[Federal Register Volume 70, Number 69 (Tuesday, April 12, 2005)]
[Rules and Regulations]
[Pages 19154-19204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6825]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules 
and Regulations  

[[Page 19154]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AT45


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the federally endangered Riverside fairy shrimp 
(Streptocephalus woottoni) pursuant to the Endangered Species Act of 
1973, as amended (Act). The critical habitat designation encompasses 
approximately 306 acres (ac) (124 hectares (ha)) of land within 
Ventura, Orange, and San Diego counties, California.

DATES: This rule becomes effective on May 12, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours, at 
the Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
6010 Hidden Valley Road, Carlsbad, California 92009 (telephone 760/431-
9440). The final rule, economic analysis, and maps of the designation 
are also available via the Internet at http://carlsbad.fws.gov.

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

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

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

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

    While attention to and protection of habitat are paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, of the 1,253 listed species in 
the U.S. under the jurisdiction of the Service, only 470 species (38 
percent) have designated critical habitat.
    We address the habitat needs of all 1,244 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, and 
the section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that the recent 9th Circuit judicial opinion in 
the case of Gifford Pinchot Task Force v. United States Fish and 
Wildlife Service has invalidated the Service's regulation defining 
destruction or adverse modification of critical habitat. We are 
currently reviewing the decision to determine what effect it may have 
on the outcome of consultations pursuant to section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    Among the rarest animal species endemic (native) to Southern 
California is a tiny freshwater crustacean known as the Riverside fairy 
shrimp (Streptocephalus woottoni). Its distribution is highly 
restricted, with most of the known populations of the endangered 
Riverside fairy shrimp observed in vernal pools located in portions of 
a few counties and 50 miles (mi) (24 kilometers (km)) or less from the 
California coast, and ranging only approximately 125 mi (200 km) from 
its known northern limit (Ventura and Los Angeles counties) to its 
southern limit (Mexico border, San Diego County) within the U.S. (Eng 
et al. 1990; Simovich and Fugate 1992; Eriksen and Belk 1999; Service 
2004 (69 FR 23024)). It does not occur in the nearby desert or

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mountain areas (Hathaway and Simovich 1996). It is also among the most 
recently discovered freshwater crustacean species in California, first 
identified in 1985 as a unique species (Eng et al. 1990) in the genus 
Streptocephalus (Baird 1852). With 63 species that occur worldwide 
(retrieved February 22, 2005, from the Integrated Taxonomic Information 
System on-line database, http://www.itis.usda.gov), Streptocephalus is 
the most species-rich genus within the aquatic crustacean order 
Anostraca, which comprises over 258 fairy shrimp species and 7 
subspecies worldwide, organized into 21 genera (Belk et al. 1993). The 
fairy shrimp (Anostraca) are, except for one other group, the most 
primitive living crustaceans, or members of the sub-phylum Crustacea 
(Eriksen and Belk 1999). Among the 23 fairy shrimp (Anostracan) species 
that are found in California, 8 species are found only in this State, 
giving California the highest level of endemism for any comparable 
geographic region in North America (Eng et al. 1990), and resulting in 
the highest number of species occurring in a comparable land area in 
both North America and worldwide (Eriksen and Belk 1999). Despite this 
fact, the level of knowledge about many Anastrocans is relatively low 
due to the relative recentness of their discovery.
    The Riverside fairy shrimp and vernal pool crustaceans in general, 
occupy the first consumer level in the food chain, and thus constitute 
a cornerstone in the food web. Fairy shrimp form an important food 
source for an array of aquatic and terrestrial species, from diving 
beetles, backswimmers (Notonectids), vernal pool tadpole shrimp 
(Branchinecta species), predaceous aquatic insects and their larvae, to 
waterfowl and shorebirds, and occasionally even for frogs, toads, and 
tadpoles (Eriksen and Belk 1999). Humans have also been known to 
consume fairy shrimp; tribes in California have been known to 
extensively consume dried Artemia, and Tripos is said to be used as 
food by some natives in Mexico (Pennak 1989).
    The Riverside fairy shrimp, along with numerous sensitive and rare 
plant species, lives only in vernal pools, vernal ponds, swales, and 
ephemeral (short-lived) freshwater habitats. A vernal pool (including 
vernal pond and vernal lake) is defined as an area of shallow 
depression, usually underlain by some subsurface layer which prohibits 
drainage into the lower soil profile, thus causing water to collect 
during the rainy winter season (Holland 1976; Chetham 1976; Weitkamp et 
al. 1996), i.e., the depression is inundated for portions of the wet 
season, when temperatures are sufficient for plant growth (Keeley and 
Zedler 1998). Following a brief waterlogged period during the late wet 
season or early dry season, a vernal pool will eventually drain and dry 
out, followed by an extended period of extreme soil-drying conditions 
(Keeley and Zedler 1998; Rains et al. 2005). Swales are defined as 
shallow drainages that carry water seasonally. Central to the 
distinctive ecology of vernal pools is that they are vernal, or 
ephemeral, i.e., occurring only temporarily, during late winter and 
spring. The water in vernal pools stands sufficiently long to prohibit 
zonal vegetation growth (Holland 1976), yet not long enough to allow 
for colonization by fish species. Vernal pool habitat thus forms a 
unique type of ecosystem, different in character and species 
composition from the surrounding habitats (Service 2003; 68 FR46684), 
and being intermediate between marsh (nearly always wet) and most zonal 
vegetation communities (nearly always dry) (Holland 1976). In 
California, where extensive areas of vernal pool habitat have developed 
over long periods, unique species groups have evolved special 
adaptations to allow them to survive the unusual conditions of vernal 
pools. Vernal pools are often defined by their unique, often endemic, 
flora as well (Smith and Verrill 1998).
    The Riverside fairy shrimp occupies, and is thus completely 
dependent upon, vernal pools to survive. A combination of physical and 
environmental factors allows for the annual formation and maintenance 
of their vernal pool habitat. Vernal pools form generally where there 
is a Mediterranean climate, i.e., a wet season during fall and winter, 
when rainfall exceeds evaporation and fills the pools, followed by a 
spring and summer dry season, when evaporation exceeds rainfall and the 
pools dry up. A typical vernal pool season is characterized by an 
inundation phase, an aquatic phase, a water-logged drying phase, and a 
dried-out phase (Keeley and Zedler 1998). Thus, the water regime 
(hydrologic system) is crucial to the formation and functioning of a 
healthy vernal pool ecosystem. Some pools fill entirely from direct 
precipitation (Hanes and Stromberg 1998), while others have a 
substantial watershed, including both surface, subsurface, and 
groundwater, flowing through the surrounding bedrock and soils that 
contributes to their water inputs (Rains et al. 2005).
    Vernal pools can be a variety of shapes and sizes, from less than a 
square yard (0.8 square meters (m\2\), to 2.5 ac (1 ha) or more. They 
occur on gently sloping mesas above the primary drainages, or in 
valleys at the low end of a watershed (Bauder and McMillan 1998). 
Vernal pools may be fed or connected by low drainage pathways, or 
swales. The micro-relief of a vernal pool may be complex, and some are 
dotted with numerous rounded soil mounds (mima) (Scheffer 1947). Their 
typical patterning, visible from the air, has allowed a number of 
vernal pools to be mapped throughout California's Central Valley, on a 
10-40 ac unit scale (Holland 1998; 2003, Service 2003). The landscape 
in which they occur is typically grassland, but vernal pools also occur 
in a variety of other habitat types (Service 2003).
    A critical factor in the development of a vernal pool is the soil 
conditions of the landscape (an impermeable surface or subsurface 
layer) and a gently sloping topography (slope of 10 percent or less). 
Vernal pools form because the soil or sediment layer at or below the 
surface is nearly or completely impermeable to downward water seepage 
(Smith and Verrill 1998), and thus rainfall and water from the 
surrounding watershed becomes trapped above this layer. Soil types of 
the California vernal pools are volcanic flows, and hardpans and 
claypans, the latter of which have developed gradually over thousands 
of years, and can be a yard (1 m) or more thick. The unique assemblage 
of soils plays a critical role in nutrient cycling in vernal pool 
ecosystems. The soil types which underlie and surround the vernal pool 
therefore greatly influence the species composition of both plant and 
animals, as well as the hydrological functioning of the vernal pool 
(Hanes and Stromberg 1998; Hobson and Dahlgren 1998; Smith and Verrill 
1998). Because water and precipitation flow through the soil to the 
pool, the chemistry of the soils underlying a vernal pool, and in the 
surrounding upslope areas, is directly linked to the chemistry of the 
vernal pool's water, i.e., on its alkalinity, pH, oxidation and 
reduction processes, dissolved salts and gasses, ion concentrations, 
mineral richness, and organic material. Thus, soil chemistry likely has 
a tremendous impact on aquatic invertebrate endemism (cf. Hobson and 
Dahlgren 1998). The distinct seasonality of vernal pools results in 
alternating conditions of reduction and oxidation within the soil 
profile, creating edaphic (soil-influenced) controls that may provide a 
refuge for competition-sensitive plant and animal species (Hobson and 
Dahlgren 1998). The length of ponding may also be affected by variables 
like

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consistency of soil, depth of soil to impervious layer (e.g., duripan, 
claypan), type and thickness of the impervious layer, and local 
climatic factors (e.g., rainfall abundance and regularity, evaporation 
rates; Helm 1998).
    Because of the transportation of water, soil, minerals and 
nutrients over the landscape into vernal pools, the upland, or upslope 
areas associated with vernal pools are an important source of these for 
vernal pool organisms (Wetzel 1975). Since vernal pools are mostly 
rain-fed, they tend to have low nutrient levels (Keeley and Zedler 
1998). In fact, most of the nutrients that vernal pool crustaceans 
derive from their vernal pool habitat come from the detritus (decaying 
organic matter) that washes into pools from the adjacent upslope areas; 
these nutrients provide the foundation for the food chain in the vernal 
pool aquatic community (Eriksen and Belk 1999), of which the fairy 
shrimp fauna constitutes an important component.
    Typical to vernal pools are their dramatic fluctuations in local 
environmental conditions. The water, generally unbuffered, fluctuates 
greatly on a daily basis in pH, and concentrations of ions and 
dissolved gasses (oxygen and carbon dioxide), due to varying daily 
evaporation (Keeley and Zedler 1998). On a larger time-scale, there is 
extensive monthly and annual variation in the duration and extent of 
ponding of vernal pools, some pools not filling at all in some years, 
as the timing and amount of annual rainfall in California varies 
widely. Because of the unique and ephemeral nature of vernal pool 
habitat, and the adaptations of its plant and animal species, vernal 
pools are rich in species composition and contain a large number of 
highly specialized, native species that are found nowhere else in the 
region (endemic) (Holland and Jain 1978; Simovich 1998). Vernal pool 
habitats yield the highest number and species richness of endemics 
(native species) in comparison to other wetland types (Helm 1998).

Riverside Fairy Shrimp (Streptocephalus woottoni)

    The Riverside fairy shrimp is a small (0.56-0.92 inches (in) (14-23 
millimeters (mm))), slender Anostracan that has large stalked compound 
eyes and a delicate, elongate body with 11 pairs of phyllopods, or 
swimming appendages, which also function as gills (Eng et al. 1990; 
Eriksen and Belk 1999). Using their phyllopods in a complex, wavelike 
motion from front to back, they swim gracefully upside-down. As they 
swim about, fairy shrimp use these same appendages to filter-feed from 
the water column, allowing them to non-selectively consume algae, 
bacteria, protozoa, rotifers and bits of detritus (Eng et al. 1990; 
Eriksen and Belk 1999). Note that nothing is known specifically about 
the Riverside fairy shrimp's food resource requirements (Simovich and 
Ripley, pers. comm., May 25, 2004).
    Riverside fairy shrimp are distinguished from other fairy shrimp 
species primarily by the second pair of antennae on the adult male, 
which are enlarged for grasping the female during copulation (Pennak 
1989; Eriksen and Belk 1999; Service 2003). Both males and females are 
generally off-white in color, with orange pigment in their tail 
appendages (cercopods) and sometimes along the edges of the phyllopods 
(although some females have been observed to be entirely bright red-
orange) (Eriksen and Belk 1999). The females, when mature, can be 
identified by their brood pouch, the elongate, ventral protruding egg 
sac immediately behind the phyllopods (Eriksen and Belk 1999).
    Relative to most other fairy shrimp species, the Riverside fairy 
shrimp is a rare species with a highly restricted distribution 
(Hathaway and Simovich 1996). They are found only in a few pools at 
lower elevations in the Southern California coastal range that are 
inundated for a longer duration and generally deeper (greater than 12 
in or 30 centimeters (cm)) than pools that support San Diego fairy 
shrimp (Branchinecta sandiegonensis) (Hathaway and Simovich 1996). Some 
of these pools may have been artificially deepened with berms (i.e., 
cattle tanks and road embankments) (Hathaway and Simovich 1996). The 
two species are known to co-occur in a few deep pools; however they 
generally do not co-exist, as adults of the Riverside fairy shrimp 
emerge later in the season than San Diego fairy shrimp (Simovich and 
Fugate 1992; Hathaway and Simovich 1996).
    After copulation, the males of some fairy shrimp species die within 
a few hours (Pennak 1989). When the eggs are fertilized in the female's 
pouch, they become coated (encysted) with a protein layer that develops 
into a thick, usually multilayered shell (Eriksen and Belk 1999). When 
the egg enters the late stage of embryonic development, all growth then 
ceases, and the egg enters into a dormant stage, or diapause 
(Drinkwater and Clegg 1991; Eriksen and Belk 1999). The female then 
either ejects the cysts to fall to the pool bottom, or, if she survives 
for an extended period, continues to move successive clutches of eggs 
into her brood pouch. If the vernal pool persists for several weeks to 
a few months, fairy shrimp may have multiple hatches in a single season 
(Eriksen and Belk 1999). Cysts can also remain in the brood pouch until 
the female dies and sinks to the pool bottom (Eriksen and Belk 1999). 
However, females of some fairy shrimp species can, in the presence of 
male adults during the wet period, eject thin-shelled cysts that hatch 
immediately without becoming dormant (``summer eggs''), thus allowing 
for multiple generations during a single wet season, while the thick-
shelled, dormant (``winter'') eggs are deposited in the absence of 
males in the population (Pennak 1989). By the time the pool dries out, 
the numbers of dormant cysts within each pool basin can reach tens of 
thousands to millions, depending on pool size, volume, and depth (Belk 
1998).
    Mature cysts become fully desiccated (dried) after their pool has 
evaporated, and due to their protective coating, they can withstand 
extreme environmental conditions (Pennak 1989; Eriksen and Belk 1999). 
For example, they can survive subjection to physical extremes, such as 
near-boiling temperatures, months of freezing (Carlisle 1968), fire 
(Wells et al. 1997), or near-vacuum conditions for 10 years without 
damage to the embryo (Clegg 1967). These adaptations allow fairy shrimp 
cysts to survive extreme environmental fluctuations, and hatch only 
when conditions are favorable, after remaining dormant for as much as 
decades, possibly centuries (Belk 1998). In one closely related fairy 
shrimp, Streptocephalus sealii, cysts were brought to hatch after 25 
years of storage in the lab (Belk 1998). Further, because the wall of 
the cyst can even resist damage by stomach enzymes (Horne 1966), the 
cyst can pass through the digestive tract of animals without harm, thus 
allowing for one possible mechanism of cyst dispersal. There are 
several mechanisms for cyst dispersal, and thus fairy shrimp dispersal, 
to other habitats. Historically, large-scale flooding from heavy winter 
and spring rains has been a primary dispersal mechanism, but other 
major mechanisms include dispersal by migratory birds (i.e., wading 
birds, shorebirds, waterfowl), ungulates (i.e., cattle, buffalo, deer), 
and possibly amphibians (i.e., salamanders, frogs) and humans (Eriksen 
and Belk 1999). These animals either carry cyst-containing mud on their 
bodies incidentally from pool to pool, or the cysts are ingested and 
are passed through the gut at another location.

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Wind, although less probable, may also be a dispersal agent (Eriksen 
and Belk 1999).
    Although cysts can remain dormant within the pool for decades, they 
can also hatch about a week after a rain-fill, due to their advanced 
stage of embryonic development (Pennak 1989; Hathaway and Simovich 
1996). However, when a dry vernal pool is once again inundated with 
water, only a fraction of the dormant cysts in the pool will hatch. 
Simovich and Hathaway (1997) found that when Riverside fairy shrimp 
cysts were hydrated once, only 0.18 percent hatched, and after three 
successive hydration periods, the cumulative total increased to only 
2.8 percent. This is among the lowest hatching rates, or prolonged 
diapause, yet recorded among fairy shrimp species (Simovich and 
Hathaway 1997). They suggested that the prolonged diapause of so many 
cysts was an adaptation to the variable nature of local rainfall 
patterns, as pools at times fill only partially and dry quickly--before 
the fairy shrimp are able to reach maturity and reproduce. Thus, in 
such an environment with unpredictable filling events, it benefits the 
individual to have offspring in prolonged diapause, such that not all 
hatch after just one hydration (Simovich and Hathaway 1997). In San 
Diego County, only approximately 28 percent of all filling events 
recorded over 13 years lasted at least a 17-day period, the minimum 
length of time needed by the San Diego fairy shrimp to develop to first 
reproduction (and insufficient time for the Riverside fairy shrimp); 
this period corresponded to the 28-percent hatching rate for their 
cysts found in the lab (Philippi 2001). This strategy of prolonged 
diapause is possibly a risk-spreading (``bet-hedging'') adaptation to 
the unpredictability of their environment (Simovich and Hathaway 1997; 
Philippi 2001).
    In addition to their low hatching percentage, the cysts of the 
Riverside fairy shrimp also take longer to hatch after inundation, 
relative to other species (Hathaway and Simovich 1996). The time from 
hydration to the hatching of Riverside fairy shrimp cysts took between 
12 to 25 days in the lab at varying temperatures, with the most rapid 
hatching occurring when temperatures were fluctuating at 41-59 degrees 
Fahrenheit ((F) 5-15 degrees Celsius (C)). San Diego fairy shrimp, in 
comparison, can hatch after only 3 days (Hathaway and Simovich 1996). 
The greatest number of Riverside fairy shrimp cysts hatching in the 
lab, however, was achieved at 50 degrees F (10 degrees C) (Hathaway and 
Simovich 1996). Their development or maturation rate is also slow, and 
individuals are relatively long-lived (Hathaway and Simovich 1996), as 
is typical of obligate deep pool species. The developmental time to 
maturity for the Riverside fairy shrimp was found to be 7-8 weeks, far 
longer than to the 7-10 day period of the San Diego fairy shrimp.
    It is not surprising, therefore, that the Riverside fairy shrimp 
also lives much longer (2.5 to over 4 months) than the San Diego fairy 
shrimp (4-6 weeks) (Hathaway and Simovich 1996). Thus, the minimum 
period of inundation, or pool duration, that the Riverside fairy shrimp 
need in order to hatch and reach maturity is 9 to 10 weeks (Gonzalez et 
al. 1996; Hathaway and Simovich 1996). Thus, the association of the 
Riverside fairy shrimp with large, deep vernal pools that pond 
continuously for many months may perhaps be explained by its long 
period of maturity and longevity (cf. Helm 1998). Because of their slow 
hatch and growth, the Riverside fairy shrimp occur therefore much later 
in the season than other fairy shrimp species (cf. Hathaway and 
Simovich 1996).
    The vernal pools that Riverside fairy shrimp are found in typically 
have water with a relatively neutral pH (approximately 7), low to 
moderate salinity, and low to moderate levels of total dissolved solids 
(Gonzalez et al. 1996; Eriksen and Belk 1999). One laboratory study 
conducted on the tolerance of Riverside fairy shrimp to variations in 
water chemistry found that they tolerate an 8-hour exposure to pH 
levels ranging from 8 to 10.5, with little effect (Gonzalez et al. 
1996). Generally, in vernal pools where Riverside fairy shrimp occur, 
the external ion concentrations (Na+) averaged 0.73 mmol/l\3\ (Gonzalez 
et al. 1996). Although the species was also able to maintain its 
internal levels of salt concentration fairly constantly over a wide 
range of external concentrations (0.5-60 mmol/l\3\), it was sensitive 
to the extremes, with 100-percent mortality occurring at 100 mmol/l\3\ 
(Gonzalez et al. 1996). Levels of alkalinity in the vernal pool are 
affected by the surrounding soil type and hydrological regime of the 
immediate adjacent upland watershed; in four vernal pools, alkalinity 
averaged 41 mg/l\3\ (Gonzalez et al. 1996). In the laboratory, 
Riverside fairy shrimp were found to tolerate a wide range of 
alkalinities (0-600 mg/l\3\), but none could survive levels above 800 
mg/l\3\ (Gonzalez et al. 1996). Importantly, studies show that the 
Riverside fairy shrimp is sensitive to water temperature; with their 
hatching occurring a longer time after inundation (25 days) and fewer 
hatching (1-3 percent) at steady higher temperature of 77 degrees F (25 
degrees C), than at cooler temperatures (i.e., 7 days hatching time at 
59-77 degrees F (15-25 degrees C); over 10 percent hatching at 50 
degrees F (10 degrees C) (Gonzalez et al. 1996).
    The upslope areas surrounding vernal pools are critical to the 
functioning of the vernal pool and thus to the survival of the 
Riverside fairy shrimp. The surrounding upslope areas provide the 
vernal pool with the appropriate annual and season temporality and 
volume of hydrological flow. With that flow follows the necessary 
nutrients, salts and minerals from the soil and bedrock that all 
influence the pool's water volume, the duration of ponding, and the 
complete chemistry, mineral and nutrient contents of the water itself. 
Therefore, Riverside fairy shrimp, together with its cohabitating 
vernal pool flora and fauna, is as dependent upon the upland areas for 
survival and reproduction as it is upon the pool it occupies.
    Urban and water development, flood control, and highway and utility 
projects, as well as conversion of wild lands to agricultural use, have 
eliminated or degraded vernal pools and/or their watersheds in southern 
California (Jones and Stokes Associates 1987). Changes in hydrologic 
patterns, certain military activities, unauthorized fills, overgrazing, 
and off-road vehicle use also may imperil this aquatic habitat and the 
Riverside fairy shrimp. The flora and fauna in vernal pools or swales 
can change if the hydrologic regime is altered (Bauder 1986). 
Anthropogenic (human-origin) activities that reduce the extent of the 
watershed or that alter runoff patterns (i.e., amounts and seasonal 
distribution of water) may eliminate the Riverside fairy shrimp, reduce 
population sizes or reproductive success, or shift the location of 
sites inhabited by this species. The introduction of non-native plant 
species, competition with invading species, trash dumping, fire, and 
fire suppression activities were some of the reasons for listing the 
Riverside fairy shrimp as endangered on August 3, 1993 (58 FR 41384). 
Because of these threats, we anticipate that intensive long-term 
monitoring and management will be needed to conserve this species. 
Historically, vernal pool soils covered approximately 500 km\2\ (200 
mi\2\ of San Diego County (Bauder and McMillan 1998). The greatest 
recent losses of vernal pool habitat in San Diego County have occurred 
in Mira Mesa, Rancho Pe[ntilde]asquitos, and Kearny Mesa, which 
together account for 73 percent of all the pools destroyed in the 
region during the

[[Page 19158]]

7-year period between 1979 and 1986 (Keeler-Wolf et al. 1995). Other 
substantial losses have occurred in the Otay Mesa area, where over 40 
percent of the vernal pools were destroyed between 1979 and 1990. 
Similar to San Diego County, vernal pool habitat was once extensive on 
the coastal plain of Los Angeles and Orange counties. Unfortunately, 
there has been a near-total loss of vernal pool habitat in these areas 
(Ferren and Pritchett 1988; Keeler-Wolf et al. 1995; Mattoni and 
Longcore 1997; Service 1998). Significant losses of vernal pools 
supporting this species have also occurred in Riverside County.
    Adequately quantifying occurrence and distribution of the Riverside 
fairy shrimp can be difficult due to a number of factors. Firstly, 
Riverside fairy shrimp are restricted to a narrow geographic region, to 
certain pool types, and also temporally, as they emerge later in the 
season than other fairy shrimp species (Hathaway and Simovich 1996). 
Thus, surveys conducted to also encounter earlier-occurring species may 
actually miss the Riverside fairy shrimp as they may still be so small 
(in the juvenile stage) that they pass through the mesh of the 
collecting nets (Eriksen and Belk 1999). Secondly, surveys may also 
miss collecting adults simply due to their low hatching percent (as few 
as 0.18 percent; Simovich and Hathaway 1997), which may result in 
either a very low population level, or to none being detected in a 
particular year, when viable cysts are actually present. Further, only 
males can be identified to the species level with certainty (Eriksen 
and Belk 1999), and cysts can only be identified to the genus level. To 
add to the difficulty, vernal pools are generally too small to appear 
on topographic maps (Holland 1976), not all vernal pools fill each 
year, or fill long enough for hatching (i.e., discovery) of the 
Riverside fairy shrimp. Some estimates for San Diego County show that 
over a period of 13 years, only about 28 percent of the pool-filling 
events lasted 17 days or longer (Philippi 2001).
    For a more detailed discussion about the Riverside fairy shrimp's 
physical description, ecology, range, status and distribution, and a 
discussion of factors affecting this species, please refer to the 
following documents from the Federal Register: The final rule listing 
the species as threatened (58 FR 41384), published on August 3, 1993, 
the previous final rule to designate critical habitat (66 FR 29384), 
published on May 30, 2001, and our latest proposed rule to designate 
critical habitat (69 FR 23024), published on April 27, 2004.

Previous Federal Actions

    For more information on previous Federal actions concerning the 
Riverside fairy shrimp, please refer to the proposed rule to designate 
critical habitat for the Riverside fairy shrimp (69 FR 23024) and the 
notice of availability for the draft economic analysis (DEA) and 
reopening of the public comment period for the proposed designation of 
critical habitat for the Riverside fairy shrimp published in the 
Federal Register (October 19, 2004, 69 FR 61461).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Riverside fairy shrimp in the 
proposed rule (69 FR 23024). We also contacted and invited the 
appropriate Federal, State, and local agencies, as well as scientific 
organizations and other interested parties to comment on the proposed 
rule. In the notice of availability of the draft economic analysis for 
the proposed designation of critical habitat (69 FR 61461), we again 
solicited comments from the public on both the draft economic analysis 
and the proposed rule. All comments and new information received during 
the two comment periods were incorporated into the final rule as 
appropriate.
    During the first comment period, open from April 27, 2004, to May 
27, 2004, we received 21 letters containing 143 comments directly 
addressing the proposed critical habitat designation from 6 peer 
reviewers, 5 Federal agencies, 2 county and local agencies, 1 group, 4 
businesses, 1 city, 1 water district, 1 individual, and 1 law firm 
writing on behalf of 2 groups and 2 transportation agencies.
    During the second comment period, open from October 19, 2004, to 
November 18, 2004, we received 11 letters containing 148 comments 
directly addressing the proposed critical habitat designation and the 
draft economic analysis. The letters came from 4 Federal agencies, 3 
groups, 2 businesses, 1 law firm on behalf of 2 businesses, and 1 law 
firm on behalf of 2 groups and 2 transportation agencies.
    Of a total 32 letters received, 4 supported the designation of 
critical habitat for the Riverside fairy shrimp, 2 opposed the 
designation, 18 letters suggested reducing the area of designation, and 
4 letters suggested expanding the area. Two letters were requests for 
an extension of the comment submission period, but did not express 
support or opposition to the proposed critical habitat designation. 
Comments received were grouped into six general issues specifically 
relating to the proposed critical habitat designation for the Riverside 
fairy shrimp, and are addressed in the following summary and 
incorporated into the final rule as appropriate. We did not receive any 
requests for a public hearing. We have reviewed all comments received 
from the peer reviewers and the public for substantive issues and new 
information regarding critical habitat for the Riverside fairy shrimp, 
and have incorporated them into the final rule as appropriate. These 
are addressed below in the following summary.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), to solicit opinions from at least three experts, we solicited 
the expert opinions of 7 knowledgeable individuals with significant 
scientific expertise that included familiarity with the Riverside fairy 
shrimp, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from six of the 
peer reviewers. The peer reviewers were generally supportive of the 
designation of critical habitat, but strongly endorsed the approach 
that the appropriate management unit was the vernal pool complex (not 
single pools) together with their immediately surrounding upland 
watershed. They emphasized the importance of providing conservation 
protection of pool complexes to ensure the survival of the Riverside 
fairy shrimp in perpetuity, and of identifying and preserving all 
remaining populations of Riverside fairy shrimp, including those within 
conservation-managed areas. Three peer reviewers also gave specific 
comments on our decision to exclude certain lands from critical habitat 
based on Habitat Conservation Plans (HCPs) and Integrated Natural 
Resources Management Plans (INRMPs).

Comments From Peer Reviewers

    1. Peer Reviewer Comment: Most of the reviewers stressed the 
importance of providing or increasing Federal protection to the 
Riverside fairy shrimp and their vernal pool habitat, since 
conservation measures are needed to protect them. Over 95 percent of 
vernal pools in Southern California have been extirpated (destroyed), 
and the remaining vernal pools and the species that inhabit them are 
currently under threat of elimination from both private and public 
organizations. Additionally, vernal pools are valuable in that they are 
ecologically unique, while also

[[Page 19159]]

providing valuable ecosystem functions. Vernal pool complexes act as 
hydrologic ``sponges,'' buffering against drought and flooding. Large-
scale alterations or developments within the local watershed of vernal 
pool complexes would affect the local hydrology dramatically and, from 
an engineering and public works perspective, can lead to increases in 
the need for management of unnaturally large amounts of runoff 
following a rainstorm. Thus, vernal pools have not received adequate 
recognition in the rule for the benefits (ecological services) they 
provide. For their long-term survival, vernal pools must be adequately 
protected; the designation of critical habitat does not seem to provide 
adequate conservation measures to serve this purpose.
    Our Response: Section 4 of the Act requires us to designate 
critical habitat to the maximum extent prudent and determinable, which 
we have done, based upon the best data available to us at this time. We 
concur that additional, long-term conservation measures are needed to 
protect the Riverside fairy shrimp and its habitat, and additional data 
is needed on locations of their occurrence.
    In developing our final designation of critical habitat for the 
Riverside fairy shrimp, we used the best scientific and commercial data 
available to identify those areas that contain essential occurrences of 
Riverside fairy shrimp and/or are defined by the physical and 
biological features essential to their conservation. We used a number 
of criteria in defining critical habitat, including but not limited to 
the known species occurrence (known at the time of listing, as well as 
discovered subsequently) and distribution data, habitat types, presence 
of PCE's, degree of habitat fragmentation, soil and landform 
relationships, connectivity and dispersal factors, and conservation 
biology principles. We did not include all vernal pool landscapes 
within the Riverside fairy shrimp's range although surveys in these 
areas may result in the detection of other occurrences in the future. 
If significant information becomes available indicating that areas 
outside of our designation are essential to the conservation of the 
Riverside fairy shrimp, we can, under the Act, revise critical habitat 
in the future.
    2. Peer Reviewer Comment: While the Service's proposed designation 
of critical habitat for the Riverside fairy shrimp in southern 
California was supported, reviewers stated it is questionable whether 
5,795 acres in the proposed rule is ``enough'' critical habitat for the 
conservation of the remaining Riverside fairy shrimp populations. 
Firstly, reviewers strongly emphasized the importance of considering 
the vernal pool complex and the surrounding watershed as the management 
unit for this species. The unique physiochemical requirements of the 
Riverside fairy shrimp make it particularly vulnerable to changes in 
hydrology. Further, other vernal pool species have their own unique 
ecological requirements in terms of soil, hydrology, etc. Protecting 
and maintaining entire vernal pool complexes and their surrounding 
watershed as a functioning unit will benefit the Riverside fairy shrimp 
and the other endangered species that live in these habitats. If the 
landscape at a site is changed sufficiently to alter the hydrology of 
individual vernal pools, then the species in them will eventually go 
extinct, regardless of whether the pools are disturbed or not. 
Secondly, some vernal pools excluded from the designation, but set 
aside for conservation or mitigation, do not have sufficient protection 
in the surrounding watershed, and thus become ecologically useless. The 
exclusion of military lands from the final designation is particularly 
troubling in this regard, because there are no guarantees that the 
watershed, let alone pools with Riverside fairy shrimp in them, will be 
adequately protected.
    Our Response: Firstly, we note the support of our critical habitat 
designation, and concur with the reviewers on the importance of 
considering the vernal pool complexes together with their immediately 
surrounding upslope areas as the management unit (see Background and 
Primary Constituent Elements sections below). We have used this 
approach in our analyses when finalizing our critical habitat 
designation for the Riverside fairy shrimp, and have, wherever 
possible, included the upslope areas surrounding the pools. Secondly, 
for approved, legally operative HCPs that include areas eligible for 
designation as critical habitat and that specifically address the 
Riverside fairy shrimp and provide for its long-term conservation, we 
believe that the benefits of excluding those HCPs will outweigh the 
benefits of including them. Thirdly, we received requests from three 
military bases to exclude lands owned or managed by the Department of 
Defense for military purposes because the designation would increase 
the costs and regulatory requirements, hamper the military's ability to 
carry out their national security objectives, or because there is an 
INRMP in place that provides a benefit to the Riverside fairy shrimp. 
These installations have either been excluded from final designated 
critical habitat pursuant to section 4(b)(2) of the Act, or exempted 
according to section 4(a)(3) of the Act. Please refer to the sections 
Relationship of Critical Habitat to Approved Habitat Conservation Plans 
and Relationship of Critical Habitat to Department of Defense Lands 
below in this final rule for detailed discussions of our rationale for 
exclusions and exemptions.
    3. Peer Reviewer Comment: Any consideration of whether the 
Riverside fairy shrimp will persist indefinitely (i.e., avoid 
extinction due to anthropogenic causes) would require a quantification 
of the Riverside fairy shrimp's (a) dispersal biology, (b) adaptation 
to local physiochemical conditions, and (c) adaptation to hydrologic 
uncertainties (via reliance on an egg bank). In terms of the hydrology 
of the vernal pool habitat, quantifiable data is needed on (d) the 
historic environmental variation and (e) the predicted future 
environmental variation. However, only rudimentary data are available 
on any of these topics, with the possible exception of (d). Therefore, 
it would be wise to err on the side of caution and offer maximal 
protection to all remaining populations of this species.
    Our Response: We concur that more detailed studies are needed on 
most aspects of the Riverside fairy shrimp's biology. In this rule, we 
address the issue of designating critical habitat areas, areas 
containing the necessary primary constituent elements (PCEs) that are 
essential to the conservation of the Riverside fairy shrimp. For this 
purpose, we used the best scientific and commercial information that 
were available to us and based our analyses upon areas either 
containing with existing populations of Riverside fairy shrimp or 
containing features essential for the conservation of the species using 
the vernal pool complex together with the immediately surrounding 
upslope areas as our management unit. To assist us in developing this 
final rule, we also opened two comment periods to obtain as much 
additional, currently available information as possible.
    4. Peer Reviewer Comment: One reviewer suggested that the 
designation of critical habitat is no longer effective as a means to 
protect the species and its habitat, as funds that are needed to 
achieve that goal are spent instead on litigation. Rather, a new method 
is needed to accomplish this goal, such that the Riverside fairy shrimp 
and its habitat are actually preserved (rather than designated, then 
litigated).

