[Federal Register Volume 70, Number 69 (Tuesday, April 12, 2005)]
[Rules and Regulations]
[Pages 19154-19204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6825]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Riverside Fairy Shrimp (Streptocephalus woottoni);
Final Rule
Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules
and Regulations
[[Page 19154]]
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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; Designation of
Critical Habitat for the Riverside Fairy Shrimp (Streptocephalus
woottoni)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the federally endangered Riverside fairy shrimp
(Streptocephalus woottoni) pursuant to the Endangered Species Act of
1973, as amended (Act). The critical habitat designation encompasses
approximately 306 acres (ac) (124 hectares (ha)) of land within
Ventura, Orange, and San Diego counties, California.
DATES: This rule becomes effective on May 12, 2005.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection, by appointment, during normal business hours, at
the Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service,
6010 Hidden Valley Road, Carlsbad, California 92009 (telephone 760/431-
9440). The final rule, economic analysis, and maps of the designation
are also available via the Internet at http://carlsbad.fws.gov.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, at the above address (telephone 760/431-9440;
facsimile 760/431-9618).
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, 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 are paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, of the 1,253 listed species in
the U.S. under the jurisdiction of the Service, only 470 species (38
percent) have designated critical habitat.
We address the habitat needs of all 1,244 listed species through
conservation mechanisms such as listing, section 7 consultations, the
section 4 recovery planning process, the section 9 protective
prohibitions of unauthorized take, section 6 funding to the States, and
the section 10 incidental take permit process. The Service believes
that it is these measures that may make the difference between
extinction and survival for many species.
We note, however, that the recent 9th Circuit judicial opinion in
the case of Gifford Pinchot Task Force v. United States Fish and
Wildlife Service has invalidated the Service's regulation defining
destruction or adverse modification of critical habitat. We are
currently reviewing the decision to determine what effect it may have
on the outcome of consultations pursuant to section 7 of the Act.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA). None of these costs result in
any benefit to the species that is not already afforded by the
protections of the Act enumerated earlier, and they directly reduce the
funds available for direct and tangible conservation actions.
Background
Among the rarest animal species endemic (native) to Southern
California is a tiny freshwater crustacean known as the Riverside fairy
shrimp (Streptocephalus woottoni). Its distribution is highly
restricted, with most of the known populations of the endangered
Riverside fairy shrimp observed in vernal pools located in portions of
a few counties and 50 miles (mi) (24 kilometers (km)) or less from the
California coast, and ranging only approximately 125 mi (200 km) from
its known northern limit (Ventura and Los Angeles counties) to its
southern limit (Mexico border, San Diego County) within the U.S. (Eng
et al. 1990; Simovich and Fugate 1992; Eriksen and Belk 1999; Service
2004 (69 FR 23024)). It does not occur in the nearby desert or
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mountain areas (Hathaway and Simovich 1996). It is also among the most
recently discovered freshwater crustacean species in California, first
identified in 1985 as a unique species (Eng et al. 1990) in the genus
Streptocephalus (Baird 1852). With 63 species that occur worldwide
(retrieved February 22, 2005, from the Integrated Taxonomic Information
System on-line database, http://www.itis.usda.gov), Streptocephalus is
the most species-rich genus within the aquatic crustacean order
Anostraca, which comprises over 258 fairy shrimp species and 7
subspecies worldwide, organized into 21 genera (Belk et al. 1993). The
fairy shrimp (Anostraca) are, except for one other group, the most
primitive living crustaceans, or members of the sub-phylum Crustacea
(Eriksen and Belk 1999). Among the 23 fairy shrimp (Anostracan) species
that are found in California, 8 species are found only in this State,
giving California the highest level of endemism for any comparable
geographic region in North America (Eng et al. 1990), and resulting in
the highest number of species occurring in a comparable land area in
both North America and worldwide (Eriksen and Belk 1999). Despite this
fact, the level of knowledge about many Anastrocans is relatively low
due to the relative recentness of their discovery.
The Riverside fairy shrimp and vernal pool crustaceans in general,
occupy the first consumer level in the food chain, and thus constitute
a cornerstone in the food web. Fairy shrimp form an important food
source for an array of aquatic and terrestrial species, from diving
beetles, backswimmers (Notonectids), vernal pool tadpole shrimp
(Branchinecta species), predaceous aquatic insects and their larvae, to
waterfowl and shorebirds, and occasionally even for frogs, toads, and
tadpoles (Eriksen and Belk 1999). Humans have also been known to
consume fairy shrimp; tribes in California have been known to
extensively consume dried Artemia, and Tripos is said to be used as
food by some natives in Mexico (Pennak 1989).
The Riverside fairy shrimp, along with numerous sensitive and rare
plant species, lives only in vernal pools, vernal ponds, swales, and
ephemeral (short-lived) freshwater habitats. A vernal pool (including
vernal pond and vernal lake) is defined as an area of shallow
depression, usually underlain by some subsurface layer which prohibits
drainage into the lower soil profile, thus causing water to collect
during the rainy winter season (Holland 1976; Chetham 1976; Weitkamp et
al. 1996), i.e., the depression is inundated for portions of the wet
season, when temperatures are sufficient for plant growth (Keeley and
Zedler 1998). Following a brief waterlogged period during the late wet
season or early dry season, a vernal pool will eventually drain and dry
out, followed by an extended period of extreme soil-drying conditions
(Keeley and Zedler 1998; Rains et al. 2005). Swales are defined as
shallow drainages that carry water seasonally. Central to the
distinctive ecology of vernal pools is that they are vernal, or
ephemeral, i.e., occurring only temporarily, during late winter and
spring. The water in vernal pools stands sufficiently long to prohibit
zonal vegetation growth (Holland 1976), yet not long enough to allow
for colonization by fish species. Vernal pool habitat thus forms a
unique type of ecosystem, different in character and species
composition from the surrounding habitats (Service 2003; 68 FR46684),
and being intermediate between marsh (nearly always wet) and most zonal
vegetation communities (nearly always dry) (Holland 1976). In
California, where extensive areas of vernal pool habitat have developed
over long periods, unique species groups have evolved special
adaptations to allow them to survive the unusual conditions of vernal
pools. Vernal pools are often defined by their unique, often endemic,
flora as well (Smith and Verrill 1998).
The Riverside fairy shrimp occupies, and is thus completely
dependent upon, vernal pools to survive. A combination of physical and
environmental factors allows for the annual formation and maintenance
of their vernal pool habitat. Vernal pools form generally where there
is a Mediterranean climate, i.e., a wet season during fall and winter,
when rainfall exceeds evaporation and fills the pools, followed by a
spring and summer dry season, when evaporation exceeds rainfall and the
pools dry up. A typical vernal pool season is characterized by an
inundation phase, an aquatic phase, a water-logged drying phase, and a
dried-out phase (Keeley and Zedler 1998). Thus, the water regime
(hydrologic system) is crucial to the formation and functioning of a
healthy vernal pool ecosystem. Some pools fill entirely from direct
precipitation (Hanes and Stromberg 1998), while others have a
substantial watershed, including both surface, subsurface, and
groundwater, flowing through the surrounding bedrock and soils that
contributes to their water inputs (Rains et al. 2005).
Vernal pools can be a variety of shapes and sizes, from less than a
square yard (0.8 square meters (m\2\), to 2.5 ac (1 ha) or more. They
occur on gently sloping mesas above the primary drainages, or in
valleys at the low end of a watershed (Bauder and McMillan 1998).
Vernal pools may be fed or connected by low drainage pathways, or
swales. The micro-relief of a vernal pool may be complex, and some are
dotted with numerous rounded soil mounds (mima) (Scheffer 1947). Their
typical patterning, visible from the air, has allowed a number of
vernal pools to be mapped throughout California's Central Valley, on a
10-40 ac unit scale (Holland 1998; 2003, Service 2003). The landscape
in which they occur is typically grassland, but vernal pools also occur
in a variety of other habitat types (Service 2003).
A critical factor in the development of a vernal pool is the soil
conditions of the landscape (an impermeable surface or subsurface
layer) and a gently sloping topography (slope of 10 percent or less).
Vernal pools form because the soil or sediment layer at or below the
surface is nearly or completely impermeable to downward water seepage
(Smith and Verrill 1998), and thus rainfall and water from the
surrounding watershed becomes trapped above this layer. Soil types of
the California vernal pools are volcanic flows, and hardpans and
claypans, the latter of which have developed gradually over thousands
of years, and can be a yard (1 m) or more thick. The unique assemblage
of soils plays a critical role in nutrient cycling in vernal pool
ecosystems. The soil types which underlie and surround the vernal pool
therefore greatly influence the species composition of both plant and
animals, as well as the hydrological functioning of the vernal pool
(Hanes and Stromberg 1998; Hobson and Dahlgren 1998; Smith and Verrill
1998). Because water and precipitation flow through the soil to the
pool, the chemistry of the soils underlying a vernal pool, and in the
surrounding upslope areas, is directly linked to the chemistry of the
vernal pool's water, i.e., on its alkalinity, pH, oxidation and
reduction processes, dissolved salts and gasses, ion concentrations,
mineral richness, and organic material. Thus, soil chemistry likely has
a tremendous impact on aquatic invertebrate endemism (cf. Hobson and
Dahlgren 1998). The distinct seasonality of vernal pools results in
alternating conditions of reduction and oxidation within the soil
profile, creating edaphic (soil-influenced) controls that may provide a
refuge for competition-sensitive plant and animal species (Hobson and
Dahlgren 1998). The length of ponding may also be affected by variables
like
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consistency of soil, depth of soil to impervious layer (e.g., duripan,
claypan), type and thickness of the impervious layer, and local
climatic factors (e.g., rainfall abundance and regularity, evaporation
rates; Helm 1998).
Because of the transportation of water, soil, minerals and
nutrients over the landscape into vernal pools, the upland, or upslope
areas associated with vernal pools are an important source of these for
vernal pool organisms (Wetzel 1975). Since vernal pools are mostly
rain-fed, they tend to have low nutrient levels (Keeley and Zedler
1998). In fact, most of the nutrients that vernal pool crustaceans
derive from their vernal pool habitat come from the detritus (decaying
organic matter) that washes into pools from the adjacent upslope areas;
these nutrients provide the foundation for the food chain in the vernal
pool aquatic community (Eriksen and Belk 1999), of which the fairy
shrimp fauna constitutes an important component.
Typical to vernal pools are their dramatic fluctuations in local
environmental conditions. The water, generally unbuffered, fluctuates
greatly on a daily basis in pH, and concentrations of ions and
dissolved gasses (oxygen and carbon dioxide), due to varying daily
evaporation (Keeley and Zedler 1998). On a larger time-scale, there is
extensive monthly and annual variation in the duration and extent of
ponding of vernal pools, some pools not filling at all in some years,
as the timing and amount of annual rainfall in California varies
widely. Because of the unique and ephemeral nature of vernal pool
habitat, and the adaptations of its plant and animal species, vernal
pools are rich in species composition and contain a large number of
highly specialized, native species that are found nowhere else in the
region (endemic) (Holland and Jain 1978; Simovich 1998). Vernal pool
habitats yield the highest number and species richness of endemics
(native species) in comparison to other wetland types (Helm 1998).
Riverside Fairy Shrimp (Streptocephalus woottoni)
The Riverside fairy shrimp is a small (0.56-0.92 inches (in) (14-23
millimeters (mm))), slender Anostracan that has large stalked compound
eyes and a delicate, elongate body with 11 pairs of phyllopods, or
swimming appendages, which also function as gills (Eng et al. 1990;
Eriksen and Belk 1999). Using their phyllopods in a complex, wavelike
motion from front to back, they swim gracefully upside-down. As they
swim about, fairy shrimp use these same appendages to filter-feed from
the water column, allowing them to non-selectively consume algae,
bacteria, protozoa, rotifers and bits of detritus (Eng et al. 1990;
Eriksen and Belk 1999). Note that nothing is known specifically about
the Riverside fairy shrimp's food resource requirements (Simovich and
Ripley, pers. comm., May 25, 2004).
Riverside fairy shrimp are distinguished from other fairy shrimp
species primarily by the second pair of antennae on the adult male,
which are enlarged for grasping the female during copulation (Pennak
1989; Eriksen and Belk 1999; Service 2003). Both males and females are
generally off-white in color, with orange pigment in their tail
appendages (cercopods) and sometimes along the edges of the phyllopods
(although some females have been observed to be entirely bright red-
orange) (Eriksen and Belk 1999). The females, when mature, can be
identified by their brood pouch, the elongate, ventral protruding egg
sac immediately behind the phyllopods (Eriksen and Belk 1999).
Relative to most other fairy shrimp species, the Riverside fairy
shrimp is a rare species with a highly restricted distribution
(Hathaway and Simovich 1996). They are found only in a few pools at
lower elevations in the Southern California coastal range that are
inundated for a longer duration and generally deeper (greater than 12
in or 30 centimeters (cm)) than pools that support San Diego fairy
shrimp (Branchinecta sandiegonensis) (Hathaway and Simovich 1996). Some
of these pools may have been artificially deepened with berms (i.e.,
cattle tanks and road embankments) (Hathaway and Simovich 1996). The
two species are known to co-occur in a few deep pools; however they
generally do not co-exist, as adults of the Riverside fairy shrimp
emerge later in the season than San Diego fairy shrimp (Simovich and
Fugate 1992; Hathaway and Simovich 1996).
After copulation, the males of some fairy shrimp species die within
a few hours (Pennak 1989). When the eggs are fertilized in the female's
pouch, they become coated (encysted) with a protein layer that develops
into a thick, usually multilayered shell (Eriksen and Belk 1999). When
the egg enters the late stage of embryonic development, all growth then
ceases, and the egg enters into a dormant stage, or diapause
(Drinkwater and Clegg 1991; Eriksen and Belk 1999). The female then
either ejects the cysts to fall to the pool bottom, or, if she survives
for an extended period, continues to move successive clutches of eggs
into her brood pouch. If the vernal pool persists for several weeks to
a few months, fairy shrimp may have multiple hatches in a single season
(Eriksen and Belk 1999). Cysts can also remain in the brood pouch until
the female dies and sinks to the pool bottom (Eriksen and Belk 1999).
However, females of some fairy shrimp species can, in the presence of
male adults during the wet period, eject thin-shelled cysts that hatch
immediately without becoming dormant (``summer eggs''), thus allowing
for multiple generations during a single wet season, while the thick-
shelled, dormant (``winter'') eggs are deposited in the absence of
males in the population (Pennak 1989). By the time the pool dries out,
the numbers of dormant cysts within each pool basin can reach tens of
thousands to millions, depending on pool size, volume, and depth (Belk
1998).
Mature cysts become fully desiccated (dried) after their pool has
evaporated, and due to their protective coating, they can withstand
extreme environmental conditions (Pennak 1989; Eriksen and Belk 1999).
For example, they can survive subjection to physical extremes, such as
near-boiling temperatures, months of freezing (Carlisle 1968), fire
(Wells et al. 1997), or near-vacuum conditions for 10 years without
damage to the embryo (Clegg 1967). These adaptations allow fairy shrimp
cysts to survive extreme environmental fluctuations, and hatch only
when conditions are favorable, after remaining dormant for as much as
decades, possibly centuries (Belk 1998). In one closely related fairy
shrimp, Streptocephalus sealii, cysts were brought to hatch after 25
years of storage in the lab (Belk 1998). Further, because the wall of
the cyst can even resist damage by stomach enzymes (Horne 1966), the
cyst can pass through the digestive tract of animals without harm, thus
allowing for one possible mechanism of cyst dispersal. There are
several mechanisms for cyst dispersal, and thus fairy shrimp dispersal,
to other habitats. Historically, large-scale flooding from heavy winter
and spring rains has been a primary dispersal mechanism, but other
major mechanisms include dispersal by migratory birds (i.e., wading
birds, shorebirds, waterfowl), ungulates (i.e., cattle, buffalo, deer),
and possibly amphibians (i.e., salamanders, frogs) and humans (Eriksen
and Belk 1999). These animals either carry cyst-containing mud on their
bodies incidentally from pool to pool, or the cysts are ingested and
are passed through the gut at another location.
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Wind, although less probable, may also be a dispersal agent (Eriksen
and Belk 1999).
Although cysts can remain dormant within the pool for decades, they
can also hatch about a week after a rain-fill, due to their advanced
stage of embryonic development (Pennak 1989; Hathaway and Simovich
1996). However, when a dry vernal pool is once again inundated with
water, only a fraction of the dormant cysts in the pool will hatch.
Simovich and Hathaway (1997) found that when Riverside fairy shrimp
cysts were hydrated once, only 0.18 percent hatched, and after three
successive hydration periods, the cumulative total increased to only
2.8 percent. This is among the lowest hatching rates, or prolonged
diapause, yet recorded among fairy shrimp species (Simovich and
Hathaway 1997). They suggested that the prolonged diapause of so many
cysts was an adaptation to the variable nature of local rainfall
patterns, as pools at times fill only partially and dry quickly--before
the fairy shrimp are able to reach maturity and reproduce. Thus, in
such an environment with unpredictable filling events, it benefits the
individual to have offspring in prolonged diapause, such that not all
hatch after just one hydration (Simovich and Hathaway 1997). In San
Diego County, only approximately 28 percent of all filling events
recorded over 13 years lasted at least a 17-day period, the minimum
length of time needed by the San Diego fairy shrimp to develop to first
reproduction (and insufficient time for the Riverside fairy shrimp);
this period corresponded to the 28-percent hatching rate for their
cysts found in the lab (Philippi 2001). This strategy of prolonged
diapause is possibly a risk-spreading (``bet-hedging'') adaptation to
the unpredictability of their environment (Simovich and Hathaway 1997;
Philippi 2001).
In addition to their low hatching percentage, the cysts of the
Riverside fairy shrimp also take longer to hatch after inundation,
relative to other species (Hathaway and Simovich 1996). The time from
hydration to the hatching of Riverside fairy shrimp cysts took between
12 to 25 days in the lab at varying temperatures, with the most rapid
hatching occurring when temperatures were fluctuating at 41-59 degrees
Fahrenheit ((F) 5-15 degrees Celsius (C)). San Diego fairy shrimp, in
comparison, can hatch after only 3 days (Hathaway and Simovich 1996).
The greatest number of Riverside fairy shrimp cysts hatching in the
lab, however, was achieved at 50 degrees F (10 degrees C) (Hathaway and
Simovich 1996). Their development or maturation rate is also slow, and
individuals are relatively long-lived (Hathaway and Simovich 1996), as
is typical of obligate deep pool species. The developmental time to
maturity for the Riverside fairy shrimp was found to be 7-8 weeks, far
longer than to the 7-10 day period of the San Diego fairy shrimp.
It is not surprising, therefore, that the Riverside fairy shrimp
also lives much longer (2.5 to over 4 months) than the San Diego fairy
shrimp (4-6 weeks) (Hathaway and Simovich 1996). Thus, the minimum
period of inundation, or pool duration, that the Riverside fairy shrimp
need in order to hatch and reach maturity is 9 to 10 weeks (Gonzalez et
al. 1996; Hathaway and Simovich 1996). Thus, the association of the
Riverside fairy shrimp with large, deep vernal pools that pond
continuously for many months may perhaps be explained by its long
period of maturity and longevity (cf. Helm 1998). Because of their slow
hatch and growth, the Riverside fairy shrimp occur therefore much later
in the season than other fairy shrimp species (cf. Hathaway and
Simovich 1996).
The vernal pools that Riverside fairy shrimp are found in typically
have water with a relatively neutral pH (approximately 7), low to
moderate salinity, and low to moderate levels of total dissolved solids
(Gonzalez et al. 1996; Eriksen and Belk 1999). One laboratory study
conducted on the tolerance of Riverside fairy shrimp to variations in
water chemistry found that they tolerate an 8-hour exposure to pH
levels ranging from 8 to 10.5, with little effect (Gonzalez et al.
1996). Generally, in vernal pools where Riverside fairy shrimp occur,
the external ion concentrations (Na+) averaged 0.73 mmol/l\3\ (Gonzalez
et al. 1996). Although the species was also able to maintain its
internal levels of salt concentration fairly constantly over a wide
range of external concentrations (0.5-60 mmol/l\3\), it was sensitive
to the extremes, with 100-percent mortality occurring at 100 mmol/l\3\
(Gonzalez et al. 1996). Levels of alkalinity in the vernal pool are
affected by the surrounding soil type and hydrological regime of the
immediate adjacent upland watershed; in four vernal pools, alkalinity
averaged 41 mg/l\3\ (Gonzalez et al. 1996). In the laboratory,
Riverside fairy shrimp were found to tolerate a wide range of
alkalinities (0-600 mg/l\3\), but none could survive levels above 800
mg/l\3\ (Gonzalez et al. 1996). Importantly, studies show that the
Riverside fairy shrimp is sensitive to water temperature; with their
hatching occurring a longer time after inundation (25 days) and fewer
hatching (1-3 percent) at steady higher temperature of 77 degrees F (25
degrees C), than at cooler temperatures (i.e., 7 days hatching time at
59-77 degrees F (15-25 degrees C); over 10 percent hatching at 50
degrees F (10 degrees C) (Gonzalez et al. 1996).
The upslope areas surrounding vernal pools are critical to the
functioning of the vernal pool and thus to the survival of the
Riverside fairy shrimp. The surrounding upslope areas provide the
vernal pool with the appropriate annual and season temporality and
volume of hydrological flow. With that flow follows the necessary
nutrients, salts and minerals from the soil and bedrock that all
influence the pool's water volume, the duration of ponding, and the
complete chemistry, mineral and nutrient contents of the water itself.
Therefore, Riverside fairy shrimp, together with its cohabitating
vernal pool flora and fauna, is as dependent upon the upland areas for
survival and reproduction as it is upon the pool it occupies.
Urban and water development, flood control, and highway and utility
projects, as well as conversion of wild lands to agricultural use, have
eliminated or degraded vernal pools and/or their watersheds in southern
California (Jones and Stokes Associates 1987). Changes in hydrologic
patterns, certain military activities, unauthorized fills, overgrazing,
and off-road vehicle use also may imperil this aquatic habitat and the
Riverside fairy shrimp. The flora and fauna in vernal pools or swales
can change if the hydrologic regime is altered (Bauder 1986).
Anthropogenic (human-origin) activities that reduce the extent of the
watershed or that alter runoff patterns (i.e., amounts and seasonal
distribution of water) may eliminate the Riverside fairy shrimp, reduce
population sizes or reproductive success, or shift the location of
sites inhabited by this species. The introduction of non-native plant
species, competition with invading species, trash dumping, fire, and
fire suppression activities were some of the reasons for listing the
Riverside fairy shrimp as endangered on August 3, 1993 (58 FR 41384).
Because of these threats, we anticipate that intensive long-term
monitoring and management will be needed to conserve this species.
Historically, vernal pool soils covered approximately 500 km\2\ (200
mi\2\ of San Diego County (Bauder and McMillan 1998). The greatest
recent losses of vernal pool habitat in San Diego County have occurred
in Mira Mesa, Rancho Pe[ntilde]asquitos, and Kearny Mesa, which
together account for 73 percent of all the pools destroyed in the
region during the
[[Page 19158]]
7-year period between 1979 and 1986 (Keeler-Wolf et al. 1995). Other
substantial losses have occurred in the Otay Mesa area, where over 40
percent of the vernal pools were destroyed between 1979 and 1990.
Similar to San Diego County, vernal pool habitat was once extensive on
the coastal plain of Los Angeles and Orange counties. Unfortunately,
there has been a near-total loss of vernal pool habitat in these areas
(Ferren and Pritchett 1988; Keeler-Wolf et al. 1995; Mattoni and
Longcore 1997; Service 1998). Significant losses of vernal pools
supporting this species have also occurred in Riverside County.
Adequately quantifying occurrence and distribution of the Riverside
fairy shrimp can be difficult due to a number of factors. Firstly,
Riverside fairy shrimp are restricted to a narrow geographic region, to
certain pool types, and also temporally, as they emerge later in the
season than other fairy shrimp species (Hathaway and Simovich 1996).
Thus, surveys conducted to also encounter earlier-occurring species may
actually miss the Riverside fairy shrimp as they may still be so small
(in the juvenile stage) that they pass through the mesh of the
collecting nets (Eriksen and Belk 1999). Secondly, surveys may also
miss collecting adults simply due to their low hatching percent (as few
as 0.18 percent; Simovich and Hathaway 1997), which may result in
either a very low population level, or to none being detected in a
particular year, when viable cysts are actually present. Further, only
males can be identified to the species level with certainty (Eriksen
and Belk 1999), and cysts can only be identified to the genus level. To
add to the difficulty, vernal pools are generally too small to appear
on topographic maps (Holland 1976), not all vernal pools fill each
year, or fill long enough for hatching (i.e., discovery) of the
Riverside fairy shrimp. Some estimates for San Diego County show that
over a period of 13 years, only about 28 percent of the pool-filling
events lasted 17 days or longer (Philippi 2001).
For a more detailed discussion about the Riverside fairy shrimp's
physical description, ecology, range, status and distribution, and a
discussion of factors affecting this species, please refer to the
following documents from the Federal Register: The final rule listing
the species as threatened (58 FR 41384), published on August 3, 1993,
the previous final rule to designate critical habitat (66 FR 29384),
published on May 30, 2001, and our latest proposed rule to designate
critical habitat (69 FR 23024), published on April 27, 2004.
Previous Federal Actions
For more information on previous Federal actions concerning the
Riverside fairy shrimp, please refer to the proposed rule to designate
critical habitat for the Riverside fairy shrimp (69 FR 23024) and the
notice of availability for the draft economic analysis (DEA) and
reopening of the public comment period for the proposed designation of
critical habitat for the Riverside fairy shrimp published in the
Federal Register (October 19, 2004, 69 FR 61461).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Riverside fairy shrimp in the
proposed rule (69 FR 23024). We also contacted and invited the
appropriate Federal, State, and local agencies, as well as scientific
organizations and other interested parties to comment on the proposed
rule. In the notice of availability of the draft economic analysis for
the proposed designation of critical habitat (69 FR 61461), we again
solicited comments from the public on both the draft economic analysis
and the proposed rule. All comments and new information received during
the two comment periods were incorporated into the final rule as
appropriate.
During the first comment period, open from April 27, 2004, to May
27, 2004, we received 21 letters containing 143 comments directly
addressing the proposed critical habitat designation from 6 peer
reviewers, 5 Federal agencies, 2 county and local agencies, 1 group, 4
businesses, 1 city, 1 water district, 1 individual, and 1 law firm
writing on behalf of 2 groups and 2 transportation agencies.
During the second comment period, open from October 19, 2004, to
November 18, 2004, we received 11 letters containing 148 comments
directly addressing the proposed critical habitat designation and the
draft economic analysis. The letters came from 4 Federal agencies, 3
groups, 2 businesses, 1 law firm on behalf of 2 businesses, and 1 law
firm on behalf of 2 groups and 2 transportation agencies.
Of a total 32 letters received, 4 supported the designation of
critical habitat for the Riverside fairy shrimp, 2 opposed the
designation, 18 letters suggested reducing the area of designation, and
4 letters suggested expanding the area. Two letters were requests for
an extension of the comment submission period, but did not express
support or opposition to the proposed critical habitat designation.
Comments received were grouped into six general issues specifically
relating to the proposed critical habitat designation for the Riverside
fairy shrimp, and are addressed in the following summary and
incorporated into the final rule as appropriate. We did not receive any
requests for a public hearing. We have reviewed all comments received
from the peer reviewers and the public for substantive issues and new
information regarding critical habitat for the Riverside fairy shrimp,
and have incorporated them into the final rule as appropriate. These
are addressed below in the following summary.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), to solicit opinions from at least three experts, we solicited
the expert opinions of 7 knowledgeable individuals with significant
scientific expertise that included familiarity with the Riverside fairy
shrimp, the geographic region in which the species occurs, and
conservation biology principles. We received responses from six of the
peer reviewers. The peer reviewers were generally supportive of the
designation of critical habitat, but strongly endorsed the approach
that the appropriate management unit was the vernal pool complex (not
single pools) together with their immediately surrounding upland
watershed. They emphasized the importance of providing conservation
protection of pool complexes to ensure the survival of the Riverside
fairy shrimp in perpetuity, and of identifying and preserving all
remaining populations of Riverside fairy shrimp, including those within
conservation-managed areas. Three peer reviewers also gave specific
comments on our decision to exclude certain lands from critical habitat
based on Habitat Conservation Plans (HCPs) and Integrated Natural
Resources Management Plans (INRMPs).
Comments From Peer Reviewers
1. Peer Reviewer Comment: Most of the reviewers stressed the
importance of providing or increasing Federal protection to the
Riverside fairy shrimp and their vernal pool habitat, since
conservation measures are needed to protect them. Over 95 percent of
vernal pools in Southern California have been extirpated (destroyed),
and the remaining vernal pools and the species that inhabit them are
currently under threat of elimination from both private and public
organizations. Additionally, vernal pools are valuable in that they are
ecologically unique, while also
[[Page 19159]]
providing valuable ecosystem functions. Vernal pool complexes act as
hydrologic ``sponges,'' buffering against drought and flooding. Large-
scale alterations or developments within the local watershed of vernal
pool complexes would affect the local hydrology dramatically and, from
an engineering and public works perspective, can lead to increases in
the need for management of unnaturally large amounts of runoff
following a rainstorm. Thus, vernal pools have not received adequate
recognition in the rule for the benefits (ecological services) they
provide. For their long-term survival, vernal pools must be adequately
protected; the designation of critical habitat does not seem to provide
adequate conservation measures to serve this purpose.
Our Response: Section 4 of the Act requires us to designate
critical habitat to the maximum extent prudent and determinable, which
we have done, based upon the best data available to us at this time. We
concur that additional, long-term conservation measures are needed to
protect the Riverside fairy shrimp and its habitat, and additional data
is needed on locations of their occurrence.
In developing our final designation of critical habitat for the
Riverside fairy shrimp, we used the best scientific and commercial data
available to identify those areas that contain essential occurrences of
Riverside fairy shrimp and/or are defined by the physical and
biological features essential to their conservation. We used a number
of criteria in defining critical habitat, including but not limited to
the known species occurrence (known at the time of listing, as well as
discovered subsequently) and distribution data, habitat types, presence
of PCE's, degree of habitat fragmentation, soil and landform
relationships, connectivity and dispersal factors, and conservation
biology principles. We did not include all vernal pool landscapes
within the Riverside fairy shrimp's range although surveys in these
areas may result in the detection of other occurrences in the future.
If significant information becomes available indicating that areas
outside of our designation are essential to the conservation of the
Riverside fairy shrimp, we can, under the Act, revise critical habitat
in the future.
2. Peer Reviewer Comment: While the Service's proposed designation
of critical habitat for the Riverside fairy shrimp in southern
California was supported, reviewers stated it is questionable whether
5,795 acres in the proposed rule is ``enough'' critical habitat for the
conservation of the remaining Riverside fairy shrimp populations.
