[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Rules and Regulations]
[Pages 72070-72140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28250]



[[Page 72069]]

Vol. 77

Tuesday,

No. 233

December 4, 2012

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





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

  Federal Register / Vol. 77 , No. 233 / Tuesday, December 4, 2012 / 
Rules and Regulations  

[[Page 72070]]


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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 the Riverside Fairy Shrimp

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, revise the critical 
habitat for the Riverside fairy shrimp under the Endangered Species Act 
of 1973, as amended. The previous critical habitat consisted of land in 
four units in Ventura, Orange, and San Diego Counties, California. We 
now designate land in three units in Ventura, Orange, and San Diego 
Counties, California, for a total of approximately 1,724 ac (698 ha), 
which represents critical habitat for this species. Areas in Riverside 
County are excluded from critical habitat in this final revised rule.

DATES: This rule becomes effective on January 3, 2013.

ADDRESSES: This final rule and the associated final economic analysis 
are available on the Internet at http://www.regulations.gov. Comments 
and materials received, as well as supporting documentation used in 
preparing this final rule, are available for public inspection, by 
appointment during normal business hours, at the 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.
    The coordinates or plot points or both from which the maps for this 
critical habitat designation were generated are included in the 
administrative record and are available on our Internet site (http://www.fws.gov/carlsbad/), at http://www.regulations.gov at Docket No. 
FWS-R8-ES-2011-0013, and at the Carlsbad Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information developed for this critical habitat designation is 
available at the Fish and Wildlife Service Web site and Field Office 
set out above, and may also be on http://www.regulations.gov.

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. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule and the basis for our action. Under 
the Endangered Species Act (Act), any species that is determined to be 
endangered or threatened shall, to the maximum extent prudent and 
determinable, have habitat designated that is considered to be critical 
habitat. Designations and revisions of critical habitat can only be 
completed by issuing a rule. We listed Riverside fairy shrimp as an 
endangered species on August 3, 1993 (58 FR 41384). We published our 
first rule designating critical habitat on May 30, 2001 (66 FR 29384). 
In response to a settlement agreement, we revised critical habitat in a 
final rule published April 12, 2005 (70 FR 19154). That rule was also 
challenged in court, and based on the provisions of the new settlement 
agreement, we are publishing this final revised critical habitat rule.
    The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for Riverside fairy shrimp. We are 
designating:
     Approximately 466 acres (ac) (189 hectares (ha)), in 2 
subunits, as critical habitat in Ventura County.
     Approximately 396 ac (160 ha), in 4 subunits, as critical 
habitat in Orange County.
     Approximately 862 ac (348 ha), in 7 subunits, as critical 
habitat in San Diego County.
    In total, we are designating approximately 1,724 ac (698 ha) as 
critical habitat for this species. We are also:
     Exempting 1,988 ac (804 ha) from critical habitat 
designation in Orange County and San Diego County.
     Excluding 1,259 ac (510 ha) from critical habitat 
designation in Orange County, Riverside County, and San Diego County.
    We have prepared an economic analysis of the designation of 
critical habitat. We announced the availability of the draft economic 
analysis (DEA) on March 1, 2012 (77 FR 12543), allowing the public to 
provide comments on our analysis. We have incorporated the comments and 
completed the final economic analysis (FEA).
    Peer reviewer and public comment. We sought comments from four 
independent specialists to ensure that our designation is based on 
scientifically sound data and analysis. We also considered all comments 
and information we received during the public comment periods.

Background

    It is our intent to discuss in this final rule only those topics 
directly relevant to the revision of critical habitat for the Riverside 
fairy shrimp under the Act (16 U.S.C. 1531 et seq.). For more 
information on the taxonomy, biology, and ecology of Riverside fairy 
shrimp, please refer to the final listing rule published in the Federal 
Register on August 3, 1993 (58 FR 41384); 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). Additionally, more species information 
can be found in the 1998 Recovery Plan for the Vernal Pools of Southern 
California (1998 Recovery Plan) finalized on September 3, 1998 (Service 
1998a, pp. 1-113), in the City of San Diego's 2002-2003 Vernal Pool 
Inventory (City of San Diego 2004, pp. 1-125), and in the Riverside 
fairy shrimp 5-year review (Service 2008, pp. 1-57). For new 
information on Riverside fairy shrimp genetics across the species' 
range and on the status and distribution of Riverside fairy shrimp, see 
the most recent proposed critical habitat rule published on June 1, 
2011 (76 FR 31686). Information on the associated draft economic 
analysis (DEA) for the proposed rule to designate revised critical 
habitat was published in the Federal Register on March 1, 2012 (77 FR 
12543).

Previous Federal Actions

    The Riverside fairy shrimp was listed as an endangered species on 
August 3, 1993 (58 FR 41384). For a history of Federal actions prior to 
2001, please refer to the September 21, 2000, proposed critical habitat 
rule (65 FR 57136). On May 30, 2001, we published a final rule 
designating critical habitat for the Riverside fairy shrimp (66 FR 
29384). On November 6, 2001, the Building Industry Legal Defense 
Foundation, Foothill/Eastern Transportation Corridor Agency, National 
Association of Home Builders, California Building Industry Association, 
and Building Industry Association of San Diego County filed a lawsuit 
in the U.S. District Court for the District of Columbia challenging the

[[Page 72071]]

designation of Riverside fairy shrimp critical habitat and alleging 
errors in our promulgation of the May 30, 2001, final rule. We 
requested a voluntary remand, and on October 30, 2002, critical habitat 
for this species was vacated by order of the U.S. District Court for 
the District of Columbia, and the Service was ordered to publish a new 
final rule with respect to the designation of critical habitat for the 
Riverside fairy shrimp (Building Industry Legal Defense Foundation, et 
al., v. Gale Norton, Secretary of the Interior, et al., and Center for 
Biological Diversity, Inc. and Defenders of Wildlife, Inc. Civil Action 
No. 01-2311 (JDB) (U.S. District Court, District of Columbia)).
    On April 27, 2004, we again proposed to designate critical habitat 
for the Riverside fairy shrimp (69 FR 23024). The final critical 
habitat rule was published in the Federal Register on April 12, 2005 
(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. U.S. Fish 
and Wildlife Service and Dirk Kempthorne, Secretary of the Interior, 
Case No. 3:09-CV-0050-MMA-AJB). 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. The proposed revised 
critical habitat designation was delivered to the Federal Register on 
May 20, 2011, and published on June 1, 2011 (76 FR 31686). This rule 
complies with the conditions of the settlement agreement.

Summary of Changes From Proposed Rule

    (1) We added updated information on the general impacts of climate 
change and its potential impacts to Riverside fairy shrimp in the 
Climate Change section of this document. We also performed a climate 
change analysis using software available through Climate Wizard, a web-
based climate change prediction program jointly produced by The Nature 
Conservancy, the University of Washington, and University of Southern 
Mississippi. We incorporated the results of our analysis into the 
Climate Change section of this rule.
    (2) We added a discussion to the Criteria Used To Identify Critical 
Habitat section to supplement our discussion in the proposed rule (76 
FR 31686; June 1, 2011) and the March 1, 2012, publication that made 
available our DEA of the proposed rule (77 FR 12543) and to clarify the 
rationale for designation of critical habitat units. At the time of 
listing, we did not have surveys confirming the presence of Riverside 
fairy shrimp in each critical habitat unit and subunit. However, we 
confirm that the vernal pool complexes within each unit and subunit 
were in existence at the time of listing (with the exception of Subunit 
3g (Johnson Ranch Created Pool)), and the units and subunits in which 
the vernal pool complexes are found are within the geographical area 
occupied by the species at the time of listing and contain the physical 
or biological features essential to the conservation of the species. 
Therefore, we consider Unit 1 (1a, 1b), Unit 2 (2c, 2dA, 2dB, 2e, 2f, 
2g, 2h, 2i), Unit 3 (3c, 3d, 3e, 3f, 3h), Unit 4 (4c), and Unit 5 (5a, 
5b, 5c, 5d, 5e, 5f, 5g, 5h) to meet the definition of critical habitat 
under section 3(5)(A)(i) of the Act (i.e., to be areas within the 
geographical area occupied by the Riverside fairy shrimp at the time of 
listing) for the reasons explained in the March 1, 2012, publication 
(77 FR 12543) despite the absence of proof of occupancy at the time of 
listing.
    Regardless of the occupancy status (documented or presumed; pre- or 
post-listing) of each unit, in Table 1 of the March 1, 2012, 
publication (77 FR 12543), we provided our justification for 
determining why these areas are essential for the conservation of the 
species under section 3(5)(A)(ii) of the Act. For those units for which 
we lack data confirming occupancy at the time of listing, we are 
alternatively designating them under section 3(5)(A)(ii) because they 
are essential for the conservation of Riverside fairy shrimp and a 
designation limited to areas confirmed to be occupied at the time of 
listing would be inadequate to ensure the conservation of the species. 
We provide further explanation of our method and rationale for defining 
critical habitat boundaries in the Criteria Used To Identify Critical 
Habitat section below.
    (3) Based on a public comment, we updated the name of the vernal 
pool complex at Marine Corps Air Station (MCAS) Miramar from ``AA 1-7, 
9-13 East Miramar (Pool 10) (AA1 East)'' to its recommended name ``East 
Miramar (AA1 South + Group) (Pool 4786; previously Pool 12).''
    (4) In the proposed revised critical habitat rule, Table 4 
incorrectly identified 6 ac (3 ha) of land in Subunit 4c as State-
owned. The land is actually owned by the North [San Diego] County 
Transit District. Table 3 in this final revised rule has been updated 
to show the correct land ownership.
    (5) We are now excluding lands owned by the Department of Homeland 
Security (DHS) in Subunit 5b (29 ac (12 ha)) and a portion of the lands 
in Subunit 5h (11 ac (4 ha)) from this final critical habitat 
designation based on national security. This exclusion is consistent 
with the exclusion of DHS lands in our previous final critical habitat 
rule published April 12, 2005 (70 FR 19154), due to national security 
concerns related to the operation and maintenance of the Border 
Infrastructure System (BIS).
    In our proposed revised critical habitat rule published June 1, 
2011 (76 FR 31686), we sought comments on whether or not these Federal 
lands should be considered for exclusion under section 4(b)(2) of the 
Act for national security reasons, whether such exclusion is or is not 
appropriate, and whether the benefits of excluding any specific area 
outweigh the benefits of including that area as critical habitat and 
why. On October 16, 2012, DHS commented that designation of these lands 
could interfere with U.S. Customs and Border Patrol Protection 
activities along the border and urged exclusion of the lands for 
national security reasons. Based on the national security importance of 
DHS maintaining access to these border areas, the Secretary is 
exercising his discretion to exclude lands owned by DHS in this final 
critical habitat rule. Details on our rationale can be found in the 
``Exclusions Based on National Security Impacts'' section below.
    (6) In the June 1, 2011, proposed revised rule, we stated that we 
were considering excluding lands owned by or under the jurisdiction of 
the Orange County Central-Coastal Natural Community Conservation Plan/
Habitat Conservation Plan (NCCP/HCP), the Orange County Southern 
Subregion HCP, the Western Riverside County MSHCP, City of Carlsbad 
Habitat Management Plan (HMP) under the San Diego Multiple Habitat 
Conservation Program (MHCP), and County of San Diego Subarea Plan under 
the MSCP. We have now made a final determination that the benefits of 
exclusion outweigh the benefits of inclusion of lands covered by these 
plans. Therefore, the Secretary is exercising his discretion to exclude 
approximately 89 ac (36 ha) covered by the Orange County Central-
Coastal NCCP/HCP, 233 ac (94 ha) covered by the Orange County Southern 
Subregion

[[Page 72072]]

HCP, 865 ac (350 ha) covered by the Western Riverside County MSHCP, 9 
ac (4 ha) covered by the City of Carlsbad HMP, and 23 ha (9 ac) covered 
by the County of San Diego Subarea Plan under the MSCP. In all, the 
Secretary is exercising his discretion to exclude a total of 1,259 ac 
(510 ha). For a complete discussion of the benefits of inclusion and 
exclusion, see the Exclusions section below.

      Table 1--Subunit Occupancy Status and Justifications for Determining Specific Areas Essential for the
                                    Conservation of Riverside Fairy Shrimp 1
----------------------------------------------------------------------------------------------------------------
                                                      Current status      Act section           Act section
        Unit/subunit \2\         Service status at     \4\; year of        3(5)(A)(i)           3(5)(A)(ii)
                                    listing \3\      first record \5\  justification \6\     justification \7\
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                                                 Ventura County
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1a: Tierra Rejada Preserve.....  Presumed occupied  Occupied; 1998     Primary            Necessary to stabilize
                                                     (CNDDB, EO 9).     Constituent        Riverside fairy
                                                                        Elements (PCEs)    shrimp populations
                                                                        1-3; may require   per Recovery Plan
                                                                        management.        (RP); possesses
                                                                                           unique soils and
                                                                                           habitat type;
                                                                                           disjunct population
                                                                                           maintains genetic
                                                                                           diversity and
                                                                                           population stability
                                                                                           at species'
                                                                                           northernmost
                                                                                           distribution.
1b: South of Tierra Rejada       Presumed occupied  Presumed           PCEs 1-3; may      Provides appropriate
 Valley.                                             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; 1993     PCEs 1-3; may      ......................
                                  occupied.          (Service 1993,     require
                                                     MCAS El Toro       management.
                                                     survey).
2dA: Saddleback Meadow.........  Presumed occupied  Occupied; 1997     PCEs 1-3; may      Necessary to stabilize
                                                     (HELIX 2009        require            populations per RP;
                                                     Report 10537).                             geographical,
                                                                                           elevational, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides
                                                                                           connectivity; large
                                                                                           continuous block;
                                                                                           ecological linkage.
2dB: O'Neil Regional Park (near  Presumed occupied  Occupied; 2001     PCEs 1-3; may      Maintains current
 Trabuco Canyon).                                    (CNDDB, EO 17).    require            geographical,
                                                                        management.        elevational, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides
                                                                                           connectivity.
2e: O'Neil Regional Park (near   Presumed occupied  Occupied; 1997     PCEs 1-3; may      Maintains current
 Ca[ntilde]ada Gobernadora).                         (CNDDB, EO 4).     require            geographical,
                                                                        management.        elevational, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides
                                                                                           connectivity.
2f: Chiquita Ridge.............  Presumed occupied  Occupied; 1997     PCEs 1-3; may      Necessary to stabilize
                                                     (CNDDB, EO 5).     require            populations per RP;
                                                                        management.        maintains current
                                                                                           geographical,
                                                                                           elevational, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides
                                                                                           connectivity.
2g: Radio Tower Road...........  Presumed occupied  Occupied; 2001     PCEs 1-3; may      Maintains current
                                                     (CNDDB, EO 15,     require            geographical,
                                                     16).               management.        elevational, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides
                                                                                           connectivity.
2h: San Onofre State Beach,      Presumed occupied  Occupied; 1997     PCEs 1-3; may      Unique soils and
 State Park leased land.                             (CNDDB, EO 6).     require            wetland type;
                                                                        management.        maintains habitat
                                                                                           function, genetic
                                                                                           diversity, and
                                                                                           species viability;
                                                                                           ecological linkage.
2i: SCE Viejo Conservation Bank  Presumed occupied  Occupied; 1998     PCEs 1-3; may      Maintains current
                                                     (CNDDB, EO 10).    require            geographical,
                                                                        management.        elevational, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           maintains current
                                                                                           population structure;
                                                                                           provides
                                                                                           connectivity.
----------------------------------------------------------------------------------------------------------------
                                                Riverside County
----------------------------------------------------------------------------------------------------------------
3c: Australia Pool.............  Presumed occupied  Occupied; 1998     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     PCEs 1-3; may      Maintains current
                                                     (CNDDB, EO 24).    require            geographical,
                                                                        management.        elevational, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           disjunct habitat.
3e: Schleuniger Pool...........  Presumed occupied  Occupied; 1998     PCEs 1-3; may      Maintains current
                                                     (CNDDB, EO 8).     require            geographical,
                                                                        management.        elevational, and
                                                                                           ecological
                                                                                           distribution.
3f: Skunk Hollow and Field Pool  Confirmed          Skunk Hollow:      PCEs 1-3; may      ......................
                                  occupied.          Occupied; 1988     require
                                                     (CNDDB, EO 3).     management.
                                                     Field Pool:
                                                     Occupied; 1988
                                                     (Service, GIS ID
                                                     9).

[[Page 72073]]

 
3g: Johnson Ranch Created Pool.  Created (in 2002)  Occupied; 2003     PCEs 1-3; may      Provides connectivity
                                                     (Service, GIS ID   require            among pools;
                                                     13).               management.        maintains current
                                                                                           population structure.
3h: Santa Rosa Plateau-Mesa de   Presumed occupied  Occupied; 2009     PCEs 1-3; may      Necessary to stabilize
 Colorado.                                           (Selheim and       require            populations per RP;
                                                     Searcy 2010,       management.        unique soils and
                                                     Report                       habitat type; large
                                                     11005).                               continuous blocks of
                                                                                           occupied habitat;
                                                                                           ecological linkage.
----------------------------------------------------------------------------------------------------------------
                                                San Diego County
----------------------------------------------------------------------------------------------------------------
4c: Poinsettia Lane Commuter     Presumed occupied  Occupied; 1998     PCEs 1-3; may      Necessary to stabilize
 Train Station (JJ2).                                (CNDDB, EO 7).     require            populations per RP;
                                                                        management.        unique soils and
                                                                                           habitat type;
                                                                                           disjunct habitat;
                                                                                           provides protection
                                                                                           for existing vernal
                                                                                           pool composition and
                                                                                           structure.
5a: J33 (Sweetwater High         Presumed occupied  Occupied; 2003     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     PCEs 1-3; may      Necessary to stabilize
                                                     (ERS, Report       require            populations per RP;
                                                     8639).    management.        maintains current
                                                                                           population structure;
                                                                                           ecological linkage.
5c: East Otay Mesa.............  Presumed occupied  Occupied; 2000     PCEs 1-3; may      Unique soils and
                                                     GIS ID 4; 2001     require            habitat type;
                                                     (EDAW 2001)        management.        maintains current
                                                     (CNDDB, EO 25).                       geographical,
                                                                                           elevational, and
                                                                                           ecological
                                                                                           distribution;
                                                                                           disjunct habitat;
                                                                                           protects existing
                                                                                           vernal pool
                                                                                           composition.
5d: J29-31.....................  Confirmed          Occupied; 1986     PCEs 1-3; may      ......................
                                  occupied.          (Bauder 1986a);    require
                                                     (Simovich and      management.
                                                     Fugate 1992)
                                                     (CNDDB, EO 2).
5e: J2 N, J4, J5...............  Presumed occupied  Occupied; 2003     PCEs 1-3; may      Necessary to stabilize
                                                     (City of San       require            populations per RP;
                                                     Diego, 2004).      management.        provides connectivity
                                                                                           among pools;
                                                                                           maintains current
                                                                                           population structure.
5f: J2 S and J2 W..............  Presumed occupied  Occupied; 2001     PCEs 1-3; may      Necessary to stabilize
                                                     (CNDDB, EO 18).    require            populations per RP;
                                                                        management.        provides connectivity
                                                                                           among pools;
                                                                                           maintains current
                                                                                           population structure.
5g: J14........................  Presumed occupied  Occupied; 2002     PCEs 1-3; may      Necessary to stabilize
                                                     (HELIX 2002,       require            populations per RP;
                                                     Report 2386).                              among pools;
                                                                                           maintains current
                                                                                           population structure.
5h: J11, J12, J16-18...........  Presumed occupied  Occupied; 2002     PCEs 1-3; may      Necessary to stabilize
                                                     (City of San       require            populations per RP;
                                                     Diego 2004).       management.        provides connectivity
                                                                                           among pools;
                                                                                           maintains current
                                                                                           population structure.
----------------------------------------------------------------------------------------------------------------
\1\ As discussed above, we consider the areas for which we lack positive survey results to be ``areas within the
  geographical area occupied by the species'' under section 3(5)(A)(i) of the Act as explained in the March 1,
  2012, publication at 77 FR 12543, pp. 12545-49. Table 1 summarizes the bases for that conclusion. However, we
  are alternatively designating areas that lack positive occupancy data at the time of listing under section
  3(5)(A)(ii) of the Act because these areas are essential to the conservation of the species and a designation
  limited to known occupied areas would be inadequate to ensure the conservation of the species.
\2\ Unit/Subunit name as it appears in Table 1 of proposed revised rule (76 FR 31698). For additional
  information, see the Recovery Plan (RP) for Vernal Pools of Southern California (Service 1998a, 113+ pp.).
\3\ Service status: ``Confirmed occupied'' indicates that there is a record of occupancy at or before the time
  of listing; ``Presumed occupied'' indicates 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 post-1993 positive survey results in the possession of the Service. ``Created'' refers to a vernal
  pool enhancement or restoration after the time of listing.
4 5 Current status: ``Occupied'' indicates a positive survey result documenting species occurrence and
  ``Presumed occupied'' indicates no protocol surveys have been completed. The listed year is 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 occurrence
  information number 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.
\6\ Reasons 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 on what we consider as the occupied geographic range of the species at the time of
  listing.
\7\ Reasons determined essential for the conservation of the species, as defined according to criteria set forth
  in the proposed revised critical habitat rule, this document, in the Recovery Plan (Service 1998a, Appendix F,
  pp. F-1-F-5) and in section 3(5)(A)(ii) of the Act. An empty box in the ``Act section 3(5)(A)(ii)
  justification'' column indicates this subunit is not proposed under section 3(5)(A)(ii) of the Act, and was
  confirmed occupied at the time of listing (see footnote 3).
* PCE: primary constituent element; SCE: Southern California Edison; GIS: geographic information system.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and

[[Page 72074]]

    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination 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 that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Only where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat would the consultation requirements of section 
7(a)(2) of the Act apply.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements (PCEs) such as roost sites, nesting grounds, 
seasonal wetlands, water quality, tide, soil type) that are essential 
to the conservation of the species. PCEs are those specific elements of 
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Climate Change

    Our analyses under the Act include consideration of ongoing and 
projected changes in climate. The terms ``climate'' and ``climate 
change'' are defined by the Intergovernmental Panel on Climate Change 
(IPCC). The term ``climate'' refers to the mean and variability of 
different types of weather conditions over time, with 30 years being a 
typical period for such measurements, although shorter or longer 
periods also may be used (IPCC 2007a, p. 78). The term ``climate 
change'' thus refers to a change in the mean or variability of one or 
more measures of climate (e.g., temperature or precipitation) that 
persists for an extended period, typically decades or longer, whether 
the change is due to natural variability, human activity, or both (IPCC 
2007a, p. 78).