[[Page 19160]]

    Our Response: We concur that the Service's present system for 
designating critical habitat has evolved into a process that is often 
driven by litigation and the courts, and thus consumes enormous agency 
resources. The Service believes that additional agency discretion would 
allow our focus to return to those actions that provide the greatest 
benefit to the species most in need of protection. Pursuant to section 
4 of the Act, however, the Secretary shall, to the maximum extent 
prudent and determinable, designate any habitat which is then 
considered to be critical habitat for listed endangered or threatened 
species. Alternative or additional methods for accomplishing more 
effective conservation of the Riverside fairy shrimp are discussed in 
the Recovery Plan, Multiple Species Habitat Conservation Plans 
(MSHCPs), Natural Community Conservation Programs (NCCPs), and other 
conservation plans. These plans address the survival and recovery of 
this species, and we expect they will be in a continual process of 
improvement and increased efficiency with time.
    5. Peer Reviewer Comment: Several reviewers disagreed with the 
Service's statement in the rule (see SUPPLEMENTARY INFORMATION above) 
that designation of critical habitat provides little additional 
protection to species, and believed this should be amended or omitted 
from the rule, as it is self-contradictory. Although designating 
critical habitat does not in itself protect any habitat, the biggest 
advantage of critical habitat designation is the ability to address the 
``cumulative effects'' of many small impacts to the habitat. Impacts to 
a single location are not likely to drive the species to extinction, 
but the effects of impacts at many individual locations may, in total, 
create a substantial risk for species extinction. Designating critical 
habitat establishes a core, reducing the potential for individual small 
impacts to be allowed to drive the species to extinction.
    Our Response: While we concur that critical habitat designation can 
provide some level of species protection by addressing cumulative 
effects of numerous impacts to the habitat in certain circumstances, 
this can only be provided if there is Federal nexus for those agencies 
planning actions that may impact the designated habitat.
    6. Peer Reviewer Comment: The Service's statement in the rule, that 
the exclusion of HCPs offers ``unhindered, continued ability to seek 
new partnerships with future HCP participants'' (see Relationship of 
Critical Habitat to Approved Habitat Conservation Plans) should be 
amended in the rule as it is illogical and self-contradictory. Not 
designating critical habitat within HCPs in order to allow seeking new 
partnerships implies that the new partnerships would be compromised if 
they were actually forced to protect Riverside fairy shrimp habitat, 
which should be one goal of any ``partnership.''
    Our Response: Both HCPs and critical habitat designations are 
designed to provide conservation measures to protect the Riverside 
fairy shrimp. The advantage of seeking new conservation partnerships, 
through HCPs or other means, is that they can offer active management 
and other conservation measures for the habitat on a full-time and 
predictable basis, while a critical habitat designation only prevents 
adverse modification of the habitat where there is a Federal nexus to 
the modifying activity, a far lesser level of protection. It is our 
experience that landowners generally react very negatively to having 
their property designated as critical habitat, and that this is then a 
strong disincentive for them to cooperate in conservation of the 
species in question. HCPs offer conservation of covered species whether 
or not the area is designated as critical habitat (for details see the 
section Relationship of Critical Habitat to Approved Habitat 
Conservation Plans).
    7. Peer Reviewer Comment: The proposed rule appears to find ways to 
exclude most of the ``potential'' critical habitat in Riverside and San 
Diego counties. Except for areas on March Air Reserve Base, the 
proposed Map Unit 3 for Riverside County excludes all critical habitat, 
and specifically that on the Santa Rosa Plateau, based on the 
speculative assertion that the proposed Western Riverside County 
Multiple Species Habitat Conservation Plan (MSHCP) will adequately 
protect the Riverside fairy shrimp. What is the benefit of excluding 
critical habitat for the Riverside fairy shrimp on the Santa Rosa 
Plateau? Any scientifically defensible HCP must protect nearly all of 
the Santa Rosa Plateau.
    Our Response: HCPs and their Implementing Agreements include 
management measures and protections designed to protect, restore, 
monitor, manage, and enhance the habitat to benefit the conservation of 
the species covered in the plans. The Western Riverside County MSHCP, 
which has now been finalized, seeks to accomplish these goals for the 
Riverside fairy shrimp through the implementation of species-specific 
conservation objectives.
    In our analyses, the benefits of excluding critical habitat areas 
covered by the Western Riverside County MSHCP outweigh the benefits of 
inclusion. Of the conservation measures this plan identifies for the 
Riverside fairy shrimp, the first objective is to include within its 
Conservation Area at least five Core Areas of vernal pools (or vernal 
pool complexes) and their watersheds; these areas contain five known 
key Riverside fairy shrimp populations. Core Areas include the Santa 
Rosa Plateau Ecological Reserve (17,188 acres), Skunk Hollow (156 
acres), Murrieta (1,292 acres) and Lake Elsinore back basin (3,180 
acres). Within the key population areas, approximately 5,868 acres (33 
percent) of potential vernal pool and playa habitat and suitable soils 
habitat land coverages would be located outside the MSHCP Conservation 
Area. Any Riverside fairy shrimp present within this area would be 
subject to incidental take under the guidelines implemented as part of 
this Plan. Each Reserve Manager responsible for a Core Area containing 
soils identified as supporting the Riverside fairy shrimp (e.g., the 
Santa Rosa Plateau Ecological Reserve) shall evaluate their Core Area 
for the presence of historic or vestigial vernal pools. A program to 
enhance these areas will be undertaken. Within the MSHCP Conservation 
Area, that pond water seasonally will be identified and monitored for 
the presence of fairy shrimp. Reserve managers will ensure habitat 
support functions within the MSHCP Conservation Area by maintaining 
and/or preserving watersheds of conserved known or future vernal pools 
or depressions. Particular management emphasis will be given to 
disking, illegal dumping and maintaining hydrology (MSHCP Final 
Documents, Vol. 1--The Plan, June 17, 2003). See Western Riverside 
County Multiple Species Habitat Conservation Plan in the section 
Relationship of Critical Habitat to Approved Habitat Conservation Plans 
below for more details.
    8. Peer Reviewer Comment: The Service's assumption that the 
existence of an HCP automatically affords protection to the Riverside 
fairy shrimp within the covered area is questionable. In the 
development of the San Diego Multiple Species Conservation Plan (MSCP)/
HCP, vernal pools were explicitly excluded from its intended coverage, 
because at the time, those areas covered by the conservation plans were 
regulated as wetlands by the Environmental Protection Agency. As San 
Diego County does not have a good record of enduring protection of 
vernal pools, it is important, from a scientific and land-management 
perspective, to

[[Page 19161]]

have an explicit analysis of what (if any) Riverside fairy shrimp 
populations and their habitats are actually covered in the designated 
protected areas of the HCP, before exclusion of any areas are made.
    Our Response: Vernal pool habitats that support the Riverside fairy 
shrimp that were considered essential but excluded from critical 
habitat were included on our website for public review and comment. Of 
the 1,183 ac (479 ha) of mapped vernal pool habitat within the MSCP 
planning area, over 847 ac (343 ha) occur within the planning area. The 
Service has completed a Biological Opinion (June 1997) on the San Diego 
MSCP, and found that the Plan meets the standards set forth in 50 CFR 
17.32(b)(2), and has issued an incidental take permit to the City of 
San Diego for the 85 species covered in the plan, including the 
Riverside fairy shrimp. The permit action does not, however, authorize 
impacts to wetlands or wetland communities; the MSCP assumes a policy 
of ``no net loss'' of vernal pools. The permit requires that impacts to 
vernal pools be avoided; unavoidable impacts will be minimized to the 
maximum extent practicable and mitigated at a 2:1 or 4:1 ratio to 
prevent any net loss of vernal pool function and value. In addition to 
conserving existing vernal pool habitat, the Multiple Habitat Planning 
Area is expected to conserve 7,745 ac (3,134 ha) of undeveloped areas 
with clay soils and clay hardpan, and implement management and 
monitoring measures for vernal pools within the area. In the Biological 
Opinion issues, the Service has specifically addressed the Riverside 
fairy shrimp, and emphasized the conservation of the hydrological 
processes needed for vernal pool functioning. Pursuant to section 
4(b)(2), we have excluded lands within legally operative HCPs, 
including the San Diego MSCP, that address the conservation needs of 
the Riverside fairy shrimp, if the plans provide assurances that the 
conservation measures outlined will be implemented and effective. 
Please see Relationship of Critical Habitat to Approved Habitat 
Conservation Plans section of the rule below.
    9. Peer Reviewer Comment: Several reviewers stated that the 
proposed critical habitat designation does not go far enough to provide 
for the protection of the Riverside fairy shrimp, because significant 
portions of the species' range were excluded from critical habitat 
protection. These areas include Department of Defense lands and MSCP/
HCP lands. The Riverside fairy shrimp populations in these areas, 
particularly those on Department of Defense land, are not protected and 
are either being lost at present, or vulnerable to loss due to a number 
of sources and activities, including military maneuvers, crushing by 
vehicles and toxic poisoning from vehicles or ordnances. In fact, lands 
under the jurisdiction of HCPs, MSCPs, and the Department of Defense 
have continued to lose populations of San Diego fairy shrimp (e.g., 
Cousin's pool, Marine Corps Air Station Miramar) and restoration/
creation efforts have thus far not succeeded, and this will likely 
happen with the Riverside fairy shrimp unless adequate protection is 
provided for the existing populations. For example, in San Diego 
County, 66 of 67 vernal pools occupied by the federally endangered San 
Diego fairy shrimp (Branchinecta sandiegonensis) have been recently 
lost in Mira Mesa, an area covered by the San Diego County MSCP. Thus, 
the benefits of exclusion do not outweigh the benefits of inclusion due 
to the significantly increased threat to the species survival that 
exclusion of critical habitat poses to the species.
    Our Response: We do not agree with the peer reviewer that excluding 
critical habitat on lands covered by an HCP or INRMP poses a 
``significantly increased threat to the species survival.'' Please 
refer to the responses to Peer Reviewer Comments 7 and 8 above, and the 
sections Relationship of Critical Habitat to Department of Defense 
Lands and Relationship of Critical Habitat to Approved Habitat 
Conservation Plans below.
    10. Peer Reviewer Comment: The small amounts of habitat designated 
as critical habitat may be questionable. The strip along the 
international border in the proposed rule (Map Sub-unit 5B, 
southwestern Otay Mesa) appears to be mitigation or restoration from 
the Border Infrastructure System. It is not clear that the current 
hydroperiods are comparable to the pre-impact hydroperiods. Further, it 
appears that the Department of Homeland Defense drives vehicles through 
the pools with impunity, without the need for permitted take from the 
Service. Habitat of such dubious condition is not a suitable substitute 
for the excluded (but intact) habitat surrounding the proposed areas on 
western Otay Mesa (critical habitat Map Sub-units 5A, 5B).
    Our Response: Please refer to the response to Comment 4-1 below.
    11. Peer Reviewer Comment: Areas of critical habitat that have been 
excluded in the proposed rule are under a high level of threat, and 
local populations of Riverside fairy shrimp in those areas thus face 
considerable risk of being extirpated, as has happened with populations 
of the San Diego fairy shrimp. Currently, there is not enough 
scientific information on the population genetic structure or life 
history of the Riverside fairy shrimp to be able to predict the 
consequences of population losses. Without such data, it is not 
possible to identify the areas of highest genetic variability, 
population sources and sinks, levels of gene flow, gene flow distances, 
evolutionarily significant units or population viability requirements. 
Loss of critical populations or connections between populations could 
increase the probability of extinction and put the species as a whole 
in jeopardy. Thus, it is important that all populations of the 
Riverside fairy shrimp be included in the critical habitat designation 
to provide adequate protection of the species as required by the Act.
    Our Response: We recognize the current threats facing the Riverside 
fairy shrimp, the need to minimize fragmentation effects, and to 
provide adequate conservation protection. However, we did not designate 
critical habitat for all populations of the Riverside fairy shrimp. 
Some areas in our proposed designation were not designated as critical 
habitat for the following reasons: (1) The area did not meet the 
definition of critical habitat under section 3(5)(A) of the Act, (2) 
the area is now included within legally operative HCPs, (3) the area 
was necessary for national security measures, or (4) economic impact 
costs. However, for some areas which were excluded from critical 
habitat under section 4(b)(2) of the Act, or exempted under section 
4(a)(3) of the Act, the Riverside fairy shrimp still receives 
protection under conservation plans such as HCPs or INRMPs.
    12. Peer Reviewer Comment: According to the proposed rule, critical 
habitat is identified for the Riverside fairy shrimp in six separate 
units, each of which correspond to the larger Management Areas that 
support Riverside fairy shrimp occurrences as outlined in the Recovery 
Plan (Service 1998; 2004). However, the management areas specified in 
the Recovery Plan for Vernal Pools of Southern California are based on 
simple geographical locations, not the biology of the species 
considered, and the Recovery Plan does not include a population 
viability analysis. Genetic information on the San Diego fairy shrimp 
has shown that these management areas do not coincide with the species' 
evolutionarily significant units based on the population genetic 
structure of the species. The identification of populations essential 
to the species requires genetic analysis and

[[Page 19162]]

life history analysis to determine ``source/sink'' status and to 
evaluation the viability of the population and probability of 
persistence. Simple geographic location is not sufficient, especially 
considering the amount of loss of intervening habitat. The management 
areas are therefore not relevant to the species' conservation, a fact 
which likely also applies for the Riverside fairy shrimp (Bohonak et 
al. 2003).
    Our Response: We agree that no scientific information is available 
on the genetic diversity of the Riverside fairy shrimp, as is the case 
for the San Diego fairy shrimp. Thus, we used geographical descriptions 
to identify critical habitat units. These geographical descriptions are 
not meant to suggest any evolutionary divergence or population genetic 
structure. At the same time, we also based our analyses on what areas 
constituted critical habitat upon the best available scientific and 
commercial data available to us at the time, and made available public 
comment periods to allow for submission of any new information.
    13. Peer Reviewer Comment: The proposed rule stated that an 
artificial vernal pool complex had been created to offset the impacts 
to a population of Riverside fairy shrimp by the Redhawk Development, 
and that another artificial vernal pool creation was planned in order 
to offset the taking of Riverside fairy shrimp at the Clayton Ranch 
Pool. Two reviewers questioned whether these artificial pools have 
produced viable, reproducing populations with positive rates of 
increase, rather than simply hatching shrimp from the transplanted 
cysts. To the reviewers' knowledge, no such successes have been 
recorded in the primary literature; i.e., see Ripley et al. (2004). 
Furthermore, the proposed rule stated that on Otay Mesa in San Diego 
County, significant work had been done to restore and enhance vernal 
pools for listed species, including the Riverside fairy shrimp. 
However, the reviewers noted that due to failure to check the 
transplanted cysts, the Otay pools have become ``infected'' with a 
``weedy'' species, the winter fairy shrimp (Branchinecta lindahli), 
which can hybridize with the San Diego fairy shrimp (Fugate 1998); its 
effect on the Riverside fairy shrimp is yet unknown. Thus, the 
restoration or creation efforts have not been verified as successful 
(producing viable populations and a growing cyst bank) for either San 
Diego fairy shrimp or Riverside fairy shrimp, and have in fact, 
introduced new potential threats.
    Our Response: We did not designate any artificial vernal pools as 
critical habitat for the Riverside fairy shrimp.

Public Comments

Issue 1: Policy and Regulations
    1-1. Comment: It was suggested that all essential Riverside fairy 
shrimp habitat areas within the boundaries covered by the Western 
Riverside County Habitat Conservation Plan (HCP), Central/Coastal 
Orange County Natural Community Conservation Program (NCCP), and San 
Diego Multiple Species Conservation Plan (MSCP) should be included in 
the final critical habitat designation because (a) areas within those 
plans meet the definition of critical habitat; the Service has 
identified those areas as essential to the conservation of the species, 
and the plans provide special management for the species, (b) the 
benefits of inclusion far outweigh the harm wrongly perceived by 
others, (c) the critical habitat designation provides greater 
conservation benefits than those contained in the plans, which are 
inadequate to conserve the Riverside fairy shrimp, (d) because the 
educational benefits of HCPs are much less than those provided by 
critical habitat designation, and (e) the critical habitat designation 
has greater specificity, addressing the needs of specific species, than 
HCPs. Another commenter suggested that the critical habitat designation 
should be expanded to include all Riverside fairy shrimp populations, 
including those in excluded Department of Defense lands or HCP areas. 
In contrast, one commenter suggested that lands within the Western 
Riverside County MSHCP do not require additional special management 
considerations or protection, and thus do not meet definition of 
``critical habitat.''
    Our Response: Although the habitat within the boundaries of these 
conservation plans contains one or more of the physical and biological 
characteristics essential to the conservation of the Riverside fairy 
shrimp, we have determined that these conservation plans provide 
special management and/or protection for the Riverside fairy shrimp, 
and we have concluded that the benefits of excluding the lands covered 
by these plans from the final critical habitat designation outweigh the 
benefits of including these areas. Thus, we have excluded these areas 
from critical habitat designation under 4(b)(2) of the Act.
    We recognize that critical habitat is only one of many conservation 
tools for federally listed species. HCPs are one of the most important 
tools for reconciling land use with the conservation of listed species 
on non-Federal lands. Section 4(b)(2) of the Act allows us to exclude 
from critical habitat designation areas where the benefits of exclusion 
outweigh the benefits of designation, provided the exclusion will not 
result in the extinction of the species. We believe that in most 
instances, the benefits of excluding HCPs from critical habitat 
designations will outweigh the benefits of including them. For this 
designation, we find that the benefits of exclusion outweigh the 
benefits of designation for all approved and legally operative HCPs 
which address the Riverside fairy shrimp and provide for its long-term 
conservation. These include the San Diego MSCP in San Diego County, the 
Western Riverside County MSHCP and the Rancho Bella Vista HCP and 
Assessment District 161 Sub-regional HCP in Riverside County.
    HCPs must meet issuance criteria, according to section 10(a)(1)(B) 
of the Act, including minimizing and mitigating any take of the listed 
species covered by the permit to the maximum extent practicable, and 
that the taking must not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild. The take minimization 
and mitigation measures provided under the above-mentioned HCPs are 
expected to adequately protect the essential habitat lands designated 
as critical habitat in this rule, such that the value of these lands 
for the survival and recovery of the Riverside fairy shrimp is not 
appreciably diminished through direct or indirect alterations. We 
expect that HCPs undertaken by local jurisdictions (e.g., counties and 
cities) and other parties will identify, protect, and provide 
appropriate management for those specific lands within the boundaries 
of the plans that are essential for the long-term conservation of the 
species. We discuss these standards in detail in the section 7 
Consultation and Relationship of Critical Habitat to Approved Habitat 
Conservation Plans portions of this document below).
    1-2. Comment: It was suggested that the essential Riverside fairy 
shrimp habitat areas within the boundaries covered by the Western 
Riverside County HCP should not be excluded as critical habitat because 
the plan was only recently approved and the protection benefits the 
plan provided to the species were thus unproven and speculative. 
According to the Act, the Service cannot base its decisions to exclude 
areas from its critical habitat designation on unproven conservation 
activities.

[[Page 19163]]

    Our Response: Under section 4(b)(2), we may exclude any area from 
critical habitat if we determine that the benefits of such an exclusion 
outweigh the benefits of including the area in the critical habitat 
designation, unless, based on the best scientific and commercial data 
available, we determine that failure to designate the area as critical 
habitat will result in the extinction of the species. We have excluded 
the areas within the Western Riverside County MSHCP from the final 
critical habitat designation under section 4(b)(2) of the Act because 
the benefits of exclusion outweigh the benefits of inclusion. (For a 
detailed discussion please see the section Relationship of Critical 
Habitat to Approved Habitat Conservation Plans below).
    1-3. Comment: Several comments were made that the Service 
inaccurately overstates the benefits of conservation plans while 
overemphasizing possible harm of critical habitat designation within 
plans' boundaries, that the Service cannot rest any claim of harm on 
mere perceptions; possible complaints by plan participants would 
suggest intention of significantly reduced conservation compared to 
those in a designated critical habitat. Critical habitat designation of 
an area after the approval of an HCP there will not serve as 
disincentive, but actually encourage HCP preparation.
    In an opposing view, one commenter supported the exclusion of 
critical habitat within the Western Riverside County MSHCP, asserting 
that if it were included, it would undermine cooperative conservation 
partnerships. Two commenters stated, in general, that all lands covered 
by an HCP (e.g., NCCPs/ special area management plans) should be 
automatically excluded from critical habitat designation upon approval 
of the respective conservation or management plan.
    Our Response: It is our experience that most landowners strongly 
object to inclusion of their lands within critical habitat; thus while 
proposing a designation may in some cases provide an incentive to 
participate in developing an HCP, we have no indication that 
designating private lands as critical habitat encourages the owners to 
engage in conservation activities. We do recognize that the designation 
of critical habitat does not provide the same set of conservation 
conditions that an HCP does, and an HCP may well provide more benefits 
to the species than critical habitat designation. We recognize that 
critical habitat is only one of many conservation tools for federally 
listed species, but HCPs are one of the most important tools for 
reconciling land use with the conservation of listed species on non-
Federal lands. Furthermore, the benefits of including HCPs or NCCP/HCPs 
in the critical habitat designation are normally small; i.e., any 
federally funded or authorized activities in such habitat that may 
affect critical habitat would require consultation under section 7 of 
the Act. Such consultation would ensure that adequate protection is 
provided to avoid adverse modification of critical habitat. Where HCPs 
are in place, we believe that this benefit is small or non-existent. 
Although conservation plans are important tools to ensure the species 
survival and recovery, our actions regarding newly implemented plans 
are not automatic; it is our policy is to carefully review each plan, 
and only exclude areas from critical habitat designations consistent 
with section 4(b)(2) of the Act.
    1-4. Comment: All essential habitats within the boundaries of the 
Central/Coastal Orange County NCCP/HCP should be included in the 
critical habitat designation because the Riverside fairy shrimp in 
natural vernal pools is not covered by these plans, and therefore 
cannot benefit from the conservation measures in the plan.
    Our Response: The Riverside fairy shrimp is known to occur in only 
two areas within the Central-Coastal Orange County NCCP/HCP, which 
provides for the establishment of approximately 38,738 ac (15,677 ha) 
of reserve lands for 39 Federal or State listed, unlisted, and 
sensitive species. Within this NCCP/HCP, we proposed critical habitat 
at the former Marine Corps Air Station (MCAS) El Toro but we excluded 
this area pursuant to section 4(b)(2) for economic impacts. We excluded 
an area within the Edison Viejo Conservation Bank, as their management 
plan meets our criteria for conservation measure for the species. The 
Riverside fairy shrimp is also known to occur in the North Ranch Policy 
Plan area which was originally not included within the Central-Coastal 
NCCP/HCP. However, in 2002, the Irvine Company, owner of lands within 
the North Ranch Policy Plan area, granted a conservation easement to 
The Nature Conservancy over the portion of the land where this vernal 
pool is located, and provided a $10 million management endowment. The 
conservation easement and management endowment ensure conservation of 
the Riverside fairy shrimp at this site. (For details, see Relationship 
of Critical Habitat to Approved Habitat Conservation Plans below).
    1-5. Comment: The critical habitat designation does not give 
landowners effective notice as to whether their property contains 
critical habitat, causing a burden to landowners who must determine 
which portions of their land contain critical habitat.
    Our Response: We identified, as critical habitat, specific areas in 
the proposed determination that are referenced by UTM coordinates found 
on standard topographic maps. Note that areas delineated as critical 
habitat on the maps do not include developed areas within the 
boundaries that do not contain more than one of the primary constituent 
elements for the species. During the public comment periods, we also 
made available the proposed critical habitat units, superimposed on 7.5 
minute topographic maps and spot imagery, for inspection by the public 
at the Carlsbad Fish and Wildlife Office. Furthermore, we distributed 
geographic data and maps of the proposed critical habitat to all 
individuals, organizations, local jurisdictions and State and Federal 
agencies that requested them. We believe the information made available 
to the public is sufficiently detailed to allow for determination of 
critical habitat boundaries. This final rule contains the legal 
descriptions of areas designated as critical habitat required under 50 
CFR 424.12(c). The accompanying maps are for illustration purposes 
only. If additional clarification is necessary, contact the Carlsbad 
Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California 
92009 (telephone 760/431-9440).
    1-6. Comment: Essential Riverside fairy shrimp habitat within MCAS 
Miramar should be included as critical habitat because the habitat 
under their Integrated Natural Resource Management Plan (INRMP) meets 
the definition of critical habitat, as the Service has identified those 
areas as essential to conservation of species and the plan provides 
special management for the species. Further, the current INRMP (a) does 
not provide details for any existing or future exotic control project 
and thus does not provide adequate protection against current threats 
posed by the spread of exotic plants, (b) contains mainly future plans 
and few active measures addressing current conservation needs, and 
little information on when and where the actions will be accomplished, 
(c) does not include the Navy's past Miramar Vernal Pool Management 
Plan, i.e., treatment of vernal pools is not mandated, (d) its 
protection measures are not permanent, i.e., its reference to 
``political developments'' could be seen as future decision to convert 
base to a

[[Page 19164]]

regional airport or other development; (e) identifies the NEPA and the 
Clean Water Act as primary mechanisms for reconciling land uses with 
conservation, but these do not provide effective conservation of vernal 
pools, and (f) the INRMP provides few benefits, as the INRMP and past 
consultations will not ensure conservation or protection of Riverside 
fairy shrimp and its essential habitat.
    Our Response: Under section 4(a)(3) of the Act, we must exempt 
military lands subject to an INRMP from critical habitat if that plan 
provides a benefit to Riverside fairy shrimp. The lands at MCAS Miramar 
are covered by an approved INRMP that identifies sensitive natural 
resources within management areas that have various resource 
conservation requirements and management concerns. These areas have 
been assigned five levels of conservation priority corresponding with 
their sensitivity, with e.g., Level I management areas receiving the 
highest proactive measures. MCAS Miramar continues to monitor, restore 
and manage its vernal pool resources, including studies in progress, 
and has indicated it has no plans for changes in future land use. MCAS 
Miramar has completed an INRMP which we have reviewed and determined 
that it provides benefits to the Riverside fairy shrimp. Therefore, 
lands at MCAS Miramar have not been included in the proposed or final 
designation in accordance with 4(a)(3) of the Act (for more details, 
see benefits analysis in proposed rule (69 FR 23024) under Relation of 
Critical Habitat to Department of Defense Lands; Marine Corps Air 
Station Miramar).
    1-7. Comment: The Service did not provide for adequate public 
notice of the proposed rule and sufficient opportunity for public 
comment. Additionally, requests for extension of the comment period 
were denied, while previous comments have not been acted upon. The 30-
day comment period on the draft economic analysis lacks compliance with 
the required 60-day comment period per the Service's own regulations, 
the Act and the Regulatory Flexibility Act; with a shorter comment 
period.
    Our Response: Pursuant to our implementing regulations at 50 CFR 
424.16, we are required to provide for at least 60-days for public 
comment following the publication of a proposed rule in the Federal 
Register. We published the proposed rule to designate critical habitat 
for the Riverside fairy shrimp in the Federal Register on April 27, 
2004 (69 FR 23024), and accepted comments from the public for 30 days, 
to May 27, 2004. We contacted all appropriate State and Federal 
agencies, county governments, elected officials, and other interested 
parties and invited them to comment on the proposed rule. In addition, 
we published notices in the San Diego Union Tribune, the Orange County 
Register, and the Los Angeles Times, all on May 6, 2004. We published a 
second notice in the Federal Register on October 19, 2004 (69 FR 
61461), announcing the availability of the draft economic analysis and 
opening a 30-day public comment period until November 18, 2004, to 
allow for comments on the draft economic analysis and additional 
comments on the proposed determination. We provided notification of the 
draft economic analysis through telephone calls, letters, and news 
releases faxed and/or mailed to relevant elected officials, local 
jurisdictions, and interest groups. Following its release, we also 
published the draft economic analysis and associated material on our 
Web site (http://carlsbad.fws.gov). We believe these two public comment 
periods provided adequate opportunity for public comment and constitute 
compliance with our implementing regulations at 50 CFR 424.16. Because 
of the court-ordered time frame, we were not able to extend the second 
comment period or open an additional public comment period.
    1-8. Comment: Would the designation of critical habitat for the 
Riverside fairy shrimp be considered a changed or unforeseen 
circumstance with respect to the various sub-area HCPs presently 
approved or pending?
    Our Response: In this rule, no critical habitat was designated 
within lands covered by any pending or un-approved HCP.
    1-9. Comment: One commenter stated that the proposal to designate 
critical habitat violates the Act because of (a) failure to use the 
best available science to exclude non-essential lands from the critical 
habitat designation, (b) failure to determine whether any specific 
areas may require special management considerations or protection, (c) 
it does not contain an economic impact analysis; Congress intended that 
the Service consider economic and other impacts of the critical habitat 
designation concurrently with the formulation of critical habitat 
proposals, (d) certification pursuant to the Regulatory Flexibility Act 
impermissibly relies on the as-yet unavailable economic analysis, 
reducing ability of public to provide meaningful comment, and because 
(e) the Service has failed to comply with NEPA prior to designating 
critical habitat.
    Our Response: We are directed by the Act to use the best commercial 
and scientific information available to us at the time we conduct our 
analyses. In response to part (a), we relied on the best scientific 
resources when determining to either designate areas essential to the 
conservation of the Riverside fairy shrimp and to exclude other areas 
from our final critical habitat designation. Our final delineation of 
critical habitat is based on the best available scientific and 
commercial data regarding the species, including a compilation of data 
from peer-reviewed published scientific literature, unpublished or non-
peer-reviewed survey or research reports, and statements from expert 
biologists knowledgeable about the Riverside fairy shrimp and its 
habitat. In addition to the above information available to us, we also 
requested additional information from the public and from peer 
reviewers to further assist us in our analyses. All new information 
that was provided during the public comment periods was considered in 
this final designation, as appropriate. The areas designated as 
critical habitat represents our best estimate of what areas are 
essential and critical for the conservation of the species. In response 
to part (b), please refer to our section Relationship of Critical 
Habitat to Approved Habitat Conservation Plans for details on our 
analyses of approved conservation plans. In response to comments (c) 
and (d), we have provided a draft economic analysis, available for 
public review during the second comment period, giving individuals 
opportunity to submit comments on its contents, which we have reviewed 
and addressed in this rule. In response to comment (e), we are not 
required to prepare environmental analyses as defined by the NEPA in 
connection with designating critical habitat under the Endangered 
Species Act of 1973, as amended. (For more details, see National 
Environmental Policy Act (NEPA) below).
    1-10. Comment: Would on-going activities (such as routine 
inspections, road grading, construction, etc.) that occur adjacent to 
designated critical habitat be considered to appreciably decrease 
habitat values or quality through indirect effects?
    Our Response: The Federal agency planning to conduct such 
activities must determine if their proposed action may affect critical 
habitat designated for the Riverside fairy shrimp. The action agency 
determines whether their action(s) ``may affect'' the Riverside fairy 
shrimp or its primary constituent elements within the adjacent critical 
habitat based on their analyses. If so, the

