently occupied by the Riverside fairy shrimp
imposes no additional restrictions to those currently in place and,
therefore, has little incremental impact on State and local governments
and their activities. The designation may have some benefit to these
governments in that the areas essential to the conservation of the
species are more clearly defined, and the primary constituent elements
of the habitat necessary to the survival of the species are
specifically identified. While making this definition and
identification does not alter where and what federally sponsored
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7
consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed critical
habitat in accordance with the provisions of the Act. The rule uses the
Universal Transverse Mercator coordinate system, which is identifiable
on common topographic maps, as the standard unit description and
identifies the primary constituent elements within the proposed areas
to assist the public in understanding the habitat needs of the
Riverside fairy shrimp.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any information collection requirements
for which OMB approval under the Paperwork Reduction Act is required.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a valid OMB
control number.
National Environmental Policy Act
We have determined that we do not need to prepare an Environmental
Assessment and/or an Environmental Impact Statement as defined by the
National Environmental Policy Act of 1969 in connection with
regulations adopted pursuant to section 4(a) of the Act. We published a
notice outlining our reason for this determination in the Federal
Register on October 25, 1983 (48 FR 49244). This proposed rule does not
constitute a major Federal action significantly affecting the quality
of the human environment.
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 (November 9, 2000;
65 FR 67249); and DOI's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a government-to-government basis.
[[Page 23041]]
Historical records indicate that there were two vernal pools on or
near Tribal lands of Pechanga Band of Luise[ntilde]o Indians that
contained Riverside fairy shrimp (Eriksen 1988). After reviewing aerial
photographs of the area and meeting with the Tribe's Environmental
Coordinator in March 2004, we were unable to confirm these occurrences.
It is possible that through additional survey work that these
occurrences may be relocated, however, at this time we do not know if
the Riverside fairy shrimp occurs on Tribal lands of Pechanga Band of
Luiseno Indians. Based on the best scientific data available, we do not
believe that there are any lands essential to the conservation of the
Riverside fairy shrimp on Tribal lands. As such, we are not including
any Tribal lands in proposed critical habitat for the Riverside fairy
shrimp.
References Cited
A complete list of all references cited herein, as well as others,
is available upon request from the Carlsbad Fish and Wildlife Office
(see ADDRESSES section).
Authors
The primary authors of this notice are the staff of the Carlsbad
Fish and Wildlife Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
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--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-
4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h) revise the entry for ``Fairy shrimp,
Riverside'' under ``CRUSTACEANS'' to read as follows:
17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Special
Historic range endangered or Status When listed Critical habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
CRUSTACEANS
* * * * * * *
Fairy shrimp, Riverside......... Streptocephalus U.S.A. (CA)....... Entire............ E 512 17.95(h) NA
woottoni.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.95 (h) by revising critical habitat for the
Riverside fairy shrimp (Streptocephalus woottoni) to read as follows:
17.95 Critical habitat--fish and wildlife.
* * * * *
(h) Crustaceans.
* * * * *
Riverside Fairy Shrimp (Streptocephalus woottoni)
(1) Critical habitat units are depicted for Los Angeles, Orange,
Riverside, San Diego, and Ventura Counties, California, on the maps
below.
(2) Critical habitat includes vernal pools, vernal pool complexes,
and ephemeral ponds and depressions and their associated watersheds and
hydrologic regime indicated on the maps below and in the legal
descriptions.
