[Federal Register Volume 68, Number 77 (Tuesday, April 22, 2003)]
[Proposed Rules]
[Pages 19888-19917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9434]



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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 San Diego Fairy Shrimp (Branchinecta sandiegonensis); 
Proposed Rule

  Federal Register / Vol. 68, No. 77 / Tuesday, April 22, 2003 / 
Proposed Rules  

[[Page 19888]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI71


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the San Diego Fairy Shrimp (Branchinecta 
sandiegonensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate new critical habitat units pursuant to the Endangered Species 
Act of 1973, as amended (Act), for the San Diego fairy shrimp 
(Branchinecta sandiegonensis). The San Diego fairy shrimp is listed as 
an endangered species under the Act. A total of approximately 2,468 
hectares (6,098 acres) of land within Orange and San Diego counties, 
California, are within the boundaries of proposed critical habitat.
    Critical habitat receives protection from destruction or adverse 
modification through consultation under section 7 of the Act with 
regard to actions carried out, funded, or authorized by a Federal 
agency. Section 4 of the Act requires us to consider economic and other 
relevant impacts when specifying any particular area as critical 
habitat.
    We are soliciting data and comments from the public on all aspects 
of this proposal, including data on economic and other impacts of the 
designation, and our approaches for handling any future habitat 
conservation plans and Department of Defense installations. We may 
revise this proposal prior to final designation to incorporate or 
address new information received during the comment period.
    The drafting and review of this proposed rule revealed a number of 
difficult and complex issues regarding which public comment would be 
particularly helpful, especially given the strict court-ordered 
deadline pursuant to which this proposal is being published. Therefore, 
in addition to the general comments requested above, we are requesting 
public comment either in support of or opposition to a number of 
specific issues associated with this proposal to assist in development 
of a final rule.

DATES: We will accept comments until June 23, 2003. Public hearing 
requests must be received by June 6, 2003.

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, 6010 Hidden Valley Road, Carlsbad, CA 92009.
    (2) You may also send comments by electronic mail (e-mail) to 
[email protected]. See the Public Comments Solicited section below for 
file format and other information about electronic filing.
    (3) You may hand-deliver comments to our Carlsbad Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, 
Carlsbad, CA 92009.
    Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and 
Wildlife Office, at the above address (telephone 760/431-9440; 
facsimile 760/431-9618).

SUPPLEMENTARY INFORMATION:

Background

    The San Diego fairy shrimp (Branchinecta sandiegonensis) is a small 
aquatic crustacean in the order, Anostraca, restricted to vernal pools 
in coastal southern California and south to northwestern Baja 
California, Mexico. Vernal pools contain water in the winter months 
which drains and evaporates giving way to a vernal display of 
wildflowers. The San Diego fairy shrimp is a habitat specialist found 
in smaller, shallow vernal pools and ephemeral (lasting a short time) 
basins that range in depth from approximately 5 to 30 centimeters (cm) 
(2 to 12 inches (in)) (Simovich and Fugate 1992; Hathaway and Simovich 
1996). Water chemistry is also an important factor in determining fairy 
shrimp distribution (Belk 1977; Gonzales et al. 1996). This species 
does not occur in riverine or marine waters. All known localities are 
below 701 meters (m) (2,300 feet (ft)) and are within 64 kilometers 
(km) (40 miles (mi)) of the Pacific Ocean.
    San Diego fairy shrimp is one of several Branchinecta species that 
occur in southern California (Simovich and Fugate 1992). Other species 
of Branchinecta in southern California include the nonlisted versatile 
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, the length of 
the ovary, 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 wavelike 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 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). Fairy shrimp are 
presumed to feed on algae, bacteria, protozoa, rotifers, and bits of 
organic matter (Pennak 1989; Eng et al. 1990; Parsick 2002).
    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 to 14 
days, depending on water temperature (Hathaway and Simovich 1996; 
Simovich and Hathaway 1997). San Diego fairy shrimp may no longer be 
visible 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 eggs,'' or ``cysts,'' are capable of withstanding 
temperature extremes and prolonged drying. When the pools refill in the 
same or subsequent rainy seasons, some but not 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, small aquatic crustaceans 
like the San Diego fairy shrimp, and occur in areas with variable 
weather conditions or filling periods, may hatch only a fraction of the 
total

[[Page 19889]]

cyst (organisms in a resting stage) bank in any given year. Thus, the 
San Diego fairy shrimp is adapted to highly variable environments .
    San Diego fairy shrimp require functioning vernal pools for their 
conservation (Belk 1998). Both the pool basin and the surrounding 
watershed are essential for a functioning vernal pool system (Hanes and 
Stromberg 1998). Loss of upland vegetation, increased overland flow due 
to urban runoff, and alteration of the micro-topography can all alter 
the narrow physiological parameters that the San Diego fairy shrimp 
requires for survival.
    The maintenance of genetic variability is crucial to the survival 
of a species with declining populations and a limited range, such as 
the San Diego fairy shrimp (Gilpin and Soule 1986; Lesica and Allendorf 
1995). Vernal pool complexes throughout the range of the San Diego 
fairy shrimp are critical for the conservation of this species. 
Likewise, the pools within a multi-pool complex are also important for 
the local population of San Diego fairy shrimp to remain viable. Vernal 
pool complexes identified as necessary in the Recovery Plan for Vernal 
Pools in Southern California must be secured in a configuration that 
maintains habitat function and viability. There are several reasons for 
this. Each vernal pool complex is unique in soil type, species 
composition, and hydrology (Service 1998). This high degree of 
variability in habitat combined with the unpredictability of winter 
rains (pool filling events) has given rise to a genetic structure 
between pool complexes (Davies 1996; Davies et al. 1997). This means 
that San Diego fairy shrimp living in one pool complex may not be 
adapted to a pool complex elsewhere in the species range. This research 
also revealed that within pool complexes there was a low degree of 
genetic variability. The genetic structure and low genetic variability 
suggests that there is a low degree of gene exchange between different 
pool complexes. This research indicates that pool complexes throughout 
the range contain unique genetic traits necessary for the conservation 
of San Diego fairy shrimp.
    The life cycle of the San Diego fairy shrimp is such that in any 
single breeding event there may be individuals present from multiple 
generations. This has the effect of dampening the effects of genetic 
drift and inbreeding that are normally associated with a small 
population size. In particular this makes the preservation of existing 
vernal pools a high priority for critical habitat designation because 
of the cyst banks that are present in natural pools (Belk 1998). 
Creation of vernal pools has not been successfully implemented as a 
viable measure to compensate for impacts to vernal pools. Restoration 
of vernal pools has been successfully completed; however, restoration 
must be carefully pursued. Restored pools may lack the multi-
generational cyst bank. In the event that soils are transported from 
existing vernal pools to a restoration site, soils may be mixed, 
compacted, or otherwise mistreated so that the cyst bank can no longer 
function (Hathaway et al. 1996). Thus, restored pools may not exhibit 
the necessary genetic dynamics of natural pools and may not contribute 
as significantly as natural vernal pools.
    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 through San Diego County to the 
international border with Mexico. 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). The presence of 
the surrounding watershed is a vital component of a vernal pool 
ecosystem. The term ``watershed'' is commonly associated with riverine 
drainages, however, in the context of this discussion the term 
``watershed'' refers to the land surrounding a single vernal pool or 
vernal pool complex that contributes to the hydrology of the vernal 
pools. These watersheds can vary in size from a few hundred meters to 
much larger areas around the vernal pools.
    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). The integrity of both the vernal pool and the 
surrounding watershed is crucial to the long term survival and 
conservation of the San Diego fairy shrimp.
    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 1977). 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) microtopography, 
varied pool basin size and depth, and vernal swales (low tract of 
marshy land). Vernal pool complexes that support one to many distinct 
vernal pools are often interconnected by a shared watershed. Chemistry, 
geophysiology, and hydrology influenced by watershed characteristics 
determine the distribution of vernal pool species (Dehoney and Lavigne 
1984; Eng et al., 1990, Branchiopod Research Group 1996), therefore 
ecosystems on which the San Diego fairy shrimp and its vernal pool 
habitat depend are best described from a watershed perspective (see 
Recovery Criteria 1 and 2 in the Recovery Plan for Vernal Pools of 
Southern California, Service 1998). California's vernal pools begin to 
fill with the fall and winter rains. Before ponding occurs, there is a 
period during which the soil is wetted and the local water table may 
rise. Some pools in a complex have a substantial watershed that 
contributes to water input; others may fill almost entirely from rain 
falling directly into the pool (Hanes and Stromberg, 1998). Even in 
pools filled primarily by direct precipitation, subsurface inflows from 
surrounding soils can help dampen water level fluctuations during late 
winter and early spring (Hanes and Stromberg 1998).
    Vernal pools exhibit four major phases--the wetting phase, when 
vernal pool soils become saturated; the aquatic phase, when a perched 
water table develops within the watershed and the vernal pool contains 
water; a waterlogged drying phase, when the vernal pool begins losing 
water as a result of evaporation and loss to the surrounding soils but 
soil moisture remains high; and the dry phase, when the vernal pool and 
underlying soils are completely dry (Keeley and Zedler 1998). Upland 
areas within vernal pool watersheds are also an important source of 
nutrients to vernal pool organisms. Vernal pool habitats derive most of 
their nutrients from detritus, which is

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washed into the pool from adjacent uplands, and these nutrients provide 
the foundation for the vernal pool aquatic community food chain 
(Eriksen and Belk 1999).
    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 51,800 hectares (ha) (200 
square miles (mi.\2\)) in San Diego County (Bauder and McMillan 1998). 
The majority of these pools were destroyed prior to 1990. On the basis 
of available information to us at the time the species was listed, we 
estimated that fewer than 81 ha (200 acres (ac)) of occupied vernal 
pool habitat remained. This calculation was based on the area of the 
specific vernal pool basins that contained San Diego fairy shrimp, and 
did not include the acreage of the surrounding watersheds. 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 
and 1990. Similar to San Diego County, vernal pool habitat was once 
extensive on the coastal plain of Los Angeles and Orange counties 
(Mattoni and Longcore 1997). Unfortunately, there has been a near-total 
loss of vernal pool habitat in these areas (Ferren and Pritchett 1988; 
Keeler-Wolf et al. 1995). It is estimated that 70 percent of existing 
vernal pools occurs on lands managed by the Department of Defense 
(Bauder and Weir 1991).
    Urban and water development; flood control, highway, and utility 
projects; and conversion of wildlands to agricultural use have 
eliminated vernal pools and their watersheds in southern California 
(Jones and Stokes Associates 1987). Changes in hydrologic patterns, 
overgrazing, and off-road vehicle use also impact vernal pools. The 
flora and fauna in vernal pools or swales can change if the hydrologic 
regime is altered (Bauder 1986). Human activities that reduce the 
extent of the watershed or that alter runoff patterns (i.e., amounts 
and seasonal distribution of water) may eliminate 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 natural 
communities in the State of California that occur over fewer than 809 
ha (2,000 ac) globally.

