[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Proposed Rules]
[Pages 12543-12552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4716]



[[Page 12543]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0013; 4500030114]
RIN 1018-AX15


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for Riverside Fairy Shrimp

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, and amended required 
determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the public comment period on the June 1, 2011, proposed revised 
designation of critical habitat for Riverside fairy shrimp 
(Streptocephalus woottoni) under the Endangered Species Act of 1973, as 
amended (Act). We are revising the preamble to the proposed designation 
to clarify that certain subunits that we originally proposed for 
revised critical habitat designation under section 3(5)(A)(i) of the 
Act, are now also being proposed under section 3(5)(A)(ii) of the Act 
because these areas are essential for the conservation of the species 
but were not confirmed to be occupied by Riverside fairy shrimp at the 
time the species was listed in 1993. We also announce the availability 
of a draft economic analysis (DEA) of the proposed designation of 
revised critical habitat for Riverside fairy shrimp and an amended 
required determination section of the proposal. We are reopening the 
comment period for an additional 30 days to allow all interested 
parties an opportunity to comment simultaneously on the proposed 
revised critical habitat designation, the associated DEA, and the 
amended required determinations section. Comments previously submitted 
need not be resubmitted, as they will be fully considered in 
preparation of the final rule.

DATES: We will consider comments received on or before April 2, 2012. 
Comments must be received by 11:59 p.m. Eastern Time on the closing 
date. Any comments that we receive after the closing date may not be 
considered in the final decision on this action.

ADDRESSES: You may submit written comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2011-0013, which 
is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2011-0013; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments below for more information).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-
9440; facsimile 760-431-5901. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed revised designation of critical 
habitat for Riverside fairy shrimp published in the Federal Register on 
June 1, 2011 (76 FR 31686), our DEA of the proposed revised 
designation, and the amended required determinations provided in this 
document. We will consider information and recommendations from all 
interested parties. We are particularly interested in comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threats outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) Areas that provide habitat for Riverside fairy shrimp that we 
did not discuss in our proposed revised critical habitat rule (76 FR 
31686; June 1, 2011);
    (b) Areas containing the physical and biological features essential 
to the conservation of Riverside fairy shrimp that we should include in 
the final revised critical habitat designation and why. Include 
information on the distribution of these essential features and what 
special management considerations or protections may be required to 
maintain or enhance them;
    (c) Areas proposed as revised critical habitat that do not contain 
the physical and biological features essential for the conservation of 
the species and that should not be designated as critical habitat;
    (d) Areas not occupied or not known to be occupied at the time of 
listing that are essential for the conservation of the species and why; 
and
    (e) The potential effects of climate change on Riverside fairy 
shrimp and its habitat and whether the critical habitat may adequately 
account for these potential effects.
    (3) Our proposal to designate specific areas for which there is no 
documentation of occupancy for the specific areas (subunits) prior to 
1993, as essential for the conservation of the species under the 
definition of critical habitat in section (3)(5)(A)(ii) of the Act.
    (4) Lands we identified as essential for the conservation of 
Riverside fairy shrimp in Appendix F of the Recovery Plan that are not 
being proposed as critical habitat.
    (5) Lands we have identified as essential for the conservation of 
Riverside fairy shrimp that were not known at the time the Recovery 
Plan was written but that we conclude are essential for the 
conservation of the species.
    (6) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed revised critical 
habitat.
    (7) Information that may assist us in identifying or clarifying the 
physical and biological features essential to the conservation of 
Riverside fairy shrimp.
    (8) Whether any specific areas being proposed as revised critical 
habitat for Riverside fairy shrimp should be excluded under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any particular area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. See the Exclusions section of the June 1, 
2011, proposed rule to revise critical habitat (76 FR 31686) for 
further discussion.
    (9) Any probable economic, national security, or other relevant 
impacts that may result from designating any area that may be included 
in the final designation. We are particularly interested in any impacts 
on small entities, and the benefits of including or excluding areas 
that exhibit these impacts.
    (10) Information on the extent to which the description of probable 
economic impacts in the DEA is complete and accurate, and specifically:

[[Page 12544]]

    (a) Whether there are incremental costs of critical habitat 
designation (for example, costs attributable solely to the designation 
of revised critical habitat for Riverside fairy shrimp) that have not 
been appropriately identified or considered in our economic analysis, 
including costs associated with future administrative costs or project 
modifications that may be required by Federal agencies related to 
section 7 consultation under the Act;
    (b) Whether there are additional project modifications that may 
result from the designation of critical habitat for Riverside fairy 
shrimp and what those potential project modifications might represent.
    (11) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to better assist us in 
accommodating public concerns and comments.
    If you submitted comments or information on the proposed revised 
rule (76 FR 31686) during the initial comment period from June 1, 2011, 
to August 1, 2011, please do not resubmit them. We will incorporate 
them into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determination. Our 
final determination concerning revised critical habitat for Riverside 
fairy shrimp will take into consideration all written comments and any 
additional information we receive during this and previous comment 
periods. On the basis of public comments, we may, during the 
development of our final determination, find that areas proposed are 
not essential, are appropriate for exclusion under section 4(b)(2) of 
the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in ADDRESSES. We request that 
you send comments only by the methods described in ADDRESSES.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hard copy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R8-ES-2011-0013, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain 
copies of the proposed rule (76 FR 31686) and the DEA on the Internet 
at http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0013, or by 
mail from the Carlsbad Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of revised critical habitat for Riverside fairy shrimp 
in this document. For more information on the taxonomy, biology, and 
ecology of Riverside fairy shrimp, please refer to the listing rule 
published in the Federal Register on August 3, 1993 (58 FR 41384), the 
5-Year Review for Riverside fairy shrimp signed on September 30, 2008 
(Service 2008), which is available online at http://www.fws.gov/carlsbad/, and our proposed revised critical habitat designation 
published in the Federal Register on June 1, 2011 (76 FR 31686), which 
is available online at http://www.regulations.gov (at Docket No. FWS-
R8-ES-2011-0013), or contact the Carlsbad Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On April 12, 2005, we published a final designation of critical 
habitat for Riverside fairy shrimp in the Federal Register (70 FR 
19154). On January 14, 2009, the Center for Biological Diversity filed 
a complaint in the U.S. District Court for the Southern District of 
California challenging our 2005 designation of critical habitat for 
Riverside fairy shrimp (Center for Biological Diversity v. United 
States Fish and Wildlife Service and Dirk Kempthorne, Secretary of the 
Interior, Case No. 3:09-CV-0050-MMA-AJB). The plaintiffs alleged that 
our April 12, 2005, critical habitat designation for Riverside fairy 
shrimp was insufficient for various reasons, specifically challenging 
the reasoning used to exclude areas from the 2005 critical habitat 
designation for Riverside fairy shrimp and citing improper use of a 
coextensive economic analysis. A settlement agreement was reached with 
the plaintiffs (Case No. 3:09-cv-00051-JM-JMA; November 16, 2009) in 
which we agreed to submit a proposed revised critical habitat 
designation for the Riverside fairy shrimp to the Federal Register by 
May 20, 2011, and submit a final revised critical habitat designation 
to the Federal Register by November 15, 2012.
    On June 1, 2011, we published a proposed rule to designate revised 
critical habitat for the Riverside fairy shrimp (76 FR 31686). We 
proposed to designate approximately 2,984 acres (1,208 hectares) of 
land in five units in Ventura, Orange, Riverside, and San Diego 
Counties, California, as revised critical habitat. That proposal had a 
60-day comment period, ending August 1, 2011.