[[Page 19165]]

action agency would enter into consultation with the Service under 
section 7.
    1-11. Comment: Can the Service exclude all areas addressed under 
existing section 7 permits in a manner similar to the exclusions for 
areas covered under existing section 10 permits? Specifically, can an 
existing section 7 permit based on a biological opinion for the 
California gnatcatcher be amended to cover the Riverside fairy shrimp 
critical habitat in the Otay Mesa area? Specifically, this would be 
necessary for ongoing operations and maintenance by the San Diego 
County Water Authority of the Mexico Emergency Connection Pipeline on 
the western portion of Otay Mesa (final Map Unit 4).
    Our Response: Consultation under section 7 of the Act does not 
result in the issuance of a section 7 ``permit'' per se. Federal 
actions that we conclude are not likely to jeopardize the continued 
existence of a listed species are exempted from the prohibition against 
take of listed animal species under section 9 of the Act so long as the 
Federal agency and any permittee comply with the terms and conditions 
of the incidental take statement accompanying the Service's biological 
opinion. Assuming the Federal agency that was subject to consultation 
under section 7 of the Act for a listed species still retains 
discretionary jurisdiction over the action, the Federal agency must re-
initiate section 7 consultation if its action ``may affect'' designated 
critical habitat for the Riverside fairy shrimp. See Section 7 
Consultation below.
    1-12. Comment: One commenter requested that the Major and Minor 
Amendment areas of the eastern portion of Otay Mesa, southern San Diego 
region (Map Unit 5C), be excluded from the critical habitat designation 
because these areas must conform to the MSCP, sub-area plans, and the 
resource protection ordinance, and a critical habitat designation would 
result in additional section 7 requirements, economic burdens on HCP 
participants, discourage HCP development, cause additional regulatory 
review that could jeopardize ongoing conservation efforts, possibly 
encourage legal challenges to the HCPs because of the uncertainty of 
the ``adverse modification'' threshold, and afford no additional 
benefit to the species because HCPs provide better long-term 
conservation measures.
    Our Response: Although the Major/Minor Amendment areas are within 
the boundaries of the San Diego MSCP, these areas are not covered by 
completed plans that address the conservation of the Riverside fairy 
shrimp. While we have excluded lands covered by approved sub-area plans 
under the MSCP, the plans for the Major/Minor Amendment areas are 
incomplete and thus do not provide adequate conservation measures 
addressing the Riverside fairy shrimp. However, we have excluded all of 
Sub-unit 5C in private ownership within the Otay Mesa Major/Minor 
Amendment areas, under section 4(b)(2) of the Act, in order to avoid 
some or all of the additional costs incurred by affected landowners.
    1-13. Comment: One commenter suggested that the areas proposed as 
Riverside Fairy Shrimp critical habitat (a) do not need special 
protection or satisfy the definition of critical habitat because they 
receive substantial protections under new regulations (i.e., Clean 
Water Act, Porter-Cologne Water Quality Control Act, California 
Environmental Quality Act, California Department of Fish and Game 
permitting codes, State Water Board regulations; and (b) must be re-
evaluated to determine whether the habitat requires special protection 
in light of new regulations governing such areas, i.e., the California 
Porter-Cologne Water Quality Control Act.
    Our Response: While the statutes listed above may provide some 
regulatory protection for the Riverside fairy shrimp and its associated 
essential habitat, they do not provide assured management for the 
species.
    Therefore, exclusion of essential habitat from this designation on 
the basis of the regulatory protections potentially afforded by these 
statutes is not warranted.
    1-14. Comment: One commenter asserted that Service has unlawfully 
pre-determined that exclusion from the final critical habitat 
designation of essential Riverside fairy shrimp habitat that lies 
within other conservation plan areas outweighs any benefits of 
inclusion because the acknowledged essential habitat was excluded prior 
to the public's review of the Service's analyses of benefits and harm.
    Our Response: Notice of our intent to exclude lands within approved 
and/or pending HCPs was provided to the public, and maps showing the 
lands proposed for exclusion were readily available to the public for 
inspection during the two public comment periods. We solicited comments 
from the public for 30 days about the areas which we proposed to 
include or exclude from the proposed rule to designate critical habitat 
for the Riverside fairy shrimp on April 27, 2004 (69 FR 23024). In the 
Federal Register notice, we notified the public that we may revise the 
critical habitat designation if additional information becomes 
available that changes our assessment of the relative benefits of 
including or excluding these areas from critical habitat. We also 
contacted appropriate State and Federal agencies, county governments, 
elected officials, and other interested parties and invited them to 
comment on the proposed rule, and published notices in the San Diego 
Union Tribune, Orange County Register, and Los Angeles Times on May 6, 
2004. We published a second notice on October 19, 2004 (69 FR 61461), 
announcing the availability of the draft economic analysis and opening 
a 30-day public comment period until November 18, 2004, and also 
published the draft economic analysis and associated material on our 
Web site (http://carlsbad.fws.gov). In making our final critical 
habitat determination, we considered every comment submitted.
Issue 2: Adequacy and Extent of Critical Habitat Designation
    2-1. Comment: One commenter stated that there is no substantiation 
for an increase in area designated as critical habitat from the 
previous critical habitat rule issued on May 30, 2001 (66 FR 29384).
    Our Response: In the May 30, 2001, final critical habitat rule for 
the Riverside fairy shrimp (66 FR 29384), we designated approximately 
6,870 ac (2,790 ha) as critical habitat. Since then, additional, new 
information on vernal pools and the occurrences of the little-studied 
Riverside fairy shrimp has become available, while on the other hand, 
numerous of the discovered essential areas have been included in 
several regional HCPs or INRMPs. Thus, on April 27, 2004, we proposed 
to designate approximately 5,795 ac (2,345 ha) of vernal pools and 
their adjacent watersheds essential to the conservation of the species 
as critical habitat for the Riverside fairy shrimp (69 FR 23024). This 
final determination designates 306 ac (124 ha) as critical habitat, 
which represents less than five percent of the area originally 
designated as critical habitat in the previous rule of 2001.
    2-2. Comment: One commenter stated that the Service did not use an 
appropriate mapping scale for this species, and since the species' 
range is well known in San Diego County, the Service should have been 
able to delineate critical habitat boundaries with extreme precision. 
The current 100 m\2\ blocks include areas that do not have the PCEs for 
the Riverside fairy shrimp, and those areas should be excluded. Another 
commenter asked whether the Service intends to exclude from the 
designated critical habitat all existing

[[Page 19166]]

roads, aqueducts, etc. regardless of the state of these features.
    Our Response: We are required to define and delimit critical 
habitat by specific limits using reference points and lines as found on 
standard topographic maps of the area'' (50 CFR 424.12(c)). We have 
delimited the boundaries of critical habitat boundaries in this rule 
based on a minimum mapping scale of 100 m. This mapping scale was based 
on the availability and accuracy of aerial photography and GIS data 
layers used to develop the designation. In drawing our critical habitat 
boundaries for the proposed and final rules, we have attempted to 
exclude all areas that do not contain essential habitat for the 
Riverside fairy shrimp as defined by its PCEs. Based on information 
obtained through public comments and updated imagery and GIS data 
layers, we have been able to further refine the boundaries of critical 
habitat during the development of this final rule. Within the 
limitations of our mapping scale, we have been able to exclude most, 
but not all areas, that do not contain the PCEs, including some man-
made features. Note, however, that we have determined that existing 
man-made features and structures, such as buildings, roads, railroads, 
airports, runways, other paved areas, lawns, and other urban landscaped 
areas are not likely to contain one or more of the PCEs and thus do not 
constitute critical habitat and the lands on which they are found. 
Activities in these areas are unlikely to affect PCEs (i.e., essential 
habitat for the Riverside fairy shrimp), and therefore, consultation 
under section 7 of the Act would not be required unless such activities 
would affect the species or adjacent critical habitat. In making the 
critical habitat designation, we used the best scientific and 
commercial information available to us, including information obtained 
during the two public comment periods
    2-3. Comment: The proposed critical habitat designation violates 
the Act because of the Service's failure to limit the designation to 
areas essential to the conservation of the Riverside fairy shrimp.
    Our Response: In proposing critical habitat designation, we used 
the best scientific and commercial information available to determine 
those areas essential for the conservation of the Riverside fairy 
shrimp. We used additional information available to us, including a 
more detailed aerial imagery, a finer mapping grid (changed from 250 
m\2\ to 100 m\2\), as well as information provided by commenters to 
refine our mapping of all essential habitat included in the final 
designation. Please see the sections Background, Criteria Used to 
Identify Critical Habitat, and Critical Habitat Designation of this 
rule for further discussions on how we determined habitat that is 
essential to the conservation of the species. The areas designated by 
this final rule are limited to lands essential for the conservation of 
the Riverside fairy shrimp.
    2-4. Comment: Rancho Mission Viejo stated that in the proposed 
rule: (a) The Service used a ``recovery standard'' which resulted in an 
overly broad critical habitat designation, (b) the Service did not 
provide scientific data to indicate how it determined the extent of 
watersheds that comprise the extent of critical habitat within Rancho 
Mission Viejo, and that (c) one vernal pool (within Map Unit 2), 
included in the proposed designation, no longer exists.
    Our Response: The definition of critical habitat in section 3(5)(A) 
of the Act includes ``(i) specific areas within the geographic area 
occupied by a species, at the time it is listed in accordance with the 
Act, on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) that may require 
special management considerations or protection; and (ii) specific 
areas outside the geographic area occupied by a species at the time it 
is listed, upon a determination that such areas are essential for the 
conservation of the species.'' The term ``conservation,'' as defined in 
section 3(3) of the Act, means ``to use and the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary''. In designating critical habitat 
for the Riverside fairy shrimp, we identified those areas that are 
essential to the conservation of this species. The areas we designate 
as critical habitat provide one or more of those habitat components 
essential for conservation of the Riverside fairy shrimp. In this final 
rule, we have not included all areas currently occupied by the 
Riverside fairy shrimp, but instead have designated those areas that 
are essential for the conservation of the species and that may possess 
large populations, have unique ecological characteristics, and/or 
represent the known historic geographic areas where the Riverside fairy 
shrimp can be re-established. The Recovery Plan (Service 1998) details 
some measures to meet the recovery needs of the Riverside fairy shrimp, 
and provides a description of habitat attributes that are essential to 
conservation of the species. We believe that we used the best 
scientific and commercial information available in determining those 
areas essential for the Riverside fairy shrimp that were proposed as 
critical habitat and subsequently finalized. Please see the sections 
Background, Criteria Used to Identify Critical Habitat, and Critical 
Habitat Designation of this rule for further discussion on how we 
determined habitat that is essential to the conservation of the 
Riverside fairy shrimp.
Issue 3: Biological Justification and Methodology
    3-1. Comment: There is insufficient data to show that the Riverside 
fairy shrimp is present in the proposed critical habitat areas at March 
Air Reserve Base (March ARB). Further, the Service did not use best 
scientific data available in the proposed critical habitat designation, 
as it did not consider the ``1998 Fairy Shrimp Surveys at March Air 
Reserve Base, Riverside County, California'' (RECON Number 2965B, 
September 14, 1998) which concluded that ``potential habitats at March 
Air Reserve Base are of poor quality and do not support the Riverside 
fairy shrimp.'' Because the surveys indicated that the habitat was 
unoccupied, the pools on March ARB are not essential to the 
conservation of the species.
    Our Response: The delineation of critical habitat for the Riverside 
fairy shrimp was based on the best available scientific and commercial 
data regarding the species. During both public comment periods, all new 
information provided was considered in this final designation, as 
appropriate. The areas proposed and designated as critical habitat, as 
described, represent our best estimate of what areas are essential and 
critical for the conservation of the species. Critical habitat at March 
ARB was excluded from critical habitat based on section 4(b)(2) of the 
Act.
Issue 4: Comments on Individual Map Units--Exclusions
    4-1. Comment: The U.S. Department of Homeland Security (DHS), U.S. 
Border Patrol, San Diego Sector, submitted comments (May 27, 2004) 
raising the following issues: (1) Lands owned by the DHS within Sub-
units 5B and 5C have previously been disturbed and developed by the 
construction of the Border Infrastructure System (BIS), (2) the DHS has 
conducted two restoration projects to offset losses for fairy shrimp, 
and 135 ac (55 ha) of DHS-owned lands located north of the BIS have 
been designated as mitigation for completion of the border system and

[[Page 19167]]

should not be designated as critical habitat. DHS has made a commitment 
to the Service to transfer these lands to a conservation resource 
agency and/or to protect and conserve the lands in perpetuity, (3) 
lands within the footprint of the BIS do not or will not contain any of 
the primary constituent elements for the Riverside fairy shrimp once 
construction is completed, and (4) the BIS is considered integral to 
national security.
    Our Response: We have excluded essential habitat within DHS-owned 
lands along the U.S.-Mexico border (i.e., all of Sub-unit 5B, and 
portions of Sub-unit 5C) under section 4(b)(2) of the Act and removed 
non-essential areas. The concerns related to the presence or absence of 
primary constituent elements within the footprint of the BIS are moot 
because no lands owned by the DHS have been designated as critical 
habitat. For a detailed explanation, please see the section Application 
of Section 4(b)(2) to Department of Homeland Security (DHS) lands 
below.
    4-2. Comment: March ARB requested that vernal pools located on 
their lands be excluded from critical habitat under section 4(b)(2) of 
the Act because designation would adversely impact commercial reuse of 
former military property currently under development, severely limit 
civilian aviation at the joint-use March ARB airport, result in 
aviation delays, jeopardize public safety and impact firefighting 
mission of California Department of Forestry, increase possible risk of 
bird-aircraft strikes, and ``adversely impact mission execution and 
military training critical to national security.'' One pool is located 
near the airfield zone where ongoing maintenance is necessary to ensure 
proper drainage and prevent possible runway damage. Further, they 
suggested that the vernal pools on March ARB (called Pools 3 and 6 by 
March ARB) do not meet the definition of ``critical habitat,'' suitable 
habitat for the Riverside fairy shrimp is not present or determinable 
and cannot be maintained on March ARB, and the pools are not essential 
to the conservation of the species as required by Act. Thus, the 
benefits of exclusion outweigh benefits of inclusion, will not result 
in extinction of the Riverside fairy shrimp, and the proposed critical 
habitat designation is not prudent. The Air Force's Environmental 
Impact Analysis Process ensures the compliance of March ARB with the 
NEPA, and also, an INRMP is being revised that will ensure all 
potential habitat areas on March ARB will be investigated for Riverside 
fairy shrimp.
    Our Response: We have determined to: (1) Remove Sub-unit 3A from 
this critical habitat designation as the area has been modified and no 
longer contains the primary constituent elements for the Riverside 
fairy shrimp, and (2) exclude Sub-unit 3B from this final critical 
habitat designation according to section 4(b)(2) of the Act. The main 
benefit of the latter exclusion is to ensure that mission-critical 
military flight activities can continue without interruption at March 
ARB while their INRMP is being completed. Under section 4(b)(2) of the 
Act, we may exclude lands from critical habitat if the benefits of 
excluding them, including the benefits to national security, outweigh 
the benefits of including them in the designation. We have determined 
that the benefits to national security of excluding lands within Sub-
unit 3B from critical habitat outweighs the benefits of including these 
lands in the critical habitat designation (see Application of Section 
4(b)(2) to March Air Reserve Base (March ARB) for a detailed 
discussion).
    4-3. Comment: We received comment letters from the Federal Aviation 
Administration (FAA) and Los Angeles World Airports (LAWA; Sapphos 
Environmental 2004) regarding the proposed designation of critical 
habitat at the Los Angeles International Airport (Sub-units 2A and 2B). 
FAA and LAWA questioned the appropriateness of the proposed designation 
of critical habitat because of past decisions by the Service in the 
Recovery Plan for Vernal Pools in Southern California, previous 
designation of critical habitat for the Riverside fairy shrimp, the 
April 2004 biological opinion for the Los Angeles International Airport 
Master Plan, concern for the potential increased risk to public safety 
and air navigation, and conflicts with FAA's mission. These agencies 
also recommended that critical habitat not be designated within the Los 
Angeles International Airport because of the ongoing section 7 
consultations for the Riverside fairy shrimp with FAA and LAWA for 
their operations and maintenance activities and the absence of the 
primary constituent elements for the Riverside fairy shrimp within the 
proposed critical habitat units.
    Our Response: In the proposed rule, we identified vernal pools at 
the Los Angeles International Airport (LAX) as critical habitat (Sub-
units 2A, 2B). As a result of the ongoing operations and maintenance 
activities at LAX, the requirement of the primary constituent element 
related to the length of time that ponding seasonally occurs within 
these ephemeral wetlands is not met. Thus, these ephemeral wetlands do 
not contain this primary constituent element; the Riverside fairy 
shrimp is unable to complete its lifecycle at LAX without these pools 
being inundated for a minimum of two months. Thus, we conclude that the 
ephemeral pools originally proposed as critical habitat at LAX are not 
essential for the conservation of the Riverside fairy shrimp and we are 
not designating them as critical habitat.
    4-4. Comment: The U.S. Marine Corps has requested the exclusion of 
lands on Marine Corps Base (MCB) Camp Pendleton from critical habitat 
designation per the Act, under section 4(a)(3) and section 4(b)(2) They 
stated that MCB Camp Pendleton has an INRMP that provides significant 
direct and indirect benefits to the Riverside fairy shrimp, that 
section 7 provides sufficient protection for the Cocklebur Sensitive 
Area as described in a previous biological opinion (1-1-82-I-92) and 
therefore, this area should be excluded from critical habitat. They 
stated that designation would interfere with the base's critical 
military training mission and military readiness and concurred with the 
Service's proposal to exclude mission-critical areas from critical 
habitat designation.
    Our Response: According to section 4(a)(3) of the Act, we must 
exempt Department of Defense lands covered by an INRMP from the 
critical habitat designation if we determine that the INRMP provides a 
benefit to the Riverside fairy shrimp. We have reviewed Camp 
Pendleton's INRMP and conclude that their plan provide a benefit to the 
Riverside fairy shrimp. With the INRMP in place and progress being made 
towards improving the protection of Riverside fairy shrimp, we have 
therefore exempted MCB Camp Pendleton under section 4(a)(3) of the Act. 
See the Exclusion of Critical Habitat Under Sections 4(a)(3), 3(5)(A) 
and 4(b)(2) of the Act section below for further discussion of lands 
excluded from critical habitat.
    4-5. Comment: We received a request to exclude areas owned by San 
Diego Gas and Electric (SDG&E) that fall within their sub-regional 
NCCP/HCP boundaries from the critical habitat designation because these 
areas do not meet definition of critical habitat (i.e., is covered by 
an HCP plan) and exclusion will not pose any potential risk to the 
Riverside fairy shrimp. Designation of critical habitat imposes 
economic burdens on HCP participants, increases the cost of 
consultation, increases delay, imposes additional regulatory review, 
and will reduce incentive to participate in the HCP process. HCPs 
provide a much greater conservation benefit to

[[Page 19168]]

private land areas than other Endangered Species Act programs, while 
critical habitat designation affords no additional benefits to the 
species as section 7 is applied on an inconsistent and sporadic basis, 
and does not provide long-term protection.
    Our Response: Where site-specific documentation was submitted to us 
providing a rationale as to why an area should not be designated 
critical habitat, we evaluated that information in accordance with the 
definition of critical habitat pursuant to section 3 of the Act. We 
made a determination as to whether modifications to the proposal were 
appropriate. We reviewed the maps to ensure that only those lands 
essential for the conservation of the Riverside fairy shrimp were 
designated as critical habitat. We excluded lands from the final 
designation that we determined to be non-essential to the species' 
conservation. We also excluded lands, including lands identified in the 
Vernal Pool Recovery Plan that were included in an approved HCP which 
provides for the conservation of Riverside fairy shrimp, and where we 
determined that the benefits of excluding those areas outweighed the 
benefits of including them. We included lands in the final designation 
that are essential to the conservation of the species which may require 
special management considerations or protection for the Riverside fairy 
shrimp. Portions of essential habitat areas within the SDG&E Sub-
regional Plan which are used for SDG&E operational maintenance 
activities have been excluded from critical habitat based on section 
4(b)(2) of the Act. This sub-regional plan and the clarification 
document (July 2004) defines avoidance, minimization, and offsetting 
measures to be implemented by SDG&E for the operations and maintenance 
activities and future construction of new facilities and roads.
    4-6. Comment: Skyline Ranch suggested that lands owned by Pardee 
Homes be removed from critical habitat designation because it does not 
fit critical habitat designation, and is not within the geographical 
area occupied by the species. The commenter stated that: (a) The 
Service has no proof showing Cruzan Mesa pools in Skyline Ranch 
property are occupied; attached information referred to two surveys 
conducted in 2002 and 2003 that recorded the vernal pool fairy shrimp 
(Branchinecta lynchi), but did not record Riverside fairy shrimp on 
Cruzan Mesa; (b) because the Service has not made a finding that the 
site is essential to the species, and Skyline Ranch does not need 
special management or protection, the site cannot be designated 
critical habitat; (c) the area that has been proposed as critical 
habitat (536 ac) exceeds the area that contains the PCEs. Pardee Homes 
engaged Sikand Engineering, whose hydrological model determined that 
the maximum surface area of the two main pools was 12 ac (5 ha) and the 
tributary area necessary to fill the pool volumes from rainfall run-off 
constituted 90 ac (36 ha), totaling 102 ac (41 ha), and (d) the 
benefits of excluding outweigh the benefits of including lands within 
Skyline Ranch as critical habitat; exclusion would not lead to the 
extinction of the species. The commenter listed the benefits of 
exclusion from critical habitat designation as the implementation of 
Pardee plans to construct approximately 1,344 single family detached 
homes on the property, creation of new jobs and tax revenues for local 
jurisdictions, and the removal of burden of substantial impending 
litigation to Skyline Ranch property by ``No Growth'' advocates.
    Our Response: Cruzan Mesa (proposed Map Sub-unit 1C), constitutes a 
portion of a larger area of Pardee-owned property (Skyline Ranch). 
Cruzan Mesa contains several isolated vernal pool complexes within a 
unique topography, i.e., a topographically enclosed basin atop a large, 
elevated mesa (1,230 ft (375 m)) on an eroded foothill. In 2004, the 
Los Angeles County Department of Regional Planning proposed to 
designate a 958 ac area Sensitive Ecological Area (SEA), including all 
of Cruzan Mesa, due to its regional biological values. In evaluating 
the Cruzan Mesa sub-unit, we relied upon various sources, including 
information in the Final Recovery Plan for Vernal Pools of Southern 
California (Service 1998) and the Biological Resources Assessment 
Report of the Proposed Cruzan Mesa Vernal Pools SEA prepared for the 
Los Angeles County Department of Regional Planning (PCR Services 2000). 
This information referenced the occurrence of Riverside fairy shrimp at 
Cruzan Mesa. Information from the referenced comment letter refers to 
another survey of some vernal pools on Cruzan Mesa that did not 
encounter Riverside fairy shrimp. However, we have not designated 
critical habitat on Cruzan Mesa for the Riverside fairy shrimp because 
at present, we do not have sufficient documentation supporting the 
occurrence or non-occurrence of the Riverside fairy shrimp in the 
Cruzan Mesa vernal pools. Thus, we have concluded that Cruzan Mesa is 
not essential for the Riverside fairy shrimp.
    4-7. Comment: San Diego County Water Authority, citing undue 
increased regulatory burden, costs, and administrative delays that 
would be caused by a critical habitat designation, requested that their 
facilities (the Mexico Emergency Connection Pipeline) on Otay Mesa 
(Sub-unit 5C) be excluded or, alternatively, that provisions be made in 
the designation to address the existing activities and operations 
within their right-of-way, through either exclusions or textual 
exemptions.
    Our Response: Please see the response to comment 1-10 above and 
discussion in Section 7 Consultation, below. Please note that critical 
habitat within Sub-unit 5C has been excluded based on section 4(b)(2) 
of the Act.
    4-8. Comment: One commenter stated that critical habitat 
designation should exclude Rancho Mission Viejo lands (within Map Sub-
units 2F and 2G) ``in light of disincentives to continued participation 
in conservation planning,'' because of a pending HCP, and because the 
benefits of exclusion outweigh benefits of inclusion.
    Our Response: We are continuing to work with Rancho Mission Viejo 
to complete their HCP (please see Relationship of Critical Habitat to 
HCPs in Development section below). The South Orange County NCCP/HCP 
covers approximately 128,000 ac (51,799 ha) of land within the plan 
area and has been in development for a number of years. This NCCP/HCP 
planning effort includes the participation of Rancho Mission Viejo and 
the cities of Rancho Santa Margarita, Mission Viejo, San Juan 
Capistrano and San Clemente, and the County of Orange. However, the 
Environmental Impact Statement and Environmental Impact Report for the 
NCCP/HCP proposal have not been released for public review and comment. 
There are altogether at least four vernal pools that support the 
Riverside fairy shrimp within the study area of the South Orange County 
NCCP/HCP (please see Critical Habitat Designation below for more 
information). The features within these pools have been determined to 
be essential to the conservation of the species and may require special 
management consideration or protections. Please note that critical 
habitat within these subunits has been excluded based on section 
4(b)(2) of the Act.
    4-9. Comment: The vernal pool on the former MCAS El Toro does not 
have the PCEs to support the Riverside fairy shrimp and further, 
critical habitat designation at El Toro would impede the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) 
response actions

[[Page 19169]]

necessary to remediate both soil and groundwater contamination on the 
property. Thus, the benefits of excluding the pool at El Toro from the 
critical habitat designation outweigh the benefits of including it.
    Our Response: We have reviewed the available information and 
believe that the vernal pool at former MCAS El Toro has the primary 
constituent elements for the Riverside fairy shrimp. We have excluded 
all of Unit 2C, consisting of lands within the former MCAS El Toro from 
critical habitat based on section 4(b)(2) of the Act.
Issue 5: Comments on Individual Map Units--Inclusions
    5-1. Comment: One group and the City of Moorpark requested the 
inclusion of areas containing vernal pools within Map Unit 1 in the 
final critical habitat designation as it will help ensure the 
protection of the habitat and the species. In addition, clarification 
was given that (a) the vernal pool located on the former Carlsberg 
Ranch is on part of a land parcel (650,000 ac) owned and managed by the 
Santa Monica Nature Conservancy, and (b) Sub-units 1A and 1B include 
portions of land within the Tierra Rejada Greenbelt, an area of land 
with formal agreement by the Cities of Moorpark, Thousand Oaks, Simi 
Valley, and the County of Ventura to be preserved for open space and 
agricultural uses.
    Our Response: This area is included in our final critical habitat 
designation, and we have amended our records to include the ownership 
and land usages information.
    5-2. Comment: A number of requests were made that additional areas 
be included in the critical habitat designation because critical 
habitat provides significant conservation benefits to listed species, 
is an essential tool for species recovery, it mandates higher habitat 
conservation standards not otherwise available to the species, provides 
detailed, practical guidance on locations of areas essential to the 
species' survival, and also carries a very valuable, practical 
educational value. It was also requested that the vernal pools 
identified in Appendices F and G of the Service's Recovery Plan for 
Vernal Pools of Southern California be included because they are 
essential to conservation of the species and in need of special 
management.
    Our Response: The Recovery Plan for the Vernal Pools of Southern 
California (Service 1998), discusses vernal pool complexes and pools, 
their distribution, and known occupancy by federally listed species at 
the time of the plan's publication. Not all vernal pools discussed in 
the plan are known to be occupied by the Riverside fairy shrimp, or 
considered to be essential to the conservation of the Riverside fairy 
shrimp. Only those vernal pool habitats that are essential to the 
conservation of Riverside fairy shrimp were included in the critical 
habitat designation for the Riverside fairy shrimp. Where site-specific 
documentation was submitted to us providing a rationale as to why an 
area should not be designated critical habitat, we evaluated that 
information in accordance with the definition of critical habitat 
pursuant to section 3 of the Act. We made a determination as to whether 
modifications to the proposal were appropriate. We reviewed the maps to 
ensure that only those lands essential for the conservation of the 
Riverside fairy shrimp were designated as critical habitat. We removed 
lands from the final designation that we determined to be non-essential 
to the species' conservation. We also excluded lands, including those 
identified in the Vernal Pool Recovery Plan, that were located within 
an approved HCP, which provides for the conservation of Riverside fairy 
shrimp, and where we determined that the benefits of excluding those 
areas outweighed the benefits of including them, or an INRMP which 
provided a benefit to the species. We included lands in the final 
designation that are essential to the conservation of the species which 
may require special management considerations or protection for the 
Riverside fairy shrimp.
    5-3. Comment: All essential Riverside fairy shrimp habitat within 
MCB Camp Pendleton should be included in the critical habitat 
designation because (a) Service has failed to state how benefits of 
exclusion outweigh benefits of designation, especially in light of the 
Act's exemptions that would allow otherwise incompatible military 
training activities; (b) inclusion will not limit or additionally 
impact military training and readiness at the base; existing 
requirements of uplands consultation at MCB Camp Pendleton will ensure 
the avoidance of adverse impacts to the Riverside fairy shrimp and 
involve section 7 consultations; thus little benefit of exclusion, (c) 
it has the benefit of providing the military with clear, independent 
scientific regulatory guidance on location of critical habitats for the 
Riverside fairy shrimp and other endangered species, and (d) the 
benefits of inclusion outweigh any costs of inclusion.
    Our Response: Please see our responses to Peer Reviewer Comment 2 
and to Comment 4-4 above, and the section below on Relationship of 
Critical Habitat to Department of Defense Lands.
Issue 6--Miscellaneous
    6-1. Comment: The U.S. Navy at the former MCAS El Toro commented 
that the proposed inclusion of the El Toro property as critical habitat 
was based on erroneous property ownership information, as the 
Department of Defense still owns almost 3,800 ac of former MCAS El Toro 
Property. Further, Map Sub-unit 2C included 1000 ac of Navy and Federal 
Aviation Administration owned property, not 1 ac as described in rule.
    Our Response: We have noted these errors and have amended our 
records and this rule.
    6-2. Comment: The Service's citation of its website as an example 
of public education about the Riverside fairy shrimp is inadequate; all 
the available materials about the Riverside fairy shrimp at the website 
are related entirely to critical habitat.
    Our Response: We thank the commenter for their observation, and 
will seek to improve our website with additional educational material 
on the Riverside fairy shrimp.

