[Federal Register Volume 65, Number 46 (Wednesday, March 8, 2000)]
[Proposed Rules]
[Pages 12181-12201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5413]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AF97
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the San Diego Fairy Shrimp
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose
designation of critical habitat for the San Diego fairy shrimp
(Branchinecta sandiegonensis), pursuant to the Endangered Species Act
of 1973, as amended (Act). We propose designation of critical habitat
within an approximately 14,771-hectare (36,501-acre) area for the San
Diego fairy shrimp in San Diego and Orange Counties.
Critical habitat identifies specific areas that are essential to
the conservation of a listed species, and may require special
management considerations or protection. The primary elements for the
San Diego fairy shrimp are those habitat components that are essential
for the primary biological needs of foraging, sheltering, reproduction,
and dispersal.
If this proposed rule is made final, section 7 of the Act would
prohibit destruction or adverse modification of critical habitat by any
activity funded, authorized, or carried out by any Federal agency.
Section 4 of the Act requires us to consider economic and other impacts
of specifying any particular area as critical habitat. We solicit data
and comments from the public on all aspects of this proposal, including
data on the economic and other impacts of the designation. We may
revise this proposal to incorporate or address new information received
during the comment period.
DATES: We will accept comments from all interested parties until May 8,
2000. Public hearing requests must be received by April 24, 2000.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods.
1. You may submit written comments and information to the Field
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 2730 Loker Avenue West, Carlsbad, California 92008.
2. You may hand-deliver written comments to our Carlsbad Fish and
Wildlife Office, U.S. Fish and Wildlife Service, 2730 Loker Avenue
West, Carlsbad, California.
3. You may send comments by electronic mail (e-mail) to
[email protected]. Please submit comments in ASCII file format and avoid
the use of special characters and encryption. Please include ``Attn:
[RIN number]'' and your name and return address in your e-mail message.
If you do not receive a confirmation from the system that we have
received your e-mail message, contact us directly by calling our
Carlsbad Fish and Wildlife Office at phone number 760/431-9440.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the Carlsbad Fish and Wildlife Office.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and
Wildlife Office at the above address; (telephone 760/431-9440;
facsimile 760/431-5902).
SUPPLEMENTARY INFORMATION:
Background
The San Diego fairy shrimp (Branchinecta sandiegonensis) is a small
aquatic crustacean (Order: Anostraca), restricted to vernal pools
(pools that have water in them for only a portion of any given year) in
coastal southern California and south to northwestern Baja California,
Mexico. It is a habitat specialist found in small, shallow vernal pools
and ephemeral (lasting a short time) basins that range in depth from
approximately 5 to 30 centimeters (2 to 12) inches (Simovich and Fugate
1992; Hathaway and Simovich 1996). Water chemistry is also an important
factor in determining fairy shrimp distribution (Belk 1977; Branchiopod
Research Group 1996; Gonzales et al. 1996), hence, no individuals have
been found in riverine or marine waters. All known localities are below
701 meters (2,300 feet) and are within 64 kilometers (km) (40 miles
(mi)) of the Pacific Ocean.
San Diego fairy shrimp is one of the six groups of fairy shrimp
known as branchinectids that occur in southern California (Simovich and
Fugate 1992). The only other species of Branchinecta in southern
California are the non-listed Lindahl's fairy shrimp (B. lindahli) and
the federally threatened vernal pool fairy shrimp (B. lynchi). Male San
Diego fairy shrimp are distinguished from males of other species of
Branchinecta by differences found at the distal (located far from the
point of attachment) tip of the second antennae. Females are
distinguishable from females of other species of Branchinecta by the
shape and length of the brood sac, and by the presence of paired
dorsolateral (located on the sides, toward the back) spines on five of
the abdominal segments (Fugate 1993).
Mature individuals lack a carapace (hard outer covering of the head
and thorax) and have a delicate elongate body, large stalked compound
eyes, and 11 pairs of swimming legs. They swim or glide gracefully
upside down by means of complex wave-like beating movements of the legs
that pass from front to back. Adult male San Diego fairy shrimp range
in size from 9 to 16 millimeters (mm) (0.35 to 0.63 inches (in.));
adult females are 8 to 14 mm (0.31 to 0.55 in.) long. The second pair
of antennae in males are greatly enlarged and specialized for clasping
the females during copulation, while the second pair of antennae in the
females are cylindrical and elongate. The females carry their eggs in
an oval or elongate ventral brood sac (Eriksen and Belk 1999). Nearly
all species of fairy shrimp feed on algae, bacteria, protozoa,
rotifers, and bits of organic matter (Pennak 1989; Eng et al. 1990).
Adult San Diego fairy shrimp are usually observed from January to
March; however, in years with early or late rainfall, the hatching
period may be extended. The species hatches and matures within 7 days
to 2 weeks depending on water temperature (Hathaway and Simovich 1996;
Simovich and Hathaway 1997). The San Diego fairy shrimp disappear after
about a month, but animals will continue to hatch if subsequent rains
result in additional water or refilling of the vernal pools
(Branchiopod Research Group 1996). The eggs are either dropped to the
pool bottom or remain in the brood sac until the female dies and sinks.
The ``resting'' or ``summer'' eggs are capable of withstanding
temperature extremes and prolonged drying. When the pools refill in the
same or subsequent rainy seasons, some but not
[[Page 12182]]
all of the eggs may hatch. Fairy shrimp egg banks in the soil may be
composed of the eggs from several years of breeding (Donald 1983;
Simovich and Hathaway 1997). Simovich and Hathaway (1997) found that
vernal pools and ephemeral wetlands that support anostracans (i.e., San
Diego fairy shrimp), and occur in areas with variable weather
conditions or filling periods (such as southern California), may hatch
only a fraction of the total cyst (organisms in a resting stage) bank
in any given year. Thus, reproductive success is spread over several
seasons.
Vernal pools have a discontinuous occurrence in several regions of
California (Keeler-Wolf et al. 1995), from as far north as the Modoc
Plateau in Modoc County, south to the international border in San Diego
County. Vernal pools form in regions with Mediterranean climates, where
shallow depressions fill with water during fall and winter rains and
then evaporate in the spring (Collie and Lathrop 1976; Holland 1976,
1988; Holland and Jain 1977, 1988; Thorne 1984; Zedler 1987; Simovich
and Hathaway 1997). In years of high precipitation, overbank flooding
from intermittent streams may augment the amount of water in some
vernal pools (Hanes et al. 1990). Vernal pool studies conducted in the
Sacramento Valley indicate that the contribution of subsurface or
overland flows is significant only in years of high precipitation when
pools are already saturated (Hanes and Stromberg 1996). Downward
percolation of water in vernal pool basins is prevented by the presence
of an impervious subsurface layer, such as a claypan, hardpan, or
volcanic stratum (Holland 1976, 1988).
Researchers have found that vernal pools located in San Diego
County are associated with five soil series types, Huerheuero,
Olivenhain, Placentia, Redding, and Stockpen (Bauder and McMillan
1998). These soil types have a nearly impermeable surface or subsurface
soil layer with a flat or gently sloping topography (Service 1998). Due
to local topography and geology, the pools are usually clustered into
pool complexes (Bauder 1986; Holland and Jain 1988). Pools within a
complex are typically separated by distances on the order of meters,
and may form dense, interconnected mosaics of small pools or a more
sparse scattering of larger pools.
Vernal pool systems are often characterized by different landscape
features including mima mound (miniature mounds) micro-topography,
varied pool basin size and depth, and vernal swales (low tract of
marshy land). Vernal pool complexes that support one too many distinct
vernal pools are often interconnected by a shared watershed. This
habitat heterogeneity (consisting of dissimilar elements or parts)
generally ensures that some between-pool water flow continues.
