[Federal Register Volume 69, Number 81 (Tuesday, April 27, 2004)]
[Proposed Rules]
[Pages 23024-23049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9203]



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Part IV





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Proposed Designation of 
Critical Habitat for the Riverside Fairy Shrimp (Streptocephalus 
woottoni); Proposed Rule

  Federal Register / Vol. 69 , No. 81 / Tuesday, April 27, 2004 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT45


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Riverside Fairy Shrimp 
(Streptocephalus woottoni)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the federally endangered Riverside fairy 
shrimp (Streptocephalus woottoni) pursuant to the Endangered Species 
Act of 1973, as amended (Act). We propose to designate a total of 
approximately 5,795 acres (ac) (2,345 hectares (ha)) of critical 
habitat in Los Angeles, Orange, Riverside, San Diego, and Ventura 
Counties, California.
    We hereby solicit data and comments from the public on all aspects 
of this proposal, including data on economic and other impacts of the 
designation. We may revise this proposal prior to final designation to 
incorporate or address new information received during the two public 
comment periods.

DATES: We will accept comments until May 27, 2004. Public hearing 
requests must be received no later than June 11, 2004. A second comment 
period will be opened upon the publication of the pending economic 
analysis.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of the following methods:
    1. You may submit written comments and information to the Field 
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 6010 Hidden Valley Road, Carlsbad, California 92009.
    2. You may hand-deliver written comments and information to our 
Carlsbad Fish and Wildlife Office, at the above address, or fax your 
comments to 760/731-9618.
    3. You may send your comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit electronic filing 
of comments, see the ``Public Comments Solicited'' section below.
    All comments and materials received, as well as supporting 
documentation used in preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

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

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    It is our intent that any final action resulting from this proposal 
will be as accurate as possible. Therefore, we solicit comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. Maps of essential habitat not included 
in the proposed critical habitat are available for viewing by 
appointment during regular business hours at the Carlsbad Fish and 
Wildlife Office (see ADDRESSES section) or on the Internet at http://carlsbad.fws.gov. On the basis of public comment, during the 
development of the final rule we may find that areas proposed are not 
essential, are appropriate for exclusion under section 4(b)(2), or are 
not appropriate for exclusion, and in all of these cases, this 
information would be incorporated into the final designation. We 
particularly seek comments concerning:
    (1) The reasons why any areas should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefits of designation will outweigh any threats to the 
species resulting from the designation;
    (2) Specific information on the amount and distribution of 
Riverside fairy shrimp and its habitat, and which habitat or habitat 
components are essential to the conservation of this species and why;
    (3) Land use designations and current or planned activities in or 
adjacent to the areas proposed and their possible impacts on proposed 
critical habitat;
    (4) Any foreseeable economic or other potential impacts resulting 
from the proposed designation, in particular, any impacts on small 
entities;
    (5) Some of the lands we have identified as essential for the 
conservation of the Riverside fairy shrimp are not being proposed as 
critical habitat. The following areas essential to the conservation of 
the Riverside fairy shrimp are not being proposed as critical habitat: 
Lands on Marine Corps Air Station Miramar (MCAS, Miramar); ``mission-
critical'' training areas on Marine Corps Base, Camp Pendleton (Camp 
Pendleton); areas within San Diego Multiple Species Conservation 
Program (MSCP) and the Orange County Central-Coastal Natural 
Communities Conservation Program (NCCP); and areas in the Draft Western 
Riverside Multiple Species Habitat Conservation Plan (MSHCP). These 
areas have been excluded because we believe the benefit of excluding 
these areas outweighs the benefit of including them. We specifically 
solicit comment on the inclusion or exclusion of such areas and: (a) 
Whether these areas are essential; (b) whether these areas warrant 
exclusion; and (c) the basis for not designating these areas as 
critical habitat (section 4(b)(2) of the Act);
    (6) We request information from the Department of Defense to assist 
the Secretary of the Interior in evaluating critical habitat on lands 
administered by or under the control of the Department of Defense, 
specifically information regarding impacts to national security 
associated with proposed designation of critical habitat; and
    (7) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit electronic comments in ASCII file format and 
avoid the use of special characters or any form of encryption. Please 
also include ``Attn: RIN 1018-AT45'' in your e-mail subject header and 
your name and return address in the body of your message. If you do not 
receive a confirmation from the system that we have received your 
internet message, contact us directly by calling our Carlsbad Fish and 
Wildlife Office at phone number 760-431-9440. Please note that the e-
mail address ``[email protected]'' will be closed out at the 
termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review. Individual 
respondents may request that we withhold their home address from the 
rulemaking record, which we will honor to the extent allowable by law. 
There also may be circumstances in which we would withhold from the 
rulemaking record a respondent's identity, as allowable by law. If you 
wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as

[[Page 23025]]

representatives or officials of organizations or businesses, available 
for public inspection in their entirety. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the above address.

Background

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of conservation resources. The Service's present system for designating 
critical habitat is driven by litigation rather than biology, limits 
our ability to fully evaluate the science involved, consumes enormous 
agency resources, and imposes huge social and economic costs. The 
Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the ESA [Act] 
can protect species with and without critical habitat designation, 
critical habitat designation may be redundant to the other consultation 
requirements of section 7.''
    Currently, only 445, or 36 percent of the 1244 listed species in 
the U.S. under the jurisdiction of the Service, have designated 
critical habitat (Service 2004). We address the habitat needs of all 
1244 listed species through conservation mechanisms such as listing, 
section 7 consultations, the Section 4 recovery planning process, the 
Section 9 protective prohibitions of unauthorized take, Section 6 
funding to the States, and the Section 10 incidental take permit 
process. The Service believes that it is these measures that may make 
the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits regarding critical habitat 
designation, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits and to comply 
with the growing number of adverse court orders. As a result, the 
Service's own proposals to undertake conservation actions based on 
biological priorities are significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for additional public 
participation beyond those minimally required by the Administrative 
Procedures Act (APA), the Act, and the Service's implementing 
regulations, or to take additional time for review of comments and 
information to ensure the rule has addressed all the pertinent issues 
before making decisions on listing and critical habitat proposals, due 
to the risks associated with noncompliance with judicially imposed. 
This in turn fosters a second round of litigation in which those who 
will suffer adverse impacts from these decisions challenge them. The 
cycle of litigation appears endless, is very expensive, and in the 
final analysis provides little additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with National 
Environmental Policy Act (NEPA), all are part of the cost of critical 
habitat designation. These costs result in minimal benefits to the 
species that is not already afforded by the protections of the Act 
enumerated earlier, and they directly reduce the funds available for 
direct and tangible conservation actions.
    Please see the prior final rule designating critical habitat for 
the Riverside fairy shrimp (66 FR 29384; May 30, 2001), which was 
subsequently vacated, and the Recovery Plan for the Vernal Pools of 
Southern California (Service 1998) for a general discussion of the 
biology of this species and vernal pools ecosystems.

Status and Distribution

    Prior to the discovery of the Santa Rosa Plateau fairy shrimp and 
new findings of Riverside fairy shrimp, the Riverside fairy shrimp was 
believed to have the most restricted distribution of endemic California 
fairy shrimp (Eng et al. 1990, Simovich and Fugate 1992). The range of 
this species is still among the most limited and includes Ventura, Los 
Angeles, Orange, San Diego, and Riverside Counties in southern 
California, and Bajamar in Baja California, Mexico (Brown et al. 1993; 
Service 1998). With the exception of the Riverside County populations, 
and the population at Cruzan Mesa in Los Angeles County, all 
populations are within approximately 15 miles (mi) (24 kilometers (km)) 
of the coast. The U.S. populations of Riverside fairy shrimp range over 
a north-south distance of approximately 125 mi (200 km).
    The known populations of Riverside fairy shrimp can be categorized 
into core population areas and isolated populations. The core 
population areas are defined by multiple pools or pool complexes 
containing Riverside fairy shrimp that are within close proximity 
(approximately 5 mi (8 km)) of other occupied pools and pool complexes. 
Isolated populations are defined by single pools or pool complexes 
known to contain Riverside fairy shrimp that are separated from other 
known locations by greater than 10 mi (16 km). There are four core 
population areas and seven isolated populations. The core population 
areas are located in the Orange County Foothills, Western Riverside 
County, the southern coastal portion of Camp Pendleton in San Diego 
County, and Otay Mesa in San Diego County. Isolated populations are 
found near the City of Moorpark in Ventura County, near the City of 
Santa Clarita on Cruzan Mesa and at Los Angeles International Airport 
in Los Angeles County, at March Air Reserve Base (ARB) and near the 
City of Banning in Riverside County, and in the City of Carlsbad and on 
Marine Corps Air Station (MCAS) Miramar in San Diego County.
    In Ventura County, Riverside fairy shrimp occur within a single 
large pool in a grassland area at Carlsberg Ranch. Recently, urban 
development adjacent to this pool appears to have affected the pool's 
hydrology (Rick Farris, U.S. Fish

[[Page 23026]]

and Wildlife Service, personal communication 2003).
    In Los Angeles County, the species occurs at the Los Angeles 
International Airport and Cruzan Mesa. Habitat at the Los Angeles 
International Airport has been impacted by occasional scraping and 
draining of pooling areas; however, viable Riverside fairy shrimp cysts 
persist (U.S. Federal Aviation Administration et al. 2003). At Cruzan 
Mesa, upland vegetation associated with the two occupied pools may have 
recently been removed, which could result in siltation of these pools 
(Rick Farris, U.S. Fish and Wildlife Service, personal communication 
2003). In the Spring of 2003, a limited number of fairy shrimp cysts 
likely to be Riverside fairy shrimp were found at Madrona Marsh in the 
City of Torrence; however, these cysts have not yet been identified 
conclusively to the species level. Ongoing work is being done in the 
area to determine if there is a population of Riverside fairy shrimp at 
Madrona Marsh.
    Vernal pools occupied by Riverside fairy shrimp in Orange County 
occur at the former MCAS El Toro, Edison Viejo Conservation Bank, 
Saddleback Meadows, O'Neill Regional Park, Live Oak Plaza, Tijeras 
Creek, Chiquita Ridge, and Radio Tower Road. The Orange County 
populations of the species occur primarily within vernal pools formed 
by depressions in slumping earth or impounded ephemeral streams 
(Riefner and Pryor 1996). Many of these pools have been affected by 
grazing and urban development (Service 2001). These vernal pool 
complexes form a chain of pools along the Orange County Foothills. At 
the south end of this chain is a pool located on the agricultural lease 
land of Camp Pendleton, and at the north end is the pool on the former 
MCAS, El Toro.
    In Riverside County, there are seven naturally occurring 
populations, one created population, and a proposed creation of habitat 
for Riverside fairy shrimp, all of which are located within the 
planning area for the Western Riverside County MSHCP. The naturally 
occurring locations are the Banning Pool, the vernal pools on March 
ARB, the Australia Pool in the Lake Elsinore Back Basin, the Schlinger 
Pool, the Clayton Ranch Pools (slated for relocation in Fiscal Year 
2004-2005), the Scott Road Pool, and the Skunk Hollow Pool and the 
Field Pool. An artificial vernal pool complex has been created at 
Johnson Ranch to offset the impacts to a population of Riverside fairy 
shrimp by the Redhawk Development. Another artificial vernal pool 
creation is planned on the Clayton Ranch project to offset the taking 
of Riverside fairy shrimp in the Clayton Ranch Pool mentioned above. 
Riverside County populations represent the most inland extent of the 
species' range (Eriksen and Belk 1999). The type locality for the 
species was located within Riverside County, but has since been 
extirpated (Eriksen 1988). There were also two pools known to contain 
Riverside fairy shrimp on, or near, Tribal lands of Pechanga Band of 
Luiseno Indians, however, the current status of these pools is unknown.
    In San Diego County, there are vernal pools that contain Riverside 
fairy shrimp in the coastal regions of the County. In north coastal San 
Diego County, the Riverside fairy shrimp occurs in vernal pools on Camp 
Pendleton and in a pool in the City of Carlsbad. On Camp Pendleton, the 
Riverside fairy shrimp locations are concentrated in the south coastal 
section of the base near Interstate 5 (Recon 2001) and a single slump 
pool, mentioned above, on the northern portion of the base on land 
leased to the State of California (Michael Brandman Associates 1998). 
The pools on Camp Pendleton near Interstate 5 occur in an area used for 
training exercises (Moeur 1998). The pool complex containing Riverside 
fairy shrimp in Carlsbad is conserved, but it is surrounded by urban 
development. In central San Diego County, there is a single occupied 
pool on MCAS, Miramar east of Interstate 15. In southern San Diego 
County, the species occurs in several pool complexes on Otay Mesa near 
the U.S./Mexico border. There has been significant work done to restore 
and enhance vernal pools for listed species, including the Riverside 
fairy shrimp, at three sites on Otay Mesa; The Cal Terraces site, Otay 
High School site, and the Arnie's Point site. Other occupied pools on 
Otay Mesa are threatened by off-road vehicle activity and urban 
development (Bauder and McMillan 1998; The Environmental Trust 2003).
    The Riverside fairy shrimp faces threats throughout its range. 
These threats can be divided into three major categories: (1) Direct 
destruction of vernal pools and vernal pool habitat as a result of 
construction, vehicle traffic, domestic animal grazing, dumping, and 
deep plowing; (2) indirect threats which degrade or destroy vernal 
pools and vernal pool habitat over time including altered hydrology 
(e.g., damming or draining), invasion of alien species, habitat 
fragmentation, and associated deleterious effects resulting from 
adjoining urban land uses; and (3) long-term threats including the 
effect of isolation on genetic diversity and locally adapted genotypes, 
air and water pollution, climatic variations, and changes in nutrient 
availability (Bauder 1986; Service 1993).