(3) Within these areas, the primary constituent elements for the
Riverside fairy shrimp are those habitat components that are essential
for the primary biological needs of foraging, sheltering, reproduction,
and dispersal. The primary constituent elements are found in those
areas that support vernal pools or other ephemeral ponds and
depressions, and their associated watersheds. The primary constituent
elements determined essential to the conservation of Riverside fairy
shrimp are:
(i) Small to large pools or pool complexes that have the
appropriate temperature, water chemistry, and length, of time
inundation with water necessary for Riverside fairy shrimp incubation
and reproduction, as well as dry periods necessary to provide the
conditions to maintain a dormant and viable cyst bank. Specifically,
the conditions necessary to allow for successful reproduction of
Riverside fairy shrimp fall within the following ranges:
(A) Moderate to deep depths ranging from 10 in (25 cm) to 5 to 10
ft (1.5 to 3 m);
(B) Ponding inundation that lasts for a minimum length of 2 months
and a maximum length of 5 to 8 months, i.e., a sufficient wet period in
winter and spring months to allow the Riverside fairy shrimp to hatch,
mature, and reproduce, followed by a dry period prior to the next
winter and spring rains;
(C) Water temperature that falls within the range of 50 and 77
degrees Fahrenheit (10 and 25 degrees Celsius); and
(D) Water chemistry with low total dissolved solids and alkalinity
(means of 77 and 65 parts per million, respectively), corroborated by
pH within a range of 6.4-7.1.
(ii) Associated watersheds that provide water to fill the pools in
the winter and spring months. The size of the associated watershed
varies greatly and cannot be generalized and has been assessed on a
case-by-case basis. Factors that affect the size of the watershed
include surface and underground hydrology, the topography of the area
surrounding the pool or pools, the vegetative coverage, and the soil
substrate in the area. Watershed sizes designated vary from a few acres
(hectares) to greater than 100 ac (40 ha).
(iii) Soil type with a clay component and/or an impermeable surface
or subsurface layer known to support vernal pool habitat.
(4) The matrix of vernal pools/ephemeral wetlands, the associated
watershed, upland habitats, and underlying soil substrates form
hydrological and ecologically functional units. These features and the
lands that they represent are essential to the conservation of the
Riverside fairy shrimp. All lands identified as essential and proposed
as critical habitat contain
[[Page 23042]]
one or more of the primary constituent elements for the Riverside fairy
shrimp.
(5) The minimum mapping unit for this designation does not exclude
all developed areas, such as buildings, roads, aqueducts, railroads,
airports, other paved areas, lawns, and other lands unlikely to contain
the primary constituent elements. However, these areas are not critical
habitat and have been excluded from this proposed rule. Federal actions
limited to these areas would not trigger a section 7 consultation,
unless they affect the species and/or the primary constituent elements
in adjacent critical habitat.
(6) Index map of critical habitat units for the Riverside fairy
shrimp follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP27AP04.007
(7) Map Unit 1: Transverse Range, Los Angeles and Ventura County,
California. From USGS 1:24,000 quadrangle maps Mint Canyon, Thousand
Oaks, and Simi Valley West.
(i) Unit 1a: Lands bounded by the following UTM NAD27 coordinates
(E,N): 329000, 3793300; 329500, 3793300; 329500, 3792700; 329000,
3792700; 329000, 3793300.
(ii) Unit 1b: lands bounded by the following UTM NAD27 coordinates
(E,N): 330900, 3792500; 331100, 3792500; 331100, 3792300; 331200,
3792300; 331200, 3792200; 331800, 3792200; 331800, 3792300; 331900,
3792300; 331900, 3792000; 331800, 3792000; 331800, 3791800; 331900,
3791800; 331900, 3791600; 332000, 3791600; 332000, 3791300; 332100,
3791300; 332100, 3791100; 331400, 3791100; 331400, 3791000; 331300,
3791000; 331300, 3790900; 330900, 3790900; 330900, 3790800; 330600,
3790800; 330600, 3791900; 330500, 3791900; 330500, 3792000; 330600,
3792000; 330600, 3792100; 330700, 3792100; 330700, 3792300; 330800,
3792300; 330800, 3792400; 330900, 3792400; 330900, 3792500.