Comments Related to the Draft Economic Analysis

    1. Comment: One comment requests that the DEA update its land use 
and land ownership information regarding the former MCAS El Toro in 
Orange County. The comment also suggests that the Riverside fairy 
shrimp conservation activities will impose higher costs on facility 
improvements and land transfer projects planned for the former base 
than estimated by the DEA.
    Our Response: The DEA describes the former MCAS El Toro's likely 
future land uses based on the best available public information and 
statements made by knowledgeable individuals in personal interviews. 
Base Realignment and Closure staff estimated that Riverside fairy 
shrimp-related conservation costs for El Toro would be $150,000 over 
the next 20 years based on the assumption that the Service would allow 
historical uses of the site to continue if El Toro instituted a 
particulate monitoring program.
    The comment suggests that if historical uses for the site continue 
and planned improvements to the base uses are implemented, then the 
habitat mitigation costs incurred by MCAS Tustin, a neighboring base 
that was also recently decommissioned, serve as a better estimate of 
costs for El Toro. The Final Economic Analysis (FEA) revises the land 
use and land ownership

[[Page 19170]]

context of the El Toro Sub-unit 2C and accepts the revised cost impact 
of $100 million, noting that El Toro plans to acquire expensive land 
off-site, restore vernal pools, relocate the species to these pools, 
initiate biological monitoring, and provide for project management.
    2. Comment: One commenter stated that the DEA underestimates the 
impact of Riverside fairy shrimp conservation activities on operations 
and planned capital improvements to March ARB in Riverside County.
    Our Response: The DEA estimates impacts of Riverside fairy shrimp 
conservation activities on the former March Air Force Base based on the 
best available public information and statements made by knowledgeable 
individuals in personal interviews. For impacts likely to occur in the 
next 20 years, March Joint Powers Authority staff estimated that 
$500,000 would be required to implement required Riverside fairy shrimp 
conservation while increasing the capacity of drainage facilities 
within which the habitat is located. The drainage facility improvements 
would support real estate development on more than 3,000 acres of the 
former base.
    The comment suggests that ongoing operations at March ARB will also 
need costly modifications to comply with Riverside fairy shrimp-related 
regulations and laws. Based on March ARB's understanding of NEPA, an 
additional $950,000 of environmental studies (at the Environmental 
Impact Statement level) will need to be completed to maintain 
operations of its runway and taxiways. In addition, a California Air 
National Guard heavy equipment unit will require relocation, costing an 
additional $31.5 million. Although the comment references additional 
improvements to the site, including the relocation of California 
Department of Forestry aircraft to March ARB, construction of a 
parallel taxiway on the existing airfield, and installation of 
instrument upgrades as part of the March Inland Port, no information is 
available about the potential for these projects to impact Riverside 
fairy shrimp habitat or the magnitude of Riverside fairy shrimp-related 
project modification, if any.
    The FEA accepts revised total cost impacts of $33.0 million 
resulting from the California Air National Guard unit relocation, the 
incremental Environmental Impact Statement costs, and March Joint 
Powers Authority's drainage improvements.
    3. Comment: A number of commenters stated that the DEA omits 
consideration of Riverside fairy shrimp-related conservation impacts to 
major transportation infrastructure projects in Southern California.
    Our Response: The DEA estimated no impacts of Riverside fairy 
shrimp conservation activities on the proposed extension of the 241 
Toll Road based on the best available public GIS information and 
statements made by knowledgeable individuals in personal interviews. At 
this time, the project has nine alternatives that range from no action 
to two alternative road widening projects (I-5 and local arterials, 
both avoiding construction of the 241 Toll Road itself) to six 
alignment variations for the toll road. The public review, comment, and 
approval process for this project has been and is expected to continue 
be a time-consuming and politically contentious. Given the wide variety 
of regulatory, institutional, and political factors are play, the 
ultimate outcome cannot be predicted at this time.
    The comment suggests that critical habitat Sub-unit 2H has the 
potential to add enormous costs to three of the Far East alignments. 
Additional analysis and interviews with local experts suggest instead 
that Map Sub-units 2F and 2H lie in the path of the Alignment 7/Avenida 
La Pata Variation alternative and the A-7 Far East Crossover, Far East 
(West), and Far East Modified alternatives. While no information is 
publicly available on the surface area of vernal pools likely to be 
disturbed by any of these alignments, there is some probability that 
one of these alignments will be chosen and Riverside fairy shrimp 
conservation measures may be required prior to project construction.
    Given the uncertainty associated with the ultimate outcome, the FEA 
weights each of the nine project alternatives equally and multiplies 
the probability of each (\1/9\ or 11 percent) by an estimated worst 
case cost impact for each alternative. The analysis assumes no impact 
(a $0 economic costs estimate) if the toll road is not built or if the 
construction footprint is located outside of proposed critical habitat. 
For alternatives expected to cross Riverside fairy shrimp habitat, the 
impact is the surface area of all vernal pools in the sub-unit times 
$500,000 per acre as a generalized mitigation cost for transportation 
projects. Based on this revised methodology, the FEA estimates the 241 
Toll Road may incur an additional $43,000 in project modification costs 
based on available vernal pool surface area data for all nine 
alternatives.
    The Service recognizes that the Toll Road alignment ultimately 
constructed, if any, will impact local, and possibly regional, traffic 
flow. Future differences in traffic flows and volumes can, in turn, 
have a variety of indirect economic effects, including opportunity 
costs of labor, efficiency of goods delivery, and growth-inducing 
effects, among other factors. However, given the high degree of 
uncertainty associated with the Toll Road project and the variety of 
factors at play, it is difficult to isolate the unique contribution of 
the Riverside fairy shrimp conservation activities on the final 
outcome. Consequently, the FEA does not estimate potential economic 
impacts associated with potential changes in future transportation 
patterns attributable to the Riverside fairy shrimp conservation 
activities.
    The comment also suggests that no formal analysis was completed on 
Caltrans projects underway or just completed in Southern San Diego 
County. Estimates of project-specific cost impacts based on Caltrans 
interviews for three projects in the Otay Mesa area of San Diego County 
can be found in Chapter V of the Economic Analysis.
    4. Comment: Two comments suggest that real estate assumptions used 
to calculate impacts to private land development activities in one 
Southern Orange County sub-unit are inaccurate. The comments also 
recommend using census tract level data for supply and price effects 
associated with Riverside fairy shrimp conservation activities.

DEA Methods

    Our Response: The DEA relies on DataQuick's transaction-based 2003 
residential market data to characterize real estate prices in all zip 
codes where critical habitat was proposed. In addition, regional 
planning agencies such as the Southern California Association of 
Governments and the San Diego Association of Governments provided the 
DEA with Global Information System (GIS) layers that describe existing 
and planned land uses for areas of proposed critical habitat. 
Biological opinion records from the Service also establish a range for 
the habitat setaside, given variable project footprint and vernal pool 
site geometry. The combination of the three datasets produces an 
estimate of the total value of unimproved land affected by Riverside 
fairy shrimp-related conservation measures such as on-site habitat 
setasides.
    The DEA considers the potential for habitat set-asides to affect 
aggregate housing supply and market prices. The San Diego Association 
of Government's data covering the period of 1990 to 1995 allow for an 
estimate of gross public

[[Page 19171]]

land uses required per 1,000 acres of private development. The 
Construction Industry Research Board supplies information about 
building activity since 1993. From this information, a forecast can be 
made of the Riverside fairy shrimp-related conservation land that is 
taken from residential development as a share of the market's future 
demand for land used to build new housing. The result suggests an 
insignificant or near zero impact on housing market supply and price in 
all ``since listing'' time periods and counties and in all but one 
county during the ``2005-2024'' time period.

Specific Real Estate Assumptions

    Several comments object to the use of a 4.25 percent property 
appreciation rate in the DEA, believing it to be an understatement of 
the true appreciation rate given an anticipated shortage of finished 
lots for new housing in the County. To estimate future appreciation in 
home values, the DEA relies on long-term historical trends which are 
appropriate for the 20-year forecast utilized by the DEA.
    In particular, the DEA relies on the average of a 10-year and a 20-
year trend of repeat sales and refinancing of the same properties in 
California. The price indexing of the same properties over time 
controls for potential changes in housing quality, location and size 
over time. These data were obtained from U.S. Department of Labor, 
Office of Federal Housing Enterprise Oversight. The Service regards 
this source as the most reliable indicator of long-term real estate 
price trends because it is less affected by short-term business cycle 
fluctuations.
    Several comments also state that 2004 housing price data would show 
a significant increase over 2003 data. Although potentially true at the 
County level, different zip codes may have highly varied year to year 
changes in housing prices. Establishing the actual year to year change 
in housing prices at the zip code level would require a purchase of a 
new dataset and matching (using GIS-based weighting) of this data to 
critical habitat land areas. Recalculating the median housing price is 
not possible given the time constraints for preparation of the FEA.
    Finally, the comments posit that returns on real estate investments 
typically fall below the 10 percent level, in contrast to the 
assumption in the DEA of a 25 percent pre-tax return. These assumptions 
are used to determine the value of raw land as a percent of finished 
home price. The DEA bases its calculation on the understanding that the 
development of a finished home may require the actions of several major 
agents who in turn move the land from an agricultural or un-entitled 
basis to an entitled, paper lot basis through to a finished lot and 
finished home, at which point the product is sold to the end user. 
Multiple private entities are likely to have participated in this 
process, each at different levels of risk.
    The comments' preferences for a below-10 percent return on 
investment apply best to higher volume segments of the homebuilding 
industry in which a single entity purchases lots, builds homes, and 
sells them to buyers. The DEA, in contrast, uses a composite risk level 
that includes the greater returns to speculative land purchase and 
entitlement obtained for such property, and bases its calculations on a 
more appropriate composite return of 25 percent.
    5. Comment: One comment requests that the DEA revise the sub-unit 
land use and land ownership descriptions for Southern Orange County 
proposed critical habitat. The comment also states that development of 
one sub-unit is now foreseeable and will be adversely impacted by 
Riverside fairy shrimp-related conservation activities.
    Our Response: The DEA estimated the impacts of Riverside fairy 
shrimp conservation activities for the Radio Tower Road (Sub-unit 2G) 
and other Foothill sub-units based on the best available public 
information and statements made by knowledgeable individuals in 
personal interviews. After the publication of the notice of 
availability of the DEA, the Orange County Board of Supervisors changed 
the designation of the property to Suburban Residential from Open 
Space, and rezoned much of the land for Planned Community instead of 
Agricultural.
    The FEA analyzes impacts from Riverside fairy shrimp-related 
conservation using the same methods established and applied to land use 
data in the DEA. Land that is zoned for development is deemed likely to 
be developed within the next 20 years, given general trends in land use 
for the areas identified as supportive of the Riverside fairy shrimp. 
These areas tend to be generally flat and readily built upon, 
notwithstanding other development considerations such as 
infrastructure, and land ownership. Given this conservative assumption, 
all 753 undeveloped acres of the Radio Tower Road are considered 
impacted by Riverside fairy shrimp-related conservation measures that 
include on-site habitat setasides worth $8 million to $45 million 
dollars in potential land value over the next 20 years.
    The FEA also uses corrected references of this region's habitat 
sub-units to the Ranch Plan, a master planned community covering many 
thousands of acres of the area.
    6. Comment: One comment requests that the land ownership and 
planned uses information for Los Angeles International Airport (LAX) 
from the DEA be revised. The comment also suggests that the impacts to 
LAX from Riverside fairy shrimp-related conservation activities in the 
DEA are grossly understated.
    Our Response: DEA Methods.
    The DEA estimated the impacts of Riverside fairy shrimp 
conservation activities on LAX based on the best available public 
information and statements made by knowledgeable individuals in 
personal interviews. Several individuals contacted for personal 
interviews did not return phone calls during the process of preparing 
the DEA. The agency operating LAX, in recent publications, has 
characterized the airport's daily operations at and major facility 
expansion plans as incompatible with maintenance of Riverside fairy 
shrimp habitat.
    Given LAX's objectives of minimizing the risk of aircraft-bird 
collisions that it believes is higher due to the presence of seasonal 
vernal pools on the airfield, the DEA assumes that Riverside fairy 
shrimp-related conservation measures would include eventual off-site 
mitigation of the entire 1.3 acres of wetted area. Adding monitoring 
and administrative costs to this sub-total, approximately $950,000 in 
impacts are estimated for the airport over the next 20 years.

Impacts of Significant Events

    The comment requests that a full accounting of the cost impact of 
two significant events be attributed to the designation of critical 
habitat on the LAX airfield:
     Property loss and loss of life damages resulting from 
serious aircraft-bird collisions.
     Loss of regional mobility for goods and people given an 
inability of the airport to complete its planned improvements.
    Publicly available literature was searched for references to 
impacts related to catastrophic events involving bird strikes. One 
source estimates that between 1990 and 2004 approximately 732 bird 
strikes have taken place at LAX, inflicting total damages of $17.5 
million. The estimate did not match the damage levels of these 
incidents to birds

[[Page 19172]]

using vernal pool habitat, apart from birds that came into contact with 
aircraft because of other landscape features, natural or human 
constructed. It is not possible, therefore, to easily distinguish 
damage due to Riverside fairy shrimp-related habitat from damage 
related to birds attracted by other habitat or landscape features.
    In addition, these bird strike loss estimates do not include an 
analysis of hardware or other means that would reduce bird attraction 
to ephemeral wetlands on airport land without removal of the wetlands 
as a habitat feature. Current discussions being held between LAX and 
the Service will explore the installation of equipment that allows for 
wetlands to be maintained on the airfield while discouraging avian 
feeding or travel patterns within the habitat.
    Regarding airport operation and expansion plans, the DEA assumes 
that Riverside fairy shrimp conservation activities will have no impact 
on regional transportation mobility. Based on comments received, 
additional research was conducted on the potential relationship between 
LAX's operational capacity and regional economic activity. However, the 
Service was unable to identify any existing studies providing 
quantitative analysis of this relationship. A detailed analysis of the 
impact of LAX on the regional economy and/or the potential for RSF 
conservation activities to affect airport capacity, would require more 
time and effort than can be devoted to this FEA.
    No information about Riverside fairy shrimp habitat disposition 
appears in any Environmental Impact Report/Statement alternative 
besides a loss of a small amount of wetted acreage in Alternative D. A 
consultation has been completed with the Service regarding Alternative 
D of the LAX Master Plan, in which construction activities at LAX would 
require a staging area that will necessitate fill of portions of the 
vernal pools. A second consultation recently began that will address 
LAX operations. As a worst case scenario, the FEA calculates the impact 
of Riverside fairy shrimp conservation as a requirement for LAX to 
mitigate for the entire loss of vernal pool habitat. At $500,000 per 
wetted acre in unit mitigation costs, the sub-total of habitat 
restoration activities for the worst case scenario is estimated at 
$650,000 for LAX.
    The comment also stipulates that the restoration monitoring period 
will last 15 years instead of 5, and that the administrative cost of 
the operations consultation will amount to $180,000. The FEA accepts 
these statements and calculates monitoring impacts at $750,000. 
Administrative costs are listed in the FEA as $400,000 for historical 
(since listing) section 7 compliance regarding the Riverside fairy 
shrimp, and $180,000 for the recently initiated consultation, for a 
total of $580,000 in administrative spending.

FEA References to Documents and Permitting Processes

    The FEA text on LAX's Master Plan and operations has been revised 
based on new information provided in the comment. EIR/EIS documents 
released to the public since the appearance of the first drafts of the 
DEA were reviewed, and the consultation history with the Service was 
updated.

Land Ownership Information

    The DEA cites GIS layers provided by Southern California 
Association of Governments as the basis of existing land uses for 
proposed critical habitat on or near LAX. Table 10 in the DEA notes 
that Southern California Association of Governments data classifies 3 
acres of the proposed habitat sub-unit as private developed, 66 acres 
as public land, and 35 acres as unfeasible to develop due to physical 
constraints. The comment requests that all sub-unit land be recognized 
as airport controlled (public) land. The impacts estimated by the FEA 
would not change based on the different land use classifications 
assigned to the proposed critical habitat by either the Southern 
California Association of Governments or the comment. Hence, the 
Southern California Association of Governments information will remain 
the primary source of land use data.

Comments From States

    Section 4(i) of the Act states ``the Secretary shall submit to the 
State agency a written justification for her failure to adopt 
regulation consistent with the agency's comments or petition.'' 
Comments received from States regarding the proposal to designate 
critical habitat for the Riverside fairy shrimp are addressed below.
    1. State Comment: The California Department of Fish and Game 
requested that the Service avoid any later revisions to the proposed 
critical habitat that would include Department-owned lands.
    Our Response: No lands or areas within the jurisdiction of the 
California Department of Fish and Game were considered within the 
proposed or final critical habitat designation.

Summary of Changes From Proposed Rule

    Based on our review of the public comments received on the proposed 
designation of critical habitat, the economic analysis for the 
Riverside fairy shrimp, and available information, we re-evaluated our 
proposed designation and revised the final critical habitat designation 
for this species as follows.

Areas Removed From Critical Habitat Designation

    We re-evaluated our proposed critical habitat unit boundaries, 
refined our mapping methodology, and used new information to remove 
4,822 ac (1,951 ha) of non-essential habitat within each critical 
habitat map sub-unit (see Table 1 and Methods section below for more 
details).
    In the proposed rule, we identified critical habitat in Sub-units 
1C, 2A, 2B, 3A, and in portions of 5A and 5B. However, we have re-
evaluated these sub-units based on updated information, and determined 
that, due to habitat modifications and ongoing operations and 
maintenance activities, these areas no longer contain one or more of 
the necessary PCE's for the Riverside fairy shrimp to successfully 
complete its life-cycle. We therefore removed the following areas from 
consideration for the final critical habitat designation:
    (1) Cruzan Mesa (Sub-unit 1C). This sub-unit consisted of 
approximately 534 ac (216 ha). We have insufficient documentation 
regarding the occurrence or non-occurrence of the Riverside fairy 
shrimp in the Cruzan Mesa vernal pools, it occurs outside the known 
geographical range of the species, and we were unable to determine 
whether this area is essential to the conservation of this species. We 
therefore removed this sub-unit from our analyses of critical habitat.
    (2) Los Angeles International Airport (LAX; Sub-units 2A, 2B). 
These sub-units consisted of approximately 103 ac (42 ha) in total. As 
a result of the ongoing operations and maintenance activities at LAX, 
these ephemeral wetlands cannot pond long enough for the Riverside 
fairy shrimp to complete its lifecycle. Thus, we have removed both 
proposed sub-units at LAX from critical habitat designation as they do 
not contain this primary constituent elements, and are thus not 
essential for the conservation of the Riverside fairy shrimp.
    (3) March ARB (Sub-unit 3A). This sub-unit consisted of 
approximately 101 ac (41 ha). We have re-evaluated this sub-unit and 
determined to remove it

[[Page 19173]]

from this critical habitat designation as the vernal pool area has been 
modified and no longer contains the primary constituent elements for 
the Riverside fairy shrimp.
    (4) Southwestern and Southeastern Otay Mesa (portions of Sub-units 
5A, 5B). These sub-units consisted of approximately 255 ac (104 ha) in 
total. Portions of these sub-units (totaling 119 ac (48 ha)) lie within 
the footprint of the BIS, which is completed or under construction by 
the DHS for use in their border patrol activities. After evaluation of 
these areas, we determined that the necessary PCE's for the Riverside 
fairy shrimp are absent; these areas have thus been removed from our 
critical habitat analyses. See discussion of Units Excluded Due to 
National Security Under Section 4(b)(2) of the Act below.

Units Exempted Due to INRMPs Under Section 4(a)(3) of the Act

    (1) MCB Camp Pendleton (Sub-units 4A, 4B). The total area of these 
proposed sub-units was approximately 254 ac (103 ha), and contains 
approximately 226 ac (91 ha) of essential habitat in the final rule. In 
the proposed rule, we excluded essential habitat within mission-
critical training areas on MCB Camp Pendleton under section 4(b)(2) of 
the Act. In this final rule, we re-evaluated this exclusion and instead 
have exempted these mission-critical training areas as well as other 
essential habitat areas on MCB Camp Pendleton from critical habitat 
under section 4(a)(3) of the Act (see Application of Section 4(a)(3) to 
MCB Camp Pendleton for a detailed discussion). Thus, no lands owned or 
controlled by MCB Camp Pendleton have been designated as critical 
habitat in this final rule.
    Lands leased to the California Department of Parks and Recreation 
have been excluded under section 4(b)(2) of the Act (see Units Excluded 
Due to National Security Under Section 4(b)(2) of the Act).
    (2) MCAS Miramar. We reaffirm our exemption of MCAS Miramar under 
section 4(a)(3) of the Act.

Units Excluded Due to National Security Under Section 4(b)(2) of the 
Act

    (2) March ARB (Sub-unit 3B). This sub-unit consisted of 
approximately 44 ac (18 ha) of essential habitat. See Application of 
Section 4(b)(2) National Security to March Air Reserve Base (March ARB) 
for a detailed discussion. Thus, no lands owned or controlled by March 
ARB have been designated as critical habitat in this final rule.
    (3) Department of Homeland Security (DHS; Sub-unit 5B). We have 
excluded approximately 147 ac (59 ha) of essential habitat within DHS-
owned lands along the U.S--Mexico border (see Application of Section 
4(b)(2) to Department of Homeland Security lands for a detailed 
discussion). Thus, no lands owned by the DHS have been designated as 
critical habitat.
    (1) Lands near Christianitos Creek (Sub-unit 2H). This sub-unit 
consisted of approximately 47 (19 ha) of essential habitat on lands 
MCAS Camp Pendleton leased to the California Department of Parks and 
Recreation. We have excluded this sub-unit (see Application of Section 
4(b)(2) National Security to MCAS Camp Pendleton for a detailed 
discussion.

Exclusions Due to Economic Impacts Under Section 4(b)(2) of the Act

    In the proposed rule, we identified vernal pools in 6 sub-units for 
which we proposed critical habitat. In this final rule, we have 
conducted benefits analyses and under section 4(b)(2) of the Act and 
have determined not to designate critical habitat in these sub-units 
for economic impacts. By excluding these 6 units, some or all of the 
costs associated with a critical habitat designation in those areas 
will be avoided. This regards the following sub-units:
    (1) Former MCAS El Toro (Sub-unit 2C). The proposed area of this 
sub-unit was approximately 133 ac (54 ha), and contains approximately 
14 ac (6 ha) of essential habitat in the final rule. We have excluded 
all of this sub-unit (see Application of Section 4(b)(2) Economic 
Exclusion to lands on Former MCAS El Toro (Sub-unit 2C) below for a 
detailed discussion).
    (2) Saddleback Meadows (northern portion of Sub-unit 2D). In the 
proposed rule, Sub-unit 2D consisted of approximately 736 ac (298 ha). 
We have excluded approximately 57 ac (23 ha) of essential habitat in 
the northern portion of sub-unit 2D that occurs within private lands 
owned by Saddleback Meadows Residential Development Project and other 
private landowners. See Application of Section 4(b)(2) Economic 
Exclusion to Saddleback Meadows (portion of Sub-unit 2D) below for a 
detailed discussion.
    (3) Tijeras Creek (Sub-unit 2E). The proposed area of this sub-unit 
was approximately 321 ac (130 ha), and contains approximately 101 ac 
(41 ha) of essential habitat in the final rule. We have excluded all of 
this sub-unit (see Application of Section 4(b)(2) Economic Exclusion to 
lands near Tijeras Creek (Sub-unit 2E) below for a detailed 
discussion).
    (4) Chiquita Ridge (Sub-unit 2F). The proposed area of this sub-
unit was approximately 489 ac (198 ha), and contains approximately 263 
ac (106 ha) of essential habitat in the final rule. We have excluded 
all of this sub-unit (see Application of Section 4(b)(2) Economic 
Exclusion to lands on Chiquita Ridge (Sub-unit 2F) below for a detailed 
discussion).
    (5) Radio Tower Road (Sub-unit 2G). The proposed area of this sub-
unit was approximately 736 ac (298 ha), and contains approximately 417 
ac (169 ha) of essential habitat in the final rule. We have excluded 
all of this sub-unit (see Application of Section 4(b)(2) Economic 
Exclusion to lands near Radio Tower Road (Sub-unit 2G) below for a 
detailed discussion).
    (6) Southeastern Otay Mesa (Sub-unit 5C). The proposed area of this 
sub-unit was approximately 866 ac (350 ha), and contains approximately 
111 ac (45 ha) of essential habitat in the final rule. We have excluded 
all of this sub-unit (see Application of Section 4(b)(2) Economic 
Exclusion to Southeastern Otay Mesa (Sub-unit 5C) below for a detailed 
discussion).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have

[[Page 19174]]

features that are ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Specific areas within the geographic area occupied by the species 
may be included in critical habitat only if the essential features 
thereon may require special management or protection. Thus, we do not 
include areas where existing management is sufficient to conserve the 
species. (As discussed below, such areas may also be excluded from 
critical habitat pursuant to section 4(b)(2).)
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographical area presently occupied 
by a species only when a designation limited to its present range would 
be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific and commercial data available. They require Service 
biologists to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas constitute 
critical habitat, a primary source of information is generally the 
listing documents for the species. Additional information sources 
include the recovery plan for the species, articles in peer-reviewed 
journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge. All 
information is used in accordance with the provisions of section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub.L. 106-554; H.R. 5658) and the associated Information Quality 
Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(2) of the Act and regulations at 50 CFR 
424.12, we are to use the best scientific and commercial data available 
to determine areas that contain the physical and biological features 
that are essential to the conservation of the Riverside fairy shrimp. 
We have reviewed available information that pertains to the habitat 
requirements of this species. To accomplish this, we utilized data and 
information contained in, but not limited to, the final rule listing 
the Riverside fairy shrimp (58 FR 41384, the prior proposed and final 
rules designating critical habitat for the Riverside fairy shrimp (69 
FR 23024, 65 FR 57136, 66 FR 29384), the proposed rule to designate 
critical habitat for the San Diego fairy shrimp (68 FR 19888), the 
Vernal Pools of Southern California Final Recovery Plan (Recovery Plan; 
Service 1998), research and survey observations published in peer-
reviewed scientific journals, maps from the regional Geographic 
Information System (GIS) database with vegetation and species coverages 
(including vegetation layers for Orange and San Diego counties), the 
California Natural Diversity Database (CNDDB), the California Vernal 
Pool Assessment Preliminary Report (Keeler-Wolf et al. 1998), vernal 
pool mapping and other data collected for the development of HCPs, 
reports submitted by biologists holding section 10(a)(1)(A) recovery 
permits, biological assessments provided to us through section 7 
consultations, reports from site investigations on MCB Camp Pendleton 
and MCAS Miramar, site visit reports by staff biologists, reports and 
documents on file in the Service's field offices, and communications 
with experts outside the Service who have extensive knowledge of vernal 
pool species and habitats. In addition, we used information contained 
in comments received by May 27, 2004 which were submitted on the 
proposed critical habitat designation (69 FR 23024) and comments 
received by November 18, 2004 submitted on the draft economic analysis 
(69 FR 61461).
    Based on a compilation of information listed above on the known 
occurrences of Riverside fairy shrimp, we created maps indicating the 
habitat associated with each of the occurrences. The habitat units were 
delineated using ArcView (Environmental Systems Research Institute, 
Inc.), a computer GIS program to evaluate GIS data derived from a 
variety of Federal, State, and local agencies, and from private 
organizations and individuals. Data layers included current and 
historic species occurrence locations (CNDDB 2002); we presumed 
occurrences identified in the database to be extant unless there was 
affirmative documentation that an occurrence had been extirpated. We 
also relied on unpublished species occurrence data contained within our 
files, including section 10(a)(1)(A) reports and biological 
assessments.
    We then evaluated the areas defined by the overlap of the combined 
coverages (data layers) to initially focus on those areas which provide 
those physical and biological features essential to the conservation of 
the Riverside fairy shrimp; i.e., we identified and mapped vernal pool 
basins and ephemeral wetlands supporting the Riverside fairy shrimp 
that contained the primary constituent elements for the species. The 
areas were further refined by using satellite imagery, aerial map 
coverages,

[[Page 19175]]

elevational modeling data, vegetation/land cover data, and 
agricultural/urban land use data to eliminate areas that contained 
features such as cultivated agriculture fields, housing developments, 
and other areas that are unlikely to contribute to the conservation of 
the Riverside fairy shrimp.
    Next, the upslope areas, located immediately surrounding the vernal 
pool basins and ephemeral wetlands, areas that also contained the 
primary constituent elements for the Riverside fairy shrimp were mapped 
based on topographic features such as ridges, mima mounds, and 
elevational gradients or slopes. The boundaries for these areas were 
further refined and delineated by mapping those areas that sloped 
toward the pools, from highest point to highest point in the immediate 
surrounding upland areas, following the map's topographic elevational 
gradient around the high points (peaks), to the sides and the lowest 
part of the basin that encompassed the complex of vernal pools, keeping 
within the boundaries of the previously proposed critical habitat. 
Those areas that the topographic maps showed sloped steeply away from 
the pools, or that were developed or altered, such that necessary PCEs 
(i.e., water, soil, minerals) could not be transported toward the 
vernal pools over such areas, were left outside the refined 
delineation. This method was used for vernal pools in both basin and 
mesa-type topographic settings.
    The combined extent of these mapped areas was defined as the 
habitat essential to the survival and recovery of the Riverside fairy 
shrimp. Whenever possible, areas not containing the primary constituent 
elements, such as developed areas or open water, were not included as 
essential habitat. To aid us in this elimination, we used a finer 
mapping unit of 100 x 100 m. After creating GIS coverage of the 
essential areas, we described the boundaries of the essential areas 
using a 100 m grid to establish Universal Transverse Mercator (UTM) 
North American Datum 27 (NAD 27). The areas were then analyzed with 
respect to sections 4(a)(3), and 4(b)(2) of the Act, and any applicable 
and appropriate exclusions were made.
    We eliminated areas because: (1) The area is highly degraded and 
may not be restorable or, (2) the area is small, highly fragmented, or 
isolated, and may provide little or no long-term conservation value. We 
also exempted areas under section 4(a)(3) and excluded areas under 
section 4(b)(2) of the Act for military, economic or other reasons 
where we concluded that such exclusions will not result in the 
extinction of the Riverside fairy shrimp (see Exclusion of Critical 
Habitat Under Sections 4(a)(3), 3(5)(A) and 4(b)(2) of the Act below). 
The specific modifications are described in the Summary of Changes from 
the Proposed Rule section of this rule. The remaining essential areas 
are the final designation of critical habitat, presented as four 
geographically distinct habitat units. The essential areas, an 
elaboration on exclusions, and the specific areas designated as 
critical habitat are described below.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements (PCEs)) 
that are essential to the conservation of the species, and that may 
require special management considerations and protection. These 
include, but are not limited to: Space for individual and population 
growth and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, and rearing (or development) of 
offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    Based on our current knowledge of the life history and ecology of 
the Riverside fairy shrimp, the requirements of the habitat to sustain 
the essential life history functions of the species, and the ecological 
and hydrologic functions of vernal pool complexes, as summarized above 
in the Background section, we have determined that the Riverside fairy 
shrimp has several primary constituent elements, or PCEs. Its two most 
significant PCEs are: (1) Vernal pools, swales, and other ephemeral 
wetland features of appropriate sizes and depths that typically become 
inundated during winter rains and hold water for sufficient lengths of 
time necessary for the Riverside fairy shrimp to complete their life 
cycle; and (2) the geographic, topographic, and edaphic features that 
support aggregations or systems of hydrologically interconnected pools, 
swales, and other ephemeral wetlands and depressions within a matrix of 
immediately surrounding upslope areas that together form hydrologically 
and ecologically functional units called vernal pool complexes. These 
features contribute to the filling and drying of the vernal pool, 
maintain suitable periods of pool inundation, and maintain water and 
nutrient quality and soil moisture to enable the Riverside fairy shrimp 
to carry out their lifecycle.