Critical Habitat

    Section 3(5)(A)(i) of the Act defines critical habitat as ``the 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the provisions of section 4 of 
this Act, on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection.'' Section 3(5)(A)(ii) 
pertains to ``specific areas outside the geographical area occupied by 
the species at the time it is listed in accordance with the provisions 
of section 4 of this Act, upon a determination by the Secretary that 
such areas are essential for the conservation of the species.'' 
Conservation, as defined under section 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 under the Act are no longer necessary. For more 
information on critical habitat, please refer to our proposed revised 
critical habitat designation published in the Federal Register on June 
1, 2011 (76 FR 31686).
    As stated in the proposed rule (76 FR 31692: June 1, 2011), when we 
are determining which areas should be designated as critical habitat or 
revised critical habitat, our primary source of information is 
generally the listing information developed during the listing process 
for the species. However, section 4 of the Act also requires that we 
designate critical habitat, or make revisions to, critical habitat on 
the basis of the best scientific data available and after taking into 
consideration the economic impact, the impact on national security, and 
any other relevant impacts.
    In proposing revised critical habitat for Riverside fairy shrimp, 
we have made extensive use of the information in the Recovery Plan 
(Service 1998), and

[[Page 12545]]

incorporated the recovery goals and strategy identified in the Recovery 
Plan. We also reviewed other relevant information, including peer-
reviewed journal articles, unpublished reports and materials (e.g., 
survey results and expert opinions), the final listing rule (58 FR 
41384; August 3, 1993), the first and second rules proposing critical 
habitat published in the Federal Register on September 21, 2000 (65 FR 
57136), and April 27, 2004 (69 FR 23024), respectively; and the 
subsequent final critical habitat designations published in the Federal 
Register on May 30, 2001 (66 FR 29384), and April 12, 2005 (70 FR 
19154), the 5-year review for the Riverside fairy shrimp (Service 
2008), and regional databases and GIS coverages, for example, 
California Natural Diversity Database, and National Wetlands Inventory 
maps. We analyzed this information to determine historical occupancy, 
occupancy at the time of listing, and current occupancy. Additionally, 
we reviewed available information pertaining to the species' habitat 
requirements and its distribution.
    The geographical area known to be occupied by the species in the 
U.S. as presented in the listing rule (58 FR 41385; August 3, 1993) is 
that area bounded by the coastline to the west, east to an area near 
tribal land of the Pechanga Band of Luiseno Mission Indians of the 
Pechanga Reservation, California, in western Riverside County, north 
into the central foothills of Orange County near the former Marine 
Corps Air Station (MCAS) El Toro, and south to coastal mesa tops along 
the United States-Mexico Border in San Diego County. The current known 
range of Riverside fairy shrimp is from Ventura County to the United 
States-Mexico Border in San Diego County, a north-south distance of 
approximately 163 miles (mi) (262 kilometers (km)) within southern 
California and inland from the Pacific Coast 50 mi (80 km), based on 
all available species occurrence data pre- and post-listing. (Two 
additional records documented Riverside fairy shrimp in northwestern 
Baja California, Mexico, at the time the species was listed (58 FR 
41385)). Extant occurrences are located within four counties in 
southern California: Ventura, Orange, Riverside, and San Diego.
    When we developed our proposed critical habitat, we considered 
areas where Riverside fairy shrimp have been documented since listing 
(1993), including areas outside the geographical range of the species 
as presented in the listing rule, to be ``within the geographical area 
occupied by the species at the time of listing [in 1993]'' (see 
proposed rule at 76 FR 31689; June 1, 2011 and discussion below). Based 
on our review of the species biology and life-history traits, we 
conclude that occurrences documented since the 1993 listing do not 
represent an expansion of the species' distribution and range, but 
rather reflect our better understanding of the distribution and range 
of the species at the time of listing (Service 2008, p. 9).
    We acknowledge that the geographical range known to be occupied by 
the species at the time of listing in the U.S. (based on species 
occurrence records available at the time the species was listed (58 FR 
41384; August 3, 1993)) is from central Orange County to southwestern 
San Diego County at the United States-Mexico Border. However, as with 
many species, listing often results in greater efforts to conduct 
surveys that may reveal more information related to specific 
occurrences across a greater geographical area than were initially 
known (76 FR 31690; June 1, 2011).
    Our method for identifying areas with physical and biological 
features essential to the conservation of the species and other areas 
essential for the conservation of Riverside fairy shrimp, has been to 
target areas occupied by Riverside fairy shrimp, and areas known to 
possess suitable ephemeral wetland habitat likely to be occupied or 
become occupied based on proximity to known occurrences, contiguous 
habitat, or within expected dispersal distances for Riverside fairy 
shrimp. We considered the low numbers of populations, restricted 
distribution, specialized habitat requirements, and limited genetic 
variability of Riverside fairy shrimp, and while we did not include all 
available habitat or all areas where Riverside fairy shrimp are 
located, criteria used to identify those areas essential for the 
conservation of Riverside fairy shrimp include areas of discontinuous 
habitat that: (1) Provide for geographic distribution across the range 
of the species; (2) represent the full range of habitat and 
environmental variability that the species occupies; (3) provide 
appropriate inundation and ponding durations, natural hydrologic 
regimes and appropriate soils, and intermixed wetland and upland 
watershed (that is, contain the necessary primary constituent elements 
(PCEs)); (4) provide for connectivity among pools within geographic 
proximity to facilitate dispersal and gene flow among vernal pool 
complexes; and (5) provide protection for unique, existing vernal pool 
composition and structure. Our determination of habitat, and therefore 
features, essential to the conservation of Riverside fairy shrimp takes 
into consideration the generalized conservation strategy identified in 
the 1998 Recovery Plan as necessary for the species stabilization and 
reclassification (Service 1998, pp. 1-113 and Appendices F and G 
therein). For more information on how critical habitat units and 
subunits were identified and delineated and additional information 
regarding the Recovery Plan, please also see the ``Methods'' section of 
the proposed revised critical habitat rule we published on June 1, 2011 
(76 FR 31686).
    Specific areas identified for inclusion into revised critical 
habitat were determined first at the unit level (based on Management 
Area (Units 1-5) provided in the Recovery Plan (Service 1998, p.38)). 
We delineated subunit boundaries by focusing on areas known or likely 
to be occupied based on species occurrence records and the presence of 
PCEs within each subunit. We mapped essential physical and biological 
features and then applied selection criteria to identify those areas 
essential to the conservation of Riverside fairy shrimp. We proposed to 
designate subunits within the geographical area occupied by the species 
at the time it was listed, as currently understood. As discussed below, 
based on information regarding the geographical area occupied by the 
species at the time it was listed, and the limited surveys verifying 
occupancy of many specific pools prior to listing, we are now also 
proposing certain subunits as essential for the conservation of the 
species under section 3(5)(A)(ii) of the Act.
    We have not proposed for designation certain areas identified in 
the Recovery Plan that: (1) Lack a confirmed identification of species 
occurrence, (2) lack essential physical and biological features to 
support Riverside fairy shrimp in a self-sustaining population, or (3) 
do not represent occupied occurrences that add to species viability 
and, therefore, that we do not consider to be essential for the 
recovery of the species at this time. Specifically, we determined these 
areas are not essential for the conservation of the species because: 
(1) The original record of species occurrence, or current species 
persistence, remains questionable and unconfirmed; (2) specific 
occupied pools or their watersheds have been so highly modified or 
degraded that the long-term viability of the population is unlikely and 
the functional value of enhancing or restoring the existing habitat to 
assist in recovery is minimal; (3) they do not possess, or likely will