[[Page 72075]]

    Scientific measurements spanning several decades demonstrate that 
changes in climate are occurring, and that the rate of change has been 
faster since the 1950s. Examples include warming of the global climate 
system, and substantial increases in precipitation in some regions of 
the world and decreases in other regions. (For these and other 
examples, see IPCC 2007a, p. 30; and Solomon et al. 2007, pp. 35-54, 
82-85). Results of scientific analyses presented by the IPCC show that 
most of the observed increase in global average temperature since the 
mid-20th century cannot be explained by natural variability in climate, 
and is ``very likely'' (defined by the IPCC as 90 percent or higher 
probability) due to the observed increase in greenhouse gas (GHG) 
concentrations in the atmosphere as a result of human activities, 
particularly carbon dioxide emissions from use of fossil fuels (IPCC 
2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomon et al. 2007, pp. 
21-35). Further confirmation of the role of GHGs comes from analyses by 
Huber and Knutti (2011, p. 4), who concluded it is extremely likely 
that approximately 75 percent of global warming since 1950 has been 
caused by human activities.
    Scientists use a variety of climate models, which include 
consideration of natural processes and variability, as well as various 
scenarios of potential levels and timing of GHG emissions, to evaluate 
the causes of changes already observed and to project future changes in 
temperature and other climate conditions (for example, Meehl et al. 
2007, entire; Ganguly et al. 2009, pp. 11555, 15558; Prinn et al. 2011, 
pp. 527, 529). All combinations of models and emissions scenarios yield 
very similar projections of increases in the most common measure of 
climate change, average global surface temperature (commonly known as 
global warming), until about 2030. Although projections of the 
magnitude and rate of warming differ after about 2030, the overall 
trajectory of all the projections is one of increased global warming 
through the end of this century, even for the projections based on 
scenarios that assume that GHG emissions will stabilize or decline. 
Thus, there is strong scientific support for projections that warming 
will continue through the 21st century, and that the magnitude and rate 
of change will be influenced substantially by the extent of GHG 
emissions (IPCC 2007a, pp. 44-45; Meehl et al. 2007, pp. 760-764 and 
797-811; Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011, pp. 
527, 529). (See IPCC 2007b, p. 8, for a summary of other global 
projections of climate-related changes, such as frequency of heat waves 
and changes in precipitation. Also see IPCC 2011(entire) for a summary 
of observations and projections of extreme climate events.)
    Various changes in climate may have direct or indirect effects on 
species. These effects may be positive, neutral, or negative, and they 
may change over time, depending on the species and other relevant 
considerations, such as interactions of climate with other variables 
(for example, habitat fragmentation) (IPCC 2007b, pp. 8-14, 18-19). 
Identifying likely effects often involves aspects of climate change 
vulnerability analysis. Vulnerability refers to the degree to which a 
species (or system) is susceptible to, and unable to cope with, adverse 
effects of climate change, including climate variability and extremes. 
Vulnerability is a function of the type, magnitude, and rate of climate 
change and variation to which a species is exposed, its sensitivity, 
and its adaptive capacity (IPCC 2007a, p. 89; see also Glick et al. 
2011, pp. 19-22). There is no single method for conducting such 
analyses that applies to all situations (Glick et al. 2011, p. 3). We 
use our expert judgment and appropriate analytical approaches to weigh 
relevant information, including uncertainty, in our consideration of 
various aspects of climate change.
    Global climate projections are informative, and, in some cases, the 
only or the best scientific information available for us to use. 
However, projected changes in climate and related impacts can vary 
substantially across and within different regions of the world (for 
example, IPCC 2007a, pp. 8-12). Therefore, we use ``downscaled'' 
projections when they are available and have been developed through 
appropriate scientific procedures, because such projections provide 
higher resolution information that is more relevant to spatial scales 
used for analyses of a given species (see Glick et al. 2011, pp. 58-61, 
for a discussion of downscaling). The program Climate Wizard provides 
regional level projections of future climate patterns, using the World 
Climate Research Programme's (WCRP's) Coupled Model Intercomparison 
Project phase 3 (CMIP3) multi-model dataset (http://www.climatewizard.org/). These data project an average decrease of 
rainfall in coastal Southern California of approximately 5 percent by 
the year 2050.
    Documentation of climate-related changes that have already occurred 
in California (Croke et al. 1998, pp. 2128, 2130; Breshears et al. 
2005, p. 15144), and future drought predictions for California (for 
example, Field et al. 1999, pp. 8-10; Lenihen et al. 2003, p. 1667; 
Hayhoe et al. 2004, p. 12422; Breshears et al. 2005, p. 15144; Seager 
et al. 2007, p. 1181) and North America (IPCC 2007a, p. 9), indicate 
prolonged drought and other climate-related changes will continue in 
the future. While climate change was not discussed in the 1993 listing 
rule, drought was noted in the rule as a stochastic (random or 
unpredictable) event that could have drastic effects on Riverside fairy 
shrimp, given its fragmented and restricted range (58 FR 41384, August 
3, 1993, p. 41389; Service 1998a, p. 34). Local climate-related changes 
or drought-induced impacts that may negatively affect limited ephemeral 
wetland habitats include alterations in seasonal timing, ponding 
durations, or patterns of inundation and draw down (the drying period 
of a vernal pool). However, the magnitude and frequency of these 
factors remain untested.
    In southern California, climatic variables affecting vernal pool 
habitats are most influenced by distance from the coast, topography, 
and elevation (Bauder and McMillian 1998, p. 64). As presence and 
persistence of Riverside fairy shrimp appear to be associated with 
precipitation patterns, draw-down factors, and other regional climatic 
factors, including aridity (Eriksen and Belk 1999, p. 71), the likely 
impacts of climate change on ecological processes for Riverside fairy 
shrimp are most closely tied to availability and persistence of ponded 
water during the winter and spring. Vernal pools are particularly 
sensitive to slight increases in evaporation or reductions in rainfall 
due to their relative shallowness and seasonality (Field et al. 1999, 
p. 19). Based on existing data, weather conditions in which vernal pool 
flooding promotes hatching, but pools become dry (or too warm) before 
embryos are fully developed, are expected to have the greatest negative 
impact on Riverside fairy shrimp resistance and resilience. In the 2008 
5-year review, we noted that climate change may potentially cause 
changes in vernal pool inundation patterns and pool consistency, and 
that drought may decrease or terminate reproductive output if pools 
fail to flood or dry up before reproduction is complete (Service 1998a, 
p. 34). Long-term or continuing drought conditions may deplete cysts 
(eggs) or cyst banks in affected pools due to the lack of new 
reproductive cysts.
    Additionally, localized climate-related changes may alter the 
temporal

[[Page 72076]]

spatial array of occupied habitat patches across the species' 
geographic range (in other words, the presence of Riverside fairy 
shrimp across and between pool complexes). The ability of Riverside 
fairy shrimp to survive is likely to depend in part on their ability to 
disperse to pools where conditions are suitable (Bohonak and Jenkins 
2003, p. 786) through passive dispersal mechanisms utilizing 
reproductive cysts (see the Life History section in the proposed rule, 
published June 1, 2011 (76 FR 31686)).
    As discussed above, climate projections produced through Climate 
Wizard predict a decrease in annual rainfall by 2050. For a species 
that depends on long-term filling of vernal pools, any decrease in 
rainfall amount could affect the persistence of the species and the 
quality of available habitat. However, such projections are not 
straightforward, because filling of vernal pools may also depend on 
local watershed characteristics not directly related to annual 
rainfall. Additionally, the climate projections do not take storm 
events into account that could provide for filling of vernal pools. 
Therefore, designation of a wide variety of vernal pool habitat types 
is necessary to buffer against the projected future impacts of climate 
change. We find the designation herein provides for the array of 
habitat to provide for the conservation of the species.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Riverside fairy shrimp from studies of this species' habitat, 
ecology, and life history as described in the Critical Habitat section 
of the proposed rule to designate critical habitat published in the 
Federal Register on June 1, 2011 (76 FR 31686), and in the information 
presented below. Additional information can be found in the final 
listing rule published in the Federal Register on August 3, 1993 (58 FR 
41384), and the 1998 Recovery Plan (Service 1998a). We have determined 
that the Riverside fairy shrimp requires the physical or biological 
features described below.
Space for Individual and Population Growth and for Normal Behavior
    Riverside fairy shrimp require vernal pool habitat to grow and 
reproduce. Their life cycle requires periods of inundation as well as 
dry periods (Ripley et al. 2004, pp. 221-223). Habitats (ephemeral 
wetlands) that provide space for growth and persistence of Riverside 
fairy shrimp include areas that generally pond for 2 to 8 months and 
dry down for a period during the late spring to summer months. Habitats 
include natural and created pools (usually greater than 12 inches (in) 
(30 centimeters (cm)) deep) that support these longer inundation 
periods; some of these habitats are artificial pools (cattle watering 
holes and road embankments) that have been modified or deepened with 
berms (Hathaway and Simovich 1996, p. 670). Artificial depressions, 
often associated with degraded vernal pool habitat, are capable of 
functioning as habitat and can support vernal pool species, including 
Riverside fairy shrimp (Moran 1977, p. 155; Service 1998a, p. 22). 
Space for the Riverside fairy shrimp's normal growth and behavior 
requires an underlying soil series (typically clay soil inclusions with 
a subsurface claypan or hardpan component), which forms an impermeable 
layer that sustains appropriate inundation periods (water percolates 
slowly once filled) and provides necessary physiological requirements 
including, but not limited to, appropriate water temperature and water 
chemistry (mineral) regimes, a natural prey base, foraging 
opportunities, and areas for predator avoidance.
    Intact vernal pool hydrology (including the seasonal filling and 
drying down of pools) is the essential feature that governs the life 
cycle of the Riverside fairy shrimp. An intact hydrological regime 
includes seasonal hydration (during most but not all years) followed by 
drying out of the substrate to promote overwintering of cysts and 
provide conditions for a viable cyst bank for the following season. 
Proper timing of precipitation and the associated hydrological and soil 
processes in the upland watershed contribute to the provision of space 
for growth and normal behavior. Seasonal filling and persistence of the 
vernal pool are necessary for cyst hatching and successful reproduction 
of Riverside fairy shrimp (see ``Sites for Breeding, Reproduction, and 
Rearing (or Development) of Offspring'', below).
    To maintain high-quality vernal pool ecosystems, the vernal pool 
basin (a specific vernal pool and surrounding landscape) or complex and 
its upslope watershed (adjacent vegetation and upland habitat) must be 
available and functional (Hanes and Stromberg 1998, p. 38). Adjacent 
upland habitat supplies important hydrological inputs to sustain vernal 
pool ecosystems. Protection of the upland habitat between vernal pools 
within the watershed is essential to maintain the space needs of 
Riverside fairy shrimp and to buffer the vernal pools from edge 
effects. Having the spatial needs that create pools of adequate depth 
also supports the temporal needs of Riverside fairy shrimp, as deep 
pools provide for inundation periods of adequate length to support the 
entire life-history function and reproductive cycles necessary for 
Riverside fairy shrimp.
    Vernal pools generally occur in complexes, which are defined as two 
or more vernal pools in the context of a larger vernal pool watershed. 
The local watershed associated with a vernal pool complex includes all 
surfaces in the surrounding area that flow into the vernal pool 
complex. Within a vernal pool complex, vernal pools are hydrologically 
connected to one another within the local geographical context. These 
vernal pool complexes may connect by either surface or subsurface 
flowing water. Pools and complexes are dependent on adjacent 
geomorphology and microtopography for maintenance of their unique 
hydrological conditions (Service 1998a, p. 23). Water may flow over the 
surface from one vernal pool to another (over-fill or overbanking), 
throughout a network of swales or low-point depressions within a 
watershed. Due to an impervious clay or hardpan layer, water can also 
flow and collect below ground, such that the soil remains saturated 
with water. The result of the movement of water through vernal pool 
systems is that pools fill and hold water continuously for a number of 
days, weeks, or months following the initial rainfall (Hanes et al. 
1990, p. 51). Some hydrological systems have watersheds covering a 
large area, which contributes to filling and the hydrological dynamics 
of the system,

[[Page 72077]]

while other hydrologic systems have very small watersheds and fill 
almost entirely from direct rainfall. It is also possible that 
subsurface inflows from surrounding soils within a watershed contribute 
to filling some vernal pools (Hanes et al. 1990, p. 53; Hanes and 
Stromberg 1998, p. 48).
    Impervious subsurface layers of clay or hardpan soils, combined 
with flat to gently sloping topography, inhibit rapid infiltration of 
rainwater and result in ponded water in vernal pools (Bauder and 
McMillian 1998, pp. 57-59). These soils also act as a buffer that 
moderates the water chemistry and rate of water loss to evaporation 
(Zedler 1987, pp. 17-30). In Ventura County, soil series known to 
support Riverside fairy shrimp include, but are not limited to, the 
Azule, Calleguas, Cropley, and Linne soil series. In Orange County, 
soils series include the Alo, Balcom, Bosanko, Calleguas, Cieneba, 
Myford, and Soper soil series. In western Riverside County, vernal pool 
habitat known to support Riverside fairy shrimp includes the Altamont, 
Auld, Bosanko, Cajalco, Claypit, Murrietta, Porterville, Ramona, 
Traver, and Willows soil series. In San Diego County, vernal pool 
habitat known to support Riverside fairy shrimp includes the Diablo, 
Huerhuero, Linne, Placentia, Olivenhain, Salinas, Stockpen, and Redding 
soil series. Soil series data are based on 2008 Soil Survey Data and 
are available online at: http://websoilsurvey.nrcs.usda.gov. For 
additional information on soils, see the ``Primary Constituent Elements 
for Riverside Fairy Shrimp'' section below.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Many fairy shrimp species are filter feeders with a diet that 
consists mostly of algae, bacteria, and other microorganisms (Parsick 
2002, pp. 37-41, 65-70). In a natural vernal pool setting, these food 
items are readily available. Typically, an undisturbed, intact surface 
and subsurface soil structure (not permanently altered by anthropogenic 
land use activities such as deep, repetitive discing or grading), and 
the associated hydrogeomorphic processes within the basin and upland 
watershed, are necessary to provide food, water, minerals, and other 
physiological needs for Riverside fairy shrimp. Water temperature, 
water chemistry, and length of time that vernal pools are inundated are 
the important factors in the hatching and temporal appearance of 
Riverside fairy shrimp (Gonzalez et al. 1996, pp. 315-316; Hathaway and 
Simovich 1996, p. 669). Riverside fairy shrimp hatch and reproduce in 
water at temperatures that range generally from 5 to 20 degrees Celsius 
(C) (41 to 68 degrees Fahrenheit (F)), and typically do not hatch at 
temperatures greater than 25 degrees C (77 degrees F) (Hathaway and 
Simovich 1996, pp. 674-675). Riverside fairy shrimp have a wider 
thermal tolerance than San Diego fairy shrimp (Branchinecta 
sandiegonensis), which allows Riverside fairy shrimp to hatch later in 
the season when deeper vernal pools are still filled with water.
Cover or Shelter
    Ponding of vernal pool habitat (water) also provides cover and 
shelter for Riverside fairy shrimp. During the period when these 
habitats are inundated, water plays an important role in providing the 
necessary aquatic environment (shelter) for the fairy shrimp to 
complete its life-history requirements. Without water to protect them 
from desiccation, fairy shrimp would be unable to hatch, grow, mature, 
reproduce, and disperse within the vernal pool habitat (Helm 1998, p. 
136; Service 1998a, p. 34; Eriksen and Belk 1999, pp. 71, 105). 
Additionally, the wet (ponding) period excludes plant and animal 
species that are exclusively terrestrial, providing a level of shelter 
from predation and competition for the fairy shrimp, which are adapted 
to short-lived, ephemeral wetland habitats.
    The undisturbed soil bank also provides cover and shelter for fairy 
shrimp cysts during the draw-down period of the vernal pool habitat. 
The drying phase allows reproductive cysts to overwinter, as they lay 
dormant in the soil. Basin soils provide cover and shelter to Riverside 
fairy shrimp as the vernal pool dries out (Simovich and Hathaway 1997, 
p. 42; Eriksen and Belk 1999, p. 105). By maintaining the population in 
a dormant state, reproductive cysts and the undisturbed soil in which 
they rest protect Riverside fairy shrimp from predators and competitors 
during the vernal pool dry period. Cyst dormancy is an important life-
history adaptation for surviving arid phases, and is important for 
synchronizing life cycles in unstable and ephemeral wetland habitats 
(Belk and Cole 1975, pp. 209-210). Like the wet period exclusion of 
terrestrial plants, the draw-down period excludes species that are 
exclusively aquatic (such as fish), providing shelter for specially 
adapted Riverside fairy shrimp.
Sites for Breeding, Reproduction, and Rearing (or Development) of 
Offspring
    Mature Riverside fairy shrimp are typically observed from mid-March 
through April (Eng et al. 1990, p. 259). In years with early or late 
rainfall, the hatching period may be extended. Riverside fairy shrimp 
can reach sexual maturity and begin mating approximately 8 weeks from 
the time a vernal pool fills with water (Hathaway and Simovich 1996, p. 
673). Length of time to maturity restricts Riverside fairy shrimp to a 
small subset of relatively long-lasting vernal pools and ephemeral 
wetlands in southern California (Hathaway and Simovich 1996, p. 673). 
This maturation rate, which is distinctly longer than for other fairy 
shrimp, presumably restricts Riverside fairy shrimp typically to 
moderate to deep vernal pools and ephemeral basins (generally ranging 
from 12 in (30 cm) to 5 to 10 feet (ft) (1.5 to 3 meters (m)) in depth) 
(Hathaway and Simovich 1996, p. 675).
    Because the length of time that pools remain filled in vernal pool 
ecosystems is highly variable, Riverside fairy shrimp have become 
adapted to some degree of unpredictability in their habitat (Eriksen 
and Belk 1999, pp. 104-105) and to a system where the requisite 
conditions are transitory. Depending on rainfall and environmental 
conditions, a vernal pool may fill and recede numerous times. Often, 
the pool may evaporate before Riverside fairy shrimp are able to mature 
and reproduce (Ripley et al. 2004, pp. 221-223). The females' eggs 
begin to develop as soon as they are fertilized and then the 
development stops at an early stage (after a few cell divisions) and 
the eggs enter diapause (become dormant) as cysts or resting eggs 
(Lavens and Sorgeloos 1987, p. 29; Ericksen and Belk 1999, p. 105). 
Riverside fairy shrimp cysts are smaller than a tip of a pencil and 
contain a dormant fairy shrimp embryo encased in a hard outer shell. 
Cysts are generally retained in a brood pouch on the underbelly of the 
female until she dies, when both drop to the bottom of the vernal pool 
to become part of a cyst bank in the soil. During subsequent filling 
events, eggs may emerge from dormancy and hatch, or continue to 
diapause. Signals that break diapause include temperature and oxygen 
concentrations (Belk and Cole 1975, p. 216; Thorp and Covich 2001, p. 
767). Resting eggs of freshwater crustaceans such as fairy shrimp have 
been shown to survive drying, heat, freezing, and ingestion by birds 
(Fryer 1996, pp. 1-14). Resting stages (dormancy) appear to be an 
adaptation

[[Page 72078]]

to temporary habitats and may aid in long-distance dispersal because 
they can survive unfavorable conditions during dispersal by birds or 
tires of off-highway vehicles (OHVs) (Belk and Cole 1975, pp. 209, 222; 
Williams 1985, p. 97).
    Researchers have found that only a small proportion of Riverside 
fairy shrimp cysts in the cyst bank hatch each time the vernal pool 
fills. Therefore, if the pool dries before the species is able to 
mature and reproduce, there are still many more cysts left in the soil 
that may hatch the next time the pool fills (Simovich and Hathaway 
1997, p. 42). Simovich and Hathaway (1997, pp. 40-43) referred to this 
as bet-hedging and concluded that it allows fairy shrimp, including 
Riverside fairy shrimp, to survive in an unpredictable environment. 
Bet-hedging ensures that some cysts will be available for hatching when 
the vernal pools hold water for a period long enough for Riverside 
fairy shrimp to complete their entire life cycle. Thus, reproductive 
output is spread over several seasons for small aquatic crustaceans, 
such as fairy shrimp, living in variable environments. Allowing 
conditions within the above parameters to occur on a natural basis is 
essential for the survival and conservation of Riverside fairy shrimp.
Habitats That Are Protected From Disturbance or Are Representative of 
the Historical, Geographical, and Ecological Distributions of the 
Species
    Pools that support Riverside fairy shrimp are generally found in 
flat or moderately sloping areas, primarily in annual, disturbed (such 
as grazed or deep disced) grassland and chaparral habitats. The 
majority of complexes and pools that currently support Riverside fairy 
shrimp have experienced some level of disturbance, primarily from 
agriculture, cattle, and OHV activity.
    Estimates of the historical distribution of Riverside fairy shrimp 
suggest that 90 to 97 percent of vernal pool habitat has been lost in 
southern California (Mattoni and Longcore 1997, pp. 71-73, 86-88; 
Bauder and McMillan 1998, p. 66; Keeler-Wolf et al. 1998, p. 10; 
Service 1998a, p. 45). Consideration should be given to conserve much 
of the remaining Riverside fairy shrimp occurrences from further loss 
and degradation in a configuration that maintains habitat function and 
species viability (Service 1998a, p. 62). Historically, there were 
larger complexes of vernal pools, including areas on the Los Angeles 
coastal prairie (Mattoni and Longcore 1997, p. 88). In other places, 
such as Riverside County, which has not yet been developed and 
fragmented to the same extent as Los Angeles County, we believe it is 
possible that additional occurrences of the Riverside fairy shrimp may 
be documented through more intensive survey efforts and reporting.
    The conservation of Riverside fairy shrimp is dependent on several 
factors including, but not limited to, maintenance of areas (of 
sufficient size and configuration to sustain natural ecosystem 
components, functions, and processes) that provide appropriate 
inundation and ponding durations, natural hydrological regimes and 
appropriate soils, intermixed wetland and upland watershed, 
connectivity among pools within geographic proximity to facilitate gene 
flow among complexes, and protection of existing vernal pool 
composition and structure.
    In a few locations, two species of fairy shrimp--San Diego fairy 
shrimp and Riverside fairy shrimp--are known to co-occur (Hathaway and 
Simovich 1996, p. 670). However, where these species do co-occur, they 
rarely have been observed to coexist as adults (Hathaway and Simovich 
1996, p. 670). San Diego fairy shrimp are usually found earlier in the 
season than Riverside fairy shrimp, due to the Riverside fairy shrimp's 
slower rate of development (Hathaway and Simovich 1996, p. 675). 
Maturation rates are responsible for the sequential appearance of the 
species as adults in pools where they co-occur (Hathaway and Simovich 
1996, p. 675). Neither species is found in the nearby desert or 
mountain areas, as temperature has been shown to play an important role 
in the spatial and temporal appearance of fairy shrimp.
Primary Constituent Elements for Riverside Fairy Shrimp
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of Riverside fairy shrimp in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. 
Primary constituent elements are those specific elements of the 
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to Riverside fairy shrimp are:
    (1) Ephemeral wetland habitat consisting of vernal pools and 
ephemeral habitat that have wet and dry periods appropriate for the 
incubation, maturation, and reproduction of the Riverside fairy shrimp 
in all but the driest of years, such that the pools:
    (a) Are inundated (pond) approximately 2 to 8 months during winter 
and spring, typically filled by rain, and surface and subsurface flow;
    (b) Generally dry down in the late spring to summer months;
    (c) May not pond every year; and
    (d) Provide the suitable water chemistry characteristics to support 
the Riverside fairy shrimp. These characteristics include 
physiochemical factors such as alkalinity, pH, temperature, dissolved 
solutes, dissolved oxygen, which can vary depending on the amount of 
recent precipitation, evaporation, or oxygen saturation; time of day; 
season; and type and depth of soil and subsurface layers. Vernal pool 
habitat typically exhibits a range of conditions but remains within the 
physiological tolerance of the species. The general ranges of 
conditions include, but are not limited to:
    (i) Dilute, freshwater pools with low levels of total dissolved 
solids (low ion levels (sodium ion concentrations generally below 70 
millimoles per liter (mmol/l)))
    (ii) Low alkalinity levels (lower than 80 to 1,000 milligrams per 
liter (mg/l)); and
    (iii) A range of pH levels from slightly acidic to neutral 
(typically in range of 6.4-7.1).
    (2) Intermixed wetland and upland habitats that function as the 
local watershed, including topographic features characterized by 
mounds, swales, and low-lying depressions within a matrix of upland 
habitat that result in intermittently flowing surface and subsurface 
water in swales, drainages, and pools described in PCE 1. Associated 
watersheds provide water to fill the vernal or ephemeral pools in the 
winter and spring months. Associated watersheds vary in size and 
therefore cannot be generalized, and they are affected by factors 
including surface and underground hydrology, the topography of the area 
surrounding the pool or pools, the vegetative coverage, and the soil 
substrates in the area. The size of associated watersheds likely varies 
from a few acres to greater than 100 ac (40 ha).
    (3) Soils that support ponding during winter and spring which are 
found in areas characterized in PCEs 1 and 2 that have a clay component 
or other property that creates an impermeable surface or subsurface 
layer. Soil series with a clay component or an impermeable surface or 
subsurface layer typically slow percolation, increase water run-off (at

