[Federal Register Volume 76, Number 28 (Thursday, February 10, 2011)]
[Proposed Rules]
[Pages 7528-7530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2882]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0093; MO 92210-0-0009]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Revise Critical Habitat for Vernal Pool Fairy Shrimp and 
Vernal Pool Tadpole Shrimp

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding to revise critical habitat.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to revise critical habitat for vernal pool 
fairy shrimp (Branchinecta lynchi) and vernal pool tadpole shrimp 
(Lepidurus packardi) under the Endangered Species Act of 1973, as 
amended (Act). Following a review of the petition, we find that the 
petition does not present substantial scientific information indicating 
that revision of the critical habitat for vernal pool fairy shrimp and 
vernal pool tadpole shrimp may be warranted. Therefore, with the 
publication of this notice, we have determined that a 12-month finding 
on this petition is not warranted and will not be conducted.

DATES: The finding announced in this document was made on February 10, 
2011. You may submit new information concerning this species or its 
habitat for our consideration at any time.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number [FWS-R8-ES-2010-0093]. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the 
Sacramento Fish and Wildlife Office, 2800 Cottage Way W-2605, 
Sacramento, CA 95825. New information, material, comments, or questions 
concerning this species or its habitat may be submitted to us at any 
time.

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Office Supervisor, 
or Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way W-2605, 
Sacramento, CA 95825, by telephone at 916-414-6600, or by facsimile at 
916-414-6713. People who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(D) of the Act of 1973, as amended (16 U.S.C. 1531 
et seq.), requires that we make a finding on whether a petition to 
revise critical habitat for a species presents substantial scientific 
information indicating that the revision may be warranted. In 
determining whether substantial information exists, we take into 
account several factors, including information submitted with, and 
referenced in, the petition and all other information readily available 
in our files. Our listing regulations at 50 CFR 424.14(c)(2)(i) further 
require that, in making a finding on a petition to revise critical 
habitat, we consider whether the petition contains information 
indicating that areas petitioned to be added to critical habitat 
contain the physical and biological features essential to, and that may 
require special management to provide for, the conservation of the 
species.
    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. The Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor.
    To the maximum extent practicable, we are to make this finding 
within 90 days of our receipt of the petition and publish our notice of 
the finding promptly in the Federal Register. We are to base this 
finding on information provided in the petition, supporting information 
submitted with the petition, and information otherwise available in our 
files. If we find that a petition presents substantial information 
indicating that the revision may be warranted, we are required to 
determine how we intend to proceed with the requested revision within 
12 months after receiving the petition and promptly publish notice of 
such intention in the Federal Register.

Petition History

    On August 29, 2008, we received a petition dated August 28, 2008, 
from ECORP Consulting, Inc., on behalf of Conservation Resources, 
requesting that we revise critical habitat for vernal pool fairy shrimp 
(Branchinecta lynchi) and vernal pool tadpole shrimp (Lepidurus 
packardi). The petition clearly identified itself as such and included 
the requisite identification information for the petitioner, as 
required in 50 CFR 424.14(a). The petitioners did not use the current 
unit numbers for the critical habitat units when referring to critical 
habitat units; however, the map and location description provided in 
the petition indicate that the critical habitat units referred to are 
critical habitat Unit 14A for the vernal pool fairy shrimp and Unit 9B 
for the vernal pool tadpole shrimp designated in the final rule 
published in the Federal Register on February 10, 2006 (71 FR 7119-
7120, 7153, 7194). The petition requested that, pursuant to the Act, 
the Service modify the boundaries of these units to include the 
northern 2,800 acres (ac) (1,133 hectares (ha)) of the parcel referred 
to as Gill Ranch (ECORP 2008, p. 1).