Previous Federal Action

    The San Diego Biodiversity Project in Julian, California; Our Lady 
of the Lake University in San Antonio, Texas; and the Biodiversity 
Legal Foundation submitted a petition to us, dated March 16, 1992, to 
list the San Diego fairy shrimp as an endangered species pursuant to 
the Endangered Species Act of 1973, as amended (Act). 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). The Vernal 
Pool Recovery Plan, which included recovery planning for this species, 
was published in 1998.
    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.
    On October 14, 1998, the Southwest Center for Biological Diversity 
filed a lawsuit in the U.S. District Court for the Southern District of 
California challenging our decision not to designate critical habitat 
for the San Diego fairy shrimp. On September 16, 1999, the court 
ordered that ``[O]n 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 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.).
    After reviewing our not-prudent determination, we concluded that 
the threats to this species and its habitat from specific instances of 
habitat destruction did not outweigh the broader educational, potential 
regulatory, and other benefits that designation of critical habitat 
would provide for this species. We determined that a designation of 
critical habitat would 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 concluded that the benefits of 
designating critical habitat on lands essential for the conservation of 
the San Diego fairy shrimp would not increase incidences of vandalism 
above current levels for this species.
    On March 8, 2000, we published our determination that critical 
habitat for the San Diego fairy shrimp was prudent and a concurrent 
proposed rule to designate critical habitat for the San Diego fairy 
shrimp on approximately 14,771 ha (36,501 ac) of land in Orange and San 
Diego counties, California (65 FR 12181). The public comment period was 
open for 60 days. On August 21, 2000, we published a notice of 
availability for the draft economic analysis and reopening of the 
comment period for the proposed critical habitat designation for the 
San Diego fairy shrimp (65 FR 50672). The second comment period closed 
on September 5, 2000. On October 23, 2000, we published a final rule 
designating approximately 1,629 ha (4,025 ac) of critical habitat for 
the San Diego fairy shrimp in Orange and San Diego counties, California 
(65 FR 63438).
    On January 17, 2001, a lawsuit challenging the designation of 
critical habitat for the San Diego fairy shrimp and coastal California 
gnatcatcher was filed by multiple parties including Building Industry 
Association of Southern California, National Association of Home 
Builders, and Foothill/Eastern Transportation Corridor (Building 
Industry Association of Southern California et al. v. Norton, CV 01-
7028). The lawsuit was filed in the U.S. District Court for the 
District of Columbia.
    The U.S. District Court for the District of Columbia issued an 
order on July 3, 2001, transferring this lawsuit and another lawsuit 
challenging the designation of critical habitat for the coastal 
California gnatcatcher to the U.S. District Court for the Central 
District of California (Rancho Mission Viejo L.L.C. v. Babbitt, CV 01-
8412).
    On June 11, 2002, the U.S. District Court for the Central District 
of California granted the Service's request for a remand of the San 
Diego fairy shrimp critical habitat designation so that we may 
reconsider the economic impact associated with designating any 
particular area as critical habitat. The Court ordered us to complete a 
new

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proposed rule on or before April 11, 2003. In a subsequent order the 
Court held that the critical habitat designated for the San Diego fairy 
shrimp on October 23, 2000 (65 FR 63438) should remain in place until 
such time as a new, final regulation becomes effective.
    This proposal for critical habitat for the San Diego fairy shrimp 
differs from the current designation of critical habitat with respect 
to the mapping grid size and changes of locations of critical habitat 
due to new survey data. In the preparation of this proposed critical 
habitat we were able to reduce the minimum mapping unit from a 250 
meter UTM grid to a 100 meter UTM grid. This allowed for the grid to 
more closely follow the watershed boundaries. Through new surveys for 
the San Diego fairy shrimp, the presence of San Diego fairy shrimp was 
confirmed in four additional vernal pool complexes in Orange County. 
The presence of the San Diego fairy shrimp was also reported from the 
Naval Radio Receiving Facility (NRRF) in Southern San Diego County and 
vernal pools in the City of San Marcos. However, NRRF is not proposed 
because of a completed and approved INRMP. Besides these additional 
confirmations, surveys at the Palomar Airport pools, an area previously 
designated as critical habitat, found the pools to be unoccupied by the 
San Diego fairy shrimp, thus they are no longer proposed as critical 
habitat. This proposal is consistent with the previous designation of 
critical habitat. Exclusions under 3(5)(A) and 4(b)(2) are similar to 
the exclusions in the existing critical habitat.

Critical Habitat

    Section 3 defines critical habitat 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 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat.
    To be included in a critical habitat designation, habitat must be 
either a specific areas within the geographic area occupied by the 
species on which are found those physical or biological features 
essential to the conservation of the species (primary constituent 
elements, as defined at 50 CFR 424.12(b)) and which require special 
management considerations or protections, or be specific areas outside 
of the geographic area occupied by the species which are determined to 
be essential to the conservation of the species. Section 3(5)(C) of the 
Act states that not all areas that can be occupied by a species should 
be designated as critical habitat unless the Secretary determines that 
all such areas are essential to the conservation of the species. Our 
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall 
designate as critical habitat areas outside the geographic area 
presently occupied by the species only when a designation limited to 
its present range would be inadequate to ensure the conservation of the 
species.''
    Accordingly, we do not designate critical habitat in areas outside 
the geographic area occupied by the species unless the best available 
scientific and commercial data demonstrate that unoccupied areas are 
essential for the conservation needs of the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic, and any other relevant impact, of specifying any 
particular area as critical habitat. We may exclude areas from critical 
habitat designation when the benefits of exclusion outweigh the 
benefits of including the areas within critical habitat, provided the 
exclusion will not result in extinction of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our 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 are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of what we know at the time of designation. 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 newly discovered populations in the future, 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 and the section 9(a)(2) prohibitions, 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.

Relationship to Sections 3(5)(A) and 4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations and protection. As such, for an area to be 
designated as critical habitat for a species it must meet both 
provisions of the definition. In those cases where an area does not 
provide those physical and biological features essential to the 
conservation of the species, it has been our policy to not include 
these specific areas in designated critical habitat. Likewise, if we 
believe, based on an

[[Page 19892]]

analysis, that an area determined to be biologically essential has an 
adequate conservation management plan that covers the species and 
provides for adaptive management sufficient to conserve the species, 
then special management and protection are already being provided, and 
then those areas do not meet the second provision of the definition and 
are also not proposed as critical habitat.
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised, on the basis of the best available 
scientific data available after taking into consideration the economic 
impact, and any other relevant impact, of specifying any particular 
area as critical habitat. An area may be excluded from critical habitat 
if it is determined, following an analysis, that the benefits of such 
exclusion outweigh the benefits of specifying a particular area as 
critical habitat, unless the failure to designate such area as critical 
habitat will result in the extinction of the species. Consequently, we 
may exclude an area from designated critical habitat based on economic 
impacts, or other relevant impacts such as preservation of conservation 
partnerships and national security, if, we determine, the benefits of 
excluding an area from critical habitat outweigh the benefits from 
including the area in critical habitat, providing the action of 
excluding the area will not result in the extinction of the species.
    In our critical habitat designations we have used both the 
provisions outlined in sections 3(5)(A) and 4(b)(2) of the Act to 
evaluate those specific areas that are proposed for designation as 
critical habitat and those areas which are subsequently finalized 
(i.e., designated). On the basis of these provisions, it has been our 
policy to not include in proposed critical habitat, or exclude from 
designated critical habitat, those areas: (1) Not biologically 
essential to the conservation of a species, (2) covered by a legally 
operative individual (project-specific) or regional habitat 
conservation plans (HCPs) that cover the subject species, (3) covered 
by a completed and approved Integrated Natural Resource Management 
Plans (INRMPs) for specific Department of Defense (DoD) installations, 
or (4) covered by an adequate conservation management plan or 
agreement.

Relationship to Habitat Conservation Plans

Individual Habitat Conservation Plans
    In general, we believe that lands essential to the conservation of 
San Diego fairy shrimp that are protected in reserves established in 
individual HCPs and for which adaptive management and protections are 
in place do not require special management and protections because 
their value for conservation has been addressed by the existing 
protective measures and actions from the provisions of the HCP. 
Consequently, reserve areas defined in these individual HCPs do not 
meet the definition of critical habitat. Further, to the extent that 
these areas do meet the definition of critical habitat as defined in 
3(5)(A)(i)(II), it is additionally appropriate to exclude these areas 
from critical habitat pursuant to the ``other relevant impacts'' 
provisions of section 4(b)(2). Therefore, individual HCPs that cover 
the San Diego fairy shrimp are not being proposed as critical habitat 
for the species.
Regional Habitat Conservation Plans
    We have considered, but have not proposed as critical habitat those 
preserve, reserve, or other conservation lands within the boundaries of 
approved and legally operative regional HCPs that provide coverage for 
the San Diego fairy shrimp. On the basis of the Secretary of the 
Interior's authority under section 4(b)(2) of the Act we believe the 
benefits of excluding these lands outweigh the benefits of including 
them. Unlike individual HCPs significant portions of the lands to be 
conserved and managed under these regional plans when they are fully 
implemented, are not currently receiving special management or 
protections. Therefore, these lands meet the definition of critical 
habitat as outlined in section 3(5)(A) of the Act in that they are 
``essential to the conservation of the species'' and ``may require 
special management considerations or protection.'' This is because, in 
contrast to fully implemented individual HCPs, the assembly of reserve 
lands and establishment of protection and special management for 
reserve lands in these regional HCPs occurs over decades as the 
conservation program is put into place. Thus lands that are designated 
for inclusion in a reserve once the plan is fully implemented still may 
require special management or protection until such inclusion occurs. 
In addition, in many cases, vernal pools and their surrounding habitats 
are not within the boundaries of designated or targeted reserve lands 
in these regional plans, which typically have focused reserve lands and 
boundaries around the species that occupy the coastal sage scrub 
habitat community rather than the vernal pool ecosystem.
    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 and 
represents a large investment in a conservation partnership. HCPs vary 
in size and complexity. They may provide incidental take coverage and 
conservation management for one, several, or many federally listed 
species. Additionally, there may be one or more than one applicant 
participating in the development and implementation of an HCP.
    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 large, regional HCPs in southern California have been, 
or are being, developed to provide for the conservation of numerous 
federally listed and unlisted sensitive species and the habitats that 
provide for their respective biological needs. These HCPs are designed 
to proactively implement conservation actions to address projects that 
are proposed to occur within the planning area of the HCP; however, 
given the broad scope of these regional HCPs, not all projects 
envisioned to potentially occur within the planning area of a regional 
HCP may actually take place.
    In the case of approved regional HCPs (i.e., those sponsored by 
cities, counties or other local jurisdictions) that provide coverage 
for the San Diego fairy shrimp, a primary goal is to provide for the 
protection and management of habitat areas essential to the 
conservation of the species while accommodating economic development. 
The regional HCP development process provides an opportunity for more 
intensive data collection and analysis regarding the use of particular 
habitat areas by the San Diego 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 
system of interlinked habitat blocks that provide for the biological 
needs of the species.
    Approved HCPs and their accompanying implementation agreements 
outline appropriate management measures and protections for covered 
species for the purpose of protecting, restoring, and enhancing the 
value of habitat for the conservation of the San Diego fairy shrimp. 
These measures, which include explicit standards to avoid to the 
maximum extent practicable and minimize impacts to the species and its 
habitat

[[Page 19893]]