[[Page 72079]]

least initially), and contribute to the filling and persistence of 
ponding of ephemeral wetland habitat where the Riverside fairy shrimp 
occurs. Soils and soil series known to support vernal pool habitat 
include, but are not limited to:
    (a) The Azule, Calleguas, Cropley, and Linne soils series in 
Ventura County;
    (b) The Alo, Balcom, Bosanko, Calleguas, Cieneba, and Myford soils 
series in Orange County;
    (c) The Cajalco, Claypit, Murrieta, Porterville, Ramona, Traver, 
and Willows soils series in Riverside County; and
    (d) The Diablo, Huerhuero, Linne, Placentia, Olivenhain, Redding, 
Salinas, and Stockpen soils series in San Diego County.
    This final rule identifies the PCEs necessary to support one or 
more of the life-history functions of Riverside fairy shrimp and those 
areas containing the PCEs. We conclude that conservation of the 
Riverside fairy shrimp is dependent upon multiple factors. We consider 
the criteria for conservation of Riverside fairy shrimp to include: (1) 
Conservation and management of areas across the species' range that 
maintain normal hydrological and ecological functions where existing 
populations survive and reproduce and that are representative of the 
geographical distribution of the species; (2) conservation of areas 
representative of the ecological distribution of Riverside fairy shrimp 
(various combinations of soil types, vernal pool chemistry, geomorphic 
surfaces, and vegetation community associations), and (3) conservation 
of areas that allow for the movement of cysts between areas 
representative of the geographical and ecological distribution of the 
species (within and between vernal pool complexes).
    We are designating most of the known occupied habitat of Riverside 
fairy shrimp because: (1) Riverside fairy shrimp are not migratory; (2) 
disjunct populations likely represent unique, locally adapted 
populations (adapted to unique site-specific or habitat-specific 
environmental conditions); and (3) gene exchange that should naturally 
occur between populations or critical habitat units is likely 
infrequent. Where management units are sufficiently distant (16 to 159 
miles (mi) (26 to 256 kilometers (km)) from one another, the likelihood 
of gene exchange is reduced. All of the areas designated contain all of 
the PCEs essential for the species that may require special management 
considerations or protection, and they: (1) Maintain the genetic 
variability of Riverside fairy shrimp across its known geographical 
range and allow for a varying nature and expression of the species; (2) 
allow for natural levels of gene flow and dispersal where possible, in 
order to accommodate natural processes of local extirpation and 
colonization over time (and thereby reduce the risk of extinction 
through random and natural events); and (3) maintain a full range of 
varying habitat types and characteristics for the species by 
encompassing the full extent of the physical, biological, and 
environmental conditions essential for the conservation of Riverside 
fairy shrimp.
    Not all life-history functions require all of the PCEs. For 
example, Riverside fairy shrimp can persist as cysts for several years 
when the vernal pools are not filled to the proper depth (note also PCE 
1c, which recognizes that vernal pools occupied by Riverside fairy 
shrimp may not fill every year). Therefore, at any given time and 
particularly in the dry summer months, not all areas designated as 
revised critical habitat will demonstrate all aspects of the PCEs. 
However, over the longer time scale that represents the normal life-
history functions of Riverside fairy shrimp, all of the PCEs are 
present in all of the units. Therefore, in consideration of that longer 
scale, we confirm that all units in this final critical habitat 
designation contain all of the PCEs. Further, all units and subunits 
designated as critical habitat are currently known to be occupied by 
Riverside fairy shrimp (with the exception of Subunit 1b, which is 
presumed to be occupied by Riverside fairy shrimp although not every 
portion of every unit and subunit is occupied by Riverside fairy 
shrimp. As discussed above, Riverside fairy shrimp require a 
functioning local watershed that results in intermittently flowing 
surface and subsurface water to fill the vernal pool basins in which 
the species occurs (PCE 2). Thus each unit and subunit consists of 
occupied vernal pool basins and the surrounding local watersheds that 
intermittently fill those basins. See the Final Critical Habitat 
Designation section below for more details.

Special Management Considerations or Protection

    When designating critical habitat, we first assess whether there 
are specific areas within the geographical area occupied by the species 
at the time of listing that contain features essential to the 
conservation of the species that may require special management 
considerations or protection before considering whether any areas 
outside the geographical area occupied by the species at the time of 
listing may be essential for its conservation. The determination that 
special management may be required is not a prerequisite to designating 
critical habitat in areas essential for the conservation of the species 
that are outside the geographical area occupied at the time of listing. 
However, all areas (units/subunits) we are designating as revised 
critical habitat in this final rule, whether or not confirmed occupied 
or unoccupied at the time of listing, contain essential features that 
require special management considerations or protection to address 
current and future threats to Riverside fairy shrimp, maintain or 
enhance the features, and ensure the recovery and survival of the 
species.
    The physical or biological features in areas designated as revised 
critical habitat in this final rule all face ongoing threats that 
require special management considerations or protection. For Riverside 
fairy shrimp, such threats include vernal pool elimination due to 
agricultural and urban development, including activities associated 
with construction of infrastructure (such as highways, utilities, and 
water storage) (PCEs 1, 2, 3); construction of physical barriers or 
impervious surfaces around a vernal pool complex (PCEs 1, 2); altered 
water quality or quantity (PCEs 1, 3) due to channeling water runoff 
into a vernal pool complex or to the introduction of water, other 
liquids, or chemicals (including herbicides and pesticides) into the 
vernal pool basin; physical disturbance to the claypan and hardpan 
soils within the vernal pool basin (PCEs 1, 3), including discharge of 
dredged or fill material into vernal pools and erosion of sediments 
from fill material; disturbance of soil profile by grading, digging, or 
other earthmoving work within the basin or its upland slopes or by 
other activities such as OHV use, heavy foot traffic, grazing, 
vegetation removal, fire management, or road construction within the 
vernal pool watershed (PCEs 1, 2, 3); invasion of nonnative plant and 
animal species into the vernal pool basin (PCEs 1, 2), which alters 
hydrology and soil regimes within the vernal pool; and any activity 
that permanently alters the function of the underlying claypan or 
hardpan soil layer (PCE 3), resulting in disturbance or destruction of 
vernal pool flora or the associated upland watershed (PCEs 2, 3). All 
of these threats have the potential to permanently reduce or increase 
the depth of a vernal pool, ponding duration and inundation of the 
vernal pool, or other vernal pool features beyond the tolerances of 
Riverside fairy shrimp (PCE 1).
    Loss and degradation of wetland habitat, most directly from 
conversion

[[Page 72080]]

to agriculture and development, was cited in the final listing rule as 
a cause for the decline of Riverside fairy shrimp (58 FR 41387, August 
3, 1993). Most of the populations of this species are located in San 
Diego, Orange, and Riverside Counties. These counties have had (and 
continue to have) increasing human populations, development, and 
infrastructure needs. Natural areas in these counties are frequently 
near or bounded by urbanized areas. Grading, discing, and scraping for 
urbanization results in loss of vernal pool topography and soil 
surface, as well as the subsurface soil layers, to the degree that they 
will no longer support ponding for Riverside fairy shrimp (PCE 3). 
Urban development modifies and removes vernal pool topography, compacts 
or disturbs soils such that basins and upland watershed components are 
altered, and likely eliminates or fragments populations of Riverside 
fairy shrimp through direct crushing of cysts, disruption of soils and 
removal of the cyst bank, and modification of upland hydrology and 
topography, which may potentially isolate a pool or pools within a 
complex. Overall, habitat loss continues to be the greatest direct 
threat to Riverside fairy shrimp.
    Because the flora and fauna in vernal pools or swales can change if 
the hydrological regime is altered (Bauder 1986b), human activities 
that reduce the extent of the watershed or alter runoff patterns 
(timing, amount, or flow of water) (PCE 2) may also eliminate Riverside 
fairy shrimp, reduce their population size or reproductive success, or 
alter the duration or filling of basins such that the location of sites 
inhabited by this species may shift. Changes to hydrological patterns 
due to cattle trampling, OHV use, human trampling, road development, 
military activities, and water management activities impact vernal 
pools (PCEs 1, 2, 3) (58 FR 41387, August 3, 1993). Impacts to 
Riverside fairy shrimp such as the species' genetic diversity and 
patterns of gene flow, persistence from reductions in air and water 
quality due to human urbanization, or changes in nutrient availability 
associated with altered hydrology may be exacerbated by the species' 
highly fragmented and restricted range (Bauder 1986b, pp. 209-211).
    Unpredictable natural events, such as fire, can be especially 
devastating due to the fragmented and restricted range of the species 
(58 FR 41390, August 3, 1993). Vernal pool habitat is naturally subject 
to wildfires, and cysts of other fairy shrimp species are known to 
survive fire events (Zedler 1987, p. 96; Wells et al. 1997, p. 200). 
However, fire can have detrimental impacts on vernal pools from direct 
burning of dense surrounding vegetation (Bauder and Wier 1991, p. 5-
10). Fire suppression can also damage vernal pools due to grading 
activities, suppression activities, crushing from vehicles associated 
with fire control, or from sediment runoff following fire (Bauder 
1986a, p. 21; Bauder and Wier 1991, pp. 5-10-5-11; Hecht et al. 1998, 
p. 33). These threats may require special management considerations or 
protection.
    Changes in hydrology that affect the Riverside fairy shrimp's PCEs 
are caused by activities that alter the surrounding topography or 
change historical water flow patterns in the watershed (PCEs 2, 3). 
Even slight alterations in the hydrology can change the depth, volume, 
and duration of ponding inundation; water temperature; soil; mineral 
and organic matter transport to the pool; and water quality and 
chemistry, which in turn can make the ephemeral wetland habitat (PCE 1) 
unsuitable for Riverside fairy shrimp. Activities that impact the 
hydrology include, but are not limited to, road building, grading and 
earth moving, impounding natural water flows, and draining of pools or 
their immediately surrounding upland watershed. Impacts to the 
hydrology of vernal pools can be managed through avoidance of such 
activities in and around the pools and the associated surrounding 
upland areas.
    Disturbance to the impermeable substrate layer of claypan and 
hardpan soils within vernal pools occupied by Riverside fairy shrimp 
(PCE 3) may alter the depth, ponding inundation, water temperature, and 
water chemistry. Physical disturbances to claypan and hardpan soils may 
be caused by excavation of borrow material (soil or sediments), OHV 
use, military training activities, repeated or deep agricultural 
discing, drilling during construction activities, or creation of berms 
that obstruct the natural hydrological surface or subsurface flow of 
water runoff and precipitation. Impacts to the soils of vernal pools 
can be managed through avoidance of these activities in and around the 
pools and the associated surrounding upland areas.
    Nonnative plant species may alter ponding inundation and water 
temperature by changing the evaporation rate and shading of standing 
water in vernal pools (PCEs 1, 2). Invasive plant species, such as 
Cotula coronopifolia (brass-buttons) and Agrostis avenacea (Pacific 
bentgrass), compete with native vernal pool plant species and may alter 
the physiochemical factors of the water (PCE 1), the ponding duration 
(PCE 1), and the upland habitat (PCE 2) in these vernal pools. Impacts 
from nonnative plants can be managed to maintain the appropriate 
hydrology and physiochemical nature of the vernal pools required by the 
life-history processes of Riverside fairy shrimp.
    Further discussion of specific threats to the PCEs in individual 
critical habitat units is provided in the unit descriptions below. In 
these revised critical habitat units, special management considerations 
or protection may be needed to ensure the long-term existence and 
management of ephemeral and upland habitat sufficient for the Riverside 
fairy shrimp's successful reproduction and growth, adequate feeding 
habitat, proper physiochemical and environmental regimes, linked 
hydrology, and connectivity within the landscape.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas within 
the geographical area occupied at the time of listing that contain the 
features essential to the conservation of the Riverside fairy shrimp. 
In accordance with the Act and its implementing regulations at 50 CFR 
424.12(e), we considered whether designating additional areas outside 
the geographical area occupied at the time of listing are essential to 
ensure the conservation of the species. At the time of listing, 
Riverside fairy shrimp were known to occupy nine vernal pool complexes 
within Orange, Riverside, and San Diego Counties, California, and Baja 
California, Mexico. Occupied complexes included four vernal pools in 
Riverside County, one population in Orange County, two complexes in San 
Diego County, and two locations in Baja California, Mexico (58 FR 
41384; August 3, 1993).
    In determining which areas within the geographical area occupied at 
the time of listing currently contain the physical or biological 
features essential to the conservation of Riverside fairy shrimp, we 
used all available scientific and commercial data, including 
information from the 1991 proposed listing rule (56 FR 57503, November 
12, 1991), the 1993 final listing rule (58 FR 41384, August 3, 1993), 
the 1998 Recovery Plan (Service 1998a, pp. 1-113), the 2008 5-year 
review for Riverside fairy shrimp (Service 2008, pp. 1-57), the 
California Department of Fish and Game's (CDFG) California Natural 
Diversity Data Base

[[Page 72081]]

(CNDDB) records, published peer-reviewed articles, unpublished papers 
and reports, academic theses, survey results, geographic information 
system (GIS) data (such as species occurrences, soil data, land use, 
topography, and ownership maps), and correspondence to the Service from 
recognized experts. We solicited new information collected since 
publication of the 1998 Recovery Plan and 2005 final critical habitat 
designation (70 FR 19154), including information from State, Federal, 
and tribal governments; scientific data on Riverside fairy shrimp 
collected by academia and private organizations; information in reports 
submitted during consultations under section 7 of the Act; information 
contained in analyses for individual and regional HCPs where Riverside 
fairy shrimp is a covered species; and data collected from reports 
submitted by researchers holding recovery permits under section 
10(a)(1)(A) of the Act.
    We acknowledge the geographical area known to be occupied by the 
species in the United States as presented in the listing rule (58 FR 
41384; 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 
Luise[ntilde]o 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. 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). 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 
41384). 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).
    The life history of Riverside fairy shrimp supports the conclusion 
that many of the pools surveyed after publication of the listing rule 
were, in fact, occupied at the time of listing. 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 through 
active means, such as 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 other words, the 
species spreads reproductive effort over more than one ponding event 
through diapause of eggs (production of a cyst bank) and the hatching 
of a fraction of the 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 1998, 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, 64). Typically, mima mound topography (landscapes 
consisting of mounds of soil) and impervious soils with a subsurface 
clay or hardpan layer provide the necessary ponding opportunities 
during winter and spring (Zedler 1987, pp. 13, 17). Underlying soil 
types and pool size influence the wetland habitat physiochemical 
parameters, associated vegetation, and faunal communities; those latter 
three factors are also affected by regional climate (rainfall, 
temperature, evaporation rate) and elevational differences (Keeler-Wolf 
et al. 1998, p. 9). Vernal pools are discontinuously distributed in 
several regions in southern California, and Riverside fairy shrimp are 
well adapted to the ephemeral nature of their 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 area at the time of 
listing, were likely present in those areas prior to listing, but the 
presence of the species was not known because protocol surveys had not 
been conducted prior to listing. Occurrences documented since the 1993 
listing should not be construed to represent an expansion of the 
species' distribution and range, but rather to reflect our current and 
better understanding of the distribution and range of the species at 
the time of listing based on the best information available to us at 
this time (Service 2008, p. 9).
    After publication of the June 1, 2011, proposed rule but before the 
March 1, 2012, publication, the Federal Circuit Court of Appeals for 
the District of Columbia invalidated a portion of the final rule 
designating critical habitat for the San Diego fairy shrimp under 
section 3(5)(A)(i) of the Act. The court concluded that the Service 
lacked adequate information to support its conclusion that the area in 
question was occupied at the time of listing and qualified as critical 
habitat under section 3(5)(A)(i) (Otay Mesa Property, L.P. et al. v. 
U.S. Dept. of the Interior, 646 F.3d 914 (D.C. Cir. 2011) (Otay Mesa)). 
The court noted, however, that its ruling was narrow and directed only 
at the Service's reliance on section 3(5)(A)(i) of the Act. The court 
pointed out that the Service could choose to designate the area in 
question under section 3(5)(A)(ii) of the Act as long as we provide 
adequate justification for designation under that provision (Otay

[[Page 72082]]

Mesa, 646 F.3d at 914). Because habitat containing the physical or 
biological features essential for the conservation of Riverside fairy 
shrimp overlaps with essential habitat for the San Diego fairy shrimp 
at issue in Otay Mesa, and because the species have similar life-
history and habitat requirements, we applied the circuit court's 
reasoning in our March 1, 2012, publication (77 FR 12543), and apply it 
in this final designation of revised critical habitat for the Riverside 
fairy shrimp.
    In light of that ruling, we reiterate that Unit 1 (1a, 1b), Unit 2 
(2dA, 2dB, 2e, 2f, 2g, 2h, 2i), Unit 3 (3c, 3d, 3e, 3h), Unit 4 (4c), 
and Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, 5h) meet the definition of critical 
habitat under section 3(5)(A)(i) of the Act (i.e., are areas within the 
geographical area occupied by the Riverside fairy shrimp at the time of 
listing) for the reasons explained in our March 1, 2012, publication 
(77 FR 12543) despite the absence of proof of occupancy at the time of 
listing. However, assuming such areas would not meet the definition of 
critical habitat under section 3(5)(A)(i) of the Act under the Otay 
Mesa court's application of ``occupancy'' under that provision due to 
the absence of prelisting surveys confirming the presence of Riverside 
fairy shrimp, we conclude that the areas alternatively meet the 
definition of critical habitat under section 3(5)(A)(ii) of the Act. 
These areas are essential for the conservation of the species, and a 
designation limited to areas documented to have been occupied at the 
time of listing would be inadequate to ensure the conservation of 
Riverside fairy shrimp. Nine occurrences of Riverside fairy shrimp were 
identified in the listing rule (58 FR 41384). One of those occurrences, 
located in Riverside County, has been lost due to development 
activities (Service 1998a, Appendix 1); a further two are in Baja 
California, Mexico, and therefore not subject to critical habitat 
designation (50 C.F.R. 424.12(h)). Based on a review of the best 
available scientific and commercial information, only five of those 
remaining six occurrences known at the time of listing currently 
contain the physical or biological features essential to the 
conservation of the species (see further details on identification of 
critical habitat units below). Those five occurrences are MCAS El Toro 
(Subunit 2c), Skunk Hollow Pool (Subunit 3f), Field Pool (Subunit 3f), 
complex J29-31 (Subunit 5d), and East Miramar (AA1 South+ Group)(Pool 
4786; previously Pool 12). The latter occurrence is on MCAS Miramar and 
exempt from this final critical habitat rule. The sixth occurrence 
identified at the time of listing was a vernal pool partially within 
the Pechanga Band of Luise[ntilde]o Mission Indians reservation and 
partially on private land abutting the reservation. That occurrence has 
been lost as a result of agricultural activities and construction of a 
gravel pit. In the proposed revised critical habitat rule published in 
2011 (76 FR 31686; June 1, 2011), we requested comments from the public 
about these vernal pools, but received no information pertaining to 
them. Therefore, due to insufficient occurrence information and 
evidence of severely modified and impacted pools from years of discing 
and plowing, we are not proposing to designate critical habitat on 
tribal lands of the Pechanga Band of Luise[ntilde]o Mission Indians.
    These remaining five occurrences (representing three subunits) 
alone are not sufficient to conserve Riverside fairy shrimp. In 
addition, all of the areas that support extant occurrences of Riverside 
fairy shrimp face threats including development, habitat fragmentation, 
altered hydrology, livestock grazing, nonnative vegetation, military 
activities, pollution, dumping, human disturbance, and climate change 
(Service 2008, pp. 12-37; see also the Climate Change section above). 
Protecting a wide variety of habitat will provide a buffer against 
these threats and provide for the conservation of the species. 
Therefore, given the endangered status and the small number of extant 
Riverside fairy shrimp populations, and the need to protect the 
species' genetic and habitat variability to minimize the likelihood of 
a stochastic event eliminating most or all of the surviving 
populations, a critical habitat designation limited to areas known to 
be occupied at the time of listing would be inadequate to provide for 
the conservation of the species.
    We identify three subunits (Subunit 2c, 3f, and 5d) as meeting the 
definition of critical habitat under section 3(5)(A)(i) of the Act 
because the areas were known to be occupied at the time of listing. We 
identify Subunit 3g as meeting the definition of critical habitat under 
section 3(5)(A)(ii) of the Act because the pool was created after the 
time of listing and because we consider it to be essential for the 
conservation of the species. We consider the remaining 21 subunits 
(Subunits 1a, 1b; Subunits 2dA, 2dB, 2e, 2f, 2g, 2h, 2i; Subunits 3c, 
3d, 3e, 3h; Subunit 4c; Subunits 5a, 5b, 5c, 5e, 5f, 5g, 5h) to meet 
the definition of critical habitat under section 3(5)(A)(i) of the Act. 
However, because we lack definitive evidence of their occupancy at the 
time of listing, which under Otay Mesa could disqualify the areas from 
designation under section 3(5)(A)(i) of the Act, we alternatively 
identify these areas as meeting the definition of critical habitat 
under section 3(5)(A)(ii) of the Act. We identify them as such 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 we consider the available evidence sufficient to 
conclude that these subunits were occupied by Riverside fairy shrimp at 
the time the species was listed, due to the lack of documentation of 
occupancy, such as survey results prior to 1993, for the purposes of 
this rulemaking we determine that these subunits also alternatively 
meet the definition of critical habitat in section 3(5)(A)(ii) of the 
Act.
    Our identification of these units and of habitat essential to the 
conservation of Riverside fairy shrimp takes into consideration the 
conservation approach described in the 1998 Recovery Plan and considers 
areas identified therein as necessary for the species' stabilization 
and recovery. The 1998 Recovery Plan identifies management areas on 
which the long-term conservation and recovery of Riverside fairy shrimp 
depend. Appendices F and G in the 1998 Recovery Plan defined known 
vernal pool complexes essential to the conservation of several vernal 
pool species, including Riverside fairy shrimp (Service 1998a, pp. F1-
G3). Eight distinct management areas were identified based on plant and 
animal distribution, soil types, and climatic variables (Service 1998a, 
pp. 38-39). Management areas include vernal pools and complexes known 
to be occupied and essential to the conservation of Riverside fairy 
shrimp.
    We have used these same eight management areas and names, where 
possible, to assist us in identifying specific areas essential to the 
conservation of the Riverside fairy shrimp. In cases where new 
occurrence data identify occupied vernal pools not identified in the 
1998 Recovery Plan, we have relied on the best available scientific 
data to update map coverage (for example, in Orange and Riverside 
Counties). Our 2005 final rule (70 FR 19154) used locations identified 
in Appendices F and G of the 1998 Recovery Plan; however, for this 
final revised critical habitat rule (due to revisions to the PCEs and 
improvements in mapping methodologies), some additions and subtractions 
have