(iii) Unit 1c: Lands bounded by the following UTM NAD27 coordinates
(E,N): 368000, 3815300; 368400, 3815300; 368400, 3815200; 368600,
3815200; 368600, 3815100; 368700, 3815100; 368700, 3814700; 368600,
3814700; 368600, 3814600; 368400, 3814600; 368400, 3814500; 368200,
3814500; 368200, 3814300; 368300, 3814300; 368300, 3813700; 368200,
3813700; 368200, 3813500; 368100, 3813500; 368100, 3813300; 368000,
3813300; 368000, 3813100; 367400, 3813100; 367400, 3813200; 367300,
3813200; 367300, 3813800; 367100, 3813800; 367100, 3813900; 366900,
3813900; 366900, 3814100; 367000, 3814100; 367000, 3814200; 367100,
3814200; 367100, 3814300; 367200, 3814300; 367200, 3814400; 367300,
3814400; 367300, 3814500; 367400, 3814500; 367400, 3814700; 367500,
3814700; 367500, 3814800; 367600, 3814800; 367600, 3814900; 367700,
3814900; 367700, 3815000; 367800, 3815000; 367800, 3815100; 367900,
3815100; 367900, 3815200; 368000, 3815200; 368000, 3815300.
(iv) Map of critical habitat unit 1a-c for the Riverside fairy
shrimp follows:
[[Page 23043]]
[GRAPHIC] [TIFF OMITTED] TP27AP04.008
(8) Map Unit 2: Los Angeles Basin-Orange Management Area, Los
Angeles, Orange and San Diego County, California. From USGS 1:24,000
quadrangle maps Venice, El Toro, Santiago Peak, San Juan Capistrano,
Canada Gobernadora, and San Clemente.
(i) Unit 2a: Lands bounded by the following UTM NAD27 coordinates
(E,N): 367600, 3756300; 367900, 3756300; 367900, 3756000; 368100,
3756000; 368100, 3755800; 368200, 3755800; 368200, 3755700; 367800,
3755700; 367800, 3755800; 367700, 3755800; 367700, 3756100; 367600,
3756100; 367600, 3756300.
(ii) Unit 2b: Lands bounded by the following UTM NAD27 coordinates
(E,N): 368400, 3755800; 3688600, 3755800; 368600, 3755700; 368700,
3755700; 368700, 3755300; 368300, 3755300; 368300, 3755400; 368100,
3755400; 368100, 3755600; 368300, 3755600; 368300, 3755700, 368400,
3755700, 368400, 3755800.
(iii) Map of critical habitat unit 2a-b for the Riverside fairy
shrimp follows:
[[Page 23044]]
[GRAPHIC] [TIFF OMITTED] TP27AP04.009
(iv) Unit 2c: Lands bounded by the following UTM NAD27 coordinates
(E,N): 437000, 3727400; 436900, 3727400; 436900, 3727300; 436800,
3727300; 436800, 3727200; 436700, 3727200; 436700, 3727100; 436300,
3727100; 436300, 3727200; 436200, 3727200; 436200, 3727300; 436100,
3727300; 436100, 3727500; 436000, 3727500; thence north to the Marine
Corps Air Station (MCAS) El Toro boundary at UTM NAD27 x-coordinate
436000; thence northeast following the MCAS El Toro boundary to UTM
NAD27 y-coordinate 3727900; thence east to UTM NAD27 coordinates
436300, 3727900; thence north to the MCAS El Toro boundary at UTM NAD27
x-coordinate 436300: thence northeast following the MCAS El Toro
boundary to UTM NAD27 y-coordinate 3728000; thence east to the MCAS El
Toro boundary at UTM NAD27 y-coordinate 3728000; thence southeast
following the MCAS El Toro boundary to UTM NAD27 x-coordinate 436500;
thence south to UTM NAD27 coordinates 436500, 3727900; thence east to
the MCAS El Toro boundary at UTM NAD27 y-coordinate 3727900; thence
southeast following the MCAS El Toro boundary to UTM NAD27 x-coordinate
436600; thence south to UTM NAD27 coordinates 436600, 3727800; thence
east to the MCAS El Toro boundary at UTM NAD27 y-coordinate 3727800;
thence southeast following the MCAS El Toro boundary to UTM NAD27 x-
coordinate 436700; thence south to UTM NAD27 coordinates 436700,
3727700; thence east to the MCAS El Toro boundary at UTM NAD27 y-
coordinate 3727700; thence southeast following the MCAS El Toro
boundary to UTM NAD27 x-coordinate 436800; thence south to UTM NAD27
coordinates 436800, 3727600; thence east to the MCAS El Toro boundary
at UTM NAD27 y-coordinate 3727600; thence southeast following the MCAS
El Toro boundary to UTM NAD27 x-coordinate 436900; thence south to UTM
NAD27 coordinates 436900, 3727500; thence east to the MCAS El Toro
boundary at UTM NAD27 y-coordinate 3727500; thence southeast following
the MCAS El Toro boundary to UTM NAD27 x-coordinate 437000; thence
south returning to UTM NAD27 coordinates 437000, 3727400.