San Diego County supports the largest number of remaining vernal
pools occupied by the San Diego fairy shrimp. Scientists estimated
that, historically, vernal pool soils covered approximately 208
hectares (ha) (520 acres (ac)) of San Diego County (Bauder and McMillan
1998). Based on available information at the time of listing, we
estimate that fewer than 82 ha (202 ac) of occupied vernal pool habitat
remain in the county, of which an estimated 70 percent occurs on
military lands (Weir and Bauder 1991). Keeler-Wolf et al. (1995)
concluded that the greatest recent losses of vernal pool habitat in San
Diego County have occurred in Mira Mesa, Rancho Penasquitos, and Kearny
Mesa, which accounted for 73 percent of all the pools destroyed in the
region during the 7-year period between 1979 and 1986. Other
substantial losses have occurred in the Otay Mesa area, where over 40
percent of the vernal pools were destroyed between 1979 to 1990.
Similar to San Diego County, vernal pool habitat was once extensive on
the coastal plain of Los Angeles and Orange Counties (R. Mattoni and T.
Longcore, 1998). Unfortunately, there has been a near-total loss of
vernal pool habitat in these areas (Ferren and Pritchett 1988; Keeler-
Wolf et al. 1995).
Urban and water development, flood control, highway and utility
projects, as well as conversion of wildlands to agricultural use, have
eliminated vernal pools and/or their watersheds in southern California
(Jones and Stokes Associates 1987). Changes in hydrologic pattern,
overgrazing, and off-road vehicle use also imperil this aquatic habitat
and the San Diego fairy shrimp. The flora and fauna in vernal pools or
swales can change if the hydrologic regime is altered (Bauder 1986,
1987). Anthropogenic (of 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 San Diego fairy
shrimp, reduce their population sizes or reproductive success, or shift
the location of sites inhabited by this species. The California
Department of Fish and Game's Natural Diversity Data Base ranks the
vernal pool habitat type in priority class G1-S1, which denotes
communities in the State of California that occur over fewer than 809
ha (2,000 ac) globally.
Previous Federal Action
David Hogan, formerly of the San Diego Biodiversity Project in
Julian, California; Dr. Denton Belk of Our Lady of the Lake University
in San Antonio, Texas; and the Biodiversity Legal Foundation petitioned
us to list the San Diego fairy shrimp as an endangered species, in a
letter dated March 16, 1992. We received the petition on March 24,
1992. On August 4, 1994, we published a proposed rule in the Federal
Register (59 FR 39874) to list the San Diego fairy shrimp as an
endangered species. The proposed rule was the first Federal action on
the San Diego fairy shrimp, and also constituted the 12-month petition
finding, as required by section 4(b)(3)(B) of the Act. On February 3,
1997, we published a final rule determining the San Diego fairy shrimp
to be an endangered species (62 FR 4925).
At the time of listing, we concluded that designation of critical
habitat for the San Diego fairy shrimp was not prudent because such
designation would not benefit the species. We were also concerned that
critical habitat designation would likely increase the degree of threat
from vandalism or other human-induced impacts. We were aware of several
instances of apparently intentional habitat destruction that had
occurred during the listing process. However, we have determined that
the threats to this species, and its habitat, from specific instances
of habitat destruction do not outweigh the broader educational and any
potential regulatory and other possible benefits that designation of
critical habitat would provide for this species. A designation of
critical habitat will provide educational benefits by formally
identifying those areas essential to the conservation of the species,
and the areas likely to be the focus of our recovery efforts for the
San Diego fairy shrimp. Therefore, we conclude that the benefits of
designating critical habitat on lands essential for the conservation of
the San Diego fairy shrimp will not increase incidences of vandalism
above current levels for this species.
On October 14, 1998, the Southwest Center for Biological Diversity
filed a lawsuit in Federal District Court for the Southern District of
California for our failure to designate critical habitat for the San
Diego fairy shrimp. On September 16, 1999, the Court ordered that ``On
or before February 29, 2000, the Service shall submit for publication
in the Federal Register, a proposal to withdraw the existing not
prudent critical habitat determination together with a new proposed
critical habitat
[[Page 12183]]
determination for the San Diego fairy shrimp'' (Southwest Center for
Biodiversity v. United States Department of the Interior et al., CV 98-
1866) (S.D. Cal. ).
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 species or a threatened species to the
point at which listing under the Act is no longer necessary. Proposed
critical habitat for the San Diego fairy shrimp includes areas that
currently support the species, and areas that contain recovery habitat
essential for the conservation of the species.
We reconsidered our evaluation in the prudency determination of the
threats posed by vandalism and determined that instances of vandalism
have not increased since the listing of the San Diego fairy shrimp.
Therefore, we find that designating critical habitat for the San Diego
fairy shrimp is prudent.
Critical habitat receives protection under the Act through the
prohibition against destruction or adverse modification of critical
habitat as set forth under section 7 of the Act with regard to actions
carried out, funded, or authorized by a Federal agency. Section 7 also
requires conferences on Federal actions that are likely to result in
the adverse modification or destruction of proposed critical habitat.
Aside from the added protection that may be provided under section 7,
the Act does not provide other forms of protection to lands designated
as critical habitat. Because consultation under section 7 of the Act
does not apply to activities on private or other non-Federal lands that
do not involve a Federal action, critical habitat designation would not
afford any protection under the Act against such activities.
Designating critical habitat does not, in itself, lead to recovery
of a listed species. Designation does not create a management plan,
establish numerical population goals, prescribe specific management
actions (inside or outside of critical habitat), or directly affect
areas not designated as critical habitat. Specific management
recommendations for areas designated as critical habitat are most
appropriately addressed in recovery and management plans, and through
section 7 consultation and section 10 permits.
Critical habitat identifies specific units that are essential to
the conservation of a listed species and that may require special
management considerations or protection. All of the proposed critical
habitat areas are considered essential to the conservation of the San
Diego fairy shrimp as described in the Recovery Plan for Vernal Pools
of Southern California (Recovery Plan) (Service 1998). The proposed
critical habitat units include a mosaic of vernal pools currently
supporting San Diego fairy shrimp, as well as areas that historically
supported vernal pools and are still capable of supporting this
species. All of these areas may not currently contain all of the
primary constituent elements, but could develop them in the future.
Methods
In determining areas that are essential to conserve the San Diego
fairy shrimp, we used the best scientific and commercial data
available. This included data from research and survey observations
published in peer-reviewed articles, recovery criteria outlined in the
Recovery Plan, regional Geographic Information System (GIS) vegetation
and species coverages (including vegetation layers for Orange and San
Diego Counties), data collected on the U.S. Marine Corps Air Station
Miramar (Miramar) and U.S. Marine Corps Station Camp Pendleton (Camp
Pendleton), and data collected from reports submitted by biologists
holding section 10(a)(1)(A) recovery permits.
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 propose as critical
habitat, we are required to base critical habitat determinations on the
best scientific and commercial data available. We consider those
physical and biological features (primary constituent elements) that
are essential to the conservation of the species, and that may require
special management considerations or protection. These include, but are
not limited to: Space for individual and population growth, and for
normal behavior; food, water, or other nutritional or physiological
requirements; cover or shelter; sites for breeding and reproduction;
and habitats that are protected from disturbance or are representative
of the historic and ecological distributions of a species.
The primary constituent elements for the San Diego fairy shrimp are
those habitat components that are essential for the primary biological
needs of foraging, sheltering, reproduction, and dispersal; or the
capacity to develop those habitat components. The primary constituent
elements are found in those areas that support or have the potential to
support vernal pools or other ephemeral depressional wetlands. Primary
constituent elements include the vernal pool basins and associated
watersheds, and include, but are not limited to: Small to large vernal
pools with shallow to moderate depths that hold water for at least 5
days but not necessarily every year; entire watershed(s) and hydrology
for vernal pool basins and their related vernal pool complexes;
ephemeral depressional wetlands, flat or gently sloping topography, and
any soil type with a clay component and/or an impermeable surface or
subsurface layer known to support vernal pool habitat. Primary
constituent elements or components thereof are found in all the areas
proposed for critical habitat.