[[Page 72083]]

occurred in areas previously identified as essential either in the 1998 
Recovery Plan or in the 2005 final critical habitat designation (Table 
2). In some cases, areas within subunits have been removed because, 
based on new information, they no longer contain the physical or 
biological features or PCEs that are essential to the conservation of 
Riverside fairy shrimp. Specific differences from the 2005 final rule 
are summarized in the Summary of Changes from Previously Designated 
Critical Habitat section of the proposed rule published on June 1, 2011 
(76 FR 31686).
    We are designating critical habitat in specific areas that include 
ephemeral wetland habitat and intermixed wetland and upland habitats of 
various sizes; possess appropriate soils and topography that support 
ponding during winter and spring; are within the known geographical and 
elevational range of Riverside fairy shrimp; are geographically 
distributed throughout the range of the species; represent unique 
ecological or biological features and associations; and will help 
protect against stochastic extirpation, allow for local adaptation, and 
provide connectivity to facilitate dispersal and genetic exchange. By 
protecting a variety of habitats throughout the species' range, we 
increase the probability that the species can adjust in the future to 
various limiting factors that may affect the population, such as 
changes in abundance and timing of precipitation.
    As required by section 4(b)(2) of the Act, we used the best 
scientific data available to designate critical habitat. The steps we 
followed in identifying critical habitat are described in detail below.
    (1) We determined, in accordance with section 3(5)(A)(i) of the Act 
and regulations at 50 CFR 424.12, the physical or biological features 
that are essential to the conservation of the species (see the Physical 
or Biological Features section above).
    (2) We compiled all available observational data on Riverside fairy 
shrimp into a GIS database. Data on locations of Riverside fairy shrimp 
occurrences are based on collections and observations made by 
biologists, biological consultants, and academic researchers. We 
compiled data from the following sources to create our GIS database for 
Riverside fairy shrimp: (a) Data used in the 1998 Recovery Plan, 2005 
final critical habitat rule for Riverside fairy shrimp, and 2008 5-year 
review for Riverside fairy shrimp; (b) the CNDDB data report and 
accompanying GIS records for Riverside fairy shrimp (CNDDB 2010, pp. 1-
9); (c) data presented in the City of San Diego's Vernal Pool Inventory 
for 2002-2003 (City of San Diego 2004, pp. 1-125); (d) monitoring 
reports for Riverside fairy shrimp from Marine Corps Base (MCB) Camp 
Pendleton and MCAS Miramar; (e) the Western Riverside County Multiple 
Species Habitat Conservation Plan (MSHCP) species GIS database; and (f) 
the Carlsbad Fish and Wildlife Office's (CFWO) internal species GIS 
database, which includes the species data used for the County of San 
Diego Multiple Species Conservation Plan (MSCP) and Western Riverside 
County MSHCP, reports from section 7 consultations, and Service 
observations of Riverside fairy shrimp (CFWO internal species GIS 
database). Compiled data were reviewed to ensure accuracy. Each data 
point in our database was checked to ensure that it represented an 
original collection or observation of Riverside fairy shrimp and that 
it was mapped in the correct location. Data points that did not match 
the description for the original collection or observation were 
remapped in the correct location or removed from our database.
    (3) We determined which occurrences were extant at the time of 
listing, based on the 1993 listing rule, as well as information that 
has become available since the time of listing. We considered several 
sources in compiling the best available data on Riverside fairy shrimp 
vernal pool distribution and species' occurrence. We have concluded 
that, with the exception of Johnson Ranch Created Pool (Subunit 3g, 
which was created using cysts salvaged from a nearby historical 
occurrence at Redhawk development), all currently occupied vernal pools 
were also occupied and extant at the time of listing (see Background 
section and the specific unit descriptions below). We have drawn this 
conclusion because Riverside fairy shrimp have limited dispersal 
capabilities, and because surveys for the species at the time of 
listing were incomplete. We conclude that the documentation of 
additional occurrences within the range of Riverside fairy shrimp after 
it was listed was due to an increased survey effort for this species. 
However, as described above, we also find these areas are essential for 
the conservation of the species.
    (4) We identified which areas contain the PCEs for Riverside fairy 
shrimp, and identified those areas that may require special management 
considerations or protection. Units were identified based on sufficient 
PCEs being present to support Riverside fairy shrimp life-history 
processes. Some units contain all of the identified PCEs and support 
multiple life stages (resting cyst, nauplii (recently hatched larvae), 
and adult). Areas that we have identified as having one or more PCEs: 
(a) Contain large interconnected ephemeral wetlands, large numbers of 
individuals, or habitat areas that allow for connections between 
existing occurrences of Riverside fairy shrimp; (b) represent important 
occurrences of this species on the geographic edge of its distribution; 
(c) contain occurrences that are more isolated from other occurrences 
by geographic features, but may represent unique adaptations to local 
features (biogeochemistry, hydrology, microclimate, soil mineralogy, 
soil fertility, soil formation processes, evolutionary time scale); or 
(d) exist within the distribution of the species and provide 
connections between occupied areas. The conservation of stable and 
persistent occurrences throughout the species' range helps to maintain 
connectivity and gene flow between occurrences that are in proximity to 
one another, as well as by preserving unique genetic assemblages in 
vernal pools across the range, including those pools not within close 
proximity to one another.
    (5) We circumscribed boundaries of potential critical habitat, 
based on information obtained from the above steps. For areas 
containing the physical or biological features essential to the 
conservation of the species, we mapped the specific areas that contain 
the PCEs for Riverside fairy shrimp. First, we mapped the ephemeral 
wetland habitat in the occupied area using occurrence data, aerial 
imagery, and 1:24,000 topographic maps. We then mapped the intermixed 
wetland and upland habitats that function as the local watersheds and 
the topography and soils that support the occupied ephemeral wetland 
habitat. We mapped these areas to identify the gently sloping area 
associated with ephemeral wetland habitat and any adjacent areas that 
slope directly into the ephemeral wetland habitat, and that contribute 
to the hydrology of the ephemeral wetland habitat. We delineated the 
border of the revised critical habitat around the occupied ephemeral 
wetlands and associated local watershed areas to follow natural breaks 
in the terrain such as ridgelines, mesa edges, and steep canyon slopes.
    (6) We removed all areas not containing the physical or biological 
features essential to the conservation of Riverside fairy shrimp. For 
example, when determining critical habitat boundaries, we made every 
effort to

[[Page 72084]]

avoid including developed areas, such as lands covered by buildings, 
pavement, and other structures, because such lands lack physical or 
biological features for Riverside fairy shrimp. The scale of the maps 
we prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this final rule have been excluded by 
text in the final rule and are not designated as critical habitat. 
Therefore, in this final revised critical habitat rule, a Federal 
action involving these lands would not trigger section 7 consultation 
with respect to critical habitat and the requirement of no adverse 
modification unless the specific action would affect any adjacent 
critical habitat.
    (7) We exempted areas within the boundaries of MCB Camp Pendleton 
and MCAS Miramar in this final rule because we determined that these 
areas are exempt under section 4(a)(3)(B)(i) of the Act from critical 
habitat designation (see Exemptions section below).
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. The coordinates or plot points or both on which each 
map is based are available to the public on http://www.regulations.gov 
at Docket No. FWS-ES-R8-2011-0013, on our Internet site (http://www.fws.gov/carlsbad/), and at the field office responsible for the 
designation (see FOR FURTHER INFORMATION CONTACT above).

            Table 2--Areas Identified as Necessary for Stabilizing Riverside Fairy Shrimp Populations
[As listed in Appendix F of 1998 Recovery Plan, and as identified as essential and as containing the PCEs in the
        2005 final critical habitat designation and this 2012 final revised critical habitat designation]
----------------------------------------------------------------------------------------------------------------
                                                                 2005 final critical       2012 final revised
            Name/Location               Listed in Appendix F     habitat designation        critical habitat
                                       of 1998 Recovery Plan          (subunit)                 (subunit)
----------------------------------------------------------------------------------------------------------------
                                Unit 1: Ventura County (Goleta and Transverse MA)
----------------------------------------------------------------------------------------------------------------
Tierra Rejada Preserve (*RP:           Yes..................  1a......................  1a.
 Carlsberg (Ranch)).
South of Tierra Rejada Valley (east    No...................  1b......................  1b.
 of Hwy 23).
Cruzan Mesa (*RP: Cruzan Mesa).......  Yes..................  1c; Removed.............  Not proposed; not
                                                                                         designated.
----------------------------------------------------------------------------------------------------------------
                Unit 2: Los Angeles Basin--Orange County Foothills (Los Angeles Basin--Orange MA)
----------------------------------------------------------------------------------------------------------------
(MCAS) El Toro (*RP: El Toro)........  Yes..................  2c; 4(b)(2) exclusion...  2c; 4(b)(2) exclusion.
SCE Viejo Conservation Bank..........  No...................  No subunit ;     2i; 4(b)(2) exclusion.
                                                               4(b)(2) exclusion.
Saddleback Meadow (*RP: Saddleback     Yes **...............  2d; 4(b)(2) exclusion...  2dA; partial 4(b)(2)
 Meadow).                                                                                exclusion.
O'Neill Regional Park (near Trabuco    Yes **...............  2d; 4(b)(2) exclusion...  2dB; partial 4(b)(2)
 Canyon).                                                                                exclusion.
O'Neill Regional Park (near            Yes **...............  2.......................  2e; partial 4(b)(2)
 Ca[ntilde]ada Gobernadora).                                                             exclusion.
Chiquita Ridge (*RP: Chiquita Ridge).  Yes..................  2f; 4(b)(2) exclusion...  2f; 4(b)(2) exclusion.
RP: ``Orange County Foothills          Yes **...............  Not proposed............  2h; partial designation
 (undescribed)''.                                                                        2dB, 2e, 2g, 2h, 2i;
                                                                                         4(b)(2) exclusion.
Radio Tower Road.....................  No...................  2g; 4(b)(2) exclusion...  2g; 4(b)(2) exclusion.
San Onofre State Beach, State Park-    No...................  2h; 4(a)(3)(B) exemption  2h; partial 4(a)(3)(B)
 leased land (near Christianitos                                                         exemption.
 Creek foothills).
----------------------------------------------------------------------------------------------------------------
                                 Unit 3: Riverside Inland Valleys (Riverside MA)
----------------------------------------------------------------------------------------------------------------
March Air Reserve Base...............  No...................  3a; Removed.............  Not proposed; not
                                                                                         designated.
March Air Reserve Base...............  No...................  3b; 4(a)(3)(B) exemption  Not proposed; not
                                                                                         designated.
Australia Pool.......................  No...................  No subunit ;     3c; 4(b)(2) exclusion.
                                                               4(b)(2) exclusion.
Scott Road Pool......................  No...................  No subunit ;     3d; 4(b)(2) exclusion.
                                                               4(b)(2) exclusion.
Schleuniger Pool.....................  No...................  No subunit ;     3e; 4(b)(2) exclusion.
                                                               4(b)(2) exclusion.
Skunk Hollow and Field Pool (Barry     Yes..................  No subunit ;     3f; 4(b)(2) exclusion.
 Jones Wetland Mitigation Bank) (*RP:                          4(b)(2) exclusion.
 Skunk Hollow/Murrieta).
Johnson Ranch Created Pool...........  No...................  No subunit ;     3g; 4(b)(2) exclusion.
                                                               4(b)(2) exclusion.
Santa Rosa Plateau--Mesa de Colorado   Yes..................  Not proposed............  3h; 4(b)(2) exclusion.
 (*RP: Santa Rosa Plateau).
----------------------------------------------------------------------------------------------------------------
    No Unit : Northern San Diego County Military Land, Exempted (San Diego North Coastal Mesa MA)
----------------------------------------------------------------------------------------------------------------
 
Stuart Mesa, MCB Camp Pendleton (*RP:  Yes..................  No subunit ;     4(a)(3)(B) exemption.
 Stuart Mesa).                                                 4(a)(3)(B) exemption.
Cockleburr, MCB Camp Pendleton (*RP:   Yes..................  No subunit ;     4(a)(3)(B) exemption.
 Cockleburr ).                                                 4(a)(3)(B) exemption.

[[Page 72085]]

 
Las Pulgas, MCB Camp Pendleton (*RP:   Yes..................  No subunit ;     4(a)(3)(B) exemption.
 Las Pulgas).                                                  4(a)(3)(B) exemption.
Land south of San Onofre State Park..  Yes..................  No subunit ;     4(a)(3)(B) exemption.
                                                               4(b)(2) exclusion for
                                                               National Security.
San Mateo, MCB Camp Pendleton (*RP:    Yes..................  No subunit ;     Not proposed; not
 San Mateo).                                                   4(a)(3)(B) exemption.     designated.
Wire Mountain, MCB Camp Pendleton      Yes..................  4(a)(3)(B) exemption....  Not proposed; not
 (*RP: Wire Mountain).                                                                   designated.
Portion of San Onofre State Beach,     No...................  No subunit ;     4(a)(3)(B) exemption.
 State Park-leased land (near                                  4(b)(2) exclusion for
 Christianitos Creek foothills) (*RP:                          National Security.
 State Park Lease Area).
----------------------------------------------------------------------------------------------------------------
     No Unit Number: Central Sand Diego County, Military Land, Exempted (San Diego Central Coastal Mesa MA)
----------------------------------------------------------------------------------------------------------------
East Miramar (AA1 South+ Group)(Pool   Yes..................  4(a)(3)(B) exemption....  4(a)(3)(B) exemption.
 4786; previously Pool 12).
                       Unit 4: San Diego North Coastal Mesas (San Diego: North Coastal MA)
----------------------------------------------------------------------------------------------------------------
Poinsettia Lane Commuter Train         Yes..................  4c......................  4c; 4(b)(2) exclusion.
 Station (JJ 2) (*RP: JJ2 Poinsettia
 Lane).
----------------------------------------------------------------------------------------------------------------
                     Unit 5: San Diego Southern Coastal Mesas (San Diego: South Coastal MA)
----------------------------------------------------------------------------------------------------------------
J33 (Sweetwater High School).........  No...................  5a; 4(b)(2) exclusion...  5a.
J15 (Arnie's Point) (*RP: J2, J5, J7,  Yes **...............  5b; 4(b)(2) exclusion...  5b; 4(b)(2) exclusion.
 J11-21, J23-30).
East Otay Mesa (*RP: Otay Mesa         Yes..................  5c; partial 4(b)(2)       5c.
 undescribed).                                                 exclusion.
``Otay Mesa vernal pool complexes''    Yes **...............  No subunit ;     Designated as subunits
 (*RP: J2, J5, J7, J11-21, J23-30).                            4(b)(2) exclusion.        below.
J29-31 (*RP: J2, J5, J7, J11-21, J23-  Yes **...............  No subunit ;     5d; partial 4(b)(2)
 30).                                                          4(b)(2) exclusion.        exclusion.
J2 N, J4, J5 (Robinhood Ridge-J2)      Yes..................  No subunit ;     5e.
 (*RP: J2, J5, J7, J11-21, J23-30).                            4(b)(2) exclusion.
J2 S and J2 W (Hidden Valley, Cal      Yes..................  No subunit ;     5f.
 Terraces, Otay Mesa Road) (*RP: J2,                           4(b)(2) exclusion.
 J5, J7, J11-21, J23-30).
J14..................................  No...................  No subunit ;     5g.
                                                               4(b)(2) exclusion.
J11-12, J16-18 (Goat Mesa) (*RP: J2,   Yes..................  No subunit ;     5h; partial 4(b)(2)
 J5, J7, J11-21, J23-30).                                      4(b)(2) exclusion.        exclusion.
----------------------------------------------------------------------------------------------------------------
MA: Management Area as defined in 1998 Recovery Plan.
(*RP): name of pool (or pool complex) as stated in the 1998 Recovery Plan.
No: not in 1998 Recovery Plan; occurrence not identified until after 1998.
Yes: location was identified in the 1998 Recovery Plan.
Yes **: location was considered in the 1998 Recovery Plan, but at that time was grouped (lumped) as multiple
  vernal pool complexes. These locations have now been separated in this 2012 final rule.

Final Critical Habitat Designation

    We are designating 3 units, containing 13 subunits, as critical 
habitat for Riverside fairy shrimp. The three units are: Unit 1 
(Ventura County), Unit 2 (Los Angeles Basin--Orange County Foothills), 
and Unit 5 (San Diego Southern Coastal Mesas). All of Unit 3 (Riverside 
County) and Unit 4 (San Diego North and Central Coastal Mesas) are 
excluded in this final rule. Table 3 shows all of the critical habitat 
units, including excluded acreages.

[[Page 72086]]



                                              Table 3--Final Critical Habitat for Riverside Fairy Shrimp Is Shown in the Last Column of the Table.
                      [This table does not include habitat exempted under Section 4(a)(3) of the Act but does identify habitat excluded under Section 4(b)(2) in column 6.]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Total area containing                             Final critical
     Critical habitat unit           Federal land             State land           Local land \1\          Private land        essential features       Area excluded             habitat
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Ventura County........  ......................  .....................  31 ac (13 ha)........  435 ac (176 ha)......  466 ac (189 ha)......  .....................  466 ac (189 ha).
1a. Tierra Rejada Preserve....  ......................  .....................  .....................  18 ac (7 ha).........  18 ac (7 ac).........  .....................  18 ac (7 ac).
1b. South of Tierra Rejada      ......................  .....................  31 ac (13 ha)........  417 ac (169 ha)......  448 ac (182 ha)......  .....................  448 ac (182 ha).
 Valley.
Unit 2: Los Angeles Basin--     ......................  .....................  142 ac (58 ha).......  576 ac (233 ha)......  718ac (291 ha).......  322 ac (130 ha)......  396 ac (160 ha).
 Orange County Foothills.
2c. (MCAS) El Toro............  ......................  .....................  18 ac (7 ha).........  8 ac (3 ha)..........  26 ac (11 ac)........  26 ac (11 ha)........  .....................
2dA. Saddleback Meadow........  ......................  .....................  4 ac (2 ha)..........  252 ac (102 ha)......  256 ac (104 ha)......  4 ac (2 ha)..........  252 ac (102 ha).
2dB. O'Neill Regional Park      ......................  .....................  75 ac (30 ha)........  15 ac (6 ha).........  90 ac (37 ha)........  75 ac (30 ha)........  15 ac (6 ha).
 (near Trabuco Canyon).
2e. O'Neill Regional Park       ......................  .....................  45 ac (18 ha)........  24 ac (10 ha)........  69 ac (28 ha)........  47 ac (19 ha)........  22 ac (9 ha)
 (near Ca[ntilde]ada
 Gobernadora).
2f. Chiquita Ridge............  ......................  .....................  .....................  56 ac (23 ha)........  56 ac (23 ha)........  56 ac (23 ha)........  .....................
2g. Radio Tower Road..........  ......................  .....................  .....................  51 ac (21 ha)........  51 ac (21 ha)........  51 ac (21 ha)........  .....................
2h. San Onofre State Beach,     ......................  .....................  .....................  107 ac (43 ha).......  107 ac (43 ha).......  .....................  107ac (43 ha).
 State Park-leased land (near
 Christianitos Creek
 foothills).
2i. SCE Viejo Conservation      ......................  .....................  .....................  63 ac (25 ha)........  63 ac (25 ha)........  63 ac (25 ha)........  .....................
 Bank.
Unit 3: Riverside Inland        ......................  54 ac (22 ha)........  .....................  811 ac (328 ha)......  865 ac (350 ha)......  865 ac (350 ha)......  .....................
 Valleys.
3c. Australia Pool............  ......................  .....................  .....................  19 ac (8 ha).........  19 ac (8 ha).........  19 ac (8 ha).........  .....................
3d. Scott Road Pool...........  ......................  .....................  .....................  9 ac (4 ha)..........  9 ac (4 ha)..........  9 ac (4 ha)..........  .....................
3e. Schleuniger Pool..........  ......................  .....................  .....................  23 ac (9 ha).........  23 ac (9 ha).........  23 ac (9 ha).........  .....................
3f. Skunk Hollow and Field      ......................  .....................  .....................  163 ac (66 ha).......  163 ac (66 ha).......  163 ac (66 ha).......  .....................
 Pool (Barry Jones Wetland
 Mitigation Bank).
3g. Johnson Ranch Created Pool  ......................  54 ac (22 ha)........  .....................  .....................  54 ac (22 ha)........  54 ac (22 ac)........  .....................
3h. Santa Rosa Plateau--Mesa    ......................  .....................  .....................  597 ac (242 ha)......  597 ac (242 ha)......  597 ac (242 ha)......  .....................
 de Colorado.
Unit 4: San Diego North and     ......................  .....................  6 ac (3 ha)..........  3 ac (1 ha)..........  9 ac (4 ha)..........  9 ac (4 ha)..........  .....................
 Central Coastal Mesas.
4c. Poinsettia Lane Commuter    ......................  .....................  6 ac (3 ha)..........  3 ac (1 ha)..........  9 ac (4 ha)..........  9 ac (4 ha)..........  .....................
 Train Station.
Unit 5: San Diego Southern      40 ac (16 ha).........  256 ac (104 ha)......  157 ac (64 ha).......  472 ac (191 ha)......  925 ac (375 ha)......  63 ac (25 ha)........  862 ac (348 ha).
 Coastal Mesas.
5a. Sweetwater (J33)..........  ......................  .....................  2 ac (less than 1 ha)  less than 1 ac (0 ha)  2 ac (less than 1 ha)  .....................  2 ac (less than 1
                                                                                                                                                                            ha).
5b. Arnie's Point (J15).......  29 ac (12 ha).........  .....................  .....................  .....................  29 ac (12 ha)........  29 ac (12 ha)........  .....................
5c. East Otay Mesa............  ......................  .....................  .....................  57 ac (23 ha)........  57 ac (23 ha)........  .....................  57 ac (23 ha).
5d. J29-31....................  less than 1 ac (0 ha).  211 ac (85 ha).......  .....................  159 ac (64 ha).......  370 ac (149 ha)......  23 ac (9 ha).........  347 ac (140 ha).
5e. J2 N, J4, J5 (Robinhood     ......................  .....................  32 ac (13 ha)........  12 ac (5 ha).........  44 ac (18 ha)........  .....................  44 ac (18 ha).
 Ridge).
5f. J2 W and J2 S: (Hidden      ......................  .....................  22 ac (9 ha).........  11 ac (4 ha).........  33 ac (13 ha)........  .....................  33 ac (13 ha).
 Trails, Cal Terraces, Otay
 Mesa Road).
5g. J14.......................  ......................  45 ac (18 ha)........  18 ac (7 ha).........  72 ac (29 ha)........  135 ac (55 ha).......  .....................  135 ac (55 ha).
5h. J11 E and J11 W, J12, J16-  11 ac (4 ha)..........  .....................  83 ac (34 ha)........  161 ac (65 ha).......  255 ac (103 ha)......  11 ac (4 ha).........  244 ac (99 ha).
 18 (Goat Mesa).
                               -----------------------------------------------------------------------------------------------------------------------------------------------------------------
    Totals....................  40 ac (16 ha).........  310 ac (126 ha)......  336 ac (138 ha)......  2,297 ac (929 ha)....  2,984 ac (1,208 ha)..  1,259 ac (510 ha)....  1,724 ac (698 ha).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Sums of land areas may not total due to rounding.
Details on excluded acres and HCPs are given in Table 5.
\1\ Local land includes land owned by local government agencies.