Previous Federal Actions

    Please see the prior final rule designating critical habitat for 
the Riverside fairy shrimp for a description of previous Federal 
actions through May 2001 (66 FR 29384; May 30, 2001). For the reasons 
outlined in that rule, we have determined that the designation of 
critical habitat for the Riverside fairy shrimp is prudent.
    On November 6, 2001, the Building Industry Legal Defense 
Foundation, Foothill/Eastern Transportation Corridor Agency, National 
Association of Home Builders, California Building Industry Association, 
and Building Industry Association of San Diego County filed a lawsuit 
in the United States District Court for the District of Columbia 
challenging the designation of Riverside fairy shrimp critical habitat 
and alleging errors in our promulgation of the final rule. On March 13, 
2002, the Court granted the request of the Center for Biological 
Diversity, Inc. and Defenders of Wildlife, Inc. to intervene as 
defendants in the case. We requested a voluntary remand, and on October 
30, 2002, the Court vacated the designation and ordered the Service to 
publish a new final rule with respect to the designation of critical 
habitat for the Riverside fairy shrimp (Building Industry Legal Defense 
Foundation, et al., v. Gale Norton, Secretary of the Interior, et al., 
and Center for Biological Diversity, Inc. and Defenders of Wildlife, 
Inc. Civil Action No. 01-2311 (JDB) (U.S. District Court, District of 
Columbia)).

Critical Habitat

    Please see the prior final rule designating critical habitat for 
the Riverside fairy shrimp for a general discussion on sections 3, 4, 
and 7 of the Act and our policy in relation to critical habitat (66 FR 
29384; May 30, 2001).

Criteria for Defining Essential Habitat

    The Recovery Plan for Vernal Pools of Southern California (Recovery 
Plan) (Service 1998) outlines areas essential to the conservation of 
six species, including the Riverside fairy shrimp. The Recovery Plan 
details the steps that are necessary to stabilize the decline of these 
species and steps necessary to recover these species to the point where 
protection under the Act is no longer required. These steps are 
essential for the conservation of the Riverside fairy shrimp.

[[Page 23027]]

    The Recovery Plan uses Management Areas to define regional 
conservation needs. We have used these same Management Areas to assist 
us in identifying specific areas essential to the conservation of the 
species. The Recovery Plan identified vernal pool complexes essential 
for the conservation of the Riverside fairy shrimp. Following the 
publication of the Recovery Plan, additional populations essential to 
the conservation of the Riverside fairy shrimp have been located.
    The Riverside fairy shrimp has a narrow geographic distribution. 
Within its range, the species has specialized habitat requirements. The 
Riverside fairy shrimp requires vernal pools or ephemeral ponds that 
pool for several months of each year but also have a dry period. These 
pools do not naturally occur in great abundance, and in recent years, 
this type of wetland has been degraded and lost to off-road vehicles, 
grazing, farming, and development.
    In this critical habitat proposal we have identified areas that are 
essential to the conservation of Riverside fairy shrimp. Both core and 
isolated populations are essential for conservation of a species of 
limited numbers and distribution (Gilpin and Soul[eacute] 1986; Lesica 
and Allendorf 1995; Lande 1999). We have determined that all of the 
known locations of Riverside fairy shrimp are essential to the 
conservation of the species. There are four areas with core population 
areas of Riverside fairy shrimp occurrences. These areas are defined by 
complexes of vernal pools or ephemeral ponds that are within 5 mi (8 
km) of one another. These occurrences are essential as source 
populations for this species.
    In addition to the core population areas, there are seven outlying 
or isolated occurrences of the Riverside fairy shrimp. These 
occurrences may represent unique populations of the Riverside fairy 
shrimp. Each of these isolated occurrences is greater than 10 mi (16 
km) from the other known Riverside fairy shrimp locations. These 
populations may have genetic characteristics that will allow the 
species to adapt to changing environmental conditions and give the 
species an opportunity to colonize or re-colonize potential habitat, 
therefore, they are essential to the overall long-term conservation of 
the species (i.e., they may be genetically different from more 
centrally located populations) (Gilpin and Soule 1986; Lesica and 
Allendorf 1995). The specific essential habitat is explained in greater 
detail below in the Unit Descriptions.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we consider those physical and biological features (primary 
constituent elements) that are essential to the conservation of the 
species, and that may require special management considerations or 
protection. These features are used for all listed species and include, 
but are not limited to: space for individual and population growth and 
for normal behavior; food, water, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding and reproduction; 
and habitats that are protected from disturbance or are representative 
of the historic and geographical and ecological distributions of a 
species.
    The specific biological and physical features, otherwise referred 
to as the primary constituent elements, which comprise Riverside fairy 
shrimp habitat are based on specific components that provide for the 
essential biological components of the species as described below.

Space for Individual and Population Growth, and for Normal Behavior

    Riverside fairy shrimp are found in vernal pools and ephemeral 
wetlands that range in size and quality. Some pools, such as the 
smaller pools on Marine Corps Base, Camp Pendleton, have a surface area 
of only 300-500 square feet (approximately 30 to 50 square meters) when 
filled. Other pools that support Riverside fairy shrimp are large when 
compared to the majority of southern California's vernal pools. For 
example, the vernal pool at Skunk Hollow has a surface area of 
approximately 33 ac (13 ha). Further, the associated watersheds of the 
vernal pools that support Riverside fairy shrimp vary significantly in 
size. The watershed associated with smaller pools in southern 
California may only be on the order of a few acres, whereas the 
watershed associated with the Skunk Hollow pool in western Riverside 
County is greater than 125 ac (50 ha).
    Vernal pools generally occur in complexes. Vernal pool complexes 
are defined by two or more ephemeral or vernal pools in a larger 
watershed basin with adjacent upland habitat that together form a 
matrix of physical and ecological processes. To maintain high-quality 
vernal pool ecosystems, all components of the matrix must be available 
and functioning (Service 1998). Most of the remaining pools that 
support the Riverside fairy shrimp are no longer in a pristine or 
undisturbed state, yet these pools and the associated matrix of upland 
habitat continue to provide essential biological and physical features 
necessary for the conservation of this species. In many of these areas 
it will be possible to improve the conditions for Riverside fairy 
shrimp; however, irreversible actions that alter the hydrology of 
vernal pool ecosystems or infringe on the pool basins threaten the 
survival of this species.

Water and Physiological Requirements

    Temperature, water chemistry, and length of time vernal pools are 
inundated with water are important factors that effect and potentially 
limit the distribution of the Riverside fairy shrimp. The water in the 
pools that support Riverside fairy shrimp typically has low total 
dissolved solids and alkalinity (means of 77 and 65 milligrams per 
liter (mg/l) or parts per million (ppm), respectively), corroborated by 
pH at neutral or just below (6.4-7.1) (Eng et al. 1990; Gonzalez et al. 
1996; Eriksen and Belk 1999). Riverside fairy shrimp have been shown to 
tightly regulate their internal body chemistry for pool environments 
that have low salinity and low alkalinity (Gonzalez et al. 1996). In a 
laboratory experiment, Riverside fairy shrimp had difficulty regulating 
their body chemistry in conditions with concentrations of Sodium ion 
(Na+) greater than 60 millimoles per liter (mmol/l) (1,380 mg/l) and 
did not survive in conditions with concentrations higher than 100 mmol/
l (2,300 mg/l) (Gonzalez et al. 1996). These same experiments also 
found that Riverside fairy shrimp could not survive in laboratory 
environments where external alkalinity was higher than 800 to 1,000 mg/
l HCO3-. Riverside fairy shrimp is found in water 
temperatures ranging between 50 and 77 degrees Fahrenheit (10 and 25 
degrees Celsius) (Hathaway and Simovich 1996). Water within pools 
supporting fairy shrimp may be clear, but more commonly it is 
moderately turbid (Eriksen and Belk 1999).

Sites for Breeding, Reproduction and Rearing of Offspring

    The Riverside fairy shrimp is restricted to a small subset of long-
lasting vernal pools and ephemeral wetlands in southern California 
because this animal takes approximately two months to mature and 
reproduce (Hathaway and Simovich 1996). In contrast, the San Diego 
fairy shrimp, another federally endangered fairy shrimp species found 
in southern

[[Page 23028]]

California, can mature and reproduce in less than one month. Most 
vernal pools in southern California do not pool for a sufficient amount 
of time to support the Riverside fairy shrimp. Pools that contain 
Riverside fairy shrimp usually accumulate water to a depth greater than 
10 in (25 cm) and some pools that support this species fill to a depth 
of 5 to 10 feet (1.5 to 3 meters). In the years that Riverside fairy 
shrimp successfully reproduce, pools fill for 2 to 3 months and some 
pools have been reported to stay filled for up to 7 months. Riverside 
fairy shrimp can survive as cysts for multiple years; therefore, it is 
not necessary for ideal conditions to exist every year for this species 
to persist.
    Vernal pool ecosystems are highly variable in the length of time 
pools remain filled, and the Riverside fairy shrimp has adapted to 
these conditions. One indication that Riverside fairy shrimp have 
adapted to a system where the conditions needed for success occur 
infrequently is the low percentage of total cysts that hatch each time 
a pool fills with water. Since only small percentages of Riverside 
fairy shrimp cysts hatch in any given year, if the pool dries before 
the species is able to mature and reproduce, there are still many more 
cysts left in the soil (cyst bank) that may hatch the next time the 
pool fills (Simovich and Hathaway 1997). Allowing conditions within the 
above physical parameters to occur on a naturally cyclic basis is 
essential to the conservation of the Riverside fairy shrimp. Following 
reproduction, newly produced cysts either fall to the bottom of the 
pool or are carried in the brood sac of the female until the pool dries 
or the female dies and sinks to the bottom of the pool (Eriksen and 
Belk 1999).

Disturbance, Protection, and the Historical Geographical Distributions

    The majority of sites currently supporting the Riverside fairy 
shrimp have experienced disturbance, some more recently than others and 
some to a greater extent than others. The pools that support Riverside 
fairy shrimp are generally found in flat or moderately sloping areas. 
Many of the pools are in grassland habitats. As a consequence, these 
areas have been vulnerable to agriculture, cattle grazing, and off-road 
vehicle activity. For example, many of the pools that currently support 
Riverside fairy shrimp have been artificially deepened in the past by 
ranchers to provide water for stock animals (Hathaway and Simovich 
1996). This species has only been studied since the late 1980s; 
therefore, the extent of its historical distribution is not well 
understood. Current estimates suggest that 90 to 97 percent of vernal 
pool habitat has been lost in southern California (Mattoni and Longcore 
1997; Bauder and McMillan 1998; Keeler-Wolf et al. 1998; Service 1998). 
The conservation and subsequent protection of the few remaining 
occurrences of Riverside fairy shrimp are essential for its 
conservation (Service 1998). In some places where the Riverside fairy 
shrimp is found, such as on the Los Angeles coastal prairie, there were 
historically larger complexes of vernal pools that no longer exist 
(Mattoni and Longcore 1997). In other places, like Riverside County, 
there are multiple locations where the Riverside fairy shrimp may still 
be found. Because Riverside County has not yet been developed and 
fragmented to the same extent as Los Angeles County, the Service 
believes that new occurrences of the Riverside fairy shrimp may still 
be located in Riverside County.
    Pursuant to our regulations, we are required to identify the known 
physical and biological features, i.e., primary constituent elements, 
essential to the conservation of the Riverside fairy shrimp, together 
with a description of any critical habitat that is proposed. In 
identifying the primary constituent elements, we used the best 
available scientific and commercial data available. The primary 
constituent elements determined essential to the conservation of 
Riverside fairy shrimp are:
    1. Small to large pools or pool complexes that have the appropriate 
temperature, water chemistry, and length of time of inundation with 
water necessary for Riverside fairy shrimp incubation and reproduction, 
as well as dry periods necessary to provide the conditions to maintain 
a dormant and viable cyst bank. Specifically, the conditions necessary 
to allow for successful reproduction of Riverside fairy shrimp fall 
within the following ranges:
    a. Moderate to deep depths ranging from 10 in (25 cm) to 5 to 10 ft 
(1.5 to 3 m);
    b. Ponding inundation that lasts for a minimum length of 2 months 
and a maximum length of 5 to 8 months, i.e., a sufficient wet period in 
winter and spring months to allow the Riverside fairy shrimp to hatch, 
mature, and reproduce, followed by a dry period prior to the next 
winter and spring rains;
    c. Water temperature that falls within the range of 50 and 77 
degrees Fahrenheit (10 and 25 degrees Celsius); and
    d. Water chemistry with low total dissolved solids and alkalinity 
(means of 77 and 65 parts per million, respectively), corroborated by 
pH within a range of 6.4-7.1.
    2. Associated watersheds that provide water to fill the pools in 
the winter and spring months. The size of the associated watershed 
varies greatly and cannot be generalized and has been assessed on a 
case-by-case basis. Factors that affect the size of the watershed 
include surface and underground hydrology, the topography of the area 
surrounding the pool or pools, the vegetative coverage, and the soil 
substrate in the area. Watershed sizes designated vary from a few acres 
to greater than 100 ac (40 ha).
    3. Any soil type with a clay component and/or an impermeable 
surface or subsurface layer known to support vernal pool habitat.
    The matrix of vernal pools/ephemeral wetlands, the associated 
watershed, upland habitats, and underlying soil substrates form 
hydrological and ecologically functional units. These features and the 
lands that they represent are essential to the conservation of the 
Riverside fairy shrimp. All lands identified as essential and proposed 
as critical habitat contain one or more of the primary constituent 
elements for the Riverside fairy shrimp.