Criteria Used To Identify Critical Habitat
In an effort to map areas essential to the conservation of the
species, we used data on known San Diego fairy shrimp locations, and
those vernal pools and vernal pool complexes that were identified in
the Recovery Plan as essential for the stabilization and
reclassification of the species. We then evaluated those areas based on
the hydrology, watershed and topographic features. Based on this
evaluation, a 1-km (.62 mi) Universal Transverse Mercator (UTM) grid
was overlaid on top of those vernal pool complexes and their associated
watersheds. This 1-km (.62 mi) UTM grid provides a buffer area around
either individual vernal pool basins or vernal pool complexes, and
provides additional assurances that watersheds and hydrology are
captured and maintained for this species. In those cases where occupied
vernal pools were not identified in the Recovery Plan, we relied on
recent scientific data to update the map coverage.
We did not map critical habitat in sufficient detail to exclude all
developed areas such as towns, housing developments, and other lands
unlikely to contain primary constituent elements essential for San
Diego fairy shrimp conservation. Within the delineated critical habitat
unit boundaries, only lands containing or that could develop the
primary constituent elements described above are proposed for critical
[[Page 12184]]
habitat. Within this area proposed as critical habitat, only an
estimated 18 ha (45 ac) is of unknown occupancy. The remaining areas of
vernal pools within the total designated critical habitat area are
occupied by San Diego fairy shrimp.
We also considered the existing status of lands in designating
areas as critical habitat. Section 10(a) of the Act authorizes us to
issue permits for the taking of listed species incidental to otherwise
lawful activities. Incidental take permit applications 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. NonFederal lands that are covered by an existing
operative HCP and executed implementation agreement for San Diego fairy
shrimp under Section 10(a)(1)(B) of the Act receive special management
and protection under the terms of the HCP/IA and are therefore not
being proposed for inclusion in critical habitat.
We expect that critical habitat may be used as a tool to help
identify areas within the range of the San Diego fairy shrimp that are
most critical for the conservation of the species. We encourage the
development of HCPs for such areas on non-Federal lands. We consider
HCPs to be one of the most important methods through which non-Federal
landowners can resolve endangered species conflicts. We provide
technical assistance and work closely with applicants throughout
development of HCPs to help identify special management considerations
for listed species. We intend that HCPs provide a package of protection
and management measures sufficient to address the conservation needs of
the species.
Proposed Critical Habitat Designation
The approximate area encompassing proposed critical habitat by
county and land ownership is shown in Table 1. Proposed critical
habitat includes San Diego fairy shrimp habitat throughout the species'
range in the United States (i.e., Orange and San Diego Counties,
California). Lands proposed are under private, State, and Federal
ownership, with Federal lands including lands managed by the U.S.
Department of Defense (DOD) and the Service. Lands proposed as critical
habitat have been divided into six Critical Habitat Units. A brief
description of each unit, and reasons for proposing it as critical
habitat, are presented below. The units are generally based on
geographical location of the vernal pools, soil types, and local
variation of topographic position (i.e., coastal mesas, inland valley).
Table 1.--Approximate Area Encompassing Proposed Critical Habitat in Hectares (Ha) (Acres (Ac)) By County and
Land Ownership.
[Area estimates reflect critical habitat unit boundaries, not the primary constituent elements within]
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Local/State
County Federal land * land Private land Total **
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Orange...................................... N/A 100 ha N/A 100 ha
(247 ac) (247 ac)
San Diego................................... 9,234 ha 267 ha 5,171 ha 14,671 ha
(22,817 ac) (660 ac) (12,778 ac) (36,254 ac)
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Total................................... 9,234 ha 367 ha 5,171 ha 14,771 ha
(22,817 ac) (907 ac) (12,778 ac) (36,501 ac)
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* Includes Department of Defense and Fish and Wildlife Service lands.
** Includes an estimated 18 ha (45 ac) of unknown occupancy. The remaining areas of vernal pools within the
total designated critical habitat area are known to be occupied by San Diego fairy shrimp.
Unit 1: Orange County (Fairview Regional Park) Critical Habitat Unit
Unit 1 encompasses approximately 100 ha (247 ac) within the Los
Angeles Basin-Orange Management Area as outlined in the Recovery Plan.
The Fairview Regional Park vernal pool complex is proposed as critical
habitat. This unit provides the northern extent of this species'
distribution and represents the historic distribution of coastal
terrace vernal pools in this area. Proposed critical habitat units are
based on UTM coordinates.
Unit 2: San Diego: North Coastal Mesa Critical Habitat Unit
Unit 2 encompasses approximately 5,572 ha (13,768 ac) within the
San Diego: North Coastal Mesa Management Area as outlined in the
Recovery Plan on Camp Pendleton and within the City of Carlsbad. Areas
proposed on Camp Pendleton include (1) five training areas, (2) habitat
found elsewhere on the base, and (3) lands leased by the California
State Department of Parks and Recreation and private interests from
Camp Pendleton. Camp Pendleton has several substantial vernal pool
complexes that support the San Diego fairy shrimp. Within the
jurisdiction of the City of Carlsbad, one vernal pool complex located
in the vicinity of Palomar Airport and one complex at Poinsettia Lane
train station are being proposed as critical habitat.
These vernal pool complexes represent vernal pool habitat
associated with coastal terraces found north of the San Dieguito River.
Proposed critical habitat units are based on UTM coordinates.
Unit 3: San Diego: Inland Valley Critical Habitat Unit
Unit 3 encompasses 2,600 ha (6,425 ac) within the San Diego: Inland
Valley Management Area as outlined in the Recovery Plan. Lands proposed
contain vernal pool complexes within the jurisdiction of the City of
San Marcos and the community of Ramona. In the community of Ramona, one
of the complexes is within the County's Ramona Airport boundaries.
These vernal pool complexes are generally isolated to a degree from
maritime influence (greater than 10 km (6 mi) from the coast) and are
representative of vernal pools associated with alluvial or volcanic
type soils. Proposed critical habitat units are based on UTM
coordinates.
Unit 4: San Diego: Central Coastal Mesa Critical Habitat Unit
Unit 4 encompasses 7,500 ha (18,531 ac) within the San Diego:
Central Coastal Mesa Management Area as outlined in the Recovery Plan.
Lands proposed contain vernal pool complexes within the jurisdiction of
the City of San Diego, Miramar, U.S. Department of Defense, State of
California, Service, and private interests. These vernal pool complexes
are associated with coastal terraces and mesas found south of the
[[Page 12185]]
San Dieguito River to the San Diego Bay. Proposed critical habitat
units are based on UTM coordinates.
Unit 5: San Diego: Southern Coastal Mesa Critical Habitat Unit
Unit 5 encompasses 2,967 ha (7,332 ac) within the San Diego:
Southern Coastal Mesa Management Area as outlined in the Recovery Plan.
Lands proposed include vernal pool complexes within the jurisdiction of
the Service, City of San Diego, City of Chula Vista, County of San
Diego, U.S. Immigration and Naturalization Service (INS), and private
interests. These vernal pool complexes are associated with coastal
mesas from the Sweetwater River south to the International Border.
Proposed critical habitat units are based on UTM coordinates.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a) 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 critical habitat to the extent that the
action appreciably diminishes the value of the critical habitat for the
survival and recovery of the species. Individuals, organizations,
States, local governments, and other non-Federal entities are affected
by the designation of critical habitat only if their actions occur on
Federal lands, require a Federal permit, license, or other
authorization, or involve Federal funding.
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 designated or proposed. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies
to confer with us on any action that is likely to jeopardize the
continued existence of a proposed species or result in destruction or
adverse modification of proposed critical habitat. 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 must enter into consultation with us.