[[Page 72087]]

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for Riverside fairy shrimp, 
below.

Unit 1: Ventura County Unit (Transverse Range)

    Unit 1 is located in central Ventura County and consists of two 
occupied subunits totaling approximately 466 ac (189 ha), with 31 ac 
(13 ha) of local land and 435 ac (176 ha) of private land. Unit 1 is 
within the geographical area occupied by the species at the time of 
listing. This unit includes vernal pools near the City of Moorpark in 
Ventura County at Tierra Rejada Preserve (formerly Carlsberg Ranch) on 
the west side of State Highway 23, and a basin to the southeast of the 
Carlsberg Ranch site called South of Tierra Rejada Valley, east of 
State Highway 23. This unit occurs within the larger Santa Clara-
Calleguas/Calleguas-Conejo Tierra Rejada Valley watershed, within the 
east-west trending Transverse (mountain) Range. The Transverse Range 
system was formed by the interaction of an east-west oceanic fault zone 
with the San Andreas Fault. Because the interaction of the two fault 
systems has been extensive and continues with rapid local uplift, 
Riverside fairy shrimp habitat within the Transverse Range reflects 
past activities of tectonic processes and their effects on watershed 
development. Accelerated erosion, sedimentation, and debris processes, 
such as mud and rock flows, landslides, wind flows, and debris flows 
(soil development processes), contribute to a unique set of 
physiochemical and geomorphic features for pools occupied by Riverside 
fairy shrimp.
Subunit 1a: Tierra Rejada Preserve
    Subunit 1a is located near the City of Moorpark in southeastern 
Ventura County, California. This subunit is located on what was 
formerly known as the Carlsberg Ranch, at the north end of the Tierra 
Rejada Valley and just west of State Highway 23. It is near the 
northeast intersection of Moorpark Road and Tierra Rejada Road in a 
residential housing development. Subunit 1a consists of 18 ac (7 ha) of 
privately owned land. The vernal pool (pond), 4.6 acres (1.7 ha) in 
size, is located in the Tierra Rejada Vernal Pool Preserve, owned and 
managed by Mountains Recreation and Conservation Authority (MCRA). 
Subunit 1a contains areas identified in the 1998 Recovery Plan 
(Appendix F) as necessary to stabilize and protect (conserve) existing 
populations of Riverside fairy shrimp.
    We consider this subunit to have been occupied at the time of 
listing, and it is currently occupied. Subunit 1a is within the 
geographical area occupied by the species at the time of listing. 
Resting cysts were detected in recent soil analyses (C. Dellith 2010, 
pers. comm.) and adult fairy shrimp were observed on April 7, 2011 (J. 
Tamasi 2011, pers. comm.), the first observation of adults since the 
2000-2001 ponding season. This area is essential to the conservation of 
this species for several reasons. The pool supports endangered Orcuttia 
californica (Orcutt's grass), which is an indicator of the longer 
ponding duration necessary to support the life-history needs of 
Riverside fairy shrimp. This pool is fundamentally different in terms 
of size, origin, depth, and duration of ponding, contributing areas 
(watershed), and the thickness of the underlying sediments compared to 
flat areas of older soils with highly developed claypans and hardpans 
throughout the State (Hecht et al. 1998, p. 47). This pool was formed 
primarily by tilting and subsidence along the Santa Rosa fault (Hecht 
et al. 1998, p. 5). Given its geological and hydrological features and 
associated wetland vegetation within the subunit, this pool possesses a 
set of physical and biological factors unique to this occurrence to 
which the Riverside fairy shrimp has likely become adapted. The present 
biological resources and value of the pool have been sustained despite 
``substantial disturbance and change [in] the general area of the 
vernal pool'' and given the history of land and water use and analysis 
of 60 years of aerial photography (Hecht et al. 1998, p. 6 and Appendix 
A). Although Lahti et al. (2010) did not survey this pool during their 
completion of a rangewide genetic analysis, this occurrence represents 
the northernmost extension of the species' occupied range within a 
notably unique vernal wetland type (Hecht et al. 1998, p. 5, and see 
discussion below).
    Subunit 1a contains the physical or biological features essential 
to the conservation of Riverside fairy shrimp, including appropriate 
soil series (Azule, Calleguas, Linne; PCE 3) situated on a saturated 
fault between rocks of different permeability (``tectonogenic''; Hecht 
et al. 1998, p. 5), and it is ``sediment-tolerant'' given that it 
possesses a watershed with reasonably steep slopes (10-50 percent) that 
yield substantial amounts of sediment that provide nutrients and 
minerals (Hecht et al. 1998, p. 6). The fine clay sediment deposited in 
the basin settles and allows the pool to fill; this is in contrast to 
most other vernal pools, where hydrology is maintained through clay 
soils created by soil forming processes (Hecht et al. 1998, p. 5). 
Additionally, because of adjacent urban development, altered hydrology, 
and potential for runoff, the PCEs in this subunit may require special 
management considerations or protection for the recovery of Riverside 
fairy shrimp. This subunit has one large ponding feature, and is 
essential to maintain habitat function, genetic diversity, and species 
viability (Service 1998a, p. 65) at the species' northernmost 
geographical distribution.
    Due to its unique geographic location and other features stated 
above, Subunit 1a is essential to the conservation of Riverside fairy 
shrimp. Although preliminary genetic studies are not definitive with 
regard to gene flow and genetic variability across the range of this 
species, populations at the edge of a species' distribution have been 
demonstrated to be important sources of genetic variation, may provide 
an important opportunity for colonization or recolonization of 
unoccupied vernal pools, and, thus, contribute to long-term 
conservation (and recovery) of the species (Gilpin and Soule[acute] 
1986, pp. 32-33; Lande 1999, p. 6). Research on genetic differentiation 
among fairy shrimp species across their known distributions has 
demonstrated that geographically distinct populations may or may not be 
genetically distinct, but that they have unique genetic characteristics 
that may allow for adaption to environmental changes (Bohonak 2003, p. 
3; Lahti et al. 2010, p. 17). These characteristics may not be present 
in other parts of a species' range (Lesica and Allendorf 1995, p. 756), 
making preservation of this subunit and the unique genetic diversity it 
contains essential for the recovery of the species.
    We are lacking specific documentation of Riverside fairy shrimp 
occupancy in Subunit 1a at the time of listing. However, Subunit 1a 
contains the physical or biological features necessary to the 
conservation of the species, and these features support life-history 
characteristics of Riverside fairy shrimp (such as the presence of cyst 
banks that indicate long-term occupancy of a vernal pool). The presence 
of these traits makes it likely that the subunit was occupied at the 
time of listing, and that it meets the definition of critical habitat 
under section 3(5)(A)(i) of the Act because it is within the 
geographical area occupied by the species at the time of listing. 
However, as discussed in the Criteria Used To Identify Critical Habitat 
section above, we alternatively designate Subunit 1a under section 
3(5)(A)(ii) of the Act because the subunit is essential for the 
conservation

[[Page 72088]]

of Riverside fairy shrimp, regardless of occupancy data at the time of 
listing. Thus, for the purposes of this rulemaking, we determine that 
Subunit 1a meets the definition of critical habitat in section 
3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species (nonnative grasses and Schinus molle (Peruvian pepper) groves) 
and alterations to the hydrological cycle, including type conversion of 
habitat; activities that remove or destroy the habitat assemblage of 
the pools, such as creation of fuel breaks, mowing, and grading; and 
human encroachment that occurs in the area. These threats could impact 
the water chemistry characteristics that support Riverside fairy shrimp 
(PCE 1) and disrupt the surrounding watershed that provides water to 
fill the pool in the winter and spring (PCE 2). For example, inundation 
from artificial water sources can cause pools to stay inundated longer 
than normal or even convert vernal pools into perennial pools that are 
not suitable for Riverside fairy shrimp (Service 2008, p. 16). Please 
see Special Management Considerations or Protection section of this 
final rule for a discussion of the threats to Riverside fairy shrimp 
habitat and potential management considerations.
Subunit 1b: South of Tierra Rejada Valley
    Subunit 1b is located near the City of Moorpark in Ventura County, 
California. This subunit is approximately 1 mi (1.5 km) southeast of 
Subunit 1a and east of State Highway 23. Subunit 1b consists of 31 ac 
(13 ha) of locally owned land and 417 ac (169 ha) of private land. We 
assume that Subunit 1b was not identified in the 1998 Recovery Plan 
(Appendix F) because at that time we were unable to confirm occupancy. 
To the best of our knowledge, this subunit has never been protocol 
surveyed to confirm the presence or absence of Riverside fairy shrimp 
(C. Dellith 2010, pers. comm.). This subunit, however, was proposed and 
designated as critical habitat in the 2005 final revised critical 
habitat rule because we considered it occupied (see discussion below) 
and because the necessary PCEs were present. We continue to presume 
that Subunit 1b is occupied, despite the absence of protocol survey 
results, and have determined that the subunit contains the PCEs.
    Subunit 1b is located approximately 1 mile to the south of Tierra 
Rejada Preserve (Subunit 1a) within the Tierra Rejada Valley watershed. 
Like Subunit 1a, this pool is one of the last representatives of what 
is believed to be a historical distribution of coastal terrace vernal 
pools common to the marine terraces and inland area of Ventura County 
prior to the 1950s (Hecht et al. 1998, p. 6 and Appendix A). This 
subunit is considered occupied based on several factors that strongly 
suggest the likelihood of Riverside fairy shrimp occurrence. As 
discussed in the 2005 proposed rule (70 FR 19154; April 12, 2005), 
these are: (1) The important biotic and abiotic conditions (soil type, 
geology, morphology, local climate, topography, and plant associations, 
for example, Orcuttia californica, which suggests the presence of 
vernal pool ponding at the appropriate season and for the appropriate 
duration); (2) topographic features and ponding evidence based on 
aerial surveys that confirm a ponding pool basin; (3) several large 
permanent and semipermanent pools observed within the subunit's local 
watershed; (4) proximity (less than 1 mi (< 1 km)) to a known Riverside 
fairy shrimp occurrence, and likely within the known dispersal distance 
expected for an invertebrate species with a resistant cyst stage; and 
(5) the determination that Subunit 1a and Subunit 1b are adjoined, 
based on fluvial and geomorphic evidence that suggest the Tierra Rejada 
Valley river system once likely connected the two pools and would have 
provided the connectivity to disperse cysts between the two subunits.
    Subunit 1b is designated as revised critical habitat because we 
have determined it is essential for the conservation of the species. It 
includes one or more pools capable of maintaining habitat function, 
genetic diversity, and species viability (Service 1998a, p. 65) for 
Riverside fairy shrimp at the northern limit of its current 
distribution, and is near, and likely has connectivity with, a known 
occupied location of ecological and distributional significance. It is 
also essential because the best supporting evidence indicates the basin 
contains the appropriate depth and ponding duration (PCE 1), soils and 
topography (PCEs 2 and 3), elevation, and water chemistry (pH, 
temperature, salinity, etc.; PCE 1) to satisfy the life-history needs 
of existing Riverside fairy shrimp populations.
    Though the life history of Riverside fairy shrimp suggests that 
Subunit 1b was occupied at the time of listing, specific documentation 
of occupancy is lacking. Based on the biology and life history of 
Riverside fairy shrimp, we believe that the subunit was indeed occupied 
at the time of listing, and that it meets the definition of critical 
habitat under section 3(5)(A)(i) of the Act because it is within the 
geographical area occupied by the species at the time of listing and 
contains all of the PCEs. However, as discussed in the Criteria Used To 
Identify Critical Habitat section above, we alternatively designate 
Subunit 1b under section 3(5)(A)(ii) of the Act because we consider 
this subunit essential for the conservation of Riverside fairy shrimp, 
regardless of occupancy data at the time of listing. Thus, for the 
purposes of this rulemaking, we determine that Subunit 1b meets the 
definition of critical habitat under section 3(5)(A)(i) or, 
alternatively, under section 3(5)(A)(ii) of the Act.

Unit 2: Los Angeles Basin--Orange County Foothills

    Unit 2 is located in central coastal Orange County and consists of 
4 subunits totaling approximately 396 ac (160 ha) of privately owned 
land. Unit 2 falls within the Los Angeles Basin-Orange County 
Management Area as outlined in the 1998 Recovery Plan. The majority of 
vernal pools in this management area were extirpated prior to 1950, and 
only a small number of vernal pools remain in Los Angeles and Orange 
Counties (Service 1998a, p. 40).
    This unit includes the vernal pools and vernal pool-like ephemeral 
ponds located along a north-south band in the Orange County Foothills. 
It includes examples of the historical distribution of coastal terraces 
at moderate elevations (183 to 414 m (600 to 1,358 ft)), and includes 
ephemeral ponds formed by landslides and fault activity, and remnant 
stream (fluvial) terraces along foothill ridgelines (Taylor et al. 
2006, pp. 1-2). Occupied Riverside fairy shrimp pools occur on former 
MCAS El Toro; Southern California Edison (SCE) Viejo Conservation Bank; 
Saddleback Meadows; O'Neill Regional Park (near Trabuco Canyon east of 
Tijeras Creek at the intersection of Antonio Parkway and the Foothill 
Transportation Corridor (FTC-north segment)); O'Neill Regional Park 
(near Ca[ntilde]ada Gobernadora); Chiquita Ridge; Radio Tower Road; and 
San Onofre State Beach, State Park-leased land (near Christianitos 
Creek foothills) that falls partially within MCB Camp Pendleton. These 
vernal pools are the last remaining vernal pools in Orange County known 
to support this species (58 FR 41384; August 3, 1993) and represent a 
unique type of vernal pool habitat that differs from the

[[Page 72089]]

traditional mima mound vernal pool complexes of coastal San Diego 
County, the coastal pools at MCB Camp Pendleton, and the inland pools 
of Riverside County (70 FR 19182).
    Unit 2 is within the geographical area occupied by the species at 
the time of listing. The areas within Unit 2 are occupied and contain 
the physical or biological features essential to the conservation of 
Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), 
intermixed wetland and upland habitats that act as the local watershed 
(PCE 2), and the topography and soils that support ponding during 
winter and spring months (PCE 3); in almost all cases, slow-moving or 
still surface water and saturated soils are present at or near vernal 
pool habitat. Conservation of an array of vernal pools that contain the 
physical or biological features essential to the conservation of 
Riverside fairy shrimp in the foothill region of Orange County provides 
for necessary habitat function, natural genetic diversity and exchange, 
and species viability in the central portion of the species' range.
Subunit 2dA: Saddleback Meadows
    Subunit 2dA is located in the community of Silverado in southern 
Orange County, California. This subunit is near the St. Michael's 
College Preparatory School, east of El Toro Road and southwest of Live 
Oak Canyon Road. Subunit 2dA consists of 252 ac (102 ha) of privately 
owned land. It contains areas identified in the 1998 Recovery Plan 
(Appendix F) as necessary to stabilize and protect (conserve) existing 
populations of Riverside fairy shrimp, as well as other proposed and 
listed vernal pool species. This subunit is essential to the 
conservation and recovery of Riverside fairy shrimp because it is 
currently occupied and includes one or more pools necessary to maintain 
habitat function, genetic diversity, and species viability (Service 
1998a, p. 65). Further, it is essential because the basin contains the 
appropriate depth and ponding duration, soils, elevation, and water 
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy 
shrimp's life-history needs. This vernal pool complex includes a series 
of natural and impounded cattle troughs that have been breached and 
degraded by past agricultural activities and urban development. 
Additionally, Subunit 2dA is an important link to the northern occupied 
locations, and represents a nearby source for recolonization of pools 
in the Orange County foothills.
    Subunit 2dA contains the physical or biological features essential 
to the conservation of Riverside fairy shrimp, including ephemeral 
wetland habitat (PCE 1), intermixed wetland and upland habitats that 
act as the local watershed (PCE 2), and topography and soils that 
support ponding during winter and spring months (PCE 3).
    We lack specific documentation of Riverside fairy shrimp occupancy 
in Subunit 2dA at the time of listing. However, Subunit 2dA contains 
the physical or biological features necessary to the conservation of 
the species and these features support life-history characteristics of 
Riverside fairy shrimp (such as the presence of cyst banks that 
indicate long-term occupancy of a vernal pool). The presence of these 
traits makes it likely that the subunit was occupied at the time of 
listing, and that it meets the definition of critical habitat under 
section 3(5)(A)(i) of the Act because it is within the geographical 
area occupied by the species at the time of listing. However, as 
discussed in the Criteria Used To Identify Critical Habitat section 
above, we alternatively designate Subunit 2dA under section 3(5)(A)(ii) 
of the Act because we consider this subunit to be essential for the 
conservation of Riverside fairy shrimp, regardless of occupancy data at 
the time of listing. Thus, for the purposes of this rulemaking, we 
determine that Subunit 2dA meets the definition of critical habitat 
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) 
of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species, development, or grazing that may occur in the vernal pool 
basins. These threats could impact the water chemistry characteristics 
that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding 
watershed that provides water to fill the pool in the winter and spring 
(PCE 2). Please see the Special Management Considerations or Protection 
section of this final rule for a discussion of the threats to Riverside 
fairy shrimp habitat and potential management considerations.
Subunit 2dB: O'Neill Regional Park (Near Trabuco Canyon)
    Subunit 2dB is located approximately 1.5 km (1 mi) southeast of 
Subunit 2dA in southern Orange County, California. This subunit is west 
of Live Oak Canyon Road and northeast of the O'Neill Regional Park, 
near Ca[ntilde]ada Gobernadora (see Subunit 2e below). In the 2008 5-
year review, this area was referred to as ``O'Neill Park/Clay Flats 
pond property'' (Service 2008, p. 7). Subunit 2dB consists of 15 ac (6 
ha) of privately owned land. Subunit 2dB was not specifically 
identified in the 1998 Recovery Plan (Appendix F), but is classified as 
necessary to stabilize and protect (conserve) existing populations of 
Riverside fairy shrimp within the ``Orange County Foothills 
(undescribed)'' heading in Appendix F (Service 1998a, p. F1).
    This subunit is essential for the conservation of Riverside fairy 
shrimp because it is currently occupied and includes one or more pools 
essential to maintain habitat function, genetic diversity, and species 
viability (Service 1998a, p. 65). Further, it is essential because the 
basin contains the appropriate depth and ponding duration, soils, 
elevation, and water chemistry (pH, temperature, salinity, etc.) to 
fulfill Riverside fairy shrimp's life-history needs. Subunit 2dB 
contains the physical or biological features essential to the 
conservation of Riverside fairy shrimp, including ephemeral wetland 
habitat (PCE 1), intermixed wetland and upland habitats that act as the 
local watershed (PCE 2), and topography and soils that support ponding 
during winter and spring months (PCE 3). A portion of this subunit lies 
at 1,413 ft (431 m), and is among the highest elevation occurrences of 
Riverside fairy shrimp.
    We are lacking specific documentation of Riverside fairy shrimp 
occupancy in Subunit 2dB at the time of listing. However, Subunit 2dB 
contains the physical or biological features necessary to the 
conservation of the species and these features support life-history 
characteristics of Riverside fairy shrimp (such as the presence of cyst 
banks that indicate long-term occupancy of a vernal pool). The presence 
of these traits makes it likely that the subunit was occupied at the 
time of listing, and that it meets the definition of critical habitat 
under section 3(5)(A)(i) of the Act because it is within the 
geographical area occupied by the species at the time of listing. 
However, as discussed in the Criteria Used To Identify Critical Habitat 
section above, we alternatively designate Subunit 2dB under section 
3(5)(A)(ii) of the Act because we consider the subunit essential for 
the conservation of Riverside fairy shrimp, regardless of occupancy 
data at the time of listing. Thus, for the purposes of this rulemaking, 
we determine that Subunit 2dB meets the definition of critical habitat 
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) 
of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require