Firstly, reviewers strongly emphasized the importance of considering
the vernal pool complex and the surrounding watershed as the management
unit for this species. The unique physiochemical requirements of the
Riverside fairy shrimp make it particularly vulnerable to changes in
hydrology. Further, other vernal pool species have their own unique
ecological requirements in terms of soil, hydrology, etc. Protecting
and maintaining entire vernal pool complexes and their surrounding
watershed as a functioning unit will benefit the Riverside fairy shrimp
and the other endangered species that live in these habitats. If the
landscape at a site is changed sufficiently to alter the hydrology of
individual vernal pools, then the species in them will eventually go
extinct, regardless of whether the pools are disturbed or not.
Secondly, some vernal pools excluded from the designation, but set
aside for conservation or mitigation, do not have sufficient protection
in the surrounding watershed, and thus become ecologically useless. The
exclusion of military lands from the final designation is particularly
troubling in this regard, because there are no guarantees that the
watershed, let alone pools with Riverside fairy shrimp in them, will be
adequately protected.
Our Response: Firstly, we note the support of our critical habitat
designation, and concur with the reviewers on the importance of
considering the vernal pool complexes together with their immediately
surrounding upslope areas as the management unit (see Background and
Primary Constituent Elements sections below). We have used this
approach in our analyses when finalizing our critical habitat
designation for the Riverside fairy shrimp, and have, wherever
possible, included the upslope areas surrounding the pools. Secondly,
for approved, legally operative HCPs that include areas eligible for
designation as critical habitat and that specifically address the
Riverside fairy shrimp and provide for its long-term conservation, we
believe that the benefits of excluding those HCPs will outweigh the
benefits of including them. Thirdly, we received requests from three
military bases to exclude lands owned or managed by the Department of
Defense for military purposes because the designation would increase
the costs and regulatory requirements, hamper the military's ability to
carry out their national security objectives, or because there is an
INRMP in place that provides a benefit to the Riverside fairy shrimp.
These installations have either been excluded from final designated
critical habitat pursuant to section 4(b)(2) of the Act, or exempted
according to section 4(a)(3) of the Act. Please refer to the sections
Relationship of Critical Habitat to Approved Habitat Conservation Plans
and Relationship of Critical Habitat to Department of Defense Lands
below in this final rule for detailed discussions of our rationale for
exclusions and exemptions.
3. Peer Reviewer Comment: Any consideration of whether the
Riverside fairy shrimp will persist indefinitely (i.e., avoid
extinction due to anthropogenic causes) would require a quantification
of the Riverside fairy shrimp's (a) dispersal biology, (b) adaptation
to local physiochemical conditions, and (c) adaptation to hydrologic
uncertainties (via reliance on an egg bank). In terms of the hydrology
of the vernal pool habitat, quantifiable data is needed on (d) the
historic environmental variation and (e) the predicted future
environmental variation. However, only rudimentary data are available
on any of these topics, with the possible exception of (d). Therefore,
it would be wise to err on the side of caution and offer maximal
protection to all remaining populations of this species.
Our Response: We concur that more detailed studies are needed on
most aspects of the Riverside fairy shrimp's biology. In this rule, we
address the issue of designating critical habitat areas, areas
containing the necessary primary constituent elements (PCEs) that are
essential to the conservation of the Riverside fairy shrimp. For this
purpose, we used the best scientific and commercial information that
were available to us and based our analyses upon areas either
containing with existing populations of Riverside fairy shrimp or
containing features essential for the conservation of the species using
the vernal pool complex together with the immediately surrounding
upslope areas as our management unit. To assist us in developing this
final rule, we also opened two comment periods to obtain as much
additional, currently available information as possible.
4. Peer Reviewer Comment: One reviewer suggested that the
designation of critical habitat is no longer effective as a means to
protect the species and its habitat, as funds that are needed to
achieve that goal are spent instead on litigation. Rather, a new method
is needed to accomplish this goal, such that the Riverside fairy shrimp
and its habitat are actually preserved (rather than designated, then
litigated).
[[Page 19160]]
Our Response: We concur that the Service's present system for
designating critical habitat has evolved into a process that is often
driven by litigation and the courts, and thus consumes enormous agency
resources. 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. Pursuant to section
4 of the Act, however, the Secretary shall, to the maximum extent
prudent and determinable, designate any habitat which is then
considered to be critical habitat for listed endangered or threatened
species. Alternative or additional methods for accomplishing more
effective conservation of the Riverside fairy shrimp are discussed in
the Recovery Plan, Multiple Species Habitat Conservation Plans
(MSHCPs), Natural Community Conservation Programs (NCCPs), and other
conservation plans. These plans address the survival and recovery of
this species, and we expect they will be in a continual process of
improvement and increased efficiency with time.
5. Peer Reviewer Comment: Several reviewers disagreed with the
Service's statement in the rule (see SUPPLEMENTARY INFORMATION above)
that designation of critical habitat provides little additional
protection to species, and believed this should be amended or omitted
from the rule, as it is self-contradictory. Although designating
critical habitat does not in itself protect any habitat, the biggest
advantage of critical habitat designation is the ability to address the
``cumulative effects'' of many small impacts to the habitat. Impacts to
a single location are not likely to drive the species to extinction,
but the effects of impacts at many individual locations may, in total,
create a substantial risk for species extinction. Designating critical
habitat establishes a core, reducing the potential for individual small
impacts to be allowed to drive the species to extinction.
Our Response: While we concur that critical habitat designation can
provide some level of species protection by addressing cumulative
effects of numerous impacts to the habitat in certain circumstances,
this can only be provided if there is Federal nexus for those agencies
planning actions that may impact the designated habitat.
6. Peer Reviewer Comment: The Service's statement in the rule, that
the exclusion of HCPs offers ``unhindered, continued ability to seek
new partnerships with future HCP participants'' (see Relationship of
Critical Habitat to Approved Habitat Conservation Plans) should be
amended in the rule as it is illogical and self-contradictory. Not
designating critical habitat within HCPs in order to allow seeking new
partnerships implies that the new partnerships would be compromised if
they were actually forced to protect Riverside fairy shrimp habitat,
which should be one goal of any ``partnership.''
Our Response: Both HCPs and critical habitat designations are
designed to provide conservation measures to protect the Riverside
fairy shrimp. The advantage of seeking new conservation partnerships,
through HCPs or other means, is that they can offer active management
and other conservation measures for the habitat on a full-time and
predictable basis, while a critical habitat designation only prevents
adverse modification of the habitat where there is a Federal nexus to
the modifying activity, a far lesser level of protection. It is our
experience that landowners generally react very negatively to having
their property designated as critical habitat, and that this is then a
strong disincentive for them to cooperate in conservation of the
species in question. HCPs offer conservation of covered species whether
or not the area is designated as critical habitat (for details see the
section Relationship of Critical Habitat to Approved Habitat
Conservation Plans).
7. Peer Reviewer Comment: The proposed rule appears to find ways to
exclude most of the ``potential'' critical habitat in Riverside and San
Diego counties. Except for areas on March Air Reserve Base, the
proposed Map Unit 3 for Riverside County excludes all critical habitat,
and specifically that on the Santa Rosa Plateau, based on the
speculative assertion that the proposed Western Riverside County
Multiple Species Habitat Conservation Plan (MSHCP) will adequately
protect the Riverside fairy shrimp. What is the benefit of excluding
critical habitat for the Riverside fairy shrimp on the Santa Rosa
Plateau? Any scientifically defensible HCP must protect nearly all of
the Santa Rosa Plateau.
Our Response: HCPs and their Implementing Agreements include
management measures and protections designed to protect, restore,
monitor, manage, and enhance the habitat to benefit the conservation of
the species covered in the plans. The Western Riverside County MSHCP,
which has now been finalized, seeks to accomplish these goals for the
Riverside fairy shrimp through the implementation of species-specific
conservation objectives.
In our analyses, the benefits of excluding critical habitat areas
covered by the Western Riverside County MSHCP outweigh the benefits of
inclusion. Of the conservation measures this plan identifies for the
Riverside fairy shrimp, the first objective is to include within its
Conservation Area at least five Core Areas of vernal pools (or vernal
pool complexes) and their watersheds; these areas contain five known
key Riverside fairy shrimp populations. Core Areas include the Santa
Rosa Plateau Ecological Reserve (17,188 acres), Skunk Hollow (156
acres), Murrieta (1,292 acres) and Lake Elsinore back basin (3,180
acres). Within the key population areas, approximately 5,868 acres (33
percent) of potential vernal pool and playa habitat and suitable soils
habitat land coverages would be located outside the MSHCP Conservation
Area. Any Riverside fairy shrimp present within this area would be
subject to incidental take under the guidelines implemented as part of
this Plan. Each Reserve Manager responsible for a Core Area containing
soils identified as supporting the Riverside fairy shrimp (e.g., the
Santa Rosa Plateau Ecological Reserve) shall evaluate their Core Area
for the presence of historic or vestigial vernal pools. A program to
enhance these areas will be undertaken. Within the MSHCP Conservation
Area, that pond water seasonally will be identified and monitored for
the presence of fairy shrimp. Reserve managers will ensure habitat
support functions within the MSHCP Conservation Area by maintaining
and/or preserving watersheds of conserved known or future vernal pools
or depressions. Particular management emphasis will be given to
disking, illegal dumping and maintaining hydrology (MSHCP Final
Documents, Vol. 1--The Plan, June 17, 2003). See Western Riverside
County Multiple Species Habitat Conservation Plan in the section
Relationship of Critical Habitat to Approved Habitat Conservation Plans
below for more details.
8. Peer Reviewer Comment: The Service's assumption that the
existence of an HCP automatically affords protection to the Riverside
fairy shrimp within the covered area is questionable. In the
development of the San Diego Multiple Species Conservation Plan (MSCP)/
HCP, vernal pools were explicitly excluded from its intended coverage,
because at the time, those areas covered by the conservation plans were
regulated as wetlands by the Environmental Protection Agency. As San
Diego County does not have a good record of enduring protection of
vernal pools, it is important, from a scientific and land-management
perspective, to
[[Page 19161]]
have an explicit analysis of what (if any) Riverside fairy shrimp
populations and their habitats are actually covered in the designated
protected areas of the HCP, before exclusion of any areas are made.
Our Response: Vernal pool habitats that support the Riverside fairy
shrimp that were considered essential but excluded from critical
habitat were included on our website for public review and comment. Of
the 1,183 ac (479 ha) of mapped vernal pool habitat within the MSCP
planning area, over 847 ac (343 ha) occur within the planning area. The
Service has completed a Biological Opinion (June 1997) on the San Diego
MSCP, and found that the Plan meets the standards set forth in 50 CFR
17.32(b)(2), and has issued an incidental take permit to the City of
San Diego for the 85 species covered in the plan, including the
Riverside fairy shrimp. The permit action does not, however, authorize
impacts to wetlands or wetland communities; the MSCP assumes a policy
of ``no net loss'' of vernal pools. The permit requires that impacts to
vernal pools be avoided; unavoidable impacts will be minimized to the
maximum extent practicable and mitigated at a 2:1 or 4:1 ratio to
prevent any net loss of vernal pool function and value. In addition to
conserving existing vernal pool habitat, the Multiple Habitat Planning
Area is expected to conserve 7,745 ac (3,134 ha) of undeveloped areas
with clay soils and clay hardpan, and implement management and
monitoring measures for vernal pools within the area. In the Biological
Opinion issues, the Service has specifically addressed the Riverside
fairy shrimp, and emphasized the conservation of the hydrological
processes needed for vernal pool functioning. Pursuant to section
4(b)(2), we have excluded lands within legally operative HCPs,
including the San Diego MSCP, that address the conservation needs of
the Riverside fairy shrimp, if the plans provide assurances that the
conservation measures outlined will be implemented and effective.
Please see Relationship of Critical Habitat to Approved Habitat
Conservation Plans section of the rule below.
9. Peer Reviewer Comment: Several reviewers stated that the
proposed critical habitat designation does not go far enough to provide
for the protection of the Riverside fairy shrimp, because significant
portions of the species' range were excluded from critical habitat
protection. These areas include Department of Defense lands and MSCP/
HCP lands. The Riverside fairy shrimp populations in these areas,
particularly those on Department of Defense land, are not protected and
are either being lost at present, or vulnerable to loss due to a number
of sources and activities, including military maneuvers, crushing by
vehicles and toxic poisoning from vehicles or ordnances. In fact, lands
under the jurisdiction of HCPs, MSCPs, and the Department of Defense
have continued to lose populations of San Diego fairy shrimp (e.g.,
Cousin's pool, Marine Corps Air Station Miramar) and restoration/
creation efforts have thus far not succeeded, and this will likely
happen with the Riverside fairy shrimp unless adequate protection is
provided for the existing populations. For example, in San Diego
County, 66 of 67 vernal pools occupied by the federally endangered San
Diego fairy shrimp (Branchinecta sandiegonensis) have been recently
lost in Mira Mesa, an area covered by the San Diego County MSCP. Thus,
the benefits of exclusion do not outweigh the benefits of inclusion due
to the significantly increased threat to the species survival that
exclusion of critical habitat poses to the species.
Our Response: We do not agree with the peer reviewer that excluding
critical habitat on lands covered by an HCP or INRMP poses a
``significantly increased threat to the species survival.'' Please
refer to the responses to Peer Reviewer Comments 7 and 8 above, and the
sections Relationship of Critical Habitat to Department of Defense
Lands and Relationship of Critical Habitat to Approved Habitat
Conservation Plans below.
10. Peer Reviewer Comment: The small amounts of habitat designated
as critical habitat may be questionable. The strip along the
international border in the proposed rule (Map Sub-unit 5B,
southwestern Otay Mesa) appears to be mitigation or restoration from
the Border Infrastructure System. It is not clear that the current
hydroperiods are comparable to the pre-impact hydroperiods. Further, it
appears that the Department of Homeland Defense drives vehicles through
the pools with impunity, without the need for permitted take from the
Service. Habitat of such dubious condition is not a suitable substitute
for the excluded (but intact) habitat surrounding the proposed areas on
western Otay Mesa (critical habitat Map Sub-units 5A, 5B).
Our Response: Please refer to the response to Comment 4-1 below.
11. Peer Reviewer Comment: Areas of critical habitat that have been
excluded in the proposed rule are under a high level of threat, and
local populations of Riverside fairy shrimp in those areas thus face
considerable risk of being extirpated, as has happened with populations
of the San Diego fairy shrimp. Currently, there is not enough
scientific information on the population genetic structure or life
history of the Riverside fairy shrimp to be able to predict the
consequences of population losses. Without such data, it is not
possible to identify the areas of highest genetic variability,
population sources and sinks, levels of gene flow, gene flow distances,
evolutionarily significant units or population viability requirements.
Loss of critical populations or connections between populations could
increase the probability of extinction and put the species as a whole
in jeopardy. Thus, it is important that all populations of the
Riverside fairy shrimp be included in the critical habitat designation
to provide adequate protection of the species as required by the Act.
Our Response: We recognize the current threats facing the Riverside
fairy shrimp, the need to minimize fragmentation effects, and to
provide adequate conservation protection. However, we did not designate
critical habitat for all populations of the Riverside fairy shrimp.
Some areas in our proposed designation were not designated as critical
habitat for the following reasons: (1) The area did not meet the
definition of critical habitat under section 3(5)(A) of the Act, (2)
the area is now included within legally operative HCPs, (3) the area
was necessary for national security measures, or (4) economic impact
costs. However, for some areas which were excluded from critical
habitat under section 4(b)(2) of the Act, or exempted under section
4(a)(3) of the Act, the Riverside fairy shrimp still receives
protection under conservation plans such as HCPs or INRMPs.
12. Peer Reviewer Comment: According to the proposed rule, critical
habitat is identified for the Riverside fairy shrimp in six separate
units, each of which correspond to the larger Management Areas that
support Riverside fairy shrimp occurrences as outlined in the Recovery
Plan (Service 1998; 2004). However, the management areas specified in
the Recovery Plan for Vernal Pools of Southern California are based on
simple geographical locations, not the biology of the species
considered, and the Recovery Plan does not include a population
viability analysis. Genetic information on the San Diego fairy shrimp
has shown that these management areas do not coincide with the species'
evolutionarily significant units based on the population genetic
structure of the species. The identification of populations essential
to the species requires genetic analysis and
[[Page 19162]]
life history analysis to determine ``source/sink'' status and to
evaluation the viability of the population and probability of
persistence. Simple geographic location is not sufficient, especially
considering the amount of loss of intervening habitat. The management
areas are therefore not relevant to the species' conservation, a fact
which likely also applies for the Riverside fairy shrimp (Bohonak et
al. 2003).
Our Response: We agree that no scientific information is available
on the genetic diversity of the Riverside fairy shrimp, as is the case
for the San Diego fairy shrimp. Thus, we used geographical descriptions
to identify critical habitat units. These geographical descriptions are
not meant to suggest any evolutionary divergence or population genetic
structure. At the same time, we also based our analyses on what areas
constituted critical habitat upon the best available scientific and
commercial data available to us at the time, and made available public
comment periods to allow for submission of any new information.
13. Peer Reviewer Comment: The proposed rule stated that an
artificial vernal pool complex had been created to offset the impacts
to a population of Riverside fairy shrimp by the Redhawk Development,
and that another artificial vernal pool creation was planned in order
to offset the taking of Riverside fairy shrimp at the Clayton Ranch
Pool. Two reviewers questioned whether these artificial pools have
produced viable, reproducing populations with positive rates of
increase, rather than simply hatching shrimp from the transplanted
cysts. To the reviewers' knowledge, no such successes have been
recorded in the primary literature; i.e., see Ripley et al. (2004).
Furthermore, the proposed rule stated that on Otay Mesa in San Diego
County, significant work had been done to restore and enhance vernal
pools for listed species, including the Riverside fairy shrimp.
However, the reviewers noted that due to failure to check the
transplanted cysts, the Otay pools have become ``infected'' with a
``weedy'' species, the winter fairy shrimp (Branchinecta lindahli),
which can hybridize with the San Diego fairy shrimp (Fugate 1998); its
effect on the Riverside fairy shrimp is yet unknown. Thus, the
restoration or creation efforts have not been verified as successful
(producing viable populations and a growing cyst bank) for either San
Diego fairy shrimp or Riverside fairy shrimp, and have in fact,
introduced new potential threats.
Our Response: We did not designate any artificial vernal pools as
critical habitat for the Riverside fairy shrimp.
Public Comments
Issue 1: Policy and Regulations
1-1. Comment: It was suggested that all essential Riverside fairy
shrimp habitat areas within the boundaries covered by the Western
Riverside County Habitat Conservation Plan (HCP), Central/Coastal
Orange County Natural Community Conservation Program (NCCP), and San
Diego Multiple Species Conservation Plan (MSCP) should be included in
the final critical habitat designation because (a) areas within those
plans meet the definition of critical habitat; the Service has
identified those areas as essential to the conservation of the species,
and the plans provide special management for the species, (b) the
benefits of inclusion far outweigh the harm wrongly perceived by
others, (c) the critical habitat designation provides greater
conservation benefits than those contained in the plans, which are
inadequate to conserve the Riverside fairy shrimp, (d) because the
educational benefits of HCPs are much less than those provided by
critical habitat designation, and (e) the critical habitat designation
has greater specificity, addressing the needs of specific species, than
HCPs. Another commenter suggested that the critical habitat designation
should be expanded to include all Riverside fairy shrimp populations,
including those in excluded Department of Defense lands or HCP areas.
In contrast, one commenter suggested that lands within the Western
Riverside County MSHCP do not require additional special management
considerations or protection, and thus do not meet definition of
``critical habitat.''
Our Response: Although the habitat within the boundaries of these
conservation plans contains one or more of the physical and biological
characteristics essential to the conservation of the Riverside fairy
shrimp, we have determined that these conservation plans provide
special management and/or protection for the Riverside fairy shrimp,
and we have concluded that the benefits of excluding the lands covered
by these plans from the final critical habitat designation outweigh the
benefits of including these areas. Thus, we have excluded these areas
from critical habitat designation under 4(b)(2) of the Act.
We recognize that critical habitat is only one of many conservation
tools for federally listed species. HCPs are one of the most important
tools for reconciling land use with the conservation of listed species
on non-Federal lands. Section 4(b)(2) of the Act allows us to exclude
from critical habitat designation areas where the benefits of exclusion
outweigh the benefits of designation, provided the exclusion will not
result in the extinction of the species. We believe that in most
instances, the benefits of excluding HCPs from critical habitat
designations will outweigh the benefits of including them. For this
designation, we find that the benefits of exclusion outweigh the
benefits of designation for all approved and legally operative HCPs
which address the Riverside fairy shrimp and provide for its long-term
conservation. These include the San Diego MSCP in San Diego County, the
Western Riverside County MSHCP and the Rancho Bella Vista HCP and
Assessment District 161 Sub-regional HCP in Riverside County.
HCPs must meet issuance criteria, according to section 10(a)(1)(B)
of the Act, including minimizing and mitigating any take of the listed
species covered by the permit to the maximum extent practicable, and
that the taking must not appreciably reduce the likelihood of the
survival and recovery of the species in the wild. The take minimization
and mitigation measures provided under the above-mentioned HCPs are
expected to adequately protect the essential habitat lands designated
as critical habitat in this rule, such that the value of these lands
for the survival and recovery of the Riverside fairy shrimp is not
appreciably diminished through direct or indirect alterations. We
expect that HCPs undertaken by local jurisdictions (e.g., counties and
cities) and other parties will identify, protect, and provide
appropriate management for those specific lands within the boundaries
of the plans that are essential for the long-term conservation of the
species. We discuss these standards in detail in the section 7
Consultation and Relationship of Critical Habitat to Approved Habitat
Conservation Plans portions of this document below).
1-2. Comment: It was suggested that the essential Riverside fairy
shrimp habitat areas within the boundaries covered by the Western
Riverside County HCP should not be excluded as critical habitat because
the plan was only recently approved and the protection benefits the
plan provided to the species were thus unproven and speculative.
According to the Act, the Service cannot base its decisions to exclude
areas from its critical habitat designation on unproven conservation
activities.
[[Page 19163]]
Our Response: Under section 4(b)(2), we may exclude any area from
critical habitat if we determine that the benefits of such an exclusion
outweigh the benefits of including the area in the critical habitat
designation, unless, based on the best scientific and commercial data
available, we determine that failure to designate the area as critical
habitat will result in the extinction of the species. We have excluded
the areas within the Western Riverside County MSHCP from the final
critical habitat designation under section 4(b)(2) of the Act because
the benefits of exclusion outweigh the benefits of inclusion. (For a
detailed discussion please see the section Relationship of Critical
Habitat to Approved Habitat Conservation Plans below).
1-3. Comment: Several comments were made that the Service
inaccurately overstates the benefits of conservation plans while
overemphasizing possible harm of critical habitat designation within
plans' boundaries, that the Service cannot rest any claim of harm on
mere perceptions; possible complaints by plan participants would
suggest intention of significantly reduced conservation compared to
those in a designated critical habitat. Critical habitat designation of
an area after the approval of an HCP there will not serve as
disincentive, but actually encourage HCP preparation.
In an opposing view, one commenter supported the exclusion of
critical habitat within the Western Riverside County MSHCP, asserting
that if it were included, it would undermine cooperative conservation
partnerships. Two commenters stated, in general, that all lands covered
by an HCP (e.g., NCCPs/ special area management plans) should be
automatically excluded from critical habitat designation upon approval
of the respective conservation or management plan.
Our Response: It is our experience that most landowners strongly
object to inclusion of their lands within critical habitat; thus while
proposing a designation may in some cases provide an incentive to
participate in developing an HCP, we have no indication that
designating private lands as critical habitat encourages the owners to
engage in conservation activities. We do recognize that the designation
of critical habitat does not provide the same set of conservation
conditions that an HCP does, and an HCP may well provide more benefits
to the species than critical habitat designation. We recognize that
critical habitat is only one of many conservation tools for federally
listed species, but HCPs are one of the most important tools for
reconciling land use with the conservation of listed species on non-
Federal lands. Furthermore, the benefits of including HCPs or NCCP/HCPs
in the critical habitat designation are normally small; i.e., any
federally funded or authorized activities in such habitat that may
affect critical habitat would 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, we believe that this benefit is small or non-existent.
Although conservation plans are important tools to ensure the species
survival and recovery, our actions regarding newly implemented plans
are not automatic; it is our policy is to carefully review each plan,
and only exclude areas from critical habitat designations consistent
with section 4(b)(2) of the Act.
1-4. Comment: All essential habitats within the boundaries of the
Central/Coastal Orange County NCCP/HCP should be included in the
critical habitat designation because the Riverside fairy shrimp in
natural vernal pools is not covered by these plans, and therefore
cannot benefit from the conservation measures in the plan.
Our Response: The Riverside fairy shrimp is known to occur in only
two areas within the Central-Coastal Orange County NCCP/HCP, which
provides for the establishment of approximately 38,738 ac (15,677 ha)
of reserve lands for 39 Federal or State listed, unlisted, and
sensitive species. Within this NCCP/HCP, we proposed critical habitat
at the former Marine Corps Air Station (MCAS) El Toro but we excluded
this area pursuant to section 4(b)(2) for economic impacts. We excluded
an area within the Edison Viejo Conservation Bank, as their management
plan meets our criteria for conservation measure for the species. The
Riverside fairy shrimp is also known to occur in the North Ranch Policy
Plan area which was originally not included within the Central-Coastal
NCCP/HCP. However, in 2002, the Irvine Company, owner of lands within
the North Ranch Policy Plan area, granted a conservation easement to
The Nature Conservancy over the portion of the land where this vernal
pool is located, and provided a $10 million management endowment. The
conservation easement and management endowment ensure conservation of
the Riverside fairy shrimp at this site. (For details, see Relationship
of Critical Habitat to Approved Habitat Conservation Plans below).
1-5. Comment: The critical habitat designation does not give
landowners effective notice as to whether their property contains
critical habitat, causing a burden to landowners who must determine
which portions of their land contain critical habitat.
Our Response: We identified, as critical habitat, specific areas in
the proposed determination that are referenced by UTM coordinates found
on standard topographic maps. Note that areas delineated as critical
habitat on the maps do not include developed areas within the
boundaries that do not contain more than one of the primary constituent
elements for the species. During the public comment periods, we also
made available the proposed critical habitat units, superimposed on 7.5
minute topographic maps and spot imagery, for inspection by the public
at the Carlsbad Fish and Wildlife Office. Furthermore, we distributed
geographic data and maps of the proposed critical habitat to all
individuals, organizations, local jurisdictions and State and Federal
agencies that requested them. We believe the information made available
to the public is sufficiently detailed to allow for determination of
critical habitat boundaries. This final rule contains the legal
descriptions of areas designated as critical habitat required under 50
CFR 424.12(c). The accompanying maps are for illustration purposes
only. If additional clarification is necessary, contact the Carlsbad
Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California
92009 (telephone 760/431-9440).
1-6. Comment: Essential Riverside fairy shrimp habitat within MCAS
Miramar should be included as critical habitat because the habitat
under their Integrated Natural Resource Management Plan (INRMP) meets
the definition of critical habitat, as the Service has identified those
areas as essential to conservation of species and the plan provides
special management for the species. Further, the current INRMP (a) does
not provide details for any existing or future exotic control project
and thus does not provide adequate protection against current threats
posed by the spread of exotic plants, (b) contains mainly future plans
and few active measures addressing current conservation needs, and
little information on when and where the actions will be accomplished,
(c) does not include the Navy's past Miramar Vernal Pool Management
Plan, i.e., treatment of vernal pools is not mandated, (d) its
protection measures are not permanent, i.e., its reference to
``political developments'' could be seen as future decision to convert
base to a
[[Page 19164]]
regional airport or other development; (e) identifies the NEPA and the
Clean Water Act as primary mechanisms for reconciling land uses with
conservation, but these do not provide effective conservation of vernal
pools, and (f) the INRMP provides few benefits, as the INRMP and past
consultations will not ensure conservation or protection of Riverside
fairy shrimp and its essential habitat.
Our Response: Under section 4(a)(3) of the Act, we must exempt
military lands subject to an INRMP from critical habitat if that plan
provides a benefit to Riverside fairy shrimp. The lands at MCAS Miramar
are covered by an approved INRMP that identifies sensitive natural
resources within management areas that have various resource
conservation requirements and management concerns. These areas have
been assigned five levels of conservation priority corresponding with
their sensitivity, with e.g., Level I management areas receiving the
highest proactive measures. MCAS Miramar continues to monitor, restore
and manage its vernal pool resources, including studies in progress,
and has indicated it has no plans for changes in future land use. MCAS
Miramar has completed an INRMP which we have reviewed and determined
that it provides benefits to the Riverside fairy shrimp. Therefore,
lands at MCAS Miramar have not been included in the proposed or final
designation in accordance with 4(a)(3) of the Act (for more details,
see benefits analysis in proposed rule (69 FR 23024) under Relation of
Critical Habitat to Department of Defense Lands; Marine Corps Air
Station Miramar).
1-7. Comment: The Service did not provide for adequate public
notice of the proposed rule and sufficient opportunity for public
comment. Additionally, requests for extension of the comment period
were denied, while previous comments have not been acted upon. The 30-
day comment period on the draft economic analysis lacks compliance with
the required 60-day comment period per the Service's own regulations,
the Act and the Regulatory Flexibility Act; with a shorter comment
period.
Our Response: Pursuant to our implementing regulations at 50 CFR
424.16, we are required to provide for at least 60-days for public
comment following the publication of a proposed rule in the Federal
Register. We published the proposed rule to designate critical habitat
for the Riverside fairy shrimp in the Federal Register on April 27,
2004 (69 FR 23024), and accepted comments from the public for 30 days,
to May 27, 2004. We contacted all appropriate State and Federal
agencies, county governments, elected officials, and other interested
parties and invited them to comment on the proposed rule. In addition,
we published notices in the San Diego Union Tribune, the Orange County
Register, and the Los Angeles Times, all on May 6, 2004. We published a
second notice in the Federal Register on October 19, 2004 (69 FR
61461), announcing the availability of the draft economic analysis and
opening a 30-day public comment period until November 18, 2004, to
allow for comments on the draft economic analysis and additional
comments on the proposed determination. We provided notification of the
draft economic analysis through telephone calls, letters, and news
releases faxed and/or mailed to relevant elected officials, local
jurisdictions, and interest groups. Following its release, we also
published the draft economic analysis and associated material on our
Web site (http://carlsbad.fws.gov). We believe these two public comment
periods provided adequate opportunity for public comment and constitute
compliance with our implementing regulations at 50 CFR 424.16. Because
of the court-ordered time frame, we were not able to extend the second
comment period or open an additional public comment period.
1-8. Comment: Would the designation of critical habitat for the
Riverside fairy shrimp be considered a changed or unforeseen
circumstance with respect to the various sub-area HCPs presently
approved or pending?
Our Response: In this rule, no critical habitat was designated
within lands covered by any pending or un-approved HCP.