resulting from urban development for vernal pools, are designed to 
ensure the continued value of vernal pools that are both within and 
outside of the preserve boundaries as suitable habitat for the San 
Diego fairy shrimp. HCPs provide for active conservation actions that 
positively benefit the affected species, while the maximum requirement 
that results from critical habitat designation is that parties subject 
to a Federal nexus refrain from undertaking actions that adversely 
modify the designated area. Active conservation measures are of greater 
benefit to the species than mere avoidance of harm. These measures 
cannot be compelled under a critical habitat designation, but must be 
volunteered by the parties to the HCP.
    Pursuant to the terms of implementation agreements signed by the 
Service and permit holders in connection with approved HCPs and their 
associated incidental take permits, once the protection and management 
required under the HCPs are in place and assuming the established HCPs 
are functioning properly, no additional mitigation in the form of land 
or financial compensation may be required of the permit holders and 
certain identified third parties except as provided under the terms of 
the individual HCP. Similar assurances will be extended to future 
permit holders in accordance with our Habitat Conservation Plan 
Assurance (``No Surprises'') rule codified at 50 CFR 17.22(b)(5) and 
(6), and 17.32(b)(5) and (6).
    In light of the intensive investigation and analysis, public 
comment, and internal section 7 consultations undertaken prior to 
approval of regional and other Habitat Conservation Plans, we are 
confident that individual HCPs identify, protect, and provide 
beneficial adaptive management for essential vernal pool habitat within 
the boundary of HCPs. Similarly, regional HCPs also identify and will, 
as the plans are implemented over the life of the permits, protect and 
provide beneficial adaptive management for essential vernal pool 
habitat within their boundaries. Therefore, we have considered, but 
have not proposed critical habitat for the San Diego fairy shrimp 
within these approved HCPs pursuant to Section 4(b)(2) of the Act. We 
are soliciting additional public review and comment on these 
conclusions.
    We are proposing to exclude currently proposed HCPs that cover the 
San Diego fairy shrimp if, prior to publication of a final rule 
designating critical habitat for the San Diego fairy shrimp, the plans 
are completed, approved, and legally operative. We will evaluate the 
exclusion of these lands on the basis of the best scientific and 
commercial data available, and after taking into consideration the 
economic and any other relevant impact of designating critical habitat. 
Following is our preliminary analysis of the benefits of including 
lands within approved HCPs versus excluding such lands from critical 
habitat designation.
(1) Benefits of Inclusion
    Critical habitat designation is anticipated to provide little 
additional benefit to the San Diego fairy shrimp within the boundaries 
of approved HCPs. The primary benefit of any critical habitat is that 
activities that require Federal funding, permitting, or authorization 
and which may affect critical habitat require consultation pursuant to 
section 7 of the Act to ensure the activity will not destroy or 
adversely modify designated critical habitat. Consultations would also 
include the associated vernal pool watershed that are designated as 
critical habitat. However, as a result of the United States Supreme 
Court decision in Solid Waste Agency of Northern Cook County v. U.S. 
Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), there may be 
limited opportunities to consult with the U.S. Army Corps of Engineers 
on activities that may affect vernal pools.
    Currently approved and permitted HCPs are already designed to 
ensure the conservation of covered species within the plan area. 
Additionally, an HCP application must itself be consulted upon pursuant 
to section 7 of the Act. All HCPs address land use within the plan 
boundaries, and habitat issues as they relate to land use will have 
been addressed within the HCP through our consultation on the HCP.
    Furthermore, regional HCPs typically provide greater conservation 
benefits to covered species than independent, project-by-project 
section 7 consultations because HCPs assure the long-term protection 
and special management needs for these species and their habitats, and 
the funding for such management and protections through the standards 
found in the 5-Point Policy for HCPs (65 FR 35242, June 1, 2000) and 
the HCP No Surprises regulation (63 FR 8859, February 23, 1998). These 
types of assurances are typically not provided by individual, project-
by-project section 7 consultations because such consultations do not 
always commit the project proponent to long-term special management or 
protections; therefore, a consultation may not accord the lands it 
covers the extensive benefit a regional HCP provides. It is also 
important to note that an HCP does not preclude the requirement for 
Federal agencies to consult under section 7 of the Act for projects 
that are proposed to occur within the plan area of HCPs, even if the 
proposed action is a covered activity.
    Development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information to guide conservation efforts and assist in species' 
recovery, and the creation of innovative solutions to conserve species 
while allowing for continued economic development.
    The educational benefits of critical habitat, including informing 
the public of areas that are important to the conservation of listed 
species, are essentially the same as those that would occur during the 
process of approving an HCP. Specifically, an HCP involves public 
participation through public notices and public comment periods, prior 
to being approved. For these reasons, we believe that designation of 
critical habitat typically provides little additional benefit in areas 
covered by approved HCPs.
(2) Benefits of Exclusion
    We have determined that the benefits of excluding lands within 
approved HCPs from critical habitat designation may be more 
substantial. The benefits of excluding lands within HCPs from critical 
habitat designation include relieving landowners, communities and 
counties of any additional regulatory burden that may result from such 
designation. Many HCPs, particularly large, regional HCPs, take many 
years to develop and, upon completion, become regional conservation 
plans that are consistent with the recovery objectives for listed 
species that are covered within the plan area. Additionally, many of 
these HCPs provide conservation benefits to unlisted sensitive species. 
Imposing an additional regulatory review after an HCP is completed 
solely on the basis of critical habitat designation may jeopardize 
conservation efforts and partnerships in many areas, and could be 
viewed as a disincentive to those entities developing HCPs.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the continued ability to seek new partnerships 
with future HCP participants including the State of California, 
counties, local jurisdictions, conservation organizations, and private 
landowners, that together can implement conservation actions that we 
would be unable to accomplish

[[Page 19894]]

otherwise. If lands within HCP plan areas are designated as critical 
habitat, it would likely have a chilling effect on our ability to 
establish new partnerships to develop HCPs, particularly large, 
regional HCPs that involve numerous participants and address landscape-
level conservation of species and habitats. By considering excluding 
these lands, we preserve our current partnerships and, we believe, set 
the stage for additional conservation actions in the future.
    In addition to the conservation benefits HCPs provide to covered 
species within the plan areas, many of these HCPs, particularly large, 
regional HCPs, also address landscape-level conservation of native 
habitats. The Natural Communities Conservation Planning Act of 1991 
(NCCP) provides a framework for conserving listed and other sensitive 
species at a regional or ecosystem scale. The pilot program of the NCCP 
focuses on conservation of native coastal sage scrub communities 
throughout a 6,000-square-mile area in southern California that 
includes parts of Los Angeles, Orange, San Diego, Riverside, and San 
Bernardino counties. The NCCP program complements the objectives of 
regional HCP planning efforts. In southern California, several regional 
conservation planning efforts that incorporate the dual objectives of 
NCCP/HCP have already been approved.
    In southwestern San Diego County, the Multiple Species Conservation 
Program (MSCP) effort encompasses more than 236,000 ha (582,000 ac) and 
reflects the potential participation of more than 12 local 
jurisdictions. The MSCP provides for the establishment over the permit 
term of approximately 69,573 ha (171,000 ac) of preserve areas to 
provide conservation benefits for 85 federally listed and sensitive 
species. Under the broad umbrella of the MSCP, each participating 
jurisdiction prepares a Subarea Plan that complements the goals of the 
MSCP. Each Subarea Plan is consulted on under section 7 of the Act to 
ensure the Subarea Plans are consistent with the aims of the MSCP.
    The MSCP provides for avoidance of impacts to vernal pool habitat 
for the San Diego fairy shrimp both within and outside of existing and 
targeted reserve areas. In addition, the incidental take permits issued 
to the City and County of San Diego under the MSCP limits take of San 
Diego fairy shrimp to areas outside of jurisdictional waters of the 
United States, as that term was understood at the time the permits were 
issued prior to the SWANCC decision. In other words, take of San Diego 
fairy shrimp under the approved subarea plans is limited to situations 
where the species occurs outside of its natural vernal pool habitat. 
The subarea plans also contemplated individualized review of projects 
impacting vernal pool habitat of the San Diego fairy shrimp under 
Section 404 of the Clean Water Act and Section 7 of the ESA to insure 
compliance with the Environmental Protection Agency Clean Water Act, 
404(b)(1) guidelines and the Federal policy of ``no net loss of wetland 
function and values''; however, that review may not occur because of 
the intervening SWANCC decision. Even without that additional Section 7 
review, however, the commitment by the City and County to avoid impacts 
to vernal pool habitat both within and outside reserve areas to the 
maximum extent practicable remains in place. The plans also commit the 
jurisdictions to affirmatively monitor and adaptively manage vernal 
pool habitats and species. Those measures combined with the restrictive 
incidental take authorized under the City and County incidental take 
permits, will ensure the conservation of the San Diego fairy shrimp and 
its vernal pool habitat within the approved MSCP subarea plan areas.
    The Central-Coastal NCCP/HCP in Orange County was developed in 
cooperation with numerous State and local jurisdictions, agencies, and 
participating landowners including the cities of Anaheim, Costa Mesa, 
Irvine, Orange, and San Juan Capistrano; Southern California Edison, 
the 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 15,677 ha (38,738 ac) of reserve lands for 39 Federal or 
State listed and unlisted and sensitive species.
    There are three known locations of vernal pools occupied by San 
Diego fairy shrimp within the Central-Coastal NCCP/HCP boundaries: 
Fairview Regional Park, Newport-Banning Ranch, and the North Ranch 
Policy Plan Area. The vernal pool complex at Fairview Regional park 
occurs within a city that is not a participating jurisdiction under the 
Central-Coastal NCCP/HCP. The Newport Banning Ranch is designated as an 
``existing use'' habitat area in the Central-Coastal NCCP/HCP and is 
not covered for the take of any federally listed species, including the 
San Diego fairy shrimp. San Diego fairy shrimp known from the North 
Ranch Policy Plan area occur in a non-degraded, natural vernal pool. 
There is currently a Nature Conservancy conservation easement over the 
portion of the North Ranch Policy Plan area containing vernal pool 
habitat and a management endowment for the easement, but a conservation 
management plan has not yet been completed for the area. Under the 
Central-Coastal NCCP/HCP, SDFS occurring within these three vernal pool 
areas are not covered by the plan.
    Several regional NCCP/HCP efforts are currently under way in 
southern California that have not yet been completed but which, upon 
approval, should provide conservation benefits to the San Diego fairy 
shrimp.
    The Multiple Habitat Conservation Program (MHCP) in northwestern 
San Diego County encompasses approximately 45,300 ha (175 
mi.2) within the study area, including vernal pool habitat. 
Currently, seven cities are participating in the development of the 
MHCP.
    The proposed Southern Subregion NCCP/HCP in Orange County 
encompasses approximately 51,800 ha (200 mi.2) in its 
planning area, including vernal pool habitat for the San Diego fairy 
shrimp. Jurisdictions and private landowners within the study area 
include the cities of Rancho Santa Margarita, Mission Viejo, San Juan 
Capistrano, San Clemente, and Rancho Mission Viejo.
    In general, we find that the benefits of critical habitat 
designation on lands within approved HCPs that cover those species are 
small, while the benefits of excluding such lands from designation of 
critical habitat are substantial. After weighing the small benefits of 
including these lands against the much greater benefits derived from 
exclusion, including encouragement for the pursuit of additional 
conservation partnerships, we have considered, but have not proposed 
critical habitat on reserve, preserve, or other lands targeted for 
conservation within the boundaries of approved HCPs that include the 
San Diego fairy shrimp as a covered species.
    In the event that future HCPs covering the San Diego fairy shrimp 
are developed within the boundaries of designated critical habitat, we 
will work with applicants to ensure that the HCPs provide for 
protection and management of habitat areas essential for the 
conservation of the species. We will provide technical assistance and 
work closely with applicants throughout the development of future HCPs 
to identify lands essential for the long-term conservation of the San 
Diego fairy shrimp and appropriate management for those lands. The take 
minimization and mitigation measures provided under these HCPs are 
expected to protect the

[[Page 19895]]

essential lands that are proposed as critical habitat in this rule. If 
an HCP that addresses the San Diego fairy shrimp as a covered species 
is ultimately approved, the Service can reassess the critical habitat 
boundaries in light of the HCP. The Service would seek to undertake 
this review when the HCP is approved, but funding constraints may 
influence the timing of such a review.