Through this consultation, we would ensure that the permitted actions
do not 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 resulting in the destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated, and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conferencing 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. Conference reports provide conservation recommendations to
assist the agency in eliminating conflicts that may be caused by the
proposed action. The conservation recommendations in a conference
report are advisory.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
a biological opinion that is prepared according to 50 CFR 402.14, as if
critical habitat were designated. We may adopt the formal conference
report as the biological opinion when the critical habitat is
designated, if no significant new information or changes in the action
alter the content of the opinion (see 50 CFR 402.10(d)).
Activities on Federal lands that may affect the San Diego 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 (Corps)
under section 404 of the Clean Water Act, or some other Federal action,
including funding (e.g., Federal Highway Administration, Federal
Aviation 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 lands that are not federally funded or permitted
do not require section 7 consultation.
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 adversely
modify such habitat, or that may be affected by such designation.
Activities that may destroy or adversely modify critical habitat
include those that alter the primary constituent elements to an extent
that the value of critical habitat for both the survival and recovery
of the San Diego fairy shrimp is appreciably reduced. We note that such
activities may also jeopardize the continued existence of the species.
Activities that, when carried out, funded, or authorized by a Federal
agency, may destroy or adversely modify critical habitat include, but
are not limited to:
(1) Any activity that results in discharge of dredged or fill
material, excavation, or mechanized land clearing of ephemeral and/or
vernal pool basins;
(2) Any activity that alters the watershed, water quality or
quantity to an extent that water quality becomes unsuitable to support
San Diego fairy shrimp, or any activity that significantly affects the
natural hydrologic function of the vernal pool system; and
(3) Activities that could lead to the introduction of exotic
species into occupied or potentially occupied San Diego fairy shrimp
habitat.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery. Actions likely to ``destroy or adversely modify'' critical
habitat are those that would appreciably reduce the
[[Page 12186]]
value of critical habitat for the survival and recovery of the listed
species.
Common to both definitions is an appreciable detrimental effect on
both survival and recovery of a listed species. Given the similarity of
these definitions, actions likely to destroy or adversely modify
critical habitat would almost always result in jeopardy to the species
concerned, particularly when the area of the proposed action is
occupied by the species concerned. In those cases, critical habitat
provides little additional protection to a species, and the
ramifications of its designation are few or none. Designation of
critical habitat in areas occupied by the San Diego fairy shrimp is not
likely to result in a regulatory burden above that already in place due
to the presence of the listed species. Designation of critical habitat
in areas that are not known to be occupied by this species will also
not likely result in an increased regulatory burden since the Corps
requires review of projects requiring permits in all vernal pools,
whether it is known that San Diego fairy shrimp are present or not. If
occupied habitat becomes unoccupied in the future, there is a potential
benefit to critical habitat in such cases.
Designation of critical habitat could affect Federal agency
activities. Federal agencies already consult with the Service on
activities in areas currently occupied by the species to ensure that
their actions do not jeopardize the continued existence of the species.
These actions include, but are not limited to:
(1) Regulation of activities affecting waters of the United States
by the Corps under section 404 of the Clean Water Act;
(2) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities;
(3) Regulation of airport improvement activities by the Federal
Aviation Administration;
(4) Military training and maneuvers on Camp Pendleton and Miramar,
and other applicable DOD lands;
(5) Construction of roads and fences along the international border
with Mexico, and associated immigration enforcement activities by the
INS;
(6) Licensing of construction of communication sites by the Federal
Communications Commission, and;
(7) Funding of activities by the U.S. Environmental Protection
Agency, Department of Energy, or any other Federal agency.
Relationship To Habitat Conservation Plans
A number of habitat planning efforts have been completed within the
range of the San Diego fairy shrimp. Principal among these is the NCCP
effort in San Diego County. The MSCP, and its subarea plans, provide
conservation measures for the San Diego fairy shrimp even though take
authorization, should any be needed, is designed to come from a
subsequent permitting process (typically through a Section 7
consultation with the Corps of Engineers). The MSCP will result in the
total avoidance the great majority of all fairy shrimp habitat within
the MHPA planning area. The MSCP provides that the remaining fairy
shrimp habitat should be completely avoided to the maximum extent
practicable. Unavoidable impacts to this remaining area of habitat is
to be minimized and mitigated to achieve no net loss of wetland
function and value and to provide additional protective measures,
including adaptive management, contained in the MSCP. Because the fairy
shrimp habitat preserved in the MHPA planning area is managed for the
benefit of the fairy shrimp under the terms of the MSCP, there are no
``additional management considerations or protections'' required for
those lands. Therefore, we have determined that non-Federal lands
within approved HCP planning areas for the San Diego fairy shrimp do
not meet the definition of critical habitat in the Act, and we are not
proposing designation of such lands as critical habitat.
The NCCP/HCP effort in Orange County Central/Coastal is designed to
provide the same level of protection for San Diego fairy shrimp as the
San Diego MSCP. However, unlike the San Diego MSCP, the vernal pool
complex within Orange County occurs within a city which is not a
participating jurisdiction under the plan. We have therefore determined
that this vernal pool complex (Fairview Regional Park complex) is not
receiving special management consideration or protection and that it
meets the definition of critical habitat and should be designated as
such.
Habitat conservation plans currently under development are intended
to provide for protection and management of habitat areas essential for
the conservation of the San Diego fairy shrimp, while directing
development and habitat modification to nonessential areas of lower
habitat value. The HCP development process provides an opportunity for
more intensive data collection and analysis regarding the use of
particular habitat areas by the fairy shrimp. The process also enables
us to conduct detailed evaluations of the importance of such lands to
the long-term survival of the species in the context of constructing a
biologically configured system of interlinked habitat blocks. We fully
expect that HCPs undertaken by local jurisdictions (e.g., counties,
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 believe and fully expect that our analyses of these
proposed HCPs and proposed permits under section 7 will show that
covered activities carried out in accordance with the provisions of the
HCPs and permits will not result in destruction or adverse modification
of critical habitat.
We provide technical assistance and work closely with applicants
throughout the development of HCPs to identify appropriate conservation
management and lands essential for the long-term conservation of the
San Diego fairy shrimp. Several HCP efforts are now under way for
listed and non-listed species in areas within the range of the San
Diego fairy shrimp in areas we propose as critical habitat. These HCPs,
coupled with appropriate adaptive management, should provide for the
conservation of the species. We are soliciting comments on whether
future approval of HCPs and issuance of section 10(a)(1)(B) permits for
the San Diego fairy shrimp should trigger revision of designated
critical habitat to exclude lands within the HCP area and, if so, by
what mechanism (see Public Comments Solicited section).
Relationship to Mexico
We are not aware of any existing regulatory mechanism in Mexico
that would protect the San Diego fairy shrimp or its habitat. Although
Mexico has laws that could provide protection for rare species, they
are not easily enforced. At this time, Mexico enforces no specific
protections for this species, or the vernal pools on which it depends.
If specific protections were available and enforceable in Mexico, the
portion of the range in Mexico alone, in isolation, would not be
adequate to ensure the long-term conservation of this species.
If you have questions regarding whether specific activities will
constitute 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, Branch of Endangered Species, 911 N.E. 11th
Ave., Portland, OR 97232
[[Page 12187]]
(telephone 503/231-2063; facsimile 503/231-6243).
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial 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. We will conduct
an analysis of the economic impacts of designating these areas as
critical habitat prior to a final determination. When completed, we
will announce the availability of the draft economic analysis with a
notice in the Federal Register, and we will open a 30-day comment
period at that time.