1-9. Comment: One commenter stated that the proposal to designate
critical habitat violates the Act because of (a) failure to use the
best available science to exclude non-essential lands from the critical
habitat designation, (b) failure to determine whether any specific
areas may require special management considerations or protection, (c)
it does not contain an economic impact analysis; Congress intended that
the Service consider economic and other impacts of the critical habitat
designation concurrently with the formulation of critical habitat
proposals, (d) certification pursuant to the Regulatory Flexibility Act
impermissibly relies on the as-yet unavailable economic analysis,
reducing ability of public to provide meaningful comment, and because
(e) the Service has failed to comply with NEPA prior to designating
critical habitat.
Our Response: We are directed by the Act to use the best commercial
and scientific information available to us at the time we conduct our
analyses. In response to part (a), we relied on the best scientific
resources when determining to either designate areas essential to the
conservation of the Riverside fairy shrimp and to exclude other areas
from our final critical habitat designation. Our final delineation of
critical habitat is based on the best available scientific and
commercial data regarding the species, including a compilation of data
from peer-reviewed published scientific literature, unpublished or non-
peer-reviewed survey or research reports, and statements from expert
biologists knowledgeable about the Riverside fairy shrimp and its
habitat. In addition to the above information available to us, we also
requested additional information from the public and from peer
reviewers to further assist us in our analyses. All new information
that was provided during the public comment periods was considered in
this final designation, as appropriate. The areas designated as
critical habitat represents our best estimate of what areas are
essential and critical for the conservation of the species. In response
to part (b), please refer to our section Relationship of Critical
Habitat to Approved Habitat Conservation Plans for details on our
analyses of approved conservation plans. In response to comments (c)
and (d), we have provided a draft economic analysis, available for
public review during the second comment period, giving individuals
opportunity to submit comments on its contents, which we have reviewed
and addressed in this rule. In response to comment (e), we are not
required to prepare environmental analyses as defined by the NEPA in
connection with designating critical habitat under the Endangered
Species Act of 1973, as amended. (For more details, see National
Environmental Policy Act (NEPA) below).
1-10. Comment: Would on-going activities (such as routine
inspections, road grading, construction, etc.) that occur adjacent to
designated critical habitat be considered to appreciably decrease
habitat values or quality through indirect effects?
Our Response: The Federal agency planning to conduct such
activities must determine if their proposed action may affect critical
habitat designated for the Riverside fairy shrimp. The action agency
determines whether their action(s) ``may affect'' the Riverside fairy
shrimp or its primary constituent elements within the adjacent critical
habitat based on their analyses. If so, the
[[Page 19165]]
action agency would enter into consultation with the Service under
section 7.
1-11. Comment: Can the Service exclude all areas addressed under
existing section 7 permits in a manner similar to the exclusions for
areas covered under existing section 10 permits? Specifically, can an
existing section 7 permit based on a biological opinion for the
California gnatcatcher be amended to cover the Riverside fairy shrimp
critical habitat in the Otay Mesa area? Specifically, this would be
necessary for ongoing operations and maintenance by the San Diego
County Water Authority of the Mexico Emergency Connection Pipeline on
the western portion of Otay Mesa (final Map Unit 4).
Our Response: Consultation under section 7 of the Act does not
result in the issuance of a section 7 ``permit'' per se. Federal
actions that we conclude are not likely to jeopardize the continued
existence of a listed species are exempted from the prohibition against
take of listed animal species under section 9 of the Act so long as the
Federal agency and any permittee comply with the terms and conditions
of the incidental take statement accompanying the Service's biological
opinion. Assuming the Federal agency that was subject to consultation
under section 7 of the Act for a listed species still retains
discretionary jurisdiction over the action, the Federal agency must re-
initiate section 7 consultation if its action ``may affect'' designated
critical habitat for the Riverside fairy shrimp. See Section 7
Consultation below.
1-12. Comment: One commenter requested that the Major and Minor
Amendment areas of the eastern portion of Otay Mesa, southern San Diego
region (Map Unit 5C), be excluded from the critical habitat designation
because these areas must conform to the MSCP, sub-area plans, and the
resource protection ordinance, and a critical habitat designation would
result in additional section 7 requirements, economic burdens on HCP
participants, discourage HCP development, cause additional regulatory
review that could jeopardize ongoing conservation efforts, possibly
encourage legal challenges to the HCPs because of the uncertainty of
the ``adverse modification'' threshold, and afford no additional
benefit to the species because HCPs provide better long-term
conservation measures.
Our Response: Although the Major/Minor Amendment areas are within
the boundaries of the San Diego MSCP, these areas are not covered by
completed plans that address the conservation of the Riverside fairy
shrimp. While we have excluded lands covered by approved sub-area plans
under the MSCP, the plans for the Major/Minor Amendment areas are
incomplete and thus do not provide adequate conservation measures
addressing the Riverside fairy shrimp. However, we have excluded all of
Sub-unit 5C in private ownership within the Otay Mesa Major/Minor
Amendment areas, under section 4(b)(2) of the Act, in order to avoid
some or all of the additional costs incurred by affected landowners.
1-13. Comment: One commenter suggested that the areas proposed as
Riverside Fairy Shrimp critical habitat (a) do not need special
protection or satisfy the definition of critical habitat because they
receive substantial protections under new regulations (i.e., Clean
Water Act, Porter-Cologne Water Quality Control Act, California
Environmental Quality Act, California Department of Fish and Game
permitting codes, State Water Board regulations; and (b) must be re-
evaluated to determine whether the habitat requires special protection
in light of new regulations governing such areas, i.e., the California
Porter-Cologne Water Quality Control Act.
Our Response: While the statutes listed above may provide some
regulatory protection for the Riverside fairy shrimp and its associated
essential habitat, they do not provide assured management for the
species.
Therefore, exclusion of essential habitat from this designation on
the basis of the regulatory protections potentially afforded by these
statutes is not warranted.
1-14. Comment: One commenter asserted that Service has unlawfully
pre-determined that exclusion from the final critical habitat
designation of essential Riverside fairy shrimp habitat that lies
within other conservation plan areas outweighs any benefits of
inclusion because the acknowledged essential habitat was excluded prior
to the public's review of the Service's analyses of benefits and harm.
Our Response: Notice of our intent to exclude lands within approved
and/or pending HCPs was provided to the public, and maps showing the
lands proposed for exclusion were readily available to the public for
inspection during the two public comment periods. We solicited comments
from the public for 30 days about the areas which we proposed to
include or exclude from the proposed rule to designate critical habitat
for the Riverside fairy shrimp on April 27, 2004 (69 FR 23024). In the
Federal Register notice, we notified the public that we may revise the
critical habitat designation if additional information becomes
available that changes our assessment of the relative benefits of
including or excluding these areas from critical habitat. We also
contacted appropriate State and Federal agencies, county governments,
elected officials, and other interested parties and invited them to
comment on the proposed rule, and published notices in the San Diego
Union Tribune, Orange County Register, and Los Angeles Times on May 6,
2004. We published a second notice on October 19, 2004 (69 FR 61461),
announcing the availability of the draft economic analysis and opening
a 30-day public comment period until November 18, 2004, and also
published the draft economic analysis and associated material on our
Web site (http://carlsbad.fws.gov). In making our final critical
habitat determination, we considered every comment submitted.
Issue 2: Adequacy and Extent of Critical Habitat Designation
2-1. Comment: One commenter stated that there is no substantiation
for an increase in area designated as critical habitat from the
previous critical habitat rule issued on May 30, 2001 (66 FR 29384).
Our Response: In the May 30, 2001, final critical habitat rule for
the Riverside fairy shrimp (66 FR 29384), we designated approximately
6,870 ac (2,790 ha) as critical habitat. Since then, additional, new
information on vernal pools and the occurrences of the little-studied
Riverside fairy shrimp has become available, while on the other hand,
numerous of the discovered essential areas have been included in
several regional HCPs or INRMPs. Thus, on April 27, 2004, we proposed
to designate approximately 5,795 ac (2,345 ha) of vernal pools and
their adjacent watersheds essential to the conservation of the species
as critical habitat for the Riverside fairy shrimp (69 FR 23024). This
final determination designates 306 ac (124 ha) as critical habitat,
which represents less than five percent of the area originally
designated as critical habitat in the previous rule of 2001.
2-2. Comment: One commenter stated that the Service did not use an
appropriate mapping scale for this species, and since the species'
range is well known in San Diego County, the Service should have been
able to delineate critical habitat boundaries with extreme precision.
The current 100 m\2\ blocks include areas that do not have the PCEs for
the Riverside fairy shrimp, and those areas should be excluded. Another
commenter asked whether the Service intends to exclude from the
designated critical habitat all existing
[[Page 19166]]
roads, aqueducts, etc. regardless of the state of these features.
Our Response: We are required to define and delimit critical
habitat by specific limits using reference points and lines as found on
standard topographic maps of the area'' (50 CFR 424.12(c)). We have
delimited the boundaries of critical habitat boundaries in this rule
based on a minimum mapping scale of 100 m. This mapping scale was based
on the availability and accuracy of aerial photography and GIS data
layers used to develop the designation. In drawing our critical habitat
boundaries for the proposed and final rules, we have attempted to
exclude all areas that do not contain essential habitat for the
Riverside fairy shrimp as defined by its PCEs. Based on information
obtained through public comments and updated imagery and GIS data
layers, we have been able to further refine the boundaries of critical
habitat during the development of this final rule. Within the
limitations of our mapping scale, we have been able to exclude most,
but not all areas, that do not contain the PCEs, including some man-
made features. Note, however, that we have determined that existing
man-made features and structures, such as buildings, roads, railroads,
airports, runways, other paved areas, lawns, and other urban landscaped
areas are not likely to contain one or more of the PCEs and thus do not
constitute critical habitat and the lands on which they are found.
Activities in these areas are unlikely to affect PCEs (i.e., essential
habitat for the Riverside fairy shrimp), and therefore, consultation
under section 7 of the Act would not be required unless such activities
would affect the species or adjacent critical habitat. In making the
critical habitat designation, we used the best scientific and
commercial information available to us, including information obtained
during the two public comment periods
2-3. Comment: The proposed critical habitat designation violates
the Act because of the Service's failure to limit the designation to
areas essential to the conservation of the Riverside fairy shrimp.
Our Response: In proposing critical habitat designation, we used
the best scientific and commercial information available to determine
those areas essential for the conservation of the Riverside fairy
shrimp. We used additional information available to us, including a
more detailed aerial imagery, a finer mapping grid (changed from 250
m\2\ to 100 m\2\), as well as information provided by commenters to
refine our mapping of all essential habitat included in the final
designation. Please see the sections Background, Criteria Used to
Identify Critical Habitat, and Critical Habitat Designation of this
rule for further discussions on how we determined habitat that is
essential to the conservation of the species. The areas designated by
this final rule are limited to lands essential for the conservation of
the Riverside fairy shrimp.
2-4. Comment: Rancho Mission Viejo stated that in the proposed
rule: (a) The Service used a ``recovery standard'' which resulted in an
overly broad critical habitat designation, (b) the Service did not
provide scientific data to indicate how it determined the extent of
watersheds that comprise the extent of critical habitat within Rancho
Mission Viejo, and that (c) one vernal pool (within Map Unit 2),
included in the proposed designation, no longer exists.
Our Response: The definition of critical habitat in section 3(5)(A)
of the Act includes ``(i) specific areas within the geographic area
occupied by a species, at the time it is listed in accordance with the
Act, on which are found those physical or biological features (I)
essential to the conservation of the species and (II) that may require
special management considerations or protection; and (ii) specific
areas outside the geographic area occupied by a species at the time it
is listed, upon a determination that such areas are essential for the
conservation of the species.'' The term ``conservation,'' as defined in
section 3(3) of the Act, means ``to use and the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary''. In designating critical habitat
for the Riverside fairy shrimp, we identified those areas that are
essential to the conservation of this species. The areas we designate
as critical habitat provide one or more of those habitat components
essential for conservation of the Riverside fairy shrimp. In this final
rule, we have not included all areas currently occupied by the
Riverside fairy shrimp, but instead have designated those areas that
are essential for the conservation of the species and that may possess
large populations, have unique ecological characteristics, and/or
represent the known historic geographic areas where the Riverside fairy
shrimp can be re-established. The Recovery Plan (Service 1998) details
some measures to meet the recovery needs of the Riverside fairy shrimp,
and provides a description of habitat attributes that are essential to
conservation of the species. We believe that we used the best
scientific and commercial information available in determining those
areas essential for the Riverside fairy shrimp that were proposed as
critical habitat and subsequently finalized. Please see the sections
Background, Criteria Used to Identify Critical Habitat, and Critical
Habitat Designation of this rule for further discussion on how we
determined habitat that is essential to the conservation of the
Riverside fairy shrimp.
Issue 3: Biological Justification and Methodology
3-1. Comment: There is insufficient data to show that the Riverside
fairy shrimp is present in the proposed critical habitat areas at March
Air Reserve Base (March ARB). Further, the Service did not use best
scientific data available in the proposed critical habitat designation,
as it did not consider the ``1998 Fairy Shrimp Surveys at March Air
Reserve Base, Riverside County, California'' (RECON Number 2965B,
September 14, 1998) which concluded that ``potential habitats at March
Air Reserve Base are of poor quality and do not support the Riverside
fairy shrimp.'' Because the surveys indicated that the habitat was
unoccupied, the pools on March ARB are not essential to the
conservation of the species.
Our Response: The delineation of critical habitat for the Riverside
fairy shrimp was based on the best available scientific and commercial
data regarding the species. During both public comment periods, all new
information provided was considered in this final designation, as
appropriate. The areas proposed and designated as critical habitat, as
described, represent our best estimate of what areas are essential and
critical for the conservation of the species. Critical habitat at March
ARB was excluded from critical habitat based on section 4(b)(2) of the
Act.
Issue 4: Comments on Individual Map Units--Exclusions
4-1. Comment: The U.S. Department of Homeland Security (DHS), U.S.
Border Patrol, San Diego Sector, submitted comments (May 27, 2004)
raising the following issues: (1) Lands owned by the DHS within Sub-
units 5B and 5C have previously been disturbed and developed by the
construction of the Border Infrastructure System (BIS), (2) the DHS has
conducted two restoration projects to offset losses for fairy shrimp,
and 135 ac (55 ha) of DHS-owned lands located north of the BIS have
been designated as mitigation for completion of the border system and
[[Page 19167]]
should not be designated as critical habitat. DHS has made a commitment
to the Service to transfer these lands to a conservation resource
agency and/or to protect and conserve the lands in perpetuity, (3)
lands within the footprint of the BIS do not or will not contain any of
the primary constituent elements for the Riverside fairy shrimp once
construction is completed, and (4) the BIS is considered integral to
national security.
Our Response: We have excluded essential habitat within DHS-owned
lands along the U.S.-Mexico border (i.e., all of Sub-unit 5B, and
portions of Sub-unit 5C) under section 4(b)(2) of the Act and removed
non-essential areas. The concerns related to the presence or absence of
primary constituent elements within the footprint of the BIS are moot
because no lands owned by the DHS have been designated as critical
habitat. For a detailed explanation, please see the section Application
of Section 4(b)(2) to Department of Homeland Security (DHS) lands
below.
4-2. Comment: March ARB requested that vernal pools located on
their lands be excluded from critical habitat under section 4(b)(2) of
the Act because designation would adversely impact commercial reuse of
former military property currently under development, severely limit
civilian aviation at the joint-use March ARB airport, result in
aviation delays, jeopardize public safety and impact firefighting
mission of California Department of Forestry, increase possible risk of
bird-aircraft strikes, and ``adversely impact mission execution and
military training critical to national security.'' One pool is located
near the airfield zone where ongoing maintenance is necessary to ensure
proper drainage and prevent possible runway damage. Further, they
suggested that the vernal pools on March ARB (called Pools 3 and 6 by
March ARB) do not meet the definition of ``critical habitat,'' suitable
habitat for the Riverside fairy shrimp is not present or determinable
and cannot be maintained on March ARB, and the pools are not essential
to the conservation of the species as required by Act. Thus, the
benefits of exclusion outweigh benefits of inclusion, will not result
in extinction of the Riverside fairy shrimp, and the proposed critical
habitat designation is not prudent. The Air Force's Environmental
Impact Analysis Process ensures the compliance of March ARB with the
NEPA, and also, an INRMP is being revised that will ensure all
potential habitat areas on March ARB will be investigated for Riverside
fairy shrimp.
Our Response: We have determined to: (1) Remove Sub-unit 3A from
this critical habitat designation as the area has been modified and no
longer contains the primary constituent elements for the Riverside
fairy shrimp, and (2) exclude Sub-unit 3B from this final critical
habitat designation according to section 4(b)(2) of the Act. The main
benefit of the latter exclusion is to ensure that mission-critical
military flight activities can continue without interruption at March
ARB while their INRMP is being completed. Under section 4(b)(2) of the
Act, we may exclude lands from critical habitat if the benefits of
excluding them, including the benefits to national security, outweigh
the benefits of including them in the designation. We have determined
that the benefits to national security of excluding lands within Sub-
unit 3B from critical habitat outweighs the benefits of including these
lands in the critical habitat designation (see Application of Section
4(b)(2) to March Air Reserve Base (March ARB) for a detailed
discussion).
4-3. Comment: We received comment letters from the Federal Aviation
Administration (FAA) and Los Angeles World Airports (LAWA; Sapphos
Environmental 2004) regarding the proposed designation of critical
habitat at the Los Angeles International Airport (Sub-units 2A and 2B).
FAA and LAWA questioned the appropriateness of the proposed designation
of critical habitat because of past decisions by the Service in the
Recovery Plan for Vernal Pools in Southern California, previous
designation of critical habitat for the Riverside fairy shrimp, the
April 2004 biological opinion for the Los Angeles International Airport
Master Plan, concern for the potential increased risk to public safety
and air navigation, and conflicts with FAA's mission. These agencies
also recommended that critical habitat not be designated within the Los
Angeles International Airport because of the ongoing section 7
consultations for the Riverside fairy shrimp with FAA and LAWA for
their operations and maintenance activities and the absence of the
primary constituent elements for the Riverside fairy shrimp within the
proposed critical habitat units.
Our Response: In the proposed rule, we identified vernal pools at
the Los Angeles International Airport (LAX) as critical habitat (Sub-
units 2A, 2B). As a result of the ongoing operations and maintenance
activities at LAX, the requirement of the primary constituent element
related to the length of time that ponding seasonally occurs within
these ephemeral wetlands is not met. Thus, these ephemeral wetlands do
not contain this primary constituent element; the Riverside fairy
shrimp is unable to complete its lifecycle at LAX without these pools
being inundated for a minimum of two months. Thus, we conclude that the
ephemeral pools originally proposed as critical habitat at LAX are not
essential for the conservation of the Riverside fairy shrimp and we are
not designating them as critical habitat.
4-4. Comment: The U.S. Marine Corps has requested the exclusion of
lands on Marine Corps Base (MCB) Camp Pendleton from critical habitat
designation per the Act, under section 4(a)(3) and section 4(b)(2) They
stated that MCB Camp Pendleton has an INRMP that provides significant
direct and indirect benefits to the Riverside fairy shrimp, that
section 7 provides sufficient protection for the Cocklebur Sensitive
Area as described in a previous biological opinion (1-1-82-I-92) and
therefore, this area should be excluded from critical habitat. They
stated that designation would interfere with the base's critical
military training mission and military readiness and concurred with the
Service's proposal to exclude mission-critical areas from critical
habitat designation.
Our Response: According to section 4(a)(3) of the Act, we must
exempt Department of Defense lands covered by an INRMP from the
critical habitat designation if we determine that the INRMP provides a
benefit to the Riverside fairy shrimp. We have reviewed Camp
Pendleton's INRMP and conclude that their plan provide a benefit to the
Riverside fairy shrimp. With the INRMP in place and progress being made
towards improving the protection of Riverside fairy shrimp, we have
therefore exempted MCB Camp Pendleton under section 4(a)(3) of the Act.
See the Exclusion of Critical Habitat Under Sections 4(a)(3), 3(5)(A)
and 4(b)(2) of the Act section below for further discussion of lands
excluded from critical habitat.
4-5. Comment: We received a request to exclude areas owned by San
Diego Gas and Electric (SDG&E) that fall within their sub-regional
NCCP/HCP boundaries from the critical habitat designation because these
areas do not meet definition of critical habitat (i.e., is covered by
an HCP plan) and exclusion will not pose any potential risk to the
Riverside fairy shrimp. Designation of critical habitat imposes
economic burdens on HCP participants, increases the cost of
consultation, increases delay, imposes additional regulatory review,
and will reduce incentive to participate in the HCP process. HCPs
provide a much greater conservation benefit to
[[Page 19168]]
private land areas than other Endangered Species Act programs, while
critical habitat designation affords no additional benefits to the
species as section 7 is applied on an inconsistent and sporadic basis,
and does not provide long-term protection.
Our Response: Where site-specific documentation was submitted to us
providing a rationale as to why an area should not be designated
critical habitat, we evaluated that information in accordance with the
definition of critical habitat pursuant to section 3 of the Act. We
made a determination as to whether modifications to the proposal were
appropriate. We reviewed the maps to ensure that only those lands
essential for the conservation of the Riverside fairy shrimp were
designated as critical habitat. We excluded lands from the final
designation that we determined to be non-essential to the species'
conservation. We also excluded lands, including lands identified in the
Vernal Pool Recovery Plan that were included in an approved HCP which
provides for the conservation of Riverside fairy shrimp, and where we
determined that the benefits of excluding those areas outweighed the
benefits of including them. We included lands in the final designation
that are essential to the conservation of the species which may require
special management considerations or protection for the Riverside fairy
shrimp. Portions of essential habitat areas within the SDG&E Sub-
regional Plan which are used for SDG&E operational maintenance
activities have been excluded from critical habitat based on section
4(b)(2) of the Act. This sub-regional plan and the clarification
document (July 2004) defines avoidance, minimization, and offsetting
measures to be implemented by SDG&E for the operations and maintenance
activities and future construction of new facilities and roads.
4-6. Comment: Skyline Ranch suggested that lands owned by Pardee
Homes be removed from critical habitat designation because it does not
fit critical habitat designation, and is not within the geographical
area occupied by the species. The commenter stated that: (a) The
Service has no proof showing Cruzan Mesa pools in Skyline Ranch
property are occupied; attached information referred to two surveys
conducted in 2002 and 2003 that recorded the vernal pool fairy shrimp
(Branchinecta lynchi), but did not record Riverside fairy shrimp on
Cruzan Mesa; (b) because the Service has not made a finding that the
site is essential to the species, and Skyline Ranch does not need
special management or protection, the site cannot be designated
critical habitat; (c) the area that has been proposed as critical
habitat (536 ac) exceeds the area that contains the PCEs. Pardee Homes
engaged Sikand Engineering, whose hydrological model determined that
the maximum surface area of the two main pools was 12 ac (5 ha) and the
tributary area necessary to fill the pool volumes from rainfall run-off
constituted 90 ac (36 ha), totaling 102 ac (41 ha), and (d) the
benefits of excluding outweigh the benefits of including lands within
Skyline Ranch as critical habitat; exclusion would not lead to the
extinction of the species. The commenter listed the benefits of
exclusion from critical habitat designation as the implementation of
Pardee plans to construct approximately 1,344 single family detached
homes on the property, creation of new jobs and tax revenues for local
jurisdictions, and the removal of burden of substantial impending
litigation to Skyline Ranch property by ``No Growth'' advocates.
Our Response: Cruzan Mesa (proposed Map Sub-unit 1C), constitutes a
portion of a larger area of Pardee-owned property (Skyline Ranch).
Cruzan Mesa contains several isolated vernal pool complexes within a
unique topography, i.e., a topographically enclosed basin atop a large,
elevated mesa (1,230 ft (375 m)) on an eroded foothill. In 2004, the
Los Angeles County Department of Regional Planning proposed to
designate a 958 ac area Sensitive Ecological Area (SEA), including all
of Cruzan Mesa, due to its regional biological values. In evaluating
the Cruzan Mesa sub-unit, we relied upon various sources, including
information in the Final Recovery Plan for Vernal Pools of Southern
California (Service 1998) and the Biological Resources Assessment
Report of the Proposed Cruzan Mesa Vernal Pools SEA prepared for the
Los Angeles County Department of Regional Planning (PCR Services 2000).
This information referenced the occurrence of Riverside fairy shrimp at
Cruzan Mesa. Information from the referenced comment letter refers to
another survey of some vernal pools on Cruzan Mesa that did not
encounter Riverside fairy shrimp. However, we have not designated
critical habitat on Cruzan Mesa for the Riverside fairy shrimp because
at present, we do not have sufficient documentation supporting the
occurrence or non-occurrence of the Riverside fairy shrimp in the
Cruzan Mesa vernal pools. Thus, we have concluded that Cruzan Mesa is
not essential for the Riverside fairy shrimp.
4-7. Comment: San Diego County Water Authority, citing undue
increased regulatory burden, costs, and administrative delays that
would be caused by a critical habitat designation, requested that their
facilities (the Mexico Emergency Connection Pipeline) on Otay Mesa
(Sub-unit 5C) be excluded or, alternatively, that provisions be made in
the designation to address the existing activities and operations
within their right-of-way, through either exclusions or textual
exemptions.
Our Response: Please see the response to comment 1-10 above and
discussion in Section 7 Consultation, below. Please note that critical
habitat within Sub-unit 5C has been excluded based on section 4(b)(2)
of the Act.
4-8. Comment: One commenter stated that critical habitat
designation should exclude Rancho Mission Viejo lands (within Map Sub-
units 2F and 2G) ``in light of disincentives to continued participation
in conservation planning,'' because of a pending HCP, and because the
benefits of exclusion outweigh benefits of inclusion.
Our Response: We are continuing to work with Rancho Mission Viejo
to complete their HCP (please see Relationship of Critical Habitat to
HCPs in Development section below). The South Orange County NCCP/HCP
covers approximately 128,000 ac (51,799 ha) of land within the plan
area and has been in development for a number of years. This NCCP/HCP
planning effort includes the participation of Rancho Mission Viejo and
the cities of Rancho Santa Margarita, Mission Viejo, San Juan
Capistrano and San Clemente, and the County of Orange. However, the
Environmental Impact Statement and Environmental Impact Report for the
NCCP/HCP proposal have not been released for public review and comment.
There are altogether at least four vernal pools that support the
Riverside fairy shrimp within the study area of the South Orange County
NCCP/HCP (please see Critical Habitat Designation below for more
information). The features within these pools have been determined to
be essential to the conservation of the species and may require special
management consideration or protections. Please note that critical
habitat within these subunits has been excluded based on section
4(b)(2) of the Act.
4-9. Comment: The vernal pool on the former MCAS El Toro does not
have the PCEs to support the Riverside fairy shrimp and further,
critical habitat designation at El Toro would impede the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA)
response actions
[[Page 19169]]
necessary to remediate both soil and groundwater contamination on the
property. Thus, the benefits of excluding the pool at El Toro from the
critical habitat designation outweigh the benefits of including it.
Our Response: We have reviewed the available information and
believe that the vernal pool at former MCAS El Toro has the primary
constituent elements for the Riverside fairy shrimp. We have excluded
all of Unit 2C, consisting of lands within the former MCAS El Toro from
critical habitat based on section 4(b)(2) of the Act.
Issue 5: Comments on Individual Map Units--Inclusions
5-1. Comment: One group and the City of Moorpark requested the
inclusion of areas containing vernal pools within Map Unit 1 in the
final critical habitat designation as it will help ensure the
protection of the habitat and the species. In addition, clarification
was given that (a) the vernal pool located on the former Carlsberg
Ranch is on part of a land parcel (650,000 ac) owned and managed by the
Santa Monica Nature Conservancy, and (b) Sub-units 1A and 1B include
portions of land within the Tierra Rejada Greenbelt, an area of land
with formal agreement by the Cities of Moorpark, Thousand Oaks, Simi
Valley, and the County of Ventura to be preserved for open space and
agricultural uses.
Our Response: This area is included in our final critical habitat
designation, and we have amended our records to include the ownership
and land usages information.
5-2. Comment: A number of requests were made that additional areas
be included in the critical habitat designation because critical
habitat provides significant conservation benefits to listed species,
is an essential tool for species recovery, it mandates higher habitat
conservation standards not otherwise available to the species, provides
detailed, practical guidance on locations of areas essential to the
species' survival, and also carries a very valuable, practical
educational value. It was also requested that the vernal pools
identified in Appendices F and G of the Service's Recovery Plan for
Vernal Pools of Southern California be included because they are
essential to conservation of the species and in need of special
management.
Our Response: The Recovery Plan for the Vernal Pools of Southern
California (Service 1998), discusses vernal pool complexes and pools,
their distribution, and known occupancy by federally listed species at
the time of the plan's publication. Not all vernal pools discussed in
the plan are known to be occupied by the Riverside fairy shrimp, or
considered to be essential to the conservation of the Riverside fairy
shrimp. Only those vernal pool habitats that are essential to the
conservation of Riverside fairy shrimp were included in the critical
habitat designation for the Riverside fairy shrimp. Where site-specific
documentation was submitted to us providing a rationale as to why an
area should not be designated critical habitat, we evaluated that
information in accordance with the definition of critical habitat
pursuant to section 3 of the Act. We made a determination as to whether
modifications to the proposal were appropriate. We reviewed the maps to
ensure that only those lands essential for the conservation of the
Riverside fairy shrimp were designated as critical habitat. We removed
lands from the final designation that we determined to be non-essential
to the species' conservation. We also excluded lands, including those
identified in the Vernal Pool Recovery Plan, that were located within
an approved HCP, which provides for the conservation of Riverside fairy
shrimp, and where we determined that the benefits of excluding those
areas outweighed the benefits of including them, or an INRMP which
provided a benefit to the species. We included lands in the final
designation that are essential to the conservation of the species which
may require special management considerations or protection for the
Riverside fairy shrimp.
5-3. Comment: All essential Riverside fairy shrimp habitat within
MCB Camp Pendleton should be included in the critical habitat
designation because (a) Service has failed to state how benefits of
exclusion outweigh benefits of designation, especially in light of the
Act's exemptions that would allow otherwise incompatible military
training activities; (b) inclusion will not limit or additionally
impact military training and readiness at the base; existing
requirements of uplands consultation at MCB Camp Pendleton will ensure
the avoidance of adverse impacts to the Riverside fairy shrimp and
involve section 7 consultations; thus little benefit of exclusion, (c)
it has the benefit of providing the military with clear, independent
scientific regulatory guidance on location of critical habitats for the
Riverside fairy shrimp and other endangered species, and (d) the
benefits of inclusion outweigh any costs of inclusion.
Our Response: Please see our responses to Peer Reviewer Comment 2
and to Comment 4-4 above, and the section below on Relationship of
Critical Habitat to Department of Defense Lands.