Relationship to Department of Defense Lands

Marine Corps Air Station, Miramar and Naval Radio Receiving Facility
    The Sikes Act Improvements Act of 1997 (Sikes Act) requires each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an Integrated Natural Resources Management Plan 
(INRMP). An INRMP integrates implementation of the military mission of 
the installation with stewardship of the natural resources found there. 
Each INRMP includes an assessment of the ecological needs on the 
installation, including needs to provide for the conservation of listed 
species; a statement of goals and priorities; a detailed description of 
management actions to be implemented to provide for these ecological 
needs; and a monitoring and adaptive management plan. We consult with 
the military on the development and implementation of INRMPs for 
installations with listed species. We believe that bases that have 
completed and approved INRMPs that address the needs of the species 
generally do not meet the definition of critical habitat discussed 
above, as they already provide special management or protection. 
Therefore, we do not include these areas in critical habitat 
designations if they meet the following three criteria: (1) A current 
INRMP must be complete and provide a conservation benefit to the 
species; (2) the plan must provide assurances that the conservation 
management strategies will be implemented; and (3) the plan must 
provide assurances that the conservation management strategies will be 
effective, by providing for periodic monitoring and revisions (adaptive 
management) as necessary. If all of these criteria are met, then the 
lands covered under the plan would not meet the second provision of the 
definition of critical habitat pursuant to section 3(5)(A)(i)(II) and 
consequently not proposed as critical habitat for the covered species.
    Marine Corps Air Station, Miramar (MCAS, Miramar) has completed a 
final INRMP in May 2000 that provides for sufficient conservation 
management and protection for the San Diego fairy shrimp. We have 
reviewed this plan and have determined that it addresses and meets the 
three criteria discussed above. Therefore, lands on MCAS, Miramar that 
are biologically essential to the San Diego fairy shrimp do not meet 
the second provision of the definition of critical habitat pursuant to 
section 3(5)(A)(i)(II) as they have currently have special management 
and protection. Consequently, these lands essential to the San Diego 
fairy shrimp have not been included in the proposed designation of 
critical habitat for the species. Further, to the extent that the areas 
biologically essential to the San Diego fairy shrimp on MCAS, Miramar 
may meet the definition of critical habitat as defined in 
3(5)(A)(i)(II), it is additionally appropriate to exclude these areas 
from critical habitat pursuant to the ``other relevant impacts'' 
provisions of section 4(b)(2) as discussed below.
    Similar to MCAS, Miramar, the U.S. Navy's Naval Radio Receiving 
Facility (NRRF) in Coronado also has a completed and approved final 
INRMP that provides for the conservation of the San Diego fairy shrimp. 
Therefore, lands on NRRF that are biologically essential to the San 
Diego fairy shrimp do not meet the second provision of the definition 
of critical habitat pursuant to section 3(5)(A)(i)(II) as they have 
currently have special management and protection. Consequently, these 
lands essential to the San Diego fairy shrimp have not been included in 
the proposed designation of critical habitat for the species. Further, 
to the extent that the areas biologically essential to the San Diego 
fairy shrimp on NRRF may meet the definition of critical habitat as 
defined in 3(5)(A)(i)(II), it is additionally appropriate to exclude 
these areas from critical habitat pursuant to the ``other relevant 
impacts'' provisions of section 4(b)(2) as discussed below.
    The primary benefit of proposing critical habitat is to identify 
lands essential to the conservation of the species which, if critical 
habitat was designated, would require consultation with us to ensure 
activities would not adversely modify critical habitat or jeopardize 
the continued existence of the species. As previously discussed MCAS, 
Miramar and NRRF have completed final INRMPs that provide for 
sufficient conservation management and protection for the San Diego 
fairy shrimp. Therefore, we do not believe that designation of areas on 
MCAS, Miramar and on NRRF as critical habitat will appreciably benefit 
the San Diego fairy shrimp beyond the protection already afforded the 
species under the Act and the completed INRMPs. Exclusion of these 
lands would not result in the extinction of the species.
    However, even if the lands on MCAS, Miramar and NRRF did require 
special management and thus meet the definition of critical habitat, 
there would be appreciable benefits to excluding these areas from 
critical habitat pursuant to section 4(b)(2). If critical habitat were 
to be designated, these facilities would be compelled to consult under 
section 7 of the Act on any activity that may affect designated 
critical habitat. Given the INRMPs, the additional burden of consulting 
could unnecessarily impair their ability to conduct activities. 
Similarly, including these areas in the proposed critical habitat rule 
would require these facilities to conference with us on any activities 
that might adversely modify or destroy proposed critical habitat. This 
could result in unnecessary delays and disruption of base's activities 
and potentially impair our Nation's military readiness. In light of our 
country's national security interest, we have considered, but have not 
proposed critical habitat on MCAS, Miramar or NRRF.
Marine Corps Base, Camp Pendleton
    Critical habitat is being proposed for the San Diego fairy shrimp 
on Department of Defense (DoD) lands including lands that are not 
mission-essential training areas on Marine Corps Base, Camp Pendleton 
(Camp Pendleton); and on lands leased to the State of California by 
Camp Pendleton. Areas proposed as critical habitat for the San Diego 
fairy shrimp on Camp Pendleton meet the definition of critical habitat 
pursuant to section 3(5)(A) in that they are ``essential to the 
conservation of the species'' and ``may require special management or 
protections.''
    Under 4(b)(2) of the Act, we have considered, but have not proposed 
critical habitat on mission-essential training areas on Camp Pendleton. 
Camp Pendleton operates an amphibious training base that promotes the 
combat readiness of military forces and is the only West Coast Marine 
Corps facility where amphibious operations can be combined 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.

[[Page 19896]]

    The Marine Corps consults with us under section 7 of the Act for 
activities that may affect federally threatened or endangered species 
on Camp Pendleton. On March 30, 2000, at the request of the Marine 
Corps, we initiated a formal consultation regarding Marine Corps 
activities on upland areas of Camp Pendleton. The consultation covers 
approximately 60,703 ha (150,000 ac) of land within the upland areas of 
Camp Pendleton, including combat readiness operations, air operations, 
vehicle operations, facility maintenance and operations, fire 
management, recreation activities, and housing. The upland consultation 
that addresses vernal pool habitat, the San Diego fairy shrimp, and 
other species is not yet completed. We are currently working 
cooperatively with Camp Pendleton to facilitate the completion of this 
upland consultation.
    In order to continue its critical training mission pending 
completion of the consultation, the Marine Corps has implemented 
measures the Corps believes will avoid jeopardy to the continued 
existence of the San Diego fairy shrimp and other listed species within 
the uplands area and comply with section 7(d) of the Act. In 
particular, the Marine Corps is implementing a set of ``programmatic 
instructions'' to avoid adverse effects to the San Diego fairy shrimp.
    The primary benefit of proposing critical habitat is to identify 
lands essential to the conservation of the species which, if critical 
habitat was designated, would require consultation with us to ensure 
activities would not adversely modify critical habitat or jeopardize 
the continued existence of the species. We are already in formal 
consultation with the Marine Corps on their upland activities to ensure 
current and proposed actions will not jeopardize the species' continued 
existence. Therefore, we do not believe that designation of mission-
essential training areas on Camp Pendleton as critical habitat will 
appreciably benefit the San Diego fairy shrimp beyond the protection 
already afforded the species under the Act. Exclusion of these lands 
will not result in the extinction of the species.
    In contrast to the absence of an appreciable benefit resulting from 
designation of Camp Pendleton training areas, there are substantial 
benefits to excluding these areas from critical habitat. If critical 
habitat were to be designated within the training areas, the Marine 
Corps would be compelled to consult under section 7 of the Act on any 
activity that may affect designated critical habitat. The additional 
burden of consulting on activities within mission-essential training 
could delay and impair the ability of the Marine Corps to conduct 
training activities, thus, limiting Camp Pendleton's utility as a 
military training installation. Similarly, including these areas in the 
proposed critical habitat rule would require the Marine Corps to 
conference with us on any activities that might adversely modify or 
destroy proposed critical habitat. This would result in similar delays 
and disruption of base's military training mission and impairment of 
our Nation's military readiness.
    In light of our country's national security interest in ensuring 
Camp Pendleton's ability to maintain a high level of readiness and 
fighting capabilities, and the disruption to the Marine Corps' training 
mission, we have considered, but have not proposed critical habitat on 
lands identified as mission-essential training areas.
    We are soliciting public review and comment on our decision to 
consider, but not propose critical habitat for the San Diego fairy 
shrimp on mission-essential training areas of Camp Pendleton, based on 
section 4(b)(2) of the Act. Maps delineating habitat for the San Diego 
fairy shrimp, overlaid with mission-essential training areas on Camp 
Pendleton, are available for public review and comment at the Carlsbad 
Fish and Wildlife Office (see ADDRESSES section) or on the Internet at 
http://carlsbad.fws.gov. Additionally, maps showing lands essential to 
the conservation of the San Diego fairy shrimp, but not included in 
proposed critical habitat based and the provisions of section 
3(5)(A)(i)(II), are available for viewing at the Carlsbad Fish and 
Wildlife Office (see Addresses section). These maps are provided to 
allow the public to adequately comment on these exclusions.

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 for Vernal Pools of Southern California (Recovery Plan) 
(Service 1998), regional Geographic Information System (GIS) vegetation 
and species coverages (including vegetation layers for Orange and San 
Diego counties), data collected on Camp Pendleton and MCAS, Miramar, 
data collected from reports submitted by biologists holding section 
10(a)(1)(A) recovery permits, and comments received on the March 8, 
2000, proposed rule to designate critical habitat for the San Diego 
fairy shrimp (65 FR 12181) and the August 21, 2000, draft economic 
analysis (65 FR 50672). 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 
we identified in the Recovery Plan as essential for the stabilization 
and reclassification of the species.

Primary Constituent Elements

    In accordance with sections 3(5)(A)(i) and 4(b)(2) 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 geographical 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, cyst (egg) dormancy, 
dispersal, and genetic exchange. The primary constituent elements are 
found in those areas that 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 sufficient lengths of time necessary for San Diego fairy 
shrimp incubation and reproduction, but not necessarily every year; 
associated 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. The associated watersheds are essential in maintaining 
the hydrology of vernal pools necessary to support San Diego fairy 
shrimp.
    The first constituent element necessary for vernal pools to form 
are

[[Page 19897]]

soils with an underlying claypan or hardpan layer that restricts water 
drainage. These soils include, but are not limited to: Huerheuero, 
Olivenhain, Placentia, Redding, and Stockpen (Bauder and McMillan 
1998). The second primary constituent element is the possibility that a 
cyst bank exists in the soil. Dormant fairy shrimp cysts are viable for 
several years (Donald 1983; Belk 1998). In some cases vernal pool areas 
that appear degraded still maintain a viable source of fairy shrimp 
cysts. These cyst banks are similar to the seed banks of flowering 
plants. These areas are indicated by historical records of vernal 
pools, the presence of plants or animals associated with ephemeral 
wetlands, or the occasional pooling of water. The third constituent 
element relates to the topography of areas supporting the San Diego 
fairy shrimp. Vernal pool topography is such that the vernal pool fills 
directly from rain fall or in other cases the topography is such that 
the pool forms through the subsurface or overland waterflow from the 
surrounding watershed. The topography does not need to facilitate 
pooling water every year.
    The long-term conservation of vernal pools that are essential for 
the recovery of the San Diego fairy shrimp include the protection and 
management of their associated watersheds. Primary constituent elements 
are found in all the areas proposed as critical habitat.

Criteria Used To Identify Critical Habitat

    The long-term conservation of the San Diego fairy shrimp depends 
upon the protection and management of vernal pools within each 
management area as described in the Recovery Plan for Vernal Pools in 
Southern California. Eight distinct management areas were identified in 
the Recovery Plan based on plant and animal distribution, soil types, 
and climatic variables. Further, the management area for the 
conservation of the San Diego fairy shrimp includes vernal pools and 
complexes that are known to be or are likely occupied by this species 
and are needed to retain local genetic differentiation, reduce the risk 
of losing individual species or pool types, buffer environmental 
variation, and provide for the opportunity for re-establishment of 
populations (Service 1998). We evaluated those areas based on the 
hydrology, watershed and topographic features. On the basis of this 
evaluation of vernal pools identified as essential for the recovery of 
the San Diego fairy shrimp, we overlaid a 100 m (330 ft) Universal 
Transverse Mercator (UTM) (North American Datum 1927 (NAD 27)) grid on 
top of those essential vernal pool complexes and their associated 
essential watersheds. 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 for Orange County where essential 
vernal pools have been identified since the publication of the recovery 
plan.
    Secondly, after determining those specific areas that are 
biologically essential to the San Diego fairy shrimp, we evaluated the 
areas relative to approved and legally operative individual and 
regional HCPs, completed and approved INRMPs for DoD lands, and other 
adequate conservation management plans or agreements. This comparison 
was conducted to ascertain the extent to which these conservation 
measures precluded the need to designate critical habitat on those 
lands based on the management provisions and protections afforded the 
San Diego fairy shrimp and its habitat. As previously discussed, we are 
not proposing as critical habitat, pursuant to sections 3(5)(A) and 
4(B)(2), on lands covered by: (1) A legally operative and fully 
implemented HCP that covers the San Diego fairy shrimp, (2) a completed 
and approved INRMP that adequately address the San Diego fairy shrimp 
and its habitat, and (3) other appropriate conservation management 
plans or agreements. Consequently, lands within the boundaries of fully 
implemented HCPs, and Miramar are not proposed as critical habitat for 
the San Diego fairy shrimp based on the provisions of section 
3(5)(A)(i)(II). Maps showing lands essential to the conservation of the 
San Diego fairy shrimp, but not included in proposed critical habitat 
based on the basis of Secton 3(5)(A)(i)(II) are available for viewing 
at the Carlsbad Fish and Wildlife Office (see ADDRESSES). We have also 
considered but are not proposing as critical habitat lands within the 
Central-Coastal Orange County Subregional NCCP/HCP boundaries with the 
exception of the three vernal pool areas identified under Regional 
HCPs, lands within approved subareas under the MSCP, and certain 
military lands on Camp Pendlton based on our evaluation under section 
4(b)(2) of the relatively greater benefits that would result from 
exclusion of these lands from proposed critical habitat. Miramar and 
NRRF have also been considered and excluded from proposed critical 
habitat based on sections 3(5)(A) and 4(b)(2). Maps showing the all 
essential areas considered, but not proposed, are available for public 
review and comment at the Carlsbad Fish and Wildlife Office (see 
ADDRESSES section) or on the Internet at http://carlsbad.fws.gov. 
Additionally, these maps are provided to allow the public to adequately 
comment on these exclusions.
    In defining critical habitat boundaries, we made an effort to avoid 
mapping developed areas that are unlikely to contribute to San Diego 
fairy shrimp conservation. However, the minimum mapping unit that we 
used did not allow us to avoid mapping of all developed areas unlikely 
to contain the primary constituent elements essential for conservation 
of the San Diego fairy shrimp. Existing features and structures within 
the boundaries of the mapped units, such as buildings, roads, 
aqueducts, railroads, airports, other paved areas, lawns, landscaped 
areas, and other urban areas, will not contain one or more of the 
primary constituent elements. Federal actions limited to those areas, 
therefore, would not trigger a section 7 consultation, unless they 
affect the species and/or primary constituent elements in adjacent 
critical habitat. The complexes of vernal pools and their associated 
watersheds within the proposed critical habitat area are within the 
geographical area occupied by San Diego fairy shrimp.
    In summary, in determining areas that are essential to conserve San 
Diego fairy shrimp, we used the best scientific information available 
to us. The critical habitat areas described below constitute our best 
assessment of areas needed for the species' conservation and recovery.