Public Comments Solicited
We intend for any final action resulting from this proposal to be
as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefits of designation will outweigh any threats to the
species due to designation;
(2) Specific information on the amount and distribution of San
Diego fairy shrimp habitat, and what habitat is essential to the
conservation of the species and why;
(3) Land use practices and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families; and,
(5) Economic and other values associated with designating critical
habitat for the San Diego fairy shrimp, such as those derived from non-
consumptive uses (e.g., hiking, camping, bird-watching, enhanced
watershed protection, improved air quality, increased soil retention,
``existence values,'' and reductions in administrative costs).
In this proposed rule, we do not propose to designate critical
habitat on nonFederal lands within the boundaries of an existing
approved HCP and subarea plan with an executed IA for San Diego fairy
shrimp approved under section 10(a)(1)(B) of the Act because the
existing HCP provides for long-term commitments to conserve the species
and areas essential to the conservation of the gnatcatcher. Therefore,
we believe that such areas do not meet the definition of critical
habitat because they do not need special management considerations or
protection. However, we are specifically soliciting comments on the
appropriateness of this approach and on the following or other
alternative approaches for critical habitat designation in areas
covered by existing approved HCPs:
(1) Designate critical habitat without regard to existing HCP
boundaries and allow the section 7 consultation process on the issuance
of the incidental take permit to ensure that any take we authorized
will not destroy or adversely modify critical habitat;
(2) Designate reserves, preserves, and other conservation lands
identified by approved HCPs, on the premise that they encompass areas
that are essential to conservation of the species within the HCP area
and that will continue to require special management protection in the
future. Under this approach, all other lands covered by existing
approved HCPs where incidental take for the San Diego fairy shrimp is
authorized under a legally operative permit pursuant to section
10(a)(1)(B) of the Act would be excluded from critical habitat.
The amount of critical habitat we designate for the San Diego fairy
shrimp in a final rule may either increase or decrease, depending upon
which approach we adopt for dealing with designation in areas of
existing approved HCPs.
Additionally, we are also seeking comments on critical habitat
designation relative to future HCPs. Several conservation planning
efforts are now under way within the range of the San Diego fairy
shrimp, and other listed and nonlisted species, in areas we are
proposing as critical habitat. For areas where HCPs are currently under
development, we are proposing to designate critical habitat for areas
that we believe are essential to the conservation of the species and
need special management or protection. We invite comments on the
appropriateness of this approach.
In addition, we invite comments on the following or other
approaches for addressing critical habitat within the boundaries of
future approved HCPs upon issuance of section 10(a)(1)(B) permits for
the San Diego fairy shrimp:
(1) Retain critical habitat designation within the HCP boundaries
and use the section 7 consultation process on the issuance of the
incidental take permit to ensure that any take we authorize will not
destroy or adversely modify critical habitat;
(2) Revise the critical habitat designation upon approval of the
HCP and issuance of the section 10(a)(1)(B) permit to retain only
preserve areas, on the premise that they encompass areas essential for
the conservation of the species within the HCP area and require special
management and protection in the future. Assuming that we conclude, at
the time an HCP is approved and the associated incidental take permit
is issued, that the plan protects those areas essential to the
conservation of the San Diego fairy shrimp, we would revise the
critical habitat designation to exclude areas outside the reserves,
preserves, or other conservation lands established under the plan.
Consistent with our listing program priorities, we would publish a
proposed rule in the Federal Register to revise the critical habitat
boundaries;
(3) As in (2) above, retain only preserve lands within the critical
habitat designation, on the premise that they encompass areas essential
for conservation of the species within the HCP area and require special
management and protection in the future. However, under this approach,
the exclusion of areas outside the preserve lands from critical habitat
would occur automatically upon issuance of the incidental take permit.
The public would be notified and have the opportunity to comment on the
boundaries of the preserve lands and the revision of designated
critical habitat during the public review and comment process for HCP
approval and permitting;
(4) Remove designated critical habitat entirely from within the
boundaries of an HCP when the plan is approved (including preserve
lands), on the premise that the HCP establishes long-term commitments
to conserve the species, and no further special management or
protection is required. Consistent with our listing program priorities,
we would publish a proposed rule in the Federal Register to revise the
critical habitat boundaries; or
(5) Remove designated critical habitat entirely from within the
boundaries of an HCP when the plan is approved (including preserve
lands), on the premise that the HCP establishes long-term commitments
to conserve the
[[Page 12188]]
species, and no additional special management or protection is
required. This exclusion from critical habitat would occur
automatically upon issuance of the incidental take permit. The public
would be notified and have the opportunity to comment on the revision
of designated critical habitat during the public notification process
for HCP approval and permitting.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. In some circumstances, we would withhold
from the rulemaking record a respondent's identity, as allowable by
law. If you wish us to withhold your name and/or address, you must
state this prominently at the beginning of your comment. However, we
will not consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
Peer Review
In accordance with our policy published in the Federal Register on
July 1, 1994 (59 FR 34270), we will seek the expert opinions of at
least three appropriate and independent specialists regarding this
proposed rule. The purpose of such review is to ensure listing
decisions are based on scientifically sound data, assumptions, and
analyses. We will send these peer reviewers copies of this proposed
rule immediately following publication in the Federal Register. We will
invite these peer reviewers to comment, during the public comment
period, on the specific assumptions and conclusions regarding the
proposed designation of critical habitat.
We will consider all comments and information received during the
60-day comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made at least 15
days prior to the close of the public comment period. We will schedule
public hearings on this proposal, if any are requested, and announce
the dates, times, and places of those hearings in the Federal Register
and local newspapers at least 15 days prior to the first hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make proposed rules easier to understand including answers to questions
such as the following: (1) Are the requirements in the document clearly
stated? (2) Does the proposed rule contain technical language or jargon
that interferes with the clarity? (3) Does the format of the proposed
rule (grouping and order of sections, use of headings, paragraphing,
etc.) aid or reduce its clarity? (4) Is the description of the proposed
rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful
in understanding the proposed rule? What else could we do to make the
proposed rule easier to understand?
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule and has been reviewed by the Office of Management and
Budget (OMB), under Executive Order 12866.
(a) This rule will not have an annual economic effect of $100
million or more or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government. The San Diego
fairy shrimp was listed as an endangered species in 1997. In fiscal
years 1997 through 1999, we conducted 27 formal section 7 consultations
with other Federal agencies to ensure that their actions would not
jeopardize the continued existence of the fairy shrimp.
Approximately 18 ha (45 ac) of the areas encompassing proposed
critical habitat for the San Diego fairy shrimp are currently of
unknown occupancy. The remaining areas of vernal pools within the total
designated critical habitat area are occupied by San Diego fairy
shrimp. Under the Act, critical habitat may not be adversely modified
by a Federal agency action; critical habitat does not impose any
restrictions on non-Federal persons unless they are conducting
activities funded or otherwise sponsored or permitted by a Federal
agency (see Table 2 below). Section 7 requires Federal agencies to
ensure that they do not jeopardize the continued existence of the
species. Based upon our experience with the species and its needs, we
conclude that any Federal action or authorized action that could
potentially cause an adverse modification of the proposed critical
habitat would currently be considered as ``jeopardy'' under the Act.
Accordingly, the designation of currently occupied areas as critical
habitat does not have any incremental impacts on what actions may or
may not be conducted by Federal agencies or non-Federal persons that
receive Federal authorization or funding. Non-Federal persons that do
not have a Federal ``sponsorship'' of their actions are not restricted
by the designation of critical habitat (however, they continue to be
bound by the provisions of the Act concerning ``take'' of the species).
Designation of unoccupied areas as critical habitat may have impacts on
what actions may or may not be conducted by Federal agencies or non-
Federal persons that receive Federal authorization or funding, but
since the potentially unoccupied area (area of unknown occupancy) is
only 18 ha (45 ac), we expect little, if any, additional impact from
designating this area as critical habitat. Additionally, designation of
critical habitat in areas that are not known to be occupied by this
species will also not likely result in an increased regulatory burden
since the Corps requires review of projects requiring permits in all
vernal pools, whether it is known that San Diego fairy shrimp are
present or not. We will evaluate this impact through our economic
analysis (under section 4 of the Act; see Economic Analysis section of
this rule).