Issue 6--Miscellaneous
6-1. Comment: The U.S. Navy at the former MCAS El Toro commented
that the proposed inclusion of the El Toro property as critical habitat
was based on erroneous property ownership information, as the
Department of Defense still owns almost 3,800 ac of former MCAS El Toro
Property. Further, Map Sub-unit 2C included 1000 ac of Navy and Federal
Aviation Administration owned property, not 1 ac as described in rule.
Our Response: We have noted these errors and have amended our
records and this rule.
6-2. Comment: The Service's citation of its website as an example
of public education about the Riverside fairy shrimp is inadequate; all
the available materials about the Riverside fairy shrimp at the website
are related entirely to critical habitat.
Our Response: We thank the commenter for their observation, and
will seek to improve our website with additional educational material
on the Riverside fairy shrimp.
Comments Related to the Draft Economic Analysis
1. Comment: One comment requests that the DEA update its land use
and land ownership information regarding the former MCAS El Toro in
Orange County. The comment also suggests that the Riverside fairy
shrimp conservation activities will impose higher costs on facility
improvements and land transfer projects planned for the former base
than estimated by the DEA.
Our Response: The DEA describes the former MCAS El Toro's likely
future land uses based on the best available public information and
statements made by knowledgeable individuals in personal interviews.
Base Realignment and Closure staff estimated that Riverside fairy
shrimp-related conservation costs for El Toro would be $150,000 over
the next 20 years based on the assumption that the Service would allow
historical uses of the site to continue if El Toro instituted a
particulate monitoring program.
The comment suggests that if historical uses for the site continue
and planned improvements to the base uses are implemented, then the
habitat mitigation costs incurred by MCAS Tustin, a neighboring base
that was also recently decommissioned, serve as a better estimate of
costs for El Toro. The Final Economic Analysis (FEA) revises the land
use and land ownership
[[Page 19170]]
context of the El Toro Sub-unit 2C and accepts the revised cost impact
of $100 million, noting that El Toro plans to acquire expensive land
off-site, restore vernal pools, relocate the species to these pools,
initiate biological monitoring, and provide for project management.
2. Comment: One commenter stated that the DEA underestimates the
impact of Riverside fairy shrimp conservation activities on operations
and planned capital improvements to March ARB in Riverside County.
Our Response: The DEA estimates impacts of Riverside fairy shrimp
conservation activities on the former March Air Force Base based on the
best available public information and statements made by knowledgeable
individuals in personal interviews. For impacts likely to occur in the
next 20 years, March Joint Powers Authority staff estimated that
$500,000 would be required to implement required Riverside fairy shrimp
conservation while increasing the capacity of drainage facilities
within which the habitat is located. The drainage facility improvements
would support real estate development on more than 3,000 acres of the
former base.
The comment suggests that ongoing operations at March ARB will also
need costly modifications to comply with Riverside fairy shrimp-related
regulations and laws. Based on March ARB's understanding of NEPA, an
additional $950,000 of environmental studies (at the Environmental
Impact Statement level) will need to be completed to maintain
operations of its runway and taxiways. In addition, a California Air
National Guard heavy equipment unit will require relocation, costing an
additional $31.5 million. Although the comment references additional
improvements to the site, including the relocation of California
Department of Forestry aircraft to March ARB, construction of a
parallel taxiway on the existing airfield, and installation of
instrument upgrades as part of the March Inland Port, no information is
available about the potential for these projects to impact Riverside
fairy shrimp habitat or the magnitude of Riverside fairy shrimp-related
project modification, if any.
The FEA accepts revised total cost impacts of $33.0 million
resulting from the California Air National Guard unit relocation, the
incremental Environmental Impact Statement costs, and March Joint
Powers Authority's drainage improvements.
3. Comment: A number of commenters stated that the DEA omits
consideration of Riverside fairy shrimp-related conservation impacts to
major transportation infrastructure projects in Southern California.
Our Response: The DEA estimated no impacts of Riverside fairy
shrimp conservation activities on the proposed extension of the 241
Toll Road based on the best available public GIS information and
statements made by knowledgeable individuals in personal interviews. At
this time, the project has nine alternatives that range from no action
to two alternative road widening projects (I-5 and local arterials,
both avoiding construction of the 241 Toll Road itself) to six
alignment variations for the toll road. The public review, comment, and
approval process for this project has been and is expected to continue
be a time-consuming and politically contentious. Given the wide variety
of regulatory, institutional, and political factors are play, the
ultimate outcome cannot be predicted at this time.
The comment suggests that critical habitat Sub-unit 2H has the
potential to add enormous costs to three of the Far East alignments.
Additional analysis and interviews with local experts suggest instead
that Map Sub-units 2F and 2H lie in the path of the Alignment 7/Avenida
La Pata Variation alternative and the A-7 Far East Crossover, Far East
(West), and Far East Modified alternatives. While no information is
publicly available on the surface area of vernal pools likely to be
disturbed by any of these alignments, there is some probability that
one of these alignments will be chosen and Riverside fairy shrimp
conservation measures may be required prior to project construction.
Given the uncertainty associated with the ultimate outcome, the FEA
weights each of the nine project alternatives equally and multiplies
the probability of each (\1/9\ or 11 percent) by an estimated worst
case cost impact for each alternative. The analysis assumes no impact
(a $0 economic costs estimate) if the toll road is not built or if the
construction footprint is located outside of proposed critical habitat.
For alternatives expected to cross Riverside fairy shrimp habitat, the
impact is the surface area of all vernal pools in the sub-unit times
$500,000 per acre as a generalized mitigation cost for transportation
projects. Based on this revised methodology, the FEA estimates the 241
Toll Road may incur an additional $43,000 in project modification costs
based on available vernal pool surface area data for all nine
alternatives.
The Service recognizes that the Toll Road alignment ultimately
constructed, if any, will impact local, and possibly regional, traffic
flow. Future differences in traffic flows and volumes can, in turn,
have a variety of indirect economic effects, including opportunity
costs of labor, efficiency of goods delivery, and growth-inducing
effects, among other factors. However, given the high degree of
uncertainty associated with the Toll Road project and the variety of
factors at play, it is difficult to isolate the unique contribution of
the Riverside fairy shrimp conservation activities on the final
outcome. Consequently, the FEA does not estimate potential economic
impacts associated with potential changes in future transportation
patterns attributable to the Riverside fairy shrimp conservation
activities.
The comment also suggests that no formal analysis was completed on
Caltrans projects underway or just completed in Southern San Diego
County. Estimates of project-specific cost impacts based on Caltrans
interviews for three projects in the Otay Mesa area of San Diego County
can be found in Chapter V of the Economic Analysis.
4. Comment: Two comments suggest that real estate assumptions used
to calculate impacts to private land development activities in one
Southern Orange County sub-unit are inaccurate. The comments also
recommend using census tract level data for supply and price effects
associated with Riverside fairy shrimp conservation activities.
DEA Methods
Our Response: The DEA relies on DataQuick's transaction-based 2003
residential market data to characterize real estate prices in all zip
codes where critical habitat was proposed. In addition, regional
planning agencies such as the Southern California Association of
Governments and the San Diego Association of Governments provided the
DEA with Global Information System (GIS) layers that describe existing
and planned land uses for areas of proposed critical habitat.
Biological opinion records from the Service also establish a range for
the habitat setaside, given variable project footprint and vernal pool
site geometry. The combination of the three datasets produces an
estimate of the total value of unimproved land affected by Riverside
fairy shrimp-related conservation measures such as on-site habitat
setasides.
The DEA considers the potential for habitat set-asides to affect
aggregate housing supply and market prices. The San Diego Association
of Government's data covering the period of 1990 to 1995 allow for an
estimate of gross public
[[Page 19171]]
land uses required per 1,000 acres of private development. The
Construction Industry Research Board supplies information about
building activity since 1993. From this information, a forecast can be
made of the Riverside fairy shrimp-related conservation land that is
taken from residential development as a share of the market's future
demand for land used to build new housing. The result suggests an
insignificant or near zero impact on housing market supply and price in
all ``since listing'' time periods and counties and in all but one
county during the ``2005-2024'' time period.
Specific Real Estate Assumptions
Several comments object to the use of a 4.25 percent property
appreciation rate in the DEA, believing it to be an understatement of
the true appreciation rate given an anticipated shortage of finished
lots for new housing in the County. To estimate future appreciation in
home values, the DEA relies on long-term historical trends which are
appropriate for the 20-year forecast utilized by the DEA.
In particular, the DEA relies on the average of a 10-year and a 20-
year trend of repeat sales and refinancing of the same properties in
California. The price indexing of the same properties over time
controls for potential changes in housing quality, location and size
over time. These data were obtained from U.S. Department of Labor,
Office of Federal Housing Enterprise Oversight. The Service regards
this source as the most reliable indicator of long-term real estate
price trends because it is less affected by short-term business cycle
fluctuations.
Several comments also state that 2004 housing price data would show
a significant increase over 2003 data. Although potentially true at the
County level, different zip codes may have highly varied year to year
changes in housing prices. Establishing the actual year to year change
in housing prices at the zip code level would require a purchase of a
new dataset and matching (using GIS-based weighting) of this data to
critical habitat land areas. Recalculating the median housing price is
not possible given the time constraints for preparation of the FEA.
Finally, the comments posit that returns on real estate investments
typically fall below the 10 percent level, in contrast to the
assumption in the DEA of a 25 percent pre-tax return. These assumptions
are used to determine the value of raw land as a percent of finished
home price. The DEA bases its calculation on the understanding that the
development of a finished home may require the actions of several major
agents who in turn move the land from an agricultural or un-entitled
basis to an entitled, paper lot basis through to a finished lot and
finished home, at which point the product is sold to the end user.
Multiple private entities are likely to have participated in this
process, each at different levels of risk.
The comments' preferences for a below-10 percent return on
investment apply best to higher volume segments of the homebuilding
industry in which a single entity purchases lots, builds homes, and
sells them to buyers. The DEA, in contrast, uses a composite risk level
that includes the greater returns to speculative land purchase and
entitlement obtained for such property, and bases its calculations on a
more appropriate composite return of 25 percent.
5. Comment: One comment requests that the DEA revise the sub-unit
land use and land ownership descriptions for Southern Orange County
proposed critical habitat. The comment also states that development of
one sub-unit is now foreseeable and will be adversely impacted by
Riverside fairy shrimp-related conservation activities.
Our Response: The DEA estimated the impacts of Riverside fairy
shrimp conservation activities for the Radio Tower Road (Sub-unit 2G)
and other Foothill sub-units based on the best available public
information and statements made by knowledgeable individuals in
personal interviews. After the publication of the notice of
availability of the DEA, the Orange County Board of Supervisors changed
the designation of the property to Suburban Residential from Open
Space, and rezoned much of the land for Planned Community instead of
Agricultural.
The FEA analyzes impacts from Riverside fairy shrimp-related
conservation using the same methods established and applied to land use
data in the DEA. Land that is zoned for development is deemed likely to
be developed within the next 20 years, given general trends in land use
for the areas identified as supportive of the Riverside fairy shrimp.
These areas tend to be generally flat and readily built upon,
notwithstanding other development considerations such as
infrastructure, and land ownership. Given this conservative assumption,
all 753 undeveloped acres of the Radio Tower Road are considered
impacted by Riverside fairy shrimp-related conservation measures that
include on-site habitat setasides worth $8 million to $45 million
dollars in potential land value over the next 20 years.
The FEA also uses corrected references of this region's habitat
sub-units to the Ranch Plan, a master planned community covering many
thousands of acres of the area.
6. Comment: One comment requests that the land ownership and
planned uses information for Los Angeles International Airport (LAX)
from the DEA be revised. The comment also suggests that the impacts to
LAX from Riverside fairy shrimp-related conservation activities in the
DEA are grossly understated.
Our Response: DEA Methods.
The DEA estimated the impacts of Riverside fairy shrimp
conservation activities on LAX based on the best available public
information and statements made by knowledgeable individuals in
personal interviews. Several individuals contacted for personal
interviews did not return phone calls during the process of preparing
the DEA. The agency operating LAX, in recent publications, has
characterized the airport's daily operations at and major facility
expansion plans as incompatible with maintenance of Riverside fairy
shrimp habitat.
Given LAX's objectives of minimizing the risk of aircraft-bird
collisions that it believes is higher due to the presence of seasonal
vernal pools on the airfield, the DEA assumes that Riverside fairy
shrimp-related conservation measures would include eventual off-site
mitigation of the entire 1.3 acres of wetted area. Adding monitoring
and administrative costs to this sub-total, approximately $950,000 in
impacts are estimated for the airport over the next 20 years.
Impacts of Significant Events
The comment requests that a full accounting of the cost impact of
two significant events be attributed to the designation of critical
habitat on the LAX airfield:
Property loss and loss of life damages resulting from
serious aircraft-bird collisions.
Loss of regional mobility for goods and people given an
inability of the airport to complete its planned improvements.
Publicly available literature was searched for references to
impacts related to catastrophic events involving bird strikes. One
source estimates that between 1990 and 2004 approximately 732 bird
strikes have taken place at LAX, inflicting total damages of $17.5
million. The estimate did not match the damage levels of these
incidents to birds
[[Page 19172]]
using vernal pool habitat, apart from birds that came into contact with
aircraft because of other landscape features, natural or human
constructed. It is not possible, therefore, to easily distinguish
damage due to Riverside fairy shrimp-related habitat from damage
related to birds attracted by other habitat or landscape features.
In addition, these bird strike loss estimates do not include an
analysis of hardware or other means that would reduce bird attraction
to ephemeral wetlands on airport land without removal of the wetlands
as a habitat feature. Current discussions being held between LAX and
the Service will explore the installation of equipment that allows for
wetlands to be maintained on the airfield while discouraging avian
feeding or travel patterns within the habitat.
Regarding airport operation and expansion plans, the DEA assumes
that Riverside fairy shrimp conservation activities will have no impact
on regional transportation mobility. Based on comments received,
additional research was conducted on the potential relationship between
LAX's operational capacity and regional economic activity. However, the
Service was unable to identify any existing studies providing
quantitative analysis of this relationship. A detailed analysis of the
impact of LAX on the regional economy and/or the potential for RSF
conservation activities to affect airport capacity, would require more
time and effort than can be devoted to this FEA.
No information about Riverside fairy shrimp habitat disposition
appears in any Environmental Impact Report/Statement alternative
besides a loss of a small amount of wetted acreage in Alternative D. A
consultation has been completed with the Service regarding Alternative
D of the LAX Master Plan, in which construction activities at LAX would
require a staging area that will necessitate fill of portions of the
vernal pools. A second consultation recently began that will address
LAX operations. As a worst case scenario, the FEA calculates the impact
of Riverside fairy shrimp conservation as a requirement for LAX to
mitigate for the entire loss of vernal pool habitat. At $500,000 per
wetted acre in unit mitigation costs, the sub-total of habitat
restoration activities for the worst case scenario is estimated at
$650,000 for LAX.
The comment also stipulates that the restoration monitoring period
will last 15 years instead of 5, and that the administrative cost of
the operations consultation will amount to $180,000. The FEA accepts
these statements and calculates monitoring impacts at $750,000.
Administrative costs are listed in the FEA as $400,000 for historical
(since listing) section 7 compliance regarding the Riverside fairy
shrimp, and $180,000 for the recently initiated consultation, for a
total of $580,000 in administrative spending.
FEA References to Documents and Permitting Processes
The FEA text on LAX's Master Plan and operations has been revised
based on new information provided in the comment. EIR/EIS documents
released to the public since the appearance of the first drafts of the
DEA were reviewed, and the consultation history with the Service was
updated.
Land Ownership Information
The DEA cites GIS layers provided by Southern California
Association of Governments as the basis of existing land uses for
proposed critical habitat on or near LAX. Table 10 in the DEA notes
that Southern California Association of Governments data classifies 3
acres of the proposed habitat sub-unit as private developed, 66 acres
as public land, and 35 acres as unfeasible to develop due to physical
constraints. The comment requests that all sub-unit land be recognized
as airport controlled (public) land. The impacts estimated by the FEA
would not change based on the different land use classifications
assigned to the proposed critical habitat by either the Southern
California Association of Governments or the comment. Hence, the
Southern California Association of Governments information will remain
the primary source of land use data.
Comments From States
Section 4(i) of the Act states ``the Secretary shall submit to the
State agency a written justification for her failure to adopt
regulation consistent with the agency's comments or petition.''
Comments received from States regarding the proposal to designate
critical habitat for the Riverside fairy shrimp are addressed below.
1. State Comment: The California Department of Fish and Game
requested that the Service avoid any later revisions to the proposed
critical habitat that would include Department-owned lands.
Our Response: No lands or areas within the jurisdiction of the
California Department of Fish and Game were considered within the
proposed or final critical habitat designation.
Summary of Changes From Proposed Rule
Based on our review of the public comments received on the proposed
designation of critical habitat, the economic analysis for the
Riverside fairy shrimp, and available information, we re-evaluated our
proposed designation and revised the final critical habitat designation
for this species as follows.
Areas Removed From Critical Habitat Designation
We re-evaluated our proposed critical habitat unit boundaries,
refined our mapping methodology, and used new information to remove
4,822 ac (1,951 ha) of non-essential habitat within each critical
habitat map sub-unit (see Table 1 and Methods section below for more
details).
In the proposed rule, we identified critical habitat in Sub-units
1C, 2A, 2B, 3A, and in portions of 5A and 5B. However, we have re-
evaluated these sub-units based on updated information, and determined
that, due to habitat modifications and ongoing operations and
maintenance activities, these areas no longer contain one or more of
the necessary PCE's for the Riverside fairy shrimp to successfully
complete its life-cycle. We therefore removed the following areas from
consideration for the final critical habitat designation:
(1) Cruzan Mesa (Sub-unit 1C). This sub-unit consisted of
approximately 534 ac (216 ha). We have insufficient documentation
regarding the occurrence or non-occurrence of the Riverside fairy
shrimp in the Cruzan Mesa vernal pools, it occurs outside the known
geographical range of the species, and we were unable to determine
whether this area is essential to the conservation of this species. We
therefore removed this sub-unit from our analyses of critical habitat.
(2) Los Angeles International Airport (LAX; Sub-units 2A, 2B).
These sub-units consisted of approximately 103 ac (42 ha) in total. As
a result of the ongoing operations and maintenance activities at LAX,
these ephemeral wetlands cannot pond long enough for the Riverside
fairy shrimp to complete its lifecycle. Thus, we have removed both
proposed sub-units at LAX from critical habitat designation as they do
not contain this primary constituent elements, and are thus not
essential for the conservation of the Riverside fairy shrimp.
(3) March ARB (Sub-unit 3A). This sub-unit consisted of
approximately 101 ac (41 ha). We have re-evaluated this sub-unit and
determined to remove it
[[Page 19173]]
from this critical habitat designation as the vernal pool area has been
modified and no longer contains the primary constituent elements for
the Riverside fairy shrimp.
(4) Southwestern and Southeastern Otay Mesa (portions of Sub-units
5A, 5B). These sub-units consisted of approximately 255 ac (104 ha) in
total. Portions of these sub-units (totaling 119 ac (48 ha)) lie within
the footprint of the BIS, which is completed or under construction by
the DHS for use in their border patrol activities. After evaluation of
these areas, we determined that the necessary PCE's for the Riverside
fairy shrimp are absent; these areas have thus been removed from our
critical habitat analyses. See discussion of Units Excluded Due to
National Security Under Section 4(b)(2) of the Act below.
Units Exempted Due to INRMPs Under Section 4(a)(3) of the Act
(1) MCB Camp Pendleton (Sub-units 4A, 4B). The total area of these
proposed sub-units was approximately 254 ac (103 ha), and contains
approximately 226 ac (91 ha) of essential habitat in the final rule. In
the proposed rule, we excluded essential habitat within mission-
critical training areas on MCB Camp Pendleton under section 4(b)(2) of
the Act. In this final rule, we re-evaluated this exclusion and instead
have exempted these mission-critical training areas as well as other
essential habitat areas on MCB Camp Pendleton from critical habitat
under section 4(a)(3) of the Act (see Application of Section 4(a)(3) to
MCB Camp Pendleton for a detailed discussion). Thus, no lands owned or
controlled by MCB Camp Pendleton have been designated as critical
habitat in this final rule.
Lands leased to the California Department of Parks and Recreation
have been excluded under section 4(b)(2) of the Act (see Units Excluded
Due to National Security Under Section 4(b)(2) of the Act).
(2) MCAS Miramar. We reaffirm our exemption of MCAS Miramar under
section 4(a)(3) of the Act.
Units Excluded Due to National Security Under Section 4(b)(2) of the
Act
(2) March ARB (Sub-unit 3B). This sub-unit consisted of
approximately 44 ac (18 ha) of essential habitat. See Application of
Section 4(b)(2) National Security to March Air Reserve Base (March ARB)
for a detailed discussion. Thus, no lands owned or controlled by March
ARB have been designated as critical habitat in this final rule.
(3) Department of Homeland Security (DHS; Sub-unit 5B). We have
excluded approximately 147 ac (59 ha) of essential habitat within DHS-
owned lands along the U.S--Mexico border (see Application of Section
4(b)(2) to Department of Homeland Security lands for a detailed
discussion). Thus, no lands owned by the DHS have been designated as
critical habitat.
(1) Lands near Christianitos Creek (Sub-unit 2H). This sub-unit
consisted of approximately 47 (19 ha) of essential habitat on lands
MCAS Camp Pendleton leased to the California Department of Parks and
Recreation. We have excluded this sub-unit (see Application of Section
4(b)(2) National Security to MCAS Camp Pendleton for a detailed
discussion.
Exclusions Due to Economic Impacts Under Section 4(b)(2) of the Act
In the proposed rule, we identified vernal pools in 6 sub-units for
which we proposed critical habitat. In this final rule, we have
conducted benefits analyses and under section 4(b)(2) of the Act and
have determined not to designate critical habitat in these sub-units
for economic impacts. By excluding these 6 units, some or all of the
costs associated with a critical habitat designation in those areas
will be avoided. This regards the following sub-units:
(1) Former MCAS El Toro (Sub-unit 2C). The proposed area of this
sub-unit was approximately 133 ac (54 ha), and contains approximately
14 ac (6 ha) of essential habitat in the final rule. We have excluded
all of this sub-unit (see Application of Section 4(b)(2) Economic
Exclusion to lands on Former MCAS El Toro (Sub-unit 2C) below for a
detailed discussion).
(2) Saddleback Meadows (northern portion of Sub-unit 2D). In the
proposed rule, Sub-unit 2D consisted of approximately 736 ac (298 ha).
We have excluded approximately 57 ac (23 ha) of essential habitat in
the northern portion of sub-unit 2D that occurs within private lands
owned by Saddleback Meadows Residential Development Project and other
private landowners. See Application of Section 4(b)(2) Economic
Exclusion to Saddleback Meadows (portion of Sub-unit 2D) below for a
detailed discussion.
(3) Tijeras Creek (Sub-unit 2E). The proposed area of this sub-unit
was approximately 321 ac (130 ha), and contains approximately 101 ac
(41 ha) of essential habitat in the final rule. We have excluded all of
this sub-unit (see Application of Section 4(b)(2) Economic Exclusion to
lands near Tijeras Creek (Sub-unit 2E) below for a detailed
discussion).
(4) Chiquita Ridge (Sub-unit 2F). The proposed area of this sub-
unit was approximately 489 ac (198 ha), and contains approximately 263
ac (106 ha) of essential habitat in the final rule. We have excluded
all of this sub-unit (see Application of Section 4(b)(2) Economic
Exclusion to lands on Chiquita Ridge (Sub-unit 2F) below for a detailed
discussion).
(5) Radio Tower Road (Sub-unit 2G). The proposed area of this sub-
unit was approximately 736 ac (298 ha), and contains approximately 417
ac (169 ha) of essential habitat in the final rule. We have excluded
all of this sub-unit (see Application of Section 4(b)(2) Economic
Exclusion to lands near Radio Tower Road (Sub-unit 2G) below for a
detailed discussion).
(6) Southeastern Otay Mesa (Sub-unit 5C). The proposed area of this
sub-unit was approximately 866 ac (350 ha), and contains approximately
111 ac (45 ha) of essential habitat in the final rule. We have excluded
all of this sub-unit (see Application of Section 4(b)(2) Economic
Exclusion to Southeastern Otay Mesa (Sub-unit 5C) below for a detailed
discussion).
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management considerations
or protection; and (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered or a threatened species to the point
at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have
[[Page 19174]]
features that are ``essential to the conservation of the species.''
Critical habitat designations identify, to the extent known using the
best scientific and commercial data available, habitat areas that
provide essential life cycle needs of the species (i.e., areas on which
are found the primary constituent elements, as defined at 50 CFR
424.12(b)).
Specific areas within the geographic area occupied by the species
may be included in critical habitat only if the essential features
thereon may require special management or protection. Thus, we do not
include areas where existing management is sufficient to conserve the
species. (As discussed below, such areas may also be excluded from
critical habitat pursuant to section 4(b)(2).)
Our regulations state that, ``The Secretary shall designate as
critical habitat areas outside the geographical area presently occupied
by a species only when a designation limited to its present range would
be inadequate to ensure the conservation of the species'' (50 CFR
424.12(e)). Accordingly, when the best available scientific and
commercial data do not demonstrate that the conservation needs of the
species so require, we will not designate critical habitat in areas
outside the geographic area occupied by the species.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific and commercial data available. They require Service
biologists to the extent consistent with the Act and with the use of
the best scientific and commercial data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat. When determining which areas constitute
critical habitat, a primary source of information is generally the
listing documents for the species. Additional information sources
include the recovery plan for the species, articles in peer-reviewed
journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, or other
unpublished materials and expert opinion or personal knowledge. All
information is used in accordance with the provisions of section 515 of
the Treasury and General Government Appropriations Act for Fiscal Year
2001 (Pub.L. 106-554; H.R. 5658) and the associated Information Quality
Guidelines issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b)(2) of the Act and regulations at 50 CFR
424.12, we are to use the best scientific and commercial data available
to determine areas that contain the physical and biological features
that are essential to the conservation of the Riverside fairy shrimp.
We have reviewed available information that pertains to the habitat
requirements of this species. To accomplish this, we utilized data and
information contained in, but not limited to, the final rule listing
the Riverside fairy shrimp (58 FR 41384, the prior proposed and final
rules designating critical habitat for the Riverside fairy shrimp (69
FR 23024, 65 FR 57136, 66 FR 29384), the proposed rule to designate
critical habitat for the San Diego fairy shrimp (68 FR 19888), the
Vernal Pools of Southern California Final Recovery Plan (Recovery Plan;
Service 1998), research and survey observations published in peer-
reviewed scientific journals, maps from the regional Geographic
Information System (GIS) database with vegetation and species coverages
(including vegetation layers for Orange and San Diego counties), the
California Natural Diversity Database (CNDDB), the California Vernal
Pool Assessment Preliminary Report (Keeler-Wolf et al. 1998), vernal
pool mapping and other data collected for the development of HCPs,
reports submitted by biologists holding section 10(a)(1)(A) recovery
permits, biological assessments provided to us through section 7
consultations, reports from site investigations on MCB Camp Pendleton
and MCAS Miramar, site visit reports by staff biologists, reports and
documents on file in the Service's field offices, and communications
with experts outside the Service who have extensive knowledge of vernal
pool species and habitats. In addition, we used information contained
in comments received by May 27, 2004 which were submitted on the
proposed critical habitat designation (69 FR 23024) and comments
received by November 18, 2004 submitted on the draft economic analysis
(69 FR 61461).
Based on a compilation of information listed above on the known
occurrences of Riverside fairy shrimp, we created maps indicating the
habitat associated with each of the occurrences. The habitat units were
delineated using ArcView (Environmental Systems Research Institute,
Inc.), a computer GIS program to evaluate GIS data derived from a
variety of Federal, State, and local agencies, and from private
organizations and individuals. Data layers included current and
historic species occurrence locations (CNDDB 2002); we presumed
occurrences identified in the database to be extant unless there was
affirmative documentation that an occurrence had been extirpated. We
also relied on unpublished species occurrence data contained within our
files, including section 10(a)(1)(A) reports and biological
assessments.
We then evaluated the areas defined by the overlap of the combined
coverages (data layers) to initially focus on those areas which provide
those physical and biological features essential to the conservation of
the Riverside fairy shrimp; i.e., we identified and mapped vernal pool
basins and ephemeral wetlands supporting the Riverside fairy shrimp
that contained the primary constituent elements for the species. The
areas were further refined by using satellite imagery, aerial map
coverages,
[[Page 19175]]
elevational modeling data, vegetation/land cover data, and
agricultural/urban land use data to eliminate areas that contained
features such as cultivated agriculture fields, housing developments,
and other areas that are unlikely to contribute to the conservation of
the Riverside fairy shrimp.
Next, the upslope areas, located immediately surrounding the vernal
pool basins and ephemeral wetlands, areas that also contained the
primary constituent elements for the Riverside fairy shrimp were mapped
based on topographic features such as ridges, mima mounds, and
elevational gradients or slopes. The boundaries for these areas were
further refined and delineated by mapping those areas that sloped
toward the pools, from highest point to highest point in the immediate
surrounding upland areas, following the map's topographic elevational
gradient around the high points (peaks), to the sides and the lowest
part of the basin that encompassed the complex of vernal pools, keeping
within the boundaries of the previously proposed critical habitat.
Those areas that the topographic maps showed sloped steeply away from
the pools, or that were developed or altered, such that necessary PCEs
(i.e., water, soil, minerals) could not be transported toward the
vernal pools over such areas, were left outside the refined
delineation. This method was used for vernal pools in both basin and
mesa-type topographic settings.
The combined extent of these mapped areas was defined as the
habitat essential to the survival and recovery of the Riverside fairy
shrimp. Whenever possible, areas not containing the primary constituent
elements, such as developed areas or open water, were not included as
essential habitat. To aid us in this elimination, we used a finer
mapping unit of 100 x 100 m. After creating GIS coverage of the
essential areas, we described the boundaries of the essential areas
using a 100 m 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.
We eliminated areas because: (1) The area is highly degraded and
may not be restorable or, (2) the area is small, highly fragmented, or
isolated, and may provide little or no long-term conservation value. We
also exempted areas under section 4(a)(3) and excluded areas under
section 4(b)(2) of the Act for military, economic or other reasons
where we concluded that such exclusions will not result in the
extinction of the Riverside fairy shrimp (see Exclusion of Critical
Habitat Under Sections 4(a)(3), 3(5)(A) and 4(b)(2) of the Act below).
The specific modifications are described in the Summary of Changes from
the Proposed Rule section of this rule. The remaining essential areas
are the final designation of critical habitat, presented as four
geographically distinct habitat units. The essential areas, an
elaboration on exclusions, and the specific areas designated as
critical habitat are described below.