1. Primary Constituent Element: Vernal Pools, Swales, Other Ephemeral 
Wetland Features

    Vernal pools provide for space, physiological requirements, 
shelter, and reproduction sites for the Riverside fairy shrimp. Vernal 
pools provide the necessary soil moisture and aquatic environment 
required for cyst hatching, growth, maturation, reproduction, and 
dispersal, and the appropriate periods of dry-down for seed and cyst 
dormancy, as well as for seed germination of plant species found in the 
pool that contribute organic matter and dissolved gasses to the water. 
Both the wet and dry phases of the vernal pool help to reduce 
competition with strictly terrestrial or strictly aquatic plant or 
animal species. The wet phase provides the necessary cues for hatching, 
germination, and growth, while the drying phase allows the vernal pool 
plants to flower and produce seeds and the vernal pool crustaceans to 
mature and produce cysts. We conclude this element is essential to the 
conservation of the Riverside fairy shrimp because this species is 
ecologically dependent on seasonal fluctuations, such as absence or 
presence of water during specific times of the year, and duration of 
inundation and the rate of drying of their habitats. The Riverside 
fairy shrimp cannot persist in perennial wetlands or wetlands that are 
inundated for the majority of the year, nor can they persist without 
periodic seasonal inundation.
    Vernal pools and other ephemeral wetlands provide space during 
their wetted periods for individual and population growth and normal 
behavior of vernal pool species by providing still, freshwater habitat 
of appropriate depth, duration, temperature, and chemical 
characteristics for juvenile and adult vernal pool crustaceans to 
hatch, swim, grow, reproduce and behave normally. Vernal pools and 
other ephemeral wetlands also provide soil space during both dry and 
wetted periods for the maintenance of dormant cyst and seed banks, 
which allow populations of vernal pool species to maintain themselves 
throughout the unpredictable and highly variable environmental 
conditions experienced by their active, non-dormant life history 
stages. Vernal pools and other ephemeral wetlands also provide various 
physiological requirements for both vernal pool plants and crustaceans.

[[Page 19176]]

For crustaceans they provide water, oxygen, and food such as plankton, 
detritus, and rotifers. By drying seasonally, ephemeral wetlands 
provide cover or shelter from many aquatic predators and competitors. 
Similarly, by undergoing seasonal inundation, these areas provide 
shelter for vernal pool species from invading species which would 
otherwise out-compete them for space, light, water, or nutrients. 
Finally, vernal pool crustaceans require wetted ephemeral wetlands in 
which to mate, and both vernal pool crustaceans and vernal pool plants 
deposit cysts or eggs in these wetland areas, which must then dry to 
allow hatching or germination. Wetted ephemeral wetlands may also tend 
to attract waterfowl, which act as important seed and cyst dispersers 
(Proctor 1965; Silveira 1998).

2. Primary Constituent Element: Geographic, Topographic, and Edaphic 
Features That Support Aggregations of Hydrologically Interconnected 
Pools, Swales, and Other Ephemeral Wetlands

    The second PCE (the entire vernal pool complex, including the 
pools, swales, and associated upslope areas) is essential to maintain 
both the aquatic phase and the drying phase of the vernal pool habitat. 
Although the Riverside fairy shrimp does not occur in the strictly 
upslope areas surrounding vernal pools, they are critically dependent 
on these upland areas to maintain the seasonal cycle of ponding and 
drying in the ephemeral wetland areas. The hatching of cysts (and the 
germination of vernal pool plants) is dependent on the timing and 
length of inundation of the vernal pool habitat. The rate of vernal 
pool drying, which greatly influences the water chemistry, in turn 
directly affecting the life cycle of the Riverside fairy shrimp, is 
also largely controlled by interactions between the vernal pool and the 
surrounding uplands (Hanes et al. 1990; Hanes and Stromberg 1998). Soil 
morphology at the pool basin and on the upslope areas provides the pool 
with an impermeable surface or subsurface layer, accumulation of 
organic matter, and a unique assemblage of nutrient availability; in 
fact, biotic and reduction-oxidation (redox) interactions in the soil 
control the turnover of nutrients in the pool (Hobson and Dahlgren 
1998). Thus, the biogeochemical environment strongly influences 
hydrologic properties and play a critical role in nutrient cycling in 
vernal pool ecosystems (Hobson and Dahlgren 1998). Additionally, 
upslope areas provide an important (and often primary) source of 
detritus, which is a major food source for vernal pool crustaceans and 
nutrient source for vernal pool plants. Certain upland and swale areas 
may also provide for population growth by channeling flood waters from 
overflowing ephemeral wetland areas so that seeds, cysts, or adult 
individuals are washed from one such wetland to another. The upslope 
areas provide habitat for avian species and other animals known to aide 
in the dispersal of vernal pool species (Zedler and Black 1992; 
Silveira 1998). The surrounding upslope and swale areas also provide 
habitat for pollinator species that may be specifically adapted to some 
of the vernal pool plant species (Thorp 1998; Eriksen and Belk 1999), 
as well as habitat for waterfowl, amphibians, mammals, or insects, all 
of which are important for dispersal of cysts (and seeds, pollen of 
vernal pool flora).
    The upslope areas immediately surrounding vernal pools are 
therefore essential for providing the same physical and biological 
factors as are provided by the vernal pools or ephemeral wetland areas. 
We have used vernal pool complexes as the basis for determining 
populations of vernal pool crustaceans since the species were first 
proposed for listing. The genetic characteristics of fairy shrimp, as 
well as ecological conditions, such as watershed contiguity, indicate 
that populations of these animals are defined by pool complexes rather 
than by individual vernal pools (cf. Fugate 1992, 1998; King 1996). 
Therefore, the most accurate indication of the distribution and 
abundance of the Riverside fairy shrimp is the number of inhabited 
vernal pool complexes. Individual vernal pools occupied by the 
Riverside fairy shrimp are most appropriately referred to as ``sub-
populations'' (59 FR 48136).
    Our use of vernal pool complexes to define populations of the four 
listed crustaceans was upheld by the U.S. District Court in post-
listing challenge to the listing (Building Industry Association of 
Superior California et al. v. Babbitt et al., CIV 95-0726 PLF). The 
July 25, 1997, court decision stated that the plaintiffs were on notice 
that the Service would consider vernal pool complexes as a basis for 
determining fairy shrimp populations. The court also concluded that the 
use of this methodology was neither arbitrary nor capricious. The Court 
of Appeals for the D.C. Circuit upheld the district court's decision, 
and the Supreme Court has declined to hear the case. Each of the 
critical habitat units likely includes some areas that are unoccupied 
by the vernal pool crustaceans. ``Unoccupied'' is defined here as an 
area that contains no hatched vernal pool crustaceans, and that is 
unlikely to contain a viable cyst or seed bank. Determining the 
specific areas that the vernal pool crustaceans occupy is difficult 
(see Background). Depending on climatic factors and other natural 
variations in habitat conditions, the size of the localized area in 
which hatched crustaceans appear may fluctuate dramatically from one 
year to another. In some years, individuals may be observed throughout 
a large area, and in other years they may be observed in a smaller area 
or not at all. Because it is logistically difficult to determine how 
extensive the cyst or seed bank is at any particular site, and because 
hatched Riverside fairy shrimp may or may not be present in all vernal 
pools within a site every year, we cannot quantify in any meaningful 
way what proportion of each critical habitat unit may actually be 
occupied by the vernal pool crustaceans. Therefore, small areas of 
currently unoccupied habitat are probably interspersed with areas of 
occupied habitat in each unit. The inclusion of unoccupied habitat in 
our critical habitat units reflects the dynamic nature of the habitat 
and the life history characteristics of the Riverside fairy shrimp. 
Unoccupied areas provide areas into which populations might expand, 
provide connectivity or linkage between groups of organisms within a 
unit, and support populations of vernal pool plant pollinators and cyst 
dispersal organisms. Both occupied and unoccupied areas that are 
designated as critical habitat are essential to the conservation of the 
Riverside fairy shrimp. All of the above described PCEs do not have to 
occur simultaneously within a unit for that unit to constitute critical 
habitat for the Riverside fairy shrimp.

3. Water Chemistry and Physiological Requirements

    Temperature, water chemistry, and length of time vernal pools are 
inundated with water are important factors that effect and potentially 
limit the distribution of the Riverside fairy shrimp. The water in the 
pools that support Riverside fairy shrimp typically is dilute with (1) 
low to moderate total dissolved solids (mean 77 milligrams per liter 
(mg/l) or parts per million (ppm)), (2) low to moderate salinity, (3) 
low levels of alkalinity (mean 65 mg/l), and (4) water pH at neutral or 
just below (6.4-7.1; Eng et al. 1990; Gonzalez et al. 1996; Eriksen and 
Belk 1999). Riverside fairy shrimp can tightly regulate their internal 
body chemistry in pool environments with varying salinity and 
alkalinity (Gonzalez et al. 1996). In a

[[Page 19177]]

laboratory experiment, Riverside fairy shrimp could maintain their 
internal levels of salt concentration (Na+) fairly constant 
over a wide range of external concentrations (0.5-60 mmol/l\3\), but 
they were sensitive to the extremes, with 100 percent mortality 
occurring at 100 mmol/l\3\ (2,300 mg/l\3\; Gonzalez et al. 1996). 
Although the species could maintain their internal levels of salt 
concentration fairly constant over a wide range of external 
concentrations (0.5-60 mmol/l\3\), Riverside fairy shrimp could not 
survive in laboratory environments where external alkalinity was higher 
than 800 to 1,000 mg/l HCO-3.
    The Riverside fairy shrimp is found in water temperatures ranging 
between 50 and 77 degrees F (10 and 25 degrees C; Hathaway and Simovich 
1996). Importantly, studies show that the Riverside fairy shrimp is 
sensitive to water temperature (Hathaway and Simovich 1996). After pool 
inundation, hatching occurred significantly more rapidly (mean 7 days) 
when the temperature was cooler and fluctuated within a range of 41-77 
degrees F (5-25 degrees C), and most slowly (mean 25 days) with steady 
warm temperature of 77 degrees F (25 degrees C). Furthermore, at cooler 
fluctuating temperatures (41-59 degrees F (5-15 degrees C)), the 
highest proportion of cysts hatched, over 15 percent, while fewest 
cysts hatched (1-3 percent) at a steady higher temperature of 77 
degrees F (25 degrees C). In fact, the proportion of cysts hatching 
after exposure to a (5-15 C) fluctuating temperature range regime far 
exceeded that reached at steady temperature, with cysts exposed to any 
steady temperature above 50 (10 degrees C) showing almost no hatching 
success (Hathaway and Simovich 1996). Water within pools supporting 
fairy shrimp may be clear, but more commonly it is moderately turbid 
(Eriksen and Belk 1999).

4. Sites for Breeding, Reproduction and Rearing of Offspring

    The Riverside fairy shrimp is restricted to a small sub-set of 
long-lasting vernal pools and ephemeral wetlands in southern California 
because this animal takes approximately two months to mature and 
reproduce (Hathaway and Simovich 1996). In contrast, the San Diego 
fairy shrimp, another federally endangered fairy shrimp species found 
in southern California, can mature and reproduce in less than one 
month. Most vernal pools in southern California do not pool for a 
sufficient amount of time to support the Riverside fairy shrimp. Pools 
that contain Riverside fairy shrimp usually accumulate water to a depth 
greater than 10 in (25 cm) and some pools that support this species 
fill to a depth of 5 to 10 ft (1.5-3 m). In the years that Riverside 
fairy shrimp successfully reproduce, pools fill for 2 to 3 months and 
some pools have been reported to remain filled for up to 7 months. 
Riverside fairy shrimp can survive as cysts for multiple years; 
therefore, it is not necessary for ideal conditions to exist every year 
for this species to persist.

5. Disturbance, Protection, and the Historical Geographical 
Distributions

    The majority of sites currently supporting the Riverside fairy 
shrimp have experienced disturbance, some more recently than others and 
some to a greater extent than others. The pools that support Riverside 
fairy shrimp are generally found in flat or moderately sloping areas. 
Many of the pools are on gently sloping areas near the coast, and in 
grassland habitats. These areas, located in a region of current 
explosive urban expansion, are easily assessable and amenable to 
construction. Thus a major factor contributing to the decline of vernal 
pool species, including the Riverside fairy shrimp, is mortality and 
habitat elimination through human construction and development of 
vernal pool areas for a wide variety of purposes. Additionally, vernal 
pool areas have been vulnerable to agriculture, cattle grazing, and 
off-road vehicle activities. Many of the pools that currently support 
Riverside fairy shrimp have been artificially deepened in the past by 
ranchers to provide water for stock animals (Hathaway and Simovich 
1996). This species has only been studied since the late 1980s; 
therefore, the extent of its historical distribution is not well 
understood. Current estimates suggest that 90 to 97 percent of vernal 
pool habitat has been lost in southern California (Mattoni and Longcore 
1997; Bauder and McMillan 1998; Keeler-Wolf et al. 1998; Service 1998). 
The conservation of the few remaining occurrences of Riverside fairy 
shrimp is essential for its conservation (Service 1998).

6. Summary of PCEs Essential to the Conservation of the Riverside Fairy 
Shrimp

    Pursuant to our regulations, we are required to identify the known 
physical and biological features, i.e., primary constituent elements, 
essential to the conservation of the Riverside fairy shrimp, together 
with a description of any critical habitat that is proposed. In 
identifying the primary constituent elements, we used the best 
available scientific and commercial data available. The three main 
primary constituent elements determined essential to the conservation 
of Riverside fairy shrimp must have the following characteristics.
    A. The first PCE, small to large pools or pool complexes, must have 
the appropriate size and volume, local climate, topography, water 
temperature, water chemistry, soil conditions, and length of time of 
inundation with water necessary for Riverside fairy shrimp incubation 
and reproduction, as well as dry periods necessary to provide the 
conditions to maintain a dormant and viable cyst bank. Specifically, 
the vernal pool conditions necessary to allow for successful 
reproduction of Riverside fairy shrimp fall within the following 
ranges:
    i. Moderate to deep depths ranging from 10 in (25 cm) to 5-10 ft 
(1.5-3 m),
    ii. Ponding inundation lasting for a minimum length of 2 months up 
to 5-8 months or more, i.e., a sufficient wet period in winter and 
spring months to allow the Riverside fairy shrimp to hatch, mature, and 
reproduce, followed by a dry period prior to the next winter and spring 
rains,
    iii. Water temperature that falls within the range of 41 and 77 
degrees F (5 and 25 degrees C),
    iv. Water chemistry with low total dissolved solids and alkalinity 
(means of 77 and 65 parts per million, respectively), and
    v. Water pH within a range of 6.4-7.1.
    B. The second PCE, the immediately surrounding upslope areas, must 
provide:
    i. Hydrologic flow to fill the pools and maintain the seasonal 
cycle of ponding and drying, at the appropriate rates,
    ii. A source of detritus and nutrients,
    iii. A source of soil and mineral transport to maintain the 
appropriate water chemistry and impermeability of the pool basin, and
    iv. Habitat for animals that act as dispersers of cysts and vernal 
pool plant seeds or pollen.
    The size of the immediately surrounding upslope areas varies 
greatly and cannot be generalized and has been assessed for each sub-
unit. Factors that affect the size of the surrounding upslope area 
include surface and underground hydrology, the topography of the area 
surrounding the pool or pools, the vegetative coverage, and the soil 
substrate in the area. Watershed sizes designated vary from a few acres 
to greater than 100 ac (40 ha).
    C. The third PCE, the soils in the summit, rim and basin geomorphic 
positions, must have a clay component and/or an impermeable surface or

[[Page 19178]]

subsurface layer, and must provide a unique assemblage of available 
nutrients and redox conditions known to support vernal pool habitat. 
The biogeochemical environment strongly influences hydrologic 
properties and play a critical role in nutrient cycling in vernal pool 
ecosystems (Hobson and Dahlgren 1998).

Criteria Used To Identify Critical Habitat

    Based on the best scientific information available, we are 
designating as critical habitat lands that are essential to the 
conservation of the Riverside fairy shrimp and contain the PCEs 
identified above and require special management considerations or 
protection. Both individual vernal pools and vernal pool complexes are 
essential for conservation of the Riverside fairy shrimp because of the 
limited numbers of remaining vernal pools and their highly localized 
distribution (cf. Gilpin and Soule 1986; Lesica and Allendorf 1995; 
Lande 1999).
    Areas essential to the conservation of the species are those that 
are necessary to advance at least one of the following conservation 
criteria: (1) The conservation of areas representative of the 
geographic distribution of the species. Species that are protected 
across their ranges have lower chances of extinction (Soule and 
Simberloff 1986; Murphy et al. 1990; Primack 1993; Given 1994; Hunter 
1996; Pavlik 1996; Noss et al. 1999; Grosberg 2002). Maintenance of 
representative occurrences of the species throughout its geographic 
range helps ensure the conservation of regional adaptive differences 
and makes the species less susceptible to environmental variation or 
negative impacts associated with human disturbances or natural 
catastrophic events across the species' entire range at any one time 
(Primack 1993; New 1995; Hunter 1996; Helm 1998; Redford and Richter 
1999; Rossum et al. 2001; Grosberg 2002). Additionally, the 
conservation of the geographic distribution of the species is one of 
the physical and biological features we are required to consider under 
our regulations (50 CFR 424.13(b)). Accordingly, we considered the 
number of occupied areas in each vernal pool region, and determined 
whether each occupied area is essential to the conservation of the 
species in the region or as a whole.
    (2) The conservation of areas representative of the ecological 
distribution of the Riverside fairy shrimp. Each of the critical 
habitat units is associated with various combinations of soil types, 
vernal pool chemistry, geomorphic surfaces (landforms), and vegetation 
community associations. Maintaining the full range of varying habitat 
types and characteristics for a species is essential because it would 
encompass the full extent of the physical and environmental conditions 
necessary for the species (Zedler and Ebert 1979; Ikeda and Schlising 
1990; Fugate 1992; Gonzales et al. 1996; Fugate 1998; Platenkamp 1998; 
Bainbridge 2002; Noss et al. 2002a). Vernal pool species are extremely 
adapted to the physical and chemical characteristics of the habitat in 
which they occur. Additionally, the conservation of the ecological 
distribution of the species is one of the physical and biological 
features we are required to consider under our regulations 50 CFR 
424.13(b), and was also strongly endorsed by several peer reviewers 
(see Peer Review section). Accordingly, we considered the extent to 
which habitat types occupied by the species could be conserved in light 
of the number of occupied areas and the threats involved.
    (3) The conservation of areas necessary to allow movement of cysts 
between areas representative of the geographic and ecological 
distribution of the species. As a result of dispersal events within and 
between vernal pool complexes, and environmental conditions that may 
prevent the emergence of dormant cysts for up to several decades, the 
presence of vernal pool species is dynamic in both space and time 
(Eriksen and Belk 1999; Noss et al. 2002a). We therefore determined 
that essential habitat for the Riverside fairy shrimp must provide for 
movement within and between vernal pool complexes to provide for the 
varying nature and expression of the species, and also allow for gene 
flow and dispersal and habitat availability that accommodate natural 
processes of local extirpation and colonization over time (Stacey and 
Taper 1992; Falk et al. 1996; Davies et al. 1997; Husband and Barrett 
1998; Holt and Keitt 2000; Keymer et al. 2000; Donaldson et al. 2002).
    We therefore selected vernal pool complexes occupied by the 
Riverside fairy shrimp in a distribution sufficient to ensure the known 
geographic range, geographical isolation, and likely genetic diversity 
of the species. Map Unit 1 represents the northern extreme of the 
distribution and Map Unit 4 represents the southern extreme of the 
distribution. Each of these isolated occurrences is greater than 10 mi 
(16 km) from other known Riverside fairy shrimp locations. We also 
selected vernal pools occupied by Riverside fairy shrimp to ensure that 
the density and localized distribution of vernal pools occurs within a 
variety of different habitat types. Map Unit 2 represents the last 
known vernal pools in Orange County, and they are within 5 mi (8 km) of 
each other and include pool habitats not associated with mima mound 
vernal pools complexes.
    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed species incidental to otherwise lawful activities. 
An incidental take permit application must be supported by a habitat 
conservation plan (HCP) that identifies conservation measures that the 
permittee agrees to implement for the species to minimize and mitigate 
the impacts of the requested incidental take. We often exclude non-
Federal public lands and private lands that are covered by an existing 
operative HCP and executed implementation agreement under section 
10(a)(1)(B) of the Act from designated critical habitat because the 
benefits of exclusion outweigh the benefits of inclusion as discussed 
in section 4(b)(2) of the Act.
    When defining critical habitat boundaries, we made every effort to 
exclude all developed areas, such as buildings, paved areas, and other 
lands unlikely to contain primary constituent elements essential for 
the Riverside fairy shrimp conservation. Any such structures remaining 
inside of final critical habitat boundaries are not considered part of 
the units. This also applies to the lands directly on which such 
structures lie. A brief discussion of each area designated as critical 
habitat is provided in the unit descriptions below. Additional detailed 
documentation concerning the essential nature of these areas is 
contained in our supporting record for this rulemaking.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be essential for conservation may require special 
management considerations or protections. As we undertake the process 
of designating critical habitat for a species, we first evaluate lands 
defined by those physical and biological features essential to the 
conservation of the species for inclusion in the designation pursuant 
to section 3(5)(A) of the Act. Secondly, we evaluate lands defined by 
those features to assess whether they may require special management 
considerations or protection.
    The areas designated as critical habitat in this final rule face 
ongoing threats that will require special

[[Page 19179]]

management considerations or protection. These threats are common to 
all of the areas designated as critical habitat. The threats that 
require special management considerations or protection are vernal pool 
elimination due to destruction and development, alterations made to the 
hydrologic or soil regime of the vernal pools and their associated 
upslope areas; disturbance to the claypan and hardpan soils within the 
vernal pools, disturbance or destruction of the vernal pool flora; and 
the invasion of exotic plant and animal species into the vernal pool 
basin. Habitat loss continues to be the greatest direct threat to 
Riverside fairy shrimp.
    Changes in hydrology which affect the Riverside fairy shrimp's 
primary constituent elements are caused by activities that alter the 
surrounding topography or change historical water flow patterns in the 
watershed. Even slight alterations of the hydrology can change the 
depth, volume and duration of ponding inundation, water temperature, 
soil, mineral and organic matter transport to the pool and thus its 
water quality and chemistry, which in turn can make these primary 
constituent elements unsuitable for Riverside fairy shrimp. Activities 
that impact the hydrology include but are not limited to road building, 
grading and earth moving, impounding natural water flows, and draining 
of the pool(s) or of their immediately surrounding upslope areas. 
Impacts to the hydrology of vernal pools can be managed through 
avoidance of such activities in and around the pools and the associated 
surrounding upslope areas.
    Disturbance to the impermeable layer of claypan and hardpan soils 
within vernal pools occupied by the Riverside fairy shrimp may alter 
the depth, ponding inundation, water temperature, and water chemistry. 
Physical disturbances to claypan and hardpan soils may be caused by 
excavation of borrow material, off-road vehicles, military training 
activities, agricultural disking, drilling, or creation of berms that 
obstruct the natural hydrological surface or sub-surface flow of water 
run-off and precipitation. These impacts can be reduced by avoidance of 
vernal pools.
    Invasive plant and animal species may alter the ponding inundation 
and water temperature by changing the evaporation rate and shading of 
standing water in vernal pools. Invasive plant species, such as brass-
buttons (Cotula coronopifolia) and Pacific bentgrass (Agrostis 
avenaceae), compete with native vernal plant species and may alter the 
primary constituent elements in these vernal pools. Invasive plants 
need to be removed and managed to maintain the primary constituent 
elements needed by the Riverside fairy shrimp in a manner consistent 
with the conservation of native vernal pool plants.

Critical Habitat Designation

    We are designating four units (5 sub-units) as critical habitat for 
the Riverside fairy shrimp. The critical habitat areas described below 
constitute our best assessment at this time of the areas essential for 
the conservation and provide one or more of the primary constituent 
elements essential to the species of the Riverside fairy shrimp, and 
that may require special management. The four map units designated as 
critical habitat include Riverside fairy shrimp habitat within the 
species' range in the United States, and are referred to by the 
following geographic names: (Map Unit 1) Ventura County, (Map Unit 2) 
Orange County, (Map Unit 3) North San Diego County coastal area, and 
(Map Unit 4) South San Diego County, Otay Mesa. An overview of the 
regional units that are designated as critical habitat in this final 
rule, with the proposed and final sub-unit sizes, are shown in Table 1. 
Other lands have not been designated critical habitat for the Riverside 
fairy shrimp because they do not meet the definition of critical 
habitat under section 3(5)(A), or, although essential, have been 
exempted under section 4(a)(3) and excluded under section 4(b)(2) of 
the Act (see Table 2). For a summary of the approximate total critical 
habitat area designated by county and land ownership, and a summary of 
the areas of land encompassed by HCPs and NCCPs, see Tables 3 and 4.
    Critical habitat units and areas designated for the Riverside fairy 
shrimp. Also shown are proposed units which were exempted or excluded 
from the final designation.

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
                                                        Ac (ha)  proposed  Essential  habitat
      Critical Habitat Unit         Sub-unit  number:   rule  (April 28,      Ac (ha)  final     Designated  Ac
                                     proposed  rule           2004)               rule          (ha)  final rule
----------------------------------------------------------------------------------------------------------------
Ventura County, land in City of    1A                  74 (30)             47 (19)             47 (19)
 Moorpark Greenbelt, north Tierra
 Rejada Valley.
Ventura County, land south Tierra  1B                  437 (177)           185 (75)            185 (75)
 Rejada Valley.
Ventura County, land on Cruzan     1C                  534 (216)           0                   0
 Mesa.
Los Angeles County, Los Angeles    2A                  103 (42)            0                   0
 Basin--Orange Management Area,    2B
 land at LAX.
Orange County, land within former  2C                  133 (54)            14 (6)              0
 MCAS El Toro.
Orange County, land near O'Neill   2D                  736 (298)           49 (20)             49 (20)
 Regional Park.
Orange County, land near Tijeras,  2E                  321 (130)           101 (41)            0
 Mission Viejo.
Orange County, Rancho Mission      2F                  489 (198)           263 (106)           0
 Viejo, land on Chiquita Ridge.
Orange County, Rancho Mission      2G                  736 (298)           417 (169)           0
 Viejo, land near Radio Tower
 Road.
North San Diego County, State-     2H                  566 (229)           47 (19)             0
 leased land, Christianitos Creek
 foothills.
Riverside County, lands on March   3A                  44 (18)             101 (41)            0
 ARB.                              3B                  101 (41)
North coastal San Diego County,    4A                  254 (103)           226 (91)            0
 land on MCB Camp Pendleton.       4B
North coastal San Diego County,    4C                  143 (58)            22 (9)              22 (9)
 Carlsbad HCP, land near
 Poinsettia Lane Commuter Station.
South San Diego County, land on    5A                  61 (25)             3 (1)               3 (1)
 western Otay Mesa Sweetwater
 Union High School District lands.
South San Diego County,            5B                  194 (79)            147 (59)            0
 southwestern Otay Mesa, federal
 lands adjacent to the U.S.--
 Mexico border.
South San Diego County,            5C                  866 (350)           111 (45)            0
 southeastern Otay Mesa, land
 adjacent to the U.S.-Mexico
 border.

[[Page 19180]]

 
    Total area designated in       ..................  ..................  ..................  306 (124)
     final rule.
----------------------------------------------------------------------------------------------------------------

    Total size of areas designated as critical habitat or as essential 
to the conservation of the Riverside fairy shrimp, and areas excluded 
from the final designation.

                                 Table 2
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Area determined to be essential to the            13,913 ac
 conservation of the Riverside fairy shrimp.      (5,630 ha)
Essential area exempted pursuant to section       3,053 ac
 4(a)(3) of the Act due to an INRMP that          (1,236 ha)
 benefits Riverside fairy shrimp: San Diego
 County, MCAS Miramar and MCB Camp Pendleton
 (Sub-units 4A and 4B).
Essential area excluded pursuant to section       9,354 ac
 4(b)(2) of the Act: Completed and pending HCPs   (3,785 ha)
 in San Diego MSCP, Orange County Central-
 Coastal NCCP and Western Riverside County
 MSHCP: Northern San Diego County, Carlsbad HCP
 (portion of Sub-unit 3A).
Essential area excluded pursuant to section       295 ac
 4(b)(2) of the Act: Impacts to national          (119 ha)
 security on Department of Defense lands:
 Riverside County, March Air Reserve Base (Sub-
 unit 3B); San Diego County (Otay Mesa Sub-unit
 5B; portion of Sub-unit 5C); San Onofre State
 Park.
Essential area excluded pursuant to section       295
 4(b)(2) of the Act: Impacts to Economy on        (119)
 privately-owned lands within Sub-units 2C
 (former MCAS El Toro), 2D (Saddleback Meadows
 portion), 2E (Tijeras Creek), 2F (Chiquita
 Ridge), 2G (Radio Tower Road), 5C (Southeastern
 Otay Mesa).
Designated Critical Habitat.....................  306 ac
                                                  (124 ha)
------------------------------------------------------------------------

    Approximate designated critical habitat area (ha (ac)) by County 
and land ownership. Estimates reflect the total area within critical 
habitat unit boundaries.

                                                     Table 3
----------------------------------------------------------------------------------------------------------------
              County                     Federal*           Local/State          Private             Total
----------------------------------------------------------------------------------------------------------------
Ventura...........................  0 ac                0 ac                232 ac             232 ac
                                                                            (94 ha)            (94 ha)
Orange............................  0 ac                39 ac               10 ac              49 ac
                                                        (16 ha)             (4 ha)             (20 ha)
San Diego.........................  0 ac                25 ac               0 ac               25 ac
                                                        (10 ha)                                (10 ha)
    Total.........................  0 ac                64 ac               242 ac             306 ac
                                                        (26 ha)             (98 ha)            (124 ha)
----------------------------------------------------------------------------------------------------------------
* Federal lands include Department of Defense, U.S. Forest Service, and other Federal land.

    Habitat Conservation Plans (HCPs) and Natural Communities 
Conservation Program (NCCP) areas within the general area of the 
designated critical habitat.

                                 Table 4
------------------------------------------------------------------------
           NCCP/HCP                Planning area        Preserve area
------------------------------------------------------------------------
San Diego Multiple Species      582,000 ac           171,000 ac
 Conservation Program (MSCP).   (236,000 ha)         (69,573 ha)
Central-Coastal Orange County   208,713 ac           38,738 ac
 NCCP/HCP.                      (84,463 ha)          (15,677 ha)
Proposed Northwestern San       111,908 ac           19,928 ac
 Diego Multiple Habitat         (45,287 ha)          (8,064 ha)
 Conservation Program (MHCP).
Proposed Southern Sub-region    128,000 ac           14,000 ac
 NCCP/HCP Orange County.        (51,800 ha)          (5,666 ha)
Western Riverside County        1,260,000 ac         153,000 ac
 Multiple Species Habitat       (510,000 ha)         (61,919 ha)
 Conservation Plan (MSHCP).
------------------------------------------------------------------------


[[Page 19181]]

    The critical habitat unit names are based on the county where the 
vernal pool complexes occur and their geographic location. For the map 
sub-units, we used the names for the vernal pool complexes that are 
commonly given in survey reports or development proposals. These 
various identifiers allow the public to locate the units in the context 
of past vernal pool mapping efforts. Past mapping may not correspond to 
current boundaries of critical habitat. Areas proposed for designation 
are divided into four different units; we present brief descriptions of 
all units, and reasons why they are essential for the conservation of 
the Riverside fairy shrimp, below.