(b) This rule will not create inconsistencies with other agencies'
actions. As discussed above, Federal agencies have been required to
ensure that their actions do not jeopardize the continued existence of
the San Diego fairy shrimp since the listing in 1997. The prohibition
against adverse modification of critical habitat is not expected to
impose any additional restrictions to those that currently exist in
occupied areas of proposed critical habitat. Additional restrictions
may be imposed in the area of unknown occupancy proposed as critical
habitat; we will evaluate this possibility through our economic
analysis under section 4 of the Act. Because of the potential for
impacts on other Federal agency activities, we will continue to review
this proposed action for any inconsistencies with other Federal agency
actions.
(c) This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
Federal agencies are currently required to ensure that their activities
do not jeopardize the continued existence of the species, and, as
discussed above, we do not anticipate that the adverse modification
[[Page 12189]]
prohibition (resulting from critical habitat designation) will have any
incremental effects in areas of occupied habitat. We expect little
additional effect for the potentially unoccupied area of proposed
critical habitat, since this area (area of unknown occupancy) is only
18 ha (45 ac). Additionally, designation of critical habitat in areas
that are not known to be occupied by this species will also not likely
result in an increased regulatory burden since the Corps requires
review of projects requiring permits in all vernal pools, whether it is
known that San Diego fairy shrimp are present or not. We will review
the effects of this proposed action on Federal agencies or non-Federal
persons that receive Federal authorization or funding in the area of
unknown occupancy critical habitat.
(d) This rule will not raise novel legal or policy issues. The
proposed rule follows the requirements for determining critical habitat
contained in the Endangered Species Act.
Table 2.--Impacts of San Diego Fairy Shrimp Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
Additional activities
Activities potentially potentially affected by
Categories of activities affected by species listing critical habitat designation
only \1\ \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially Affected\3\.... Activities such as those None.
affecting waters of the
United States by the Army
Corps of Engineers under
section 404 of the Clean
Water Act; road construction
and maintenance, right-of-
way designation, and
regulation of agricultural
activities; regulation of
airport improvement
activities under Federal
Aviation Administration
jurisdiction; military
training and maneuvers on
Marine Corps Base Camp
Pendleton and Marine Corps
Air Station, Miramar and
other applicable DOD lands;
construction of roads and
fences along the
international border with
Mexico and associated
immigration enforcement
activities by the
Immigration and
Naturalization Service;
construction of
communication sites licensed
by the Federal
Communications Commission,
and; activities funded by
any Federal agency.
Private or other non-Federal Activities Activities such as removing None.
Potentially Affected \4\. or destroying San Diego
fairy shrimp habitat (as
defined in the primary
constituent elements
discussion), whether by
mechanical, chemical, or
other means (e.g., grading,
overgrazing, construction,
road building, herbicide
application, etc.) and
appreciably decreasing
habitat value or quality
through indirect effects
(e.g., edge effects,
invasion of exotic plants or
animals, or fragmentation
that require a Federal
action (permit,
authorization, or funding)).
----------------------------------------------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by listing the San Diego fairy shrimp as an
endangered species (February 3, 1997; 62 FR 4925) under the Endangered Species Act.
\2\ This column represents activities potentially affected by the critical habitat designation in addition to
those activities potentially affected by listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
funding.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
In the economic analysis (under section 4 of the Act), we will
determine whether designation of critical habitat will have a
significant effect on a substantial number of small entities. As
discussed under Regulatory Planning and Review above, this rule is not
expected to result in any restrictions in addition to those currently
in existence for areas of occupied critical habitat. As indicated on
Table 1 (see Proposed Critical Habitat Designation section), we
designated property owned by Federal, State, and local governments, and
private property.
Within these areas, the types of Federal actions or authorized
activities that we have identified as potential concerns are:
(1) Regulation of activities affecting waters of the United States
by the Corps under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization by Federal agencies;
(3) Regulation of grazing, mining, and recreation by the Bureau of
Land Management or U.S. Forest Service;
(4) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities;
(5) Regulation of airport improvement activities by the Federal
Aviation Administration;
(6) Military training and maneuvers on Camp Pendleton, Miramar, and
other applicable DOD lands;
(7) Construction of roads and fences along the international border
with Mexico, and associated immigration enforcement activities by the
INS;
(8) Hazard mitigation and post-disaster repairs funded by the
Federal Emergency Management Agency;
(9) Construction of communication sites licensed by the Federal
Communications Commission; and
(10) Activities funded by the U.S. Environmental Protection Agency,
U.S. Department of Energy, or any other Federal agency.
Many of these activities sponsored by Federal agencies within the
proposed critical habitat areas are carried out by small entities (as
defined by the Regulatory Flexibility Act) through contract, grant,
permit, or other Federal authorization. As discussed above, these
actions are currently required to comply with the listing protections
of the Act, and the designation of critical habitat is not anticipated
to have any additional effects on these activities in areas of critical
habitat occupied by the species. We expect little additional effect for
the potentially unoccupied area of proposed critical habitat, since
this area (area of unknown occupancy) is only 18 ha (45 ac).
Additionally, designation of critical habitat in areas that are not
known to be occupied by this species will also not likely result in an
increased regulatory burden since the Corps requires review of projects
requiring permits in all vernal pools, whether it is known that San
Diego fairy shrimp are present or not. We will evaluate whether
designation of critical habitat in the unknown occupancy area will have
an effect on activities carried out by small entities.
For actions on non-Federal property that do not have a Federal
connection (such as funding or authorization), the current restrictions
concerning take of
[[Page 12190]]
the species remain in effect, and this rule will have no additional
restrictions.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C.
804(2))
In the economic analysis, we will determine whether designation of
critical habitat will cause (a) any effect on the economy of $100
million or more, (b) any increases in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions in the economic analysis, or (c) any significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. As discussed above, we anticipate that the
designation of critical habitat will not have any additional effects on
these activities in areas of critical habitat occupied by the species.
We expect little additional effect for the potentially unoccupied area
of proposed critical habitat, since this area (area of unknown
occupancy) is only 18 ha (45 ac). Additionally, designation of critical
habitat in areas that are not known to be occupied by this species will
also not likely result in an increased regulatory burden since the
Corps requires review of projects requiring permits in all vernal
pools, whether it is known that San Diego fairy shrimp are present or
not.
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.):
(a) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. Small
governments will be affected only to the extent that any programs
having Federal funds, permits or other authorized activities must
ensure that their actions will not adversely affect the critical
habitat. However, as discussed above, these actions are currently
subject to equivalent restrictions through the listing protections of
the species, and no further restrictions are anticipated in areas of
occupied proposed critical habitat. We expect little additional effect
for the potentially unoccupied area of proposed critical habitat, since
this area (area of unknown occupancy) is only 18 ha (45 ac).
Additionally, designation of critical habitat in areas that are not
known to be occupied by this species will also not likely result in an
increased regulatory burden since the Corps requires review of projects
requiring permits in all vernal pools, whether it is known that San
Diego fairy shrimp are present or not.
(b) This rule 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.
Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. As discussed above, the designation of critical habitat
affects only Federal agency actions. The rule will not increase or
decrease the current restrictions on private property concerning take
of the San Diego fairy shrimp. Due to current public knowledge of the
species protection, the prohibition against take of the species both
within and outside of the designated areas, and the fact that critical
habitat provides no incremental restrictions in areas of occupied
critical habitat, we do not anticipate that property values will be
affected by the critical habitat designation. We expect little
additional effect for the potentially unoccupied area of proposed
critical habitat, since this area (area of unknown occupancy) is only
18 ha (45 ac). Additionally, designation of critical habitat in areas
that are not known to be occupied by this species will also not likely
result in an increased regulatory burden since the Corps requires
review of projects requiring permits in all vernal pools, whether it is
known that San Diego fairy shrimp are present or not. Additionally,
critical habitat designation does not preclude development of habitat
conservation plans and issuance of incidental take permits. Landowners
in areas that are included in the designated critical habitat will
continue to have opportunity to utilize their property in ways
consistent with the survival of the San Diego fairy shrimp.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, the Service requested information from and coordinated
development of this critical habitat proposal with appropriate State
resource agencies in California, as well as during the listing process.