Special Management Considerations or Protection

    As we undertake the process of designating critical habitat for a 
species, we first evaluate lands defined by those physical and 
biological features essential to the conservation of the species for 
inclusion in the designation pursuant to section 3(5)(A) of the Act. 
Secondly, we then evaluate lands defined by those features to assess 
whether they may require special management considerations or 
protection. As discussed throughout this proposed rule, our previous 
final designation of critical habitat for the Riverside fairy shrimp 
(66 FR 29384, May 30, 2001) and in our final recovery plan for the 
species (Service 1998), the Riverside fairy shrimp and its habitat are 
threatened by a multitude of factors. Threats to those features that 
define essential habitat (primary constituent elements) are caused by 
changes in the hydrology of the vernal pools and their associated 
watersheds; disturbance to the flora, fauna, and soil in and around the 
vernal pools; and the invasion of exotic plant and animal species into 
the vernal pool basin. Habitat loss continues to be the greatest threat 
to Riverside fairy shrimp. It is essential for the survival of this 
species to protect those features that define the remaining essential 
habitat, through purchase or

[[Page 23029]]

special management plans, from irreversible threats and habitat 
conversion.
    Changes in hydrology which affect vernal pools or pool complexes 
are caused by activities that alter the topography or change historical 
water flow patterns in the watershed. Even slight alterations of the 
hydrology can change the ponding duration of a pool, which in turn can 
make the habitat unsuitable for Riverside fairy shrimp. Activities that 
impact the hydrology include but are not limited to road building, 
grading and earth moving, impounding natural water flows, and draining 
of the pool(s). Impacts to the hydrology of vernal pools can be managed 
through avoidance of such activities in and around the pools and the 
associated watershed.
    Disturbance to the flora, fauna, and soil in and around vernal 
pools that contain Riverside fairy shrimp can impact the long term 
sustainability of ecosystems used by Riverside fairy shrimp. Physical 
disturbances to pools are caused by off-road vehicle traffic, military 
training activities, agricultural activities, and cattle grazing. These 
impacts can be ameliorated by educating landowners and managers about 
the location and value of these resources and requesting that they 
protect these resources.
    Invasive exotic plant and animal species impact Riverside fairy 
shrimp directly and indirectly. Bullfrogs and African clawed frogs have 
been reported from some of the pools where Riverside fairy shrimp is 
found. These exotic amphibians may eat Riverside fairy shrimp. Exotic 
plant species, such as brass-buttons (Cotula coronopifolia) and Pacific 
bentgrass (Agrostis avenaceae), compete with native vernal plant 
species. Conflicts with exotic species can be managed by removal 
techniques that do not negatively impact the native species in the 
vernal pools.
    Threats to the features that define habitat essential to the 
conservation of the Riverside fairy shrimp should be assessed for each 
site. Sites should be protected from activities that negatively alter 
or destroy vernal pools. An appropriate management and monitoring plan 
should address these threats. A potential strategy with appropriate 
guidelines for the conservation of Riverside fairy shrimp has been 
elaborated in the Recovery Plan for Vernal Pools of Southern California 
(Service 1998). As such, we believe that within each area proposed for 
designation as critical habitat the physical and biological features 
essential for the conservation of the Riverside fairy shrimp may 
require some level of management and/or protection to address the 
current and future threats to the Riverside fairy shrimp and habitat 
essential to its conservation to ensure the overall recovery of the 
species.

Methods

    In determining areas that are essential to conserve the Riverside 
fairy shrimp, we used the best scientific and commercial data 
available. These included data from research and survey observations 
published in peer-reviewed articles, recovery criteria outlined in the 
Recovery Plan (Service 1998), regional Geographic Information System 
(GIS) vegetation, soil, and species coverages (including layers for 
Ventura, Los Angeles, Orange, Riverside, and San Diego Counties), data 
compiled in the California Natural Diversity Database (CNDDB), data 
collected on MCAS, Miramar, and Camp Pendleton, information, data and 
analysis used to develop regional Habitat Conservation Plans (HCPs), 
and data collected from reports submitted by biologists holding section 
10(a)(1)(A) recovery permits. In addition, information provided in 
comments on the proposed designation and draft economic analysis will 
be evaluated and considered in the development of the final designation 
for Riverside fairy shrimp.
    As stated earlier, Riverside fairy shrimp occur in ephemeral pools 
and ponds that may not be present throughout a given year or from year 
to year. Proposed critical habitat includes a mosaic of vernal pools, 
ponds, and depressions currently supporting Riverside fairy shrimp and 
vernal pool vegetation. The proposed critical habitat also includes the 
upland areas surrounding these ephemeral wetlands that constitute the 
microwatersheds for the pools. Vernal pool topography is such that the 
vernal pool fills directly from rain fall or in other cases the 
topography is such that the pool forms through the subsurface or 
overland waterflow from the surrounding watershed. Two specific areas 
have been included in this critical habitat proposal that occur within 
the geographical area occupied by the species, but have not had focused 
surveys for Riverside fairy shrimp conducted in them. One of these 
areas is in Ventura County at a pool referred to as Southeast Tierra 
Rejada pool; the other is in Riverside County on Santa Rosa Plateau. 
Both of these locations are essential to the conservation of the 
Riverside fairy shrimp because they contain the primary constituent 
elements and occur in areas where the known occurrences of Riverside 
fairy shrimp are extremely limited. Vernal pools at these locations 
retain water for sufficient amounts of time to allow for the 
reproduction of Riverside fairy shrimp. These pools also have rare 
plants that are associated with known locations of Riverside fairy 
shrimp. The preservation of both of these areas will provide habitat 
essential to the conservation of Riverside fairy shrimp, and the 
persistence of healthy populations of Riverside fairy shrimp in these 
areas is identified in Vernal Pool Recovery Plan.
    After all the information about the known occurrences of Riverside 
fairy shrimp was compiled, we created maps indicating the essential 
habitat associated with each of the occurrences. We used the 
information outlined above to aid in this task. The essential habitat 
was mapped using GIS and refined using topographical and aerial map 
coverages. To accomplish this, we first identified and mapped vernal 
pool basins and ephemeral wetlands supporting the Riverside fairy 
shrimp that contained the primary constituent elements for the species. 
Next, based on topographic features such as ridges, mima mounds, and 
elevational gradients or slopes, the essential watershed associated 
with the vernal pool basins and ephemeral wetlands that also contained 
the primary constituent elements for the Riverside fairy shrimp were 
then mapped. The combined extent of these mapped areas was defined as 
the essential habitat for the Riverside fairy shrimp. Whenever 
possible, areas not containing the primary constituent elements, such 
as developed areas or open water, were not included in the boundaries 
of proposed critical habitat. However, our smallest unit of mapping is 
a 100-meter square, so it was not always possible to avoid these areas.
    After creating a GIS coverage of the essential areas, we described 
the boundaries of the essential areas using a 100-meter grid to 
establish Universal Transverse Mercator (UTM) North American Datum 27 
(NAD 27). The areas were then analyzed with respect to sections 
4(a)(3), and 4(b)(2) of the Act, and any applicable and appropriate 
exclusions were made. The remaining essential areas are the proposed 
critical habitat. The essential areas, an elaboration on exclusions, 
and the specific areas proposed for critical habitat are described 
below. The proposed designation of critical habitat is presented as six 
different habitat units.

[[Page 23030]]

Relationship to Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data available after taking into consideration the economic impact, the 
effect on national security, and any other relevant impact of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if we determine, following an analysis, 
that the benefits of such exclusion outweigh the benefits of specifying 
a particular area as critical habitat, unless the failure to designate 
such area as critical habitat will result in the extinction of the 
species. Consequently, we may exclude an area from designated critical 
habitat based on economic impacts, the effect on national security, or 
other relevant impacts such as preservation of conservation 
partnerships, if we determine that the benefits of excluding an area 
from critical habitat outweigh the benefits of including the area in 
critical habitat, provided the action of excluding the area will not 
result in the extinction of the species.
    In our critical habitat designations, we have used the provisions 
outlined in section 4(b)(2) of the Act to evaluate those specific areas 
that are proposed for designation as critical habitat and those areas 
which are subsequently finalized (i.e., designated). We have applied 
the provisions of this section of the Act to lands essential to the 
conservation of the subject species to evaluate them and either exclude 
them from final critical habitat or not include them in proposed 
critical habitat. Lands which we have either excluded from or not 
included in critical habitat based on those provisions include those 
covered by: (1) Legally operative HCPs that cover the species and 
provide assurances that the conservation measures for the species will 
be implemented and effective; (2) draft HCPs that cover the species, 
have undergone public review and comment, and provide assurances that 
the conservation measures for the species will be implemented and 
effective (i.e., pending HCPs); (3) Tribal conservation plans that 
cover the species and provide assurances that the conservation measures 
for the species will be implemented and effective; (4) State 
conservation plans that provide assurances that the conservation 
measures for the species will be implemented and effective; and (5) 
Service National Wildlife Refuge System Comprehensive Conservation 
Plans that provide assurances that the conservation measures for the 
species will be implemented and effective.

Relationship of Critical Habitat to Approved Habitat Conservation Plans

Regional HCPs

    As described above, section 4(b)(2) of the Act requires us to 
consider other relevant impacts, in addition to economic and national 
security impacts, when designating critical habitat. Section 
10(a)(1)(B) of the Act authorizes us to issue permits for the take of 
listed wildlife species incidental to otherwise lawful activities. 
Development of an HCP is a prerequisite for the issuance of an 
incidental take permit pursuant to section 10(a)(1)(B) of the Act. An 
incidental take permit application must be supported by an HCP that 
identifies conservation measures that the permittee agrees to implement 
for the species to minimize and mitigate the impacts of the permitted 
incidental take.
    HCPs vary in size and may provide for incidental take coverage and 
conservation management for one or many federally listed species. 
Additionally, more than one applicant may participate in the 
development and implementation of an HCP. Some areas occupied by the 
Riverside fairy shrimp involve complex HCPs that address multiple 
species, cover large areas, and have many participating permittees. 
Large regional HCPs expand upon the basic requirements set forth in 
section 10(a)(1)(B) of the Act because they reflect a voluntary, 
cooperative approach to large-scale habitat and species conservation 
planning. Many of the large regional HCPs in southern California have 
been, or are being, developed to provide for the conservation of 
numerous federally listed species and unlisted sensitive species and 
the habitat that provides for their biological needs. These HCPs 
address impacts in a planning area and create a preserve design within 
the planning area. Over time, areas in the planning area are developed 
according to the HCP, and the area within the preserve is acquired, 
managed, and monitored. These HCPs are designed to implement 
conservation actions to address future projects that are anticipated to 
occur within the planning area of the HCP, in order to reduce delays in 
the permitting process. The amount of land in the planning area and 
preserves for the HCPs in the vicinity of known Riverside fairy shrimp 
occurrences are presented in Table 1.

  Table 1.--Habitat Conservation Plans (HCPs) Areas Within the General
                  Area of the Proposed Critical Habitat
------------------------------------------------------------------------
               HCP                   Planning area       Preserve area
------------------------------------------------------------------------
San Diego Multiple Species        582,000 ac          171,000 ac (69,573
 Conservation Program (MSCP).      (236,000 ha).       ha)
Central-Coastal Orange County     208,713 ac (84,463  38,738 ac (15,677
 NCCP/HCP.                         ha).                ha)
Proposed Northwestern San Diego   111,908 ac (45,287  19,928 ac (8,064
 Multiple Habitat Conservation     ha).                ha)
 Program (MHCP).
Proposed Southern Subregion NCCP/ 128,000 ac (51,800  14,000 ac (5,666
 HCP Orange County.                ha).                ha)
Proposed Western Riverside        1.3 million ac      153,000 ac (61,919
 Multiple Species Habitat          (530,000 ha).       ha)
 Conservation Plan (MSHCP).
------------------------------------------------------------------------

    In the case of approved regional HCPs (e.g., those sponsored by 
cities, counties or other local jurisdictions) that provide for 
incidental take coverage for the Riverside fairy shrimp, a primary goal 
is to provide for the protection and management of habitat essential 
for the conservation of the species while directing development to 
nonessential areas. The regional HCP development process provides an 
opportunity for more intensive data collection and analysis regarding 
the use of particular habitat areas by the Riverside fairy shrimp. The 
process also enables us to construct a system habitat that provides for 
the biological needs and long-term conservation of the species.
    Completed HCPs and their accompanying Implementing Agreements (IA) 
contain management measures and protections for identified preserve 
areas that protect, restore, and enhance the value of these lands as 
habitat for the Riverside fairy shrimp. These measures include explicit 
standards to minimize any impacts to the covered species and its 
habitat. In general, HCPs are designed to ensure that the value of the 
conservation lands