[[Page 12546]]

not retain (if restored), the necessary physical and biological 
features (soils, hydrology, topography) to support and maintain a self-
sustaining population of Riverside fairy shrimp; or (4) the area 
supports an occurrence that does not appreciably add to the species 
viability at the unit or subunit level, therefore, the area is not 
essential for the recovery of the species.
    We initially proposed Unit 1 (1a and 1b), Unit 2 (2dA, 2dB, 2e, 2f, 
2g, 2h, and 2i), Unit 3 (3c, 3d, 3e, and 3h), Unit 4 (4c), and Unit 5 
(5a, 5b, 5c, 5e, 5f, 5g, and 5h) for designation as revised critical 
habitat under section 3(5)(A)(i) of the Act because the areas contain 
physical and biological features essential to the conservation of the 
species that may require special management considerations or 
protection and we considered the areas to be within the geographical 
range occupied by the species at the time of listing. Because we lack 
surveys confirming the presence of Riverside fairy shrimp in these 
areas at the time of listing, we are now also proposing them for 
designation under section 3(5)(A)(ii) of the Act. We have determined 
that the areas are essential to the conservation of the species as 
presented below (Table 1). Since the time of listing we have also 
confirmed the areas are occupied by Riverside fairy shrimp.

  Table 1--Subunit Occupancy Status and Justifications for Determining Specific Areas Essential to and for the
                                     Conservation of Riverside Fairy Shrimp
----------------------------------------------------------------------------------------------------------------
                                                      Current status      ESA section           ESA section
     Unit/subunit: name \1\      Service status at     \3\; year of        3(5)(A)(i)           3(5)(A)(ii)
                                     listing \2\     first record \4\  justification \5\     justification \6\
----------------------------------------------------------------------------------------------------------------
                                                 Ventura County
----------------------------------------------------------------------------------------------------------------
1a: Tierra Rejada Preserve.....  Presumed occupied  Occupied; 1998     Has PCEs 1-3; may  Necessary to stabilize
                                                     (CNNDB, EO 9).     require            in RP; possesses
                                                                        management.        unique soils and
                                                                                           habitat type;
                                                                                           disjunct population
                                                                                           which maintains
                                                                                           genetic diversity and
                                                                                           population stability
                                                                                           at species'
                                                                                           northernmost
                                                                                           distribution.
1b: South of Tierra Rejada       Presumed occupied  Presumed           Has PCEs 1-3; may  Provides appropriate
 Valley (east of Hwy 23).                            occupied; no       require            inundation ponding;
                                                     protocol surveys   management.        proximity and
                                                     have been                             connectivity to 1a at
                                                     completed.                            northern
                                                                                           distribution;
                                                                                           protects existing
                                                                                           vernal pool
                                                                                           composition;
                                                                                           ecological linkage.
----------------------------------------------------------------------------------------------------------------
                                                  Orange County
----------------------------------------------------------------------------------------------------------------
2c: (MCAS) El Toro.............  Confirmed          Occupied; 1998     Has PCEs 1-3; may  Necessary to stabilize
                                  occupied.          (CNDDB, E0 10).    require            in RP; maintains
                                                                        management.        current geographic,
                                                                                           elevation, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides for
                                                                                           connectivity; large
                                                                                           continuous block;
                                                                                           ecological linkage.
2dA: Saddleback Meadow.........  Presumed occupied  Occupied; 1997     Has PCEs 1-3; may  ......................
                                                     (HELIX 2009,       require
                                                     Report 10537).
2dB: O'Neil Regional Park--near  Presumed occupied  Occupied; 2001     Has PCEs 1-3; may  Maintains current
 Trabuco Canyon.                                     (CNDDB, EO 17).    require            geographic,
                                                                        management.        elevation, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides for
                                                                                           connectivity.
2e: O'Neil Regional Park--near   Presumed occupied  Occupied; 1997     Has PCEs 1-3; may  Maintains current
 Canada Gobernadora/east of                          (CNDDB, EO 4).     require            geographic,
 Tijeras Creek.                                                         management.        elevation, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides for
                                                                                           connectivity.
2f: Chiquita Ridge.............  Presumed occupied  Occupied; 1997     Has PCEs 1-3; may  Necessary to stabilize
                                                     (CNDDB, EO 5).     require            in RP; maintains
                                                                        management.        current geographic,
                                                                                           elevation, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides for
                                                                                           connectivity.
2g: Radio Tower Road...........  Presumed occupied  Occupied; 2001     Has PCEs 1-3; may  Maintains current
                                                     (CNDDB, EO 15,     require            geographic,
                                                     16).               management.        elevation, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides for
                                                                                           connectivity.
2h: San Onofre State Beach,      Presumed occupied  Occupied; 1997     Has PCEs 1-3; may  Unique soils and
 State Park-leased land (near                        (CNDDB, EO 6).     require            wetland type,
 Christianitos Creek).                                                  management.        maintains habitat
                                                                                           function, genetic
                                                                                           diversity and species
                                                                                           viability; ecological
                                                                                           linkage.
2i: SCE Viejo Conservation Bank  Presumed occupied  Occupied; 1998     Has PCEs 1-3; may  Maintains current
                                                     (CNDBB, EO 10).    require            geographic,
                                                                        management.        elevation, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides for
                                                                                           connectivity.
----------------------------------------------------------------------------------------------------------------
                                                Riverside County
----------------------------------------------------------------------------------------------------------------
3c: Australia Pool.............  Presumed occupied  Occupied; 1998     Has PCEs 1-3; may  Maintains habitat
                                                     (CNDDB, EO 11).    require            function, genetic
                                                                        management.        diversity and species
                                                                                           viability; ecological
                                                                                           linkage.
3d: Scott Road Pool............  Presumed occupied  Occupied; 2002     Has PCEs 1-3; may  Maintains current
                                                     (CNNDB, EO 24).    require            geographic,
                                                                        management.        elevation, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           disjunct habitat.