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 are required to base critical habitat determinations on the
best scientific and commercial data available and to consider those
physical and biological features (primary constituent elements (PCEs))
that are essential to the conservation of the species, and that may
require special management considerations and protection. These
include, but are not limited to: Space for individual and population
growth and for normal behavior; food, water, air, light, minerals, or
other nutritional or physiological requirements; cover or shelter;
sites for breeding, reproduction, and rearing (or development) of
offspring; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
Based on our current knowledge of the life history and ecology of
the Riverside fairy shrimp, the requirements of the habitat to sustain
the essential life history functions of the species, and the ecological
and hydrologic functions of vernal pool complexes, as summarized above
in the Background section, we have determined that the Riverside fairy
shrimp has several primary constituent elements, or PCEs. Its two most
significant PCEs are: (1) Vernal pools, swales, and other ephemeral
wetland features of appropriate sizes and depths that typically become
inundated during winter rains and hold water for sufficient lengths of
time necessary for the Riverside fairy shrimp to complete their life
cycle; and (2) the geographic, topographic, and edaphic features that
support aggregations or systems of hydrologically interconnected pools,
swales, and other ephemeral wetlands and depressions within a matrix of
immediately surrounding upslope areas that together form hydrologically
and ecologically functional units called vernal pool complexes. These
features contribute to the filling and drying of the vernal pool,
maintain suitable periods of pool inundation, and maintain water and
nutrient quality and soil moisture to enable the Riverside fairy shrimp
to carry out their lifecycle.
1. Primary Constituent Element: Vernal Pools, Swales, Other Ephemeral
Wetland Features
Vernal pools provide for space, physiological requirements,
shelter, and reproduction sites for the Riverside fairy shrimp. Vernal
pools provide the necessary soil moisture and aquatic environment
required for cyst hatching, growth, maturation, reproduction, and
dispersal, and the appropriate periods of dry-down for seed and cyst
dormancy, as well as for seed germination of plant species found in the
pool that contribute organic matter and dissolved gasses to the water.
Both the wet and dry phases of the vernal pool help to reduce
competition with strictly terrestrial or strictly aquatic plant or
animal species. The wet phase provides the necessary cues for hatching,
germination, and growth, while the drying phase allows the vernal pool
plants to flower and produce seeds and the vernal pool crustaceans to
mature and produce cysts. We conclude this element is essential to the
conservation of the Riverside fairy shrimp because this species is
ecologically dependent on seasonal fluctuations, such as absence or
presence of water during specific times of the year, and duration of
inundation and the rate of drying of their habitats. The Riverside
fairy shrimp cannot persist in perennial wetlands or wetlands that are
inundated for the majority of the year, nor can they persist without
periodic seasonal inundation.
Vernal pools and other ephemeral wetlands provide space during
their wetted periods for individual and population growth and normal
behavior of vernal pool species by providing still, freshwater habitat
of appropriate depth, duration, temperature, and chemical
characteristics for juvenile and adult vernal pool crustaceans to
hatch, swim, grow, reproduce and behave normally. Vernal pools and
other ephemeral wetlands also provide soil space during both dry and
wetted periods for the maintenance of dormant cyst and seed banks,
which allow populations of vernal pool species to maintain themselves
throughout the unpredictable and highly variable environmental
conditions experienced by their active, non-dormant life history
stages. Vernal pools and other ephemeral wetlands also provide various
physiological requirements for both vernal pool plants and crustaceans.
[[Page 19176]]
For crustaceans they provide water, oxygen, and food such as plankton,
detritus, and rotifers. By drying seasonally, ephemeral wetlands
provide cover or shelter from many aquatic predators and competitors.
Similarly, by undergoing seasonal inundation, these areas provide
shelter for vernal pool species from invading species which would
otherwise out-compete them for space, light, water, or nutrients.
Finally, vernal pool crustaceans require wetted ephemeral wetlands in
which to mate, and both vernal pool crustaceans and vernal pool plants
deposit cysts or eggs in these wetland areas, which must then dry to
allow hatching or germination. Wetted ephemeral wetlands may also tend
to attract waterfowl, which act as important seed and cyst dispersers
(Proctor 1965; Silveira 1998).
2. Primary Constituent Element: Geographic, Topographic, and Edaphic
Features That Support Aggregations of Hydrologically Interconnected
Pools, Swales, and Other Ephemeral Wetlands
The second PCE (the entire vernal pool complex, including the
pools, swales, and associated upslope areas) is essential to maintain
both the aquatic phase and the drying phase of the vernal pool habitat.
Although the Riverside fairy shrimp does not occur in the strictly
upslope areas surrounding vernal pools, they are critically dependent
on these upland areas to maintain the seasonal cycle of ponding and
drying in the ephemeral wetland areas. The hatching of cysts (and the
germination of vernal pool plants) is dependent on the timing and
length of inundation of the vernal pool habitat. The rate of vernal
pool drying, which greatly influences the water chemistry, in turn
directly affecting the life cycle of the Riverside fairy shrimp, is
also largely controlled by interactions between the vernal pool and the
surrounding uplands (Hanes et al. 1990; Hanes and Stromberg 1998). Soil
morphology at the pool basin and on the upslope areas provides the pool
with an impermeable surface or subsurface layer, accumulation of
organic matter, and a unique assemblage of nutrient availability; in
fact, biotic and reduction-oxidation (redox) interactions in the soil
control the turnover of nutrients in the pool (Hobson and Dahlgren
1998). Thus, the biogeochemical environment strongly influences
hydrologic properties and play a critical role in nutrient cycling in
vernal pool ecosystems (Hobson and Dahlgren 1998). Additionally,
upslope areas provide an important (and often primary) source of
detritus, which is a major food source for vernal pool crustaceans and
nutrient source for vernal pool plants. Certain upland and swale areas
may also provide for population growth by channeling flood waters from
overflowing ephemeral wetland areas so that seeds, cysts, or adult
individuals are washed from one such wetland to another. The upslope
areas provide habitat for avian species and other animals known to aide
in the dispersal of vernal pool species (Zedler and Black 1992;
Silveira 1998). The surrounding upslope and swale areas also provide
habitat for pollinator species that may be specifically adapted to some
of the vernal pool plant species (Thorp 1998; Eriksen and Belk 1999),
as well as habitat for waterfowl, amphibians, mammals, or insects, all
of which are important for dispersal of cysts (and seeds, pollen of
vernal pool flora).
The upslope areas immediately surrounding vernal pools are
therefore essential for providing the same physical and biological
factors as are provided by the vernal pools or ephemeral wetland areas.
We have used vernal pool complexes as the basis for determining
populations of vernal pool crustaceans since the species were first
proposed for listing. The genetic characteristics of fairy shrimp, as
well as ecological conditions, such as watershed contiguity, indicate
that populations of these animals are defined by pool complexes rather
than by individual vernal pools (cf. Fugate 1992, 1998; King 1996).
Therefore, the most accurate indication of the distribution and
abundance of the Riverside fairy shrimp is the number of inhabited
vernal pool complexes. Individual vernal pools occupied by the
Riverside fairy shrimp are most appropriately referred to as ``sub-
populations'' (59 FR 48136).
Our use of vernal pool complexes to define populations of the four
listed crustaceans was upheld by the U.S. District Court in post-
listing challenge to the listing (Building Industry Association of
Superior California et al. v. Babbitt et al., CIV 95-0726 PLF). The
July 25, 1997, court decision stated that the plaintiffs were on notice
that the Service would consider vernal pool complexes as a basis for
determining fairy shrimp populations. The court also concluded that the
use of this methodology was neither arbitrary nor capricious. The Court
of Appeals for the D.C. Circuit upheld the district court's decision,
and the Supreme Court has declined to hear the case. Each of the
critical habitat units likely includes some areas that are unoccupied
by the vernal pool crustaceans. ``Unoccupied'' is defined here as an
area that contains no hatched vernal pool crustaceans, and that is
unlikely to contain a viable cyst or seed bank. Determining the
specific areas that the vernal pool crustaceans occupy is difficult
(see Background). Depending on climatic factors and other natural
variations in habitat conditions, the size of the localized area in
which hatched crustaceans appear may fluctuate dramatically from one
year to another. In some years, individuals may be observed throughout
a large area, and in other years they may be observed in a smaller area
or not at all. Because it is logistically difficult to determine how
extensive the cyst or seed bank is at any particular site, and because
hatched Riverside fairy shrimp may or may not be present in all vernal
pools within a site every year, we cannot quantify in any meaningful
way what proportion of each critical habitat unit may actually be
occupied by the vernal pool crustaceans. Therefore, small areas of
currently unoccupied habitat are probably interspersed with areas of
occupied habitat in each unit. The inclusion of unoccupied habitat in
our critical habitat units reflects the dynamic nature of the habitat
and the life history characteristics of the Riverside fairy shrimp.
Unoccupied areas provide areas into which populations might expand,
provide connectivity or linkage between groups of organisms within a
unit, and support populations of vernal pool plant pollinators and cyst
dispersal organisms. Both occupied and unoccupied areas that are
designated as critical habitat are essential to the conservation of the
Riverside fairy shrimp. All of the above described PCEs do not have to
occur simultaneously within a unit for that unit to constitute critical
habitat for the Riverside fairy shrimp.
3. Water Chemistry 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 is dilute with (1)
low to moderate total dissolved solids (mean 77 milligrams per liter
(mg/l) or parts per million (ppm)), (2) low to moderate salinity, (3)
low levels of alkalinity (mean 65 mg/l), and (4) water 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 can tightly regulate their internal
body chemistry in pool environments with varying salinity and
alkalinity (Gonzalez et al. 1996). In a
[[Page 19177]]
laboratory experiment, Riverside fairy shrimp could maintain their
internal levels of salt concentration (Na+) fairly constant
over a wide range of external concentrations (0.5-60 mmol/l\3\), but
they were sensitive to the extremes, with 100 percent mortality
occurring at 100 mmol/l\3\ (2,300 mg/l\3\; Gonzalez et al. 1996).
Although the species could maintain their internal levels of salt
concentration fairly constant over a wide range of external
concentrations (0.5-60 mmol/l\3\), Riverside fairy shrimp could not
survive in laboratory environments where external alkalinity was higher
than 800 to 1,000 mg/l HCO-3.
The Riverside fairy shrimp is found in water temperatures ranging
between 50 and 77 degrees F (10 and 25 degrees C; Hathaway and Simovich
1996). Importantly, studies show that the Riverside fairy shrimp is
sensitive to water temperature (Hathaway and Simovich 1996). After pool
inundation, hatching occurred significantly more rapidly (mean 7 days)
when the temperature was cooler and fluctuated within a range of 41-77
degrees F (5-25 degrees C), and most slowly (mean 25 days) with steady
warm temperature of 77 degrees F (25 degrees C). Furthermore, at cooler
fluctuating temperatures (41-59 degrees F (5-15 degrees C)), the
highest proportion of cysts hatched, over 15 percent, while fewest
cysts hatched (1-3 percent) at a steady higher temperature of 77
degrees F (25 degrees C). In fact, the proportion of cysts hatching
after exposure to a (5-15 C) fluctuating temperature range regime far
exceeded that reached at steady temperature, with cysts exposed to any
steady temperature above 50 (10 degrees C) showing almost no hatching
success (Hathaway and Simovich 1996). Water within pools supporting
fairy shrimp may be clear, but more commonly it is moderately turbid
(Eriksen and Belk 1999).
4. Sites for Breeding, Reproduction and Rearing of Offspring
The Riverside fairy shrimp is restricted to a small sub-set 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 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 ft (1.5-3 m). In the years that Riverside
fairy shrimp successfully reproduce, pools fill for 2 to 3 months and
some pools have been reported to remain 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.
5. 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 on gently sloping areas near the coast, and in
grassland habitats. These areas, located in a region of current
explosive urban expansion, are easily assessable and amenable to
construction. Thus a major factor contributing to the decline of vernal
pool species, including the Riverside fairy shrimp, is mortality and
habitat elimination through human construction and development of
vernal pool areas for a wide variety of purposes. Additionally, vernal
pool areas have been vulnerable to agriculture, cattle grazing, and
off-road vehicle activities. 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 of the few remaining occurrences of Riverside fairy
shrimp is essential for its conservation (Service 1998).
6. Summary of PCEs Essential to the Conservation of the Riverside Fairy
Shrimp
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 three main
primary constituent elements determined essential to the conservation
of Riverside fairy shrimp must have the following characteristics.
A. The first PCE, small to large pools or pool complexes, must have
the appropriate size and volume, local climate, topography, water
temperature, water chemistry, soil conditions, 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 vernal pool conditions necessary to allow for successful
reproduction of Riverside fairy shrimp fall within the following
ranges:
i. Moderate to deep depths ranging from 10 in (25 cm) to 5-10 ft
(1.5-3 m),
ii. Ponding inundation lasting for a minimum length of 2 months up
to 5-8 months or more, 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,
iii. Water temperature that falls within the range of 41 and 77
degrees F (5 and 25 degrees C),
iv. Water chemistry with low total dissolved solids and alkalinity
(means of 77 and 65 parts per million, respectively), and
v. Water pH within a range of 6.4-7.1.
B. The second PCE, the immediately surrounding upslope areas, must
provide:
i. Hydrologic flow to fill the pools and maintain the seasonal
cycle of ponding and drying, at the appropriate rates,
ii. A source of detritus and nutrients,
iii. A source of soil and mineral transport to maintain the
appropriate water chemistry and impermeability of the pool basin, and
iv. Habitat for animals that act as dispersers of cysts and vernal
pool plant seeds or pollen.
The size of the immediately surrounding upslope areas varies
greatly and cannot be generalized and has been assessed for each sub-
unit. Factors that affect the size of the surrounding upslope area
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).
C. The third PCE, the soils in the summit, rim and basin geomorphic
positions, must have a clay component and/or an impermeable surface or
[[Page 19178]]
subsurface layer, and must provide a unique assemblage of available
nutrients and redox conditions known to support vernal pool habitat.
The biogeochemical environment strongly influences hydrologic
properties and play a critical role in nutrient cycling in vernal pool
ecosystems (Hobson and Dahlgren 1998).
Criteria Used To Identify Critical Habitat
Based on the best scientific information available, we are
designating as critical habitat lands that are essential to the
conservation of the Riverside fairy shrimp and contain the PCEs
identified above and require special management considerations or
protection. Both individual vernal pools and vernal pool complexes are
essential for conservation of the Riverside fairy shrimp because of the
limited numbers of remaining vernal pools and their highly localized
distribution (cf. Gilpin and Soule 1986; Lesica and Allendorf 1995;
Lande 1999).
Areas essential to the conservation of the species are those that
are necessary to advance at least one of the following conservation
criteria: (1) The conservation of areas representative of the
geographic distribution of the species. Species that are protected
across their ranges have lower chances of extinction (Soule and
Simberloff 1986; Murphy et al. 1990; Primack 1993; Given 1994; Hunter
1996; Pavlik 1996; Noss et al. 1999; Grosberg 2002). Maintenance of
representative occurrences of the species throughout its geographic
range helps ensure the conservation of regional adaptive differences
and makes the species less susceptible to environmental variation or
negative impacts associated with human disturbances or natural
catastrophic events across the species' entire range at any one time
(Primack 1993; New 1995; Hunter 1996; Helm 1998; Redford and Richter
1999; Rossum et al. 2001; Grosberg 2002). Additionally, the
conservation of the geographic distribution of the species is one of
the physical and biological features we are required to consider under
our regulations (50 CFR 424.13(b)). Accordingly, we considered the
number of occupied areas in each vernal pool region, and determined
whether each occupied area is essential to the conservation of the
species in the region or as a whole.
(2) The conservation of areas representative of the ecological
distribution of the Riverside fairy shrimp. Each of the critical
habitat units is associated with various combinations of soil types,
vernal pool chemistry, geomorphic surfaces (landforms), and vegetation
community associations. Maintaining the full range of varying habitat
types and characteristics for a species is essential because it would
encompass the full extent of the physical and environmental conditions
necessary for the species (Zedler and Ebert 1979; Ikeda and Schlising
1990; Fugate 1992; Gonzales et al. 1996; Fugate 1998; Platenkamp 1998;
Bainbridge 2002; Noss et al. 2002a). Vernal pool species are extremely
adapted to the physical and chemical characteristics of the habitat in
which they occur. Additionally, the conservation of the ecological
distribution of the species is one of the physical and biological
features we are required to consider under our regulations 50 CFR
424.13(b), and was also strongly endorsed by several peer reviewers
(see Peer Review section). Accordingly, we considered the extent to
which habitat types occupied by the species could be conserved in light
of the number of occupied areas and the threats involved.
(3) The conservation of areas necessary to allow movement of cysts
between areas representative of the geographic and ecological
distribution of the species. As a result of dispersal events within and
between vernal pool complexes, and environmental conditions that may
prevent the emergence of dormant cysts for up to several decades, the
presence of vernal pool species is dynamic in both space and time
(Eriksen and Belk 1999; Noss et al. 2002a). We therefore determined
that essential habitat for the Riverside fairy shrimp must provide for
movement within and between vernal pool complexes to provide for the
varying nature and expression of the species, and also allow for gene
flow and dispersal and habitat availability that accommodate natural
processes of local extirpation and colonization over time (Stacey and
Taper 1992; Falk et al. 1996; Davies et al. 1997; Husband and Barrett
1998; Holt and Keitt 2000; Keymer et al. 2000; Donaldson et al. 2002).
We therefore selected vernal pool complexes occupied by the
Riverside fairy shrimp in a distribution sufficient to ensure the known
geographic range, geographical isolation, and likely genetic diversity
of the species. Map Unit 1 represents the northern extreme of the
distribution and Map Unit 4 represents the southern extreme of the
distribution. Each of these isolated occurrences is greater than 10 mi
(16 km) from other known Riverside fairy shrimp locations. We also
selected vernal pools occupied by Riverside fairy shrimp to ensure that
the density and localized distribution of vernal pools occurs within a
variety of different habitat types. Map Unit 2 represents the last
known vernal pools in Orange County, and they are within 5 mi (8 km) of
each other and include pool habitats not associated with mima mound
vernal pools complexes.
Section 10(a)(1)(B) of the Act authorizes us to issue permits for
the take of listed species incidental to otherwise lawful activities.
An incidental take permit application must be supported by a habitat
conservation plan (HCP) that identifies conservation measures that the
permittee agrees to implement for the species to minimize and mitigate
the impacts of the requested incidental take. We often exclude non-
Federal public lands and private lands that are covered by an existing
operative HCP and executed implementation agreement under section
10(a)(1)(B) of the Act from designated critical habitat because the
benefits of exclusion outweigh the benefits of inclusion as discussed
in section 4(b)(2) of the Act.
When defining critical habitat boundaries, we made every effort to
exclude all developed areas, such as buildings, paved areas, and other
lands unlikely to contain primary constituent elements essential for
the Riverside fairy shrimp conservation. Any such structures remaining
inside of final critical habitat boundaries are not considered part of
the units. This also applies to the lands directly on which such
structures lie. A brief discussion of each area designated as critical
habitat is provided in the unit descriptions below. Additional detailed
documentation concerning the essential nature of these areas is
contained in our supporting record for this rulemaking.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be essential for conservation may require special
management considerations or protections. 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 evaluate lands defined by
those features to assess whether they may require special management
considerations or protection.
The areas designated as critical habitat in this final rule face
ongoing threats that will require special
[[Page 19179]]
management considerations or protection. These threats are common to
all of the areas designated as critical habitat. The threats that
require special management considerations or protection are vernal pool
elimination due to destruction and development, alterations made to the
hydrologic or soil regime of the vernal pools and their associated
upslope areas; disturbance to the claypan and hardpan soils within the
vernal pools, disturbance or destruction of the vernal pool flora; and
the invasion of exotic plant and animal species into the vernal pool
basin. Habitat loss continues to be the greatest direct threat to
Riverside fairy shrimp.
Changes in hydrology which affect the Riverside fairy shrimp's
primary constituent elements are caused by activities that alter the
surrounding topography or change historical water flow patterns in the
watershed. Even slight alterations of the hydrology can change the
depth, volume and duration of ponding inundation, water temperature,
soil, mineral and organic matter transport to the pool and thus its
water quality and chemistry, which in turn can make these primary
constituent elements 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) or of their immediately surrounding upslope areas.
Impacts to the hydrology of vernal pools can be managed through
avoidance of such activities in and around the pools and the associated
surrounding upslope areas.
Disturbance to the impermeable layer of claypan and hardpan soils
within vernal pools occupied by the Riverside fairy shrimp may alter
the depth, ponding inundation, water temperature, and water chemistry.
Physical disturbances to claypan and hardpan soils may be caused by
excavation of borrow material, off-road vehicles, military training
activities, agricultural disking, drilling, or creation of berms that
obstruct the natural hydrological surface or sub-surface flow of water
run-off and precipitation. These impacts can be reduced by avoidance of
vernal pools.
Invasive plant and animal species may alter the ponding inundation
and water temperature by changing the evaporation rate and shading of
standing water in vernal pools. Invasive plant species, such as brass-
buttons (Cotula coronopifolia) and Pacific bentgrass (Agrostis
avenaceae), compete with native vernal plant species and may alter the
primary constituent elements in these vernal pools. Invasive plants
need to be removed and managed to maintain the primary constituent
elements needed by the Riverside fairy shrimp in a manner consistent
with the conservation of native vernal pool plants.
Critical Habitat Designation
We are designating four units (5 sub-units) as critical habitat for
the Riverside fairy shrimp. The critical habitat areas described below
constitute our best assessment at this time of the areas essential for
the conservation and provide one or more of the primary constituent
elements essential to the species of the Riverside fairy shrimp, and
that may require special management. The four map units designated as
critical habitat include Riverside fairy shrimp habitat within the
species' range in the United States, and are referred to by the
following geographic names: (Map Unit 1) Ventura County, (Map Unit 2)
Orange County, (Map Unit 3) North San Diego County coastal area, and
(Map Unit 4) South San Diego County, Otay Mesa. An overview of the
regional units that are designated as critical habitat in this final
rule, with the proposed and final sub-unit sizes, are shown in Table 1.
Other lands have not been designated critical habitat for the Riverside
fairy shrimp because they do not meet the definition of critical
habitat under section 3(5)(A), or, although essential, have been
exempted under section 4(a)(3) and excluded under section 4(b)(2) of
the Act (see Table 2). For a summary of the approximate total critical
habitat area designated by county and land ownership, and a summary of
the areas of land encompassed by HCPs and NCCPs, see Tables 3 and 4.
Critical habitat units and areas designated for the Riverside fairy
shrimp. Also shown are proposed units which were exempted or excluded
from the final designation.
Table 1
----------------------------------------------------------------------------------------------------------------
Ac (ha) proposed Essential habitat
Critical Habitat Unit Sub-unit number: rule (April 28, Ac (ha) final Designated Ac
proposed rule 2004) rule (ha) final rule
----------------------------------------------------------------------------------------------------------------
Ventura County, land in City of 1A 74 (30) 47 (19) 47 (19)
Moorpark Greenbelt, north Tierra
Rejada Valley.
Ventura County, land south Tierra 1B 437 (177) 185 (75) 185 (75)
Rejada Valley.
Ventura County, land on Cruzan 1C 534 (216) 0 0
Mesa.
Los Angeles County, Los Angeles 2A 103 (42) 0 0
Basin--Orange Management Area, 2B
land at LAX.
Orange County, land within former 2C 133 (54) 14 (6) 0
MCAS El Toro.
Orange County, land near O'Neill 2D 736 (298) 49 (20) 49 (20)
Regional Park.
Orange County, land near Tijeras, 2E 321 (130) 101 (41) 0
Mission Viejo.
Orange County, Rancho Mission 2F 489 (198) 263 (106) 0
Viejo, land on Chiquita Ridge.
Orange County, Rancho Mission 2G 736 (298) 417 (169) 0
Viejo, land near Radio Tower
Road.
North San Diego County, State- 2H 566 (229) 47 (19) 0
leased land, Christianitos Creek
foothills.
Riverside County, lands on March 3A 44 (18) 101 (41) 0
ARB. 3B 101 (41)
North coastal San Diego County, 4A 254 (103) 226 (91) 0
land on MCB Camp Pendleton. 4B
North coastal San Diego County, 4C 143 (58) 22 (9) 22 (9)
Carlsbad HCP, land near
Poinsettia Lane Commuter Station.
South San Diego County, land on 5A 61 (25) 3 (1) 3 (1)
western Otay Mesa Sweetwater
Union High School District lands.
South San Diego County, 5B 194 (79) 147 (59) 0
southwestern Otay Mesa, federal
lands adjacent to the U.S.--
Mexico border.
South San Diego County, 5C 866 (350) 111 (45) 0
southeastern Otay Mesa, land
adjacent to the U.S.-Mexico
border.
[[Page 19180]]
Total area designated in .................. .................. .................. 306 (124)
final rule.
----------------------------------------------------------------------------------------------------------------
Total size of areas designated as critical habitat or as essential
to the conservation of the Riverside fairy shrimp, and areas excluded
from the final designation.
Table 2
------------------------------------------------------------------------
------------------------------------------------------------------------
Area determined to be essential to the 13,913 ac
conservation of the Riverside fairy shrimp. (5,630 ha)
Essential area exempted pursuant to section 3,053 ac
4(a)(3) of the Act due to an INRMP that (1,236 ha)
benefits Riverside fairy shrimp: San Diego
County, MCAS Miramar and MCB Camp Pendleton
(Sub-units 4A and 4B).
Essential area excluded pursuant to section 9,354 ac
4(b)(2) of the Act: Completed and pending HCPs (3,785 ha)
in San Diego MSCP, Orange County Central-
Coastal NCCP and Western Riverside County
MSHCP: Northern San Diego County, Carlsbad HCP
(portion of Sub-unit 3A).
Essential area excluded pursuant to section 295 ac
4(b)(2) of the Act: Impacts to national (119 ha)
security on Department of Defense lands:
Riverside County, March Air Reserve Base (Sub-
unit 3B); San Diego County (Otay Mesa Sub-unit
5B; portion of Sub-unit 5C); San Onofre State
Park.
Essential area excluded pursuant to section 295
4(b)(2) of the Act: Impacts to Economy on (119)
privately-owned lands within Sub-units 2C
(former MCAS El Toro), 2D (Saddleback Meadows
portion), 2E (Tijeras Creek), 2F (Chiquita
Ridge), 2G (Radio Tower Road), 5C (Southeastern
Otay Mesa).
Designated Critical Habitat..................... 306 ac
(124 ha)
------------------------------------------------------------------------
Approximate designated critical habitat area (ha (ac)) by County
and land ownership. Estimates reflect the total area within critical
habitat unit boundaries.
Table 3
----------------------------------------------------------------------------------------------------------------
County Federal* Local/State Private Total
----------------------------------------------------------------------------------------------------------------
Ventura........................... 0 ac 0 ac 232 ac 232 ac
(94 ha) (94 ha)
Orange............................ 0 ac 39 ac 10 ac 49 ac
(16 ha) (4 ha) (20 ha)
San Diego......................... 0 ac 25 ac 0 ac 25 ac
(10 ha) (10 ha)
Total......................... 0 ac 64 ac 242 ac 306 ac
(26 ha) (98 ha) (124 ha)
----------------------------------------------------------------------------------------------------------------
* Federal lands include Department of Defense, U.S. Forest Service, and other Federal land.
Habitat Conservation Plans (HCPs) and Natural Communities
Conservation Program (NCCP) areas within the general area of the
designated critical habitat.
Table 4
------------------------------------------------------------------------
NCCP/HCP Planning area Preserve area
------------------------------------------------------------------------
San Diego Multiple Species 582,000 ac 171,000 ac
Conservation Program (MSCP). (236,000 ha) (69,573 ha)
Central-Coastal Orange County 208,713 ac 38,738 ac
NCCP/HCP. (84,463 ha) (15,677 ha)
Proposed Northwestern San 111,908 ac 19,928 ac
Diego Multiple Habitat (45,287 ha) (8,064 ha)
Conservation Program (MHCP).
Proposed Southern Sub-region 128,000 ac 14,000 ac
NCCP/HCP Orange County. (51,800 ha) (5,666 ha)
Western Riverside County 1,260,000 ac 153,000 ac
Multiple Species Habitat (510,000 ha) (61,919 ha)
Conservation Plan (MSHCP).
------------------------------------------------------------------------
[[Page 19181]]
The critical habitat unit names are based on the county where the
vernal pool complexes occur and their geographic location. For the map
sub-units, we used the names for the vernal pool complexes that are
commonly given in survey reports or development proposals. These
various identifiers allow the public to locate the units in the context
of past vernal pool mapping efforts. Past mapping may not correspond to
current boundaries of critical habitat. Areas proposed for designation
are divided into four different units; we present brief descriptions of
all units, and reasons why they are essential for the conservation of
the Riverside fairy shrimp, below.
Final Unit 1: Tierra Rejada Valley Critical Habitat
Unit 1 contains approximately 1,045 acres. Its habitat sub-regions
include Carlsberg Ranch in Ventura County and Cruzan Mesa in Los
Angeles County. One portion of the Carlsberg Ranch sub-region, on the
edge of the city of Moorpark, has already been largely developed by
Lennar Homes. The southeastern portion, Tierra Rajada, lies between the
cities of Thousand Oaks and Simi Valley, with a substantial portion
falling in Ventura County lands. Cruzan Mesa is on the northeastern
edge of the City of Santa Clarita, and contains a residential
development by Pardee Homes. Unit 1 represents that northernmost
habitat of the RFS habitat.
The vernal pools in this unit (220 ac (89 ha)) lie within the
Transverse Range Management Area. Sub-units 1A and 1B occur in the
Tierra Rajada Valley in Ventura County, California (220 ac (89 ha)),
and represent the currently known northern limit of occupied habitat
for the Riverside fairy shrimp and are among the last remaining vernal
pools in Ventura County known to support this species. The areas that
are designated as critical habitat in Unit 1 provide the primary
constituent elements that support the Riverside fairy shrimp as
described above, relating to the pooling basins, watersheds, underlying
soil substrate and topography. These lands are considered essential to
the conservation of the Riverside fairy shrimp.
The Tierra Rajada Valley Critical Habitat Unit has two sub-units
located on either side of the Tierra Rajada Valley basin, near the city
of Moorpark, west of Simi in Ventura County. The northern Sub-unit 1A
includes portions of land within the City of Moorpark, within the
City's designated ``Area of Interest'' in the Terra Rajada Greenbelt
zone. Thus, this sub-unit lies within an area of land with a formal
agreement by the Cities of Moorpark, Thousand Oaks, and Simi Valley,
and County of Ventura to be preserved for open space and agricultural
uses. Sub-unit 1A contains a large vernal pool in land that was
formerly the Carlsberg Ranch. Development has occurred adjacent to this
vernal pool, but it is now protected from future development. This pool
has been surveyed numerous times, and is characterized as excellent,
with 5-10,000 Riverside fairy shrimp recorded within (CNDDB 1998). Sub-
unit 1B is located less than a mile to the south, just across the
Tierra Rajada valley basin. This sub-unit has not been surveyed for
Riverside fairy shrimp; a number of factors strongly suggest it is
likely to occur there, including:
(a) The biotic and abiotic conditions of the sub-unit (i.e., its
soil type, geology, morphology, local climate, topography, and
occurrence of local vernal pool vegetation, such as California orcutt
grass (Orcuttia californica)),
(b) The topographic conditions of the sub-unit, which are ideally
suited to collect water at the basin center,
(c) The fact that the sub-unit contains several large permanent and
semi-permanent pools within its basin,
(d) The fact that the sub-unit is located less than 1 mi (1,500 m)
from essential habitat where Riverside fairy shrimp occurrence is known
and documented. Because this distance is less than distances between
other known occurrences of Riverside fairy shrimp within the same pool
complex, which can occur as much as 1.1-1.9 mi (2,000-3,000 m) apart,
this pool complex is within the dispersal distance for this species,
(e) The two sub-units are adjoined, on opposite sides, to a large
river basin passing between (the Tierra Rejada Valley river system)
which may have historically connected the two pools, or dispersed cysts
between the two sub-units.