Previous Federal Actions

    The vernal pool fairy shrimp and the vernal pool tadpole shrimp 
were listed as threatened and endangered, respectively, on September 
19, 1994 (59 FR 48136). Critical habitat for 4 vernal pool crustaceans 
and 11 vernal pool plant species in California and southern Oregon, 
including the vernal pool fairy shrimp and vernal pool tadpole shrimp, 
was originally designated in a final rule published in the Federal 
Register on August 6, 2003 (68 FR 46684).
    The 2003 final critical habitat for the 4 vernal pool crustaceans 
and 11 vernal pool plant species in California and southern Oregon 
totaled approximately 744,070 ac (301,114 ha), and excluded 5 entire 
counties (Butte, Madera, Merced, Sacramento, and Solano Counties) from 
the designation of critical habitat due to economic reasons under 
section 4(b)(2) of the Act. In total, approximately 494,583 ac (200,151 
ha) of critical habitat was identified within the five counties, but 
later excluded.
    In January 2004, the Butte Environmental Council and several other 
organizations filed a complaint alleging that we violated the Act 
(Butte Environmental Council et al. v. Norton. et al., Case No. CIV S-
04-0096 WBS KJM (E.D. Cal.).) On October 29, 2004, the court signed a 
Memorandum and Order in that case remanding the final designation to 
the Service. In particular, the court ordered us to: (1) Reconsider

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the noneconomic exclusions from the final designation of critical 
habitat, and publish a new final determination as to those lands within 
120 days; and (2) reconsider the economic exclusion of the five 
California counties based on potential economic impacts, and publish a 
new final determination no later than July 31, 2005.
    A final rule for critical habitat reevaluating the noneconomic 
exclusions from the 2003 final rule was published in the Federal 
Register on March 8, 2005 (70 FR 11140), and a final rule evaluating 
economic exclusions from the 2003 final rule was published in the 
Federal Register on August 11, 2005 (70 FR 46924). A final rule 
containing administrative revisions with species-by-unit designations 
was published in the Federal Register on February 10, 2006 (71 FR 
7118). This final rule provided 35 critical habitat units designated 
for the vernal pool fairy shrimp totaling 597,821 ac (241,930 ha), and 
18 critical habitat units designated for the vernal pool tadpole shrimp 
totaling 228,785 ac (92,586 ha). The March 8, 2005, confirmation of the 
noneconomic exclusions (70 FR 11140) addressed the first requirement of 
the October 2004 court-ordered remand, while the August 11, 2005, final 
critical habitat rule (70 FR 46924) addressing the economic exclusions 
under section 4(b)(2) of the Act addressed the second requirement of 
the October 2004 court-ordered remand.
    The August 11, 2005, final critical habitat rule identified two 
overlapping units for vernal pool tadpole shrimp and vernal pool fairy 
shrimp. These two overlapping units were specifically identified in the 
February 10, 2006, Federal Register (71 FR 7151-7153, 7192-7194) for 
each species as units 9A and 9B for vernal pool tadpole shrimp and 
units 14A and 14B for vernal pool fairy shrimp. Approximately 9,481 ac 
(3,837 ha) of habitat determined to contain the physical and biological 
features essential to the conservation of the vernal pool tadpole 
shrimp and vernal pool fairy shrimp within these overlapping units was 
excluded from the final designation based on economic impacts. See 
Application of Section 4(b)(2)--Economic Exclusion to 23 Census Tracts 
section of the August 11, 2005, Federal Register (70 FR 46949-46952), 
for our rationale on the exclusion of these areas.
    On May 31, 2007, the Service published a clarification of the 
economic and noneconomic exclusions for the 2005 final rule designating 
critical habitat for 4 vernal pool crustaceans and 11 vernal pool 
plants in California and southern Oregon (72 FR 30279), resulting in a 
final judgment from the court in favor of the Service. The Home 
Builders Association of Northern California and other industry groups 
appealed the judgment; however, on August 9, 2010, the Ninth Circuit 
issued a decision in favor of the Service, upholding the critical 
habitat designations for 15 listed vernal pool species (Home Builders 
Association of Northern California v. Norton. et al. (Case No. CV-05-
00629-WBS (E.D. Cal.))).