We will continue to coordinate any future designation of critical
habitat for the San Diego fairy shrimp with the appropriate State
agencies. The designation of critical habitat in areas currently
occupied by the San Diego 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 unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We designate critical habitat in accordance with the
provisions of the Act, and plan public hearings on the proposed
designation during the comment period. The 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 San Diego fairy shrimp.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any information collection requirements
for which Office of Management and Budget approval under the Paperwork
Reduction Act is required.
National Environmental Policy Act
We have determined that we do not need to prepare an Environmental
Assessment and/or an Environmental Impact Statement as defined by the
National Environmental Policy Act of 1969 in connection with
regulations adopted pursuant to section 4(a) of the Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244).
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
[[Page 12191]]
Governments'' (59 FR 22951) and 512 DM 2, we understand that Federally
recognized Tribes must be related to on a Government-to-Government
basis. The 1997 Secretarial Order on Native Americans and the Act
clearly states that Tribal lands should not be designated unless
absolutely necessary for the conservation of the species. According to
the Secretarial Order, ``Critical habitat shall not be designated in an
area that may impact Tribal trust resources unless it is determined
essential to conserve a listed species. In designating critical
habitat, the Services shall evaluate and document the extent to which
the conservation needs of a listed species can be achieved by limiting
the designation to other lands.''
We determined that there are no Tribal lands essential for the
conservation of the San Diego fairy shrimp because they do not support
populations or suitable habitat. Therefore, we are not proposing to
designate critical habitat for the San Diego fairy shrimp on Tribal
lands.
References Cited
A complete list of all references cited in this proposed rule is
available upon request from the Carlsbad Fish and Wildlife Office (see
ADDRESSES section).
Author
The primary authors of this notice are the Carlsbad Fish and
Wildlife Office staff (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons given in the preamble, we propose to amend 50 CFR
part 17 as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h) revise the entry for ``Fairy shrimp, San
Diego'' under ``CRUSTACEANS'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where When Critical Special
Historic range endangered or Status listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Crustaceans
* * * * * * *
Fairy shrimp, San Diego.......... Branchinecta U.S.A. (CA)........ NA................. E 608 17.95(h) NA
sandiegonensis.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.95 add critical habitat for the San Diego fairy
shrimp (Branchinecta sandiegonensis) under paragraph (h) in the same
alphabetical order as this species occurs in Sec. 17.11(h), to read as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) Crustaceans
* * * * *
San Diego fairy shrimp (Branchinecta sandiegonensis)
1. Critical habitat units are depicted for Orange and San Diego
Counties, California, on the maps below.
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2. Critical habitat includes vernal pool basins and vernal pool
complexes indicated on the maps below and their associated watersheds
and hydrologic regime.
3. Within these areas, the primary constituent elements include,
but are not limited to, 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 or have the potential to support vernal pools or other
ephemeral depressional wetlands. Within these seasonal wetlands,
specific associations that are essential to the primary biological
needs of the San Diego fairy shrimp include, but are not limited to,
the following: small to large vernal pools with shallow to moderate
depths that hold water for at least 5 days but not necessarily every
year; entire watershed(s) and hydrology for vernal pool basins and
their associated vernal pool complexes, ephemeral depressional
wetlands, flat or gently sloping topography, and any soil type with a
clay component and/or an impermeable surface or subsurface layer known
to support vernal pool habitat.
4. Critical habitat does not include nonFederal lands covered by a
Habitat Conservation Plan or Subarea Plan, with an executed
implementation agreement, approved for the San Diego fairy shrimp under
section 10(a)(1)(B) of the Act on or before March 8, 2000.
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Map Unit 1; Orange County, California. From USGS 1:24,000 quadrangle
map Newport Beach, California (1981). The following lands located in
Fairview Regional Park within the City of Costa Mesa are being
proposed for critical habitat; starting from UTM coordinate 413000
E, 3725000 N to 413000 E, 3724000 N to 412000 E, 3724000 N to 412000
E, 3725000 N to 413000 E, 3725000 N.
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Map Unit 2; San Diego County, California. From USGS 1:24,000
quadrangle maps Oceanside, California (1975), San Onofre Bluffs,
California (1975), Las Pulgas Canyon, California (1968), Morro
Hills, California (1968), San Luis Rey, California (1975),
Encinitas, California (1975): The following lands within San
Clemente, California (1975) quadrangle map starting at UTM
coordinate 452000 E, 3700000 N to 452000 E, 3699000 N to 452000 E,
3700000 N to 451000 E, 3698000 N to 449000 E, 3698000 N to 449000 E,
3699000 N to 447000 E, 3699000 N to 447000 E, 3700000 N to 452000 E,
3700000 N. The following lands within San Clemente, California
(1975) quadrangle map starting at UTM coordinate 447000 E, 3694000 N
to 448000 E, 3694000 N to 448000 E, 3692000 N within San Onofre
Bluffs, California (1975) to 447000 E, 3692000 N to 448000 E,
3694000 N to 447000 E, 3694000 N within San Clemente, California
(1975) quadrangle map to the Pacific Ocean but not including the
Pacific Ocean. The following lands within Morro Hills, California
(1968) quadrangle map starting at UTM coordinate 468000 E, 3686000 N
to 468000 E, 3685000 N to 466000 E, 3685000 N to 466000 E, 3686000 N
to 468000 E, 3686000 N. The following lands within Morro Hills,
California (1968) quadrangle map starting at UTM coordinate 471000
E, 3691000 N, to 471000 E, 3690000 N, to 469000 E, 3690000 N, to
469000 E, 3691000 N, to 471000 E, 3691000. The following lands
within Morro Hills, California (1968) quadrangle map starting at UTM
coordinate 471000 E, 3689000 N, to 471000 E, 3688000 N, to 470000 E,
3688000 N, to 470000 E, 3689000 N, to 471000 E, 3689000. The
following lands within Las Pulgas Canyon, California (1968)