(v) Unit 2d: Lands bounded by the following UTM NAD27 coordinates
(E,N): 443300, 3726300; 442700, 3726300; 442700, 3726400; 442400,
3726400; thence north to the Central Coastal NCCP (CCNCCP) boundary at
UTM NAD27 x-coordinate 442400; thence northeast following the CCNCCP
boundary to UTM NAD27 y-coordinate 3726500; thence east to UTM NAD27
coordinates 442500, 3726500; thence north to the CCNCCP at UTM NAD27 x-
coordinate 442500; thence northeast following the CCNCCP to UTM NAD27
y-coordinate 3726900; thence east to UTM NAD27 coordinates 442900,
3726900; thence north to the CCNCCP boundary at UTM NAD27 x-coordinate
442900; thence northeast following the CCNCCP boundary to UTM NAD27 y-
coordinate 3727400; thence east following UTM NAD27 coordinates 443800,
3727400; 443800, 3727300; 444000, 3727300; 444000, 3727200; 444100,
3727200; 444100, 3727100; 444200, 3727100; 444200, 3725900; 443900,
3725900; 443900, 3725700; 444100, 3725700; 444100, 3724500;
[[Page 23045]]
444000, 3724500; 444000, 3724400; 443600, 3724400; 443600, 3724700;
443700, 3724700; 443700, 3724800; 443400, 3724800; 443400, 3724900;
443300, 3724900; 443300, 3725400; 443400, 3725400; 443400, 3725700;
443200, 3725700; 443200, 3725800; 443100, 3725800; 443100, 3725900;
443000, 3725900; 443000, 3726000; 442900, 3726000; 442900, 3726200;
443300, 3726200; returning to UTM NAD27 coordinates 443300, 3726300,
excluding lands bounded by the following UTM NAD27 coordinates 443400,
3726900; 443500, 3726900; 443500, 3726700; 443300, 3726700; 443300,
3726800; 443400, 3726800; 443400, 3726900 and excluding lands bounded
by the following UTM NAD27 coordinates 443500, 3726600; 443600,
3726600; 443600, 3726500; 443700, 3726500; 443700, 3726400; 443500,
3726400; 443500, 3726300; 443300, 3726300; 443300, 3726400; 443400,
3726400; 443400, 3726500; 443500, 3726500; 443500, 3726600.
(vi) Unit 2e: Lands bounded by the following UTM NAD27 coordinates
(E,N): 444800, 3721200; 445300, 3721200; 445300, 3721100; 445400,
3721100; 445400, 3720900; 445300, 3720900; 445300, 3720600; 445200,
3720600; 445200, 3720300; 445100, 3720300; 445100, 3720200; 445000,
3720200; 445000, 3720100; 444900, 3720100; 444900, 3720000; 444800,
3720000; 444800, 3719900; 444700, 3719900; 444700, 3719800; 443900,
3719800; 443900, 3719900; 443800, 3719900; 443800, 3720000; 443900,
3720000; 443900, 3720100; 444000, 3720100; 444000, 3720300; 444100,
3720300; 444100, 3720400; 444200, 3720400; 444200, 3720600; 444300,
3720600; 444300, 3720700; 444400, 3720700; 444400, 3720900; 444500,
3720900; 444500, 3721000; 444600, 3721000; 444600, 3721100; 444800,
3721100; 444800, 3721200.