[[Page 72090]]

special management considerations or protection to address threats from 
nonnative plant species and activities, such as unauthorized 
recreational use, OHV use, and fire management. These threats could 
impact the water chemistry characteristics that support Riverside fairy 
shrimp (PCE 1) and disrupt the surrounding watershed that provides 
water to fill the pool in the winter and spring (PCE 2) as well as the 
vegetative coverage and soil substrates surrounding the pool (PCE 2). 
Please see the Special Management Considerations or Protection section 
of this final rule for a discussion of the threats to Riverside fairy 
shrimp habitat and potential management considerations.
Subunit 2e: O'Neill Regional Park (Near Ca[ntilde]ada Gobernadora)
    Subunit 2e is located near the city of Rancho Santa Margarita in 
southern Orange County, California, and is currently occupied. This 
subunit is east of Ca[ntilde]ada Gobernadora and bounded to the west by 
State Highway 241. In the 2008 5-year review this area was referred to 
as ``east of Tijeras Creek complex'' (Service 2008, p. 7). Subunit 2e 
consists of 22 ac (9 ha) of private land. Subunit 2e was not 
specifically identified in the 1998 Recovery Plan (Appendix F), but was 
classified as necessary to stabilize and protect (conserve) existing 
populations of Riverside fairy shrimp within the ``Orange County 
Foothills (undescribed)'' heading in Appendix F (Service 1998a, p. F1).
    This subunit is essential for the conservation of Riverside fairy 
shrimp because it includes one or more pools essential to maintain 
habitat function, genetic diversity, and species viability (Service 
1998a, p. 65). Further, it is essential because the basin contains the 
appropriate depth and ponding duration, soils, elevation, and water 
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy 
shrimp's life-history needs. Areas within this subunit contain clay, 
clay loam, or sandy loam, and consist primarily of dry-land agriculture 
and sagebrush-buckwheat scrub habitat. Located in the water drainages 
of the foothills of the Santa Ana Mountains, this pool rests in a 
canyon bottomland at approximately 919 ft (280 m) of elevation.
    Subunit 2e contains the physical or biological features essential 
to the conservation of Riverside fairy shrimp including clay soils and 
loamy soils underlain by a clay subsoil (PCE 3); areas with a natural, 
generally intact surface and subsurface soil structure (PCE 2); and the 
ephemeral habitat (PCE 1) that supports Riverside fairy shrimp, 
including slow-moving or still surface water and/or saturated soils. 
Subunit 2e also supports a stable, persistent occurrence of the 
species.
    We are lacking specific documentation of Riverside fairy shrimp 
occupancy in Subunit 2e at the time of listing. However, Subunit 2e 
contains the physical or biological features necessary to the 
conservation of the species and these features support life-history 
characteristics of Riverside fairy shrimp (such as the presence of cyst 
banks that indicate long-term occupancy of a vernal pool). The presence 
of these traits makes it likely that the subunit was occupied at the 
time of listing, and that it meets the definition of critical habitat 
under section 3(5)(A)(i) of the Act because it is within the 
geographical area occupied by the species at the time of listing. 
However, as discussed in the Criteria Used To Identify Critical Habitat 
section above, we alternatively designate Subunit 2e under section 
3(5)(A)(ii) of the Act because we consider the subunit to be essential 
for the conservation of Riverside fairy shrimp, regardless of occupancy 
data at the time of listing. Thus, for the purposes of this rulemaking, 
we determine that Subunit 2e meets the definition of critical habitat 
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) 
of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species and anthropogenic activities (for example, surrounding 
residential and commercial development, unauthorized recreational use, 
OHV use, and fire management). These threats could impact the water 
chemistry characteristics that support Riverside fairy shrimp (PCE 1) 
and disrupt the surrounding watershed that provides water to fill the 
pool in the winter and spring (PCE 2) as well as the vegetative 
coverage and soil substrates surrounding the pool (PCE 2). Please see 
the Special Management Considerations or Protection section of this 
final rule for a discussion of the threats to Riverside fairy shrimp 
habitat and potential management considerations.
Subunit 2h: San Onofre State Beach, State Park-Leased Lands
    Subunit 2h is located along the border between Orange and San Diego 
Counties, southeast of Richard Steed Memorial Park and north of 
Christianitos Road. Nearly half of this subunit (105 ac (42 ha)) occurs 
on Department of Defense (DOD) land on MCB Camp Pendleton, and is 
exempt from critical habitat under section 4(a)(3)(B)(i) of the Act. 
The other half of Subunit 2h consists of 107 ac (43 ha) of privately 
owned land. The portion of Subunit 2h that falls within DOD land, the 
``Cal State Parks Lease,'' as described in the 2007 Integrated Natural 
Resources Management Plan (INRMP) (U.S. Marine Corps 2007, p. 2-30), is 
part of a lease agreement made between the U.S. Marine Corps and 
California State Department of Parks on September 1, 1971, for a 50-
year term. Portions of Subunit 2h exempt from this final critical 
habitat rule include military thoroughfares (roads), military training 
with advanced coordination, utility easements, fire suppression 
activities, and public recreation. The presence of Riverside fairy 
shrimp in Subunit 2h was discovered after the 1993 listing rule and 
1998 Recovery Plan were written.
    This subunit is essential for the conservation of Riverside fairy 
shrimp because it is currently occupied and includes one or more pools 
essential to maintain habitat function, genetic diversity, and species 
viability (Service 1998a, p. 65). It represents an important ecological 
linkage for genetic exchange between the coastal mesa pools of San 
Diego and the Orange County Foothills occurrences. Further, it is 
essential because the basin contains the appropriate depth and ponding 
duration, soils, elevation, and water chemistry (pH, temperature, 
salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs.
    Subunit 2h consists of two sag ponds (a pool that forms as a result 
of movement between two plates on an active fault line) at the eastern 
section of the unit and their associated upland watersheds on land 
within Orange County near the city of San Clemente. Subunit 2h contains 
the physical or biological features essential to the conservation of 
Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), 
intermixed wetland and upland habitats that act as the local watershed 
(PCE 2), and topography and soils that support ponding during winter 
and spring months (PCE 3).
    We lack specific documentation of Riverside fairy shrimp occupancy 
in Subunit 2h at the time of listing. However, Subunit 2h contains the 
physical or biological features necessary to the conservation of the 
species and these features support life-history characteristics of 
Riverside fairy shrimp (such as the presence of cyst banks that 
indicate long-term occupancy of a vernal pool). The presence of these 
traits makes it likely that the subunit was occupied at the time of 
listing, and that

[[Page 72091]]

it meets the definition of critical habitat under section 3(5)(A)(i) of 
the Act because it is within the geographical area occupied by the 
species at the time of listing. As discussed in the Criteria Used To 
Identify Critical Habitat section above, we alternatively designate 
Subunit 2h under section 3(5)(A)(ii) of the Act because we consider the 
subunit essential for the conservation of Riverside fairy shrimp, 
regardless of occupancy data at the time of listing. Thus, for the 
purposes of this rulemaking, we determine that Subunit 2h meets the 
definition of critical habitat under section 3(5)(A)(i) or, 
alternatively, under section 3(5)(A)(ii) of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species and anthropogenic activities (for example, military activities, 
unauthorized recreational use, agricultural runoff, OHV use, and fire 
management). These threats could disrupt the surrounding watershed that 
provides water to fill the pool in the winter and spring (PCE 2) as 
well as the vegetative coverage and soil substrates surrounding the 
pool (PCE 2). Please see the Special Management Considerations or 
Protection section of this final rule for a discussion of the threats 
to Riverside fairy shrimp habitat and potential management 
considerations. The 105 ac (42 ha) of lands identified as critical 
habitat within the boundaries of MCB Camp Pendleton are exempt from 
critical habitat under section 4(a)(3)(B)(i) of the Act.

Unit 5: San Diego Southern Coastal Mesas

    Unit 5 is located in Southern San Diego County and consists of 
seven subunits totaling 862 ac (349 ha). This unit contains 250 ac (101 
ha) of State-owned land, 157 ac (64 ha) of locally owned land, and 455 
ac (184 ha) of private land. This unit falls within the San Diego 
Southern Coastal Management Area, as identified in the 1998 Recovery 
Plan. Land we are designating as critical habitat includes vernal pool 
complexes within the jurisdiction of the Service, City of San Diego, 
County of San Diego, other DOD land, and private interests. This unit 
contains several mesa-top vernal pool complexes on western Otay Mesa 
(Bauder vernal pool complexes J2 N, J2 S, J2 W, J4, J5, J11 W, J11 E, 
J12, J16-18, J33) and eastern Otay Mesa (Bauder pool complexes J29-31, 
J33) as in Appendix D of City of San Diego (2004).
    These vernal pool complexes are associated with coastal mesas from 
the Sweetwater River south to the U.S.-Mexico International Border, and 
represent the southernmost occurrences of Riverside fairy shrimp in the 
United States. This unit is also genetically diverse, including two 
haplotypes (a unique copy or form of a sequenced gene region) not found 
outside of the Otay Mesa area (Lahti et al. 2010, Table 5). 
Additionally, Otay Mesa pools are significantly differentiated from one 
another (Lahti et al. 2010, p. 19). This area is essential for the 
conservation of Riverside fairy shrimp for the following reasons: (1) 
These vernal pool complexes represent the few remaining examples of the 
much larger and mostly extirpated vernal pool complexes on the highly 
urbanized Otay Mesa (Bauder 1986a); (2) recent genetic work indicates 
that complexes within this unit (J26, J29-30) support Riverside fairy 
shrimp with the unique haplotype B; and (3) this is one of only three 
locations that supports haplotype C (Lahti et al. 2010). Maintaining 
this unique genetic structure may be crucial in the conservation of 
this species. Unit 5 is within the geographical area occupied by the 
species at the time of listing.
Subunit 5a: Sweetwater (J33)
    Subunit 5a is located in the City of San Diego in southern San 
Diego County, California. This subunit is at Sweetwater High School 
(site J33), south of the intersection between Otay Mesa and Airway 
Roads. Subunit 5a consists of 2 ac (less than 1 ha) of locally owned 
land and less than 1 ac (< 1 ha) of private land. Subunit 5a contains 
areas identified in the 1998 Recovery Plan (Appendix F) as necessary to 
stabilize and protect (conserve) existing populations of Riverside 
fairy shrimp, as well as other proposed and listed vernal pool species.
    This subunit is essential for the conservation of Riverside fairy 
shrimp because it includes one or more pools essential to maintain 
habitat function, genetic diversity, and species viability (Service 
1998a, p. 65). Further, it is essential because the basin contains the 
appropriate depth and ponding duration, soils, elevation, and water 
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy 
shrimp's life-history needs. This subunit is under the ownership of the 
Sweetwater Union High School District.
    We lack specific documentation of Riverside fairy shrimp occupancy 
in Subunit 5a at the time of listing. However, Subunit 5a contains the 
physical or biological features necessary to the conservation of the 
species and these features support life-history characteristics of 
Riverside fairy shrimp (such as the presence of cyst banks that 
indicate long-term occupancy of a vernal pool). The presence of these 
traits makes it likely that the subunit was occupied at the time of 
listing, and that it meets the definition of critical habitat under 
section 3(5)(A)(i) of the Act because it is within the geographical 
area occupied by the species at the time of listing. As discussed in 
the Criteria Used To Identify Critical Habitat section above, we 
alternatively designate Subunit 5a under section 3(5)(A)(ii) of the Act 
because we consider the subunit essential for the conservation of 
Riverside fairy shrimp, regardless of occupancy data at the time of 
listing. Thus, for the purposes of this rulemaking, we determine that 
Subunit 5a meets the definition of critical habitat under section 
3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the Act.
    Subunit 5a contains the physical or biological features essential 
to the conservation of Riverside fairy shrimp, including ephemeral 
wetland habitat (PCE 1), intermixed wetland and upland habitats that 
act as the local watershed (PCE 2), and topography and soils 
(Olivenhain cobbly loam soil series) that support ponding during winter 
and spring months (PCE 3). The physical or biological features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from nonnative plant species, unauthorized recreational use and 
OHV use, and other human-related activities. These threats could impact 
the water chemistry characteristics that support Riverside fairy shrimp 
(PCE 1) and disrupt the surrounding watershed that provides water to 
fill the pool in the winter and spring (PCE 2) as well as the 
vegetative coverage surrounding the pool (PCE 2). Please see the 
Special Management Considerations or Protection section of this rule 
for a discussion of the threats to Riverside fairy shrimp habitat and 
potential management considerations.
Subunit 5c: East Otay Mesa
    Subunit 5c is located in the eastern Otay Mesa region of southern 
San Diego County, California. This subunit is approximately 1.75 mi 
(2.75 km) southeast of Kuebler Ranch and just north of the U.S.-Mexico 
Border. Subunit 5c consists of 57 ac (23 ha) of privately owned land. 
These lands fall within the County of San Diego Subarea Plan under the 
San Diego MSCP. Subunit 5c was not specifically identified in the 1998 
Recovery Plan (Appendix F), but is classified as

[[Page 72092]]

necessary to stabilize and protect (conserve) existing populations of 
Riverside fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay 
Mesa'' heading in Appendix F (Service 1998a, p. F1). The pool in 
Subunit 5c is not included in the list above, but is within the 
geographical area of those listed pools. Areas within Subunit 5c were 
also identified as essential in the previous critical habitat rules for 
Riverside fairy shrimp (66 FR 29384, May 30, 2001; 70 FR 19154, April 
12, 2005). Subunit 5c contains one vernal pool; this pool is occupied 
by Riverside fairy shrimp. It also contains a small stream as well as 
the downward slope and mima mound topography that make up the watershed 
associated with the occupied vernal pool.
    This subunit is currently occupied; dry season surveys in 2011 by 
Busby Biological Services documented the presence of Riverside fairy 
shrimp cysts (Busby Biological Services 2011, entire). This subunit was 
first documented as occupied in 2000 (GIS ID 4). Though the stock pond 
in Subunit 5c was not surveyed by Lahti et al. (2010), other vernal 
pools surveyed in Otay Mesa were found to have unique genetic diversity 
in the range of the species, including two haplotypes not found 
elsewhere. Otay Mesa pools also show significant genetic 
differentiation from each other (Lahti et al. 2010, p. 19). Given the 
subunit's location as the very easternmost pool in Otay Mesa, we 
determine that Subunit 5c may also host unique genetic diversity.
    This subunit is essential for the conservation of Riverside fairy 
shrimp because its occupied pool and surrounding watershed are 
essential to maintain habitat function, genetic diversity, and species 
viability (Service 1998a, p. 65). Further, it is essential because the 
basin contains the appropriate depth and ponding duration, soils, 
elevation, and water chemistry (pH, temperature, salinity, etc.) to 
fulfill Riverside fairy shrimp's life-history needs. The vernal pool in 
this subunit has been impacted by OHV use, cattle grazing, development, 
and nonnative grasses. Subunit 5c contains the physical or biological 
features essential to the conservation of Riverside fairy shrimp, 
including ephemeral wetland habitat (PCE 1), intermixed wetland and 
upland habitats that act as the local watershed (PCE 2), and topography 
and soils that support ponding during winter and spring months (PCE 3). 
This subunit also contains critical habitat for the endangered Quino 
checkerspot butterfly (Euphydryas editha quino) and is occupied by both 
the Quino checkerspot butterfly and San Diego fairy shrimp (72 FR 
70648, December 12, 2007; 74 FR 28776, June 17, 2009).
    We lack specific documentation of Riverside fairy shrimp occupancy 
in Subunit 5c at the time of listing. However, Subunit 5c contains the 
physical or biological features necessary to the conservation of the 
species and these features support life-history characteristics of 
Riverside fairy shrimp (such as the presence of cyst banks that 
indicate long-term occupancy of a vernal pool). The presence of these 
traits makes it likely that the subunit was occupied at the time of 
listing, and that it meets the definition of critical habitat under 
section 3(5)(A)(i) of the Act because it is within the geographical 
area occupied by the species at the time of listing. As discussed in 
the Criteria Used To Identify Critical Habitat section above, we 
alternatively designate Subunit 5c under section 3(5)(A)(ii) of the Act 
because we consider the subunit to be essential for the conservation of 
Riverside fairy shrimp, regardless of occupancy data at the time of 
listing. Thus, for the purposes of this rulemaking, we determine that 
Subunit 5c meets the definition of critical habitat under section 
3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species and anthropogenic activities (for example, development, OHV 
use, water runoff, and grazing). These threats could impact the water 
chemistry characteristics that support Riverside fairy shrimp (PCE 1) 
and disrupt the surrounding watershed that provides water to fill the 
pool in the winter and spring (PCE 2) as well as the vegetative 
coverage and soil substrates surrounding the pool (PCE 2). Please see 
the Special Management Considerations or Protection section of this 
final rule for a discussion of the threats to Riverside fairy shrimp 
habitat and potential management considerations.
Subunit 5d: J29-31
    Subunit 5d is located in the Otay Mesa region of southern San Diego 
County, California. This subunit is to the east and west of State 
Highway 125, south of the Otay Valley, and north of the U.S.-Mexico 
Border. Subunit 5d consists of 347 ac (140 ha), including less than 1 
ac (< 1 ha) of federally owned land, 205 ac (83 ha) of State-owned land 
(Caltrans), and 142 ac (57 ha) of private land. One vernal pool complex 
within Subunit 5d (J31) was not specifically identified in the 1998 
Recovery Plan (Appendix F). However, pool J31 within the same watershed 
as pool complexes J29 and J30, both of which were listed as necessary 
to stabilize and protect (conserve) existing populations of Riverside 
fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay Mesa'' 
heading in Appendix F (Service 1998a, p. F1). This subunit was 
confirmed occupied at the time of listing by protocol surveys, and is 
currently occupied. Subunit 5d is within the geographical area occupied 
by the species at the time of listing. Therefore, we are designating it 
under section 3(5)(A)(i) of the Act.
    This subunit is essential for the conservation of Riverside fairy 
shrimp because it includes one or more pools essential to maintain 
habitat function, genetic diversity, and species viability (Service 
1998a, p. 65). Further, it is essential because the basin contains the 
appropriate depth and ponding duration, soils, elevation, and water 
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy 
shrimp's life-history needs. Subunit 5d is predominantly in the City of 
San Diego in San Diego County, California, although portions of pools 
J29-31 are within the County of San Diego's jurisdiction. This subunit 
contains a large area of habitat that supports sizable occurrences of 
Riverside fairy shrimp, and provides potential connectivity between 
occurrences of Riverside fairy shrimp in Subunits 5e and 5c. This 
subunit contains several mesa-top vernal pool complexes on eastern Otay 
Mesa (Bauder vernal pool complexes J22, J29, J30, J31 N, J31 S as in 
Appendix D of City of San Diego (2004) and Service GIS files). Subunit 
5d contains the physical or biological features essential to the 
conservation of Riverside fairy shrimp, including ephemeral wetland 
habitat (PCE 1), intermixed wetland and upland habitats that act as the 
local watershed (PCE 2), and topography and soils that support ponding 
during winter and spring months (PCE 3).
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species and anthropogenic activities (for example, OHV use, 
unauthorized recreational use, impacts from development (including 
water runoff), and fire management). These threats could impact the 
water chemistry characteristics that support Riverside fairy shrimp 
(PCE 1) and disrupt the surrounding watershed that provides water to 
fill the pool in the winter and spring (PCE 2) as well as the

[[Page 72093]]

vegetative coverage and soil substrates surrounding the pool (PCE 2). 
Please see the Special Management Considerations or Protection section 
of this final rule for a discussion of the threats to Riverside fairy 
shrimp habitat and potential management considerations.
Subunit 5e: J2 N, J4, J5 (Robinhood Ridge)
    Subunit 5e is located in the Otay Mesa region of southern San Diego 
County, California. This subunit is approximately 1 mi (1.5 km) east of 
Ocean View Hills Parkway, 0.6 mi (1 km) north of State Highway 905, and 
bounded by Vista Santo Domingo to the east. Subunit 5e consists of 44 
ac (18 ha), including 32 ac (13 ha) of locally owned land and 12 ac (5 
ha) of private land. Subunit 5e was not specifically identified in the 
1998 Recovery Plan (Appendix F), but is classified as necessary to 
stabilize and protect (conserve) existing populations of Riverside 
fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay Mesa'' 
heading in Appendix F (Service 1998a, p. F1). This subunit is currently 
occupied.
    This subunit is essential for the conservation of Riverside fairy 
shrimp because it includes one or more pools essential to maintain 
habitat function, genetic diversity, and species viability (Service 
1998a, p. 65). Further, it is essential because the basin contains the 
appropriate depth and ponding duration, soils, elevation, and water 
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy 
shrimp's life-history needs. Subunit 5e contains the physical or 
biological features essential to the conservation of Riverside fairy 
shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland 
and upland habitats that act as the local watershed (PCE 2), and the 
topography and soils that support ponding during winter and spring 
months (PCE 3).
    We lack specific documentation of Riverside fairy shrimp occupancy 
in Subunit 5e at the time of listing. However, Subunit 5e contains the 
physical or biological features necessary to the conservation of the 
species and these features support life-history characteristics of 
Riverside fairy shrimp (such as the presence of cyst banks that 
indicate long-term occupancy of a vernal pool). The presence of these 
traits makes it likely that the subunit was occupied at the time of 
listing, and that it meets the definition of critical habitat under 
section 3(5)(A)(i) of the Act because it is within the geographical 
area occupied by the species at the time of listing. However, as 
discussed in the Criteria Used To Identify Critical Habitat section 
above, we alternatively designate Subunit 5e under section 3(5)(A)(ii) 
of the Act because we consider the subunit to be essential for the 
conservation of Riverside fairy shrimp, regardless of occupancy data at 
the time of listing. Thus, for the purposes of this rulemaking, we 
determine that Subunit 5e meets the definition of critical habitat 
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) 
of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species and anthropogenic activities (for example, OHV use, 
unauthorized recreational use, impacts from development, and fire 
management). These threats could impact the water chemistry 
characteristics that support Riverside fairy shrimp (PCE 1) and disrupt 
the surrounding watershed that provides water to fill the pool in the 
winter and spring (PCE 2) as well as the vegetative coverage and soil 
substrates surrounding the pool (PCE 2). Please see the Special 
Management Considerations or Protection section of this final rule for 
a discussion of the threats to Riverside fairy shrimp habitat and 
potential management considerations.
Subunit 5f: J2 W, J2 S (Hidden Trails, Cal Terraces, Otay Mesa Road)
    Subunit 5f is located in the Otay Mesa region of southern San Diego 
County, California, and consists of three pool complexes. All complexes 
are located north of State Highway 905 and southwest of Subunit 5e, 
with one complex in the lot southwest of Ocean View Hills Parkway, one 
bounded to the west by Hidden Trails Road, and one bounded to the west 
by Corporate Center Drive. Subunit 5f consists of 22 ac (9 ha) of 
locally owned land and 11 ac (4 ha) of private land. Subunit 5f was not 
mentioned by name in the 1998 Recovery Plan (Appendix F), but portions 
of vernal pool complexes within the units (J2 W and J2 S) were listed 
as necessary to stabilize and protect (conserve) existing populations 
of Riverside fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay 
Mesa'' heading in Appendix F (Service 1998a, p. F1). This subunit is 
currently occupied.
    This subunit is essential for the conservation of Riverside fairy 
shrimp because it includes one or more pools essential to maintain 
habitat function, genetic diversity, and species viability (Service 
1998a, p. 65). Further, it is essential because the basin contains the 
appropriate depth and ponding duration, soils, elevation, and water 
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy 
shrimp's life-history needs. Subunit 5f contains the physical or 
biological features essential to the conservation of Riverside fairy 
shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland 
and upland habitats that act as the local watershed (PCE 2), and 
topography and soils that support ponding during winter and spring 
months (PCE 3).
    We lack specific documentation of Riverside fairy shrimp occupancy 
in Subunit 5f at the time of listing. However, Subunit 5f contains the 
physical or biological features necessary to the conservation of the 
species and these features support life-history characteristics of 
Riverside fairy shrimp (such as the presence of cyst banks that 
indicate long-term occupancy of a vernal pool). The presence of these 
traits makes it likely that the subunit was occupied at the time of 
listing, and that it meets the definition of critical habitat under 
section 3(5)(A)(i) of the Act because it is within the geographical 
area occupied by the species at the time of listing. However, as 
discussed in the Criteria Used To Identify Critical Habitat section 
above, we alternatively designate Subunit 5f under section 3(5)(A)(ii) 
of the Act because we consider the subunit to be essential for the 
conservation of Riverside fairy shrimp, regardless of occupancy data at 
the time of listing. Thus, for the purposes of this rulemaking, we 
determine that Subunit 5f meets the definition of critical habitat 
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) 
of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species and anthropogenic activities (for example, OHV use; 
unauthorized recreational use; impacts from development, including 
water runoff; and fire management). These threats could impact the 
water chemistry characteristics that support Riverside fairy shrimp 
(PCE 1) and disrupt the surrounding watershed that provides water to 
fill the pool in the winter and spring (PCE 2) as well as the 
vegetative coverage and soil substrates surrounding the pool (PCE 2). 
Please see the Special Management Considerations or Protection section 
of this final rule for a discussion of the threats to Riverside fairy 
shrimp habitat and potential management considerations.