[[Page 23031]]

are maintained, expanded, and improved for the species that they cover.
    In approving these HCPs, the Service has provided assurances to 
permit holders that once the protection and management required under 
the plans are in place and for as long as the permit holders are 
fulfilling their obligations under the plans, no additional mitigation 
in the form of land or financial compensation will be required of the 
permit holders and, in some cases, specified third parties. Similar 
assurances will be extended to future permit holders in accordance with 
the Service's HCP Assurance (``No Surprises'') rule codified at 50 CFR 
17.22(b)(5) and (6) and 17.32(b)(5) and (6).
    Portions of two proposed critical habitat units (Units 2 and 5) 
warrant exclusion from the proposed designation of critical habitat 
under section 4(b)(2) of the Act based on the special management 
considerations and protections afforded the Riverside fairy shrimp 
habitat through approved and legally operative HCPs or NCCP/HCPs. We 
believe that in most instances, the benefits of excluding legally 
operative HCPs from the proposed critical habitat designations will 
outweigh the benefits of including them. The following represents our 
rationale for excluding portions of Units 2 and 5 from the proposed 
critical habitat.
    A single subunit of Unit 2 is excluded from proposed critical 
habitat because it is within the Central-Coastal NCCP/HCP in Orange 
County. The Central-Coastal NCCP/HCP in Orange County was developed in 
cooperation with numerous local and State jurisdictions and agencies 
and participating landowners, including the cities of Anaheim, Costa 
Mesa, Irvine, Orange, San Juan Capistrano; Southern California Edison; 
Transportation Corridor Agencies; The Irvine Company; California 
Department of Parks and Recreation; Metropolitan Water District of 
Southern California; and the County of Orange. Approved in 1996, the 
Central-Coastal NCCP/HCP provides for the establishment of 
approximately 38,738 ac (15,677 ha) of reserve lands for 39 Federal-or 
State-listed and unlisted sensitive species within the 208,713 ac 
(84,463 ha) planning area. We issued an incidental take permit under 
section 10(a)(1)(B) of the Act that provides conditional incidental 
take authorization for the Riverside fairy shrimp for all areas within 
the Central-Coastal Subregion except the North Ranch Policy Plan area.
    Portions of Unit 5 are excluded from proposed critical habitat 
because they are within the San Diego MSCP in southwestern San Diego 
County. The San Diego MSCP effort encompasses more than 582,000 ac 
(236,000 ha) and reflects the cooperative efforts of the local 
jurisdictions, the State, the building industry, and environmentalists. 
The San Diego MSCP provides for the establishment over the permit term 
of approximately 171,000 ac (69,573 ha) of preserve areas to provide 
conservation benefits for 85 federally listed and sensitive species. 
The San Diego MSCP and its approved subarea plans provide measures to 
conserve known Riverside fairy shrimp populations on Otay Mesa. In 
addition, surveys for Riverside fairy shrimp are required in suitable 
habitat (i.e., vernal pools, ephemeral wetlands, and seasonally ponded 
areas). These lands are to be permanently maintained and managed for 
the benefit of the Riverside fairy shrimp and other covered species: 
however, ``take'' of Riverside fairy shrimp is not included in the MSCP 
10(a)(1)(B) permit. The eastern portion of Otay Mesa includes Major and 
Minor Amendment Areas. These areas require a special permitting 
process; therefore, we included them in this critical habitat proposal.
    There are currently several other regional NCCP/HCP efforts under 
way in southern California that have not yet been completed but which, 
upon approval, will provide conservation benefits to the Riverside 
fairy shrimp (see Table 1). Lands within these HCPs, which are in 
various stages of formulation, are not excluded from consideration for 
proposed critical habitat. The Multiple Habitat Conservation Program 
(MHCP) in northwestern San Diego County encompasses approximately 
112,000 ac (45,324 ha) within the study area. Currently, seven cities 
are participating in the development of the MHCP. Coverage for the 
Riverside fairy shrimp has not yet been determined for this plan and, 
therefore, we propose critical habitat within the planning area. In 
addition, the majority of vernal pool habitat supporting Riverside 
fairy shrimp in the planning area is located on land owned by the North 
County Transit District. The proposed Southern Subregion NCCP/HCP in 
Orange County encompasses approximately 128,000 ac (51,799 ha) in its 
planning area. Jurisdictions and private landowners within the study 
area include the cities of Rancho Santa Margarita, Mission Viejo, San 
Juan Capistrano, San Clemente, and Rancho Mission Viejo. The Riverside 
fairy shrimp is being proposed as one of the species covered under this 
plan. The early versions of this plan convey the importance of 
conservation of all known occurrences of the Riverside fairy shrimp. 
The Western Riverside MSHCP is addressed in a separate discussion 
because the plan is in its final stages of completion.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is that 
federally funded or authorized activities in such habitat may require 
consultation under section 7 of the Act. Such consultation would ensure 
that adequate protection is provided to avoid adverse modification of 
critical habitat. Where HCPs are in place, our experience indicates 
that this benefit is small or nonexistent. Currently approved and 
permitted HCPs and NCCP/HCPs are designed to ensure the long-term 
survival of covered species within the plan area. In an approved HCP or 
NCCP/HCP, lands that we ordinarily would define as critical habitat for 
covered species will normally be protected in reserves and other 
conservation lands by the terms of the HCP or NCCP/HCP and its 
Implementing Agreement (IA). These HCPs or NCCP/HCPs and IAs include 
management measures and protections for conservation lands designed to 
protect, restore, and enhance their value as habitat for covered 
species and thus provide benefits to the species well in excess of 
those that would result from a critical habitat designation.
(2) Benefits of Exclusion
    The benefits of excluding lands within HCPs from critical habitat 
designation include carrying out the assurances provided by the Service 
to landowners, communities, and counties in return for their voluntary 
adoption of the HCP, including relieving them of the additional 
regulatory burden that might be imposed by critical habitat. Many HCPs, 
particularly large regional HCPs, take many years to develop and, upon 
completion, become regional conservation plans that are consistent with 
the recovery objectives for listed species that are covered within the 
plan area. Additionally, many of these HCPs provide conservation 
benefits to unlisted, sensitive species. Imposing an additional 
regulatory review after an HCP is completed solely as a result of the 
designation of critical habitat may undermine conservation efforts and 
partnerships in many areas. In fact, it could result in the loss of 
species' benefits if participants abandon the voluntary HCP process 
because it may result in an additional regulatory burden requiring more 
of them than of

[[Page 23032]]

other parties who have not voluntarily participated in species 
conservation. Designation of critical habitat within the boundaries of 
approved HCPs it is likely to be viewed as a disincentive to those 
entities currently developing HCPs or contemplating them in the future.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP participants, including States, counties, 
local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within HCP plan areas 
are designated as critical habitat, it would likely have a negative 
effect on our ability to establish new partnerships to develop HCPs. By 
preemptively excluding these lands, we preserve our current 
partnerships and encourage additional conservation actions in the 
future.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon. While this consultation will not look specifically at 
the issue of adverse modification to critical habitat, unless critical 
habitat has already been designated within the proposed plan area, it 
will determine if the HCP jeopardizes the species in the plan area. In 
addition, Federal actions not covered by the HCP in areas occupied by 
listed species would still require consultation under section 7 of the 
Act. HCPs and NCCP/HCPs typically provide for greater conservation 
benefits to a covered species than section 7 consultations because HCPs 
and NCCP/HCPs assure the long-term protection and management of a 
covered species and its habitat, and funding for such management 
through the standards found in the 5 Point Policy for HCPs (64 FR 
35242) and the HCP ``No Surprises'' regulation (63 FR 8859). Such 
assurances are typically not provided by section 7 consultations which, 
in accordance with the provisions of the Act, are limited to requiring 
that the specific action being consulted upon not jeopardize the 
continued existence of the species. Thus, a consultation typically does 
not accord the lands it covers the extensive benefits an HCP or NCCP/
HCP provides. The development and implementation of HCPs or NCCP/HCPs 
provide other important conservation benefits, including the 
development of biological information to guide the conservation efforts 
and assist in species conservation, and the creation of innovative 
solutions to conserve species while allowing for development.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We have reviewed and evaluated HCPs and NCCP/HCPs currently 
approved and implemented within the areas being proposed as critical 
habitat for the Riverside fairy shrimp. Based on this evaluation, we 
find that the benefits of exclusion outweigh the benefits of proposing 
portions of Units 2 and 6 as critical habitat.
    The San Diego MSCP in southwestern San Diego County and the 
Central-Coastal NCCP/HCP in Orange County include the Riverside fairy 
shrimp as a covered species. These HCP and NCCP/HCPs provide protection 
for the Riverside fairy shrimp and its associated habitat in 
perpetuity, although, in the San Diego MSCP, ``take'' of the Riverside 
fairy shrimp is handled through separate Section 7 consultations or 
HCP. The exclusion of these lands from critical habitat will help 
preserve the partnerships that we have developed with the local 
jurisdiction and project proponent in the development of the HCP and 
NCCP/HCP. The educational benefits of critical habitat, including 
informing the public of areas that are essential for the long-term 
survival and conservation of the species, is still accomplished from 
material provided on our website and through public notice and comment 
procedures required to establish an HCP or NCCP/HCP. The public has 
also been informed through the public participation that occurs in the 
development of many regional HCPs or NCCP/HCPs. For these reasons, we 
believe that proposing critical habitat has little benefit in areas 
covered by HCPs, provided that the HCP or NCCP/HCP specifically and 
adequately covers the species for which critical habitat is being 
proposed. We do not believe that this exclusion would result in the 
extinction of the species because the essential habitat within these 
two HCPs will ostensibly be conserved.

Relationship of Critical Habitat to the Draft Western Riverside 
Multiple Species Habitat Conservation Plan (MSHCP)

    The Draft Western Riverside Multiple Species Habitat Conservation 
Plan (MSHCP) has been in development from 1993 to the present. 
Participants in this HCP include 14 cities; the County of Riverside, 
including the Riverside County Flood Control and Water Conservation 
Agency, Riverside County Transportation Commission, Riverside County 
Parks and Open Space District, Riverside County Waste Department; the 
California Department of Parks and Recreation; and the California 
Department of Transportation. The Western Riverside MSHCP is also being 
proposed as a subregional plan under the State's NCCP and is being 
developed in cooperation with the California Department of Fish and 
Game. Within the 1,260,000 ac (510,000 ha) planning area of the MSHCP, 
approximately 153,000 ac (62,000 ha) of diverse habitats are proposed 
for sole conservation uses. The proposed conservation of 153,000 ac 
(62,000 ha) will complement other existing natural and open space areas 
(e.g., State Parks, Forest Service, and County Park Lands).
    The County of Riverside and the participating jurisdictions have 
signaled their sustained support for the Western Riverside MSHCP as 
evidenced by the November 5, 2002, passage of a local bond measure to 
fund the acquisition of land in support of the MSHCP. On November 15, 
2002, a Notice of Availability of a Draft Environmental Impact Report 
(EIS/EIR) and Receipt of an Application for an Incidental Take Permit 
was published in the Federal Register (67 FR 69236). Public comment on 
these documents was accepted until January 14, 2003. Subsequently, on 
June 17, 2003, the County of Riverside Board of Supervisors voted 
unanimously to support the completion of the Western Riverside MSHCP.
    Conservation actions within Western Riverside MSHCP planning area 
will be implemented to promote the long-term conservation of the 
Riverside fairy shrimp. Although the MSHCP is not yet completed and 
implemented, significant progress has been achieved in the development 
of this HCP, including the circulation of the final EIS/EIR, the 
solicitation of public review and comment, and intra-Service section 7 
consultation has been initiated for the issuance of incidental take 
permit for those species identified for coverage within the draft plan. 
We are proposing to exclude portions of essential habitat in Riverside 
County from proposed critical habitat pursuant to section 4(b)(2) of 
the Act because they are within the planning area boundary for the 
proposed Western Riverside MSHCP. We are proposing portions of Unit 3 
on Federal lands within the planning area boundary of the Western 
Riverside MSHCP as critical habitat because the activities of Federal 
agencies are not covered under a section 10(a)(1)(B) permit. Our 
analysis for excluding portions of Units 3 from proposed critical 
habitat has been outlined below.

[[Page 23033]]

(1) Benefits of Inclusion
    As stated previously, the benefits of designating critical habitat 
on lands within the boundaries of approved HCPs are small. The 
principal benefit of designating critical habitat is that federally 
authorized or funded activities that may affect a species' critical 
habitat would require consultation with us under section 7 of the Act 
which can prevent adverse modification or destruction of the habitat, 
but cannot compel positive management or restoration of the habitat for 
the benefit of the species. In the case of the proposed Western 
Riverside MSHCP, we must evaluate the impact of the plan on the species 
for which the participants are seeking incidental take permits, 
pursuant to section 7 of the Act.
(2) Benefits of Exclusion
    Where HCPs are in place, the HCPs and their Implementing Agreements 
(IAs) include management measures and protections designed to protect, 
restore, monitor, manage, and enhance the habitat to benefit the 
conservation of the species. This includes actions for the Riverside 
fairy shrimp. The Western Riverside MSHCP seeks to accomplish these 
goals for the Riverside fairy shrimp through the implementation of 
species-specific conservation objectives. Excluding lands within Unit 3 
from the proposed critical habitat will provide several benefits, as 
follows: (1) exclusion of the lands from the final designation will 
allow us to continue working with the participants in a spirit of 
cooperation and partnership; (2) other jurisdictions, private 
landowners, and other entities will see the benefit of working 
cooperatively with us to develop HCPs, which will provide the basis for 
future opportunities to conserve species and their essential habitat.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe the analysis conducted to evaluate the benefits of 
excluding HCPs from critical habitat versus the benefits of including 
these lands, which was previously discussed for the exclusion of 
approved HCPs, is applicable and appropriate for the exclusion of HCPs 
that are in the final permit decision phase, such as the Western 
Riverside MSHCP. In the event that the Service does not grant coverage 
for this species under the Western Riverside MSHCP, we will include the 
areas essential to the conservation of the riverside fairy shrimp in 
Unit 3 in the final designation of Critical Habitat. The exclusion of 
the essential habitat in the Western Riverside MSHCP will not result in 
the extinction of the Riverside fairy shrimp because measures included 
within the MSHCP protect and manage areas of long-term conservation 
value for the Riverside fairy shrimp.

Relationship to Department of Defense Lands

    The Sikes Act Improvements Act of 1997 (Sikes Act) requires each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an Integrated Natural Resources Management Plan 
(INRMP). An INRMP integrates implementation of the military mission of 
the installation with stewardship of the natural resources found there. 
Each INRMP includes an assessment of the ecological needs on the 
installation, including needs to provide for the conservation of listed 
species; a statement of goals and priorities; a detailed description of 
management actions to be implemented to provide for these ecological 
needs; and a monitoring and adaptive management plan. We consult with 
the military on the development and implementation of INRMPs for 
installations with listed species.
    Section 318 of the Fiscal Year 2004 National Defense Authorization 
Act (Pub. L. 108-136) amended section 4(a)(3) of the Act to address the 
relationship of INRMPs to critical habitat. MCAS Miramar has an INRMP 
in place that provides a benefit for the Riverside fairy shrimp. Camp 
Pendleton has an INRMP in place that provides a framework for managing 
natural resources. MCAS El Toro is no longer owned by the Department of 
Defense and March Air Reserve Base (March ARB) has not yet completed an 
INRMP. Lands essential to the conservation of the Riverside fairy 
shrimp on those installations are proposed as critical habitat.