(vii) Unit 2f: Lands bounded by the following UTM NAD27 coordinates
(E,N): 442200, 3713500; 442600, 3713500; 442600, 3713400; 442700,
3713400; 442700, 3713200; 442800, 3713200; 442800, 3712900; 442900,
3712900; 442900, 3712500; 443000, 3712500; 443000, 3712200; 442900,
3712200; 442900, 3711400; 442800, 3711400; 442800, 3711300; 442700,
3711300; 442700, 3711200; 442300, 3711200; 442300, 3711300; 442200,
3711300; 442200, 3711500; 442100, 3711500; 442100, 3711700; 442000,
3711700; 442000, 3712000; 441900, 3712000; 441900, 3712200; 441800,
3712200; 441800, 3712400; 441900, 3712400; 441900, 3713000; 442000,
3713000; 442000, 3713400; 442200, 3713400; 442200, 3713500.
(viii) Unit 2g: Lands bounded by the following UTM NAD27
coordinates (E,N): 443600, 3709200; 444000, 3709200; 444000, 3709000;
444100, 3709000; 444100, 3708900; 444300, 3708900; 444300, 3708800;
444500, 3708800; 444500, 3708700; 444700, 3708700; 444700, 3708600;
444900, 3708600; 444900, 3708500; 445000, 3708500; 445000, 3708400;
445100, 3708400; 445100, 3707800; 445200, 3707800; 445200, 3707600;
445100, 3707600; 445100, 3707500; 445000, 3707500; 445000, 3707400;
444900, 3707400; 444900, 3707300; 444700, 3707300; 444700, 3707200;
444200, 3707200; 444200, 3707300; 443900, 3707300; 443900, 3707400;
443600, 3707400; 443600, 3707500; 443500, 3707500; 443500, 3707600;
443400, 3707600; 443400, 3707800; 443300, 3707800; 443300, 3708000;
443200, 3708000; 443200, 3708200; 443100, 3708200; 443100, 3708600;
443000, 3708600; 443000, 3708700; 443100, 3708700; 443100, 3709100;
443600, 3709100; 443600, 3709200.
(ix) Unit 2h: Lands bounded by the following UTM NAD27 coordinates
(E,N): 446300, 3701100; 446700, 3701100; 446700, 3701000; 446800,
3701000; 446800, 3700900; 446900, 3700900; 446900, 3699800; 446800,
3699800; 446800, 3699200; 446700, 3699200; 446700, 3698900; 446600,
3698900; 446600, 3698700; 446200, 3698700; 446200, 3698800; 445800,
3698800; 445800, 3698900; 445700, 3698900; 445700, 3700100; 445800,
3700100; 445800, 3700200; 445900, 3700200; 445900, 3700400; 446000,
3700400; 446000, 3700800; 446100, 3700800; 446100, 3700900; 446200,
3700900; 446200, 3701000; 446300, 3701000; 446300, 3701100.
(x) Map of critical habitat unit 2c-h for the Riverside fairy
shrimp follows:
[[Page 23046]]
[GRAPHIC] [TIFF OMITTED] TP27AP04.010
(9) Unit 3: Western Riverside County, Riverside County, California.
From USGS 1:24.000 quadrangle map Riverside East.
(i) Unit 3a: Lands bounded by the following UTM NAD27 coordinates
(E,N): 475600, 3751900; 476000, 3751900; 476000, 3751800; 476100,
3751800; 476100, 3751600; 475900, 3751600; 475900, 3751400; 475700,
3751400; 475700, 3751500; 475600, 3751500; 475600, 3751600; 475700,
3751600; 475700, 3751700; 475600, 3751700; 475600, 3751900.
(ii) Unit 3b: Lands bounded by the following UTM NAD27 coordinates
(E,N): 475400, 3749400; 475800, 3749400; 475800, 3749200; 475900,
3749200; 475900, 3749000; 476000, 3749000; 476000, 3748900; 476100,
3748900; 476100, 3748400; 475800, 3748400; 475800, 3748500; 475700,
3748500; 475700, 3748700; 475600, 3748700; 475600, 3749000; 475500,
3749000; 475500, 3749200; 475400, 3749200; 475400, 3749400.
(iii) Map of critical habitat unit 3a-b for the Riverside fairy
shrimp follows:
[[Page 23047]]
[GRAPHIC] [TIFF OMITTED] TP27AP04.011
(10) Unit 4: North San Diego County, San Diego County, California.