Final Unit 1: Tierra Rejada Valley Critical Habitat

    Unit 1 contains approximately 1,045 acres. Its habitat sub-regions 
include Carlsberg Ranch in Ventura County and Cruzan Mesa in Los 
Angeles County. One portion of the Carlsberg Ranch sub-region, on the 
edge of the city of Moorpark, has already been largely developed by 
Lennar Homes. The southeastern portion, Tierra Rajada, lies between the 
cities of Thousand Oaks and Simi Valley, with a substantial portion 
falling in Ventura County lands. Cruzan Mesa is on the northeastern 
edge of the City of Santa Clarita, and contains a residential 
development by Pardee Homes. Unit 1 represents that northernmost 
habitat of the RFS habitat.
    The vernal pools in this unit (220 ac (89 ha)) lie within the 
Transverse Range Management Area. Sub-units 1A and 1B occur in the 
Tierra Rajada Valley in Ventura County, California (220 ac (89 ha)), 
and represent the currently known northern limit of occupied habitat 
for the Riverside fairy shrimp and are among the last remaining vernal 
pools in Ventura County known to support this species. The areas that 
are designated as critical habitat in Unit 1 provide the primary 
constituent elements that support the Riverside fairy shrimp as 
described above, relating to the pooling basins, watersheds, underlying 
soil substrate and topography. These lands are considered essential to 
the conservation of the Riverside fairy shrimp.
    The Tierra Rajada Valley Critical Habitat Unit has two sub-units 
located on either side of the Tierra Rajada Valley basin, near the city 
of Moorpark, west of Simi in Ventura County. The northern Sub-unit 1A 
includes portions of land within the City of Moorpark, within the 
City's designated ``Area of Interest'' in the Terra Rajada Greenbelt 
zone. Thus, this sub-unit lies within an area of land with a formal 
agreement by the Cities of Moorpark, Thousand Oaks, and Simi Valley, 
and County of Ventura to be preserved for open space and agricultural 
uses. Sub-unit 1A contains a large vernal pool in land that was 
formerly the Carlsberg Ranch. Development has occurred adjacent to this 
vernal pool, but it is now protected from future development. This pool 
has been surveyed numerous times, and is characterized as excellent, 
with 5-10,000 Riverside fairy shrimp recorded within (CNDDB 1998). Sub-
unit 1B is located less than a mile to the south, just across the 
Tierra Rajada valley basin. This sub-unit has not been surveyed for 
Riverside fairy shrimp; a number of factors strongly suggest it is 
likely to occur there, including:
    (a) The biotic and abiotic conditions of the sub-unit (i.e., its 
soil type, geology, morphology, local climate, topography, and 
occurrence of local vernal pool vegetation, such as California orcutt 
grass (Orcuttia californica)),
    (b) The topographic conditions of the sub-unit, which are ideally 
suited to collect water at the basin center,
    (c) The fact that the sub-unit contains several large permanent and 
semi-permanent pools within its basin,
    (d) The fact that the sub-unit is located less than 1 mi (1,500 m) 
from essential habitat where Riverside fairy shrimp occurrence is known 
and documented. Because this distance is less than distances between 
other known occurrences of Riverside fairy shrimp within the same pool 
complex, which can occur as much as 1.1-1.9 mi (2,000-3,000 m) apart, 
this pool complex is within the dispersal distance for this species,
    (e) The two sub-units are adjoined, on opposite sides, to a large 
river basin passing between (the Tierra Rejada Valley river system) 
which may have historically connected the two pools, or dispersed cysts 
between the two sub-units.
    This 74 ha (184 ac) sub-unit contains the primary constituent 
elements for Riverside fairy shrimp, and is considered essential 
habitat for the species. The above factors strongly support the 
likelihood of the species occurring there. This area is currently in 
private ownership and we are unaware of any plans to develop this site. 
The preservation and management of vernal pools in both sub-units in 
the Transverse Range Management Area are also described by the Recovery 
Plan as essential for the conservation of the Riverside fairy shrimp.
    The occurrences of Riverside fairy shrimp in northern Los Angeles 
County and in Ventura County (Unit 1 and proposed Sub-units 2A, 2B) 
represent isolated occurrences at the northernmost extent of the 
Riverside fairy shrimp's known range. Recent scientific research on 
desert fishes, a species group similar to the fairy shrimp group in 
that it is non-mobile and restricted within narrow habitat limits, has 
found that the risk of extinction among the populations was more 
closely correlated to range fragmentation than to the number of 
occurrences (Fagan et al. 2004). This emphasizes the importance of 
protecting populations of the Riverside fairy shrimp throughout as much 
of its known range as possible, to minimize range fragmentation and 
thus obtain maximal conservation efficiency.
    Conservation biologists have demonstrated that populations at the 
edge of a species' distribution can be important sources of genetic 
variation and represent the best opportunity for colonization or re-
colonization of unoccupied essential areas and, thus, for the species' 
long-term conservation (Gilpin and Soul[eacute] 1986; Lande 1999). 
These outlying populations may be genetically divergent from 
populations in the center of the range and, therefore, may have genetic 
characteristics that would allow adaptation in the face of 
environmental change. Such characteristics may not be present in other 
parts of the species' range (Lesica and Allendorf 1995). Research on 
the San Diego fairy shrimp has shown that geographically distinct 
populations in various vernal pools are also genetically distinct from 
each other, to the extent that individuals within populations may be 
identified at the individual vernal pool complex level based on their 
genetic make-up (Bohonak 2003). This is likely to be also true of the 
Riverside fairy shrimp (Bohonak pers. comm.). The preservation of 
genetic diversity can greatly aid future conservation and recovery 
efforts of the species populations throughout its range, as well as 
provide insight into the evolutionary history of a species. For all of 
these reasons, the lands identified in Unit 1 are essential for the 
conservation of the Riverside fairy shrimp.

Proposed Unit 2/Final Unit 2: Los Angeles Basin--Orange Management Area 
Critical Habitat

    In the proposed rule, this unit was comprised of the Los Angeles 
Basin--Orange Management Area, Los Angeles and Orange Counties, 
California (3,180 ac (1,287 ha)). This area encompassed two distinct 
regions where Riverside fairy shrimp are known to occur: in vernal 
pools in coastal Los Angeles

[[Page 19182]]

County, and in vernal pools and vernal pool-like ephemeral ponds 
located along the foothills of Orange County. These pools are found at 
the former MCAS El Toro, O'Neill Regional Park which is east of Tijeras 
Creek at the intersection of Antonio Parkway and the FTC-north segment, 
and in Rancho Mission Viejo upon Chiquita Ridge and in the Radio Tower 
Road area, and on lands leased to the California Department of Parks 
and Recreation by Camp Pendleton. These vernal pools are the last 
remaining vernal pools in Orange County known to support this species 
(58 FR 41384). These pools represent a unique type of vernal pool 
habitat much different from the traditional mima mound vernal pool 
complexes. They are also different from coastal pools at MCB Camp 
Pendleton and the inland pools of Riverside County. The Orange County 
vernal pool habitat and essential associated watershed represent the 
majority of Riverside fairy shrimp habitat within the Los Angeles 
Basin--Orange Management Area discussed in the Recovery Plan. The 
ephemeral pond on the former MCAS El Toro is within the boundary of the 
Central--Coastal HCP planning area. With the exception of a portion of 
habitat on Sub-unit 2D (lands within O'Neill Regional Park), critical 
habitat for the Riverside fairy shrimp has been excluded under section 
4(b)(2) of the Act.
    In the southern end of proposed Sub-unit 2D lies O'Neill Regional 
Park, in the vicinity of Trabuco Canyon, where we have determined to 
designate approximately 49 ac (20 ha) of habitat considered essential 
to the conservation of the Riverside fairy shrimp (Final Unit 2). This 
portion of the sub-unit lies at 1,413 ft (431 m), the highest elevation 
of the occurrences of Riverside fairy shrimp considered in this 
designation. The habitat consists of several vernal pools surrounded by 
grassland and coastal sage scrub, and may represent a unique genetic 
population for this species (CNDDB 2001). The threats to this area 
consist of, among others, proposed development projects (e.g., possible 
expansion of a telecommunications facility, and easement for water and 
sewer construction). These vernal pools have been included in the 
O'Neill Regional Park Resource Management Plan by the County of Orange 
(August 1989), which includes efforts to implement restoration and 
monitoring plans (for biota species, turbidity, and cattle trespass). 
These plans include inspection of the vernal pools within the 
determined sensitive ecological area, restoration (planting of native 
vernal pool plant species), removal of invasive plants, protection of 
the watershed and protection from trampling and other sources of 
habitat damage within the vicinity of the vernal pools.

Proposed Unit 3: Western Riverside County

    No critical habitat has been designated in the Western Riverside 
County Critical Habitat Unit. In accordance with section 4(b)(2) of the 
Act, we have excluded lands that are encompassed by the Western 
Riverside County MSHCP (see Relationship of Critical Habitat to 
Approved Habitat Conservation Plans). We removed from this critical 
habitat designation the proposed Sub-unit 3A as the area has been 
modified and no longer contains the primary constituent elements for 
the Riverside fairy shrimp. We excluded proposed Sub-unit 3B for 
national security impacts in accordance with section 4(b)(2) of the Act 
(see Relationship of Critical Habitat to Department of Defense Lands, 
and Application of Section 4(b)(2) to March Air Reserve Base (March 
ARB)).

Unit 4: Northern Coastal San Diego County Critical Habitat

Proposed Unit 4/Final Unit 3: Northern Coastal San Diego County 
Critical Habitat

    Approximately 397 ac (161 ha) of habitat were proposed for 
designation in San Diego County, and included some of the vernal pools 
found on MCB Camp Pendleton as well as the Poinsettia Lane Train 
Station vernal pool area in the City of Carlsbad.
    The Coastal Northern San Diego County Unit in this final rule 
consists of a vernal pool complex located on coastal terraces. This 
unit (8 ac (3 ha), map Sub-unit 4C in the proposed rule) is located 
along the railroad right-of-way at the Poinsettia Lane Commuter Station 
and supports populations of the Riverside fairy shrimp. These 
populations represent the last remnant of the historic distribution of 
vernal pool on coastal terraces in San Diego County and the 
northernmost occurrences of the Riverside fairy shrimp within San Diego 
County (not including MCB Camp Pendleton). As a result of coastal 
development, the Coastal Northern San Diego County Unit represents the 
only remnant of the historic distribution of vernal pools supporting 
the Riverside fairy shrimp along the coastal terraces in San Diego 
County.
    The highly limited distribution and fragmentation of vernal pools 
on coastal terraces suggests that these populations may be genetically 
distinct from other populations of the Riverside fairy shrimp as 
indicated by recent genetic studies that document unique haplotypes 
between geographically separated populations of the San Diego fairy 
shrimp (Bohonak 2004). This unit provides space for individual and 
population growth and reproduction; the soils and surrounding uplands 
provide food, water, light, minerals, and other nutritional and 
physiological requirements, and represent the historical geographic 
distribution of the San Diego fairy shrimp.
    The majority of the vernal pool complex along the railroad right-
of-way at the Poinsettia Lane Commuter Station is now in a conservation 
easement managed by the California Department of Fish and Game (CDFG). 
The lands are owned by the North County Transit District. CDFG is 
currently in the process of developing a long-term management plan for 
this area to control non-native weeds and maintain the hydrology of the 
site. The portion of this vernal pool complex excluded from critical 
habitat is part of the North San Diego MHCP. Originally included in the 
proposed rule, the Cocklebur Sensitive Area and other areas on or 
controlled by MCB Camp Pendleton (proposed map Sub-units 4A and 4B) are 
exempted from the final designation of critical habitat for the 
Riverside fairy shrimp under section 4(a)(3) of the Act. For more 
details, see the sections Relationship of Critical Habitat to 
Department of Defense Lands and Relationship of Critical Habitat to 
Approved Habitat Conservation Plans below.

Proposed Unit 5/Final Unit 4: South San Diego County Critical Habitat

    In the proposed rule, Unit 5 contained 1,120 acres proposed for 
designation, all located in the City or County of San Diego. Some of 
this land is located in the federally owned area known as Arnie's Point 
along the border with Mexico, and most of the remainder is in East Otay 
Mesa, an area of major commercial and residential growth. Unit 5 is the 
southernmost extent of the Riverside fairy shrimp habitat in the U.S.
    The vernal pool complexes in this critical habitat map unit are 
located within a Major/Minor Amendment area within the San Diego MSCP. 
While these areas are within the San Diego MSCP, Major/Minor Amendment 
areas do not currently have approved plans that provide conservation 
measures for the Riverside fairy shrimp. The vernal pool complexes in 
this unit represent

[[Page 19183]]

the southernmost extent of the Riverside fairy shrimp within the United 
States. Pools on Otay Mesa are considered San Diego claypan vernal 
pools. The vernal pool complexes in this unit are the only vernal pools 
on Huerhuero loam and Linn[eacute] clay loam in this critical habitat 
designation. This unit is essential in preserving the genetic diversity 
of this species and in maintaining the historic range of this species. 
The majority of vernal pool complexes on Otay Mesa have been severely 
degraded by numerous activities, including agricultural development, 
trash-dumping, and vehicle and human traffic, and many pools have been 
destroyed and removed due to industrial development in the area. This 
southernmost section is essential to the conservation of the Riverside 
fairy shrimp because it maintains the ecological distribution and 
genetic diversity of this species. No Department of Homeland Security 
lands along the U.S.-Mexico border are designated as critical habitat 
in this final rule and we have excluded all other lands within Subunit 
5C from critical habitat based on section 4(b)(2) of the Act.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify designated critical habitat. In our 
regulations at 50 CFR 402.2, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: Alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species and 
are relying on the statutory provisions of the Act in evaluating the 
effects of Federal actions on designated critical habitat, pending 
further regulatory guidance.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. We may issue a formal conference 
report if requested by a Federal agency. Formal conference reports on 
proposed critical habitat contain an opinion that is prepared according 
to 50 CFR 402.12, as if critical habitat were designated. We may adopt 
the formal conference report as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). The conservation recommendations in a conference report are 
advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that their actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request re-initiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect the Riverside fairy shrimp or 
its critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or 
some other Federal action, including funding (e.g., Federal Highway 
Administration or Federal Emergency Management Agency), will also 
continue to be subject to the section 7 consultation process. Federal 
actions not affecting listed species or critical habitat and actions on 
non-Federal and private lands that are not federally funded, 
authorized, or permitted are not subject to section 7 consultations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the Riverside 
fairy shrimp. Federal activities that, when carried out, may adversely 
affect critical habitat for the Riverside fairy shrimp include, but are 
not limited to:
    (1) Actions that would permanently alter the function of the 
underlying claypan or hardpan soil layer to hold and retain water. This 
would affect the duration and extent of inundation, water temperature 
and chemistry, and other vernal pool features beyond the tolerances of 
the Riverside fairy shrimp. Damage or alternation of the claypan or 
hardpan soil layer would eliminate the function of this PCE for 
providing space for individual and population growth and for normal 
behavior; water and physiological requirements; and sites for breeding, 
reproduction and rearing of offspring. Actions that could permanently 
alter the function of the underlying claypan or hardpan soil layer 
include, but are not limited to, grading or earthmoving work that 
disrupts or rips into the claypan or

[[Page 19184]]

hardpan soil layer; or and channelizing, mining, dredging, or drilling 
into the claypan or hardpan soil layer.
    (2) Actions that would permanently reduce the depth of a vernal 
pool, and the ability of a vernal pool to pond with water, the duration 
and extent of inundation, water temperature and chemistry, and other 
vernal pool features beyond the tolerances of the Riverside fairy 
shrimp. Reducing the depth of the vernal pool would eliminate the 
function of this PCE for providing space for normal behavior and for 
individual and population growth, water and physiological requirements, 
sites for breeding, reproduction and rearing of offspring, and reduce 
the time available for growth and reproduction as it would accelerate 
the pool's drying phase. Actions that could permanently reduce the 
depth of the vernal pool include, but are not limited to, discharge of 
dredged or fill material into vernal pools and erosion of sediments 
from fill material, disturbance of soil profile by grading, ditch 
digging in and around vernal pools, earthmoving work, OHV use, grazing, 
vegetation removal, or construction of roads, culverts, berms or any 
other impediment to natural sub-surface or surface hydrological flow 
within the watershed for the vernal pools. These activities should be 
carefully planned with hydrology studies and monitored because both 
increases and decreases to ponding duration can have negative impacts 
to the Riverside fairy shrimp's ability to persist.
    (3) Actions that would substantially alter vernal pool water 
chemistry to exceed the levels discussed in the ``Primary Constituent 
Elements'' section. Exceeding these water chemistry parameters would 
eliminate the function of this PCE for maintaining the water and 
physiological requirements of the vernal pool habitat for the Riverside 
fairy shrimp, and beyond the species' tolerances. Actions that could 
substantially alter vernal pool water chemistry include, but are not 
limited to, erosion from fill material or soils disturbed by grading 
within the watershed for the vernal pools, discharge of dredged or fill 
material into vernal pools, removal of the clay soils underlying vernal 
pools, and release of chemicals or pollutants.
    (4) Actions that would substantially alter vernal pool water 
temperatures to exceed temperature ranges beyond those discussed in the 
``Primary Constituent Elements'' section when juvenile and adult 
Riverside fairy shrimp are present. Exceeding these water temperature 
parameters would eliminate the function of this PCE for maintaining the 
water and physiological requirements of the vernal pool habitat for the 
Riverside fairy shrimp, and beyond the specie's tolerances. Actions 
that could substantially alter vernal pool water temperature include, 
but are not limited to, discharge of heated effluents into the surface 
water or by dispersed release (non-point source).
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
wildlife and inquiries about prohibitions and permits may be addressed 
to the U.S. Fish and Wildlife Service, Endangered Species, 911 N.E. 
11th Ave, Portland, OR 97232 (telephone 503/231-2063; facsimile 503/
231-6243).
    All lands designated as critical habitat are within the 
geographical area occupied by the species and are necessary to preserve 
functioning vernal pool habitat for the Riverside fairy shrimp. Federal 
agencies already consult with us on activities in areas currently 
occupied by the species, or if the species may be affected by the 
action, to ensure that their actions do not jeopardize the continued 
existence of the species. Thus, we do not anticipate substantial 
additional regulatory protection will result from critical habitat 
designation, although there may be consultations that result from 
Federal actions within critical habitat in the watersheds associated 
with vernal pools.

Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of 
the Act

Application of Section 4(a)(3) of the Act--Approved and Completed 
INRMPs

    The Sikes Act Improvements Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
requires each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an INRMP by November 17, 2001. An INRMP combines 
implementation of the military mission of the installation with 
stewardship of its natural resources. Each INRMP includes an assessment 
of the ecological needs on the installation, including the need to 
provide for the conservation of listed species; a statement of goals 
and priorities; a detailed description of management actions to be 
implemented to provide for these ecological needs; and a monitoring and 
adaptive management plan. We consult with the Department of Defense on 
the development and implementation of INRMPs for installations with 
federally listed species.
    Section 318 of the National Defense Authorization Act for Fiscal 
Year 2004 (Pub. L. 108-136) amended the Act to address the relationship 
of INRMPs to critical habitat by adding a new section 4(a)(3)(B). This 
provision prohibits us from designating as critical habitat any lands 
or other geographical areas owned or controlled by the DOD, or 
designated for its use, that are subject to an INRMP prepared under 
section 101 of the Sikes Act (16 U.S.C 670a), if the Secretary of the 
Interior determines in writing that such plan provides a benefit to the 
species for which critical habitat is proposed for designation.
    In our April 27, 2004 rule, we proposed critical habitat for the 
Riverside fairy shrimp for areas containing essential habitat, but not 
considered mission-critical at MCB Camp Pendleton. We also considered, 
but did not propose, critical habitat for the Riverside fairy shrimp on 
mission-essential training areas at MCB Camp Pendleton and at MCAS 
Miramar (69 FR 23024). For this final rule, we re-evaluated both our 
exclusions and our proposed designations on MCB Camp Pendleton and on 
MCAS Miramar based on the completion of their INRMPs, which address the 
conservation of the Riverside fairy shrimp. We have therefore exempted 
all areas on MCB Camp Pendleton and on MCAS Miramar from the final 
critical habitat designation pursuant to section 4(a)(3) of the Act.

Relationship of Critical Habitat to Department of Defense Lands

    We received comments regarding the proposed critical habitat 
designation and economic impact on Department of Defense lands from the 
Navy at MCB Camp Pendleton and the former MCAS El Toro, and from the 
Air Force at March ARB. To ensure that the Department of Defense could 
comment on the proposed rule and its relationship to section 4(a)(3) of 
the Act, as amended, we specifically requested information from the 
Department of Defense regarding MCB Camp Pendleton's INRMP to determine 
if the INRMP provides a benefit to the Riverside fairy shrimp in the 
proposed rule published on April 27, 2004 (69 FR 23024).

Application of Section 4(a)(3) to MCB Camp Pendleton (Sub-Units 4A, B)

    Camp Pendleton completed their INRMP in November 2001, which

[[Page 19185]]

includes the following conservation measures for the Riverside fairy 
shrimp: (1) Surveys and monitoring, studies, impact avoidance and 
minimization, and habitat restoration and enhancement, (2) species 
survey information stored in MCB Camp Pendleton's GIS database and 
recorded in a resource atlas which is published and updated on a semi-
annual basis, (3) application of a 984 ft (300 m) radius to protect the 
micro-watershed buffers around current and historic Riverside fairy 
shrimp locations, and (4) use of the resource atlas to plan operations 
and projects to avoid impacts to the Riverside fairy shrimp and to 
trigger section 7 consultations if an action may affect the species 
(R.L. Kelly, in lit. 2003). These measures are established, ongoing 
aspects of existing programs and/or Base directives (e.g., Range and 
Training Regulations) or measures that will be implemented when the 
current section 7 consultation for upland species (Uplands 
Consultation), including the Riverside fairy shrimp, is completed.
    Camp Pendleton implements Base directives to avoid and minimize 
adverse effects to the Riverside fairy shrimp, such as: (1) Bivouac, 
command post, and field support activities should be no closer than 984 
ft (300 m) to occupied Riverside fairy shrimp habitat year round, (2) 
limiting vehicle and equipment operations to existing road and trail 
networks year round, and (3) requiring environmental clearance prior to 
any soil excavation, filling, or grading. MCB Camp Pendleton has also 
demonstrated ongoing funding of their INRMP and management of 
endangered and threatened species. In Fiscal Year 2002, MCB Camp 
Pendleton spent approximately $1.5 million on the management of 
federally listed species. In Fiscal Year 2003, MCB Camp Pendleton 
expended over $5 million to fund and implement their INRMP, including 
management actions that provided a benefit for the Riverside fairy 
shrimp. Moreover, in partnership with the Service, MCB Camp Pendleton 
is funding two Service biologists to assist in implementing their Sikes 
Act program and buffer lands acquisition initiative.
    Based on MCB Camp Pendleton's past funding history for listed 
species and their Sikes Act program (including the management of the 
Riverside fairy shrimp), we believe there is a high degree of certainty 
that MCB Camp Pendleton will implement the INRMP in coordination with 
the California Department of Fish and Game and with the Service in a 
manner that provides a benefit to the Riverside fairy shrimp. We also 
believe that there is a high degree of certainty that the conservation 
efforts of their INRMP will be effective. Service biologists work 
closely with MCB Camp Pendleton on a variety of endangered and 
threatened species issues, including the Riverside fairy shrimp. The 
management programs and Base directives to avoid and minimize impacts 
to the species' are consistent with current and ongoing section 7 
consultations with MCB Camp Pendleton.
    We are also in the process of completing a section 7 consultation 
for upland species on MCB Camp Pendleton. Vernal pools and associated 
species, including the Riverside fairy shrimp, are addressed in the 
``Uplands Consultation.'' When this consultation is completed, MCB Camp 
Pendleton will incorporate the conservation measures from the 
biological opinion into their INRMP. At that time, MCB Camp Pendleton's 
INRMP will provide further benefits to the Riverside fairy shrimp. 
Therefore, we find that the INRMP for MCB Camp Pendleton provides a 
benefit for the Riverside fairy shrimp and are exempting from critical 
habitat lands on MCB Camp Pendleton pursuant to section 4(a)(3) of the 
Act.

Application of Section 4(a)(3) to MCAS Miramar

    We reaffirm our exemption of MCAS Miramar under section 4(a)(3) of 
the Act. MCAS Miramar completed a final INRMP in May 2000 that provides 
for conservation, management and protection of the Riverside fairy 
shrimp. The INRMP is in place and is being implemented. With regard to 
the Riverside fairy shrimp, the INRMP classifies nearly all of the 
vernal pool basins and watersheds on MCAS Miramar as a Level I 
Management Area. A Level I Management Area receives the highest 
conservation priority within the INRMP. Preventing damage to vernal 
pool resources is the highest conservation priority in MAs with the 
Level I designation. The conservation of vernal pool basins and 
watersheds in a Level I Management Area is achieved through education 
of base personnel, proactive measures to avoid accidental impacts, 
including signs and fencing, developing procedures to respond to and 
fix accidental impacts on vernal pools, and maintenance of an updated 
inventory of vernal pool basins and associated vernal pool watersheds.
    Since the completion of MCAS Miramar's INRMP, we have received 
reports on their vernal pool monitoring and restoration program, and 
correspondence detailing the installation's expenditures on the 
objectives outlined in its INRMP. MCAS Miramar continues to monitor and 
manage its vernal pool resources. Ongoing programs include a study on 
the effects of fire on vernal pool resources, vernal pool mapping and 
species surveys, and a study of Pacific bentgrass (Agrostis avenaceae), 
an invasive nonnative grass found in some vernal pools on MCAS Miramar. 
Based on the value MCAS Miramar's INRMP assigns to vernal pool basins 
and watersheds, and the management actions undertaken conserve them, we 
find that the INRMP provides a benefit for the Riverside fairy shrimp. 
In accordance with section 4(a)(3) of the Act, MCAS Miramar is exempted 
from critical habitat designation for the Riverside fairy shrimp.

Application of Section 4(b)(2) of the Act--National Security

Application of Section 4(b)(2) National Security to March Air Reserve 
Base (Sub-Unit 3B)

    March Air Reserve Base (March ARB) is an Air Force Command 
installation that includes runways, hangars, aircraft parking aprons, 
taxiways, administrative facilities, billeting facilities, associated 
road network, landscape areas, and open areas associated with runway 
threshold and lateral clear zones. March ARB hosts the 452nd Air 
Mobility Wing and supports an Air National Guard Wing, Headquarters 4th 
Air Force, and other military and civilian organizations. The 452nd Air 
Mobility Wing is the primary air mobility organization for supporting 
the 1st Marine Expeditionary Force for worldwide contingency 
operations. The Air National Guard Wing includes the 163d Air Refueling 
Wing and 120th Fighter Wing. March ARB also supports the Department of 
Homeland Security Riverside Aviation Unit.
(1) Benefits of Inclusion
    The primary benefit of designating critical habitat is that Federal 
agencies would have to consult with us on projects they carry out, 
fund, or authorize to ensure such activities do not adversely modify or 
destroy designated critical habitat. Absent the designation of critical 
habitat, Federal agencies must still consult with us if they determine 
an action may affect a federally listed species to ensure those actions 
will not jeopardize the species. We already consult with March ARB on 
actions that may affect listed species, including the Riverside fairy 
shrimp. Because protection of vernal pool habitat is key to avoiding 
jeopardy to the Riverside fairy shrimp, we carefully

[[Page 19186]]

consider the effects on habitat in our evaluation of impacts to the 
species.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has been achieved, as both the military and 
civilian managers and users of the area are fully familiar with the 
existence and needs of the shrimp. Therefore, we believe the education 
benefits which might arise from a critical habitat designation here 
have largely already been generated.
    Under the Gifford Pinchot decision, the designation of critical 
habitat may provide greater benefits to the recovery of the species 
than previously believed. However, at this point, it is not possible to 
quantify that benefit.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional federal regulatory benefits for the 
species. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any action 
which might impact it. The additional educational benefits which might 
arise from critical habitat designation are accomplished.
(2) Benefits of Exclusion
    In contrast to the absence of a significant benefit resulting from 
designating critical habitat for the Riverside fairy shrimp at March 
ARB, there are substantial benefits to excluding this area from 
critical habitat. If critical habitat were to be designated on this 
land the Air Force could be compelled to re-initiate consultations with 
us under section 7 of the Act on activities that have previously been 
reviewed but have not yet been implemented, in order to address whether 
the proposed activities may affect designated critical habitat. In 
addition, they would be required to consult over possible effects from 
future activities on the critical habitat. The additional burden of 
initiating and reinitiating consultations could impede the timely 
conduct of mission-essential training activities and impair the ability 
of the Air Force to fully achieve its mission. Moreover, our final 
Economic Analysis has determined that there could be additional costs 
of $33 million, including an additional $950,000 for an Environmental 
Impact Statement to be completed for March ARB to maintain operations 
of its runway and taxiways. A California Air National Guard heavy 
equipment unit would require relocation, costing $31.5 million.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion in 
Critical Habitat
    Because of the relatively limited benefits arising from 
designation, we believe the role played in supporting overseas Marine 
Corps operations and the related importance to national security of 
ensuring March ARB's ability to maintain a high level of military 
readiness, and the additional cost impacts identified in our economic 
analysis, we believe the benefits of exclusion outweigh the benefits of 
inclusion and have excluded this facility pursuant to section 4(b)(2) 
of the Act.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the shrimp must undergo a 
consultation with the Service under the requirements of section 7 of 
the Act. The species is protected from take under section 9 of the Act. 
The exclusions leave these protections unchanged. There is accordingly 
no reason to believe that these exclusions would result in extinction 
of the species.

Leased Lands at Marine Corps Base Camp Pendleton (San Onofre State 
Park)--Exclusions Under Section 4(b)(2)

    The Marine Corps operates Camp Pendleton as an amphibious training 
base that promotes the combat readiness of military forces and is the 
only West Coast Marine Corps facility where amphibious operations can 
be combined with air, sea, and ground assault training activities year-
round. Currently, the Marine Corps has no alternative installation 
available for the types of training that occur on Camp Pendleton.
    The Marine Corps leases some of the land at Camp Pendleton to the 
State of California for use as San Onofre State Park. In their comments 
on the proposed critical habitat for the Riverside fairy shrimp, the 
Marines noted the adverse impacts to their training abilities which 
they believe have resulted from various environmental laws, with the 
Act foremost among these, and provide a study to support their 
contention. While their comments and the study focused primarily on 
lands currently used for training, and they supported the Service's 
stated intent to exempt ``mission-critical'' areas under sections 
4(a)(3) or 4(b)(2), they also stated ``simply because some areas of the 
Base may not be designated as a range or training area, * * * such 
areas should not be presumed to be unimportant or not useful to support 
training actions, either today or in the future.'' In the same letter 
(Bowdon, May 2004, in litt.) the Commanding General said: ``In 
particular, both the Commandant of the Marine Corps and I have 
personally expressed deep concerns that the designation of critical 
habitat aboard Camp Pendleton would impose long term, cumulative and 
detrimental impacts on the capabilities of the base to perform its 
military mission, * * *''.
    The San Onofre State Park lands are potential training lands that 
are not covered by the other exemptions provided to Camp Pendleton 
lands, as they are managed by the State and not covered by the base's 
INRMP. Based on the comments from the Corps, we are excluding these 
lands, consisting of approximately 47 acres, on national security 
grounds, so they could be available quickly to the Marines in the event 
they were needed for military training.
(1) Benefits of Inclusion
    The primary benefit of any critical habitat with regard to 
activities that require consultation pursuant to section 7 of the Act 
is to ensure that the activity will not destroy or adversely modify 
designated critical habitat. However, since this land is managed by the 
State of California, it is not open to development and is subject to 
the protective laws and regulations applicable to the State Parks. The 
educational benefits of critical habitat include informing the Marine 
Corps and the State of California of areas that are important to the 
conservation of listed species. However, we are confident both are now 
aware of this. As long as the land is managed by the State of 
California, there is not likely to be a Federal nexus which would 
trigger consultation with us should critical habitat be designated. 
Therefore, we do not believe that designation of this area as critical 
habitat will appreciably benefit the shrimp beyond the protection 
already afforded the species under the Act.
(2) Benefits of Exclusion
    In contrast to the absence of an appreciable benefit resulting from 
designation of these lands as critical habitat, there is a benefit to 
excluding them through avoidance of delay should the Corps need the 
land for military purposes. The Corps' lease agreement with the State 
provides that the land can be reclaimed with a 90-day notice, and

[[Page 19187]]

if urgently needed for military purpose, the reversion might well be 
more rapid. However, if the land were designated as critical habitat, 
the requirement to consult on activities to be conducted there could 
delay and impair the ability of the Marine Corps to conduct effective 
training activities and limit Camp Pendleton's utility as a military 
training installation. We already have consultations with them under 
section 7 on activities related to the presence of the shrimp, as a 
result of which we could likely do a consultation related to jeopardy 
very quickly. However, there has been no consultation on critical 
habitat for the species, and under the new standard for adverse 
modification that may result from the Gifford Pinchot decision there is 
no reason to believe this could be done quickly.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the current world situation, the Marine Corps' need to 
maintain a high level of readiness and fighting capabilities, and the 
possible impact on national security if that is obstructed, we believe 
the benefits of excluding these lands outweigh the benefits of 
including them.
(4) Exclusion Will Not Result in Extinction of the Species
    Because the lands are occupied by the species and the Marine Corps 
has a statutory duty under section 7 to ensure that its activities do 
not jeopardize the continued existence of the shrimp, we find that the 
exclusion of these areas will not lead to the extinction of the 
Riverside fairy shrimp.