Critical Habitat Designation

    The approximate area of proposed critical habitat by county and 
land ownership is shown in Table 1. Critical habitat includes San Diego 
fairy shrimp habitat throughout the species' range in the United States 
(i.e., Orange and San Diego counties, California). Areas proposed for 
critical habitat are under Federal, State, local, and private 
ownership. Areas proposed for critical habitat exclude some of the 
essential areas for this species; the exclusions are summarized in 
Table 2. Some of the areas proposed as critical habitat are within 
HCPs. Table 3 shows the total area that each of these plans cover and 
the preserve area for each. Only the San Diego MSCP represents a 
completed plan that covers the San Diego fairy shrimp. Areas proposed 
as critical habitat are divided into five Critical Habitat Units which 
are based on the recovery units in the Recovery Plan (Service 1998). 
The units are generally based on geographical location of the vernal 
pools, soil types, associated

[[Page 19898]]

watersheds, and local variation of topographic position (i.e., coastal 
mesas, inland valley). A brief description of each unit and the reasons 
for designating it as critical habitat are presented below.

 Table 1.--Approximate Area Encompassing Designated Critical Habitat in Hectares (ha) (Acres (ac)) by County and
                                                 Land Ownership
----------------------------------------------------------------------------------------------------------------
             County                Federal land \1\    Local/state land      Private land            Total
----------------------------------------------------------------------------------------------------------------
Orange..........................  N/A...............  30 ha (74 ac).....  117 ha (289 ac)...  147 ha (363 ac).
San Diego.......................  530 ha (1,309 ac).  228 ha (564 ac)...  1,563 ha (3,862     2,321 ha (5,735
                                                                           ac).                ac).
Total...........................  530 ha (1,309 ac).  258 ha (638 ac)...  1,680 ha (4,151     2,468 ha (6,098
                                                                           ac).                ac).
----------------------------------------------------------------------------------------------------------------
\1\ Includes Department of Defense and U.S. Fish and Wildlife Service lands.


     Table 2.--Approximate Proposed Critical Habitat Area (ha (ac)),
                    Essential Area, and Excluded Area
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Area considered essential........  8,100 ha (20,015 ac).
Area not included under 3(5)(A)    1,036 ha (2,561 ac).
 (MCAS Miramar, NRRF, individual
 HCPs*).
Area excluded under 4(b)(2) (Camp  4,596 ha (11,356 ac).
 Pendleton and preserve lands
 under the San Diego MSCP).
Proposed Critical Habitat........  2,468 ha (6,098 ac).
------------------------------------------------------------------------
* Acreage for individual HCPs are not available.


 Table 3.--NCCP/HCPs Within the General Area Which Contain the Proposed
                            Critical Habitat
------------------------------------------------------------------------
            NCCP/HCP                 Planning area       Preserve area
------------------------------------------------------------------------
San Diego MSCP..................  236,000 ha          69,573 ha (171,000
                                   (582,000 ac).       ac).
Central/Coastal Orange County     84,463 ha (208,713  15,677 ha (38,738
 NCCP/HCP.                         ac).                ac).
Proposed MSCP North County        142,854 ha          Information not
 Subarea.                          (353,000 ac).       available.
Proposed Northwestern San Diego   45,288 ha (111,908  8,064 ha (19,928
 MHCP.                             ac).                ac).
Proposed Southern Subregion NCCP/ 51,800 ha (128,000  5,666 ha (14,000
 HCP Orange County (pending).      ac).                ac).
------------------------------------------------------------------------

    Areas proposed as critical habitat do not include all of the vernal 
pools where the San Diego fairy shrimp are found. All of the vernal 
pools included in the critical habitat were surveyed and are considered 
to be occupied by the San Diego fairy shrimp. Vernal pools can be 
measured by different methods: (1) Area of pool basins, (2) soil types, 
or (3) the associated watersheds. These differences make estimating the 
historical and current extent of vernal pool habitat in Southern 
California difficult. In delineating areas essential for the 
conservation of the San Diego fairy shrimp, we used the area of the 
associated vernal pool watersheds. Depending on the topography of the 
area and the adjacent land use, the size of the associated vernal pool 
watersheds vary between pool complexes.
    The five Critical Habitat Units are based on the Management Areas 
outlined in the Recovery Plan for Vernal Pools of Southern California 
(Service 1998). The units represent those vernal pools, their 
associated watersheds, and include populations of the San Diego fairy 
shrimp throughout its range. The critical habitat units occur on the 
various soil types and vegetation classes associated with vernal pools. 
Each contains the primary constituent elements for the San Diego fairy 
shrimp. We are proposing 2,468 ha (6,098 ac) as critical habitat for 
this species. Some of the pools within proposed critical habitat are in 
a degraded state and will benefit from restoration and enhancement 
work, which will contribute to recovery of the San Diego fairy shrimp.

Unit 1: Orange County

    Unit 1 encompasses approximately 147 ha (363 ac) in Orange County 
within the Los Angeles Basin/Orange Management Area as outlined in the 
Recovery Plan. The majority of vernal pools in this management area 
were extirpated prior to 1950 and only a small number of vernal pools 
remain in Los Angeles and Orange counties (Service 1998). This unit 
represents the northern extent of this species' currently known 
distribution in southern California and includes vernal pools that have 
been identified as essential to the recovery of the San Diego fairy 
shrimp in order to stabilizing populations and habitat loss. The vernal 
pools that are proposed as critical habitat are relatively isolated and 
are the only known remaining vernal pools in Orange County that support 
the San Diego fairy shrimp. The pools in this unit include examples of 
the historic distribution of coastal terrace vernal pools at Fairview 
Regional Park and Newport-Banning Ranch, vernal pool-like ephemeral 
ponds formed by landslides and fault activity on Rancho Mission Viejo, 
and the only known rock pool in southern California. This rock pool is 
located in the North Ranch Policy Plan Area. As discussed in the 
Recovery Plan (Service, 1998), preservation of vernal pools must be on 
a geographical scale for individual species and habitats. For species 
like the San Diego fairy shrimp with declining populations and limited 
distribution, maintenance of genetic variability is crucial for its 
survival. The high degree of variability in habitat combined with the 
unpredictability of winter rains has resulted in genetic structure be 
tween pool complexes. Moreover, there is a low degree of genetic 
variability within pool complexes. Thus, to conserve the genetic 
structure and variability of this species, vernal pools supporting San 
Diego fairy shrimp need to conserved throughout the range of this 
species, including the northern end of the distribution. This 
northernmost unit is essential to the conservation of the San Diego 
fairy shrimp because it maintains the ecological distribution and 
genetic variability of this species on a broad geographical scale. The 
restricted distribution and isolation of the vernal pools also suggest 
that they may contain genetic diversity important for the long-term 
survival of the San Diego fairy shrimp.

Unit 2: San Diego: North Coastal Mesa

    Unit 2 encompasses approximately 357 ha (882 ac) in San Diego 
County within the North Coastal Mesa Management Area, as outlined in 
the Recovery Plan. This unit includes a small portion of Camp Pendleton

[[Page 19899]]

(nontraining areas) and an area within the City of Carlsbad. The area 
proposed on Camp Pendleton includes lands leased by the Marine Corps to 
the California Department of Parks and Recreation and private 
interests; Cockleburr preserve; and nontraining lands around the Wire 
Mountain housing area. These pools represent some of the best examples 
of coastal pools still remaining in San Diego County. The other vernal 
pools on Camp Pendleton that occur within mission-essential training 
areas have been excluded from proposed critical habitat under section 
4(b)(2) of the Act, but are considered essential for the recovery of 
the San Diego fairy shrimp. Within the jurisdiction of the City of 
Carlsbad, the vernal pool complex located in the vicinity of Palomar 
Airport is currently designated as critical habitat. However, based on 
recent surveys, we have determined that this vernal pool complex is not 
essential for the San Diego fairy shrimp. The pool complex at 
Poinsettia Lane train station, in the City of Carlsbad, is proposed as 
critical habitat. The Poinsettia Lane pools represent the most coastal 
location where the San Diego fairy shrimp and the endangered Riverside 
fairy shrimp co-occur. The Recovery Plan identifies these vernal pools 
as essential for recovery of the San Diego fairy shrimp because of 
their role in stabilizing populations and preventing habitat loss. As 
discussed in the Recovery Plan (Service 1998), vernal pools must be 
conserved on a geographical scale and these examples represent coastal 
terrace vernal pools found in northern San Diego County. Given the 
rarity of San Diego fairy shrimp and the limited amount of remaining 
vernal pool habitat, this unit is essential to the conservation of this 
species because of need to conserve vernal pools throughout the range 
of the species in order to meet the overall recovery of this species, 
and its role in maintaining the genetic diversity and population 
stability of the San Diego fairy shrimp.

Unit 3: San Diego: Inland Valley

    Unit 3 encompasses 1,225 ha (3,027 ac) in San Diego County within 
the San Diego Inland Valley Management Area, as outlined in the 
Recovery Plan. Lands proposed as critical habitat for the San Diego 
fairy shrimp 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 boundaries of Ramona 
Airport. These vernal pool complexes are generally isolated 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. The vernal pools in San Marcos are associated with native 
grassland and a unique association of multiple species of Brodiaea. The 
Recovery Plan specifically identifies these vernal pools as essential 
for recovery of the San Diego fairy shrimp because of their role in 
stabilizing populations and preventing habitat loss. Protection of 
these areas will help meet the Recovery Plan goal of reclassifying this 
species in a future downlisting/delisting action. This unit includes 
vernal pools within the easternmost edge of the geographical 
distribution of the species. Conservation of vernal pools in this unit 
will help maintain the diversity of vernal pool habitats and their 
unique geological substrates, and will retain the genetic diversity of 
these geographically distinct populations.

Unit 4: San Diego: Central Coastal Mesa

    Unit 4 encompasses 73 ha (181 ac) in San Diego County within the 
San Diego Central Coastal Mesa Management Area, as outlined in the 
Recovery Plan. Lands considered for this critical habitat unit contain 
vernal pool complexes within the jurisdiction of the City of San Diego, 
State of California, Service, Navy, and private lands. The Recovery 
Plan specifically identifies these vernal pools as essential for the 
recovery of the San Diego fairy shrimp because of their role in 
stabilizing populations and preventing habitat loss. These vernal pool 
complexes are associated with coastal terraces and mesas found south of 
the San Dieguito River to San Diego Bay. While many of the vernal pool 
complexes in this unit have been destroyed or fragmented, these 
complexes represent some of the best remaining vernal pools in San 
Diego County.
    On MCAS, Miramar, vernal pools identified in the Recovery Plan are 
considered to be essential for the conservation of the San Diego fairy 
shrimp. MCAS, Miramar is successfully implementing its INRMP and the 
majority of these pools are considered to be of the highest quality and 
irreplaceable. These pools are encompassed within Level 1 Management 
Areas under the installation's INRMP. We have considered, but have not 
proposed critical habitat designation under 3(5)(A) of the Act for 
MCAS, Miramar based on the INRMP. Further, to the extent that these 
areas do meet the definition of critical habitat as defined in 
3(5)(A)(i)(II), it is additionally appropriate to exclude these areas 
from critical habitat pursuant to the ``other relevant impacts'' 
provisions of section 4(b)(2). Therefore, MCAS, Miramar lands are not 
being proposed as critical habitat for this species.
    Many of the vernal pools considered for this unit receive 
conservation protection by virtue of their land ownership and 
management. These pools represent the some of the best opportunities 
for long-term protection for the San Diego fairy shrimp. Many of these 
vernal pools are within the MSCP. We have considered, but have not 
proposed as critical habitat those vernal pools within approved HCPs 
(MSCP) where the San Diego fairy shrimp is a covered species. Vernal 
pools that are included in this critical habitat unit consist of four 
subunits that are federally owned. This unit includes pools that occur 
on Del Mar Mesa that are within the San Diego National Wildlife Refuge. 
This unit also includes land owned by the Department of Defense which 
meet the definition of critical habitat at Tierrasanta South and at 
Chollas Heights. This unit provides for the conservation of the San 
Diego fairy shrimp by protecting vernal pools essential for the future 
reclassification (downlisting/delisting actions) of this species. It 
includes vernal pools within the center of this species' geographical 
distribution, and retains the genetic diversity of these geographically 
distinct populations.