From USGS 1:24,000 quadrangle maps Las Pulgas Canyon and Encinitas.
(i) Unit 4a: Lands bounded by the following UTM NAD27 coordinates
(E,N): 459500, 3680600; 459800, 3680600; 459800, 3680500; 459900,
3680500; 459900, 3680400: 460000, 3680400; 460000, 3680300; 459800,
3680300; 459800, 3680400; 459700, 3680400; 459700, 3680300; 459600,
3680300; 459600, 3680200; 459500, 3680200; 459500, 3680000; 459100,
3680000; 459100, 3680100; 459000, 3680100; 459000, 3680300; 459300,
3680300; 459300, 3680500; 459500, 3680500; 459500, 3680600, excluding
the Pacific Ocean.
(ii) Unit 4b: Lands bounded by the following UTM NAD27 coordinates
(E,N): 460000, 3680000; 460200, 3680000; 460200, 3679900; 460300,
3679900; 460300, 3679600; 460500, 3679600; 460500, 3679500; 460600,
3679500; 460600, 3679200; 460500, 3679200; 460500, 3679100; 460100,
3679100; 460100, 3679000; 459800, 3679000; 459800, 3679100; 459700,
3679100; 459700, 3679200; 459600, 3679200; 459600, 3679400; 459500,
3679400; 459500, 3679500; 459400, 3679500; 459400, 3679700; 459300,
3679700; 459300, 3679800; 459800, 3679800; 459800, 3679700; 460000,
3679700; 460000, 3680000, excluding the Pacific Ocean.
(iii) Unit 4c: Lands bounded by the following UTM NAD27 coordinates
(E,N): 470000, 3663800; 470200, 3663800; 470200, 3663700; 470300,
3663700; 470300, 3663600; 470500, 3663600; 470500, 3663300; 470600,
3663300; 470600, 3663100; 470700, 3663100; 470700, 3662900; 470800,
3662900; 470800, 3662200; 470500, 3662200; 470500, 3662300; 470400,
3662300; 470400, 3662900; 470300, 3662900; 470300, 3663100; 470200,
3663100; 470200, 3663400; 470100, 3663400; 470100, 3663700; 470000,
3663700; 470000, 3663800.
(iv) Map of critical habitat unit 4a-c for the Riverside fairy
shrimp follows:
[[Page 23048]]
[GRAPHIC] [TIFF OMITTED] TP27AP04.012
(11) Unit 5: South San Diego County, San Diego, California. From
USGS 1:24,000 quadrangle maps Imperial Beach and Otay Mesa.
(i) Unit 5a: Sweetwater Union High School District lands on Otay
Mesa and between UTM NAD27 x-coordinates 497800 and 498700.
(ii) Unit 5b: U.S. Federal Government lands on Otay Mesa and
between UTM NAD27 x-coordinates 497500 and 500400.
(iii) Unit 5c: Beginning at the Mexico Border at UTM NAD27 y-
coordinate 3601400, thence west and following UTM NAD27 coordinates
507400, 3601400; 507400, 3601800; 507500, 3601800; 507500, 3602200;
507600, 3602200; 507600, 3602500; 507700, 3602500; 507700, 3602600;
507800, 3602600; 507800, 3602700; 508100, 3602700; 508100, 3602800;
508200, 3602800; 508200, 3602700; 508400, 3602700; 508400, 3602800;
508500, 3602800; 508500, 3602900; 508600, 3602900; 508600, 3603000;
509200, 3603000; 509200, 3603100; 510100, 3603100; 510100, 3603000;
510200, 3603000; 510200, 3602800; 510100, 3602800; 510100, 3602300;
510000, 3602300; 510000, 3601900; 509900, 3601900; thence south to the
U.S./Mexico border at UTM NAD27 x-coordinate 509900; thence west
following the U.S./Mexico border; returning to the point of beginning.
(iv) Map of critical habitat unit 5a-c for the Riverside fairy
shrimp follows:
[[Page 23049]]
[GRAPHIC] [TIFF OMITTED] TP27AP04.013
Dated: April 15, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-9203 Filed 4-26-04; 8:45 am]
BILLING CODE 4310-55-C