[[Page 12547]]

 
3e: Schleuniger Pool...........  Presumed occupied  Occupied; 1998     Has PCEs 1-3; may  Maintains current
                                                     (CNDDB, EO 8).     require            geographic,
                                                                        management.        elevation, and
                                                                                           ecological
                                                                                           distribution.
3f: Skunk Hollow and Field Pool  Confirmed          Skunk Hollow:      Has PCEs 1-3; may  ......................
                                  occupied.          Occupied; 1988     require
                                                     (CNDBB, EO 3),     management.
                                                     Field Pool:
                                                     Occupied; 1988
                                                     (Service, GIS ID
                                                     9).
3g: Johnson Ranch Created Pool.  Created (in 2002)  Occupied; 2003     Has PCEs 1-3; may  Provides for
                                                     (Service, GIS ID   require            connectivity among
                                                     13).               management.        pools; maintains
                                                                                           current population
                                                                                           structure.
3h: Santa Rosa Plateau-Mesa de   Presumed occupied  Occupied; 2009     Has PCEs 1-3; may  Necessary to stabilize
 Colorado.                                           (Selheim and       require            in RP; unique soils
                                                     Searcy 2010,       management.        and habitat type;
                                                     Report                       large continuous
                                                     11005).                               blocks of occupied
                                                                                           habitat; ecological
                                                                                           linkage.
----------------------------------------------------------------------------------------------------------------
                                                San Diego County
----------------------------------------------------------------------------------------------------------------
4c: Poinsettia Lane Commuter     Presumed occupied  Occupied; 1998     Has PCEs 1-3; may  Necessary to stabilize
 Train Station (JJ 2).                               (CNDDB, EO 7).     require            in RP; unique soils
                                                                        management.        and habitat type;
                                                                                           disjunct habitat;
                                                                                           provides protection
                                                                                           for existing vernal
                                                                                           pool composition and
                                                                                           structure.
5a: J 33 (Sweetwater High        Presumed occupied  Occupied; 2003     Has PCEs 1-3; may  Maintains current
 School).                                            (City of San       require            population structure;
                                                     Diego, 2004).      management.        genetic diversity.
5b: J15 (Arnie's Point)........  Presumed occupied  Occupied; 2006     Has PCEs 1-3; may  Necessary to stabilize
                                                     (ERS, Report       require            in RP; maintains
                                                      8639).   management.        current population
                                                                                           structure; ecological
                                                                                           linkage.
5c: East Otay Mesa.............  Presumed occupied  Occupied; 2000     Has PCEs 1-3; may  Unique soils and
                                                     GIS ID 4; 2001     require            habitat type;
                                                     (EDAW 2001)        management.        maintains current
                                                     (CNDDB, EO 25).                       geographic,
                                                                                           elevation, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           disjunct habitat;
                                                                                           protects existing
                                                                                           vernal pool
                                                                                           composition.
5d: J29-31.....................  Confirmed          Occupied; 1986     Has PCEs 1-3; may  ......................
                                  occupied.          (Bauder 1986);     require
                                                     (Simovich and      management.
                                                     Fugate 1992)
                                                     (CNDDB, EO 2).
5e: J2 N, J4, J5...............  Presumed occupied  Occupied; 2003     Has PCEs 1-3; may  Necessary to stabilize
                                                     (City of San       require            in RP; provides for
                                                     Diego, 2004).      management.        connectivity among
                                                                                           pools; maintains
                                                                                           current population
                                                                                           structure.
5f: J2 S and J2 W..............  Presumed occupied  Occupied; 2001     Has PCEs 1-3; may  Necessary to stabilize
                                                     (CNDDB, EO 18).    require            in RP; provides for
                                                                        management.        connectivity among
                                                                                           pools; maintains
                                                                                           current population
                                                                                           structure.
5g: J14........................  Presumed occupied  Occupied; 2002     Has PCEs 1-3; may  Necessary to stabilize
                                                     (HELIX 2002,       require            in RP; provides for
                                                     Report    management.        connectivity among
                                                     2386).                                pools; maintains
                                                                                           current population
                                                                                           structure.
5h: J11, J12, J16-19...........  Presumed occupied  Occupied; 2002     Has PCEs 1-3; may  Necessary to stabilize
                                                     (City of San       require            in RP; provides for
                                                     Diego, 2004).      management.        connectivity among
                                                                                           pools; maintains
                                                                                           current population
                                                                                           structure.
----------------------------------------------------------------------------------------------------------------
\1\ Unit/Subunit name as it appears in Table 1 of proposed revised rule (76 FR 31698-31699). For additional
  information, see the Recovery Plan (RP) for Vernal Pools of Southern California (Service 1998, 113+ pp.).
\2\ Service status: ``Confirmed occupied'' means that there is a record of occupancy at or before the time of
  listing; ``Presumed occupied'' means there is no documentation of occupancy for the specific areas (subunits)
  prior to 1993, but the areas are presumed to have been occupied at the time of listing based on best available
  science and positive survey results in the possession of the Service. ``Created'' refers to a vernal pool
  enhancement or restoration after the time of listing.
\3\ \4\ Current status: ``Occupied'' indicates a positive survey result after the time of listing documenting
  the species occurrence and ``presumed occupied'' indicates no protocol surveys have been completed. The listed
  year indicates the year of first record followed by source. EO (element occurrence) is the number assigned to
  that occurrence, as defined and described according to the California Natural Diversity Data Base (CNDDB
  2011). GIS ID is the number of the occurrence information for multiple species within jurisdiction of the
  Carlsbad Fish and Wildlife Office (Service 2011). City of San Diego (2004) is from the ``Vernal pool inventory
  2002-2003'' or Contractor, and Report  is the number from a section 10(A)(1)(a) survey report,
  available in Service files.
\5\ Reason/s determined essential to the conservation of the species as defined according to criteria set forth
  in the proposed revised critical habitat rule, this document, and in section 3(5)(A)(i) of the Act and based
  on current information of what we consider the occupied geographic range of the species at the time of
  listing.
\6\ Reason/s determined essential for the conservation of the species as defined according to criteria set forth
  in the proposed revised critical habitat rule, this document, and in section 3(5)(A)(ii) of the Act. RP =
  Recovery Plan (see Service 1998, Appendix F, pp. F-1 to F-5). An empty box in the ``ESA section 3(5)(A)(ii)
  justification'' column indicates this subunit not proposed under section 3(5)(A)(ii) of the Act, and was
  confirmed occupied at the time of listing (see footnote 3).