Unit 5: San Diego: Southern Coastal Mesa

    Unit 5 encompasses 666 ha (1,645 ac) in San Diego County within the 
San Diego Southern Coastal Mesa Management Area, as outlined in the 
Recovery Plan. Essential habitat for the San Diego fairy shrimp occurs 
in vernal pool complexes within the jurisdiction of the Service, the 
Cities of San Diego and Chula Vista, County of San Diego, U.S. 
Immigration and Naturalization Service (INS), other DoD lands, and 
private lands within unit 5. These vernal pool complexes are associated 
with coastal mesas from the Sweetwater River south to the international 
border with Mexico. We have considered, but have not proposed as 
critical habitat those vernal pools within approved HCPs (MSCP) where 
the San Diego fairy shrimp is a covered species. We have considered, 
but have not proposed critical habitat designation under 3(5)(a) of the 
Act for NRRF based on their INRMP. The remaining lands identified as 
essential in the recovery plan are proposed as critical habitat. These 
vernal pool complexes occur on Federal lands and lands included in the 
Major Amendment areas of San Diego County. These pools represent the 
southern most

[[Page 19900]]

occurrences of the San Diego fairy shrimp. Due to rapid urbanization in 
the on both sides of the United States and Mexican border the 
preservation of these pools is essential for the survival of the San 
Diego fairy shrimp. The pools proposed for critical habitat in subunit 
A contain the endangered Otay mesa-mint (Pogogyne nudiuscula); subunit 
D also supports the endangered Riverside fairy shrimp (Streptocephalus 
woottoni); and subunit F include the endangered Orcutt's grass 
(Orcuttia californica) and represent vernal pools with high biological 
diversity. The Recovery Plan specifically identifies these vernal pools 
as essential for recovery of the San Diego fairy shrimp because of 
their role in stabilizing populations and habitat loss and in 
reclassifying these species in future downlisting/delisting actions. 
This southernmost unit is essential to the conservation of the San 
Diego fairy shrimp because it maintains the ecological distribution and 
genetic diversity of this species. Many of these vernal pools are 
within the MSCP, and as previously stated in this rule, we have 
considered, but have not proposed those vernal pools in reserve, 
preserve, or other lands targeted for conservation areas within 
approved HCPs, pursuant to section 4(b)(2) of the Act.

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, permit, or carry 
out do not destroy or adversely modify critical habitat. Destruction or 
adverse modification of critical habitat occurs when a Federal action 
directly or indirectly alters critical habitat to the extent that it 
appreciably diminishes the value of critical habitat for the 
conservation 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.
    In our regulations at 50 CFR 402.02, 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.'' However, in a March 15, 2001, decision of the 
United States Court of Appeals for the Fifth Circuit (Sierra Club v. 
U.S. Fish and Wildlife Service et al., F.3d 434), the Court found our 
definition of destruction or adverse modification to be invalid. In 
response to this decision, we are reviewing the regulatory definition 
of adverse modification in relation to the conservation of the species.
    Section 7(a) 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) 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 
Federal agencies in eliminating conflicts that may be caused by their 
proposed actions. The conservation measures in a conference report are 
advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if the species was 
listed or critical habitat designated. We may adopt the formal 
conference report as the biological opinion when the species is listed 
or critical habitat designated, if no substantial new information or 
changes in the action alter the content of the opinion (50 CFR 
402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act 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 
Federal action agency would ensure that the permitted actions do not 
destroy or adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we 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 the likelihood of jeopardizing the continued 
existence of listed species, or resulting in the destruction or adverse 
modification of critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including 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 reinitiating 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.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and require that a section 
7 consultation be conducted 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 (e.g., road and fence construction and maintenance, 
right-of-way designation, airport improvement activities, and 
regulation of agricultural activities) that constitutes jurisdictional 
waters of the United States under the Clean Water Act;
    (2) Any activity that alters the watershed, water quality, or water 
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 San Diego fairy shrimp habitat.
    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.
    We recognize that the proposed designation of critical habitat may 
not

[[Page 19901]]

include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, we 
want to ensure that the public is aware that critical habitat 
designations do not signal that habitat outside the proposed 
designation is unimportant or may not be required for recovery. Areas 
outside the proposed critical habitat designation will continue to be 
subject to conservation actions that may be implemented under section 
7(a)(1) of the Act and to the regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of 
the Act. 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.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat would 
be those that alter the primary constituent elements to the extent that 
the value of critical habitat for the conservation of the San Diego 
fairy shrimp is appreciably reduced. We note that such activities may 
also jeopardize the continued existence of the species. Those 
activities that involve Federal action that may destroy or modify 
critical habitat are listed above in our discussion of Section 7(a)(2).
    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, Branch of Endangered Species, 
911 N.E. 11th Ave, Portland, Oregon 97232 (telephone 503/231-2063; 
facsimile 503/231-6243).
    All lands proposed as critical habitat are within the geographical 
area occupied by the species and are necessary to preserve functioning 
vernal pool habitat for the San Diego 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.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    An analysis of the economic impacts of proposing critical habitat 
for the San Diego fairy shrimp is being prepared. We will announcing 
the availability of the draft economic analysis as soon as it is 
completed, at which time we will seek public review and comment at that 
time. Copies may be obtained from the Carlsbad Fish and Wildlife 
Office's Internet Web site at http://carlsbad.fws.gov, or by contacting 
the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section)

Public Comments Solicited

    It is our intent that any final action resulting from this proposal 
will be as accurate as possible. Therefore, we solicit comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. Based on public comment, the final rule 
could find areas not essential, appropriate for exclusion under either 
3(5)(A) or 4(b)(2), or not appropriate for exclusion, in which case, 
they would be made part of the designation. 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 that would result from the designation;
    (2) Specific information on the amount and distribution of San 
Diego fairy shrimp and vernal pool habitat, and what habitat is 
essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
areas proposed as critical habitat 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;
    (5) Economic and other values associated with designating critical 
habitat for the San Diego fairy shrimp such as those derived from 
nonconsumptive uses (e.g., hiking, camping, birdwatching, enhanced 
watershed protection, improved air quality, increased soil retention, 
``existence values,'' and reductions in administrative costs);
    (6) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments; and
    (7) We have considered, but have not proposed the following areas 
as critical habitat: mission-essential training areas on Camp 
Pendleton, lands on MCAS Miramar, lands on the U.S. Navy's NRRF, and 
lands in the San Diego Multiple Species Conservation Program because we 
believe that: (1) Their value for conservation has been addressed by 
existing protective actions, or (2) they are appropriate for exclusion 
pursuant to the ``other relevant factor'' provisions of section 
4(b)(2). We specifically solicit comment, however, on the inclusion or 
exclusion of such areas and (a) whether these areas are essential; (b) 
whether these areas warrant exclusion; and (c) the basis for not 
designating these areas as critical habitat (section 3(5)(A) or section 
4(b)(2)).
    (8) The benefits of including or excluding from this critical 
habitat designation lands within approved Habitat Conservation Plans.
    (9) Are ``associated watersheds'' of these vernal pools essential 
for the conservation of the species? If so, does the term need to be 
defined and how should it be defined?
    (10) The majority of area proposed as critical habitat consists of 
upland areas that contain ``associated watersheds'' which may be needed 
to preserve vernal pool hydrology. Does the extent of the upland areas 
around the complexes of vernal pools proposed to be designated as 
critical habitat comply with the regulatory requirement at 50 CFR 
484.12(d)? Do these areas comprise ``a small local area'' within the 
meaning of the example found in that provision,

[[Page 19902]]

and if not, what weight should be given to that example in the final 
rule?
    (11) Should all lands at Camp Pendleton be excluded from critical 
habitat in light of the INRMP process, the formal consultation under 
section 7 of the Act for upland species now underway, and possible 
future needs to utilize different areas for military training?
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods: (1) You may 
mail comments to the Field Supervisor at the address provided in the 
ADDRESSES section above; (2) You may also comment via the internet to 
[email protected]. Please submit internet comments as an ASCII file 
and avoid the use of special characters or any form of encryption. 
Please also include ``Attn: RIN-1018-AI71'' in your e-mail subject 
header and your name and return address in your internet message. If 
you do not receive a confirmation from the system that we have received 
your internet message, contact us directly by calling our Carlsbad Fish 
and Wildlife Office at phone number 760-431-9440. Please note that the 
internet address ``[email protected]'' will be closed out at the 
termination of the public comment period; or (3) You may hand-deliver 
comments to our Carlsbad Fish and Wildlife Office (see ADDRESSES 
section above).
    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. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will solicit 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 as we prepare our final 
rulemaking. Accordingly, the final determination may differ from this 
proposal.

Public Hearings

    The Endangered Species Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days of the date of publication of the proposal in the Federal 
Register. Such requests must be made in writing and be addressed to the 
Field Supervisor (see ADDRESSES section). 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 and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the 
description of the notice in the SUPPLEMENTARY INFORMATION section of 
the preamble helpful in understanding the notice? (5) What else could 
we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and was reviewed by the Office of Management and 
Budget (OMB). The Service is preparing a draft economic analysis of 
this proposed action. The Service will use this analysis to meet the 
requirement of section 4(b)(2) of the Act to determine the economic 
consequences of designating the specific areas as critical habitat and 
excluding any area from critical habitat if it is determined that the 
benefits of such exclusion outweigh the benefits of specifying such 
areas as part of the critical habitat, unless failure to designate such 
area as critical habitat will lead to the extinction of the San Diego 
fairy shrimp. This analysis will be made available for public review 
and comment. Copies may be obtained from the Carlsbad Fish and Wildlife 
Office's Internet website at http://carlsbad.fws.gov or by contacting 
the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section)

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic effect on a substantial number of small 
entities. SBREFA also amended the Regulatory Flexibility Act to require 
a certification statement. In this proposed rule, we are certifying 
that it will not have a significant effect on a substantial number of 
small entities. The following discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and

[[Page 19903]]