Marine Corps Air Station Miramar

    MCAS Miramar completed a final INRMP in May 2000 that provides a 
benefit to the Riverside fairy shrimp. The INRMP is legally operative 
and is being implemented. The INRMP identifies sensitive natural 
resources on the installation and discusses the management and 
conservation of these areas. MCAS Miramar has identified management 
areas with different resource conservation requirements and management 
concerns, and identifies them with five separate levels that correspond 
to their sensitivity. The majority of vernal pools and habitats that 
support vernal pool species, including the single known occurrence of 
Riverside fairy shrimp, are located in ``Level I Management Areas 
(MAs).'' Preventing damage to vernal pool resources is the highest 
conservation priority in Management Areas with the ``Level I'' 
designation. The conservation of vernal pools in this MA is achieved 
through education of base personnel, proactive measures to avoid 
accidental impacts, and maintenance of an updated inventory of vernal 
pool basins and the associated vernal pool watersheds.
    Since the completion of MCAS Miramar's INRMP, the Service has 
received reports on Miramar's vernal pool monitoring and restoration 
program and correspondence detailing the installation's expenditures on 
the objectives outlined in its INRMP. MCAS Miramar continues to monitor 
and manage its vernal pool resources; programs include a study in 
progress on the effects of fire on vernal pool resources, venal pool 
mapping and species surveys, and a study of Pacific bentgrass (Agrostis 
avenaceae), an invasive exotic grass found in some vernal pools on the 
base. During a recent visit to the Riverside fairy shrimp site at MCAS 
Miramar, natural resources staff indicated that the station has no 
plans for changes in land use or future developments that would affect 
the site (D. Boyer, personal communication 2003b). We believe this 
INRMP benefits this species. The pooling area on MCAS Miramar which 
supports Riverside fairy shrimp is considered essential for the 
conservation of this species. This occurrence is included in the 
Recovery Plan for the Vernal Pools of Southern California with the San 
Diego County Central Coastal Management Area. In accordance with the 
amended section 4(a)(3) of the Act, these lands that are essential to 
the conservation of the Riverside fairy shrimp on MCAS Miramar have not 
been included in the proposed designation of critical habitat for the 
species.

Marine Corps Base Camp Pendleton

    Under 4(b)(2) of the Act, we have considered the effect of a 
critical habitat designation on national security. We are, therefore, 
not proposing critical habitat on ``mission-critical'' training areas 
on Camp Pendleton. In this proposal we refer areas designated as 
training areas on maps created by MCB, Camp Pendleton as ``mission-
critical'' training areas. Camp Pendleton operates an amphibious 
training base that promotes the combat readiness of military forces and 
is the only west coast Marine Corps facility where amphibious 
operations can be combined

[[Page 23034]]

with air, sea, and ground assault training activities year-round. 
Currently, the Marine Corps has no alternative installation available 
for the types of training that occur on Camp Pendleton.
    The Marine Corps consults with us under section 7 of the Act for 
activities that may affect federally threatened or endangered species 
on Camp Pendleton. On March 30, 2000, at the request of the Marine 
Corps, we initiated a formal consultation regarding their activities on 
upland areas of Camp Pendleton. The consultation covers approximately 
150,000 ac (60,703 ha) of land within the upland areas of Camp 
Pendleton, including combat readiness operations, air operations, 
vehicle operations, facility maintenance and operations, fire 
management, recreation activities, and housing. The upland consultation 
that addresses vernal pool habitat, the Riverside fairy shrimp, and 
other species is not yet complete. We are currently working 
cooperatively with Camp Pendleton to facilitate the completion of this 
upland consultation.
    In order to continue its critical training mission pending 
completion of the consultation, the Marine Corps has implemented 
measures it believes will avoid jeopardy to the continued existence of 
the Riverside fairy shrimp and other listed species within the uplands 
area and comply with section 7(d) of the Act. In particular, the Marine 
Corps is implementing a set of ``programmatic instructions'' to avoid 
adverse effects to the Riverside fairy shrimp.
    Critical habitat is being proposed for the Riverside fairy shrimp 
on some areas of Camp Pendleton that are not considered ``mission-
critical'' training areas or are leased to the State of California. 
Areas proposed as critical habitat for the Riverside fairy shrimp on 
Camp Pendleton meet the definition of critical habitat in that they 
contain those primary constituent elements that are essential to the 
conservation of the species and that may require special management or 
protection. Based upon our examination of whether Camp Pendleton's 
INRMP addresses the species, the lands not leased to the State of 
California may be excluded in the final rule under the section 4(a)(3) 
of the Act, as amended by provisions referenced above.
(1) Benefits of Inclusion
    The primary benefit of proposing critical habitat is to identify 
lands essential to the conservation of the species which, if critical 
habitat was designated, would require consultation with us to ensure 
activities would not adversely modify critical habitat or jeopardize 
the continued existence of the species. We are already in formal 
consultation with the Marine Corps on its upland activities to ensure 
that current and proposed actions will not jeopardize the species' 
continued existence. Therefore, we do not believe that designation of 
``mission-critical'' training areas on Camp Pendleton as critical 
habitat will appreciably benefit the Riverside fairy shrimp beyond the 
protection already afforded the species under the Act. Exclusion of 
these lands will not result in the extinction of the species because 
the conservation of the Riverside fairy shrimp populations will be 
addressed through our uplands consultation. The lands involved in this 
consultation are ``mission-critical'' training areas, and essential 
populations of the Riverside fairy shrimp occupy them.
(2) Benefits of Exclusion
    In contrast to the absence of an appreciable benefit resulting from 
designation of Camp Pendleton training areas as critical habitat, there 
are substantial benefits to excluding these areas from critical 
habitat. Essential habitat for the Riverside fairy shrimp that occurs 
within ``mission-critical'' training areas on Camp Pendleton is 
occupied by the species, and, as stated above, consultations to ensure 
activities do not jeopardize the species' existence have been completed 
or are in progress. If essential habitat that occurs within ``mission-
critical'' training areas is proposed as critical habitat, the Marine 
Corps would be required to determine if activities would adversely 
modify or destroy proposed critical habitat, and, if such a 
determination was made, the Marine Corps would be compelled to 
conference with us pursuant to the requirements of section 7 of the 
Act. Additionally, if proposed critical habitat within training areas 
is included in a final designation, the Marine Corps would likely be 
compelled to review consultations already completed or in progress to 
determine if activities may affect designated critical habitat. If a 
``may affect'' determination were to be made, the Marine Corps would be 
further obligated to initiate or reinitiate consultations with us. The 
Marine Corps would likely feel an increased burden of responsibility to 
make these determinations, and the potential for them to be obligated 
to conduct conferences or to reinitiate consultations with us may delay 
the timely implementation of ``mission-critical'' training activities 
(Hanlon, Edward Jr., Major General Commanding, U.S. Marine Corps Base, 
Camp Pendleton letter to Ken Berg, Field Supervisor, Carlsbad Fish and 
Wildlife Office, April 7, 2000). In addition, should consultation 
result in a destruction or adverse modification finding, the Corps 
might be unable to conduct their training in a timely fashion.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We consider specific lands that provide benefits to the Riverside 
fairy shrimp essential for its conservation. For those areas that are 
proposed as critical habitat that are not considered ``mission-
critical'' training areas or are leased to the State of California, we 
will complete the balancing analysis under section 4(b)(2) in the final 
rule. We have considered these lands and excluded the lands in 
``mission-critical'' training areas on Camp Pendleton from proposed 
critical habitat. We are soliciting public review and comment on our 
decision to consider, but not propose critical habitat for the 
Riverside fairy shrimp on ``mission-critical'' training areas of Camp 
Pendleton, based on section 4(b)(2) of the Act. Maps delineating 
habitat for the Riverside fairy shrimp, overlaid with ``mission-
critical'' training areas on Camp Pendleton, are available for public 
review and comment at the Carlsbad Fish and Wildlife Office (see 
ADDRESSES section) or on the Internet at http://carlsbad.fws.gov. These 
maps are provided to allow the public the opportunity to adequately 
comment on these exclusions.

Critical Habitat Designation

    The proposed critical habitat includes Riverside fairy shrimp 
habitat throughout the species' range in the United States (i.e., 
Ventura, Los Angeles, Orange, Riverside and San Diego Counties, 
California). Areas proposed as critical habitat are under Federal, 
State, local, and private ownership. The approximate area of proposed 
critical habitat by county and land ownership is shown in Table 2. 
Certain lands that are considered essential to the Riverside fairy 
shrimp have been excluded from critical habitat based on our 4(b)(2) 
analysis; the exclusions are summarized in Table 3.

[[Page 23035]]



 Table 2.--Approximate Proposed Critical Habitat Area (ha (ac)) by County and Land Ownership. Estimates Reflect
                             the Total Area Within Critical Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
             County                    Federal*           Local/State           Private              Total
----------------------------------------------------------------------------------------------------------------
Los Angeles.....................  0 ac (0 ha).......  0 ac (0 ha).......  638 (258 ha)......  638 ac (258 ha)
Orange..........................  1 ac (0 ha).......  326 ac (132 ha)...  2,156 ac (873 ha).  2,483 ac (1,005
                                                                                               ha)
Riverside.......................  146 ac............  0 ac (0 ha).......  0 ac (0 ha).......  146 ac
San Diego.......................  939 ac (380 ha)...  107 ac (43 ha)....  971 ac (393 ha)...  2,017 ac (816 ha)
Ventura.........................  0.................  45 ac (18 ha).....  466 ac (189 ha)...  511 ac (207 ha)
                                 ---------------------
    Total.......................  1,086 ac (439 ha).  478 ac (193 ha)...  4,231 ac (1,713     5,795 ac (2,345
                                                                           ha).                ha)
----------------------------------------------------------------------------------------------------------------
*Federal lands include Department of Defense, U.S. Forest Service, and other Federal land.


     Table 3.--Approximate Proposed Critical Habitat Area (ac (ha)),
                    Essential Area, and Excluded Area
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Area determined to be essential to the     18,330 ac (7,418 ha)
 conservation of the Riverside fairy
 shrimp.
Area not included pursuant to section      113 ac (46 ha)
 4(a)(3) of the Act due to an INRMP that
 benefits Riverside fairy shrimp (MCAS,
 Miramar).
Area excluded pursuant to section 4(b)(2)  9,414 ac (3,810 ha)
 of the Act: Completed and pending HCPs
 (San Diego MSCP, Orange County Central-
 Coastal NCCP/HCP and Western Riverside
 County MSHCP).
Area excluded pursuant to section 4(b)(2)  3,008 ac (1,217 ha)
 of the Act: ``Mission-critical''
 Department of Defense lands (Camp
 Pendleton).
Proposed Critical Habitat................  5,795 ac (2,345 ha)
------------------------------------------------------------------------

    Lands proposed as critical habitat are divided into six Units, 
which are based on the Management Areas identified in the Recovery Plan 
(Service 1998). The Units are generally based on geographical location 
of the vernal pools, soil types, associated watersheds, and local 
variation of topographic position (i.e., coastal mesas, inland valley). 
Descriptions of each unit and the reasons for designating it as 
critical habitat are presented below.
Map Unit 1: Transverse Range Critical Habitat Unit, Ventura and Los 
Angeles Counties, California (1,045 ac (423 ha))
    The proposed Transverse Range Unit includes the vernal pools at 
Cruzan Mesa, Los Angeles County, and vernal pools near the city of 
Moorpark in Ventura County. These vernal pools represent the northern 
limit of occupied habitat for the Riverside fairy shrimp and are some 
of the last remaining vernal pools in Los Angeles and Ventura Counties 
known to support this species. The areas that are proposed for 
designation of critical habitat in Unit 1 contain the primary 
constituent elements described above relating to the pooling basins, 
watersheds, underling soil substrate and topography. The majority of 
the land in this unit provides the essential watershed primary 
constituent element that contributes to the pooling basins that support 
the Riverside fairy shrimp.
    There are two subunits of critical habitat near the city of 
Moorpark in Ventura County. The northernmost of these two subunits is 
located on what was formerly the Carlsberg Ranch. Development has 
occurred adjacent to this vernal pool, which is now protected from 
future development. The other subunit in Ventura County is located a 
short distance to the south of the Carlsberg Ranch pool. This subunit 
has not been surveyed for Riverside fairy shrimp; however, it is 
considered essential due to biotic and abiotic conditions that indicate 
it is highly likely it provides habitat for Riverside fairy shrimp. 
This area is currently in private ownership and we are unaware of any 
plans to develop this site. The subunit in Los Angeles County is 
located on Cruzan Mesa near the city of Santa Clarita. It is within an 
area that is being proposed by Los Angeles County as a Significant 
Ecological Unit in its General Plan. These pools are isolated from the 
other occurrences of Riverside fairy shrimp, and the Ventura population 
is isolated from the population at Cruzan Mesa. The preservation and 
management of these vernal pools are essential for the conservation the 
populations of Riverside fairy shrimp in the Transverse Range 
Management Area described by the Recovery Plan.
    The occurrences of Riverside fairy shrimp in northern Los Angeles 
County and in Ventura County represent isolated occurrences at the 
northern most extent of the range of the Riverside fairy shrimp. 
Conservation biologists have demonstrated that populations at the edge 
of a species' distribution can be important sources of genetic 
variation and represent the best opportunity for colonization or re-
colonization of unoccupied vernal pools and, thus, long-term 
conservation (Gilpin and Soule 1986; Lande 1999). These outlying 
populations may be genetically divergent from populations in the center 
of the range and, therefore, may have genetic characteristics that 
would allow adaptation in the face of environmental change. Such 
characteristics may not be present in other parts of the species' range 
(Lesica and Allendorf 1995).
Map Unit 2: Los Angeles Basin-Orange Management Area, Los Angeles and 
Orange Counties, California. (3,180 ac (1,287 ha))
    The Los Angeles Basin-Orange Management Area encompasses two 
distinct regions where Riverside fairy shrimp are known to occur: 
coastal Los Angeles County; and the foothills of Orange County. Along 
the Los Angeles County coast, there are two Riverside fairy shrimp 
locations: Los Angeles International Airport and Madrona Marsh. In the 
past, vernal pools in coastal Los Angeles had a much greater 
distribution (Mattoni and Longcore 1997). The other region in this Unit 
includes vernal pools that occur along a north-south band in the Orange 
County Foothills. The areas that are proposed for designation of 
critical habitat in Unit 2 contain the primary constituent elements 
described above relating to the pooling basins, watersheds, underling 
soil substrate and topography. The majority of the land in this unit 
provides the essential watershed primary constituent element that 
contributes to the pooling basins that support the Riverside fairy 
shrimp.