[[Page 72094]]

Subunit 5g: J14
    Subunit 5g is located in the Otay Mesa region of southern San Diego 
County, California. This subunit is south of State Highway 905, 
southeast of Caliente Avenue, west of Heritage Road, and northwest of 
Spring Canyon. Subunit 5g consists of 45 ac (18 ha) of State-owned land 
(Caltrans), 18 ac (7 ha) of locally owned land, and 72 ac (29 ha) of 
private land. Subunit 5g was not mentioned by name in the 1998 Recovery 
Plan (Appendix F), but is included in the list of vernal pool complexes 
necessary to stabilize and protect (conserve) existing populations of 
Riverside fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay 
Mesa'' heading in Appendix F (Service 1998a, p. F1). This subunit is 
currently occupied.
    This subunit is essential for the conservation of Riverside fairy 
shrimp because it includes one or more pools essential to maintain 
habitat function, genetic diversity, and species viability (Service 
1998a, p. 65). Further, it is essential because the basin contains the 
appropriate depth and ponding duration, soils, elevation, and water 
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy 
shrimp's life-history needs. Subunit 5g contains the physical or 
biological features essential to the conservation of Riverside fairy 
shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland 
and upland habitats that act as the local watershed (PCE 2), and 
topography and soils that support ponding during winter and spring 
months (PCE 3).
    We lack specific documentation of Riverside fairy shrimp occupancy 
in Subunit 5g at the time of listing. However, Subunit 5g contains the 
physical or biological features necessary to the conservation of the 
species and these features support life-history characteristics of 
Riverside fairy shrimp (such as the presence of cyst banks that 
indicate long-term occupancy of a vernal pool). The presence of these 
traits makes it likely that the subunit was occupied at the time of 
listing, and that it meets the definition of critical habitat under 
section 3(5)(A)(i) of the Act because it is within the geographical 
area occupied by the species at the time of listing. However, as 
discussed in the Criteria Used To Identify Critical Habitat section 
above, we alternatively designate Subunit 5g under section 3(5)(A)(ii) 
of the Act because we consider the subunit to be essential for the 
conservation of Riverside fairy shrimp, regardless of occupancy data at 
the time of listing. Thus, for the purposes of this rulemaking, we 
determine that Subunit 5g meets the definition of critical habitat 
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) 
of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species and anthropogenic activities (for example, OHV use; 
unauthorized recreational use; impacts from development, (including 
water runoff and fire management). These threats could impact the water 
chemistry characteristics that support Riverside fairy shrimp (PCE 1) 
and disrupt the surrounding watershed that provides water to fill the 
pool in the winter and spring (PCE 2) as well as the vegetative 
coverage and soil substrates surrounding the pool (PCE 2). Please see 
the Special Management Considerations or Protection section of this 
final rule for a discussion of the threats to Riverside fairy shrimp 
habitat and potential management considerations.
Subunit 5h: J11 E, J11 W, J12, J16-18 (Goat Mesa)
    Subunit 5h is located in the Otay Mesa region of southern San Diego 
County, California. This subunit is north and west of Subunit 5b, 
bounded by the U.S.-Mexico Border to the south, and bisected by Jeep 
Trail. Subunit 5h consists of 83 ac (34 ha) of locally owned land (City 
of San Diego) and 161 ac (65 ha) of privately owned land. Subunit 5h 
was not mentioned by name in the 1998 Recovery Plan (Appendix F), but 
is included in the list of vernal pool complexes necessary to stabilize 
and protect (conserve) existing populations of Riverside fairy shrimp 
within the ``J2, J5, J7, J11-21, J23-30 Otay Mesa'' heading in Appendix 
F (Service 1998a, p. F1). This subunit is currently occupied.
    This subunit is essential for the conservation of Riverside fairy 
shrimp because it includes one or more pools essential to maintain 
habitat function, genetic diversity, and species viability (Service 
1998a, p. 65). Further, it is essential because the basin contains the 
appropriate depth and ponding duration, soils, elevation, and water 
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy 
shrimp's life-history needs. Subunit 5h contains the physical or 
biological features essential to the conservation of Riverside fairy 
shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland 
and upland habitats that act as the local watershed (PCE 2), and 
topography and soils that support ponding during winter and spring 
months (PCE 3).
    We lack specific documentation of Riverside fairy shrimp occupancy 
in Subunit 5h at the time of listing. However, Subunit 5h contains the 
physical or biological features necessary to the conservation of the 
species and these features support life-history characteristics of 
Riverside fairy shrimp (such as the presence of cyst banks that 
indicate long-term occupancy of a vernal pool). The presence of these 
traits makes it likely that the subunit was occupied at the time of 
listing, and that it meets the definition of critical habitat under 
section 3(5)(A)(i) of the Act because it is within the geographical 
area occupied by the species at the time of listing. However, as 
discussed in the Criteria Used To Identify Critical Habitat section 
above, we alternatively designate Subunit 5h under section 3(5)(A)(ii) 
of the Act because we consider the subunit to be essential for the 
conservation of Riverside fairy shrimp, regardless of occupancy data at 
the time of listing. Thus, for the purposes of this rulemaking, we 
determine that Subunit 5h meets the definition of critical habitat 
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) 
of the Act.
    The physical or biological features essential to the conservation 
of the species in this subunit may require special management 
considerations or protection to address threats from nonnative plant 
species and anthropogenic activities (for example, OHV use; 
unauthorized recreational use; impacts from development, including 
water runoff; and fire management). These threats could impact the 
water chemistry characteristics that support Riverside fairy shrimp 
(PCE 1) and disrupt the surrounding watershed that provides water to 
fill the pool in the winter and spring (PCE 2) as well as the 
vegetative coverage and soil substrates surrounding the pool (PCE 2). 
Please see the Special Management Considerations or Protection section 
of this final rule for a discussion of the threats to Riverside fairy 
shrimp habitat and potential management considerations.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In

[[Page 72095]]

addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(CWA) (33 U.S.C. 1251 et seq.) or a permit from the Service under 
section 10 of the Act) or that involve some other Federal action (such 
as funding from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action;
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction;
    (3) Are economically and technologically feasible; and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Thus, the analysis of effects to 
critical habitat under Section 7(a)(2) of the Act is a separate and 
distinct analysis from an analysis of the effects to the species. While 
the jeopardy analysis focuses on an action's effects on the survival 
and recovery of a species, the adverse modification analysis 
investigates the action's effects to the designated habitat's 
contribution to conservation. Activities that may destroy or adversely 
modify critical habitat are those that alter the physical or biological 
features to an extent that appreciably reduces the conservation value 
of critical habitat for a species. The difference in outcomes of the 
jeopardy and adverse modification analyses represents the regulatory 
benefit of critical habitat designation.
    As discussed above, the role of critical habitat is to support 
life-history needs of the species and provide for the conservation of 
the species. For Riverside fairy shrimp, this includes supporting 
viable vernal pools containing the species and the associated 
watersheds upon which the pools depend.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for Riverside fairy shrimp. These activities include, but 
are not limited to:
    (1) Actions that result in ground disturbance. Such activities 
could include, but are not limited to, residential or commercial 
development, OHV activity, pipeline construction, new road 
construction, existing road maintenance (including road widening and 
grading), manure dumping, and grazing. These activities potentially 
impact the habitat and physical or biological features essential to 
Riverside fairy shrimp by damaging, disturbing, and altering soil 
composition through direct impacts, increased erosion, and increased 
nutrient content. Additionally, changes in soil composition may lead to 
changes in the vegetation composition, thereby changing the overall 
habitat type.
    (2) Actions that would impact the ability of an ephemeral wetland 
to continue to provide habitat for Riverside fairy shrimp and other 
native species that require this specialized habitat type. Such 
activities could include, but are not limited to, water impoundment, 
stream channelization, water diversion, water withdrawal, and 
development activities. These activities could alter the physical or 
biological features essential to the conservation of Riverside fairy 
shrimp by eliminating ponding habitat; changing the duration and 
frequency of the ponding events on which this species relies; making 
the habitat too wet, thus allowing obligate wetland species to become 
established;

[[Page 72096]]

making the habitat too dry, thus allowing upland species to become 
established; causing large amounts of sediment or manure to be 
deposited in Riverside fairy shrimp habitat; or causing increased 
erosion and incising of waterways.
    (3) Actions that result in alteration of the hydrological regimes 
typically associated with Riverside fairy shrimp habitat, including 
actions that would impact the soil and topography that cause water to 
pond during the winter and spring months. Such activities could 
include, but are not limited to, deep-ripping of soils, trenching, soil 
compaction, and development activities. These activities could alter 
the biological and physical features essential to the conservation of 
Riverside fairy shrimp by eliminating ponding habitat, impacting the 
impervious nature of the soil layer, or making the soil so impervious 
that water pools for an extended period that is detrimental to 
Riverside fairy shrimp (see ``Primary Constituent Elements for 
Riverside Fairy Shrimp'' section above). These activities could alter 
surface layers and the hydrological regime in a manner that promotes 
loss of soil components, ponding regimes, or hydrological connectivity 
to upland habitats that support the growth and reproduction of 
Riverside fairy shrimp.
    (4) Road construction and maintenance (including widening and 
grading), right-of-way designation, regulation of agricultural 
activities, or any activity funded or carried out by a Federal agency 
that could result in excavation or mechanized clearing of Riverside 
fairy shrimp critical habitat. These activities could alter the habitat 
in such a way that cysts of Riverside fairy shrimp are crushed, 
Riverside fairy shrimp are removed, or ephemeral wetland habitat is 
permanently altered.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyzed INRMPs 
developed by military installations that cover lands we determined meet 
the definition of critical habitat for Riverside fairy shrimp to 
determine if they are exempt from designation under section 4(a)(3) of 
the Act. The following Department of Defense installations include 
lands that meet the definition of critical habitat for Riverside fairy 
shrimp and have completed, Service-approved INRMPs.
Approved INRMPs
MCB Camp Pendleton (Units 4 and Portion of 2h)
    In the previous final critical habitat designation for Riverside 
fairy shrimp, we exempted MCB Camp Pendleton from the designation (70 
FR 19154, April 12, 2005). MCB Camp Pendleton completed their INRMP in 
November 2001, and updated it in March 2007 (U.S. Marine Corps 2007). 
The INRMP includes the following conservation measures for the 
Riverside fairy shrimp: (1) Surveys and monitoring, studies, impact 
avoidance and minimization, and habitat restoration and enhancement; 
(2) species survey information stored in MCB Camp Pendleton's GIS 
database and recorded in a resource atlas that is published and updated 
on a semi-annual basis; (3) application of a 984-ft (300-m) radius to 
protect the microwatershed buffers around current and historical 
Riverside fairy shrimp locations; and (4) use of a resource atlas to 
plan operations and projects to avoid impacts to Riverside fairy shrimp 
and to trigger section 7 consultations if an action may affect the 
species. These measures are established, ongoing aspects of existing 
programs or Base directives (for example, Range and Training 
Regulations), or measures that are being implemented as a result of 
previous consultations.
    To avoid and minimize adverse effects to Riverside fairy shrimp, 
MCB Camp Pendleton implements Base directives, such as: (1) Bivouac 
(temporary camps for military training purposes), command post, and 
field support activities should be no closer than 984 ft (300 m) to 
occupied Riverside fairy shrimp habitat year round; (2) vehicle and 
equipment operations should be limited to existing road and trail 
networks year round; and (3) environmental clearance is required prior 
to any soil excavation, filling, or grading. MCB Camp Pendleton has 
also demonstrated ongoing funding of their INRMP and management of 
endangered and threatened species. MCB Camp Pendleton continues to 
expend significant resources for management of federally listed species 
and habitat on their land, including management actions that provide a 
benefit for Riverside fairy shrimp. Moreover, in partnership with the 
Service, MCB Camp Pendleton provides funding for Service biologists to 
assist in implementing their Sikes Act program and buffer land 
acquisition initiative.
    Based on MCB Camp Pendleton's past funding history for listed 
species and their Sikes Act program (including the management of 
Riverside fairy shrimp), we conclude there is a high degree of 
certainty that MCB Camp Pendleton will continue to implement the INRMP 
in coordination with CDFG and the Service in a manner that provides a 
benefit to Riverside fairy shrimp. We also find there is a high degree 
of certainty that the conservation efforts of their INRMP will be 
effective. Service biologists work closely with MCB Camp Pendleton on a 
variety of endangered and threatened species issues, including the 
Riverside fairy shrimp. The management programs and Base directives to 
avoid and minimize impacts to the species are consistent with current 
and ongoing

[[Page 72097]]

section 7 consultations with MCB Camp Pendleton.
    In MCB Camp Pendleton, lands that contain the features essential to 
the conservation of Riverside fairy shrimp are within the following 
areas: San Onofre State Beach, State Park-leased land (near the 
Christianitos Creek foothills portion of Subunit 2h); Oscar One; Oscar 
Two; Victor area south of San Onofre State Park (Uniform Training 
Area); Red Beach; and Tango (U.S. Marine Corps 2007, Section 4, pp. 51-
76).
    State Park-leased lands are treated under the Real Estate 
Agreements and Lease section in the INRMP. Base real estate agreements 
(for example, leases, easements, outleases, assignments) cover 
approximately 5,000 ac (2,020 ha) of the Base (not inclusive of leased 
acreage within cantonment areas). These agreements include easements 
for public utilities and transit corridors, leases to public 
educational and retail agencies, State Beach leases, and agricultural 
leases for row crop production and seed collection.
    In the portion of Subunit 2h within MCB Camp Pendleton boundaries, 
permissible activities include military thoroughfares (use of roads), 
military training (with advanced coordination), fire suppression 
activities, and public recreational access. Lessees are required to 
manage the natural resources on the lands leased for their use 
consistent with the philosophies and supportive of the objectives of 
the MCB Camp Pendleton INRMP. Each lessee that manages and/or controls 
use of lands leased from MCB Camp Pendleton (for example, State Parks 
or agriculture leases) is required to generate and submit a natural 
resources management plan for their leased lands for approval by the 
Base within 1 year of establishment of their lease or renewal. Lessees 
are also required to identify any activity that may affect federally 
regulated resources (for example, listed species, wetlands, waters of 
the United States) and provide information and mitigation that may be 
required to support consultation with the applicable regulatory agency.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that all identified lands 
on MCB Camp Pendleton that meet the definition of critical habitat are 
subject to the MCB Camp Pendleton INRMP, and that conservation efforts 
identified in the INRMP will provide a benefit to Riverside fairy 
shrimp and to vernal pool habitat on MCB Camp Pendleton. Therefore, 
1,929 ac (781 ha) of land containing physical or biological features 
essential to the conservation of the species are exempt from the final 
critical habitat designation in accordance with section 4(a)(3) of the 
Act.
MCAS Miramar (Within Unit 4)
    In the previous final critical habitat designation for Riverside 
fairy shrimp, we exempted MCAS Miramar from the designation of critical 
habitat (70 FR 19154, April 12, 2005). MCAS Miramar completed an INRMP 
in May 2000, which was updated in October 2006 and again in August 2011 
(Gene Stout and Associates et al. 2011, entire). The INRMP is being 
fully implemented at MCAS Miramar, and provides for the conservation, 
management, and protection of Riverside fairy shrimp. The INRMP 
classifies 95.6 percent of the vernal pool basins and watersheds on 
MCAS Miramar, including the two pools containing Riverside fairy 
shrimp, as a Level I Management Area (Gene Stout and Associates et al. 
2011, Table 5.1). A Level I Management Area receives the highest 
conservation priority under the INRMP. Preventing damage to vernal pool 
resources is the highest conservation priority in management areas with 
the Level I designation (Gene Stout and Associates et al. 2011, p. 5-
2). The conservation of vernal pool basins and watersheds in a Level I 
Management Area is achieved through educating Base personnel; taking 
proactive measures, including signs and fencing, to avoid accidental 
impacts; developing procedures to respond to and fix accidental impacts 
on vernal pools; controlling nonnative vegetation within vernal pools; 
and maintaining an updated inventory of vernal pool basins and 
associated vernal pool watersheds (Gene Stout and Associates et al. 
2011, p. 7-3).
    Since the completion of MCAS Miramar's INRMP, the Service has 
received reports on their vernal pool monitoring and restoration 
program, and correspondence detailing the installation's expenditures 
on the objectives outlined in its INRMP. MCAS Miramar continues to 
monitor and manage its vernal pool resources. Ongoing programs include 
a study of the effects of fire management on vernal pool resources, 
vernal pool mapping, and species and vernal pool surveys. Based on the 
value MCAS Miramar's INRMP assigns to vernal pool basins and 
watersheds, and the management actions undertaken to conserve them, we 
find that the INRMP provides a benefit for the Riverside fairy shrimp.
    Land that contains the features essential to the conservation of 
Riverside fairy shrimp is within the following area at MCAS Miramar: 
AA1 east complex, near the junction of Interstate 15 and Pomerado Road.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that the identified lands 
are subject to the MCAS Miramar INRMP, and that conservation efforts 
identified in the INRMP will provide a benefit to Riverside fairy 
shrimp occurring in habitats within or adjacent to MCAS Miramar. 
Therefore, 59 ac (24 ha) of land containing physical or biological 
features essential to the conservation of the species are exempt from 
the final critical habitat designation in accordance with section 
4(a)(3) of the Act.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to 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 exercise his discretion to 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. In making that determination, the 
statute on its face, as well as the legislative history, are clear that 
the Secretary has broad discretion regarding which factor(s) to use and 
how much weight to give to any factor.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise his discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    When identifying the benefits of inclusion for an 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, the educational benefits of mapping 
essential habitat for recovery of the

[[Page 72098]]

listed species, and any ancillary benefits that may result from a 
designation due to State or Federal laws that may apply to critical 
habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to further 
national security interests; result in conservation; result in the 
continuation, strengthening, or encouragement of partnerships; or 
result in implementation of a management plan that provides equal to or 
more conservation than a critical habitat designation would provide.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation. If we 
determine that the benefits of exclusion outweigh the benefits of 
inclusion and that exclusion will not result in extinction, we may, but 
are not required to, exercise Secretarial discretion to exclude the 
area from a designation of critical habitat.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis (DEA) 
of the proposed critical habitat designation and related factors 
(Industrial Economics Inc. 2011, entire). The draft analysis, dated 
November 3, 2011, was made available for public review from March 1 
through April 2, 2012 (77 FR 12543, March 1, 2012). Following the close 
of the comment period, a final analysis (dated August 30, 2012) of the 
potential economic effects of the designation was developed, taking 
into consideration the public comments and any new information 
(Industrial Economics Inc. 2012).
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of foreseeable conservation efforts for Riverside 
fairy shrimp; some of these costs will likely be incurred regardless of 
whether we designate critical habitat (baseline). The economic impact 
of the final critical habitat designation is analyzed by comparing 
scenarios both ``with critical habitat'' and ``without critical 
habitat.'' The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections already in place for 
the species (for example, under the Federal listing and other Federal, 
State, and local regulations). The baseline, therefore, represents the 
costs incurred regardless of whether critical habitat is designated. 
The ``with critical habitat'' scenario describes the incremental 
impacts associated specifically with the designation of critical 
habitat for the species. The incremental conservation efforts and 
associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat above and beyond the baseline costs; these are the 
costs we consider in the final designation of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
species was listed, and forecasts both baseline and incremental impacts 
likely to occur with the designation of critical habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decisionmakers can use this information to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Finally, the FEA looks retrospectively at costs that 
have been incurred since the species' listing in 1993 (58 FR 41384, 
August 3, 1993). The analysis only considers the current critical 
habitat designation and estimates the costs as if the previous critical 
habitat designation did not exist (Industrial Economics Inc. 2012, p. 
2-2). The analysis considers those costs that may occur in the 24 years 
following the current designation of critical habitat. This was 
determined to be the appropriate period for analysis because 24 years 
is the amount of time for which regional planning information is 
available (Industrial Economics Inc. 2012, p. 2-23). The FEA quantifies 
economic impacts of Riverside fairy shrimp conservation efforts due to 
critical habitat designation associated with the following categories 
of activity: (1) Agricultural, commercial, and residential development; 
(2) transportation; and (3) livestock grazing and other activities 
(including roadway construction and maintenance, livestock grazing, 
water management activities, OHV use, heavy foot traffic, vegetation 
removal, nonnative plants, pesticides, and fire suppression and 
management).
    The majority of incremental costs (90 percent) related to revised 
critical habitat result from time delays to development activities. The 
remaining 10 percent of incremental costs result from the additional 
administrative costs of considering adverse modification to proposed 
projects, and from conducting environmental assessments in compliance 
with the California Environmental Quality Act (CEQA) (Industrial 
Economics Inc. 2012, pp. ES-5--ES-6). The total future incremental 
impacts are estimated to be $1.75 million to $2.87 million ($166,000 to 
$273,000 annualized) in present value terms, using a 7 percent discount 
rate over the next 24 years (2012 to 2035) in areas that we proposed as 
revised critical habitat (Industrial Economics Inc. 2012, pp. ES-1--ES-
2, ES-5). The majority of the costs are expected to occur in 
developable areas in Unit 2 (Orange County) and Unit 5 (San Diego 
County). Smaller impacts are expected in Unit 1 (Ventura County) and 
Unit 3 (Riverside County), and no impacts are forecast in Unit 4 (San 
Diego County), as no developable area exists in Unit 4 (Industrial 
Economics Inc. 2012, p. 4-17). Only minor impacts to transportation and 
habitat management are anticipated from this final critical habitat 
designation, and no economic impacts to livestock grazing, OHV 
activities, vegetation removal, water management activities, nonnative 
plants, or fire management are forecast (Industrial Economics Inc. 
2012, pp. 5-1, 5-4).
    Our economic analysis did not identify any disproportionate costs 
likely to result from the designation, and we are not excluding any 
lands from this designation of critical habitat for Riverside fairy 
shrimp based on economic impacts.
    A copy of the FEA with supporting documents may be obtained by 
contacting the Carlsbad Fish and Wildlife Office (see ADDRESSES) or by 
downloading it from the Internet at http://www.regulations.gov.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) or other 
agencies where a national security impact might exist. In preparing 
this final rule, we have

[[Page 72099]]

exempted from the designation of critical habitat those DOD lands with 
completed INRMPs determined to provide a benefit to Riverside fairy 
shrimp. Areas identified as owned and managed by DOD on MCB Camp 
Pendleton and MCAS Miramar that are exempt from critical habitat 
designation under section 4(a)(3) of the Act are discussed in the 
Exemptions section above.
    In our previous final revised critical habitat rule published April 
12, 2005 (70 FR 19154) rule, we excluded from critical habitat lands 
adjacent to the U.S.-Mexico border under the jurisdiction of the U.S. 
Department of Homeland Security (DHS), U.S. Border Patrol, San Diego 
Sector. In that rule, we found that the portion of the lands owned by 
the DHS that are directly adjacent to the U.S.-Mexico border have 
previously been disturbed and developed by the ongoing construction of 
the Border Infrastructure System (BIS), and those lands within the 
constructed portion of the footprint of the BIS do not contain any of 
the primary constituent elements for the Riverside fairy shrimp. The 
U.S. Customs and Border Protection of the DHS is tasked with 
maintaining National Security interests along the nation's 
international borders. As such, lands on which DHS activities occur may 
qualify for exclusion under section 4(b)(2) of the Act. The BIS is 
considered integral to national security, and therefore, lands owned by 
DHS along the U.S.-Mexico border have been excluded from the 
designation under section 4(b)(2) of the Act for national security 
impacts (see Table 4 below).