This 74 ha (184 ac) sub-unit contains the primary constituent
elements for Riverside fairy shrimp, and is considered essential
habitat for the species. The above factors strongly support the
likelihood of the species occurring there. This area is currently in
private ownership and we are unaware of any plans to develop this site.
The preservation and management of vernal pools in both sub-units in
the Transverse Range Management Area are also described by the Recovery
Plan as essential for the conservation of the Riverside fairy shrimp.
The occurrences of Riverside fairy shrimp in northern Los Angeles
County and in Ventura County (Unit 1 and proposed Sub-units 2A, 2B)
represent isolated occurrences at the northernmost extent of the
Riverside fairy shrimp's known range. Recent scientific research on
desert fishes, a species group similar to the fairy shrimp group in
that it is non-mobile and restricted within narrow habitat limits, has
found that the risk of extinction among the populations was more
closely correlated to range fragmentation than to the number of
occurrences (Fagan et al. 2004). This emphasizes the importance of
protecting populations of the Riverside fairy shrimp throughout as much
of its known range as possible, to minimize range fragmentation and
thus obtain maximal conservation efficiency.
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 essential areas and, thus, for the species'
long-term conservation (Gilpin and Soul[eacute] 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). Research on
the San Diego fairy shrimp has shown that geographically distinct
populations in various vernal pools are also genetically distinct from
each other, to the extent that individuals within populations may be
identified at the individual vernal pool complex level based on their
genetic make-up (Bohonak 2003). This is likely to be also true of the
Riverside fairy shrimp (Bohonak pers. comm.). The preservation of
genetic diversity can greatly aid future conservation and recovery
efforts of the species populations throughout its range, as well as
provide insight into the evolutionary history of a species. For all of
these reasons, the lands identified in Unit 1 are essential for the
conservation of the Riverside fairy shrimp.
Proposed Unit 2/Final Unit 2: Los Angeles Basin--Orange Management Area
Critical Habitat
In the proposed rule, this unit was comprised of the Los Angeles
Basin--Orange Management Area, Los Angeles and Orange Counties,
California (3,180 ac (1,287 ha)). This area encompassed two distinct
regions where Riverside fairy shrimp are known to occur: in vernal
pools in coastal Los Angeles
[[Page 19182]]
County, and in vernal pools and vernal pool-like ephemeral ponds
located along the foothills of Orange County. These pools are found at
the former MCAS El Toro, O'Neill Regional Park which is east of Tijeras
Creek at the intersection of Antonio Parkway and the FTC-north segment,
and in Rancho Mission Viejo upon Chiquita Ridge and in the Radio Tower
Road area, and on lands leased to the California Department of Parks
and Recreation by Camp Pendleton. 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 MCB 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
ephemeral pond on the former MCAS El Toro is within the boundary of the
Central--Coastal HCP planning area. With the exception of a portion of
habitat on Sub-unit 2D (lands within O'Neill Regional Park), critical
habitat for the Riverside fairy shrimp has been excluded under section
4(b)(2) of the Act.
In the southern end of proposed Sub-unit 2D lies O'Neill Regional
Park, in the vicinity of Trabuco Canyon, where we have determined to
designate approximately 49 ac (20 ha) of habitat considered essential
to the conservation of the Riverside fairy shrimp (Final Unit 2). This
portion of the sub-unit lies at 1,413 ft (431 m), the highest elevation
of the occurrences of Riverside fairy shrimp considered in this
designation. The habitat consists of several vernal pools surrounded by
grassland and coastal sage scrub, and may represent a unique genetic
population for this species (CNDDB 2001). The threats to this area
consist of, among others, proposed development projects (e.g., possible
expansion of a telecommunications facility, and easement for water and
sewer construction). These vernal pools have been included in the
O'Neill Regional Park Resource Management Plan by the County of Orange
(August 1989), which includes efforts to implement restoration and
monitoring plans (for biota species, turbidity, and cattle trespass).
These plans include inspection of the vernal pools within the
determined sensitive ecological area, restoration (planting of native
vernal pool plant species), removal of invasive plants, protection of
the watershed and protection from trampling and other sources of
habitat damage within the vicinity of the vernal pools.
Proposed Unit 3: Western Riverside County
No critical habitat has been designated in the Western Riverside
County Critical Habitat Unit. In accordance with section 4(b)(2) of the
Act, we have excluded lands that are encompassed by the Western
Riverside County MSHCP (see Relationship of Critical Habitat to
Approved Habitat Conservation Plans). We removed from this critical
habitat designation the proposed Sub-unit 3A as the area has been
modified and no longer contains the primary constituent elements for
the Riverside fairy shrimp. We excluded proposed Sub-unit 3B for
national security impacts in accordance with section 4(b)(2) of the Act
(see Relationship of Critical Habitat to Department of Defense Lands,
and Application of Section 4(b)(2) to March Air Reserve Base (March
ARB)).
Unit 4: Northern Coastal San Diego County Critical Habitat
Proposed Unit 4/Final Unit 3: Northern Coastal San Diego County
Critical Habitat
Approximately 397 ac (161 ha) of habitat were proposed for
designation in San Diego County, and included some of the vernal pools
found on MCB Camp Pendleton as well as the Poinsettia Lane Train
Station vernal pool area in the City of Carlsbad.
The Coastal Northern San Diego County Unit in this final rule
consists of a vernal pool complex located on coastal terraces. This
unit (8 ac (3 ha), map Sub-unit 4C in the proposed rule) is located
along the railroad right-of-way at the Poinsettia Lane Commuter Station
and supports populations of the Riverside fairy shrimp. These
populations represent the last remnant of the historic distribution of
vernal pool on coastal terraces in San Diego County and the
northernmost occurrences of the Riverside fairy shrimp within San Diego
County (not including MCB Camp Pendleton). As a result of coastal
development, the Coastal Northern San Diego County Unit represents the
only remnant of the historic distribution of vernal pools supporting
the Riverside fairy shrimp along the coastal terraces in San Diego
County.
The highly limited distribution and fragmentation of vernal pools
on coastal terraces suggests that these populations may be genetically
distinct from other populations of the Riverside fairy shrimp as
indicated by recent genetic studies that document unique haplotypes
between geographically separated populations of the San Diego fairy
shrimp (Bohonak 2004). This unit provides space for individual and
population growth and reproduction; the soils and surrounding uplands
provide food, water, light, minerals, and other nutritional and
physiological requirements, and represent the historical geographic
distribution of the San Diego fairy shrimp.
The majority of the vernal pool complex along the railroad right-
of-way at the Poinsettia Lane Commuter Station is now in a conservation
easement managed by the California Department of Fish and Game (CDFG).
The lands are owned by the North County Transit District. CDFG is
currently in the process of developing a long-term management plan for
this area to control non-native weeds and maintain the hydrology of the
site. The portion of this vernal pool complex excluded from critical
habitat is part of the North San Diego MHCP. Originally included in the
proposed rule, the Cocklebur Sensitive Area and other areas on or
controlled by MCB Camp Pendleton (proposed map Sub-units 4A and 4B) are
exempted from the final designation of critical habitat for the
Riverside fairy shrimp under section 4(a)(3) of the Act. For more
details, see the sections Relationship of Critical Habitat to
Department of Defense Lands and Relationship of Critical Habitat to
Approved Habitat Conservation Plans below.
Proposed Unit 5/Final Unit 4: South San Diego County Critical Habitat
In the proposed rule, Unit 5 contained 1,120 acres proposed for
designation, all located in the City or County of San Diego. Some of
this land is located in the federally owned area known as Arnie's Point
along the border with Mexico, and most of the remainder is in East Otay
Mesa, an area of major commercial and residential growth. Unit 5 is the
southernmost extent of the Riverside fairy shrimp habitat in the U.S.
The vernal pool complexes in this critical habitat map unit are
located within a Major/Minor Amendment area within the San Diego MSCP.
While these areas are within the San Diego MSCP, Major/Minor Amendment
areas do not currently have approved plans that provide conservation
measures for the Riverside fairy shrimp. The vernal pool complexes in
this unit represent
[[Page 19183]]
the southernmost extent of the Riverside fairy shrimp within the United
States. Pools on Otay Mesa are considered San Diego claypan vernal
pools. The vernal pool complexes in this unit are the only vernal pools
on Huerhuero loam and Linn[eacute] clay loam in this critical habitat
designation. This unit is essential in preserving the genetic diversity
of this species and in maintaining the historic range of this species.
The majority of vernal pool complexes on Otay Mesa have been severely
degraded by numerous activities, including agricultural development,
trash-dumping, and vehicle and human traffic, and many pools have been
destroyed and removed due to industrial development in the area. This
southernmost section is essential to the conservation of the Riverside
fairy shrimp because it maintains the ecological distribution and
genetic diversity of this species. No Department of Homeland Security
lands along the U.S.-Mexico border are designated as critical habitat
in this final rule and we have excluded all other lands within Subunit
5C from critical habitat based on section 4(b)(2) of the Act.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out do
not destroy or adversely modify designated critical habitat. In our
regulations at 50 CFR 402.2, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to: Alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' We are currently reviewing the regulatory definition of
adverse modification in relation to the conservation of the species and
are relying on the statutory provisions of the Act in evaluating the
effects of Federal actions on designated critical habitat, pending
further regulatory guidance.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act 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. We may issue a formal conference
report if requested by a Federal agency. Formal conference reports on
proposed critical habitat contain an opinion that is prepared according
to 50 CFR 402.12, as if critical habitat were designated. We may adopt
the formal conference report as the biological opinion when the
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)). The conservation recommendations in a conference report are
advisory.
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 ensures that their actions do not destroy or adversely
modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we 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 Director believes would avoid 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 re-initiation 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 the Riverside fairy shrimp or
its critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the U.S. Army Corps of Engineers under section 404 of
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or
some other Federal action, including funding (e.g., Federal Highway
Administration or Federal Emergency Management Agency), will also
continue to be subject to the section 7 consultation process. Federal
actions not affecting listed species or critical habitat and actions on
non-Federal and private lands that are not federally funded,
authorized, or permitted are not subject to section 7 consultations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the Riverside
fairy shrimp. Federal activities that, when carried out, may adversely
affect critical habitat for the Riverside fairy shrimp include, but are
not limited to:
(1) Actions that would permanently alter the function of the
underlying claypan or hardpan soil layer to hold and retain water. This
would affect the duration and extent of inundation, water temperature
and chemistry, and other vernal pool features beyond the tolerances of
the Riverside fairy shrimp. Damage or alternation of the claypan or
hardpan soil layer would eliminate the function of this PCE for
providing space for individual and population growth and for normal
behavior; water and physiological requirements; and sites for breeding,
reproduction and rearing of offspring. Actions that could permanently
alter the function of the underlying claypan or hardpan soil layer
include, but are not limited to, grading or earthmoving work that
disrupts or rips into the claypan or
[[Page 19184]]
hardpan soil layer; or and channelizing, mining, dredging, or drilling
into the claypan or hardpan soil layer.
(2) Actions that would permanently reduce the depth of a vernal
pool, and the ability of a vernal pool to pond with water, the duration
and extent of inundation, water temperature and chemistry, and other
vernal pool features beyond the tolerances of the Riverside fairy
shrimp. Reducing the depth of the vernal pool would eliminate the
function of this PCE for providing space for normal behavior and for
individual and population growth, water and physiological requirements,
sites for breeding, reproduction and rearing of offspring, and reduce
the time available for growth and reproduction as it would accelerate
the pool's drying phase. Actions that could permanently reduce the
depth of the vernal pool include, but are not limited to, discharge of
dredged or fill material into vernal pools and erosion of sediments
from fill material, disturbance of soil profile by grading, ditch
digging in and around vernal pools, earthmoving work, OHV use, grazing,
vegetation removal, or construction of roads, culverts, berms or any
other impediment to natural sub-surface or surface hydrological flow
within the watershed for the vernal pools. These activities should be
carefully planned with hydrology studies and monitored because both
increases and decreases to ponding duration can have negative impacts
to the Riverside fairy shrimp's ability to persist.
(3) Actions that would substantially alter vernal pool water
chemistry to exceed the levels discussed in the ``Primary Constituent
Elements'' section. Exceeding these water chemistry parameters would
eliminate the function of this PCE for maintaining the water and
physiological requirements of the vernal pool habitat for the Riverside
fairy shrimp, and beyond the species' tolerances. Actions that could
substantially alter vernal pool water chemistry include, but are not
limited to, erosion from fill material or soils disturbed by grading
within the watershed for the vernal pools, discharge of dredged or fill
material into vernal pools, removal of the clay soils underlying vernal
pools, and release of chemicals or pollutants.
(4) Actions that would substantially alter vernal pool water
temperatures to exceed temperature ranges beyond those discussed in the
``Primary Constituent Elements'' section when juvenile and adult
Riverside fairy shrimp are present. Exceeding these water temperature
parameters would eliminate the function of this PCE for maintaining the
water and physiological requirements of the vernal pool habitat for the
Riverside fairy shrimp, and beyond the specie's tolerances. Actions
that could substantially alter vernal pool water temperature include,
but are not limited to, discharge of heated effluents into the surface
water or by dispersed release (non-point source).
If you have questions regarding whether specific activities will
constitute destruction or adverse modification of critical habitat,
contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see
ADDRESSES section). Requests for copies of the regulations on listed
wildlife and inquiries about prohibitions and permits may be addressed
to the U.S. Fish and Wildlife Service, Endangered Species, 911 N.E.
11th Ave, Portland, OR 97232 (telephone 503/231-2063; facsimile 503/
231-6243).
All lands designated as critical habitat are within the
geographical area occupied by the species and are necessary to preserve
functioning vernal pool habitat for the Riverside fairy shrimp. Federal
agencies already consult with us on activities in areas currently
occupied by the species, or if the species may be affected by the
action, to ensure that their actions do not jeopardize the continued
existence of the species. Thus, we do not anticipate substantial
additional regulatory protection will result from critical habitat
designation, although there may be consultations that result from
Federal actions within critical habitat in the watersheds associated
with vernal pools.
Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of
the Act
Application of Section 4(a)(3) of the Act--Approved and Completed
INRMPs
The Sikes Act Improvements Act of 1997 (Sikes Act) (16 U.S.C. 670a)
requires each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an INRMP by November 17, 2001. An INRMP combines
implementation of the military mission of the installation with
stewardship of its natural resources. Each INRMP includes an assessment
of the ecological needs on the installation, including the need 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 Department of Defense on
the development and implementation of INRMPs for installations with
federally listed species.
Section 318 of the National Defense Authorization Act for Fiscal
Year 2004 (Pub. L. 108-136) amended the Act to address the relationship
of INRMPs to critical habitat by adding a new section 4(a)(3)(B). This
provision prohibits us from designating as critical habitat any lands
or other geographical areas owned or controlled by the DOD, or
designated for its use, that are subject to an INRMP prepared under
section 101 of the Sikes Act (16 U.S.C 670a), if the Secretary of the
Interior determines in writing that such plan provides a benefit to the
species for which critical habitat is proposed for designation.
In our April 27, 2004 rule, we proposed critical habitat for the
Riverside fairy shrimp for areas containing essential habitat, but not
considered mission-critical at MCB Camp Pendleton. We also considered,
but did not propose, critical habitat for the Riverside fairy shrimp on
mission-essential training areas at MCB Camp Pendleton and at MCAS
Miramar (69 FR 23024). For this final rule, we re-evaluated both our
exclusions and our proposed designations on MCB Camp Pendleton and on
MCAS Miramar based on the completion of their INRMPs, which address the
conservation of the Riverside fairy shrimp. We have therefore exempted
all areas on MCB Camp Pendleton and on MCAS Miramar from the final
critical habitat designation pursuant to section 4(a)(3) of the Act.
Relationship of Critical Habitat to Department of Defense Lands
We received comments regarding the proposed critical habitat
designation and economic impact on Department of Defense lands from the
Navy at MCB Camp Pendleton and the former MCAS El Toro, and from the
Air Force at March ARB. To ensure that the Department of Defense could
comment on the proposed rule and its relationship to section 4(a)(3) of
the Act, as amended, we specifically requested information from the
Department of Defense regarding MCB Camp Pendleton's INRMP to determine
if the INRMP provides a benefit to the Riverside fairy shrimp in the
proposed rule published on April 27, 2004 (69 FR 23024).
Application of Section 4(a)(3) to MCB Camp Pendleton (Sub-Units 4A, B)
Camp Pendleton completed their INRMP in November 2001, which
[[Page 19185]]
includes the following conservation measures for the Riverside fairy
shrimp: (1) Surveys and monitoring, studies, impact avoidance and
minimization, and habitat restoration and enhancement, (2) species
survey information stored in MCB Camp Pendleton's GIS database and
recorded in a resource atlas which is published and updated on a semi-
annual basis, (3) application of a 984 ft (300 m) radius to protect the
micro-watershed buffers around current and historic Riverside fairy
shrimp locations, and (4) use of the resource atlas to plan operations
and projects to avoid impacts to the Riverside fairy shrimp and to
trigger section 7 consultations if an action may affect the species
(R.L. Kelly, in lit. 2003). These measures are established, ongoing
aspects of existing programs and/or Base directives (e.g., Range and
Training Regulations) or measures that will be implemented when the
current section 7 consultation for upland species (Uplands
Consultation), including the Riverside fairy shrimp, is completed.
Camp Pendleton implements Base directives to avoid and minimize
adverse effects to the Riverside fairy shrimp, such as: (1) Bivouac,
command post, and field support activities should be no closer than 984
ft (300 m) to occupied Riverside fairy shrimp habitat year round, (2)
limiting vehicle and equipment operations to existing road and trail
networks year round, and (3) requiring environmental clearance prior to
any soil excavation, filling, or grading. MCB Camp Pendleton has also
demonstrated ongoing funding of their INRMP and management of
endangered and threatened species. In Fiscal Year 2002, MCB Camp
Pendleton spent approximately $1.5 million on the management of
federally listed species. In Fiscal Year 2003, MCB Camp Pendleton
expended over $5 million to fund and implement their INRMP, including
management actions that provided a benefit for the Riverside fairy
shrimp. Moreover, in partnership with the Service, MCB Camp Pendleton
is funding two Service biologists to assist in implementing their Sikes
Act program and buffer lands acquisition initiative.
Based on MCB Camp Pendleton's past funding history for listed
species and their Sikes Act program (including the management of the
Riverside fairy shrimp), we believe there is a high degree of certainty
that MCB Camp Pendleton will implement the INRMP in coordination with
the California Department of Fish and Game and with the Service in a
manner that provides a benefit to the Riverside fairy shrimp. We also
believe that there is a high degree of certainty that the conservation
efforts of their INRMP will be effective. Service biologists work
closely with MCB Camp Pendleton on a variety of endangered and
threatened species issues, including the Riverside fairy shrimp. The
management programs and Base directives to avoid and minimize impacts
to the species' are consistent with current and ongoing section 7
consultations with MCB Camp Pendleton.
We are also in the process of completing a section 7 consultation
for upland species on MCB Camp Pendleton. Vernal pools and associated
species, including the Riverside fairy shrimp, are addressed in the
``Uplands Consultation.'' When this consultation is completed, MCB Camp
Pendleton will incorporate the conservation measures from the
biological opinion into their INRMP. At that time, MCB Camp Pendleton's
INRMP will provide further benefits to the Riverside fairy shrimp.
Therefore, we find that the INRMP for MCB Camp Pendleton provides a
benefit for the Riverside fairy shrimp and are exempting from critical
habitat lands on MCB Camp Pendleton pursuant to section 4(a)(3) of the
Act.
Application of Section 4(a)(3) to MCAS Miramar
We reaffirm our exemption of MCAS Miramar under section 4(a)(3) of
the Act. MCAS Miramar completed a final INRMP in May 2000 that provides
for conservation, management and protection of the Riverside fairy
shrimp. The INRMP is in place and is being implemented. With regard to
the Riverside fairy shrimp, the INRMP classifies nearly all of the
vernal pool basins and watersheds on MCAS Miramar as a Level I
Management Area. A Level I Management Area receives the highest
conservation priority within the INRMP. Preventing damage to vernal
pool resources is the highest conservation priority in MAs with the
Level I designation. The conservation of vernal pool basins and
watersheds in a Level I Management Area is achieved through education
of base personnel, proactive measures to avoid accidental impacts,
including signs and fencing, developing procedures to respond to and
fix accidental impacts on vernal pools, and maintenance of an updated
inventory of vernal pool basins and associated vernal pool watersheds.
Since the completion of MCAS Miramar's INRMP, we have received
reports on their 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. Ongoing programs include a study on
the effects of fire on vernal pool resources, vernal pool mapping and
species surveys, and a study of Pacific bentgrass (Agrostis avenaceae),
an invasive nonnative grass found in some vernal pools on MCAS Miramar.
Based on the value MCAS Miramar's INRMP assigns to vernal pool basins
and watersheds, and the management actions undertaken conserve them, we
find that the INRMP provides a benefit for the Riverside fairy shrimp.
In accordance with section 4(a)(3) of the Act, MCAS Miramar is exempted
from critical habitat designation for the Riverside fairy shrimp.
Application of Section 4(b)(2) of the Act--National Security
Application of Section 4(b)(2) National Security to March Air Reserve
Base (Sub-Unit 3B)
March Air Reserve Base (March ARB) is an Air Force Command
installation that includes runways, hangars, aircraft parking aprons,
taxiways, administrative facilities, billeting facilities, associated
road network, landscape areas, and open areas associated with runway
threshold and lateral clear zones. March ARB hosts the 452nd Air
Mobility Wing and supports an Air National Guard Wing, Headquarters 4th
Air Force, and other military and civilian organizations. The 452nd Air
Mobility Wing is the primary air mobility organization for supporting
the 1st Marine Expeditionary Force for worldwide contingency
operations. The Air National Guard Wing includes the 163d Air Refueling
Wing and 120th Fighter Wing. March ARB also supports the Department of
Homeland Security Riverside Aviation Unit.
(1) Benefits of Inclusion
The primary benefit of designating critical habitat is that Federal
agencies would have to consult with us on projects they carry out,
fund, or authorize to ensure such activities do not adversely modify or
destroy designated critical habitat. Absent the designation of critical
habitat, Federal agencies must still consult with us if they determine
an action may affect a federally listed species to ensure those actions
will not jeopardize the species. We already consult with March ARB on
actions that may affect listed species, including the Riverside fairy
shrimp. Because protection of vernal pool habitat is key to avoiding
jeopardy to the Riverside fairy shrimp, we carefully
[[Page 19186]]
consider the effects on habitat in our evaluation of impacts to the
species.
Another possible benefit of a critical habitat designation is
education of landowners and the public regarding the potential
conservation value of these areas. This may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation values for certain species. However, we believe that
this educational benefit has been achieved, as both the military and
civilian managers and users of the area are fully familiar with the
existence and needs of the shrimp. Therefore, we believe the education
benefits which might arise from a critical habitat designation here
have largely already been generated.
Under the Gifford Pinchot decision, the designation of critical
habitat may provide greater benefits to the recovery of the species
than previously believed. However, at this point, it is not possible to
quantify that benefit.
In summary, we believe that this proposed unit as critical habitat
would provide little additional federal regulatory benefits for the
species. Because the proposed critical habitat is occupied by the
species, there must be consultation with the Service over any action
which might impact it. The additional educational benefits which might
arise from critical habitat designation are accomplished.
(2) Benefits of Exclusion
In contrast to the absence of a significant benefit resulting from
designating critical habitat for the Riverside fairy shrimp at March
ARB, there are substantial benefits to excluding this area from
critical habitat. If critical habitat were to be designated on this
land the Air Force could be compelled to re-initiate consultations with
us under section 7 of the Act on activities that have previously been
reviewed but have not yet been implemented, in order to address whether
the proposed activities may affect designated critical habitat. In
addition, they would be required to consult over possible effects from
future activities on the critical habitat. The additional burden of
initiating and reinitiating consultations could impede the timely
conduct of mission-essential training activities and impair the ability
of the Air Force to fully achieve its mission. Moreover, our final
Economic Analysis has determined that there could be additional costs
of $33 million, including an additional $950,000 for an Environmental
Impact Statement to be completed for March ARB to maintain operations
of its runway and taxiways. A California Air National Guard heavy
equipment unit would require relocation, costing $31.5 million.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion in
Critical Habitat
Because of the relatively limited benefits arising from
designation, we believe the role played in supporting overseas Marine
Corps operations and the related importance to national security of
ensuring March ARB's ability to maintain a high level of military
readiness, and the additional cost impacts identified in our economic
analysis, we believe the benefits of exclusion outweigh the benefits of
inclusion and have excluded this facility pursuant to section 4(b)(2)
of the Act.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these lands will not result in
extinction of the species, as they are considered occupied habitat. Any
actions which might adversely affect the shrimp must undergo a
consultation with the Service under the requirements of section 7 of
the Act. The species is protected from take under section 9 of the Act.
The exclusions leave these protections unchanged. There is accordingly
no reason to believe that these exclusions would result in extinction
of the species.
Leased Lands at Marine Corps Base Camp Pendleton (San Onofre State
Park)--Exclusions Under Section 4(b)(2)
The Marine Corps operates Camp Pendleton as 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 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 leases some of the land at Camp Pendleton to the
State of California for use as San Onofre State Park. In their comments
on the proposed critical habitat for the Riverside fairy shrimp, the
Marines noted the adverse impacts to their training abilities which
they believe have resulted from various environmental laws, with the
Act foremost among these, and provide a study to support their
contention. While their comments and the study focused primarily on
lands currently used for training, and they supported the Service's
stated intent to exempt ``mission-critical'' areas under sections
4(a)(3) or 4(b)(2), they also stated ``simply because some areas of the
Base may not be designated as a range or training area, * * * such
areas should not be presumed to be unimportant or not useful to support
training actions, either today or in the future.'' In the same letter
(Bowdon, May 2004, in litt.) the Commanding General said: ``In
particular, both the Commandant of the Marine Corps and I have
personally expressed deep concerns that the designation of critical
habitat aboard Camp Pendleton would impose long term, cumulative and
detrimental impacts on the capabilities of the base to perform its
military mission, * * *''.
The San Onofre State Park lands are potential training lands that
are not covered by the other exemptions provided to Camp Pendleton
lands, as they are managed by the State and not covered by the base's
INRMP. Based on the comments from the Corps, we are excluding these
lands, consisting of approximately 47 acres, on national security
grounds, so they could be available quickly to the Marines in the event
they were needed for military training.
(1) Benefits of Inclusion
The primary benefit of any critical habitat with regard to
activities that require consultation pursuant to section 7 of the Act
is to ensure that the activity will not destroy or adversely modify
designated critical habitat. However, since this land is managed by the
State of California, it is not open to development and is subject to
the protective laws and regulations applicable to the State Parks. The
educational benefits of critical habitat include informing the Marine
Corps and the State of California of areas that are important to the
conservation of listed species. However, we are confident both are now
aware of this. As long as the land is managed by the State of
California, there is not likely to be a Federal nexus which would
trigger consultation with us should critical habitat be designated.
Therefore, we do not believe that designation of this area as critical
habitat will appreciably benefit the shrimp beyond the protection
already afforded the species under the Act.
(2) Benefits of Exclusion
In contrast to the absence of an appreciable benefit resulting from
designation of these lands as critical habitat, there is a benefit to
excluding them through avoidance of delay should the Corps need the
land for military purposes. The Corps' lease agreement with the State
provides that the land can be reclaimed with a 90-day notice, and
[[Page 19187]]
if urgently needed for military purpose, the reversion might well be
more rapid. However, if the land were designated as critical habitat,
the requirement to consult on activities to be conducted there could
delay and impair the ability of the Marine Corps to conduct effective
training activities and limit Camp Pendleton's utility as a military
training installation. We already have consultations with them under
section 7 on activities related to the presence of the shrimp, as a
result of which we could likely do a consultation related to jeopardy
very quickly. However, there has been no consultation on critical
habitat for the species, and under the new standard for adverse
modification that may result from the Gifford Pinchot decision there is
no reason to believe this could be done quickly.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the current world situation, the Marine Corps' need to
maintain a high level of readiness and fighting capabilities, and the
possible impact on national security if that is obstructed, we believe
the benefits of excluding these lands outweigh the benefits of
including them.
(4) Exclusion Will Not Result in Extinction of the Species
Because the lands are occupied by the species and the Marine Corps
has a statutory duty under section 7 to ensure that its activities do
not jeopardize the continued existence of the shrimp, we find that the
exclusion of these areas will not lead to the extinction of the
Riverside fairy shrimp.
Application of Section 4(b)(2) National Security to U.S. Department of
Homeland Security Lands (Sub-Unit 5B and Portions of 5C)
In our previous (69 FR 23024) rule, we proposed to designate as
critical habitat lands adjacent to the U.S.-Mexico border under the
jurisdiction of the U.S. Department of Homeland Security (DHS), U.S.
Border Patrol, San Diego Sector (Sub-unit 5B, portion of Sub-unit 5C).
The portion of the lands owned by the DHS that are directly adjacent to
the U.S.-Mexico border lands have previously been disturbed and
developed by the ongoing construction of the Border Infrastructure
System (BIS), and those lands within the constructed portion of the
footprint of the BIS do not contain any of the primary constituent
elements for the Riverside fairy shrimp. The BIS is considered integral
to national security, and therefore, lands owned by DHS along the U.S.-
Mexico border have been excluded from the designation under section
4(b)(2) of the Act for national security impacts.