town governments that serve fewer than 50,000 residents, as well as 
small businesses (http://www.sba.gov/size/). 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 would 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, etc.). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. SBREFA does not explicitly define 
either ``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 the area. 
Similarly, this analysis considers the relative cost of compliance on 
the revenues/profit margins of small entities in determining whether or 
not entities incur a ``significant economic impact.'' Only small 
entities that are expected to be directly affected by the designation 
are considered in this portion of the analysis.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies; non-Federal activities are 
not affected by the designation if they lack a Federal nexus. In areas 
where the species is present, Federal agencies funding, permitting, or 
implementing activities are already required to avoid jeopardizing the 
continued existence of the San Diego fairy shrimp through consultation 
with us under section 7 of the Act. If this critical habitat 
designation is finalized, Federal agencies must also ensure that their 
activities do not destroy or adversely modify designated critical 
habitat through consultation with us. However, we do not believe this 
will result in any significant additional regulatory burden on Federal 
agencies or their applicants where the species may be present, because 
consultation would already be required because of the presence of a 
listed species.
    In unoccupied areas, or areas of uncertain occupancy, designation 
of critical habitat could trigger additional review of Federal 
activities under section 7 of the Act, and may result in additional 
requirements on Federal activities to avoid destroying or adversely 
modifying critical habitat. Therefore, for the purposes of this review 
and certification under the Regulatory Flexibility Act, we are assuming 
that any future consultations in the areas designated as critical 
habitat that are considered unoccupied, such as the watersheds 
associated with occupied vernal pools, would result from the critical 
habitat designation. Should a federally funded, permitted, or 
implemented project be proposed that may affect designated critical 
habitat, we will work with the Federal action agency and any applicant, 
through section 7 consultation, to identify ways to implement the 
proposed project while minimizing or avoiding any adverse effect to the 
species or critical habitat. In our experience, the vast majority of 
such projects can be successfully implemented with at most minor 
changes that avoid significant economic impacts to project proponents.
    On non-Federal lands, activities that do not require Federal 
involvement would not be affected by the critical habitat designation. 
Activities of an economic nature that are likely to occur on non-
Federal lands in the area encompassed by this proposed designation are 
primarily commercial or residential development. None of the 
developments recently approved by the local jurisdictions in these 
areas have any Federal involvement, and we are not aware of a 
substantial number of future activities on any of the proposed units 
that would require Federal permitting or authorization; therefore, we 
conclude that the proposed rule would not affect a substantial number 
of small entities.
    In general, two different mechanisms in section 7 consultations 
could result in project modifications. First, if we conclude, in a 
biological opinion, that a proposed action is likely to jeopardize the 
continued existence of a species or adversely modify its critical 
habitat, we can offer ``reasonable and prudent alternatives.'' 
Reasonable and prudent alternatives are alternative actions that can be 
implemented in a manner consistent with the scope of the Federal 
agency's legal authority and jurisdiction, are economically and 
technologically feasible, and would avoid jeopardizing the continued 
existence of listed species or resulting in adverse modification of 
critical habitat. A Federal agency and an applicant may elect to 
implement a reasonable and prudent alternative associated with a 
biological opinion that has found jeopardy or adverse modification of 
critical habitat. An agency or applicant could alternatively choose to 
seek an exemption from the requirements of the Act or proceed without 
implementing the reasonable and prudent alternative. However, unless it 
could obtain an exemption, the Federal agency or applicant would be at 
risk of violating section 7(a)(2) of the Act if it chose to proceed 
without implementing the reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal species, we may 
identify reasonable and prudent measures designed to minimize the 
amount or extent of take and require the Federal agency or applicant to 
implement such measures through nondiscretionary terms and conditions. 
However, the Act does not require terms and conditions to minimize 
adverse effect to critical habitat. We may also identify discretionary 
conservation recommendations designed to minimize or avoid the adverse 
effects of a proposed action on listed species or critical habitat, 
help implement recovery plans, or develop information that could 
contribute to the recovery of the species.
    Based on our experience with section 7 consultations for all listed 
species, virtually all projects--including those that, in their initial 
proposed form, would result in jeopardy or adverse modification 
determinations in section 7 consultations--can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures, by definition, must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation. The kinds of actions that may be included 
in future reasonable and prudent alternatives include avoidance, 
conservation set-asides, management of competing non-native species, 
restoration of degraded habitat, construction of protective fencing, 
and regular monitoring. These measures are not likely to result in a 
significant economic impact to project proponents.
    As required under section 4(b)(2) of the Act, we will conduct an 
analysis of

[[Page 19904]]

the potential economic impacts of this proposed critical habitat 
designation, and will make that analysis available for public review 
and comment before finalizing this designation. However, court 
deadlines require us to publish this proposed rule before the economic 
analysis can be completed.
    In summary, we have concluded that this proposed rule would not 
result in a significant economic effect on a substantial number of 
small entities. This rule would result in project modifications only 
when proposed Federal activities would destroy or adversely modify 
critical habitat. Even if a small entity is affected, we do not expect 
it to result in a significant economic impact, as the measures included 
in reasonable and prudent alternatives must be economically feasible 
and consistent with the proposed action. The kinds of measures we 
anticipate we would recommend can usually be implemented at low cost. 
Therefore, we are certifying that the proposed designation of critical 
habitat for the San Diego fairy shrimp will not have a significant 
economic impact on a substantial number of small entities, and an 
initial regulatory flexibility analysis is not required.
    This discussion is based upon the information regarding potential 
economic impact that is available to us at this time. This assessment 
of economic effect may be modified prior to final rulemaking based upon 
development and review of the draft economic analysis prepared pursuant 
to section 4(b)(2) of the ESA and E.O. 12866.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2))

    In the draft 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, 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.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
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. 
Although this proposed rule to designate critical habitat for the San 
Diego fairy shrimp is a significant regulatory action under Executive 
Order 12866, it 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.)

    The Service will use the economic analysis to evaluate consistency 
with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing to designate approximately 2,468 ha (6,098 ac) of lands in 
Orange and San Diego counties, California, as critical habitat for the 
San Diego fairy shrimp in a takings implications assessment. This 
preliminary assessment concludes that this proposed rule does not pose 
significant takings implications.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposed 
critical habitat designation with appropriate State resource agencies 
in California. The proposed designation of critical habitat in areas 
currently occupied by the San Diego fairy shrimp imposes no additional 
significant restrictions beyond those currently in place and, 
therefore, has little incremental impact on State and local governments 
and their activities. The proposed designation of critical habitat in 
unoccupied areas may require a conference under section 7 of the Act on 
non-Federal lands (where a Federal nexus occurs) that might otherwise 
not have occurred.
    The proposed designation of critical habitat may have some benefit 
to the State and local resource agencies in that the areas essential to 
the conservation of this species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the survival 
of this species are specifically identified. While this definition and 
identification does not alter where and what Federally sponsored 
activities may occur, it may assist local governments in long-range 
planning (rather than waiting for case-by-case section 7 consultations 
to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate 
critical habitat in accordance with the provisions of the Endangered 
Species Act. 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 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

    We have determined that an Environmental Assessment and/or an 
Environmental Impact Statement as defined by the National Environmental 
Policy Act of 1969 need not be prepared in connection with regulations 
adopted pursuant to section 4(a) of the Endangered Species Act, as 
amended. A notice outlining our reason for this determination was 
published in the Federal Register on October 25, 1983 (48 FR 49244). 
This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have 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 
vernal pool habitat. Therefore, critical habitat for the

[[Page 19905]]

San Diego fairy shrimp has not been proposed 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

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

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.95 revise the entry for the San Diego fairy shrimp 
(Branchinecta sandiegonensis) under paragraph (h) 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.
    (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 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: Small to large vernal pools with 
shallow to moderate depths that hold water for sufficient lengths of 
time necessary for San Diego fairy shrimp incubation and reproduction, 
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) Existing features and structures, such as buildings, roads, 
railroads, urban development, and other features not containing primary 
constituent elements, are not considered critical habitat. In addition, 
critical habitat does not include non-Federal lands covered by a 
legally operative habitat conservation plan for the San Diego fairy 
shrimp issued under section 10(a)(1)(B) of the Act on or before April 
22, 2003.
    (5) Index map of critical habitat units for San Diego fairy shrimp 
follows:
BILLING CODE 4310-55-P

[[Page 19906]]

[GRAPHIC] [TIFF OMITTED] TP22AP03.000

BILLING CODE 4310-55-C

    (6) Map Unit 1: Orange County, Orange County, California. From USGS 
1:24,000 quadrangle maps Black Star Canyon, Newport Beach, and Canada 
Gobernadora, California.
    (i) Unit 1a: lands bounded by the following UTM NAD27 coordinates 
(E,N): 432400, 3740900; 432700, 3740900; 432700, 3740600; 432400, 
3740600; 432400, 3740700; 432300, 3740700; 432300, 3740800; 432400, 
3740800; 432400, 3740900.
    (ii) Unit 1b: lands bounded by the following UTM NAD27 coordinates 
(E,N): 412700, 3725200; 412900, 3725200; 412900, 3725100; 413000, 
3725100; 413000, 3724800; 413100, 3724800; 413100, 3724600; 412900, 
3724600; 412900, 3724400; 412600, 3724400; 412600, 3725100; 412700, 
3725100; 412700, 3725200.
    (iii) Unit 1c: lands bounded by the following UTM NAD27 coordinates 
(E,N): 412500, 3722000; 412600, 3722000; 412600, 3721900; 412900, 
3721900; 412900, 3721500; 412600, 3721500; 412600, 3721600; 412400, 
3721600; 412400, 3721900; 412500, 3721900; 412500, 3722000.
    (iv) Unit 1d: lands bounded by the following UTM NAD27 coordinates 
(E,N): 442100, 3712800; 442500, 3712800; 442500, 3712500; 442600, 
3712500; 442600, 3712300; 442700, 3712300; 442700, 3712100; 442600, 
3712100; 442600, 3712000; 442300, 3712000; 442300, 3712100; 442200, 
3712100; 442200, 3712400; 442100, 3712400; 442100, 3712800.
    (v) Unit 1e: lands bounded by the following UTM NAD27 coordinates 
(E,N): 443800, 3708700; 444100, 3708700; 444100, 3708500; 444300, 
3708500; 444300, 3708300; 444500,

[[Page 19907]]

3708300; 444500, 3708100; 444600, 3708100; 444600, 3707700; 444400, 
3707700; 444400, 3707600; 444300, 3707600; 444300, 3707900; 444200, 
3707900; 444200, 3708100; 443600, 3708100; 443600, 3708500; 443700, 
3708500; 443700, 3708600; 443800, 3708600; 443800, 3708700.
    (vi) Map of Unit 1a-e follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP22AP03.001

BILLING CODE 4310-55-C
    (7) Map Unit 2: San Diego: North Coastal Mesa, San Diego County, 
California. From USGS 1:24,000 quadrangle maps San Clemente, San Onofre 
Bluff, Las Pulgas Canyon, Oceanside, San Luis Rey, and Encinitas, 
California.
    (i) Unit 2a: lands bounded by the following UTM NAD27 coordinates 
(E,N): 447100, 3693100; 447500, 3693100; 447500, 3693000; 447600, 
3693000; 447600, 3692800; 447500, 3692800; 447500, 3692700; 447300, 
3692700; 447300, 3692800; 447100, 3692800; 447100, 3693100, excluding 
the Pacific Ocean.
    (ii) Unit 2b: lands bounded by the following UTM NAD27 coordinates 
(E,N): 459500, 3680600; 459900, 3680600; 459900, 3680500; 460000, 
3680500; 460000, 3680300; 459800, 3680300; 459800, 3680400; 459700, 
3680400; 459700, 3680300; 459600, 3680300; 459600, 3680200; 459500, 
3680200; 459500, 3680000; 459300,

[[Page 19908]]

3680000; 459300, 3679900; 459200, 3679900; 459200, 3680000; 459100, 
3680000; 459100, 3680100; 459000, 3680100; 459000, 3680300; 459300, 
3680300; 459300, 3680500; 459500, 3680500; 459500, 3680600, excluding 
the Pacific Ocean.
    (iii) Unit 2c: lands bounded by the following UTM NAD27 coordinates 
(E,N): 460000, 3680000; 460200, 3680000; 460200, 3679900; 460300, 
3679900; 460300, 3679600; 460500, 3679600; 460500, 3679500; 460600, 
3679500; 460600, 3679200; 460500, 3679200; 460500, 3679100; 460400, 
3679100; 460400, 3679000; 460300, 3679000; 460300, 3679100; 460100, 
3679100; 460100, 3679000; 459800, 3679000; 459800, 3679100; 459700, 
3679100; 459700, 3679200; 459600, 3679200; 459600, 3679400; 459500, 
3679400; 459500, 3679500; 459400, 3679500; 459400, 3679700; 459300, 
3679700; 459300, 3679800; 459800, 3679800; 459800, 3679700; 460000, 
3679700; 460000, 3680000, excluding the Pacific Ocean.
    (iv) Unit 2d: lands bounded by the following UTM NAD27 coordinates 
(E,N): 465800, 3678400; 466100, 3678400; 466100, 3678300; 466200, 
3678300; 466200, 3677800; 466400, 3677800; 466400, 3677500; 466300, 
3677500; 466300, 3677400; 466100, 3677400; 466100, 3677200; 466000, 
3677200; 466000, 3677100; 465700, 3677100; 465700, 3677200; 465600, 
3677200; 465600, 3677300; 465500, 3677300; 465500, 3677400; 465400, 
3677400; 465400, 3677500; 465200, 3677500; 465200, 3677400; 465100, 
3677400; 465100, 3677500; 465000, 3677500; 465000, 3677300; 464900, 
3677300; 464900, 3677200; 464700, 3677200; 464700, 3677500; 464600, 
3677500; 464600, 3677800; 464800, 3677800; 464800, 3677700; 464900, 
3677700; 464900, 3677600; 465000, 3677600; 465000, 3678000; 465200, 
3678000; 465200, 3677900; 465400, 3677900; 465400, 3677800; 465600, 
3677800; 465600, 3677700; 465900, 3677700; 465900, 3677800; 465700, 
3677800; 465700, 3678200; 465800, 3678200; 465800, 3678400.
    (v) Unit 2e: lands bounded by the following UTM NAD27 coordinates 
(E,N): 464600,3677800; 464800,3677800; 464800,3677700; 464900,3677700; 
464900,3677500; 465000,3677500; 465000,3677300; 464900,3677300; 
464900,3677200; 464700,3677200; 464700,3677500; 464600,3677500; 
464600,3677800.
    (vi) Unit 2f: lands bounded by the following UTM NAD27 coordinates 
(E,N): 464900,3677000; 465000,3677000; 465000,3676900; 465200,3676900; 
465200,3677000; 465300,3677000; 465300,3676800; 465400,3676800; 
465400,3676700; 465500,3676700; 465500,3676500; 465600,3676500; 
465600,3676400; 465700,3676400; 465700,3676200; 465800,3676200; 
465800,3675900; 465700,3675900; 465700,3675800; 465600,3675800; 
465600,3675700; 465500,3675700; 465500,3675600; 465300,3675600; 
465300,3675500; 465100,3675500; 465100,3675800; 465000,3675800; 
465000,3675700; 464800,3675700; 464800,3676000; 464900,3676000; 
464900,3676300; 464700,3676300; 464700,3676400; 464600,3676400; 
464600,3676800; 464800,3676800; 464800,3676900; 464900,3676900; 
464900,3677000.
    (vii) Unit 2g: lands bounded by the following UTM NAD27 coordinates 
(E,N): 470300,3663400; 470400,3663400; 470400,3663200; 470500,3663200; 
470500,3662900; 470600,3662900; 470600,3662700; 470700,3662700; 
470700,3662500; 470600,3662500; 470600,3662600; 470500,3662600; 
470500,3662800; 470400,3662800; 470400,3663000; 470300,3663000; 
470300,3663400.
    (viii) Maps of Unit 2 follow:
BILLING CODE 4310-55-P