quadrangle map starting at UTM coordinate 456000 E, 3688000 N, to
456000 E, 3687000 N, to 457000 E, 3687000 N, to 457000 E, 3686000 N,
to 458000 E, 3686000 N, to 458000 E, 3685000 N, to 460000 E, 3685000
N, to 460000 E, 3684000 N, to 461000 E, 3684000 N, to 461000 E,
3682000 N, to 460000 E, 3682000 N, to 460000 E, 3680000 N, to 461000
E, 3680000 N, to 461000 E, 3679000 N, to 459000 E, 3679000 N, to
459000 E, 3680000 N, to 458000 E, 3680000 N, to 458000 E, 3681000 N,
to 457000 E, 3681000 N, to 457000 E, 3684000 N, to 455000 E, 3684000
N, to 455000 E, 3686000 N, to 454000 E, 3686000 N, to 454000 E,
3687000 N, to 455000 E, 3687000 N, to 455000 E, 3688000 N, to 456000
E, 3688000. Excluding the following: the Las Pulgas Canyon,
California (1968) quadrangle map starting at UTM coordinate 456000
E, 3686000 N, to 457000 E, 3686000 N, to 457000 E, 3685000 N, to
456000 E, to 3685000 N, to 456000 E, 3686000 N. The following lands
within Las Pulgas Canyon, California (1968) quadrangle map starting
at UTM coordinate 464000 E, 3682000 N, to 464000 E, 3681000 N, to
465000 E, 3681000 N, to 465000 E, 3680000 N, to 464000 E, 3680000 N,
to 464000 E, 3679000 N, to 467000 E, 3679000 N within the Morro
Hills, California (1968) quadrangle map to 467000 E, 3677000 N
within the San Luis Rey, California (1975) quadrangle map to 466000
E, 3677000 N, to 466000 E, 3675000 N, to 463000 E, 3675000 N within
the Oceanside, California (1975) quadrangle map, to 463000 E,
3682000 N within the Las Pulgas Canyon, California (1968) quadrangle
map to 464000 E, 3682000 N. The following lands within San Luis Rey,
California (1975) quadrangle map starting at UTM coordinate 473000
E, 3666000 N to 474000 E, 3666000 N to 474000 E, 3665000 N to 473000
E, 3665000 N to 473000 E, 3666000 N. The following lands within
Encinitas, California (1975) quadrangle map starting at UTM
coordinate 471000 E, 3664000 N to 471000 E, 3662000 N to 470000 E,
3662000 N to 470000 E, 3664000 N to 471000 E, 3664000 N.
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Map Unit 3; San Diego County, California. From USGS 1:24,000
quadrangle map San Marcos, California (1968), Ramona, California
(1975), San Pasqual, California (1971): The following lands within
San Marcos, California (1968) quadrangle map starting at UTM
coordinate 483000 E, 3668000 N to 483000 E, 3667000 N to 485000 E,
3667000 N to 485000 E, 3666000 N to 483000 E, 3666000 N to 483000 E,
3665000 N to 481000 E, 3665000 N to 481000 E, 3668000 N to 483000 E,
3668000 N. The following lands within San Pasqual, California (1971)
quadrangle map starting at UTM coordinate 509000 E, 3657000 N to
509000 E, 3656000 N to 510000 E, 3656000 N to 510000 E, 3655000 N to
511000 E, 3655000 N to 511000 E, 3656000 N to 512000 E, 3656000 N
within Ramona, California (1975) quadrangle map to 512000 E, 3655000
N to 513000 E, 3655000 N to 513000 E, 3654000 N to 512000 E, 3654000
N to 512000 E, 3653000 N to 509000 E, 3653000 N within San Pasqual,
California (1971) quadrangle map to 509000 E, 3654000 N to 504000 E,
3654000 N to 504000 E, 3655000 N to 505000 E, 3655000 N to 505000 E,
3656000 N to 506000 E, 3656000 N to 506000 E, 3655000 N to 507000 E,
3655000 N to 507000 E, 3656000 N to 508000 E, 3656000 N to 508000 E,
3657000 N to 509000 E, 3657000 N.
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Map Unit 4; San Diego County, California. From USGS 1:24,000
quadrangle maps Del Mar, California (1975), La Mesa, California
(1975), La Jolla, California (1975), Poway, California (1975),
National City, California (1975). The following federal and state
lands within Del Mar, California (1975) quadrangle map starting at
UTM coordinate 484000 E, 3646000 N, to 486000 E, 3646000 N, to
486000 E, 3644000 N, to 484000 E, 3644000 N to 484000 E, 3646000 N.
Excluding all lands within the jurisdiction of the City of San Diego
and the County of San Diego MSCP. The following federal and state
lands within Del Mar, California (1975) quadrangle map starting at
UTM coordinate 483000 E, 3643000 N, to 485000 E, 3643000 N, to
485000 E, 3642000 N, to 483000 E, 3642000 N, to 483000 E, 3643000 N.
Excluding all lands within the jurisdiction of the City of San Diego
and the County of San Diego MSCP. The following federal and state
lands within Del Mar, California (1975) quadrangle map starting at
UTM coordinate 486000 E, 3638000 N to 486000 E, 3639000 N to 489000
E, 3639000 N within the Poway, California (1975) quadrangle map to
489000 E, 3640000 N to 490000 E, 3640000 N to 490000 E, 3639000 N to
491000 E, 3639000 N to 491000 E, 3638000 N to 492000 E, 3638000 N to
492000 E, 3636000 N within the La Mesa, California (1975) quadrangle
map to 490000 E, 3636000 N to 490000 E, 3635000 N to 492000 E,
3635000 N to 492000 E, 3633000 N to 491000 E, 3633000 N to 491000 E,
3634000 N to 490000 E, 3634000 N to 490000 E, 3632000 N to 488000 E,
3632000 N within the La Jolla, California (1975) quadrangle map to
488000 E, 3633000 N to 487000 E, 3633000 N to 487000 E, 3632000 N to
486000 E, 3632000 N to 486000 E, 3633000 N to 485000 E, 3633000 N to
485000 E, 3634000 N to 486000 E, 3634000 N to 486000 E, 3635000 N to
483000 E, 3635000 N to 483000 E, 3637000 N to 481000 E, 3637000 N to
481000 E, 3638000 N within the Del Mar, California (1975) quadrangle
map to 486000
[[Page 12200]]
E, 3638000 N to 486000 E, 3639000 N to 486000 E, 3637000 N to 488000
E, 3637000 N to 488000 E, 3638000 N to 486000 E, 3638000 N.
Excluding the following: the Del Mar, California (1975) quadrangle
map starting at 486000 E, 3638000 N to 488000 E, 3638000 N to 488000
E, 3637000 N within the La Jolla, California (1975) quadrangle map
to 486000 E, 3637000 N to 486000 E, 3638000 N Del Mar, California
(1975) quadrangle map and excluding all lands within the
jurisdiction of the City of San Diego and the County of San Diego
MSCP. The following federal and state lands within La Mesa,
California (1975) quadrangle map starting at UTM coordinate 491000
E, 3630000 N to 491000 E, 3628000 N to 489000 E, 3628000 N to 489000
E, 3629000 N to 490000 E, 3629000 N to 490000 E, 3630000 N to 491000
E, 3630000 N. The following federal and state lands within National
City, California (1975) quadrangle map starting at UTM coordinate
495000 E, 3623000 N to 495000 E, 3622000 N to 493000 E, 3622000 N to
493000 E, 3623000 N to 495000 E, 3623000 N.
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Map Unit 5; San Diego County, California. From USGS 1:24,000
quadrangle map National City, California (1975), Jamul Mountains,
California (1971), Dulzura, California (1988), Otay Mesa, California
(1975), Imperial Beach, California (1975): The following federal and
state lands within Jamul Mountains, California (1971) quadrangle map
starting at UTM coordinate 511000 E, 3612000 N, to 512000 E, 3612000
N within the Dulzura, California (1988) quadrangle map to 512000 E,
3611000 N to 511000 E, 3611000 N within the Jamul
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Mountains, California (1971) quadrangle map to 511000 E, 3612000 N.
The following federal and state lands within Otay Mesa, California
(1975) quadrangle map starting at UTM coordinate 506000 E, 3608000 N
to 507000 E, 3608000 N to 507000 E, 3606000 N to 506000 E, 3606000 N
to 506000 E, 3608000 N. The following federal and state lands within
Otay Mesa, California (1975) quadrangle map starting at UTM
coordinate 505000 E, 3605000 N to 506000 E, 3605000 N to 506000 E,
3603000 N to 505000 E, 3603000 N to 505000 E, 3605000 N. The
following federal and state lands within Otay Mesa, California
(1975) quadrangle map starting at UTM coordinate 502000 E, 3607000 N
to 503000 E, 3607000 N to 503000 E, 3605000 N to 502000 E, 3605000 N
to 502000 E, 3607000 N. The following federal and state lands within
Imperial Beach, California (1975) quadrangle map starting at UTM
coordinate 489000 E, 3603000 N to 489000 E, 3602000 N to 488000 E,
3602000 N to 488000 E, 3603000 N to 489000 E, 3603000 N.
Dated: February 29, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-5413 Filed 3-7-00; 8:45 am]
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