On February 6, 2002, the Service completed a section 7 consultation
with the U.S. Army Corps of Engineers (Corps) and the former
Immigration and Naturalization Service on the effects of closing a gap
in the Border Fence Project's secondary fence at Arnie's Point on three
endangered species occurring there, the Riverside fairy shrimp, San
Diego fairy shrimp, and San Diego button-celery (Eryngium aristulatum
var. parishii; Service 2002). We concluded in our biological opinion
that the proposed action, which includes the loss of a linear vernal
pool occupied by both the Riverside fairy shrimp and San Diego fairy
shrimp, was not likely to jeopardize the continued existence of the
three endangered species. On January 9, 2003, the Service completed a
section 7 consultation with the former Immigration and Naturalization
Service of the effects on the endangered Riverside fairy shrimp and
endangered San Diego fairy shrimp from the construction of a secondary
border fence and other road and fencing improvements in Area II along
the U.S.-Mexico border (Service 2003). We concluded in our biological
opinion that the proposed action, which included the loss of three
vernal pool basins, was not likely to jeopardize the continued
existence of the Riverside fairy shrimp and San Diego fairy shrimp. To
offset losses for fairy shrimp, the DHS has conducted two restoration
projects and has designated some DHS-owned lands located north of the
BIS (at Arnie's Point) as mitigation for completion of the border
system. As part of the proposed actions for these two section 7
consultations, DHS committed to implement a variety of conservation
measures that would restore and create vernal pool habitats and enhance
their watershed, including the commitment to transfer these lands to a
conservation resource agency and/or to protect and conserve the lands
in perpetuity. We have therefore determined to exclude this area, which
contains the remainder of lands within Sub-unit 5B, from the critical
habitat designation according to 4(b)(2) of the Act for national
security.
(1) Benefits of Inclusion
There is minimal benefit from designating critical habitat for the
Riverside fairy shrimp that are already managed for the conservation of
vernal pool habitat. One possible benefit of including these lands as
critical habitat would be to educate the public regarding the
conservation value of these areas and the vernal pool complex they
support. However, critical habitat designation provides little gain in
the way of increased recognition on lands that are expressly managed to
protect and enhance vernal pools for San Diego fairy shrimp. In
addition, the Service has already thoroughly evaluated the impacts of
the BIS project on the Riverside fairy shrimp and its vernal pool
habitat, determined that the project will not jeopardize the continued
existence of the species, and received commitments from INS (now DHS)
for restoration, protection and management of nearby Riverside fairy
shrimp habitat. Therefore, we believe the designation of areas covered
by the project and restoration areas would provide little benefit to
the species.
(2) Benefits of Exclusion
The exclusion of the DHS-owned land within the BIS footprint will
remove any delay in the BIS project occasioned by the need to
reinitiate consultation. Expeditious completion of the BIS project is
vital to our country's national security. Exclusion of the restoration
areas will also remove any regulatory delay associated with completion
of this important habitat restoration project.
(3) Benefits of Exclusion Outweigh Benefits of Inclusion
We conclude that the minimal benefits of designating critical
habitat on the BIS project lands, including the 21.8-ac vernal pool
restoration area, are far outweighed by the substantial benefits to
national security from early completion of this project. Therefore we
are excluding the BIS lands within Sub-unit 5B under section 4(b)(2) of
the Act (see Relationship of Critical Habitat to Approved Habitat
Conservation Plans below). The remaining area within Sub-unit 5B and
some lands within Sub-unit 5C owned by the DHS are within the
constructed BIS footprint and no longer contain any vernal pool habitat
for the Riverside fairy shrimp; those impacts have been offset by the
conservation measures to be implemented by DHS at the 21.8-acre vernal
pool restoration area at Arnie's Point. Thus, the remaining lands
within Sub-unit 5B and some lands within Sub-unit 5C owned by the DHS
are not essential to the conservation of the Riverside fairy shrimp and
are not designated as critical habitat in this final rule. Thus, no
lands owned by the Department of Homeland Security have been designated
as critical habitat.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these lands will not result in
extinction of the
[[Page 19188]]
species, as they are considered occupied habitat. Any actions which
might adversely affect the shrimp, regardless of whether a Federal
nexus is present, must undergo a consultation with the Service under
the requirements of sec. 7 of the Act. The shrimp is protected from
take under section 9. The exclusions leave these protections unchanged
from those which would exist if the excluded areas were designated as
critical habitat. In addition, as discussed above, there are a
substantial number of Habitat Conservation Plans and other active
conservation measures underway for the species, which provide greater
conservation benefits than would result from a designation. There is
accordingly no reason to believe that these exclusions would result in
extinction of the species. Moreover, at Arnie's Point, the DHS is
restoring habitat for the Riverside fairy shrimp and will transfer that
land to a MSCP cooperating agency.
Relationship of Critical Habitat to Economic Impacts--Exclusions Under
Section 4(b)(2) of the Act
This section allows the Secretary to exclude areas from critical
habitat for economic reasons if she determines that the benefits of
such exclusion exceed the benefits of designating the area as critical
habitat, unless the exclusion will result in the extinction of the
species concerned. This is a discretionary authority Congress has
provided to the Secretary with respect to critical habitat. Although
economic and other impacts may not be considered when listing a
species, Congress has expressly required their consideration when
designating critical habitat. Exclusions under this section for non-
economic reasons are addressed above.
In general, we have considered in making the following exclusions
that all of the costs and other impacts predicted in the economic
analysis may not be avoided by excluding the area, due to the fact that
the areas in question are currently occupied by the Riverside fairy
shrimp and there will be requirements for consultation under Section 7
of the Act, or for permits under section 10 (henceforth
``consultation''), for any take of the species, and other protections
for the species exist elsewhere in the Act and under State and local
laws and regulations. In addition, some areas are also occupied by
other listed species and in some cases are designated as critical
habitat for those species. In conducting economic analyses, we are
guided by the 10th Circuit Court of Appeal's ruling in the New Mexico
Cattle Growers Association case (248 F.3d at 1285), which directed us
to consider all impacts, ``regardless of whether those impacts are
attributable co-extensively to other causes.'' As explained in the
analysis, due to possible overlapping regulatory schemes and other
reasons, there are also some elements of the analysis which may
overstate some costs.
Conversely, the 9th Circuit has recently ruled (``Gifford
Pinchot'', 378 F.3d at 1071) that the Service's regulations defining
``adverse modification'' of critical habitat are invalid because they
define adverse modification as affecting both survival and recovery of
a species. The court directed us to consider that adverse modification
should be focused on impacts to recovery. While we have not yet
proposed a new definition for public review and comment, changing the
adverse modification definition to respond to the Court's direction may
result in additional costs associated with critical habitat definitions
(depending upon the outcome of the rulemaking). This issue was not
addressed in the economic analysis for the Riverside fairy shrimp, as
this was well underway at the time the decision was issued and we have
a court-ordered deadline for reaching a final decision, so we cannot
quantify the impacts at this time. However, it is a factor to be
considered in evaluating projections of future economic impacts from
critical habitat.
We recognize that we have excluded a significant portion of the
proposed critical habitat. Congress expressly contemplated that
exclusions under this section might result in such situations when it
enacted the exclusion authority. House Report 95-1625, stated on page
17:
``Factors of recognized or potential importance to human activities
in an area will be considered by the Secretary in deciding whether or
not all or part of that area should be included in the critical habitat
* * * In some situations, no critical habitat would be specified. In
such situations, the Act would still be in force to prevent any taking
or other prohibited act * * *''
We accordingly believe that these exclusions, and the basis upon
which they are made, are fully within the parameters for the use of
section 4(b)(2) set out by Congress.
Application of Section 4(b)(2) Economic Exclusion to Former MCAS El
Toro (Sub-Unit 2C)
We have excluded all of proposed Sub-unit 2C, consisting of
approximately 133 ac (54 ha; with 14 ac (6 ha) of essential habitat) at
the former MCAS El Toro in Orange County, under section 4(b)(2) of the
Act. The analysis which led us to the conclusion that the benefits of
excluding this area exceed the benefits of designating it as critical
habitat, and will not result in the extinction of the species, follows.
(1) Benefits of Inclusion
If these areas were designated as critical habitat, any actions
with a Federal nexus which might adversely modify the critical habitat
would require a consultation with us, as explained above, in the
section of this notice entitled ``Effects of Critical Habitat
Designation.'' However, since the species is present, consultation for
activities which might adversely impact the species, including possibly
significant habitat modification (see definition of ``harm'' at 50 CFR
17.3) would be required even without the critical habitat designation
and without regard to the existence of a Federal nexus.
Another possible benefit of a critical habitat designation is
education of landowners and the public regarding the potential
conservation value of these areas. This may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation values for certain species. However, we believe that
this educational benefit has largely been achieved. As explained above,
this is the 2nd iteration of the critical habitat process for these
lands, which has included both public comment periods and litigation,
all with accompanying publicity. Therefore, we believe the education
benefits which might arise from a critical habitat designation here
have largely already been generated.
In summary, we believe that this proposed unit as critical habitat
would provide little additional Federal regulatory benefits for the
species. Under the Gifford Pinchot decision, critical habitat
designations may provide greater benefits to recovery of a species than
was previously believed, but it is not possible to quantify this at
present. Because the proposed critical habitat is occupied by the
species, there must be consultation with the Service over any action
which might impact it. The additional educational benefits which might
arise from critical habitat designation are largely accomplished
through the multiple notice and comments which accompanied the
development of this regulation, and publicity over the prior
litigation.
[[Page 19189]]
(2) Benefits of Exclusion
The economic analysis conducted for this proposal estimates that
the costs associated with designating this unit of the proposed
critical habitat would be $56.7 million. By excluding this unit, some
or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
We do not believe that the benefits from the designation of
critical habitat for lands we have decided to exclude--a limited
educational benefit and very limited regulatory benefit, which are
largely otherwise provided for, as discussed above--exceed the benefits
of avoiding the potential economic costs which could result from
including those lands in this designation of critical habitat. We also
note that the management plans to acquire land off-site, restore vernal
pools there, relocate the species to these pools, initiate biological
monitoring, and provide for project management.
Designating critical habitat would impose a disincentive for this
type of conservation efforts, and add to the costs. We therefore find
that the benefits of excluding these areas from this designation of
critical habitat outweigh the benefits of including them in the
designation.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these lands will not result in
extinction of the species, as they are considered occupied habitat. Any
actions which might adversely affect the shrimp, regardless of whether
a Federal nexus is present, must undergo a consultation with the
Service under the requirements of section 7 of the Act. The shrimp is
protected from take under section 9. The exclusions leave these
protections unchanged from those which would exist if the excluded
areas were designated as critical habitat. In addition, as discussed
above, there are a substantial number of Habitat Conservation Plans and
other active conservation measures underway for the species, which
provide greater conservation benefits than would result from a
designation. There is accordingly no reason to believe that these
exclusions would result in extinction of the species.
Application of Section 4(b)(2) Economic Exclusion to Saddleback Meadows
and Other Private Lands (Portion of Sub-Unit 2D)
We have excluded the Saddleback Meadows and other private lands
within portion of proposed Sub-unit 2D, consisting of approximately 736
ac (298 ha) with 57 ac (23 ha) of essential habitat near O'Neill
Regional Park, under section 4(b)(2) of the Act. The analysis which led
us to the conclusion that the benefits of excluding this area exceed
the benefits of designating it as critical habitat, and will not result
in the extinction of the species, follows.
(1) Benefits of Inclusion
The areas excluded are currently occupied by the species. If these
areas were designated as critical habitat, any actions with a Federal
nexus which might adversely modify the critical habitat would require a
consultation with us, as explained above, in the section of this notice
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch
as this area is currently occupied by the species, consultation for
activities which might adversely impact the species, including possibly
significant habitat modification (see definition of ``harm'' at 50 CFR
17.3) would be required even without the critical habitat designation
and without regard to the existence of a Federal nexus.
Another possible benefit of a critical habitat designation is
education of landowners and the public regarding the potential
conservation value of these areas. This may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation values for certain species. However, we believe that
this educational benefit has largely been achieved. As explained above,
this is the 2nd iteration of the critical habitat process for these
lands, which has included both public comment periods and litigation,
all with accompanying publicity. Therefore, we believe the education
benefits which might arise from a critical habitat designation here
have largely already been generated.
In summary, we believe that this proposed unit as critical habitat
would provide little additional Federal regulatory benefits for the
species. Under the Gifford Pinchot decision, critical habitat
designations may provide greater benefits to recovery of a species than
was previously believed, but it is not possible to quantify this at
present. Because the proposed critical habitat is occupied by the
species, there must be consultation with the Service over any action
which might impact it. The additional educational benefits which might
arise from critical habitat designation are largely accomplished
through the multiple notice and comments which accompanied the
development of this regulation, and publicity over the prior
litigation.
(2) Benefits of Exclusion
The economic analysis conducted for this proposal estimates that
the costs associated with designating this unit of the proposed
critical habitat would range between over $10 million to nearly $60
million, largely as loss of land value and increased costs to private
landowners. These costs range from $14,000 and $79,000 per acre. The
variability in the impact encompasses a low to high amount of required
set aside acreage that depends on vernal pool site geometry,
requirements of land use regulations, and planned uses of the site. By
excluding this unit, some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
We do not believe that the benefits from the designation of
critical habitat for lands we have decided to exclude--a limited
educational benefit and very limited regulatory benefit, which are
largely otherwise provided for, as discussed above--exceed the benefits
of avoiding the potential economic costs which could result from
including those lands in this designation of critical habitat.
We also believe that excluding these lands, and thus helping
landowners and water users avoid the additional costs that would result
from the designation, will contribute to a more positive climate for
Habitat Conservation Plans and other active conservation measures which
provide greater conservation benefits than would result from
designation of critical habitat--even in the post-Gifford Pinchot
environment--which requires only that the there be no adverse
modification resulting from Federally-related actions. We therefore
find that the benefits of excluding these areas from this designation
of critical habitat outweigh the benefits of including them in the
designation.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these lands will not result in
extinction of the species, as they are considered occupied habitat. Any
actions which might adversely affect the shrimp, regardless of whether
a Federal nexus is present, must undergo a consultation with the
Service under the requirements of section 7 of the Act. The shrimp is
protected from take under section 9. The exclusions leave these
protections unchanged from those which would exist if the excluded
areas were designated as critical habitat. In
[[Page 19190]]
addition, as discussed above, there are a substantial number of Habitat
Conservation Plans and other active conservation measures underway for
the species, which provide greater conservation benefits than would
result from a designation. There is accordingly no reason to believe
that these exclusions would result in extinction of the species.
The Service completed a section 7 consultation with the Corps on
October 26, 2001 on the impacts of the proposed Saddleback Meadows
Residential Development Project (Service 2001). With reference to this
critical habitat designation, the consultation addressed the effects of
proposed residential development project, on the federally endangered
Riverside fairy shrimp and its proposed critical habitat. The project
entails a 283-unit residential development on approximately 128 ac
within the 225 ac Saddleback Meadows site, in the Foothill Trabuco
Specific Plan area of Orange County, and proposed to fill three
unbreached vernal pools, and two breached ponds, of the total nine
pools in the area that are known to contain Riverside fairy shrimp.
Approximately 97 ac of biological open space will be established by the
project, including native habitat restoration on areas of the
surrounding slopes.
In evaluating the management plan that covers 97 ac of biological
open space, we determined that the biological open space area provided
by the proposed Saddleback Meadows Residential Development Project
would be adequately managed, i.e., the plan or agreement would provide
conservation benefits to the species. This is ensured by the following
conservation measures to be implemented as part of the proposed action
to mitigate impacts and minimize potential adverse effects of the
proposed project. These measures include plans to preserve four pools
within the open space area, and to create four ephemeral pools onsite
to which Riverside fairy shrimp would be introduced (using cysts from
impacted vernal pools). Approximately one-fifth of the salvaged soil
and cysts will be placed in storage at the San Diego Zoological
Society's Center for the Reproduction of Endangered Species until the
ponds have met predetermined success criteria. Further, the
implementation of a 10-year fairy shrimp pond creation, maintenance and
monitoring plan includes success criteria for establishing viable fairy
shrimp populations and the hydrology necessary to support them in the
created ponds, and measures to ensure avoidance of irrigation water
entering the vernal pools and ponds. Reasonable assurances that the
management plan will be implemented are provided by the requirement
that the proposed project proponent execute and record an irrevocable
offer to dedicate over 97 ac of biological open space, including
avoided and created pools and their watersheds, accompanied by a
perpetual conservation easement for biological conservation purposes.
Reasonable assurances that the conservation effort will be effective
are given through the Service and Corps-approved plans mentioned above
for perpetual maintenance and monitoring, and the non-wasting endowment
that will be established to finance it. Further, the easement will
state that no other easements, modifications or other activities which
would result in disturbance to the pools or their PCEs would be allowed
within the biological conservation easement area.
In sum, we believe that these conservation measures identified in
the consultation, including the dedication of 97.4 acres of biological
open space (including the avoided and created fairy shrimp ponds and
their watersheds) and the management, maintenance, and monitoring plans
and funding to implement the plans, would provide a conservation
benefit to the Riverside fairy shrimp.
Application of Section 4(b)(2) Economic Exclusion to Lands Near Tijeras
Creek (Proposed Sub-Unit 2E)
We have excluded all of proposed Sub-unit 2E, consisting of
approximately 321 ac (130 ha) with approximately 101 ac (41 ha) of
essential habitat near Tijeras Creek, Mission Viejo, under section
4(b)(2) of the Act. The analysis which led us to the conclusion that
the benefits of excluding this area exceed the benefits of designating
it as critical habitat, and will not result in the extinction of the
species, follows.
(1) Benefits of Inclusion
The areas excluded are currently occupied by the species. If these
areas were designated as critical habitat, any actions with a Federal
nexus which might adversely modify the critical habitat would require a
consultation with us, as explained above, in the section of this notice
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch
as this area is currently occupied by the species, consultation for
activities which might adversely impact the species, including possibly
significant habitat modification (see definition of ``harm'' at 50 CFR
17.3) would be required even without the critical habitat designation
and without regard to the existence of a Federal nexus.
Another possible benefit of a critical habitat designation is
education of landowners and the public regarding the potential
conservation value of these areas. This may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation values for certain species. However, we believe that
this educational benefit has largely been achieved. As explained above,
this is the 2nd iteration of the critical habitat process for these
lands, which has included both public comment periods and litigation,
all with accompanying publicity. Therefore, we believe the education
benefits which might arise from a critical habitat designation here
have largely already been generated.
In summary, we believe that this proposed unit as critical habitat
would provide little additional Federal regulatory benefits for the
species. Under the Gifford Pinchot decision, critical habitat
designations may provide greater benefits to recovery of a species than
was previously believed, but it is not possible to quantify this at
present. Because the proposed critical habitat is occupied by the
species, there must be consultation with the Service over any action
which might impact it. The additional educational benefits which might
arise from critical habitat designation are largely accomplished
through the multiple notice and comments which accompanied the
development of this regulation, and publicity over the prior
litigation.
(2) Benefits of Exclusion
The economic analysis conducted for this proposal estimates that
the costs associated with designating this unit of the proposed
critical habitat would range from over $5 million to over $30 million,
largely as loss of land value and increased costs to private
landowners. These costs could exceed $90,000 per acre. The variability
in the impact encompasses a low to high amount of required set aside
acreage that depends on vernal pool site geometry, requirements of land
use regulations, and planned uses of the site. By excluding this unit,
some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
We do not believe that the benefits from the designation of
critical habitat for lands we have decided to exclude--a limited
educational benefit and very limited regulatory benefit, which are
largely otherwise provided for, as
[[Page 19191]]
discussed above--exceed the benefits of avoiding the potential economic
costs which could result from including those lands in this designation
of critical habitat.
We also believe that excluding these lands, and thus helping
landowners and water users avoid the additional costs that would result
from the designation, will contribute to a more positive climate for
Habitat Conservation Plans and other active conservation measures which
provide greater conservation benefits than would result from
designation of critical habitat--even in the post-Gifford Pinchot
environment--which requires only that the there be no adverse
modification resulting from Federally-related actions. We therefore
find that the benefits of excluding these areas from this designation
of critical habitat outweigh the benefits of including them in the
designation.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these lands will not result in
extinction of the species, as they are considered occupied habitat. Any
actions which might adversely affect the shrimp, regardless of whether
a Federal nexus is present, must undergo a consultation with the
Service under the requirements of section 7 of the Act. The shrimp is
protected from take under section 9. The exclusions leave these
protections unchanged from those which would exist if the excluded
areas were designated as critical habitat. In addition, as discussed
above, there are a substantial number of Habitat Conservation Plans and
other active conservation measures underway for the species, which
provide greater conservation benefits than would result from a
designation. There is accordingly no reason to believe that these
exclusions would result in extinction of the species.
Application of Section 4(b)(2) Economic Exclusion to Chiquita Ridge
(Sub-Unit 2F)
We have excluded all of Sub-unit 2F, consisting of approximately
489 ac (198 ha) and containing approximately 263 ac (106 ha) of
essential habitat near Chiquita Ridge, Mission Viejo, under section
4(b)(2) of the Act. The analysis which led us to the conclusion that
the benefits of excluding this area exceed the benefits of designating
it as critical habitat, and will not result in the extinction of the
species, follows.
(1) Benefits of Inclusion
The areas excluded are currently occupied by the species. If these
areas were designated as critical habitat, any actions with a Federal
nexus which might adversely modify the critical habitat would require a
consultation with us, as explained above, in the section of this notice
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch
as this area is currently occupied by the species, consultation for
activities which might adversely impact the species, including possibly
significant habitat modification (see definition of ``harm'' at 50 CFR
17.3) would be required even without the critical habitat designation
and without regard to the existence of a Federal nexus.
Another possible benefit of a critical habitat designation is
education of landowners and the public regarding the potential
conservation value of these areas. This may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation values for certain species. However, we believe that
this educational benefit has largely been achieved. As explained above,
this is the 2nd iteration of the critical habitat process for these
lands, which has included both public comment periods and litigation,
all with accompanying publicity. Therefore, we believe the education
benefits which might arise from a critical habitat designation here
have largely already been generated.
In summary, we believe that this proposed unit as critical habitat
would provide little additional Federal regulatory benefits for the
species. Under the Gifford Pinchot decision, critical habitat
designations may provide greater benefits to recovery of a species than
was previously believed, but it is not possible to quantify this at
present. Because the proposed critical habitat is occupied by the
species, there must be consultation with the Service over any action
which might impact it. The additional educational benefits which might
arise from critical habitat designation are largely accomplished
through the multiple notice and comments which accompanied the
development of this regulation, and publicity over the prior
litigation.
(2) Benefits of Exclusion
The economic analysis conducted for this proposal estimates that
the costs associated with designating this unit of the proposed
critical habitat would range from nearly $8 million to nearly $45
million, largely as loss of land value and increased costs to private
landowners. These costs range from nearly $16,000 to $89,000 per acre.
The variability in the impact encompasses a low to high amount of
required set aside acreage that depends on vernal pool site geometry,
requirements of land use regulations, and planned uses of the site. By
excluding this unit, some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
We do not believe that the benefits from the designation of
critical habitat for lands we have decided to exclude--a limited
educational benefit and very limited regulatory benefit, which are
largely otherwise provided for, as discussed above--exceed the benefits
of avoiding the potential economic costs which could result from
including those lands in this designation of critical habitat.
We also believe that excluding these lands, and thus helping
landowners and water users avoid the additional costs that would result
from the designation, will contribute to a more positive climate for
Habitat Conservation Plans and other active conservation measures which
provide greater conservation benefits than would result from
designation of critical habitat--even in the post-Gifford Pinchot
environment--which requires only that the there be no adverse
modification resulting from Federally-related actions. We therefore
find that the benefits of excluding these areas from this designation
of critical habitat outweigh the benefits of including them in the
designation.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these lands will not result in
extinction of the species, as they are considered occupied habitat. Any
actions which might adversely affect the shrimp, regardless of whether
a Federal nexus is present, must undergo a consultation with the
Service under the requirements of section 7 of the Act. The shrimp is
protected from take under section 9. The exclusions leave these
protections unchanged from those which would exist if the excluded
areas were designated as critical habitat. In addition, as discussed
above, there are a substantial number of Habitat Conservation Plans and
other active conservation measures underway for the species, which
provide greater conservation benefits than would result from a
designation. There is accordingly no reason to believe that these
exclusions would result in extinction of the species.
[[Page 19192]]
Application of Section 4(b)(2) Economic Exclusion to Lands Near Radio
Tower Road (Sub-Unit 2G)
We have excluded all of Sub-unit 2G, near Radio Tower Road in
Mission Viejo, consisting of approximately 736 ac (298 ha) and
containing approximately 417 ac (169 ha) of essential habitat, under
section 4(b)(2) of the Act. The analysis which led us to the conclusion
that the benefits of excluding this area exceed the benefits of
designating it as critical habitat, and will not result in the
extinction of the species, follows.
(1) Benefits of Inclusion
The areas excluded are currently occupied by the species. If these
areas were designated as critical habitat, any actions with a Federal
nexus which might adversely modify the critical habitat would require a
consultation with us, as explained above, in the section of this notice
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch
as this area is currently occupied by the species, consultation for
activities which might adversely impact the species, including possibly
significant habitat modification (see definition of ``harm'' at 50 CFR
17.3) would be required even without the critical habitat designation
and without regard to the existence of a Federal nexus.
Another possible benefit of a critical habitat designation is
education of landowners and the public regarding the potential
conservation value of these areas. This may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation values for certain species. However, we believe that
this educational benefit has largely been achieved. As explained above,
this is the 2nd iteration of the critical habitat process for these
lands, which has included both public comment periods and litigation,
all with accompanying publicity. Therefore, we believe the education
benefits which might arise from a critical habitat designation here
have largely already been generated.
In summary, we believe that this proposed unit as critical habitat
would provide little additional Federal regulatory benefits for the
species. Under the Gifford Pinchot decision, critical habitat
designations may provide greater benefits to recovery of a species than
was previously believed, but it is not possible to quantify this at
present. Because the proposed critical habitat is occupied by the
species, there must be consultation with the Service over any action
which might impact it. The additional educational benefits which might
arise from critical habitat designation are largely accomplished
through the multiple notice and comments which accompanied the
development of this regulation, and publicity over the prior
litigation.
(2) Benefits of Exclusion
The economic analysis conducted for this proposal estimates that
the costs associated with designating this unit of the proposed
critical habitat would range from $8 million to nearly $45 million,
largely as loss of land value and increased costs to private
landowners. These costs range from $14,000 and $79,000 per acre. The
variability in the impact encompasses a low to high amount of required
set aside acreage that depends on vernal pool site geometry,
requirements of land use regulations, and planned uses of the site. By
excluding this unit, some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
We do not believe that the benefits from the designation of
critical habitat for lands we have decided to exclude--a limited
educational benefit and very limited regulatory benefit, which are
largely otherwise provided for, as discussed above--exceed the benefits
of avoiding the potential economic costs which could result from
including those lands in this designation of critical habitat.
We also believe that excluding these lands, and thus helping
landowners and water users avoid the additional costs that would result
from the designation, will contribute to a more positive climate for
Habitat Conservation Plans and other active conservation measures which
provide greater conservation benefits than would result from
designation of critical habitat--even in the post-Gifford Pinchot
environment--which requires only that there be no adverse modification
resulting from Federally-related actions. We therefore find that the
benefits of excluding these areas from this designation of critical
habitat outweigh the benefits of including them in the designation.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these lands will not result in
extinction of the species, as they are considered occupied habitat. Any
actions which might adversely affect the shrimp, regardless of whether
a Federal nexus is present, must undergo a consultation with the
Service under the requirements of section 7 of the Act. The shrimp is
protected from take under section 9. The exclusions leave these
protections unchanged from those which would exist if the excluded
areas were designated as critical habitat. In addition, as discussed
above, there are a substantial number of Habitat Conservation Plans and
other active conservation measures underway for the species, which
provide greater conservation benefits than would result from a
designation. There is accordingly no reason to believe that these
exclusions would result in extinction of the species.
Application of Section 4(b)(2) Economic Exclusion to Southeastern Otay
Mesa (Sub-Unit 5C)
We have excluded the remainder of Sub-unit 5C, approximately 866 ac
(350 ha), and containing approximately 111 ac (45 ha) of essential
habitat at Otay Mesa, under section 4(b)(2) of the Act. The analysis
which led us to the conclusion that the benefits of excluding this area
exceed the benefits of designating it as critical habitat, and will not
result in the extinction of the species, follows.
(1) Benefits of Inclusion
The areas excluded are currently occupied by the species. If these
areas were designated as critical habitat, any actions with a Federal
nexus which might adversely modify the critical habitat would require a
consultation with us, as explained above, in the section of this notice
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch
as this area is currently occupied by the species, consultation for
activities which might adversely impact the species, including possibly
significant habitat modification (see definition of ``harm'' at 50 CFR
17.3) would be required even without the critical habitat designation
and without regard to the existence of a Federal nexus.
Another possible benefit of a critical habitat designation is
education of landowners and the public regarding the potential
conservation value of these areas. This may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation values for certain species. However, we believe that
this educational benefit has largely been achieved. As explained above,
this is the 2nd iteration of the critical habitat process for these
lands, which has included both public comment periods and litigation,
all with accompanying publicity. Therefore, we believe the education
benefits which might arise
[[Page 19193]]
from a critical habitat designation here have largely already been
generated.
In summary, we believe that this proposed unit as critical habitat
would provide little additional Federal regulatory benefits for the
species. Under the Gifford Pinchot decision, critical habitat
designations may provide greater benefits to recovery of a species than
was previously believed, but it is not possible to quantify this at
present. Because the proposed critical habitat is occupied by the
species, there must be consultation with the Service over any action
which might impact it. The additional educational benefits which might
arise from critical habitat designation are largely accomplished
through the multiple notice and comments which accompanied the
development of this regulation, and publicity over the prior
litigation.
(2) Benefits of Exclusion
The economic analysis conducted for this proposal estimates that
the costs associated with designating this unit of the proposed
critical habitat would range from $5 million to $31 million, largely as
loss of land value and increased costs to private landowners. The
variability in the impact encompasses a low to high amount of required
set aside acreage that depends on vernal pool site geometry,
requirements of land use regulations, and planned uses of the site.
In addition, landowners in this proposed unit have already incurred
approximately $42 million in costs and loss of value as a result of the
listing of the Riverside fairy shrimp. Moreover, the analysis showed
that, given RFS-related conservation activities, San Diego County may
have produced 3,700 fewer housing units, or 4.4 percent of the total
built, over the 12-year time period since listing, and that the level
of supply reductions in San Diego County suggest that the real estate
market and housing prices may have been affected. It found that
additional consumers and producers were and are likely affected by the
changes in price and quantity, and the magnitude of the total impacts
in this instance would surpass the landowner-only cost figures cited
above.
Although the analysis considered all of proposed unit in its
entirety, it seems clear that the economic impacts to landowners will
largely arise from the Sub-unit 5C. Sub-unit 5A (61 ac (25 ha)) is
owned by the Sweetwater Union High School District, and Sub-unit 5B by
the DHS (see Application of Section 4(b)(2) National Security to U.S.
Department of Homeland Security Lands above); real estate development
is not a likely event on either set of lands. By excluding Sub-unit 5C,
we will avoid some or all of these additional costs to those already
incurred by affected landowners. The remaining lands within Subunit 5A
are conserved as part of a section 7 consultation and are not available
for future residential development.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
We do not believe that the benefits from the designation of
critical habitat for lands we have decided to exclude--a limited
educational benefit and very limited regulatory benefit, which are
largely otherwise provided for, as discussed above--exceed the benefits
of avoiding the potential economic costs which could result from
including those lands in this designation of critical habitat.