[[Page 12548]]

    The proposed revised rule explains in detail the bases for our 
determination that Unit 1 (1a and 1b), Unit 2 (2dA, 2dB, 2e, 2f, 2g, 
2h, and 2i), Unit 3 (3c, 3d, 3e, and 3h), Unit 4 (4c), and Unit 5 (5a, 
5b, 5c, 5e, 5f, 5g, and 5h) are essential to the conservation of 
Riverside fairy shrimp (76 FR 31686). Although the discussion of each 
subunit in the proposed revised rule occurs in the context of section 
3(5)(A)(i) of the Act, the reasons identified in the proposed revised 
rule fully support designation of each of the subunits under section 
3(5)(A)(ii) of the Act.
    As stated in the proposed revised critical habitat rule (76 FR 
31690; June 1, 2011), pursuant to section 3(5)(A)(i) of the Act we 
consider Unit 1 (1a and 1b) Unit 2 (2c, 2dA, 2dB, 2e, 2f, 2g, 2h, and 
2i), Unit 3 (3d, 3e, and 3h), Unit 4 (4c), and Unit 5 (5a, 5b, 5c, 5e, 
5f, 5g, and 5h) to be specific areas within the geographical area 
occupied by Riverside fairy shrimp at the time it was listed (although 
not all subunits were surveyed prior to listing) on which are found 
those physical or biological features essential to the conservation of 
the species which may require special management considerations or 
protection, and our rationale is explained below. We also have 
determined that these specific areas are essential for the conservation 
of Riverside fairy shrimp pursuant to section 3(5)(A)(ii) of the Act.
    We propose 21 subunits (Subunits 1a, 1b; 2dA, 2dB, 2e, 2f, 2g, 2h, 
and 2i; Subunits 3c, 3d, 3e, and 3h; Subunit 4c; Subunits 5a, 5b, 5c, 
5e, 5f, 5g, and 5h) under both section 3(5)(A)(i) and section 
3(5)(A)(ii) of the Act to make clear that we consider these specific 
areas to be essential for the conservation of Riverside fairy shrimp 
notwithstanding the absence of surveys confirming the presence of 
Riverside fairy shrimp at the time of listing. Although evidence 
suggests that these subunits were occupied by the Riverside fairy 
shrimp at the time the species was listed, due to a lack of 
documentation of occupancy, such as survey results prior to 1993, for 
the purposes of this rulemaking, we determine that these subunits also 
meet the definition of critical habitat in section 3(5)(A)(ii) of the 
Act. The following paragraphs explain our determination, which applies 
to the following units and subunits--Unit 1 (1a, 1b), Unit 2 (2dA, 2dB, 
2e, 2f, 2g, 2h, and 2i), Unit 3 (3c, 3d, 3e, and 3h), Unit 4 (4c), and 
Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, and 5h).
    The Riverside fairy shrimp is a narrow endemic species that is 
imperiled due to historical and ongoing land use practices that have 
resulted in significant loss of habitat in southern California. The 
Recovery Plan states that conservation of most of the remaining 
occupied occurrences of Riverside fairy shrimp, as well as restorable 
habitat, is essential to the preservation of the remaining diversity 
and the prevention of further losses (Service 1998, p. 46) and is 
essential if Riverside fairy shrimp is to recover (Service 1998, pp. 
62-64). Limiting the designation to subunits that were known to be 
occupied at the time of listing (positive pre-listing survey results) 
would result in the exclusion of most of the areas currently known to 
support viable Riverside fairy shrimp populations and would result in a 
designation that is inadequate to provide for the conservation of the 
species. Therefore, we are proposing to designate Unit 1 (1a and 1b), 
Unit 2 (2dA, 2dB, 2e, 2f, 2g, 2h, and 2i), Unit 3 (3c, 3d, 3e, and 3h), 
Unit 4 (4c), and Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, and 5h) under section 
3(5)(a)(ii) of the Act as well as under section 3(5)(a)(i) of the Act 
because they consist of areas essential for the conservation of the 
species, are known to support Riverside fairy shrimp (with the 
exception of Subunit 1b), and contain physical and biological features 
essential to the conservation of the species. This proposed designation 
is based on the best scientific information available to us at this 
time.
    Units 1-5, which include Ventura County Unit (Transverse Range; 
Unit 1), Los Angeles Basin-Orange County Unit (Unit 2), Riverside 
Inland Valleys Unit (Unit 3), San Diego North and Central Coastal Mesas 
Unit (Unit 4), and San Diego Southern Coastal Mesas Unit (Unit 5) 
comprise specific areas (subunits) within the geographical area 
occupied by the species at the time it was listed based on our current 
understanding (as previously discussed above), that we have also 
determined are essential for the conservation of Riverside fairy 
shrimp.
    These units and subunits are necessary to stabilize existing 
populations of Riverside fairy shrimp (See Appendix F in the Recovery 
Plan for Vernal Pools of Southern California (hereafter, ``Recovery 
Plan'') Service 1998, pp. F-1 to F-5) and are needed to meet recovery 
goals identified in the Recovery Plan. [The Recovery Plan identifies 
securing and conserving most of the remaining Riverside fairy shrimp 
occurrences from further loss and degradation in a configuration that 
maintains habitat function and species viability (Service 1998, p. 62) 
as necessary for recovery of the species]. The Recovery Plan 
specifically identifies securing from loss and degradation existing 
vernal pools and their associated watersheds within the Transverse and 
Los Angeles Basin-Orange Management Areas as a recovery criterion 
(Service 1998, p. 62). The Recovery Plan also identifies remaining 
vernal pools and their watersheds contained within the complexes 
identified in Appendix F, secured in a configuration that maintains 
habitat function and species viability, as needed for recovery of 
Riverside fairy shrimp (Service 1998, p. 63).
    Post-listing surveys in each of the units and subunits have 
confirmed the presence of Riverside fairy shrimp. As indicated in the 
Recovery Plan for Vernal Pools of Southern California, a key 
conservation goal for Riverside fairy shrimp is protection of most of 
the remaining Riverside fairy shrimp occurrences (securing from further 
loss and degradation) in a configuration that maintains habitat 
function and species viability (Service 1998, p. 62). Each of the areas 
(subunits) contain essential habitat that supports or can support 
viable occurrences of this extremely endangered species and is 
necessary for its eventual recovery.
    At the time of listing, Riverside fairy shrimp were known to occupy 
nine vernal pool complexes within Orange, Riverside, and San Diego 
Counties, and Baja California, Mexico, including four vernal pools in 
Riverside County, one population in Orange County, two areas in San 
Diego County, and two locations in Baja California, Mexico (58 FR 
41384). All observed occurrences at that time were within 30 mi (48 km) 
of the coast. Most of the additional complexes identified since the 
time of listing (post[hyphen]1993) fall within the extant range of the 
Riverside fairy shrimp known at the time of listing. The necessary 
conditions for vernal pool presence--Mediterranean climate, topographic 
depressions, and soils with poor drainage--were all present within the 
species' known range, and these conditions strongly support the 
conclusion that additional occupied vernal pools and pool complexes 
containing Riverside fairy shrimp existed within the species' known 
range that simply had not been surveyed for the species at the time of 
listing.
    The species was first collected in 1979, and recognized as a new 
species in 1985. The species description was published in 1990 (Eng et 
al. 1990, pp. 258-259), and Riverside fairy shrimp was federally listed 
as endangered in 1993 (58 FR 41384). Listing typically results in 
greater efforts to conduct surveys which often reveal a greater number 
of occurrences than were initially known. Given the relatively