Application of Section 4(b)(2) National Security to U.S. Department of 
Homeland Security Lands (Sub-Unit 5B and Portions of 5C)

    In our previous (69 FR 23024) rule, we proposed to designate as 
critical habitat lands adjacent to the U.S.-Mexico border under the 
jurisdiction of the U.S. Department of Homeland Security (DHS), U.S. 
Border Patrol, San Diego Sector (Sub-unit 5B, portion of Sub-unit 5C). 
The portion of the lands owned by the DHS that are directly adjacent to 
the U.S.-Mexico border lands have previously been disturbed and 
developed by the ongoing construction of the Border Infrastructure 
System (BIS), and those lands within the constructed portion of the 
footprint of the BIS do not contain any of the primary constituent 
elements for the Riverside fairy shrimp. The BIS is considered integral 
to national security, and therefore, lands owned by DHS along the U.S.-
Mexico border have been excluded from the designation under section 
4(b)(2) of the Act for national security impacts.
    On February 6, 2002, the Service completed a section 7 consultation 
with the U.S. Army Corps of Engineers (Corps) and the former 
Immigration and Naturalization Service on the effects of closing a gap 
in the Border Fence Project's secondary fence at Arnie's Point on three 
endangered species occurring there, the Riverside fairy shrimp, San 
Diego fairy shrimp, and San Diego button-celery (Eryngium aristulatum 
var. parishii; Service 2002). We concluded in our biological opinion 
that the proposed action, which includes the loss of a linear vernal 
pool occupied by both the Riverside fairy shrimp and San Diego fairy 
shrimp, was not likely to jeopardize the continued existence of the 
three endangered species. On January 9, 2003, the Service completed a 
section 7 consultation with the former Immigration and Naturalization 
Service of the effects on the endangered Riverside fairy shrimp and 
endangered San Diego fairy shrimp from the construction of a secondary 
border fence and other road and fencing improvements in Area II along 
the U.S.-Mexico border (Service 2003). We concluded in our biological 
opinion that the proposed action, which included the loss of three 
vernal pool basins, was not likely to jeopardize the continued 
existence of the Riverside fairy shrimp and San Diego fairy shrimp. To 
offset losses for fairy shrimp, the DHS has conducted two restoration 
projects and has designated some DHS-owned lands located north of the 
BIS (at Arnie's Point) as mitigation for completion of the border 
system. As part of the proposed actions for these two section 7 
consultations, DHS committed to implement a variety of conservation 
measures that would restore and create vernal pool habitats and enhance 
their watershed, including the commitment to transfer these lands to a 
conservation resource agency and/or to protect and conserve the lands 
in perpetuity. We have therefore determined to exclude this area, which 
contains the remainder of lands within Sub-unit 5B, from the critical 
habitat designation according to 4(b)(2) of the Act for national 
security.
(1) Benefits of Inclusion
    There is minimal benefit from designating critical habitat for the 
Riverside fairy shrimp that are already managed for the conservation of 
vernal pool habitat. One possible benefit of including these lands as 
critical habitat would be to educate the public regarding the 
conservation value of these areas and the vernal pool complex they 
support. However, critical habitat designation provides little gain in 
the way of increased recognition on lands that are expressly managed to 
protect and enhance vernal pools for San Diego fairy shrimp. In 
addition, the Service has already thoroughly evaluated the impacts of 
the BIS project on the Riverside fairy shrimp and its vernal pool 
habitat, determined that the project will not jeopardize the continued 
existence of the species, and received commitments from INS (now DHS) 
for restoration, protection and management of nearby Riverside fairy 
shrimp habitat. Therefore, we believe the designation of areas covered 
by the project and restoration areas would provide little benefit to 
the species.
(2) Benefits of Exclusion
    The exclusion of the DHS-owned land within the BIS footprint will 
remove any delay in the BIS project occasioned by the need to 
reinitiate consultation. Expeditious completion of the BIS project is 
vital to our country's national security. Exclusion of the restoration 
areas will also remove any regulatory delay associated with completion 
of this important habitat restoration project.
(3) Benefits of Exclusion Outweigh Benefits of Inclusion
    We conclude that the minimal benefits of designating critical 
habitat on the BIS project lands, including the 21.8-ac vernal pool 
restoration area, are far outweighed by the substantial benefits to 
national security from early completion of this project. Therefore we 
are excluding the BIS lands within Sub-unit 5B under section 4(b)(2) of 
the Act (see Relationship of Critical Habitat to Approved Habitat 
Conservation Plans below). The remaining area within Sub-unit 5B and 
some lands within Sub-unit 5C owned by the DHS are within the 
constructed BIS footprint and no longer contain any vernal pool habitat 
for the Riverside fairy shrimp; those impacts have been offset by the 
conservation measures to be implemented by DHS at the 21.8-acre vernal 
pool restoration area at Arnie's Point. Thus, the remaining lands 
within Sub-unit 5B and some lands within Sub-unit 5C owned by the DHS 
are not essential to the conservation of the Riverside fairy shrimp and 
are not designated as critical habitat in this final rule. Thus, no 
lands owned by the Department of Homeland Security have been designated 
as critical habitat.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the

[[Page 19188]]

species, as they are considered occupied habitat. Any actions which 
might adversely affect the shrimp, regardless of whether a Federal 
nexus is present, must undergo a consultation with the Service under 
the requirements of sec. 7 of the Act. The shrimp is protected from 
take under section 9. The exclusions leave these protections unchanged 
from those which would exist if the excluded areas were designated as 
critical habitat. In addition, as discussed above, there are a 
substantial number of Habitat Conservation Plans and other active 
conservation measures underway for the species, which provide greater 
conservation benefits than would result from a designation. There is 
accordingly no reason to believe that these exclusions would result in 
extinction of the species. Moreover, at Arnie's Point, the DHS is 
restoring habitat for the Riverside fairy shrimp and will transfer that 
land to a MSCP cooperating agency.

Relationship of Critical Habitat to Economic Impacts--Exclusions Under 
Section 4(b)(2) of the Act

    This section allows the Secretary to exclude areas from critical 
habitat for economic reasons if she determines that the benefits of 
such exclusion exceed the benefits of designating the area as critical 
habitat, unless the exclusion will result in the extinction of the 
species concerned. This is a discretionary authority Congress has 
provided to the Secretary with respect to critical habitat. Although 
economic and other impacts may not be considered when listing a 
species, Congress has expressly required their consideration when 
designating critical habitat. Exclusions under this section for non-
economic reasons are addressed above.
    In general, we have considered in making the following exclusions 
that all of the costs and other impacts predicted in the economic 
analysis may not be avoided by excluding the area, due to the fact that 
the areas in question are currently occupied by the Riverside fairy 
shrimp and there will be requirements for consultation under Section 7 
of the Act, or for permits under section 10 (henceforth 
``consultation''), for any take of the species, and other protections 
for the species exist elsewhere in the Act and under State and local 
laws and regulations. In addition, some areas are also occupied by 
other listed species and in some cases are designated as critical 
habitat for those species. In conducting economic analyses, we are 
guided by the 10th Circuit Court of Appeal's ruling in the New Mexico 
Cattle Growers Association case (248 F.3d at 1285), which directed us 
to consider all impacts, ``regardless of whether those impacts are 
attributable co-extensively to other causes.'' As explained in the 
analysis, due to possible overlapping regulatory schemes and other 
reasons, there are also some elements of the analysis which may 
overstate some costs.
    Conversely, the 9th Circuit has recently ruled (``Gifford 
Pinchot'', 378 F.3d at 1071) that the Service's regulations defining 
``adverse modification'' of critical habitat are invalid because they 
define adverse modification as affecting both survival and recovery of 
a species. The court directed us to consider that adverse modification 
should be focused on impacts to recovery. While we have not yet 
proposed a new definition for public review and comment, changing the 
adverse modification definition to respond to the Court's direction may 
result in additional costs associated with critical habitat definitions 
(depending upon the outcome of the rulemaking). This issue was not 
addressed in the economic analysis for the Riverside fairy shrimp, as 
this was well underway at the time the decision was issued and we have 
a court-ordered deadline for reaching a final decision, so we cannot 
quantify the impacts at this time. However, it is a factor to be 
considered in evaluating projections of future economic impacts from 
critical habitat.
    We recognize that we have excluded a significant portion of the 
proposed critical habitat. Congress expressly contemplated that 
exclusions under this section might result in such situations when it 
enacted the exclusion authority. House Report 95-1625, stated on page 
17:
    ``Factors of recognized or potential importance to human activities 
in an area will be considered by the Secretary in deciding whether or 
not all or part of that area should be included in the critical habitat 
* * * In some situations, no critical habitat would be specified. In 
such situations, the Act would still be in force to prevent any taking 
or other prohibited act * * *''
    We accordingly believe that these exclusions, and the basis upon 
which they are made, are fully within the parameters for the use of 
section 4(b)(2) set out by Congress.

Application of Section 4(b)(2) Economic Exclusion to Former MCAS El 
Toro (Sub-Unit 2C)

    We have excluded all of proposed Sub-unit 2C, consisting of 
approximately 133 ac (54 ha; with 14 ac (6 ha) of essential habitat) at 
the former MCAS El Toro in Orange County, under section 4(b)(2) of the 
Act. The analysis which led us to the conclusion that the benefits of 
excluding this area exceed the benefits of designating it as critical 
habitat, and will not result in the extinction of the species, follows.
(1) Benefits of Inclusion
    If these areas were designated as critical habitat, any actions 
with a Federal nexus which might adversely modify the critical habitat 
would require a consultation with us, as explained above, in the 
section of this notice entitled ``Effects of Critical Habitat 
Designation.'' However, since the species is present, consultation for 
activities which might adversely impact the species, including possibly 
significant habitat modification (see definition of ``harm'' at 50 CFR 
17.3) would be required even without the critical habitat designation 
and without regard to the existence of a Federal nexus.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved. As explained above, 
this is the 2nd iteration of the critical habitat process for these 
lands, which has included both public comment periods and litigation, 
all with accompanying publicity. Therefore, we believe the education 
benefits which might arise from a critical habitat designation here 
have largely already been generated.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Under the Gifford Pinchot decision, critical habitat 
designations may provide greater benefits to recovery of a species than 
was previously believed, but it is not possible to quantify this at 
present. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any action 
which might impact it. The additional educational benefits which might 
arise from critical habitat designation are largely accomplished 
through the multiple notice and comments which accompanied the 
development of this regulation, and publicity over the prior 
litigation.

[[Page 19189]]

(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would be $56.7 million. By excluding this unit, some 
or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
    We do not believe that the benefits from the designation of 
critical habitat for lands we have decided to exclude--a limited 
educational benefit and very limited regulatory benefit, which are 
largely otherwise provided for, as discussed above--exceed the benefits 
of avoiding the potential economic costs which could result from 
including those lands in this designation of critical habitat. We also 
note that the management plans to acquire land off-site, restore vernal 
pools there, relocate the species to these pools, initiate biological 
monitoring, and provide for project management.
    Designating critical habitat would impose a disincentive for this 
type of conservation efforts, and add to the costs. We therefore find 
that the benefits of excluding these areas from this designation of 
critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the shrimp, regardless of whether 
a Federal nexus is present, must undergo a consultation with the 
Service under the requirements of section 7 of the Act. The shrimp is 
protected from take under section 9. The exclusions leave these 
protections unchanged from those which would exist if the excluded 
areas were designated as critical habitat. In addition, as discussed 
above, there are a substantial number of Habitat Conservation Plans and 
other active conservation measures underway for the species, which 
provide greater conservation benefits than would result from a 
designation. There is accordingly no reason to believe that these 
exclusions would result in extinction of the species.

Application of Section 4(b)(2) Economic Exclusion to Saddleback Meadows 
and Other Private Lands (Portion of Sub-Unit 2D)

    We have excluded the Saddleback Meadows and other private lands 
within portion of proposed Sub-unit 2D, consisting of approximately 736 
ac (298 ha) with 57 ac (23 ha) of essential habitat near O'Neill 
Regional Park, under section 4(b)(2) of the Act. The analysis which led 
us to the conclusion that the benefits of excluding this area exceed 
the benefits of designating it as critical habitat, and will not result 
in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch 
as this area is currently occupied by the species, consultation for 
activities which might adversely impact the species, including possibly 
significant habitat modification (see definition of ``harm'' at 50 CFR 
17.3) would be required even without the critical habitat designation 
and without regard to the existence of a Federal nexus.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved. As explained above, 
this is the 2nd iteration of the critical habitat process for these 
lands, which has included both public comment periods and litigation, 
all with accompanying publicity. Therefore, we believe the education 
benefits which might arise from a critical habitat designation here 
have largely already been generated.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Under the Gifford Pinchot decision, critical habitat 
designations may provide greater benefits to recovery of a species than 
was previously believed, but it is not possible to quantify this at 
present. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any action 
which might impact it. The additional educational benefits which might 
arise from critical habitat designation are largely accomplished 
through the multiple notice and comments which accompanied the 
development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would range between over $10 million to nearly $60 
million, largely as loss of land value and increased costs to private 
landowners. These costs range from $14,000 and $79,000 per acre. The 
variability in the impact encompasses a low to high amount of required 
set aside acreage that depends on vernal pool site geometry, 
requirements of land use regulations, and planned uses of the site. By 
excluding this unit, some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
    We do not believe that the benefits from the designation of 
critical habitat for lands we have decided to exclude--a limited 
educational benefit and very limited regulatory benefit, which are 
largely otherwise provided for, as discussed above--exceed the benefits 
of avoiding the potential economic costs which could result from 
including those lands in this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat--even in the post-Gifford Pinchot 
environment--which requires only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the shrimp, regardless of whether 
a Federal nexus is present, must undergo a consultation with the 
Service under the requirements of section 7 of the Act. The shrimp is 
protected from take under section 9. The exclusions leave these 
protections unchanged from those which would exist if the excluded 
areas were designated as critical habitat. In

[[Page 19190]]

addition, as discussed above, there are a substantial number of Habitat 
Conservation Plans and other active conservation measures underway for 
the species, which provide greater conservation benefits than would 
result from a designation. There is accordingly no reason to believe 
that these exclusions would result in extinction of the species.
    The Service completed a section 7 consultation with the Corps on 
October 26, 2001 on the impacts of the proposed Saddleback Meadows 
Residential Development Project (Service 2001). With reference to this 
critical habitat designation, the consultation addressed the effects of 
proposed residential development project, on the federally endangered 
Riverside fairy shrimp and its proposed critical habitat. The project 
entails a 283-unit residential development on approximately 128 ac 
within the 225 ac Saddleback Meadows site, in the Foothill Trabuco 
Specific Plan area of Orange County, and proposed to fill three 
unbreached vernal pools, and two breached ponds, of the total nine 
pools in the area that are known to contain Riverside fairy shrimp. 
Approximately 97 ac of biological open space will be established by the 
project, including native habitat restoration on areas of the 
surrounding slopes.
    In evaluating the management plan that covers 97 ac of biological 
open space, we determined that the biological open space area provided 
by the proposed Saddleback Meadows Residential Development Project 
would be adequately managed, i.e., the plan or agreement would provide 
conservation benefits to the species. This is ensured by the following 
conservation measures to be implemented as part of the proposed action 
to mitigate impacts and minimize potential adverse effects of the 
proposed project. These measures include plans to preserve four pools 
within the open space area, and to create four ephemeral pools onsite 
to which Riverside fairy shrimp would be introduced (using cysts from 
impacted vernal pools). Approximately one-fifth of the salvaged soil 
and cysts will be placed in storage at the San Diego Zoological 
Society's Center for the Reproduction of Endangered Species until the 
ponds have met predetermined success criteria. Further, the 
implementation of a 10-year fairy shrimp pond creation, maintenance and 
monitoring plan includes success criteria for establishing viable fairy 
shrimp populations and the hydrology necessary to support them in the 
created ponds, and measures to ensure avoidance of irrigation water 
entering the vernal pools and ponds. Reasonable assurances that the 
management plan will be implemented are provided by the requirement 
that the proposed project proponent execute and record an irrevocable 
offer to dedicate over 97 ac of biological open space, including 
avoided and created pools and their watersheds, accompanied by a 
perpetual conservation easement for biological conservation purposes. 
Reasonable assurances that the conservation effort will be effective 
are given through the Service and Corps-approved plans mentioned above 
for perpetual maintenance and monitoring, and the non-wasting endowment 
that will be established to finance it. Further, the easement will 
state that no other easements, modifications or other activities which 
would result in disturbance to the pools or their PCEs would be allowed 
within the biological conservation easement area.
    In sum, we believe that these conservation measures identified in 
the consultation, including the dedication of 97.4 acres of biological 
open space (including the avoided and created fairy shrimp ponds and 
their watersheds) and the management, maintenance, and monitoring plans 
and funding to implement the plans, would provide a conservation 
benefit to the Riverside fairy shrimp.

Application of Section 4(b)(2) Economic Exclusion to Lands Near Tijeras 
Creek (Proposed Sub-Unit 2E)

    We have excluded all of proposed Sub-unit 2E, consisting of 
approximately 321 ac (130 ha) with approximately 101 ac (41 ha) of 
essential habitat near Tijeras Creek, Mission Viejo, under section 
4(b)(2) of the Act. The analysis which led us to the conclusion that 
the benefits of excluding this area exceed the benefits of designating 
it as critical habitat, and will not result in the extinction of the 
species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch 
as this area is currently occupied by the species, consultation for 
activities which might adversely impact the species, including possibly 
significant habitat modification (see definition of ``harm'' at 50 CFR 
17.3) would be required even without the critical habitat designation 
and without regard to the existence of a Federal nexus.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved. As explained above, 
this is the 2nd iteration of the critical habitat process for these 
lands, which has included both public comment periods and litigation, 
all with accompanying publicity. Therefore, we believe the education 
benefits which might arise from a critical habitat designation here 
have largely already been generated.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Under the Gifford Pinchot decision, critical habitat 
designations may provide greater benefits to recovery of a species than 
was previously believed, but it is not possible to quantify this at 
present. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any action 
which might impact it. The additional educational benefits which might 
arise from critical habitat designation are largely accomplished 
through the multiple notice and comments which accompanied the 
development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would range from over $5 million to over $30 million, 
largely as loss of land value and increased costs to private 
landowners. These costs could exceed $90,000 per acre. The variability 
in the impact encompasses a low to high amount of required set aside 
acreage that depends on vernal pool site geometry, requirements of land 
use regulations, and planned uses of the site. By excluding this unit, 
some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
    We do not believe that the benefits from the designation of 
critical habitat for lands we have decided to exclude--a limited 
educational benefit and very limited regulatory benefit, which are 
largely otherwise provided for, as

[[Page 19191]]

discussed above--exceed the benefits of avoiding the potential economic 
costs which could result from including those lands in this designation 
of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat--even in the post-Gifford Pinchot 
environment--which requires only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the shrimp, regardless of whether 
a Federal nexus is present, must undergo a consultation with the 
Service under the requirements of section 7 of the Act. The shrimp is 
protected from take under section 9. The exclusions leave these 
protections unchanged from those which would exist if the excluded 
areas were designated as critical habitat. In addition, as discussed 
above, there are a substantial number of Habitat Conservation Plans and 
other active conservation measures underway for the species, which 
provide greater conservation benefits than would result from a 
designation. There is accordingly no reason to believe that these 
exclusions would result in extinction of the species.

Application of Section 4(b)(2) Economic Exclusion to Chiquita Ridge 
(Sub-Unit 2F)

    We have excluded all of Sub-unit 2F, consisting of approximately 
489 ac (198 ha) and containing approximately 263 ac (106 ha) of 
essential habitat near Chiquita Ridge, Mission Viejo, under section 
4(b)(2) of the Act. The analysis which led us to the conclusion that 
the benefits of excluding this area exceed the benefits of designating 
it as critical habitat, and will not result in the extinction of the 
species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch 
as this area is currently occupied by the species, consultation for 
activities which might adversely impact the species, including possibly 
significant habitat modification (see definition of ``harm'' at 50 CFR 
17.3) would be required even without the critical habitat designation 
and without regard to the existence of a Federal nexus.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved. As explained above, 
this is the 2nd iteration of the critical habitat process for these 
lands, which has included both public comment periods and litigation, 
all with accompanying publicity. Therefore, we believe the education 
benefits which might arise from a critical habitat designation here 
have largely already been generated.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Under the Gifford Pinchot decision, critical habitat 
designations may provide greater benefits to recovery of a species than 
was previously believed, but it is not possible to quantify this at 
present. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any action 
which might impact it. The additional educational benefits which might 
arise from critical habitat designation are largely accomplished 
through the multiple notice and comments which accompanied the 
development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would range from nearly $8 million to nearly $45 
million, largely as loss of land value and increased costs to private 
landowners. These costs range from nearly $16,000 to $89,000 per acre. 
The variability in the impact encompasses a low to high amount of 
required set aside acreage that depends on vernal pool site geometry, 
requirements of land use regulations, and planned uses of the site. By 
excluding this unit, some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
    We do not believe that the benefits from the designation of 
critical habitat for lands we have decided to exclude--a limited 
educational benefit and very limited regulatory benefit, which are 
largely otherwise provided for, as discussed above--exceed the benefits 
of avoiding the potential economic costs which could result from 
including those lands in this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat--even in the post-Gifford Pinchot 
environment--which requires only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the shrimp, regardless of whether 
a Federal nexus is present, must undergo a consultation with the 
Service under the requirements of section 7 of the Act. The shrimp is 
protected from take under section 9. The exclusions leave these 
protections unchanged from those which would exist if the excluded 
areas were designated as critical habitat. In addition, as discussed 
above, there are a substantial number of Habitat Conservation Plans and 
other active conservation measures underway for the species, which 
provide greater conservation benefits than would result from a 
designation. There is accordingly no reason to believe that these 
exclusions would result in extinction of the species.

[[Page 19192]]

Application of Section 4(b)(2) Economic Exclusion to Lands Near Radio 
Tower Road (Sub-Unit 2G)

    We have excluded all of Sub-unit 2G, near Radio Tower Road in 
Mission Viejo, consisting of approximately 736 ac (298 ha) and 
containing approximately 417 ac (169 ha) of essential habitat, under 
section 4(b)(2) of the Act. The analysis which led us to the conclusion 
that the benefits of excluding this area exceed the benefits of 
designating it as critical habitat, and will not result in the 
extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch 
as this area is currently occupied by the species, consultation for 
activities which might adversely impact the species, including possibly 
significant habitat modification (see definition of ``harm'' at 50 CFR 
17.3) would be required even without the critical habitat designation 
and without regard to the existence of a Federal nexus.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved. As explained above, 
this is the 2nd iteration of the critical habitat process for these 
lands, which has included both public comment periods and litigation, 
all with accompanying publicity. Therefore, we believe the education 
benefits which might arise from a critical habitat designation here 
have largely already been generated.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Under the Gifford Pinchot decision, critical habitat 
designations may provide greater benefits to recovery of a species than 
was previously believed, but it is not possible to quantify this at 
present. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any action 
which might impact it. The additional educational benefits which might 
arise from critical habitat designation are largely accomplished 
through the multiple notice and comments which accompanied the 
development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would range from $8 million to nearly $45 million, 
largely as loss of land value and increased costs to private 
landowners. These costs range from $14,000 and $79,000 per acre. The 
variability in the impact encompasses a low to high amount of required 
set aside acreage that depends on vernal pool site geometry, 
requirements of land use regulations, and planned uses of the site. By 
excluding this unit, some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
    We do not believe that the benefits from the designation of 
critical habitat for lands we have decided to exclude--a limited 
educational benefit and very limited regulatory benefit, which are 
largely otherwise provided for, as discussed above--exceed the benefits 
of avoiding the potential economic costs which could result from 
including those lands in this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat--even in the post-Gifford Pinchot 
environment--which requires only that there be no adverse modification 
resulting from Federally-related actions. We therefore find that the 
benefits of excluding these areas from this designation of critical 
habitat outweigh the benefits of including them in the designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the shrimp, regardless of whether 
a Federal nexus is present, must undergo a consultation with the 
Service under the requirements of section 7 of the Act. The shrimp is 
protected from take under section 9. The exclusions leave these 
protections unchanged from those which would exist if the excluded 
areas were designated as critical habitat. In addition, as discussed 
above, there are a substantial number of Habitat Conservation Plans and 
other active conservation measures underway for the species, which 
provide greater conservation benefits than would result from a 
designation. There is accordingly no reason to believe that these 
exclusions would result in extinction of the species.

Application of Section 4(b)(2) Economic Exclusion to Southeastern Otay 
Mesa (Sub-Unit 5C)

    We have excluded the remainder of Sub-unit 5C, approximately 866 ac 
(350 ha), and containing approximately 111 ac (45 ha) of essential 
habitat at Otay Mesa, under section 4(b)(2) of the Act. The analysis 
which led us to the conclusion that the benefits of excluding this area 
exceed the benefits of designating it as critical habitat, and will not 
result in the extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch 
as this area is currently occupied by the species, consultation for 
activities which might adversely impact the species, including possibly 
significant habitat modification (see definition of ``harm'' at 50 CFR 
17.3) would be required even without the critical habitat designation 
and without regard to the existence of a Federal nexus.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved. As explained above, 
this is the 2nd iteration of the critical habitat process for these 
lands, which has included both public comment periods and litigation, 
all with accompanying publicity. Therefore, we believe the education 
benefits which might arise

[[Page 19193]]

from a critical habitat designation here have largely already been 
generated.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Under the Gifford Pinchot decision, critical habitat 
designations may provide greater benefits to recovery of a species than 
was previously believed, but it is not possible to quantify this at 
present. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any action 
which might impact it. The additional educational benefits which might 
arise from critical habitat designation are largely accomplished 
through the multiple notice and comments which accompanied the 
development of this regulation, and publicity over the prior 
litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would range from $5 million to $31 million, largely as 
loss of land value and increased costs to private landowners. The 
variability in the impact encompasses a low to high amount of required 
set aside acreage that depends on vernal pool site geometry, 
requirements of land use regulations, and planned uses of the site.
    In addition, landowners in this proposed unit have already incurred 
approximately $42 million in costs and loss of value as a result of the 
listing of the Riverside fairy shrimp. Moreover, the analysis showed 
that, given RFS-related conservation activities, San Diego County may 
have produced 3,700 fewer housing units, or 4.4 percent of the total 
built, over the 12-year time period since listing, and that the level 
of supply reductions in San Diego County suggest that the real estate 
market and housing prices may have been affected. It found that 
additional consumers and producers were and are likely affected by the 
changes in price and quantity, and the magnitude of the total impacts 
in this instance would surpass the landowner-only cost figures cited 
above.
    Although the analysis considered all of proposed unit in its 
entirety, it seems clear that the economic impacts to landowners will 
largely arise from the Sub-unit 5C. Sub-unit 5A (61 ac (25 ha)) is 
owned by the Sweetwater Union High School District, and Sub-unit 5B by 
the DHS (see Application of Section 4(b)(2) National Security to U.S. 
Department of Homeland Security Lands above); real estate development 
is not a likely event on either set of lands. By excluding Sub-unit 5C, 
we will avoid some or all of these additional costs to those already 
incurred by affected landowners. The remaining lands within Subunit 5A 
are conserved as part of a section 7 consultation and are not available 
for future residential development.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
    We do not believe that the benefits from the designation of 
critical habitat for lands we have decided to exclude--a limited 
educational benefit and very limited regulatory benefit, which are 
largely otherwise provided for, as discussed above--exceed the benefits 
of avoiding the potential economic costs which could result from 
including those lands in this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, on top of the extensive costs they have already 
incurred, will contribute to a more positive climate for Habitat 
Conservation Plans and other active conservation measures which provide 
greater conservation benefits than would result from designation of 
critical habitat--even in the post-Gifford Pinchot environment--which 
requires only that the there be no adverse modification resulting from 
Federally-related actions. We therefore find that the benefits of 
excluding these areas from this designation of critical habitat 
outweigh the benefits of including them in the designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the shrimp, regardless of whether 
a Federal nexus is present, must undergo a consultation with the 
Service under the requirements of section 7 of the Act. The shrimp is 
protected from take under section 9. The exclusions leave these 
protections unchanged from those which would exist if the excluded 
areas were designated as critical habitat. In addition, as discussed 
above, there are a substantial number of Habitat Conservation Plans and 
other active conservation measures underway for the species, which 
provide greater conservation benefits than would result from a 
designation. There is accordingly no reason to believe that these 
exclusions would result in extinction of the species.