[[Page 23036]]

    The Los Angeles Coastal Prairie Unit includes an approximately 198 
ac (80 ha) area at the Los Angeles International Airport. This 
landscape historically included the federally endangered California 
Orcutt grass (Orcuttia californica) and San Diego button-celery 
(Eryngium aristulatum var. parishii). This unit also supports versatile 
fairy shrimp (Branchinecta lindahli) and western spadefoot toad 
(Scaphiopus hammondii). Riverside fairy shrimp cysts were first 
collected east of Pershing Drive in 1997. Considering the extensive 
habitat once available, populations of Riverside fairy shrimp in this 
region were likely robust and formed the core population between the 
limited Cruzan Mesa and Carlsberg Ranch pools (Unit 1) at the northern 
end of the range of the species, and the pool groups in central and 
southern Orange County. Conservation of a population of the Riverside 
fairy shrimp in the coastal region of Los Angeles County is essential 
to the conservation of the species. This area is essential because it 
represents the remnants of a large historical vernal pool complex in 
the Los Angeles Basin. It is likely that this and other isolated 
populations of Riverside fairy shrimp have unique genetic differences 
that will contribute to the long-term survival of this species. 
Research on the San Diego fairy shrimp has shown that geographically 
distinct populations are genetically distinct as well (Bohonak 2003). 
The preservation of genetic diversity can also provide insight into the 
evolutionary history of a species that can be helpful for its future 
preservation.
    This Unit also includes the vernal pools and vernal pool-like 
ephemeral ponds located along the Orange County Foothills. These pools 
are found at the Marine Corps Air Station El Toro, Edison Viejo 
Conservation Bank, Saddleback Meadows, O'Neill Regional Park, east of 
Tijeras Creek at the intersection of Antonio Parkway and the FTC-north 
segment, Chiquita Ridge, and Radio Tower Road. These vernal pools are 
the last remaining vernal pools in Orange County known to support this 
species (58 FR 41384). These pools represent a unique type of vernal 
pool habitat much different from the traditional mima mound vernal pool 
complexes. They are also different from coastal pools at Camp Pendleton 
and the inland pools of Riverside County. The Orange County vernal pool 
habitat and essential associated watershed represent the majority of 
Riverside fairy shrimp habitat within the Los Angeles Basin-Orange 
Management Area discussed in the Recovery Plan.
    The Edison Viejo Conservation Bank is considered essential, but 
excluded from critical habitat because it is within the Central-Coastal 
NCCP/HCP. The ephemeral pond on MCAS El Toro is within the boundary of 
the Central-Coastal HCP planning area. However, because coverage for 
the Riverside fairy shrimp is not provided on these lands, we are 
proposing this area as critical habitat. All of the other occurrences 
of Riverside fairy shrimp mentioned above are included in this Unit.
Map Unit 3: Western Riverside County Critical Habitat Unit, Riverside 
County, California (146 ac (58 ha))
    The Western Riverside County Unit includes vernal pools and 
ephemeral wetlands that provide essential habitat for the Riverside 
fairy shrimp. The areas that are proposed for designation of critical 
habitat in Unit 3 contain the primary constituent elements described 
above relating to the pooling basins, watersheds, underling soil 
substrate and topography. The majority of the pools discussed it this 
Unit description are excluded from the proposed designation of critical 
habitat. With the exception of the vernal pools on the Santa Rosa 
Plateau, all of the areas in this unit are known to be occupied. The 
pools on Santa Rosa Plateau support vegetation associated with 
Riverside fairy shrimp (Lathrop and Thorne 1983); however, additional 
surveys are needed to determine the presence of the Riverside fairy 
shrimp. This Unit encompasses vernal pools in the general vicinity of 
the Back Basin of Lake Elsinore, Murrieta, Temecula, Banning, March 
ARB, and Santa Rosa Plateau. These populations represent the eastern 
limit of occupied habitat. The pools in Western Riverside County 
represent a unique type of pool. These pools occur in an inland valley, 
rather than on a mesa or on the coast. These pools also have much 
larger watersheds and likely contain unique genetic diversity essential 
to the long-term conservation of the species. This Unit supports the 
federally endangered California Orcutt grass (Orcuttia californica) and 
vernal pool fairy shrimp (Branchinecta lynchi). Preservation and 
management of these pools will contribute to the conservation of the 
Riverside fairy shrimp.
    Specifically, this Unit contains the following vernal pools: March 
ARB pools, Banning pools, the Australia pool, the Clayton Ranch pools, 
the Johnson Ranch pools, the Scott pool, the Schleuniger Pool, Skunk 
Hollow and the Field pool, and the pools on Santa Rosa Plateau. The 
majority of the land in this unit provides the essential watershed 
primary constituent element that contributes to the pooling basins that 
support the Riverside fairy shrimp. We have excluded the majority of 
pools in this Unit from proposed critical habitat designation because 
they are encompassed in the planning area of the Draft Western 
Riverside MSHCP. The areas that we are proposing for critical habitat 
are the two vernal pools on March ARB.
Map Unit 4: North San Diego County Critical Habitat Unit, San Diego 
County, California (397 ac (161 ha))
    The North San Diego County Unit includes vernal pools at Camp 
Pendleton and one pool complex within the City of Carlsbad. The areas 
that are proposed for designation of critical habitat in Unit 4 contain 
the primary constituent elements described above relating to the 
pooling basins, watersheds, underling soil substrate and topography. 
The majority of the land in this unit provides the essential watershed 
primary constituent element that contributes to the pooling basins that 
support the Riverside fairy shrimp.
    This Unit encompasses ``mission-critical'' training areas within 
Camp Pendleton at Los Pulgas Creek in the Oscar Two Training Area and 
on Upper Stuart Mesa in the Oscar One Training Area, and non-training 
areas within Camp Pendleton, including lands at the Cockleburr 
Sensitive Area and lands leased to the State of California that are 
included within San Onofre State Park and lands along San Mateo Creek. 
The Recovery Plan includes these pool complexes within the San Diego 
North Coastal Mesas Management Area. Based on the recent amendments to 
section 4(a)(3) of the Act, we request specific information from the 
Department of Defense regarding Camp Pendleton's INRMP and conservation 
of the Riverside fairy shrimp to assist the Secretary of the Interior 
in determining if the INRMP provides a benefit to Riverside fairy 
shrimp. We propose to include the subunits that encompass essential 
habitat in the Cockleburr Sensitive Area on Camp Pendleton; this area 
is not known to be a ``mission-critical'' training area. The essential 
habitat within ``mission-critical'' training areas is excluded, but 
considered essential for the conservation of the species.
    Within the jurisdiction of the City of Carlsbad, one vernal pool 
complex is located at the Poinsettia Lane train station. This complex 
is associated with a remnant of coastal terrace habitat and is 
essential for the conservation of the species in northern San Diego 
County. This pool is one of the last remaining

[[Page 23037]]

coastal occurrences of Riverside fairy shrimp that is not on military 
land.
Map Unit 5: South San Diego County Critical Habitat Unit, San Diego 
County, California (1,121 ac (453 ha))
    The South San Diego Management Area identified in the Recovery Plan 
contains several vernal pools essential to the conservation of 
Riverside fairy shrimp. The areas that are proposed for designation of 
critical habitat in Unit 3 contain the primary constituent elements 
described above relating to the pooling basins, watersheds, underling 
soil substrate and topography. The majority of the land in this unit 
provides the essential watershed primary constituent element that 
contributes to the pooling basins that support the Riverside fairy 
shrimp. This region represents a core area for the species. Pools in 
this area are threatened by off-road vehicle activity and development. 
The majority of pools in this area are part of San Diego's MSCP. This 
plan details a policy of ``no-net-loss'' for vernal pools. There is 
currently an effort to develop a management plan for vernal pools 
within the MSCP which will provide further conservation benefit to the 
Riverside fairy shrimp. Specifically, the Recovery Plan identifies the 
following vernal pool complexes as essential: J2, 5, 7, 11-21, 23-30. 
In addition, the Riverside fairy shrimp has recently been located at 
complex J3, the building site for Saint Jerome's Church, and on east 
Otay Mesa near the International Border with Mexico. Of these essential 
locations, only the vernal pools and their watersheds that occur on 
lands not protected by the MSCP are proposed as critical habitat. The 
subunits for this region include the J15 complex or Arnie's Point, the 
watershed for the J29 complex on federally managed land, and the 
watershed, vernal pools, and ephemeral ponds that occur on east Otay 
Mesa that are in the Major and Minor Amendment Areas of the MSCP.

Effects of Critical Habitat Designation

Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are not affected by the designation of critical 
habitat unless their actions occur on Federal lands, require Federal 
authorization, or involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including us, 
to insure that their actions are not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. This requirement is met 
through section 7 consultation under the Act. Our regulations define 
``jeopardize the continued existence of'' as to engage in an action 
that reasonably would be expected, directly or indirectly, to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species (50 CFR 402.02). ``Destruction or adverse 
modification of designated critical habitat'' is defined as a direct or 
indirect alteration that appreciably diminishes the value of the 
critical habitat for both the survival and recovery of the species (50 
CFR 402.02). Such alterations include, but are not limited to, adverse 
changes to the physical or biological features, i.e., the primary 
constituent elements, that were the basis for determining the habitat 
to be critical. However, in a March 15, 2001, decision of the United 
States Court of Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish 
and Wildlife Service et al., 245 F.3d 434), the Court found our 
definition of destruction or adverse modification to be invalid. In 
response to this decision, we are reviewing the regulatory definition 
of adverse modification in relation to the conservation of the species.
    Section 7(a)(4) requires Federal agencies to confer with us on any 
action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if critical habitat 
were designated. We may adopt the formal conference report as the 
biological opinion when critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency would ensure that the permitted actions do not destroy or 
adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we would also provide reasonable and prudent alternatives to 
the project, if any are identifiable. Reasonable and prudent 
alternatives are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Service's Regional Director believes would avoid the 
destruction or adverse modification of critical habitat. Reasonable and 
prudent alternatives can vary from slight project modifications to 
extensive redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect vernal pool crustaceans or 
vernal pool plants or their critical habitat will require consultation 
under section 7. Activities on private, State, or county lands, or 
lands under local jurisdictions requiring a permit from a Federal 
agency, such as Federal Highway Administration or Federal Emergency 
Management Act funding, or a permit from the Corps under section 404 of 
the Clean Water Act, will continue to be

[[Page 23038]]

subject to the section 7 consultation process. Federal actions not 
affecting listed species or critical habitat, and actions on non-
Federal lands that are not federally funded, authorized, or permitted, 
do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. We 
note that such activities may also jeopardize the continued existence 
of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency may directly or indirectly destroy or adversely modify 
critical habitat for Riverside fairy shrimp include, but are not 
limited to:
    (1) Any activity, including the regulation of activities by the 
Corps of Engineers under section 404 of the Clean Water Act or 
activities carried out by or licensed by the Environmental Protection 
Agency (EPA), that could alter the watershed, water quality or water 
quantity to an extent that water quality becomes unsuitable to support 
Riverside fairy shrimp, or any activity that significantly affects the 
natural hydrologic function of the vernal pool system and/or ephemeral 
pond or depression;
    (2) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities, or any activity funded or 
carried out by the Department of Transportation or Department of 
Agriculture that results in discharge of dredged or fill material, 
excavation, or mechanized land clearing of ephemeral and/or vernal pool 
basins;
    (3) Airport construction, improvement, or maintenance activities 
funded or authorized by the Federal Aviation Administration;
    (4) Sale or exchange of lands by a Federal agency to a non-Federal 
entity;
    (5) Licensing of construction of communication sites by the Federal 
Communications Commission;
    (6) Funding of construction or development activities by the U.S. 
Department of Housing and Urban Development;
    (7) Military training and maneuvers on DOD lands;
    (8) Funding and implementation of disaster relief projects by the 
FEMA and the Natural Resource Conservation Service's Emergency 
Watershed Program, including erosion control, flood control, and stream 
bank repair to reduce the risk of loss of property; and
    (9) Promulgation and implementation of a land use plan by a Federal 
agency such as the Bureau of Land Management, U.S. Forest Service, or 
DOD that may alter management practices for critical habitat.
    If you have questions regarding whether specific activities may 
constitute adverse modification of critical habitat in California, 
contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
plants and wildlife, and inquiries about prohibitions and permits may 
be addressed to the U.S. Fish and Wildlife Service, Branch of 
Endangered Species, 911 NE 11th Ave, Portland, OR 97232 (telephone 503/
231-2063; facsimile 503/231-6243).

Economic Analysis

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

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of this review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite the selected peer reviewers to 
comment, during the public comment period, on the specific assumptions 
and conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
public comment periods on this proposed rule during the preparation of 
a final rulemaking. Accordingly, the decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing no 
later than 45 days following the publication of this proposal in the 
Federal Register. We will schedule public hearings on this proposal, if 
any are requested, and will announce the dates, times, and locations of 
those hearings in the Federal Register and local newspapers at least 15 
days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (groupings and order of the sections, use of 
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is 
the description of the notice in the SUPPLEMENTARY INFORMATION section 
of the preamble helpful in understanding the proposed rule? What else 
could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. As such, 
the Office of Management and Budget (OMB) has reviewed this rule. The 
Service is preparing a draft economic analysis of this proposed action. 
The Service will use this analysis to meet the requirement of section 
4(b)(2) of the Act to determine the economic consequences of 
designating the specific

[[Page 23039]]

areas as critical habitat and possibly excluding any area from critical 
habitat if it is determined that the benefits of such exclusion 
outweigh the benefits of specifying such areas as part of the critical 
habitat, unless failure to designate such area as critical habitat will 
lead to the extinction of the Riverside fairy shrimp. This analysis 
will also be used to determine compliance with Executive Order 12866, 
Regulatory Flexibility Act, Small Business Regulatory Enforcement 
Fairness Act, and Executive Order 12630.
    This analysis will be made available for public review and comment. 
Copies may be obtained from the Carlsbad Fish and Wildlife Office's 
Internet Web site at http://carlsbad.fws.gov or by contacting the 
Carlsbad Fish and Wildlife Office directly (see ADDRESSES section).