[[Page 12549]]

short time period from when Riverside fairy shrimp was identified and 
published as a new species (1990) to when original or new survey 
efforts were completed (generally in the late 1980s and early 1990s, 
and again in 1997-early 2000s) and given the species' habitat, ecology, 
and life-history requirements (see following paragraphs below), the 
best scientific evidence suggests Riverside fairy shrimp were present 
and persisted in suitable seasonal depression wetlands with appropriate 
soils and microtopography within the geographical area known to be 
occupied by the species at the time it was listed. This conclusion is 
substantiated by the high number of additional occurrences identified 
since the time of listing (1993) from surveys conducted in locations 
that were not surveyed before 1993.
    Riverside fairy shrimp are relatively sedentary and possess limited 
dispersal capabilities (Davies et al. 1997, p. 157). Dispersal is 
assumed to be through passive means including movement of diapausing 
cysts by rain and overponding of water (Zedler 2003, p. 602) and wind 
(Brendonck and Riddoch 1999, p. 67; Vanschoenwinkel 2008, pp.130-133), 
or actively through animal-mediated transport (Keeler-Wolf et al. 1998, 
p. 11; Bohonak and Jenkins 2003, p. 784; Green and Figuerola 2005, p. 
150); however, evidence of passive dispersal remains limited and the 
relative role of vertebrate vectors requires additional studies (see 
Bohonak and Jenkins 2003, p. 786). Riverside fairy shrimp have a 
relatively long maturation time (Simovich 1998, p. 111), which limits 
the species to deeper pools with longer ponding durations (Hathaway and 
Simovich 1996, p. 675). Riverside fairy shrimp exhibit a diversified 
bet-hedging reproductive strategy (Simovich and Hathaway 1997, p. 42) 
in which the species partitions reproductive effort over more than one 
hydration event and utilizes diapause of eggs (production of cyst bank) 
and the fractional hatching of the egg (cyst) bank (Simovich and 
Hathaway 1997, p. 42; Philippi et al. 2001, p. 392; Ripley et al. 2004, 
p. 222).
    Riverside fairy shrimp are restricted to certain pool types (deep, 
long-ponding along coastal mesas or in valley depressions) with certain 
underlying soils (Bauder and McMillian, p. 57), which have variable but 
specific water chemistry (Gonzalez et al. 1996, p. 317) and temperature 
regimes (Hathaway and Simovich 1996, p. 672). Suitable pools are 
geographically fixed and limited in number, and influenced by position, 
distance from coast, and elevation (Bauder and McMillian 1998, pp. 62 
and 64). Typically, mounds of soil (mima) topography and impervious 
soils with a subsurface clay or hardpan layer provide the necessary 
ponding opportunities during winter and spring (Zedler 1987, pp. 13 and 
17). Underlying soil types and pool size influence the wetland 
habitats' physiochemical parameters, associated vegetation, and faunal 
communities, as do regional climate (rainfall; temperature; evaporation 
rate) and elevation differences (Keeler-Wolf et al. 1998, p. 9). Vernal 
pools are discontinuously distributed in several regions in southern 
California, and Riverside fairy shrimp may be well adapted to the 
ephemeral nature of its habitat and to the localized climate, 
topography, and soil conditions (Bauder and McMillian 1998, p. 56; 
Keeley and Zedler 1998, p. 6). These statements are supported by 
careful review of the species' habitat, ecology, and life-history 
requirements. Based on these habitat and life-history traits, we 
conclude that the additional occurrences detected since listing both 
within and to the north of the species known geographical range at the 
time of listing were likely present prior to listing but occurred in 
areas that had not been surveyed for Riverside fairy shrimp prior to 
listing.
    If the proposed revised rule is made final, section 7 of the Act 
will prohibit destruction or adverse modification of critical habitat 
by any activity funded, authorized, or carried out by any Federal 
agency. Federal agencies proposing actions affecting critical habitat 
must consult with us on the effects of their proposed actions, under 
section 7(a)(2) of the Act.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion of a particular area, we 
consider the additional regulatory benefits that area would receive 
from the protection from adverse modification or destruction as a 
result of actions with a Federal nexus (activities conducted, funded, 
permitted, or authorized by Federal agencies), the educational benefits 
of mapping areas containing essential features that aid in the recovery 
of the listed species, and any benefits that may result from 
designation due to State or Federal laws that may apply to critical 
habitat.
    When considering the benefits of excluding a particular area, we 
consider, among other things, whether exclusion of a specific area is 
likely to result in conservation; the continuation, strengthening, or 
encouragement of partnerships; or implementation of a management plan. 
In the case of Riverside fairy shrimp, the benefits of critical habitat 
include public awareness of the presence of Riverside fairy shrimp and 
the importance of habitat protection, and, where a Federal nexus 
exists, increased habitat protection for Riverside fairy shrimp due to 
protection from adverse modification or destruction of critical 
habitat. In practice, situations with a Federal nexus exist primarily 
on Federal lands or for activities conducted, funded, permitted, or 
authorized by Federal agencies.
    The final decision on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis concerning the proposed 
revised critical habitat designation (DEA), which is available for 
review and comment (see ADDRESSES).