[[Page 19909]]

[GRAPHIC] [TIFF OMITTED] TP22AP03.002


[[Page 19910]]


[GRAPHIC] [TIFF OMITTED] TP22AP03.003

BILLING CODE 4310-55-C
    (8) Map Unit 3: San Diego: Inland Valley, San Diego County, 
California. From USGS 1:24,000 quadrangle maps San Marcos, San Pasqual, 
and Ramona, California.
    (i) Unit 3a: lands bounded by the following UTM NAD27 coordinates 
(E,N): 482500,3667500; 482800,3667500; 482800,3667300; 482600,3667300; 
482600,3667100; 482400,3667100; 482400,3667000; 482200,3667000; 
482200,3667200; 482300,3667200; 482300,3667400; 482500,3667400; 
482500,3667500.
    (ii) Unit 3b: lands bounded by the following UTM NAD27 coordinates 
(E,N): 481800,3667300; 482000,3667300; 482000,3667100; 481800,3667100; 
481800,3667300.
    (iii) Unit 3c: lands bounded by the following UTM NAD27 coordinates 
(E,N): 481600,3666800; 481900,3666800; 481900,3666700; 482100,3666700; 
482100,3666500; 482000,3666500; 482000,3666300; 481900,3666300; 
481900,3666100; 482000,3666100; 482000,3665900; 481900,3665900; 
481900,3665800; 481700,3665800; 481700,3665900; 481600,3665900; 
481600,3666100; 481400,3666100; 481400,3666300; 481800,3666300; 
481800,3666400; 481600,3666400; 481600,3666500; 481500,3666500; 
481500,3666600; 481600,3666600; 481600,3666800.
    (iv) Unit 3d: lands bounded by the following UTM NAD27 coordinates 
(E,N): 482800,3666600; 483000,3666600; 483000,3666400; 482800,3666400; 
482800,3666600.
    (v) Unit 3e: lands bounded by the following UTM NAD27 coordinates

[[Page 19911]]

(E,N): 508400,3657000; 509000,3657000; 509000,3656200; 509300,3656200; 
509300,3656000; 509800,3656000; 509800,3655500; 509500,3655500; 
509500,3655000; 509300,3655000; 509300,3653700; 509600,3653700; 
509600,3653800; 509700,3653800; 509700,3653900; 509800,3653900; 
509800,3654000; 509900,3654000; 509900,3654100; 510000,3654100; 
510000,3654200; 510100,3654200; 510100,3654300; 510200,3654300; 
510200,3654400; 510300,3654400; 510300,3654500; 510400,3654500; 
510400,3654600; 510500,3654600; 510500,3654800; 511300,3654800; 
511300,3655100; 511200,3655100; 511200,3655400; 511400,3655400; 
511400,3655300; 511500,3655300; 511500,3655100; 511600,3655100; 
511600,3655200; 511800,3655200; 511800,3655000; 511700,3655000; 
511700,3654800; 511600,3654800; 511600,3654700; 511900,3654700; 
511900,3654500; 512000,3654500; 512000,3654600; 512200,3654600; 
512200,3654700; 512300,3654700; 512300,3654800; 512500,3654800; 
512500,3654900; 512700,3654900; 512700,3654800; 512600,3654800; 
512600,3654400; 512500,3654400; 512500,3654300; 512000,3654300; 
512000,3653900; 511900,3653900; 511900,3653800; 511700,3653800; 
511700,3654500; 510800,3654500; 510800,3654400; 510700,3654400; 
510700,3654200; 510500,3654200; 510500,3654100; 510400,3654100; 
510400,3654000; 510300,3654000; 510300,3653900; 510200,3653900; 
510200,3653800; 510100,3653800; 510100,3653700; 510000,3653700; 
510000,3653600; 510200,3653600; 510200,3653400; 510100,3653400; 
510100,3653200; 510500,3653200; 510500,3653000; 509000,3653000; 
509000,3654000; 508500,3654000; 508500,3654200; 506500,3654200; 
506500,3654500; 505500,3654500; 505500,3654700; 504400,3654700; 
504400,3654800; 504000,3654800; 504000,3655000; 505000,3655000; 
505000,3655900; 505500,3655900; 505500,3655700; 506000,3655700; 
506000,3655600; 506800,3655600; 506800,3656400; 506900,3656400; 
506900,3656600; 507200,3656600; 507200,3656500; 507400,3656500; 
507400,3656600; 507900,3656600; 507900,3656700; 508000,3656700; 
508000,3656900; 508400,3656900; 508400,3657000.
    (vi) Maps of Unit 3 follow:
BILLING CODE 4310-55-P

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BILLING CODE 4310-55-C
    (9) Map Unit 4: San Diego: Central Coastal Mesa, San Diego County, 
California. From USGS 1:24,000 quadrangle maps Del Mar, La Mesa, and 
National City, California.
    (i) Unit 4a: lands bounded by the following UTM NAD27 coordinates 
(E,N): 485400, 3645900; 485900, 3645900; 485900, 3645500; 485600, 
3645500; 485600, 3645400; 485400, 3645400; 485400, 3645900.
    (ii) Unit 4b: lands bounded by the following UTM NAD27 coordinates 
(E,N): 484300, 3645600; 484600, 3645600; 484600, 3645500; 484700, 
3645500; 484700, 3645300; 484400, 3645300; 484400, 3645500; 484300, 
3645500; 484300, 3645600.
    (iii) Unit 4c: lands bounded by the following UTM NAD27 coordinates 
(E,N): 490200, 3629300; 490400, 3629300; 490400, 3629200; 490500, 
3629200; 490500, 3629100; 490400, 3629100; 490400, 3628700; 490300, 
3628700; 490300, 3628600; 490200, 3628600; 490200, 3628500; 490100, 
3628500; 490100, 3628600; 490000, 3628600; 490000, 3628500; 489700, 
3628500; 489700, 3628700; 489800, 3628700; 489800, 3628800; 490100, 
3628800; 490100, 3629000; 490200, 3629000; 490200, 3629100; 490300, 
3629100; 490300, 3629200; 490200, 3629200; 490200, 3629300.
    (iv) Unit 4d: lands bounded by the following UTM NAD27 coordinates 
(E,N): 493800, 3622500; 494500, 3622500; 494500, 3622200; 494400, 
3622200; 494400, 3622100; 494300, 3622100; 494300, 3622300; 494200, 
3622300; 494200, 3622400; 494100, 3622400; 494100, 3622300; 494000,

[[Page 19914]]

3622300; 494000, 3622400; 493800, 3622400; 493800, 3622500.
    (v) Maps of Unit 4 follow:
BILLING CODE 4310-55-P
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BILLING CODE 4310-55-C
    (10) Map Unit 5: San Diego: Southern Coastal Mesa, San Diego 
County, California. From USGS 1:24,000 quadrangle maps Imperial Beach 
and Otay Mesa, California.
    (i) Unit 5a: lands bounded by the following UTM NAD27 coordinates 
(E,N): 506000, 3607300; 506600, 3607300; 506600, 3607100; 506700, 
3607100; 506700, 3606900; 506900, 3606900; 506900, 3606500; 507000, 
3606500; 507000, 3606000; 506900, 3606000; 506900, 3605800; 506800, 
3605800; 506800, 3605900; 506400, 3605900; 506400, 3606200; 506800, 
3606200; 506800, 3606400; 506300, 3606400; 506300, 3606300; 506000, 
3606300; 506000, 3606200; 505700, 3606200; 505700, 3606100; 505400, 
3606100; 505400, 3606000; 505100, 3606000; 505100, 3605900; 505000, 
3605900; 505000, 3606400; 505100, 3606400; 505100, 3606500; 505400, 
3606500; 505400, 3606600; 505600, 3606600; 505600, 3606700; 506000, 
3606700; 506000, 3607000; 505900, 3607000; 505900, 3607200; 506000, 
3607200; 506000, 3607300.
    (ii) Unit 5b: lands bounded by the following UTM NAD27 coordinates 
(E,N): 502000, 3604900; 502800, 3604900; 502800, 3603900; 502600, 
3603900; 502600, 3604000; 502000, 3604000; 502000, 3604900.
    (iii) Unit 5c: lands bounded by the following UTM NAD27 coordinates 
(E,N): 505200, 3604800; 505700, 3604800; 505700, 3604400; 506100, 
3604400; 506100, 3603500; 505200, 3603500; 505200, 3604800.
    (iv) Unit 5d: lands bounded by the following UTM NAD27 coordinates 
(E,N): 509600, 3602700; 510000,

[[Page 19916]]

3602700; 510000, 3602600; 510100, 3602600; 510100, 3602400; 510000, 
3602400; 510000, 3602100; 509900, 3602100; 509900, 3602000; 509800, 
3602000; 509800, 3601600; 509500, 3601600; 509500, 3601500; 508500, 
3601500; 508500, 3601400; 507500, 3601400; 507500, 3601300; 507000, 
3601300; 507000, 3601900; 507200, 3601900; 507200, 3602000; 507300, 
3602000; 507300, 3601900; 507400, 3601900; 507400, 3602000; 507500, 
3602000; 507500, 3602200; 507600, 3602200; 507600, 3602300; 507700, 
3602300; 507700, 3602500; 507900, 3602500; 507900, 3602300; 508000, 
3602300; 508000, 3602100; 508100, 3602100; 508100, 3602200; 508300, 
3602200; 508300, 3602000; 508600, 3602000; 508600, 3602100; 508700, 
3602100; 508700, 3602500; 508800, 3602500; 508800, 3602600; 508900, 
3602600; 508900, 3602500; 509100, 3602500; 509100, 3602100; 509200, 
3602100; 509200, 3602500; 509300, 3602500; 509300, 3602600; 509600, 
3602600; 509600, 3602700, excluding Mexico.
    (v) Unit 5e: lands bounded by the following UTM NAD27 coordinates 
(E,N): 488300, 3602600; 488500, 3602600; 488500, 3602400; 488300, 
3602400; 488300, 3602600.
    (vi) Unit 5f: lands bounded by the following UTM NAD27 coordinates 
(E,N): 499500, 3601300; 500400, 3601300; 500400, 3600600; 499500, 
3600600; 499500, 3600500; 498400, 3600500; 498400, 3600400; 497900, 
3600400; 497900, 3600500; 497600, 3600500; 497600, 3600600; 497900, 
3600600; 497900, 3600700; 498900, 3600700; 498900, 3600800; 499500, 
3600800; 499500, 3601300, excluding Mexico.
    (vii) Maps of Unit 5 follow:
BILLING CODE 4310-55-P

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BILLING CODE 4310-55-C
* * * * *

    Dated: April 10, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-9434 Filed 4-21-03; 8:45 am]
BILLING CODE 4310-55-P