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
proposed rule as well as types of project modifications that may 
result. In general, the term significant economic impact is meant to 
apply to a typical small business firm's business operations.
    To determine if the proposed rule would affect a substantial number 
of small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., housing 
development, oil and gas production, timber harvesting etc.). We 
considered each industry individually to determine if certification is 
appropriate. In estimating the numbers of small entities potentially 
affected, we also considered whether their activities have any Federal 
involvement; some kinds of activities are unlikely to have any Federal 
involvement and so will not be affected by the designation of critical 
habitat. Designation of critical habitat only affects activities 
conducted, funded, permitted or authorized by Federal agencies; non-
Federal activities are not affected by the designation.
    If this critical habitat designation is made final, Federal 
agencies must consult with us if their activities may affect designated 
critical habitat. Consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process. In areas where occupancy by Riverside 
fairy shrimp is unknown, the designation of critical habitat could 
trigger additional review of Federal agencies pursuant to section 7 of 
the Act and may result in additional requirements on Federal activities 
to avoid destruction or adverse modification of critical habitat. There 
is one area proposed as critical habitat for the Riverside fairy shrimp 
that is within the geographical area occupied by the species for which 
the occupancy by the species has not been determined. The area is on 
private land, but we have not received any information indicating the 
area is anticipated to be developed. Only those activities involving a 
Federal agency that may affect designated critical habitat would 
require consultation with us. In reviewing the activities in this area, 
we have no information indicating future activities on those areas 
would involve permitting, authorization or funding by a Federal agency.
    We also reviewed 10 formal consultations involving this species 
that were conducted since its listing under the Act in 1993, including 
one consultation conducted in 2001 when critical habitat for the 
Riverside fairy shrimp was previously designated and in place. These 
formal consultations, which all involved Federal actions, included five 
construction projects, vegetation management activities, airport 
construction and improvement, military training, and road construction. 
These 10 consultations resulted in non-jeopardy biological opinions, 
including a determination of no adverse modification of critical 
habitat for the consultation completed during the time when critical 
habitat for the species was previously designated and in place.
    In reviewing these past formal consultations and the activities 
they involved in the context of the proposed critical habitat, we do 
not believe the outcomes would have been different in areas designated 
as critical habitat.
    In summary, we have considered whether this proposed rule would 
result in a significant economic impact on a substantial number of 
small entities, and we have concluded that it would not. We have no 
indication that the types of activities we review under section 7 of 
the Act will change significantly in the future.
    Therefore, we are certifying that this proposed designation of 
critical habitat is not expected to have a significant adverse impact 
on a substantial number of small entities, and an initial regulatory 
flexibility analysis is not required.
    The preceding discussion is based on information regarding 
potential economic impacts that is currently available to us. This 
assessment of economic effect may be modified prior to publication of a 
final rule, based on a review of the draft economic analysis currently 
being prepared pursuant to section 4(b)(2) of the Act, Executive Order 
12866, and public comments received during the public comment period. 
This analysis is for the purposes of compliance with the Regulatory 
Flexibility Act and does not reflect our position on the type of 
economic analysis required by New Mexico Cattle Growers Assn. v. U.S. 
Fish & Wildlife Service 248 F. 3d 1277 (10th Cir. 2001).

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order 13211 
(E.O. 13211) on regulations that significantly affect energy supply, 
distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
proposed rule is considered a significant regulatory action under E.O. 
12866 due to it potentially raising novel legal and policy issues, but 
it is not expected to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
action and no Statement of Energy Effects is required.

[[Page 23040]]

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. As such, Small Government Agency Plan is not 
required. We will, however, further evaluate this issue as we conduct 
our economic analysis and as appropriate, review and revise this 
assessment as warranted.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for Riverside fairy shrimp. Critical habitat 
designation does not affect actions of the landowners which do not 
require federal funding or permits, nor preclude development of HCPs 
and the issuance of incidental take permits to permit actions which do 
require federal funding or permits to go forward. This takings 
assessment concludes that this proposed rule does not pose significant 
takings implications.

Federalism

    In accordance with Executive Order 13132, this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this critical habitat proposal with appropriate State 
resource agencies in California. We will continue to coordinate any 
future designation of critical habitat for the Riverside fairy shrimp 
with the appropriate State agencies. The designation of critical 
habitat in areas currently occupied by the Riverside fairy shrimp 
imposes no additional restrictions to those currently in place and, 
therefore, has little incremental impact on State and local governments 
and their activities. The designation may have some benefit to these 
governments in that the areas essential to the conservation of the 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary to the survival of the species are 
specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed critical 
habitat in accordance with the provisions of the Act. The rule uses the 
Universal Transverse Mercator coordinate system, which is identifiable 
on common topographic maps, as the standard unit description and 
identifies the primary constituent elements within the proposed areas 
to assist the public in understanding the habitat needs of the 
Riverside fairy shrimp.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act is required. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a valid OMB 
control number.

National Environmental Policy Act

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

Government to Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); Executive Order 13175 (November 9, 2000; 
65 FR 67249); and DOI's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a government-to-government basis.

[[Page 23041]]

    Historical records indicate that there were two vernal pools on or 
near Tribal lands of Pechanga Band of Luise[ntilde]o Indians that 
contained Riverside fairy shrimp (Eriksen 1988). After reviewing aerial 
photographs of the area and meeting with the Tribe's Environmental 
Coordinator in March 2004, we were unable to confirm these occurrences. 
It is possible that through additional survey work that these 
occurrences may be relocated, however, at this time we do not know if 
the Riverside fairy shrimp occurs on Tribal lands of Pechanga Band of 
Luiseno Indians. Based on the best scientific data available, we do not 
believe that there are any lands essential to the conservation of the 
Riverside fairy shrimp on Tribal lands. As such, we are not including 
any Tribal lands in proposed critical habitat for the Riverside fairy 
shrimp.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Carlsbad Fish and Wildlife Office 
(see ADDRESSES section).

Authors

    The primary authors of this notice are the staff of the Carlsbad 
Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows: 
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-
4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
    2. In Sec.  17.11(h) revise the entry for ``Fairy shrimp, 
Riverside'' under ``CRUSTACEANS'' to read as follows:


17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate
------------------------------------------------------                      population where                                                   Special
                                                         Historic range       endangered or        Status     When listed  Critical habitat     rules
           Common name              Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
           CRUSTACEANS
 
                                                                      * * * * * * *
Fairy shrimp, Riverside.........  Streptocephalus      U.S.A. (CA).......  Entire............  E                      512  17.95(h)                   NA
                                   woottoni.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.95 (h) by revising critical habitat for the 
Riverside fairy shrimp (Streptocephalus woottoni) to read as follows:


17.95  Critical habitat--fish and wildlife.

* * * * *
    (h) Crustaceans.
* * * * *

Riverside Fairy Shrimp (Streptocephalus woottoni)

    (1) Critical habitat units are depicted for Los Angeles, Orange, 
Riverside, San Diego, and Ventura Counties, California, on the maps 
below.
    (2) Critical habitat includes vernal pools, vernal pool complexes, 
and ephemeral ponds and depressions and their associated watersheds and 
hydrologic regime indicated on the maps below and in the legal 
descriptions.
    (3) Within these areas, the primary constituent elements for the 
Riverside fairy shrimp are those habitat components that are essential 
for the primary biological needs of foraging, sheltering, reproduction, 
and dispersal. The primary constituent elements are found in those 
areas that support vernal pools or other ephemeral ponds and 
depressions, and their associated watersheds. The primary constituent 
elements determined essential to the conservation of Riverside fairy 
shrimp are:
    (i) Small to large pools or pool complexes that have the 
appropriate temperature, water chemistry, and length, of time 
inundation with water necessary for Riverside fairy shrimp incubation 
and reproduction, as well as dry periods necessary to provide the 
conditions to maintain a dormant and viable cyst bank. Specifically, 
the conditions necessary to allow for successful reproduction of 
Riverside fairy shrimp fall within the following ranges:
    (A) Moderate to deep depths ranging from 10 in (25 cm) to 5 to 10 
ft (1.5 to 3 m);
    (B) Ponding inundation that lasts for a minimum length of 2 months 
and a maximum length of 5 to 8 months, i.e., a sufficient wet period in 
winter and spring months to allow the Riverside fairy shrimp to hatch, 
mature, and reproduce, followed by a dry period prior to the next 
winter and spring rains;
    (C) Water temperature that falls within the range of 50 and 77 
degrees Fahrenheit (10 and 25 degrees Celsius); and
    (D) Water chemistry with low total dissolved solids and alkalinity 
(means of 77 and 65 parts per million, respectively), corroborated by 
pH within a range of 6.4-7.1.
    (ii) Associated watersheds that provide water to fill the pools in 
the winter and spring months. The size of the associated watershed 
varies greatly and cannot be generalized and has been assessed on a 
case-by-case basis. Factors that affect the size of the watershed 
include surface and underground hydrology, the topography of the area 
surrounding the pool or pools, the vegetative coverage, and the soil 
substrate in the area. Watershed sizes designated vary from a few acres 
(hectares) to greater than 100 ac (40 ha).
    (iii) Soil type with a clay component and/or an impermeable surface 
or subsurface layer known to support vernal pool habitat.
    (4) The matrix of vernal pools/ephemeral wetlands, the associated 
watershed, upland habitats, and underlying soil substrates form 
hydrological and ecologically functional units. These features and the 
lands that they represent are essential to the conservation of the 
Riverside fairy shrimp. All lands identified as essential and proposed 
as critical habitat contain

[[Page 23042]]

one or more of the primary constituent elements for the Riverside fairy 
shrimp.
    (5) The minimum mapping unit for this designation does not exclude 
all developed areas, such as buildings, roads, aqueducts, railroads, 
airports, other paved areas, lawns, and other lands unlikely to contain 
the primary constituent elements. However, these areas are not critical 
habitat and have been excluded from this proposed rule. Federal actions 
limited to these areas would not trigger a section 7 consultation, 
unless they affect the species and/or the primary constituent elements 
in adjacent critical habitat.
    (6) Index map of critical habitat units for the Riverside fairy 
shrimp follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP27AP04.007

    (7) Map Unit 1: Transverse Range, Los Angeles and Ventura County, 
California. From USGS 1:24,000 quadrangle maps Mint Canyon, Thousand 
Oaks, and Simi Valley West.
    (i) Unit 1a: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 329000, 3793300; 329500, 3793300; 329500, 3792700; 329000, 
3792700; 329000, 3793300.
    (ii) Unit 1b: lands bounded by the following UTM NAD27 coordinates 
(E,N): 330900, 3792500; 331100, 3792500; 331100, 3792300; 331200, 
3792300; 331200, 3792200; 331800, 3792200; 331800, 3792300; 331900, 
3792300; 331900, 3792000; 331800, 3792000; 331800, 3791800; 331900, 
3791800; 331900, 3791600; 332000, 3791600; 332000, 3791300; 332100, 
3791300; 332100, 3791100; 331400, 3791100; 331400, 3791000; 331300, 
3791000; 331300, 3790900; 330900, 3790900; 330900, 3790800; 330600, 
3790800; 330600, 3791900; 330500, 3791900; 330500, 3792000; 330600, 
3792000; 330600, 3792100; 330700, 3792100; 330700, 3792300; 330800, 
3792300; 330800, 3792400; 330900, 3792400; 330900, 3792500.
    (iii) Unit 1c: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 368000, 3815300; 368400, 3815300; 368400, 3815200; 368600, 
3815200; 368600, 3815100; 368700, 3815100; 368700, 3814700; 368600, 
3814700; 368600, 3814600; 368400, 3814600; 368400, 3814500; 368200, 
3814500; 368200, 3814300; 368300, 3814300; 368300, 3813700; 368200, 
3813700; 368200, 3813500; 368100, 3813500; 368100, 3813300; 368000, 
3813300; 368000, 3813100; 367400, 3813100; 367400, 3813200; 367300, 
3813200; 367300, 3813800; 367100, 3813800; 367100, 3813900; 366900, 
3813900; 366900, 3814100; 367000, 3814100; 367000, 3814200; 367100, 
3814200; 367100, 3814300; 367200, 3814300; 367200, 3814400; 367300, 
3814400; 367300, 3814500; 367400, 3814500; 367400, 3814700; 367500, 
3814700; 367500, 3814800; 367600, 3814800; 367600, 3814900; 367700, 
3814900; 367700, 3815000; 367800, 3815000; 367800, 3815100; 367900, 
3815100; 367900, 3815200; 368000, 3815200; 368000, 3815300.
    (iv) Map of critical habitat unit 1a-c for the Riverside fairy 
shrimp follows:

[[Page 23043]]

[GRAPHIC] [TIFF OMITTED] TP27AP04.008

    (8) Map Unit 2: Los Angeles Basin-Orange Management Area, Los 
Angeles, Orange and San Diego County, California. From USGS 1:24,000 
quadrangle maps Venice, El Toro, Santiago Peak, San Juan Capistrano, 
Canada Gobernadora, and San Clemente.
    (i) Unit 2a: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 367600, 3756300; 367900, 3756300; 367900, 3756000; 368100, 
3756000; 368100, 3755800; 368200, 3755800; 368200, 3755700; 367800, 
3755700; 367800, 3755800; 367700, 3755800; 367700, 3756100; 367600, 
3756100; 367600, 3756300.
    (ii) Unit 2b: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 368400, 3755800; 3688600, 3755800; 368600, 3755700; 368700, 
3755700; 368700, 3755300; 368300, 3755300; 368300, 3755400; 368100, 
3755400; 368100, 3755600; 368300, 3755600; 368300, 3755700, 368400, 
3755700, 368400, 3755800.
    (iii) Map of critical habitat unit 2a-b for the Riverside fairy 
shrimp follows:

[[Page 23044]]

[GRAPHIC] [TIFF OMITTED] TP27AP04.009

    (iv) Unit 2c: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 437000, 3727400; 436900, 3727400; 436900, 3727300; 436800, 
3727300; 436800, 3727200; 436700, 3727200; 436700, 3727100; 436300, 
3727100; 436300, 3727200; 436200, 3727200; 436200, 3727300; 436100, 
3727300; 436100, 3727500; 436000, 3727500; thence north to the Marine 
Corps Air Station (MCAS) El Toro boundary at UTM NAD27 x-coordinate 
436000; thence northeast following the MCAS El Toro boundary to UTM 
NAD27 y-coordinate 3727900; thence east to UTM NAD27 coordinates 
436300, 3727900; thence north to the MCAS El Toro boundary at UTM NAD27 
x-coordinate 436300: thence northeast following the MCAS El Toro 
boundary to UTM NAD27 y-coordinate 3728000; thence east to the MCAS El 
Toro boundary at UTM NAD27 y-coordinate 3728000; thence southeast 
following the MCAS El Toro boundary to UTM NAD27 x-coordinate 436500; 
thence south to UTM NAD27 coordinates 436500, 3727900; thence east to 
the MCAS El Toro boundary at UTM NAD27 y-coordinate 3727900; thence 
southeast following the MCAS El Toro boundary to UTM NAD27 x-coordinate 
436600; thence south to UTM NAD27 coordinates 436600, 3727800; thence 
east to the MCAS El Toro boundary at UTM NAD27 y-coordinate 3727800; 
thence southeast following the MCAS El Toro boundary to UTM NAD27 x-
coordinate 436700; thence south to UTM NAD27 coordinates 436700, 
3727700; thence east to the MCAS El Toro boundary at UTM NAD27 y-
coordinate 3727700; thence southeast following the MCAS El Toro 
boundary to UTM NAD27 x-coordinate 436800; thence south to UTM NAD27 
coordinates 436800, 3727600; thence east to the MCAS El Toro boundary 
at UTM NAD27 y-coordinate 3727600; thence southeast following the MCAS 
El Toro boundary to UTM NAD27 x-coordinate 436900; thence south to UTM 
NAD27 coordinates 436900, 3727500; thence east to the MCAS El Toro 
boundary at UTM NAD27 y-coordinate 3727500; thence southeast following 
the MCAS El Toro boundary to UTM NAD27 x-coordinate 437000; thence 
south returning to UTM NAD27 coordinates 437000, 3727400.
    (v) Unit 2d: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 443300, 3726300; 442700, 3726300; 442700, 3726400; 442400, 
3726400; thence north to the Central Coastal NCCP (CCNCCP) boundary at 
UTM NAD27 x-coordinate 442400; thence northeast following the CCNCCP 
boundary to UTM NAD27 y-coordinate 3726500; thence east to UTM NAD27 
coordinates 442500, 3726500; thence north to the CCNCCP at UTM NAD27 x-
coordinate 442500; thence northeast following the CCNCCP to UTM NAD27 
y-coordinate 3726900; thence east to UTM NAD27 coordinates 442900, 
3726900; thence north to the CCNCCP boundary at UTM NAD27 x-coordinate 
442900; thence northeast following the CCNCCP boundary to UTM NAD27 y-
coordinate 3727400; thence east following UTM NAD27 coordinates 443800, 
3727400; 443800, 3727300; 444000, 3727300; 444000, 3727200; 444100, 
3727200; 444100, 3727100; 444200, 3727100; 444200, 3725900; 443900, 
3725900; 443900, 3725700; 444100, 3725700; 444100, 3724500;

[[Page 23045]]

444000, 3724500; 444000, 3724400; 443600, 3724400; 443600, 3724700; 
443700, 3724700; 443700, 3724800; 443400, 3724800; 443400, 3724900; 
443300, 3724900; 443300, 3725400; 443400, 3725400; 443400, 3725700; 
443200, 3725700; 443200, 3725800; 443100, 3725800; 443100, 3725900; 
443000, 3725900; 443000, 3726000; 442900, 3726000; 442900, 3726200; 
443300, 3726200; returning to UTM NAD27 coordinates 443300, 3726300, 
excluding lands bounded by the following UTM NAD27 coordinates 443400, 
3726900; 443500, 3726900; 443500, 3726700; 443300, 3726700; 443300, 
3726800; 443400, 3726800; 443400, 3726900 and excluding lands bounded 
by the following UTM NAD27 coordinates 443500, 3726600; 443600, 
3726600; 443600, 3726500; 443700, 3726500; 443700, 3726400; 443500, 
3726400; 443500, 3726300; 443300, 3726300; 443300, 3726400; 443400, 
3726400; 443400, 3726500; 443500, 3726500; 443500, 3726600.
    (vi) Unit 2e: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 444800, 3721200; 445300, 3721200; 445300, 3721100; 445400, 
3721100; 445400, 3720900; 445300, 3720900; 445300, 3720600; 445200, 
3720600; 445200, 3720300; 445100, 3720300; 445100, 3720200; 445000, 
3720200; 445000, 3720100; 444900, 3720100; 444900, 3720000; 444800, 
3720000; 444800, 3719900; 444700, 3719900; 444700, 3719800; 443900, 
3719800; 443900, 3719900; 443800, 3719900; 443800, 3720000; 443900, 
3720000; 443900, 3720100; 444000, 3720100; 444000, 3720300; 444100, 
3720300; 444100, 3720400; 444200, 3720400; 444200, 3720600; 444300, 
3720600; 444300, 3720700; 444400, 3720700; 444400, 3720900; 444500, 
3720900; 444500, 3721000; 444600, 3721000; 444600, 3721100; 444800, 
3721100; 444800, 3721200.
    (vii) Unit 2f: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 442200, 3713500; 442600, 3713500; 442600, 3713400; 442700, 
3713400; 442700, 3713200; 442800, 3713200; 442800, 3712900; 442900, 
3712900; 442900, 3712500; 443000, 3712500; 443000, 3712200; 442900, 
3712200; 442900, 3711400; 442800, 3711400; 442800, 3711300; 442700, 
3711300; 442700, 3711200; 442300, 3711200; 442300, 3711300; 442200, 
3711300; 442200, 3711500; 442100, 3711500; 442100, 3711700; 442000, 
3711700; 442000, 3712000; 441900, 3712000; 441900, 3712200; 441800, 
3712200; 441800, 3712400; 441900, 3712400; 441900, 3713000; 442000, 
3713000; 442000, 3713400; 442200, 3713400; 442200, 3713500.
    (viii) Unit 2g: Lands bounded by the following UTM NAD27 
coordinates (E,N): 443600, 3709200; 444000, 3709200; 444000, 3709000; 
444100, 3709000; 444100, 3708900; 444300, 3708900; 444300, 3708800; 
444500, 3708800; 444500, 3708700; 444700, 3708700; 444700, 3708600; 
444900, 3708600; 444900, 3708500; 445000, 3708500; 445000, 3708400; 
445100, 3708400; 445100, 3707800; 445200, 3707800; 445200, 3707600; 
445100, 3707600; 445100, 3707500; 445000, 3707500; 445000, 3707400; 
444900, 3707400; 444900, 3707300; 444700, 3707300; 444700, 3707200; 
444200, 3707200; 444200, 3707300; 443900, 3707300; 443900, 3707400; 
443600, 3707400; 443600, 3707500; 443500, 3707500; 443500, 3707600; 
443400, 3707600; 443400, 3707800; 443300, 3707800; 443300, 3708000; 
443200, 3708000; 443200, 3708200; 443100, 3708200; 443100, 3708600; 
443000, 3708600; 443000, 3708700; 443100, 3708700; 443100, 3709100; 
443600, 3709100; 443600, 3709200.
    (ix) Unit 2h: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 446300, 3701100; 446700, 3701100; 446700, 3701000; 446800, 
3701000; 446800, 3700900; 446900, 3700900; 446900, 3699800; 446800, 
3699800; 446800, 3699200; 446700, 3699200; 446700, 3698900; 446600, 
3698900; 446600, 3698700; 446200, 3698700; 446200, 3698800; 445800, 
3698800; 445800, 3698900; 445700, 3698900; 445700, 3700100; 445800, 
3700100; 445800, 3700200; 445900, 3700200; 445900, 3700400; 446000, 
3700400; 446000, 3700800; 446100, 3700800; 446100, 3700900; 446200, 
3700900; 446200, 3701000; 446300, 3701000; 446300, 3701100.
    (x) Map of critical habitat unit 2c-h for the Riverside fairy 
shrimp follows:

[[Page 23046]]

[GRAPHIC] [TIFF OMITTED] TP27AP04.010

    (9) Unit 3: Western Riverside County, Riverside County, California. 
From USGS 1:24.000 quadrangle map Riverside East.
    (i) Unit 3a: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 475600, 3751900; 476000, 3751900; 476000, 3751800; 476100, 
3751800; 476100, 3751600; 475900, 3751600; 475900, 3751400; 475700, 
3751400; 475700, 3751500; 475600, 3751500; 475600, 3751600; 475700, 
3751600; 475700, 3751700; 475600, 3751700; 475600, 3751900.
    (ii) Unit 3b: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 475400, 3749400; 475800, 3749400; 475800, 3749200; 475900, 
3749200; 475900, 3749000; 476000, 3749000; 476000, 3748900; 476100, 
3748900; 476100, 3748400; 475800, 3748400; 475800, 3748500; 475700, 
3748500; 475700, 3748700; 475600, 3748700; 475600, 3749000; 475500, 
3749000; 475500, 3749200; 475400, 3749200; 475400, 3749400.
    (iii) Map of critical habitat unit 3a-b for the Riverside fairy 
shrimp follows:

[[Page 23047]]

[GRAPHIC] [TIFF OMITTED] TP27AP04.011

    (10) Unit 4: North San Diego County, San Diego County, California. 
From USGS 1:24,000 quadrangle maps Las Pulgas Canyon and Encinitas.
    (i) Unit 4a: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 459500, 3680600; 459800, 3680600; 459800, 3680500; 459900, 
3680500; 459900, 3680400: 460000, 3680400; 460000, 3680300; 459800, 
3680300; 459800, 3680400; 459700, 3680400; 459700, 3680300; 459600, 
3680300; 459600, 3680200; 459500, 3680200; 459500, 3680000; 459100, 
3680000; 459100, 3680100; 459000, 3680100; 459000, 3680300; 459300, 
3680300; 459300, 3680500; 459500, 3680500; 459500, 3680600, excluding 
the Pacific Ocean.
    (ii) Unit 4b: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 460000, 3680000; 460200, 3680000; 460200, 3679900; 460300, 
3679900; 460300, 3679600; 460500, 3679600; 460500, 3679500; 460600, 
3679500; 460600, 3679200; 460500, 3679200; 460500, 3679100; 460100, 
3679100; 460100, 3679000; 459800, 3679000; 459800, 3679100; 459700, 
3679100; 459700, 3679200; 459600, 3679200; 459600, 3679400; 459500, 
3679400; 459500, 3679500; 459400, 3679500; 459400, 3679700; 459300, 
3679700; 459300, 3679800; 459800, 3679800; 459800, 3679700; 460000, 
3679700; 460000, 3680000, excluding the Pacific Ocean.
    (iii) Unit 4c: Lands bounded by the following UTM NAD27 coordinates 
(E,N): 470000, 3663800; 470200, 3663800; 470200, 3663700; 470300, 
3663700; 470300, 3663600; 470500, 3663600; 470500, 3663300; 470600, 
3663300; 470600, 3663100; 470700, 3663100; 470700, 3662900; 470800, 
3662900; 470800, 3662200; 470500, 3662200; 470500, 3662300; 470400, 
3662300; 470400, 3662900; 470300, 3662900; 470300, 3663100; 470200, 
3663100; 470200, 3663400; 470100, 3663400; 470100, 3663700; 470000, 
3663700; 470000, 3663800.
    (iv) Map of critical habitat unit 4a-c for the Riverside fairy 
shrimp follows:

[[Page 23048]]

[GRAPHIC] [TIFF OMITTED] TP27AP04.012

    (11) Unit 5: South San Diego County, San Diego, California. From 
USGS 1:24,000 quadrangle maps Imperial Beach and Otay Mesa.
    (i) Unit 5a: Sweetwater Union High School District lands on Otay 
Mesa and between UTM NAD27 x-coordinates 497800 and 498700.
    (ii) Unit 5b: U.S. Federal Government lands on Otay Mesa and 
between UTM NAD27 x-coordinates 497500 and 500400.
    (iii) Unit 5c: Beginning at the Mexico Border at UTM NAD27 y-
coordinate 3601400, thence west and following UTM NAD27 coordinates 
507400, 3601400; 507400, 3601800; 507500, 3601800; 507500, 3602200; 
507600, 3602200; 507600, 3602500; 507700, 3602500; 507700, 3602600; 
507800, 3602600; 507800, 3602700; 508100, 3602700; 508100, 3602800; 
508200, 3602800; 508200, 3602700; 508400, 3602700; 508400, 3602800; 
508500, 3602800; 508500, 3602900; 508600, 3602900; 508600, 3603000; 
509200, 3603000; 509200, 3603100; 510100, 3603100; 510100, 3603000; 
510200, 3603000; 510200, 3602800; 510100, 3602800; 510100, 3602300; 
510000, 3602300; 510000, 3601900; 509900, 3601900; thence south to the 
U.S./Mexico border at UTM NAD27 x-coordinate 509900; thence west 
following the U.S./Mexico border; returning to the point of beginning.
    (iv) Map of critical habitat unit 5a-c for the Riverside fairy 
shrimp follows:

[[Page 23049]]

[GRAPHIC] [TIFF OMITTED] TP27AP04.013


    Dated: April 15, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-9203 Filed 4-26-04; 8:45 am]
BILLING CODE 4310-55-C