Draft Economic Analysis

    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revised critical habitat 
designation for Riverside fairy shrimp. The DEA describes the economic 
impacts of all known potential conservation efforts for Riverside fairy 
shrimp; some of these costs will likely be incurred regardless of 
whether we designate revised critical habitat.
    The DEA separates conservation efforts into two distinct categories 
according to ``without critical habitat'' and ``with critical habitat'' 
scenarios. The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections that are already in 
place for the species (e.g., under the Federal listing and other 
Federal, State, and local regulations). The ``with critical habitat'' 
scenario describes the incremental impacts specifically due to 
designation of revised critical habitat for the species. In other 
words, the

[[Page 12550]]

incremental conservation efforts and associated economic impacts would 
not occur but for the designation. Conservation efforts implemented 
under the baseline (without critical habitat) scenario are described 
qualitatively within the DEA, but economic impacts associated with 
these efforts are not quantified. Economic impacts are only quantified 
for conservation efforts implemented specifically due to the 
designation of critical habitat (i.e., incremental impacts). For a 
further description of the background and methodology of the analysis, 
including relevant court case precedent, see Chapter 2, ``Framework for 
the Analysis'' of the DEA (Industrial Economics, Inc. (IEC) 2011, pp. 
2-1 to 2-24). The DEA also discusses the potential benefits associated 
with the designation of critical habitat, but does not monetize these 
benefits.
    The 2005 Economic Analysis considered both pre-designation (from 
the listing of the species in 1993 through 2004) and post-designation 
(2005 through 2025) impacts to activities occurring within the study 
area (which is defined as the area proposed for critical habitat 
designation), referred to as a ``co-extensive analysis.'' Since that 
time, however, courts in other cases have held that an incremental 
analysis of impacts stemming solely from the critical habitat 
rulemaking is proper, and as such, is the current DEA framework 
approach used by the Service.
    The DEA provides estimated costs of the probable economic impacts 
of the proposed critical habitat designation for the Riverside fairy 
shrimp over a 24-year time horizon (beginning in 2012 and ending in 
2035), which was determined to be the appropriate period for analysis 
because limited planning information is available for most activities 
to forecast activity levels for projects beyond a 24-year timeframe 
(for example, regional development projections end in 2035). The DEA 
identifies potential incremental costs as a result of the proposed 
revised critical habitat designation; these are those costs attributed 
to critical habitat over and above those baseline costs attributed to 
listing. The DEA quantifies potential economic impacts of Riverside 
fairy shrimp conservation efforts associated with the following 
categories of activity: (1) Agricultural, commercial, and residential 
development; (2) transportation; and (3) livestock grazing and other 
activities (IEC 2011, p. ES-4 and in Exhibit ES-3). The DEA presents a 
distribution of future impacts to development activities using a ``low-
end'' scenario (10th percentile development costs with a low-end cost 
of transportation) with a ``high-end'' scenario (90th percentile 
development costs with the high-end costs from transportation) (IEC 
2011, p. ES-5). Both totals include the incremental costs attributable 
to habitat management activities.
    In total, the potential incremental impacts of proposed revised 
critical habitat designation for Riverside fairy shrimp are estimated 
to be $1.75 million to $2.87 million ($166,000 to $273,000 on an 
annualized basis), assuming a 7 percent discount rate (IEC 2011, p. ES-
5). Approximately 90 percent of these incremental costs result from 
time delays to development activities; the remaining portion results 
from administrative costs of considering adverse modification in 
section 7 consultations and conducting environmental assessments to 
comply with the California Environmental Quality Act (CEQA). Baseline 
impacts associated with consideration of Riverside fairy shrimp and its 
habitat were not quantified.
    For development activities within the study area from year 2012 to 
year 2035, we estimate the 10th to 90th percentile of incremental 
impacts (including direct and indirect costs) for forecasted 
development activities to be $1.71 million to $2.77 million, assuming a 
7 percent discount rate, which is $163,000 to $265,000 in annualized 
impacts. These cost estimates include the direct costs of section 7 
consultations, as well as the indirect costs of project time delays and 
CEQA assessments. Time delays account for approximately 90 percent of 
the total impacts. Given spatial and regulatory uncertainties within 
the proposed revised critical habitat area, the analysis presents 
incremental impacts to development activities as a distribution of 
possible outcomes (see ``Chapter 4- Potential Economic Impacts to 
Development Activities''; IEC 2011, pp. 4-1 to 4-34).
    Total estimated incremental impacts to transportation activities 
are limited to the administrative costs of consultation. These 
consultations may result in project modifications; however, the timing 
and nature of any such modifications remain uncertain and, therefore, 
are not quantified in the analysis. Generally, impacts to 
transportation activities are limited due to the low density of roads 
and the few planned transportation projects within areas of proposed 
critical habitat. Incremental impacts to transportation activities are 
estimated to be $9,560 (low-end scenario) to $37,500 (high-end 
scenario) ($779 low end to $3,050 high-end, when annualized), at a 7 
percent discount rate (IEC 2011, p. 5-3 and in Exhibit 5-1).
    Estimated incremental impacts to habitat conservation activities 
(years 2012-2035) are estimated to be $46,200 ($3,770 annualized), at a 
7 percent discount rate (IEC 2011, pp. 5-4 and in Exhibit 5-2). Impacts 
are attributed to future incremental administrative costs of section 7 
consultations related to habitat management activities. Incremental 
costs are assumed to be $405 per technical assistance and $2,380 per 
informal consultation. Because these projects generally benefit 
critical habitat, incremental project modifications are not 
anticipated.
    Incremental costs are generally limited to administrative efforts 
of new and reinitiated consultations to consider adverse modification 
of critical habitat for Riverside fairy shrimp, administrative costs of 
complying with the CEQA, and time delays resulting from both processes. 
The proposed critical habitat area is unlikely to generate economic 
impacts beyond administrative costs of section 7 consultation for 
several reasons:
    (1) Forty-one percent of the proposed revised critical habitat 
designation already receives protection through the various regional 
Habitat Conservation Plans (HCPs) and areas proposed as revised 
critical habitat receive a significant level of baseline protection 
through various Federal and State regulations, in addition to 
avoidance, minimization and mitigation measures afforded by existing 
HCPs.
    (2) All subunits except for one are currently known to be occupied 
by the species, and thus these areas will require consultation 
regardless of the designation due to the species being listed. In 
subunits without existing baseline protection (Subunit 1b), surveys are 
frequently undertaken to comply with the CEQA because all subunits 
contain vernal pools or seasonally ponded habitats.
    (3) Additionally, we recognize project modifications necessary to 
avoid a determination of adverse modification of critical habitat under 
section 7 of the Act may be different from the measures necessary to 
avoid a jeopardy determination for the species. However, at this point 
in time, we do not know what these specific project modifications are 
likely to be. We are seeking public comments to provide information on 
what the additional project modifications associated with an adverse 
modification analysis might represent.
    (4) Little development activity is forecasted within the proposed 
revised critical habitat units. Twenty-four of the

[[Page 12551]]

25 subunits contain some privately owned land; however, a major portion 
of proposed revised critical habitat falls within existing HCP habitat 
preserves, or other conservation areas. Furthermore, many of the 
privately owned acres are already set aside for mitigation.
    We also do not anticipate designation of revised critical habitat 
to result in any appreciable incremental economic benefits. Any 
economic benefits related to conservation efforts would flow from the 
listing of the species, rather than the designation of critical 
habitat, and would fall within the economic baseline. The analysis also 
addresses the distribution of impacts associated with the designation, 
including an assessment of any local or regional impacts of habitat 
conservation and the potential effects of conservation efforts on small 
entities and the energy industry.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed revised rule 
and our amended required determinations. We may revise the proposal or 
supporting documents to incorporate or address information we receive 
during the public comment periods. In particular, we may exclude an 
area from revised critical habitat if we determine that the benefits of 
excluding the area outweigh the benefits of including the area, 
provided that exclusion will not result in the extinction of this 
species.