Relationship of Critical Habitat to Approved Habitat Conservation Plans 
(HCPs)

    We have excluded lands within habitat conservation plans under 
section 4(b)(2) of the Act. The analysis which led us to the conclusion 
that the benefits of excluding this area exceed the benefits of 
designating it as critical habitat, and will not result in the 
extinction of the species, follows.
(1) Benefits of Inclusion
    The areas excluded are currently occupied by the species. If these 
areas were designated as critical habitat, any actions with a Federal 
nexus which might adversely modify the critical habitat would require a 
consultation with us, as explained above, in the section of this notice 
entitled ``Effects of Critical Habitat Designation.'' However, inasmuch 
as this area is currently occupied by the species, consultation for 
activities which might adversely impact the species, including possibly 
significant habitat modification (see definition of ``harm'' at 50 CFR 
17.3) would be required even without the critical habitat designation 
and without regard to the existence of a Federal nexus.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved. As explained above, 
this is the 2nd iteration of the critical habitat process for these 
lands, which has included both public comment periods and litigation, 
all with accompanying publicity. Therefore, we believe the education 
benefits which might arise from a critical habitat designation here 
have largely already been generated.
    In summary, we believe that this proposed unit as critical habitat 
would provide little additional Federal regulatory benefits for the 
species. Under the Gifford Pinchot decision, critical habitat 
designations may provide greater benefits to recovery of a species than 
was previously believed, but it is not possible to quantify this at 
present. Because the proposed critical habitat is occupied by the 
species, there must be consultation with the Service over any action 
which might impact it. The additional educational benefits which might 
arise from critical habitat designation are largely accomplished 
through the multiple notice and

[[Page 19194]]

comments which accompanied the development of this regulation, and 
publicity over the prior litigation.
(2) Benefits of Exclusion
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this unit of the proposed 
critical habitat would range from over $5 million to over $30 million, 
largely as loss of land value and increased costs to private 
landowners. These costs could exceed $90,000 per acre. The variability 
in the impact encompasses a low to high amount of required set aside 
acreage that depends on vernal pool site geometry, requirements of land 
use regulations, and planned uses of the site. By excluding this unit, 
some or all of those costs will be avoided.
(3) The Benefits of Exclusion Exceed the Benefits of Inclusion
    We do not believe that the benefits from the designation of 
critical habitat for lands we have decided to exclude--a limited 
educational benefit and very limited regulatory benefit, which are 
largely otherwise provided for, as discussed above--exceed the benefits 
of avoiding the potential economic costs which could result from 
including those lands in this designation of critical habitat.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures which 
provide greater conservation benefits than would result from 
designation of critical habitat--even in the post-Gifford Pinchot 
environment--which requires only that the there be no adverse 
modification resulting from Federally-related actions. We therefore 
find that the benefits of excluding these areas from this designation 
of critical habitat outweigh the benefits of including them in the 
designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these lands will not result in 
extinction of the species, as they are considered occupied habitat. Any 
actions which might adversely affect the shrimp, regardless of whether 
a Federal nexus is present, must undergo a consultation with the 
Service under the requirements of sec. 7 of the Act. The shrimp is 
protected from take under section 9. The exclusions leave these 
protections unchanged from those which would exist if the excluded 
areas were designated as critical habitat. In addition, as discussed 
above, there are a substantial number of Habitat Conservation Plans and 
other active conservation measures underway for the species, which 
provide greater conservation benefits than would result from a 
designation. There is accordingly no reason to believe that these 
exclusions would result in extinction of the species.
    As described above, section 4(b)(2) of the Act requires us to 
consider other relevant impacts, in addition to economic and national 
security impacts, when designating critical habitat. Section 
10(a)(1)(B) of the Act authorizes us to issue permits for the take of 
listed wildlife species incidental to otherwise lawful activities. 
Development of an HCP is a prerequisite for the issuance of an 
incidental take permit pursuant to section 10(a)(1)(B) of the Act. An 
incidental take permit application must be supported by an HCP that 
identifies conservation measures that the permittee agrees to implement 
for the species to minimize and mitigate the impacts of the permitted 
incidental take.
    HCPs vary in size and may provide for incidental take coverage and 
conservation management for one or many federally listed species. 
Additionally, more than one applicant may participate in the 
development and implementation of an HCP. Some areas occupied by, and 
determined to be essential to, the Riverside fairy shrimp involve 
complex HCPs that address multiple species, cover large areas, and have 
many participating permittees. Large regional HCPs expand upon the 
basic requirements set forth in section 10(a)(1)(B) of the Act because 
they reflect a voluntary, cooperative approach to large-scale habitat 
and species conservation planning. Many of the large regional HCPs in 
southern California have been, or are being, developed to provide for 
the conservation of numerous federally listed species and unlisted 
sensitive species and the habitat that provides for their biological 
needs. These HCPs address impacts within the plan's boundaries area and 
create a preserve design within the planning area. Over time, areas in 
the planning area are developed according to the HCP, and the area 
within the preserve is acquired, managed, and monitored. These HCPs are 
designed to implement conservation actions to address future projects 
that are anticipated to occur within the planning area of the HCP, in 
order to reduce delays in the permitting process.
    In the case of approved regional HCPs (e.g., those sponsored by 
cities, counties, or other local jurisdictions) wherein the 
conservation of the Riverside fairy shrimp is addressed, a primary goal 
is to provide for the protection and management of habitat essential 
for the conservation of the Riverside fairy shrimp while directing 
development to non-essential areas. The regional HCP development 
process provides an opportunity for more intensive data collection and 
analysis regarding the use of particular habitat areas by the Riverside 
fairy shrimp. The regional HCP planning process also enables us to 
construct a habitat preserve system that provides for the biological 
needs and long-term conservation of the Riverside fairy shrimp. 
Completed HCPs and their accompanying Implementation Agreements contain 
management measures and protections for identified preserve areas that 
protect, restore, and enhance the value of these lands as habitat for 
the Riverside fairy shrimp. These measures include explicit standards 
to minimize any impacts to the covered species and its habitat. In 
general, HCPs are designed to ensure that the value of the conservation 
lands are maintained, expanded, and improved for the species that they 
cover.
    In approving these HCPs, the Service has provided assurances to 
permit holders that once the protection and management required under 
the plans are in place and for as long as the permit holders are 
fulfilling their obligations under the plans, no additional mitigation 
in the form of land or financial compensation will be required of the 
permit holders and, in some cases, specified third parties. Similar 
assurances will be extended to future permit holders in accordance with 
the Service's HCP Assurance (``No Surprises'') rule codified at 50 CFR 
17.22(b)(5) and (6) and 17.32(b)(5) and (6).
    We believe that in most instances, the benefits of excluding 
legally operative HCPs from the critical habitat designations will 
outweigh the benefits of including them and would thereby prevent the 
extinction of the species. The following represents our rationale for 
excluding essential habitat from critical habitat for lands within 
approved HCPs.

Orange County Central-Coastal Natural Community Conservation Program/
Habitat Conservation Plan

    The Central-Coastal Natural Community Conservation Program/Habitat 
Conservation Plan (NCCP/HCP) in Orange County was developed in 
cooperation with numerous local and State jurisdictions and agencies 
and

[[Page 19195]]

participating landowners, including the cities of Anaheim, Costa Mesa, 
Irvine, Orange, San Juan Capistrano, and the Southern California Edison 
and Transportation Corridor Agencies, The Irvine Company, California 
Department of Parks and Recreation, Metropolitan Water District of 
Southern California, and the County of Orange. Approved in 1996, the 
Central-Coastal NCCP/HCP provides for the establishment of 
approximately 38,738 ac (15,677 ha) of reserve lands for 39 Federal- or 
State-listed and unlisted sensitive species within the 208,713 ac 
(84,463 ha) planning area. We issued an incidental take permit under 
section 10(a)(1)(B) of the Act that provides conditional incidental 
take authorization for the Riverside fairy shrimp for all areas within 
the Central-Coastal Sub-region.
    Within the Central-Coastal NCCP/HCP, in the North Ranch Policy Plan 
area, Riverside fairy shrimp are known to occur in a natural vernal 
pool located on a rock outcropping. The North Ranch Policy Plan area 
was excluded from the take authorization provided under the Central-
Coastal NCCP/HCP. However, in 2002, the owner of lands within the North 
Ranch Policy Plan area (the Irvine Company), granted a conservation 
easement to The Nature Conservancy over the portion of the land where 
this vernal pool is located, and provided a $10 million management 
endowment. The conservation easement and management endowment provide 
special management and protection for the Riverside fairy shrimp. 
Therefore, essential habitat within the North Ranch Policy Plan area 
and within the other lands covered by the Central-Coastal NCCP/HCP in 
Orange County (within Map Unit 2) have been excluded from this final 
critical habitat designation based on section 4(b)(2) of the Act.

Western Riverside County Multiple Species Habitat Conservation Plan

    The Western Riverside County Multiple Species Habitat Conservation 
Plan (MSHCP) was developed over a period of eight years. Participants 
in this HCP include 14 cities, the County of Riverside (including the 
Riverside County Flood Control and Water Conservation Agency, Riverside 
County Transportation Commission, Riverside County Parks and Open Space 
District, and Riverside County Waste Department), the California 
Department of Parks and Recreation, and the California Department of 
Transportation. The Western Riverside County MSHCP is a sub-regional 
plan under the State's NCCP and was developed in cooperation with the 
California Department of Fish and Game. The MSHCP establishes a multi-
species conservation program to minimize and mitigate the expected loss 
of habitat values of ``covered species'' and, with regard to covered 
animal species, their incidental take. The intent of the MSHCP is to 
provide avoidance, minimization, and mitigation measures for the 
impacts of proposed activities on covered species and their habitats. 
Within the 1,260,000 ac (510,000 ha) Plan Area of the MSHCP, 
approximately 153,000 ac (62,000 ha) of diverse habitats are now being 
conserved. The conservation of this large area complements other 
existing natural and open space areas (e.g., State Parks, Forest 
Service, and County Park lands). Essential habitat for the Riverside 
fairy shrimp within the Western Riverside County MSHCP area (within Map 
Unit 3) has been excluded from critical habitat pursuant to section 
4(b)(2) of the Act.
    In Riverside County, there are 7 naturally occurring populations of 
Riverside fairy shrimp (in Skunk Hollow Pool, Field Pool, Scott Pool, 
Schleuniger Pool, Pechanga Pool, Australia Pool, March Air Reserve 
Base, and Banning Complex), one population in created pools (Johnson 
Ranch Created Pools), and one population proposed to be relocated into 
created pools (Clayton Ranch Proposed Pools), all of which are located 
within the Plan Area of the Western Riverside County MSHCP (Service 
2004). The pools in Riverside County are significant since they 
represent the most inland extent of the species range (Eriksen and Belk 
1999). Also, the type locality for the species, which is of taxonomic 
significance, was located within Riverside County (Eriksen 1988). 
Habitat within Riverside County is ideal for the species. Riverside 
County harbors large vernal pools that persist for long periods of 
time, allowing this slow-maturing species to reproduce. One of these, 
the Skunk Hollow Pool, is the largest valley vernal pool remaining in 
all of southern California (Eriksen and Belk 1999).
    Within the Plan Area, four occurrences and their watersheds are 
protected by existing conservation and management agreements: (1) Skunk 
Hollow Pool, (2) Field Pool, (3) seven Johnson Ranch Created Pools, and 
(4) two Clayton Ranch Proposed Pools. A fifth occurrence, Schleuniger 
Pool, is also protected by existing conservation and management 
agreements; however, part of its watershed remains unprotected. Under 
the Western Riverside County MSHCP, the Lake Elsinore Back Basin Core 
Area will be conserved. The Australia Pool, which is located within 
this Core Area, will likely have a minimum buffer of 380 feet to a 
buffer greater than 1,000 feet from the edge of the pool (Service 
2004). Three known populations of Riverside fairy shrimp are located 
outside of the MSHCP Conservation Area including Banning Complex, 
Pechanga Pool, and Scott Pool. The Scott Pool has recently been 
impacted by disking, several pipeline projects, and the installation of 
a telephone pole (Service 2004). The Pechanga Pool has been subject to 
cultivation (Eriksen 1988). Impacts to these pools will be avoided and 
minimized through implementation of the Riparian/Riverine Areas and 
Vernal Pools Policy. Specifically, this policy requires that habitat 
for this species be mapped throughout the Plan Area and avoided if 
feasible. If avoidance is not feasible, surveys will be conducted and 
90 percent of the occupied area determined to have long-term 
conservation value for the species will be conserved and managed 
(Service 2004).
    We anticipate the loss of only 10 percent of occupied Riverside 
fairy shrimp habitats determined to have long-term conservation value 
for the species. We anticipate that this species will persist in the 
remaining 90 percent of occupied habitat with long-term conservation 
value for the species, including the 39 percent of the modeled habitat 
within both the existing public/quasi-public lands and the Additional 
Reserve Lands. The MSHCP will further offset the proposed impacts to 
this species through management and monitoring actions within the 
Reserve, including the enhancement of historic or vestigial vernal 
pools within Core Areas. This enhancement will help offset the impacts 
of the action by increasing the quality of the habitat that is 
conserved for this species and by allowing the expansion of populations 
within the Reserve through the enhancement of historic or vestigial 
vernal pools that do not currently provide habitat for the species 
(Service 2004). The Western Riverside County MSHCP includes a 
significant number of local and State partners. Moreover, the County of 
Riverside and the participating jurisdictions have demonstrated their 
sustained support for the Western Riverside County MSHCP by the 
November 5, 2002 passage of a local bond measure to fund the 
acquisition of land in support of the MSHCP. Excluding critical habitat 
from the Western Riverside County MSHCP will continue to foster the 
close partnerships with the local jurisdictions and the State of 
California.

[[Page 19196]]

Northwestern San Diego Multiple Habitat Conservation Plan

    The Northwestern San Diego Multiple Habitat Conservation Plan 
(MHCP) encompasses approximately 111,939 ac (45,300 ha) and proposes to 
establish 19,928 ac (8,064 ha) of preserve lands covering Federal or 
State listed, unlisted, and sensitive species, including the Riverside 
fairy shrimp. Seven incorporated cities, including Carlsbad, Encinitas, 
Escondido, Oceanside, San Marcos, Solana Beach, and Vista are 
participants in this regional NCCP/HCP. Under the broad umbrella of the 
MHCP, each participating jurisdiction prepares a sub-area plan that 
complements the goals of the MHCP. The Service consults on each sub-
area plan under section 7 of the Act to ensure they are consistent with 
the aims of the MHCP. For the City of Carlsbad, we approved their sub-
area plan for the MHCP, the Habitat Management Plan (HMP), on November 
12, 2004. The Riverside fairy shrimp is one of the species covered 
under the City of Carlsbad's HMP and we have determined the plan will 
provide for the long-term conservation of the species.

San Diego Multiple Species Conservation Plan

    The San Diego Multiple Species Conservation Plan (MSCP) effort 
encompasses more than 582,000 ac (236,000 ha) and reflects the 
cooperative efforts of the County and City of San Diego, ten additional 
city jurisdictions, and several independent special districts, the 
State, the building industry, and environmentalists. Over the permit 
term, the San Diego MSCP provides for the establishment of 
approximately 171,000 ac (69,573 ha) of preserve areas, and provides 
conservation benefits for 85 federally listed and sensitive species, 
including the Riverside fairy shrimp. Under the broad umbrella of the 
San Diego MSCP, each participating jurisdiction prepares a sub-area 
plan that implements the goals of the MSCP. The San Diego MSCP and its 
approved sub-area plans include measures to conserve known Riverside 
fairy shrimp populations on Otay Mesa. The Service consults on each 
sub-area plan under section 7 of the Act to ensure they are consistent 
with the aims of the San Diego MSCP. Currently, the County of San 
Diego, and the Cities of San Diego, La Mesa, Poway, Chula Vista, and 
the San Diego Gas and Electric (SDG&E) have approved sub-area plans 
under the San Diego MSCP. In addition to other Federal or State listed 
species and sensitive species, these sub-area plans provide long-term 
conservation for the Riverside fairy shrimp within San Diego County. In 
addition, surveys for Riverside fairy shrimp are required in suitable 
habitat (i.e., vernal pools, ephemeral wetlands, and seasonally ponded 
areas).
    The San Diego MSCP provides for avoidance of impacts to vernal pool 
habitat for the Riverside fairy shrimp both within and outside of 
existing and targeted reserve areas. These lands are to be permanently 
maintained and managed for the benefit of the Riverside fairy shrimp 
and other covered species. However, ``take'' is not included in the 
MSCP 10(a)(1)(B) permit. Thus, the incidental take permits issued to 
the City and County of San Diego under this plan do not allow for the 
take of Riverside fairy shrimp in natural vernal pool habitat. The 
eastern portion of Otay Mesa includes Major and Minor Amendment Areas, 
which require a special permitting process. Portions of essential 
habitat areas which the SDG&E company uses for their operational and 
maintenance activities that are located within the San Diego MSCP in 
southwestern San Diego County (Map Units 3 and 4), and within the SDG&E 
Sub-regional Plan have been excluded from critical habitat based on 
section 4(b)(2) of the Act. This sub-regional plan and the 
clarification document (July 2004) defines avoidance, minimization, and 
offsetting measures to be implemented by SDG&E for the operations and 
maintenance activities and future construction of new facilities and 
roads.

Relationship of Critical Habitat to HCPs in Development

    There are several HCPs and NCCP/HCPs in development which may 
ultimately include the Riverside fairy shrimp as a covered species. 
HCPs and NCCP/HCPs currently being developed include various sub-area 
plans under the MHCP in northwestern San Diego County, the South Orange 
County NCCP/HCP, and the Northern San Diego Multiple Species 
Conservation Program (MSCP North). These aforementioned HCPs, all of 
which are being prepared in cooperation with the State's NCCP program, 
have been determined to be significant planning efforts that will 
require the preparation of an Environmental Impact Report and 
Environmental Impact Statement, in compliance with the National 
Environmental Policy Act (40 CFR 1502.3) and the California 
Environmental Quality Act. Further, none of the HCPs under development 
have reached a point in their development where conservation measures 
for the Riverside fairy shrimp have been adequately identified or their 
adequacy determined by the Service.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on October 19, 2004 (69 FR 61461). We 
accepted comments on the draft analysis until November 18, 2004. The 
primary purpose of the economic analysis is to estimate the potential 
economic impacts associated with the designation of critical habitat 
for the Riverside fairy shrimp. This information is intended to assist 
the Secretary in making decisions about whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas in the designation.
    This economic analysis considers the economic efficiency effects 
that may result from the designation, including habitat protections 
that may be co-extensive with the listing of the species. It also 
addresses distribution of impacts, including an assessment of the 
potential effects on small entities and the energy industry. This 
information can be used by the Secretary to assess whether the effects 
of the designation might unduly burden a particular group or economic 
sector. To conduct the analysis, best available data were gathered from 
a variety of sources, including regional, city, and county planning 
agencies, land developers and conservancies, and project managers, 
including those for both preserves and planned developments.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of

[[Page 19197]]

protections are not included in the analysis as they are considered to 
be part of the regulatory and policy baseline.
    The largest share of economic impacts identified by this analysis 
is to real estate development. Given the magnitude of forecast real 
estate development impacts in each category of impact, the analysis 
performs a screening test for efficiency and distributional effects 
that go beyond the impact on the project applicant or landowner only. 
That is, where changes in the regional output of housing, for instance, 
may be associated with Riverside fairy shrimp-related conservation 
activities, consumer and producer impacts for the entire housing market 
may exist. The screening test concludes that the amount of housing 
potentially removed from the market supply in each county is not a 
significant amount of the total supply of new housing. Under these 
conditions, significant consumer or producer surplus losses are not 
expected. However, for past impacts occurring on lands excluded from 
designation, the housing market in both San Diego County may have 
experienced reduced output or increased prices as a result of Riverside 
fairy shrimp-related conservation activities.
    We anticipate no impacts to national security, Tribal lands, 
partnerships, or habitat conservation plans resulting from this 
critical habitat designation. Our economic analysis indicates an 
overall low cost resulting from the designation.
    A copy of the final economic analysis with supporting documents are 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Branch of Endangered Species (see 
ADDRESSES section), or by downloading it from the Internet at http://carlsbad.fws.gov.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of Section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species.

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996), whenever an 
agency is required to publish a notice of rulemaking for any proposed 
or final rule, it must prepare and make available for public comment a 
regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small government jurisdictions). However, no regulatory flexibility 
analysis is required if the head of an agency certifies the rule will 
not have a significant economic impact on a substantial number of small 
entities. The Small Business Regulatory Enforcement Fairness Act 
amended the RFA to require Federal agencies to provide a statement of 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities. The Small 
Business Regulatory Enforcement Fairness Act also amended the RFA to 
require a certification statement.
    Small entities include small organizations, such as independent 
non-profit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the Small Business 
Regulatory Enforcement Fairness Act does not explicitly define 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under Section 
7 of the Act on activities they fund, permit, or implement that may 
affect Riverside fairy shrimp. Federal agencies also must consult with 
us if their activities may affect critical habitat. Designation of 
critical habitat, therefore, could result in an additional economic 
impact on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities.
    The draft economic analysis (September 15, 2004) was based on 
acreages from the proposed rule and predicts potential costs of the 
proposed designation to small businesses. Based on this analysis, the 
number of small land development business affected annually would be 
7.1 (0.3 percent of total small businesses) for Los Angeles County, 5.6 
(0.5 percent of total small businesses) for Orange County, and 8.0 (0.9 
percent of total small businesses) for San Diego County. Over 20 years, 
the total impact on small land development businesses ranged from 
$3,534,420 to $18,969,901 for Los Angeles County,

[[Page 19198]]

$10,705,409 to $58,439,095 for Orange County, and $2,796,785 to 
$15,206,384 for San Diego County. The annual impact on revenue per 
affected business per year ranged from $5,000 to $26,700 for Los 
Angeles County, $19,000 to $104,700 for Orange County, and $3,500 to 
$19,000 for San Diego County. Between 2005-2024, the economic analysis 
predicts potential cost from the designation of critical habitat for 
the Riverside fairy shrimp on real estate development at Carlsberg 
Ranch/Tierra Rajada (Sub-Units 1A and 1B) is $376,000; to public park 
improvements at O'Neill Park (Unit 2) is $28,000; to rail construction 
at the Poinsettia Lane Train Station (Unit 4) is $28,000; and no 
additional economic impact on lands owned by the Sweetwater Union High 
School District (Unit 5) because these lands have already been 
conserved as an offsetting measure for the development of the Otay Mesa 
High School. Based on this data from the proposed rule, and the 
additional exclusions of units made in this final rulemaking, we have 
determined that this designation would not affect a substantial number 
of small land development companies. Further, we have determined that 
this designation would also not result in a significant effect to the 
annual sales of those small businesses impacted by this designation. As 
such, we are certifying that this designation of critical habitat would 
not result in a significant economic impact on a substantial number of 
small entities.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et 
seq.)

    Under the Small Business Regulatory Enforcement Fairness Act, this 
rule is not a major rule. Our detailed assessment of the economic 
effects of this designation is described in the economic analysis. 
Based on the effects identified in the economic analysis, we believe 
that this rule will not have an annual effect on the economy of $100 
million or more, will not cause a major increase in costs or prices for 
consumers, and will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. Refer to the final economic analysis for a discussion of 
the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This final rule to 
designated critical habitat for the Riverside fairy shrimp is not 
expected to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children (AFDC) work programs; Child Nutrition; Food 
Stamps; Social Services Block Grants; Vocational Rehabilitation State 
Grants; Foster Care, Adoption Assistance, and Independent Living; 
Family Support Welfare Services; and Child Support Enforcement.) 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except (i) a 
condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply. Nor would critical 
habitat shift the costs of the large entitlement programs listed above 
onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, Small Government Agency Plan is 
not required.

Federalism

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

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not

[[Page 19199]]

unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Endangered Species 
Act. This final rule uses standard property descriptions and identifies 
the primary constituent elements within the designated areas to assist 
the public in understanding the habitat needs of the Riverside fairy 
shrimp.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act (NEPA)

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996). The final environmental assessment is 
available upon request from the Carlsbad Fish and Wildlife Office, U.S. 
Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, 
California 92009 (telephone 760/431-9440), or on our Web site at http://carlsbad.fws.gov.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis.
    Historical records indicate that there were two vernal pools on or 
near Tribal lands of the Pechanga Band of Luise[ntilde]o Indians that 
contained Riverside fairy shrimp (Eriksen 1988). After reviewing aerial 
photographs of the area and meeting with the Tribe's Environmental 
Coordinator in March 2004, we were unable to confirm these occurrences. 
It is possible that additional survey work would allow a better 
documentation of the possible species occurrence. However, at this time 
we have insufficient information on the occurrence of the Riverside 
fairy shrimp on Tribal lands of the Pechanga Band of Luise[ntilde]o 
Indians. Therefore, critical habitat for the Riverside fairy shrimp has 
not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Carlsbad Fish and Wildlife Office, U.S. 
Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, 
California 92009 (telephone 760/431-9440).

Author(s)

    The primary author of this package is the Carlsbad Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley 
Road, Carlsbad, California 92009.

List of Subjects in 50 CFR Part 17

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

A Note About Critical Habitat Unit Numbering

    A large number of units in the proposed rule have been exempted or 
excluded from designation in the final rule. In order to understand the 
relationship between sub-unit and unit numbers in the proposed rule 
(which have been retained in the preamble of this document), and sub-
unit and unit numbers in the final designation (i.e., in the 
Regulations Promulgation portion of this document), we provide the 
following crosswalk: Proposed Sub-units 1A and 1B in the proposed rule 
and preamble remain as Sub-units 1A and 1B in the Regulations 
Promulgation section. Sub-unit 2D in the proposed rule and preamble is 
Unit 2 in the Regulations Promulgation section. Sub-unit 4C in the 
proposed rule and preamble is Unit 3 in the Regulations Promulgation 
section. Sub-unit 5A in the proposed rule and preamble is Unit 4 in the 
Regulations Promulgation section.

Regulation Promulgation

0
Accordingly, amend part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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


0
2. In Sec.  17.95(h), revise the entry for the Riverside fairy shrimp 
(Streptocephalus woottoni) under ``CRUSTACEANS'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (h) Crustaceans.
* * * * *
Riverside Fairy Shrimp (Streptocephalus woottoni)
    (1) Critical habitat units for Ventura, Orange, and San Diego 
Counties, California, are depicted on the maps that follow.
    (2) Critical habitat consists of vernal pools, vernal pool 
complexes, and ephemeral ponds and depressions and their associated 
surrounding upslope areas with the soil and hydrologic regimes 
indicated on the maps below and in the legal descriptions.
    (3) Within these areas, the primary constituent elements for the 
Riverside fairy shrimp are those habitat components that are essential 
for the primary biological needs of foraging, sheltering, reproduction, 
and dispersal. The primary constituent elements are found in those 
areas that support vernal pools or other ephemeral ponds and 
depressions, and their associated watersheds. The primary constituent 
elements determined essential to the conservation of Riverside fairy 
shrimp are:
    (i) Small to large pools or pool complexes that have the 
appropriate size and volume, local climate, topography, water 
temperature, water chemistry, soil conditions, and length of time of 
inundation with water necessary for Riverside fairy shrimp incubation 
and reproduction, as well as dry periods necessary to provide the 
conditions to maintain a dormant and viable cyst bank. Specifically, 
the conditions necessary to allow for successful reproduction of 
Riverside fairy shrimp fall within the following ranges:
    (A) Moderate to deep depths ranging from 10 in (25 cm) to 5-10 ft 
(1.5-3 m);
    (B) Pool or pond inundation lasting for a minimum of 2 months to 5-
8 months or more, i.e., a sufficient wet period in winter and spring 
months to allow the Riverside fairy shrimp to hatch, mature, and 
reproduce, followed

[[Page 19200]]

by a dry period prior to the next winter and spring rains;
    (1) Water temperatures within the range of 41-77 degrees F (5-25 
degrees C);
    (2) Water chemistry with low total dissolved solids and alkalinity 
(means of 77 and 65 parts per million, respectively); and
    (3) Water pH within a range of 6.4-7.1.
    (ii) The immediately surrounding upslope area that provides the 
pool or pool complex with the following:
    (A) Hydrologic flows, both above-ground (sheet flow) and sub-
surface through soil or sediments, to fill the pools and maintain the 
seasonal cycle of ponding and drying, at the appropriate rates;
    (B) A source of detritus and nutrients;
    (C) Sources of soil, ion and mineral transport to the pool or pool 
complex to provide and maintain the appropriate water chemistry 
conditions and impermeability of the pool basin(s); and
    (D) Habitat for animals that act as dispersers of cysts and vernal 
pool plant seeds or pollen, as well as habitat for the pollinators of 
the vernal pool plants that also form an integral part of the vernal 
pool's ecology.
    (iii) The size of the immediately surrounding upslope area varies 
greatly depending on a number of factors and has been assessed for each 
sub-unit. Factors that affect the size of the surrounding upslope area 
include surface and sub-surface hydrology, the topography of the area 
surrounding the pool or pools, the vegetative coverage, and the soil 
and bedrock substrate in the area. The upslope areas designated vary 
from a few acres to over 100 ac (40 ha) in size.
    (iv) Soils in the summit, rim and basin geomorphic positions with a 
clay component and/or an impermeable surface or subsurface layer that 
provide a unique assemblage of nutrient availability and redox 
conditions known to support vernal pool habitat. The biogeochemical 
environment strongly influences hydrologic properties and plays a 
critical role in nutrient cycling in vernal pool ecosystems (Hobson and 
Dahlgren 1998).
    (v) The matrix of vernal pools/ephemeral wetlands, the immediate 
upslope areas, upland habitats, and underlying soil substrates form 
hydrological and ecologically functional units. These features and the 
lands that they represent are essential to the conservation of the 
Riverside fairy shrimp. All lands identified as essential and proposed 
as critical habitat contain one or more of the primary constituent 
elements for the Riverside fairy shrimp.
    (4) Critical habitat does not include man-made structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located.
    (5) Data layers defining map units were created on a base of USGS 
7.5' quadrangles, and critical habitat units were then mapped using 
Universal Transverse Mercator (UTM) coordinates.
    (6) Index map of critical habitat units for the Riverside fairy 
shrimp follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR12AP05.000


[[Page 19201]]


    (7) Unit 1: Ventura County, California.
    (i) Sub-unit 1A: City of Moorpark Greenbelt, north Tierra Rejada 
Valley from USGS 1:24,000 quadrangle map Simi Valley West. Lands 
bounded by the following UTM NAD27 coordinates (E, N): 329000, 3793300; 
329400, 3793300; 329400, 3792900; 329300, 3792900; 329300, 3792800; 
329000, 3792800; 329000, 3793300.
    (ii) Sub-unit 1B: south Tierra Rejada Valley. Lands bounded by the 
following UTM NAD27 coordinates (E, N): 330900, 3792500; 331100, 
3792500; 331100, 3792300; 331200, 3792300; 331200, 3792200; 331300, 
3792200; 331300, 3792100; 331400, 3792100; 331400, 3791400; 331300, 
3791400; 331300, 3791500; 331100, 3791500; 331100, 3791400; 331000, 
3791400; 331000, 3791300; 330600, 3791300; 330600, 3791900; 330500, 
3791900; 330500, 3792000; 330600, 3792000; 330600, 3792100; 330700, 
3792100; 330700, 3792300; 330800, 3792300; 330800, 3792400; 330900, 
3792400; 330900, 3792500.
    (iii) Note: Map of critical habitat Sub-units 1A and 1B for the 
Riverside fairy shrimp follows:
[GRAPHIC] [TIFF OMITTED] TR12AP05.001

    (8) Unit 2: Orange County, California. From USGS 1:24,000 
quadrangle map Santiago Peak.
    (i) Unit 2: Land within O'Neill Regional Park. Lands bounded by the 
following UTM NAD27 coordinates (E, N): 443400, 3725300; 443900, 
3725300; 443900, 3724900; 443800, 3724900; 443800, 3724800; 443600, 
3724800; 443600, 3724900; 443500, 3724900; 443500, 3725100; 443400, 
3725100; 443400, 3725300.
    (ii) Note: Map of critical habitat Unit 2 for the Riverside fairy 
shrimp follows:

[[Page 19202]]

[GRAPHIC] [TIFF OMITTED] TR12AP05.002

    (9) Unit 3: North San Diego County, San Diego County, California. 
From USGS 1:24,000 quadrangle map Encinitas.
    (i) Unit 3: Land near Poinsettia Lane Commuter Station, Carlsbad 
Lands bounded by the following UTM NAD27 coordinates (E, N): 470100, 
3663600; thence east to the North San Diego County Transit (NSDCT) 
boundary at UTM NAD27 y-coordinate 3663600; thence south following the 
NSDCT boundary to UTM NAD27 x-coordinate 470300; thence south to UTM 
NAD27 coordinates 470300, 3663300; thence east to the NSDCT boundary at 
UTM NAD27 y-coordinate 3663300; thence southeast following the NSDCT 
boundary lands to UTM NAD 27 x-coordinate 470400; thence south 
following UTM NAD27 x-coordinate 470400 to the NSDCT boundary; thence 
west and south following the NSDCT boundary to UTM NAD27 y-coordinate 
3662400; thence west following UTM NAD27 y-coordinate 3662400 to the 
NSDCT boundary; thence northwest following the NSDCT boundary to UTM 
NAD27 x-coordinate 470400; thence north along UTM NAD27 x-coordinate 
470400 to UTM NAD27 coordinates 470400, 3662900; thence west to NSDCT 
lands at UTM NAD 27 y-coordinate 3662900; thence northwest following 
the NSDCT boundary returning to UTM NAD27 coordinates 470100, 3663600.
    (ii) Note: Map of critical habitat Unit 3 for the Riverside fairy 
shrimp follows:

[[Page 19203]]

[GRAPHIC] [TIFF OMITTED] TR12AP05.003

    (10) Map Unit 4: South San Diego County, San Diego, California. 
From USGS 1:24,000 quadrangle map Imperial Beach.
    (i) Unit 4: Sweetwater Union High School District lands on Otay 
Mesa. Lands bounded by the following UTM NAD27 coordinates (E, N): 
498000, 3602800; 498100, 3602800; thence south to the Sweetwater Union 
High School District (SUHSD) boundary at UTM NAD27 x-coordinate 498100; 
thence west following the SUHSD boundary to UTM NAD27 x-coordinate 
498000; thence north following UTM NAD27 x-coordinate 498000 returning 
to UTM NAD27 coordinates 498000, 3602800.
    (ii) Note: Map of critical habitat Unit 4 for the Riverside fairy 
shrimp follows:

[[Page 19204]]

[GRAPHIC] [TIFF OMITTED] TR12AP05.004

* * * * *

    Dated: March 31, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-6825 Filed 4-11-05; 8:45 am]
BILLING CODE 4310-55-C