Species Information

    For current information on the biology, status, and habitat needs 
of the vernal pool fairy shrimp and vernal pool tadpole shrimp, refer 
to the Service's 5-Year Review of the vernal pool fairy shrimp (Service 
2007b), the 5-Year Review of the vernal pool tadpole shrimp (Service 
2007c), and the Recovery Plan for Vernal Pool Ecosystems of California 
and Southern Oregon (Service 2005) available on the Internet at http://www.fws.gov/sacramento/es/5_year_reviews.htm and http://www.fws.gov/sacramento/es/recovery_plans/vp_recovery_plan_links.htm.

Evaluation of Information for This Finding

    In making this 90-day finding, we evaluated whether information 
regarding the revision of critical habitat for the vernal pool fairy 
shrimp and vernal pool tadpole shrimp, as presented in the petition and 
other information available in our files, is substantial, thereby 
indicating that the petition action may be warranted. Our evaluation of 
this information is presented below.
    The petitioner seeks to revise the critical habitat designation by 
expanding unit 14A for vernal pool fairy shrimp and unit 9B for vernal 
pool tadpole shrimp to include approximately an additional 2,800 ac 
(1,133 ha), located within the Cosumnes/Rancho Seco Core Area 
(Sacramento County) in the Southeastern Sacramento Valley Vernal Pool 
Region (Service 2005). The 2,800-ac (1,133-ha) area is part of Gill 
Ranch, which is largely dedicated to the conservation of vernal pools 
and listed vernal pool species. The petition summarizes the primary 
constituent elements (PCEs) for vernal pool fairy shrimp and vernal 
pool tadpole shrimp as presented in the February 10, 2006, 
administrative revisions (71 FR 7142, 7183). The petition states that 
the 2,800 ac (1,133 ha) addressed in the petition contain the PCEs and 
support numerous wetland features that are essential for reproduction, 
germination [sic], hatching, maturation, feeding, shelter, and 
dispersal of vernal pool crustaceans (ECORP 2008, p. 4-5). The 
information in the petition is consistent with information in our 
files. We agree that this area contains the physical and biological 
features essential to the conservation of the species. However, the 
2,800-ac (1,133-ha) parcel was originally designated as critical 
habitat in the August 6, 2003, final rule (68 FR 46684), but was later 
excluded from the critical habitat designation in the August 11, 2005, 
final rule (70 FR 46924), when the Secretary decided to exercise his 
discretion under section 4(b)(2) of the Act to exclude this parcel due 
to economic impacts. The petition does not contain any information 
suggesting that the exclusion due to economic impacts was done in 
error, or that the economic analysis was flawed.

Finding

    In making this finding, we relied on information provided by the 
petitioners, sources cited by the petitioners, and information readily 
available in our files. We evaluated the information in accordance with 
50 CFR 424.14(c). Our process for making this 90-day finding under 
section 4(b)(3)(D) of the Act and 50 CFR 424.14(c) of our regulations 
is limited to a determination of whether the information in the 
petition meets the ``substantial scientific information'' threshold.
    We find that the petition does not present substantial information 
to indicate that revision of critical habitat to include the proposed 
property may be warranted. The Service agrees that the property 
contains the PCEs, and it was designated critical habitat in the 2003 
final rule (68 FR 46684). However, the 2,800 ac (1,133 ha) were 
excluded for economic reasons in the 2005 final rule (70 FR 46924) 
under section 4(b)(2) of the Act; the petition presents no information 
indicating that the rule excluding this property from critical habitat 
requires revision or that the methodology used in determining potential 
economic impacts was invalid.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0093 and upon 
request from the Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Author

    The primary authors of this notice are the staff members of the 
U.S. Fish and

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Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 28, 2011.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-2882 Filed 2-9-11; 8:45 am]
BILLING CODE 4310-55-P