Required Determinations--Amended

    In our June 1, 2011, proposed revised rule (76 FR 33880), we 
indicated that we would defer our determination of compliance with 
several statutes and executive orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the DEA. We have now 
made use of the DEA to make these determinations. In this document, we 
affirm the information in our proposed rule concerning Executive Order 
(E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), 
E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform 
Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 
4321 et seq.), and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on the DEA data, we are 
amending our required determination concerning the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 SBREFA 
amended the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Based on our DEA of the proposed revised designation, we 
provide our analysis for determining whether the proposed revised 
designation would result in a significant economic impact on a 
substantial number of small entities. Based on comments we receive, we 
may revise this determination as part of a final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
Riverside fairy shrimp would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as residential and 
commercial development, transportation, and other human activities, 
which include habitat management and livestock grazing. In order to 
determine whether it is appropriate for our agency to certify that this 
proposed revised rule would not have a significant economic impact on a 
substantial number of small entities, we considered each industry or 
category individually (for example, ``small business,'' ``small 
governmental jurisdiction,'' and ``small organization''). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. However, the RFA 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 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Revised critical habitat designation will not affect activities that do 
not have any Federal involvement; designation of revised critical 
habitat only affects activities conducted, funded, permitted, or 
authorized by Federal agencies. 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 the species. If we finalize this proposed revised critical 
habitat designation, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process.
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation efforts related 
to the proposed critical habitat for Riverside fairy shrimp. The 
analysis is based on the estimated impacts associated with the proposed 
rulemaking as described in Chapters 4, 5, and Appendix A of the DEA, 
and evaluates the potential for economic impacts related to activity 
categories including residential development, transportation, and other 
human activities, including habitat management, livestock grazing and

[[Page 12552]]

water management, as well as impacts to the energy industry (IEC 2011, 
pp. 4-1 to 6-6; pp. A-1 to A-7).
    As described in Chapters 4 and 5 of the DEA, estimated incremental 
impacts consist primarily of administrative costs and time delays 
associated with section 7 consultation and CEQA review. The Service and 
the action agency are the only entities with direct compliance costs 
associated with this proposed critical habitat designation, although 
small entities may participate in section 7 consultation as a third 
party. It is, therefore, possible that the small entities may spend 
additional time considering critical habitat during section 7 
consultation for the Riverside fairy shrimp. The DEA indicates that the 
incremental impacts potentially incurred by small entities are limited 
to development activities.
    In the DEA, to understand the potential impacts on small entities 
attributable to development activities, we conservatively assumed that 
all of the private owners of developable lands affected by proposed 
revised critical habitat designation are developers. We estimated that 
a total of 34.2 development projects may be affected by the proposed 
revised critical habitat designation, or 1.42 projects per year. Costs 
per project range from $5,000 where incremental costs are limited to 
the additional cost of considering adverse modification during a 
section 7 consultation, to $1.07 million where additional effort to 
comply with CEQA may be required and time delays occur in areas with 
the highest land values. Because we are unable to identify the specific 
entities affected, the impact relative to those entities' annual 
revenues or profits is unknown. Assuming that the entities are small 
land subdividers with annual revenues less than $7 million, the high-
end impacts represent approximately 15.2 percent of annual revenues. Of 
the total number of entities engaged in land subdivision and 
residential, commercial, industrial and institutional construction, 97 
percent are small entities. Provided the assumptions that development 
activity occurs at a constant pace throughout the timeframe of the 
analysis, and each project is undertaken by a separate entity, we 
estimated that approximately two to three developers may be affected by 
the proposed revised critical habitat designation each year. 
Conservatively assuming that costs are borne by current landowners, and 
all landowners are land subdividers or construction firms, less than 3 
percent or 1 percent, respectively, of all small entities in these 
sectors would be affected when the final rule is published (IEC 2011, 
p. A-5).
    Our analysis constitutes an evaluation of not only potentially 
directly affected parties, but those also potentially indirectly 
affected. Under the RFA and following recent case law, we are only 
required to evaluate the direct effects of a regulation to determine 
compliance. Since the regulatory effect of critical habitat is through 
section 7 of the Act, which applies only to Federal agencies, we have 
determined that only Federal agencies are directly affected by this 
rulemaking. Other entities, such as small businesses, are only 
indirectly affected. However, to better understand the potential 
effects of a designation of critical habitat, we frequently evaluate 
the potential impact to those entities that may be indirectly affected, 
as was the case for this rulemaking. In doing so, we focus on the 
specific areas being designated as critical habitat and compare the 
number of small business entities potentially affected in that area 
with other small business entities in the regional area, versus 
comparing the entities in the area of designation with entities 
nationally--which is more commonly done. This analysis results in an 
estimation of a higher number of small businesses potentially affected. 
In this rulemaking, we calculate that less than 3 percent or 1 percent 
(assuming that all landowners are land subdividers or construction 
firms), respectively, of all small entities in the area would be 
affected when the final rule is published. If we were to calculate that 
value based on the proportion nationally, then our estimate would be 
significantly lower than 1 percent. Following our evaluation of 
potential effects to small business entities from this rulemaking, we 
do not believe that the small businesses in the affected sector 
represent a substantial number.
    The DEA also concludes that none of the government entities with 
which the Service might consult on Riverside fairy shrimp for 
transportation or habitat management activities meet the definitions of 
small as defined by the Small Business Act (SBA) (IEC 2011, p. A-6); 
therefore, impacts to small government entities due to transportation 
and habitat management activities are not anticipated. A review of the 
consultation history for Riverside fairy shrimp suggests future section 
7 consultations on livestock grazing (for example, ranching operations) 
and water management are unlikely, and as a result are not anticipated 
to be affected by the proposed rule (IEC 2011, pp. A-6 to A-7).
    In summary, we have considered whether the proposed revised 
designation would result in a significant economic impact on a 
substantial number of small entities and the energy industry. 
Information for this analysis was gathered from the Small Business 
Administration, stakeholders, and from Service files. We determine that 
less than three percent of land subdividers or one percent of 
construction firms engaged in development activity within the area 
proposed for designation would be affected if the final rule is 
published as proposed (IEC 2011, p. A-5). For the above reasons and 
based on currently available information, we certify that, if 
promulgated, the proposed revised critical habitat would not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

References Cited

    A complete list of all references we cited in the proposed rule and 
in this document is available on the Internet at http://www.regulations.gov or by contacting the Carlsbad Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this notice are the staff from the Carlsbad 
Fish and Wildlife Office, Pacific Southwest Region, U.S. Fish and 
Wildlife Service (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: February 22, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-4716 Filed 2-29-12; 8:45 am]
BILLING CODE 4310-55-P