We also believe that excluding these lands, and thus helping
landowners and water users avoid the additional costs that would result
from the designation, on top of the extensive costs they have already
incurred, will contribute to a more positive climate for Habitat
Conservation Plans and other active conservation measures which provide
greater conservation benefits than would result from designation of
critical habitat--even in the post-Gifford Pinchot environment--which
requires only that the there be no adverse modification resulting from
Federally-related actions. We therefore find that the benefits of
excluding these areas from this designation of critical habitat
outweigh the benefits of including them in the designation.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these lands will not result in
extinction of the species, as they are considered occupied habitat. Any
actions which might adversely affect the shrimp, regardless of whether
a Federal nexus is present, must undergo a consultation with the
Service under the requirements of section 7 of the Act. The shrimp is
protected from take under section 9. The exclusions leave these
protections unchanged from those which would exist if the excluded
areas were designated as critical habitat. In addition, as discussed
above, there are a substantial number of Habitat Conservation Plans and
other active conservation measures underway for the species, which
provide greater conservation benefits than would result from a
designation. There is accordingly no reason to believe that these
exclusions would result in extinction of the species.
Relationship of Critical Habitat to Approved Habitat Conservation Plans
(HCPs)
We have excluded lands within habitat conservation plans under
section 4(b)(2) of the Act. The analysis which led us to the conclusion
that the benefits of excluding this area exceed the benefits of
designating it as critical habitat, and will not result in the
extinction of the species, follows.
(1) Benefits of Inclusion
The areas excluded are currently occupied by the species. If these
areas were designated as critical habitat, any actions with a Federal
nexus which might adversely modify the critical habitat would require a
consultation with us, as explained above, in the section of this notice
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch
as this area is currently occupied by the species, consultation for
activities which might adversely impact the species, including possibly
significant habitat modification (see definition of ``harm'' at 50 CFR
17.3) would be required even without the critical habitat designation
and without regard to the existence of a Federal nexus.
Another possible benefit of a critical habitat designation is
education of landowners and the public regarding the potential
conservation value of these areas. This may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation values for certain species. However, we believe that
this educational benefit has largely been achieved. As explained above,
this is the 2nd iteration of the critical habitat process for these
lands, which has included both public comment periods and litigation,
all with accompanying publicity. Therefore, we believe the education
benefits which might arise from a critical habitat designation here
have largely already been generated.
In summary, we believe that this proposed unit as critical habitat
would provide little additional Federal regulatory benefits for the
species. Under the Gifford Pinchot decision, critical habitat
designations may provide greater benefits to recovery of a species than
was previously believed, but it is not possible to quantify this at
present. Because the proposed critical habitat is occupied by the
species, there must be consultation with the Service over any action
which might impact it. The additional educational benefits which might
arise from critical habitat designation are largely accomplished
through the multiple notice and
[[Page 19194]]
comments which accompanied the development of this regulation, and
publicity over the prior litigation.
(2) Benefits of Exclusion
The economic analysis conducted for this proposal estimates that
the costs associated with designating this unit of the proposed
critical habitat would range from over $5 million to over $30 million,
largely as loss of land value and increased costs to private
landowners. These costs could exceed $90,000 per acre. The variability
in the impact encompasses a low to high amount of required set aside
acreage that depends on vernal pool site geometry, requirements of land
use regulations, and planned uses of the site. By excluding this unit,
some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
We do not believe that the benefits from the designation of
critical habitat for lands we have decided to exclude--a limited
educational benefit and very limited regulatory benefit, which are
largely otherwise provided for, as discussed above--exceed the benefits
of avoiding the potential economic costs which could result from
including those lands in this designation of critical habitat.
We also believe that excluding these lands, and thus helping
landowners and water users avoid the additional costs that would result
from the designation, will contribute to a more positive climate for
Habitat Conservation Plans and other active conservation measures which
provide greater conservation benefits than would result from
designation of critical habitat--even in the post-Gifford Pinchot
environment--which requires only that the there be no adverse
modification resulting from Federally-related actions. We therefore
find that the benefits of excluding these areas from this designation
of critical habitat outweigh the benefits of including them in the
designation.
(4) Exclusion Will Not Result in Extinction of the Species
We believe that exclusion of these lands will not result in
extinction of the species, as they are considered occupied habitat. Any
actions which might adversely affect the shrimp, regardless of whether
a Federal nexus is present, must undergo a consultation with the
Service under the requirements of sec. 7 of the Act. The shrimp is
protected from take under section 9. The exclusions leave these
protections unchanged from those which would exist if the excluded
areas were designated as critical habitat. In addition, as discussed
above, there are a substantial number of Habitat Conservation Plans and
other active conservation measures underway for the species, which
provide greater conservation benefits than would result from a
designation. There is accordingly no reason to believe that these
exclusions would result in extinction of the species.
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, and
determined to be essential to, 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 within the plan's boundaries 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.
In the case of approved regional HCPs (e.g., those sponsored by
cities, counties, or other local jurisdictions) wherein the
conservation of the Riverside fairy shrimp is addressed, a primary goal
is to provide for the protection and management of habitat essential
for the conservation of the Riverside fairy shrimp while directing
development to non-essential 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 regional HCP planning process also enables us to
construct a habitat preserve system that provides for the biological
needs and long-term conservation of the Riverside fairy shrimp.
Completed HCPs and their accompanying Implementation Agreements 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 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).
We believe that in most instances, the benefits of excluding
legally operative HCPs from the critical habitat designations will
outweigh the benefits of including them and would thereby prevent the
extinction of the species. The following represents our rationale for
excluding essential habitat from critical habitat for lands within
approved HCPs.
Orange County Central-Coastal Natural Community Conservation Program/
Habitat Conservation Plan
The Central-Coastal Natural Community Conservation Program/Habitat
Conservation Plan (NCCP/HCP) in Orange County was developed in
cooperation with numerous local and State jurisdictions and agencies
and
[[Page 19195]]
participating landowners, including the cities of Anaheim, Costa Mesa,
Irvine, Orange, San Juan Capistrano, and the Southern California Edison
and 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 Sub-region.
Within the Central-Coastal NCCP/HCP, in the North Ranch Policy Plan
area, Riverside fairy shrimp are known to occur in a natural vernal
pool located on a rock outcropping. The North Ranch Policy Plan area
was excluded from the take authorization provided under the Central-
Coastal NCCP/HCP. However, in 2002, the owner of lands within the North
Ranch Policy Plan area (the Irvine Company), granted a conservation
easement to The Nature Conservancy over the portion of the land where
this vernal pool is located, and provided a $10 million management
endowment. The conservation easement and management endowment provide
special management and protection for the Riverside fairy shrimp.
Therefore, essential habitat within the North Ranch Policy Plan area
and within the other lands covered by the Central-Coastal NCCP/HCP in
Orange County (within Map Unit 2) have been excluded from this final
critical habitat designation based on section 4(b)(2) of the Act.
Western Riverside County Multiple Species Habitat Conservation Plan
The Western Riverside County Multiple Species Habitat Conservation
Plan (MSHCP) was developed over a period of eight years. 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, and Riverside County Waste Department), the California
Department of Parks and Recreation, and the California Department of
Transportation. The Western Riverside County MSHCP is a sub-regional
plan under the State's NCCP and was developed in cooperation with the
California Department of Fish and Game. The MSHCP establishes a multi-
species conservation program to minimize and mitigate the expected loss
of habitat values of ``covered species'' and, with regard to covered
animal species, their incidental take. The intent of the MSHCP is to
provide avoidance, minimization, and mitigation measures for the
impacts of proposed activities on covered species and their habitats.
Within the 1,260,000 ac (510,000 ha) Plan Area of the MSHCP,
approximately 153,000 ac (62,000 ha) of diverse habitats are now being
conserved. The conservation of this large area complements other
existing natural and open space areas (e.g., State Parks, Forest
Service, and County Park lands). Essential habitat for the Riverside
fairy shrimp within the Western Riverside County MSHCP area (within Map
Unit 3) has been excluded from critical habitat pursuant to section
4(b)(2) of the Act.
In Riverside County, there are 7 naturally occurring populations of
Riverside fairy shrimp (in Skunk Hollow Pool, Field Pool, Scott Pool,
Schleuniger Pool, Pechanga Pool, Australia Pool, March Air Reserve
Base, and Banning Complex), one population in created pools (Johnson
Ranch Created Pools), and one population proposed to be relocated into
created pools (Clayton Ranch Proposed Pools), all of which are located
within the Plan Area of the Western Riverside County MSHCP (Service
2004). The pools in Riverside County are significant since they
represent the most inland extent of the species range (Eriksen and Belk
1999). Also, the type locality for the species, which is of taxonomic
significance, was located within Riverside County (Eriksen 1988).
Habitat within Riverside County is ideal for the species. Riverside
County harbors large vernal pools that persist for long periods of
time, allowing this slow-maturing species to reproduce. One of these,
the Skunk Hollow Pool, is the largest valley vernal pool remaining in
all of southern California (Eriksen and Belk 1999).
Within the Plan Area, four occurrences and their watersheds are
protected by existing conservation and management agreements: (1) Skunk
Hollow Pool, (2) Field Pool, (3) seven Johnson Ranch Created Pools, and
(4) two Clayton Ranch Proposed Pools. A fifth occurrence, Schleuniger
Pool, is also protected by existing conservation and management
agreements; however, part of its watershed remains unprotected. Under
the Western Riverside County MSHCP, the Lake Elsinore Back Basin Core
Area will be conserved. The Australia Pool, which is located within
this Core Area, will likely have a minimum buffer of 380 feet to a
buffer greater than 1,000 feet from the edge of the pool (Service
2004). Three known populations of Riverside fairy shrimp are located
outside of the MSHCP Conservation Area including Banning Complex,
Pechanga Pool, and Scott Pool. The Scott Pool has recently been
impacted by disking, several pipeline projects, and the installation of
a telephone pole (Service 2004). The Pechanga Pool has been subject to
cultivation (Eriksen 1988). Impacts to these pools will be avoided and
minimized through implementation of the Riparian/Riverine Areas and
Vernal Pools Policy. Specifically, this policy requires that habitat
for this species be mapped throughout the Plan Area and avoided if
feasible. If avoidance is not feasible, surveys will be conducted and
90 percent of the occupied area determined to have long-term
conservation value for the species will be conserved and managed
(Service 2004).
We anticipate the loss of only 10 percent of occupied Riverside
fairy shrimp habitats determined to have long-term conservation value
for the species. We anticipate that this species will persist in the
remaining 90 percent of occupied habitat with long-term conservation
value for the species, including the 39 percent of the modeled habitat
within both the existing public/quasi-public lands and the Additional
Reserve Lands. The MSHCP will further offset the proposed impacts to
this species through management and monitoring actions within the
Reserve, including the enhancement of historic or vestigial vernal
pools within Core Areas. This enhancement will help offset the impacts
of the action by increasing the quality of the habitat that is
conserved for this species and by allowing the expansion of populations
within the Reserve through the enhancement of historic or vestigial
vernal pools that do not currently provide habitat for the species
(Service 2004). The Western Riverside County MSHCP includes a
significant number of local and State partners. Moreover, the County of
Riverside and the participating jurisdictions have demonstrated their
sustained support for the Western Riverside County MSHCP by the
November 5, 2002 passage of a local bond measure to fund the
acquisition of land in support of the MSHCP. Excluding critical habitat
from the Western Riverside County MSHCP will continue to foster the
close partnerships with the local jurisdictions and the State of
California.
[[Page 19196]]
Northwestern San Diego Multiple Habitat Conservation Plan
The Northwestern San Diego Multiple Habitat Conservation Plan
(MHCP) encompasses approximately 111,939 ac (45,300 ha) and proposes to
establish 19,928 ac (8,064 ha) of preserve lands covering Federal or
State listed, unlisted, and sensitive species, including the Riverside
fairy shrimp. Seven incorporated cities, including Carlsbad, Encinitas,
Escondido, Oceanside, San Marcos, Solana Beach, and Vista are
participants in this regional NCCP/HCP. Under the broad umbrella of the
MHCP, each participating jurisdiction prepares a sub-area plan that
complements the goals of the MHCP. The Service consults on each sub-
area plan under section 7 of the Act to ensure they are consistent with
the aims of the MHCP. For the City of Carlsbad, we approved their sub-
area plan for the MHCP, the Habitat Management Plan (HMP), on November
12, 2004. The Riverside fairy shrimp is one of the species covered
under the City of Carlsbad's HMP and we have determined the plan will
provide for the long-term conservation of the species.
San Diego Multiple Species Conservation Plan
The San Diego Multiple Species Conservation Plan (MSCP) effort
encompasses more than 582,000 ac (236,000 ha) and reflects the
cooperative efforts of the County and City of San Diego, ten additional
city jurisdictions, and several independent special districts, the
State, the building industry, and environmentalists. Over the permit
term, the San Diego MSCP provides for the establishment of
approximately 171,000 ac (69,573 ha) of preserve areas, and provides
conservation benefits for 85 federally listed and sensitive species,
including the Riverside fairy shrimp. Under the broad umbrella of the
San Diego MSCP, each participating jurisdiction prepares a sub-area
plan that implements the goals of the MSCP. The San Diego MSCP and its
approved sub-area plans include measures to conserve known Riverside
fairy shrimp populations on Otay Mesa. The Service consults on each
sub-area plan under section 7 of the Act to ensure they are consistent
with the aims of the San Diego MSCP. Currently, the County of San
Diego, and the Cities of San Diego, La Mesa, Poway, Chula Vista, and
the San Diego Gas and Electric (SDG&E) have approved sub-area plans
under the San Diego MSCP. In addition to other Federal or State listed
species and sensitive species, these sub-area plans provide long-term
conservation for the Riverside fairy shrimp within San Diego County. In
addition, surveys for Riverside fairy shrimp are required in suitable
habitat (i.e., vernal pools, ephemeral wetlands, and seasonally ponded
areas).
The San Diego MSCP provides for avoidance of impacts to vernal pool
habitat for the Riverside fairy shrimp both within and outside of
existing and targeted reserve areas. These lands are to be permanently
maintained and managed for the benefit of the Riverside fairy shrimp
and other covered species. However, ``take'' is not included in the
MSCP 10(a)(1)(B) permit. Thus, the incidental take permits issued to
the City and County of San Diego under this plan do not allow for the
take of Riverside fairy shrimp in natural vernal pool habitat. The
eastern portion of Otay Mesa includes Major and Minor Amendment Areas,
which require a special permitting process. Portions of essential
habitat areas which the SDG&E company uses for their operational and
maintenance activities that are located within the San Diego MSCP in
southwestern San Diego County (Map Units 3 and 4), and within the SDG&E
Sub-regional Plan have been excluded from critical habitat based on
section 4(b)(2) of the Act. This sub-regional plan and the
clarification document (July 2004) defines avoidance, minimization, and
offsetting measures to be implemented by SDG&E for the operations and
maintenance activities and future construction of new facilities and
roads.
Relationship of Critical Habitat to HCPs in Development
There are several HCPs and NCCP/HCPs in development which may
ultimately include the Riverside fairy shrimp as a covered species.
HCPs and NCCP/HCPs currently being developed include various sub-area
plans under the MHCP in northwestern San Diego County, the South Orange
County NCCP/HCP, and the Northern San Diego Multiple Species
Conservation Program (MSCP North). These aforementioned HCPs, all of
which are being prepared in cooperation with the State's NCCP program,
have been determined to be significant planning efforts that will
require the preparation of an Environmental Impact Report and
Environmental Impact Statement, in compliance with the National
Environmental Policy Act (40 CFR 1502.3) and the California
Environmental Quality Act. Further, none of the HCPs under development
have reached a point in their development where conservation measures
for the Riverside fairy shrimp have been adequately identified or their
adequacy determined by the Service.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available and to consider the economic 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 concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on October 19, 2004 (69 FR 61461). We
accepted comments on the draft analysis until November 18, 2004. The
primary purpose of the economic analysis is to estimate the potential
economic impacts associated with the designation of critical habitat
for the Riverside fairy shrimp. This information is intended to assist
the Secretary in making decisions about whether the benefits of
excluding particular areas from the designation outweigh the benefits
of including those areas in the designation.
This economic analysis considers the economic efficiency effects
that may result from the designation, including habitat protections
that may be co-extensive with the listing of the species. It also
addresses distribution of impacts, including an assessment of the
potential effects on small entities and the energy industry. This
information can be used by the Secretary to assess whether the effects
of the designation might unduly burden a particular group or economic
sector. To conduct the analysis, best available data were gathered from
a variety of sources, including regional, city, and county planning
agencies, land developers and conservancies, and project managers,
including those for both preserves and planned developments.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of
[[Page 19197]]
protections are not included in the analysis as they are considered to
be part of the regulatory and policy baseline.
The largest share of economic impacts identified by this analysis
is to real estate development. Given the magnitude of forecast real
estate development impacts in each category of impact, the analysis
performs a screening test for efficiency and distributional effects
that go beyond the impact on the project applicant or landowner only.
That is, where changes in the regional output of housing, for instance,
may be associated with Riverside fairy shrimp-related conservation
activities, consumer and producer impacts for the entire housing market
may exist. The screening test concludes that the amount of housing
potentially removed from the market supply in each county is not a
significant amount of the total supply of new housing. Under these
conditions, significant consumer or producer surplus losses are not
expected. However, for past impacts occurring on lands excluded from
designation, the housing market in both San Diego County may have
experienced reduced output or increased prices as a result of Riverside
fairy shrimp-related conservation activities.
We anticipate no impacts to national security, Tribal lands,
partnerships, or habitat conservation plans resulting from this
critical habitat designation. Our economic analysis indicates an
overall low cost resulting from the designation.
A copy of the final economic analysis with supporting documents are
included in our administrative record and may be obtained by contacting
U.S. Fish and Wildlife Service, Branch of Endangered Species (see
ADDRESSES section), or by downloading it from the Internet at http://carlsbad.fws.gov.
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 will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. As explained above,
we prepared an economic analysis of this action. We used this analysis
to meet the requirement of Section 4(b)(2) of the Act to determine the
economic consequences of designating the specific areas as critical
habitat. We also used it to help determine whether to exclude any area
from critical habitat, as provided for under section 4(b)(2), if we
determine that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless we
determine, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (as amended by the Small
Business Regulatory Enforcement Fairness Act 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. The Small Business Regulatory Enforcement Fairness Act
amended the RFA to require Federal agencies to provide a statement of
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities. The Small
Business Regulatory Enforcement Fairness Act also amended the RFA to
require a certification statement.
Small entities include small organizations, such as independent
non-profit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the Small Business
Regulatory Enforcement Fairness Act does not explicitly define
``substantial number'' or ``significant economic impact.''
Consequently, to assess whether a ``substantial number'' of small
entities is affected by this designation, this analysis considers the
relative number of small entities likely to be impacted in an area. In
some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under Section
7 of the Act on activities they fund, permit, or implement that may
affect Riverside fairy shrimp. Federal agencies also must consult with
us if their activities may affect critical habitat. Designation of
critical habitat, therefore, could result in an additional economic
impact on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities.
The draft economic analysis (September 15, 2004) was based on
acreages from the proposed rule and predicts potential costs of the
proposed designation to small businesses. Based on this analysis, the
number of small land development business affected annually would be
7.1 (0.3 percent of total small businesses) for Los Angeles County, 5.6
(0.5 percent of total small businesses) for Orange County, and 8.0 (0.9
percent of total small businesses) for San Diego County. Over 20 years,
the total impact on small land development businesses ranged from
$3,534,420 to $18,969,901 for Los Angeles County,
[[Page 19198]]
$10,705,409 to $58,439,095 for Orange County, and $2,796,785 to
$15,206,384 for San Diego County. The annual impact on revenue per
affected business per year ranged from $5,000 to $26,700 for Los
Angeles County, $19,000 to $104,700 for Orange County, and $3,500 to
$19,000 for San Diego County. Between 2005-2024, the economic analysis
predicts potential cost from the designation of critical habitat for
the Riverside fairy shrimp on real estate development at Carlsberg
Ranch/Tierra Rajada (Sub-Units 1A and 1B) is $376,000; to public park
improvements at O'Neill Park (Unit 2) is $28,000; to rail construction
at the Poinsettia Lane Train Station (Unit 4) is $28,000; and no
additional economic impact on lands owned by the Sweetwater Union High
School District (Unit 5) because these lands have already been
conserved as an offsetting measure for the development of the Otay Mesa
High School. Based on this data from the proposed rule, and the
additional exclusions of units made in this final rulemaking, we have
determined that this designation would not affect a substantial number
of small land development companies. Further, we have determined that
this designation would also not result in a significant effect to the
annual sales of those small businesses impacted by this designation. As
such, we are certifying that this designation of critical habitat would
not result in a significant economic impact on a substantial number of
small entities.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et
seq.)
Under the Small Business Regulatory Enforcement Fairness Act, this
rule is not a major rule. Our detailed assessment of the economic
effects of this designation is described in the economic analysis.
Based on the effects identified in the economic analysis, we believe
that this rule will not have an annual effect on the economy of $100
million or more, will not cause a major increase in costs or prices for
consumers, and will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. Refer to the final economic analysis for a discussion of
the effects of this determination.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This final rule to
designated critical habitat for the Riverside fairy shrimp is not
expected to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(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; Aid to Families
with Dependent Children (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
onto State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. As such, Small Government Agency Plan is
not required.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with the Department of the Interior and Department
of Commerce policy, we requested information from, and coordinated
development of, this final critical habitat designation with
appropriate State resource agencies in California. 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 Office of the
Solicitor has determined that the rule does not
[[Page 19199]]
unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Endangered Species
Act. This final rule uses standard property descriptions and identifies
the primary constituent elements within the designated 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 new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act (NEPA)
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996). The final environmental assessment is
available upon request from the Carlsbad Fish and Wildlife Office, U.S.
Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad,
California 92009 (telephone 760/431-9440), or on our Web site at http://carlsbad.fws.gov.
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, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis.
Historical records indicate that there were two vernal pools on or
near Tribal lands of the 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 additional survey work would allow a better
documentation of the possible species occurrence. However, at this time
we have insufficient information on the occurrence of the Riverside
fairy shrimp on Tribal lands of the Pechanga Band of Luise[ntilde]o
Indians. Therefore, critical habitat for the Riverside fairy shrimp has
not been designated on Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Carlsbad Fish and Wildlife Office, U.S.
Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad,
California 92009 (telephone 760/431-9440).
Author(s)
The primary author of this package is the Carlsbad Fish and
Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley
Road, Carlsbad, California 92009.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
A Note About Critical Habitat Unit Numbering
A large number of units in the proposed rule have been exempted or
excluded from designation in the final rule. In order to understand the
relationship between sub-unit and unit numbers in the proposed rule
(which have been retained in the preamble of this document), and sub-
unit and unit numbers in the final designation (i.e., in the
Regulations Promulgation portion of this document), we provide the
following crosswalk: Proposed Sub-units 1A and 1B in the proposed rule
and preamble remain as Sub-units 1A and 1B in the Regulations
Promulgation section. Sub-unit 2D in the proposed rule and preamble is
Unit 2 in the Regulations Promulgation section. Sub-unit 4C in the
proposed rule and preamble is Unit 3 in the Regulations Promulgation
section. Sub-unit 5A in the proposed rule and preamble is Unit 4 in the
Regulations Promulgation section.
Regulation Promulgation
0
Accordingly, amend part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.95(h), revise the entry for the Riverside fairy shrimp
(Streptocephalus woottoni) under ``CRUSTACEANS'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) Crustaceans.
* * * * *
Riverside Fairy Shrimp (Streptocephalus woottoni)
(1) Critical habitat units for Ventura, Orange, and San Diego
Counties, California, are depicted on the maps that follow.
(2) Critical habitat consists of vernal pools, vernal pool
complexes, and ephemeral ponds and depressions and their associated
surrounding upslope areas with the soil and hydrologic regimes
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 size and volume, local climate, topography, water
temperature, water chemistry, soil conditions, 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 5-10 ft
(1.5-3 m);
(B) Pool or pond inundation lasting for a minimum of 2 months to 5-
8 months or more, i.e., a sufficient wet period in winter and spring
months to allow the Riverside fairy shrimp to hatch, mature, and
reproduce, followed
[[Page 19200]]
by a dry period prior to the next winter and spring rains;
(1) Water temperatures within the range of 41-77 degrees F (5-25
degrees C);
(2) Water chemistry with low total dissolved solids and alkalinity
(means of 77 and 65 parts per million, respectively); and
(3) Water pH within a range of 6.4-7.1.
(ii) The immediately surrounding upslope area that provides the
pool or pool complex with the following:
(A) Hydrologic flows, both above-ground (sheet flow) and sub-
surface through soil or sediments, to fill the pools and maintain the
seasonal cycle of ponding and drying, at the appropriate rates;
(B) A source of detritus and nutrients;
(C) Sources of soil, ion and mineral transport to the pool or pool
complex to provide and maintain the appropriate water chemistry
conditions and impermeability of the pool basin(s); and
(D) Habitat for animals that act as dispersers of cysts and vernal
pool plant seeds or pollen, as well as habitat for the pollinators of
the vernal pool plants that also form an integral part of the vernal
pool's ecology.
(iii) The size of the immediately surrounding upslope area varies
greatly depending on a number of factors and has been assessed for each
sub-unit. Factors that affect the size of the surrounding upslope area
include surface and sub-surface hydrology, the topography of the area
surrounding the pool or pools, the vegetative coverage, and the soil
and bedrock substrate in the area. The upslope areas designated vary
from a few acres to over 100 ac (40 ha) in size.
(iv) Soils in the summit, rim and basin geomorphic positions with a
clay component and/or an impermeable surface or subsurface layer that
provide a unique assemblage of nutrient availability and redox
conditions known to support vernal pool habitat. The biogeochemical
environment strongly influences hydrologic properties and plays a
critical role in nutrient cycling in vernal pool ecosystems (Hobson and
Dahlgren 1998).
(v) The matrix of vernal pools/ephemeral wetlands, the immediate
upslope areas, 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.
(4) Critical habitat does not include man-made structures existing
on the effective date of this rule and not containing one or more of
the primary constituent elements, such as buildings, aqueducts,
airports, and roads, and the land on which such structures are located.
(5) Data layers defining map units were created on a base of USGS
7.5' quadrangles, and critical habitat units were then mapped using
Universal Transverse Mercator (UTM) coordinates.
(6) Index map of critical habitat units for the Riverside fairy
shrimp follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR12AP05.000
[[Page 19201]]
(7) Unit 1: Ventura County, California.
(i) Sub-unit 1A: City of Moorpark Greenbelt, north Tierra Rejada
Valley from USGS 1:24,000 quadrangle map Simi Valley West. Lands
bounded by the following UTM NAD27 coordinates (E, N): 329000, 3793300;
329400, 3793300; 329400, 3792900; 329300, 3792900; 329300, 3792800;
329000, 3792800; 329000, 3793300.
(ii) Sub-unit 1B: south Tierra Rejada Valley. Lands bounded by the
following UTM NAD27 coordinates (E, N): 330900, 3792500; 331100,
3792500; 331100, 3792300; 331200, 3792300; 331200, 3792200; 331300,
3792200; 331300, 3792100; 331400, 3792100; 331400, 3791400; 331300,
3791400; 331300, 3791500; 331100, 3791500; 331100, 3791400; 331000,
3791400; 331000, 3791300; 330600, 3791300; 330600, 3791900; 330500,
3791900; 330500, 3792000; 330600, 3792000; 330600, 3792100; 330700,
3792100; 330700, 3792300; 330800, 3792300; 330800, 3792400; 330900,
3792400; 330900, 3792500.
(iii) Note: Map of critical habitat Sub-units 1A and 1B for the
Riverside fairy shrimp follows:
[GRAPHIC] [TIFF OMITTED] TR12AP05.001
(8) Unit 2: Orange County, California. From USGS 1:24,000
quadrangle map Santiago Peak.
(i) Unit 2: Land within O'Neill Regional Park. Lands bounded by the
following UTM NAD27 coordinates (E, N): 443400, 3725300; 443900,
3725300; 443900, 3724900; 443800, 3724900; 443800, 3724800; 443600,
3724800; 443600, 3724900; 443500, 3724900; 443500, 3725100; 443400,
3725100; 443400, 3725300.
(ii) Note: Map of critical habitat Unit 2 for the Riverside fairy
shrimp follows:
[[Page 19202]]
[GRAPHIC] [TIFF OMITTED] TR12AP05.002
(9) Unit 3: North San Diego County, San Diego County, California.
From USGS 1:24,000 quadrangle map Encinitas.
(i) Unit 3: Land near Poinsettia Lane Commuter Station, Carlsbad
Lands bounded by the following UTM NAD27 coordinates (E, N): 470100,
3663600; thence east to the North San Diego County Transit (NSDCT)
boundary at UTM NAD27 y-coordinate 3663600; thence south following the
NSDCT boundary to UTM NAD27 x-coordinate 470300; thence south to UTM
NAD27 coordinates 470300, 3663300; thence east to the NSDCT boundary at
UTM NAD27 y-coordinate 3663300; thence southeast following the NSDCT
boundary lands to UTM NAD 27 x-coordinate 470400; thence south
following UTM NAD27 x-coordinate 470400 to the NSDCT boundary; thence
west and south following the NSDCT boundary to UTM NAD27 y-coordinate
3662400; thence west following UTM NAD27 y-coordinate 3662400 to the
NSDCT boundary; thence northwest following the NSDCT boundary to UTM
NAD27 x-coordinate 470400; thence north along UTM NAD27 x-coordinate
470400 to UTM NAD27 coordinates 470400, 3662900; thence west to NSDCT
lands at UTM NAD 27 y-coordinate 3662900; thence northwest following
the NSDCT boundary returning to UTM NAD27 coordinates 470100, 3663600.
(ii) Note: Map of critical habitat Unit 3 for the Riverside fairy
shrimp follows:
[[Page 19203]]
[GRAPHIC] [TIFF OMITTED] TR12AP05.003
(10) Map Unit 4: South San Diego County, San Diego, California.
From USGS 1:24,000 quadrangle map Imperial Beach.
(i) Unit 4: Sweetwater Union High School District lands on Otay
Mesa. Lands bounded by the following UTM NAD27 coordinates (E, N):
498000, 3602800; 498100, 3602800; thence south to the Sweetwater Union
High School District (SUHSD) boundary at UTM NAD27 x-coordinate 498100;
thence west following the SUHSD boundary to UTM NAD27 x-coordinate
498000; thence north following UTM NAD27 x-coordinate 498000 returning
to UTM NAD27 coordinates 498000, 3602800.
(ii) Note: Map of critical habitat Unit 4 for the Riverside fairy
shrimp follows:
[[Page 19204]]
[GRAPHIC] [TIFF OMITTED] TR12AP05.004
* * * * *
Dated: March 31, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-6825 Filed 4-11-05; 8:45 am]
BILLING CODE 4310-55-C