  Table 4--Areas Excluded From the Riverside Fairy Shrimp Final Revised
 Critical Habitat Under Section 4(b)(2) of the Act for National Security
                                 Reasons
------------------------------------------------------------------------
           Land ownership                           Acreage
------------------------------------------------------------------------
                     Department of Homeland Security
------------------------------------------------------------------------
5b. Arnie's Point (J15).............  29 ac (12 ha).
5h (portion). J11 E, J11 W, J12, J16- 11 ac (4 ha).
 18 (Goat Mesa).
                                     -----------------------------------
    Total...........................  40 ac (16 ha).
------------------------------------------------------------------------

    On February 6, 2002, the Service completed a section 7 consultation 
with the U.S. Army Corps of Engineers (Corps) and the former 
Immigration and Naturalization Service on the effects of closing a gap 
in the Border Fence Project's secondary fence at Arnie's Point on three 
endangered species: Riverside fairy shrimp, San Diego fairy shrimp, and 
San Diego button-celery (Eryngium aristulatum var. parishii; Service 
2002). We concluded in our biological opinion that the proposed action, 
which included the loss of a linear vernal pool occupied by both the 
Riverside fairy shrimp and San Diego fairy shrimp, was not likely to 
jeopardize the continued existence of the three endangered species. On 
January 9, 2003, the Service completed a section 7 consultation with 
the former Immigration and Naturalization Service of the effects on the 
endangered Riverside fairy shrimp and endangered San Diego fairy shrimp 
from the construction of a secondary border fence and other road and 
fencing improvements in San Diego County along the U.S.-Mexico border 
(Service 2003). We concluded in our biological opinion that the 
proposed action, which included the loss of three vernal pool basins, 
was not likely to jeopardize the continued existence of the Riverside 
fairy shrimp and San Diego fairy shrimp. To offset losses for both 
fairy shrimp species, the DHS conducted two restoration projects and 
identified for conservation some DHS-owned lands located north of the 
BIS (at Arnie's Point), including lands identified as critical habitat 
in the 2011 proposed revised critical habitat rule (76 FR 31686; June 
1, 2011). Though the BIS has been completed, the U.S. Border Patrol 
conducts ongoing operations and maintenance activities in the area, 
including upkeep of fences, roads, surveillance, communication, and 
detection equipment. These areas include lands directly adjacent to the 
border, including Subunit 5b and a portion of Subunit 5h. In 
recognition of the continuing ongoing national security concerns along 
the U.S.-Mexico border, the Secretary is exercising his discretion to 
exclude Subunit 5b (a total of 29 ac (12 ha)) and a portion of Subunit 
5h (11 ac (4 ha)) from the final revised critical habitat designation.

Benefits of Inclusion--DHS Lands

    The designation of critical habitat can result in regulatory, 
educational, and ancillary benefits. As discussed under Application of 
the ``Adverse Modification'' Standard, the regulatory benefit of 
including an area in a critical habitat designation is the added 
conservation that may result from the separate duty imposed on Federal 
agencies under section 7(a)(2) of the Act to ensure that actions they 
fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat.
    Section 102 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), Public Law 104-208 (8 U.S.C. 1101 
et seq.)), was passed as part of the Omnibus Consolidated 
Appropriations Act of 1997, and addressed construction of the BIS. 
Among the provisions of section 102 was the authority granted to the 
Attorney General (AG) to waive the provisions of the Act and of the 
National Environmental Protection Act (NEPA) ``to ensure the 
expeditious construction of barriers and roads * * *'' (Public Law 104-
208, 1996; sec. 102 (c)). Although DHS was within its authority to 
request the AG grant a waiver from complying with the Act, it did 
consult with the Service on impacts associated with the proposed border 
fence project, including the preparation of documents to fulfill its 
NEPA obligations (42 U.S.C. 4321 et seq.). The result of that 
consultation was the restoration of three vernal pools within Arnie's 
Point, as discussed above. In 2002, the Homeland Security Act (HSA) 
transferred the authority to take such actions as necessary to 
construct the BIS to the Secretary of the DHS. In 2005, the Secretary 
of the DHS, under the authority granted under the HSA and section 102 
of the IIRIRA, as amended by the REAL ID Act of 2005, did, in fact, 
make a determination to waive all ``federal, state, or other laws, 
regulations or legal requirements of, deriving from, or related to the 
subject of, * * * The National Environmental Policy Act, the Endangered 
Species Act * * *.'' (70 FR 55623). In light of this determination 
(that became effective on September 22, 2005), there is no longer a 
requirement

[[Page 72100]]

for DHS to consult with the Service on actions that may impact 
federally listed species, including the Riverside fairy shrimp, if 
those actions are related to the construction or maintenance or 
operations of the BIS. Further, in 2008, the U.S. Congress granted to 
the Secretary of Homeland Security the ability to waive all legal 
requirements related to construction of the BIS. Subsequently, the 
Secretary of Homeland Security published a determination in the Federal 
Register (73 FR 18294; April 3, 2008) waiving laws that the Secretary 
determined to be necessary to ensure the completion of barriers and 
roads related to the BIS, including the Act and the CWA. Though much of 
the BIS has been completed, there are ongoing operations and 
maintenance activities in the area, including upkeep of fences, roads, 
surveillance, communication, and detection equipment. These activities 
occur in lands directly adjacent to the border, including Subunit 5b 
and a portion of Subunit 5h. Because of the waiver determination, DHS 
would not be required to consult under Section 7 of the Act on the 
effects of such U.S. Border Patrol activities should critical habitat 
for the Riverside fairy shrimp be designated on these lands. Because of 
the laws and authorities granted to DHS outlined above, neither section 
7 of the Act nor provisions of the CWA apply in these areas; therefore, 
a critical habitat designation in these areas will have no regulatory 
impact. Further, because the lands at issue are owned by DHS, and 
Border Patrol activities are not subject to compliance with state laws 
such as CEQA, there are no ancillary benefits of designating critical 
habitat on these lands.
    Another possible benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
may help focus conservation efforts on areas of high conservation value 
for certain species. Any information about Riverside fairy shrimp and 
its habitat that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. In the case of Riverside fairy 
shrimp, however, lands identified as essential to the conservation of 
the species were identified in the proposed critical habitat 
designation published in the Federal Register on June 1, 2011 (76 FR 
31686), as well as the previous proposed revised critical habitat 
published on April 27, 2004 (69 FR 23024), and the previous final 
revised rule published on April 12, 2005 (70 FR 19154). Notices of 
these publications were announced in press releases and newspapers of 
general circulation, and information was posted on the Service's Web 
site. We also sent notifications to local, State, and Federal agencies. 
Therefore, any educational benefits of designating critical habitat on 
lands owned by DHS are negligible.
    For the reasons stated above, we consider that no regulatory or 
ancillary benefits will result from critical habitat designation on 
lands owned by DHS. In addition, the Service previously thoroughly 
evaluated the impacts of the BIS on the Riverside fairy shrimp and its 
vernal pool habitat, and determined that the project will not 
jeopardize the continued existence of the species. As part of the BIS 
project, DHS has committed to restore, protect, and manage nearby 
Riverside fairy shrimp habitat as laid out in our biological opinions 
(Service 2002; Service 2003). We also conclude that the educational 
benefits of designating lands identified as critical habitat for 
Riverside fairy shrimp on lands owned by the DHS are negligible because 
the location of habitat for this species within San Diego County is 
already well known generally and to DHS. Therefore, these facts render 
negligible the benefits of inclusion of subunits 5b and 5h in the 
designation of critical habitat for Riverside fairy shrimp.

Benefits of Exclusion--DHS lands

    Although designating critical habitat on DHS lands in Subunits 5b 
and 5h may clearly reflect our determination that these lands are 
essential to the conservation of the Riverside fairy shrimp, there is 
no regulatory requirement for the DHS or any other Federal agency 
directly involved with the construction and maintenance of the BIS to 
consult with us regarding impacts to the species. Designation of 
critical habitat on those lands under these circumstances would be 
received negatively by Federal agencies directly involved with the 
timely operation and maintenance of this critical national security 
project to safeguard our international borders and viewed negatively as 
well as by the public at large.
    In past years, DHS has undertaken additional conservation measures 
in Subunit 5b. These measures include: Installation of a chain link 
fence along the inside edge of an existing perimeter road to prevent 
vehicles from driving into the restoration area; preparation of a 
restoration plan for the three pools; and restoration and enhancement 
of 1 ac (<1 ha) of native grassland in the restoration area. Excluding 
DHS-owned lands from critical habitat will further our partnership with 
DHS and could encourage future restoration actions for listed species 
and their habitats.

Benefits of Exclusion Outweigh Benefits of Inclusion--DHS Lands

    We conclude that the minimal benefits of designating critical 
habitat on the DHS lands, including the vernal pool restoration area in 
Subunit 5b, are far outweighed by the substantial benefits to national 
security and our partnership with DHS. Therefore, the Secretary is 
exercising his discretion to exclude the DHS lands within Subunit 5b 
(29 ac (12 ha)) and a portion of Subunit 5h (11 ac (4 ha)) under 
section 4(b)(2) of the Act. No lands owned by the DHS are being 
designated as critical habitat.

Exclusion Will Not Result in Extinction of the Species--DHS Lands

    The Service determined that exclusion of these lands will not 
result in extinction of the species. We have thoroughly analyzed the 
impacts associated with the BIS and conclude that Border Patrol 
activities associated with operation and maintenance of the BIS are not 
likely to jeopardize the continued existence of Riverside fairy shrimp. 
The DHS has also conserved and restored vernal pools at Arnie's Point 
since the construction of the border fence to support listed species 
such as Riverside fairy shrimp. Therefore, we conclude that the 
exclusion of lands in Subunits 5b and in a portion of 5h will not 
result in the extinction of the Riverside fairy shrimp.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether landowners 
have developed any HCPs or other management plans for areas proposed as 
critical habitat, or whether there are conservation partnerships that 
would be encouraged by designation of, or exclusion from, critical 
habitat. In addition, we look at any tribal issues, and consider the 
government-to-government relationship of the United States with tribal 
entities.
    Based on species information and other information in our files, 
information provided by entities seeking exclusion, and public comments 
we received, we evaluated whether certain lands in the proposed 
critical habitat units 2, 4, and 5 that are covered by approved habitat 
conservation plans (HCPs) are appropriate for exclusion

[[Page 72101]]

from this final designation under section 4(b)(2) of the Act. Based on 
our review, we are excluding the following areas from critical habitat 
designation for Riverside fairy shrimp: Subunits 2c; 2i; portions of 
Subunits 2dA, 2dB, and 2e; 2f; 2g; all of Unit 3 (Subunits 3c, 3d, 3e, 
3f, 3g, and 3h); Unit 4; and a portion of Subunit 5d. All of those 
areas were identified as under consideration for exclusion in the 
proposed rule published June 1, 2011 (76 FR 31686).
    Table 5, below, provides approximate areas (ac (ha)) of lands that 
meet the definition of critical habitat, but that we are excluding 
under section 4(b)(2) of the Act from the final revised critical 
habitat rule.

  Table 5--Areas Excluded From the Riverside Fairy Shrimp Final Revised
            Critical Habitat Under Section 4(b)(2) of the Act
------------------------------------------------------------------------
           Subunit by Plan **                         Acreage
------------------------------------------------------------------------
                   Orange County Central-Coastal NCCP
------------------------------------------------------------------------
2c. (MCAS) El Toro......................  26 ac (11 ha).
2i. SCE Viejo Conservation Bank.........  63 ac (25 ha).
                                         -------------------------------
    Subtotal for Orange County Central-   89 ac (36 ha)
     Coastal Subregional NCCP/HCP.
------------------------------------------------------------------------
                  Orange County Southern Subregion HCP
------------------------------------------------------------------------
2dA. Saddleback Meadow..................  4 ac (2 ha).
2dB. O'Neill Regional Park (near Trabuco  75 ac (30 ha).
 Canyon).
2e. O'Neill Regional Park (near           47 ac (19 ha).
 Ca[ntilde]ada Gobernadora).
2f. Chiquita Ridge......................  56 ac (23 ha).
2g. Radio Tower Road....................  51 ac (21 ha).
                                         -------------------------------
    Subtotal for Orange County Southern   233 ac (94 ha).
     Subregion HCP.
------------------------------------------------------------------------
                     Western Riverside County MSHCP
------------------------------------------------------------------------
3c. Australia Pool......................  19 ac (8 ha).
3d. Scott Road Pool.....................  9 ac (4 ha).
3e. Schleuniger Pool....................  23 ac (9 ha).
3f. Skunk Hollow and Field Pool (Barry    163 ac (66 ha).
 Jones Wetland Mitigation Bank).
3g. Johnson Ranch Created Pool..........  54 ac (22 ha).
3h. Santa Rosa Plateau--Mesa de Colorado  597 ac (242 ha).
                                         -------------------------------
    Subtotal for Western Riverside        865 ac (350 ha).
     County MSHCP.
------------------------------------------------------------------------
                      San Diego MHCP--Carlsbad HMP
------------------------------------------------------------------------
4c. Poinsettia Lane Commuter Train        9 ac (4 ha).
 Station (JJ2).
                                         -------------------------------
    Subtotal Carlsbad HMP under the San   9 ac (4 ha).
     Diego MHCP.
------------------------------------------------------------------------
             County of San Diego Subarea Plan under the MSCP
------------------------------------------------------------------------
5d. J29-31 (portion)....................  23 ac (9 ha).
                                         -------------------------------
    Subtotal County of San Diego Subarea  23 ac (9 ha).
     Plan under the MSCP.
                                         -------------------------------
        Total...........................  1,219 ac (493 ha).*
------------------------------------------------------------------------
* Values in this table may not sum due to rounding.
** All lands that meet the definition of critical habitat and fall
  within the boundaries of an HCP are being excluded, with the exception
  of lands within the City of San Diego Subarea Plan. Because Riverside
  fairy shrimp is no longer a covered species under the City of San
  Diego's Subarea Plan under the MSCP (the City relinquished its permit
  on April 20, 2010), we are not excluding critical habitat areas
  falling within the boundaries of the City of San Diego Subarea Plan.

    We are excluding these areas because we determine that they are 
appropriate for exclusion under the ``other relevant factor'' 
provisions of section 4(b)(2) of the Act.

Land and Resource Management Plans, Conservation Plans, or Agreements 
Based on Conservation Partnerships

    As discussed above, in considering whether to exclude a particular 
area from the designation, we identify the benefits of including the 
area in the designation, identify the benefits of excluding the area 
from the designation, and evaluate whether the benefits of exclusion 
outweigh the benefits of inclusion. If the analysis indicates that the 
benefits of exclusion outweigh the benefits of inclusion, the Secretary 
may exercise his discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    We find that the Orange County Central-Coastal Natural Community 
Conservation Plan/Habitat Conservation Plan (NCCP/HCP), the Orange 
County Southern Subregion HCP, the Western Riverside County MSHCP, City 
of Carlsbad Habitat Management Plan (HMP) under the San Diego Multiple 
Habitat Conservation Program (MHCP), and County of San Diego Subarea 
Plan under the MSCP provide protection and management for lands that 
meet the definition of critical habitat for Riverside fairy shrimp 
based on the weighing of those factors, and the Secretary is exercising 
his discretion to

[[Page 72102]]

exclude non-Federal lands covered by these plans (see Table 5 above). 
Details of our analysis for each plan are described below.
    We did not consider excluding non-Federal lands covered by the City 
of San Diego Subarea Plan under the MSCP. In a 2006 Federal district 
court ruling in Center for Biological Diversity v. Bartel, 470 F. Supp. 
2d 1118 (S.D.Cal.), the court enjoined the incidental take permit 
issued to the City of San Diego based on the City's Subarea Plan, as it 
applied to Riverside fairy shrimp and six other vernal pool species. 
The court held that the City's Subarea Plan did not provide adequate 
protection for Riverside fairy shrimp. As a result, the City 
surrendered permit coverage for seven vernal pool species, including 
Riverside fairy shrimp, on April 20, 2010, and the Service cancelled 
the permit insofar as it applied to the seven species on May 14, 2010. 
Because the Riverside fairy shrimp is no longer a covered species under 
the City of San Diego Subarea Plan under the MSCP, we are not excluding 
critical habitat areas that fall within the boundary of the City of San 
Diego Subarea Plan. The City is currently preparing a new HCP to obtain 
incidental take coverage for the Riverside fairy shrimp and other 
vernal pool species. Despite the City's relinquishment of their permit, 
54 percent of all currently identified vernal pool habitat, or 1,369 
pools, within the boundaries of the City's subarea plan have been 
conserved by covenant of easement, conservation easement, or dedication 
in fee title to the City (City of San Diego 1997; Service 2006). The 
City continues to monitor and manage vernal pools in support of the 
MSCP.

Regulatory Benefits of Inclusion for Habitat Conservation Plans

    As discussed under Application of the ``Adverse Modification'' 
Standard, the regulatory benefit of including an area in a critical 
habitat designation is the added conservation that may result from the 
separate duty imposed on Federal agencies under section 7(a)(2) of the 
Act to ensure that actions they fund, authorize, or carry out are not 
likely to result in the destruction or adverse modification of any 
designated critical habitat.
    However, for some species, including Riverside fairy shrimp, the 
outcome of adverse modification analysis under section 7(a)(2) will be 
similar to the jeopardy analysis because effects to habitat will often 
also result in effects to the species. Though jeopardy and adverse 
modification analyses must satisfy two different standards, any 
modifications to proposed actions resulting from a section 7 
consultation to minimize or avoid impacts to Riverside fairy shrimp are 
likely to be habitat based, as the Riverside fairy shrimp is completely 
dependent on a properly functioning hydrological regime. Avoidance or 
adequate minimization of impacts to the wetland area and its associated 
watershed, which collectively create the hydrological regime necessary 
to support Riverside fairy shrimp, is essential not only to enable the 
critical habitat unit to carry out its conservation function such that 
adverse modification is avoided, but also to avoid a possible jeopardy 
determination with regard to the continued existence of the listed 
species. All subunits excluded within the Orange County Central-Coastal 
NCCP/HCP, the Orange County Southern Subregion HCP, the Western 
Riverside County MSHCP, City of Carlsbad HMP under the San Diego MHCP, 
and County of San Diego Subarea Plan under the MSCP are occupied. Thus, 
it is difficult to differentiate meaningfully between measures that 
would be implemented solely to minimize impacts to critical habitat 
from those required under the plans to minimize impacts to Riverside 
fairy shrimp. Therefore, in the case of Riverside fairy shrimp, we 
believe any additional regulatory benefits of critical habitat 
designation within areas covered by approved habitat conservation plans 
would be minimal because the regulatory benefits from designation are 
difficult to distinguish at this point in time from the benefits of 
listing.
    Detailed discussion of the regulatory, educational, and ancillary 
benefits of critical habitat designation is discussed under the 
Benefits of Inclusion sections for each plan below.
Orange County Central-Coastal NCCP/HCP
    The Orange County Central-Coastal Natural Community Conservation 
Planning/Habitat Conservation Plan (NCCP/HCP) was developed in 
cooperation with numerous local jurisdictions, State agencies, and 
participating landowners, including the cities of Anaheim, Costa Mesa, 
Irvine, Orange, and San Juan Capistrano; Southern California Edison; 
Transportation Corridor Agencies; The Irvine Company; California 
Department of Parks and Recreation; Metropolitan Water District of 
Southern California; and the County of Orange. Approved in 1996, the 
Orange County Central-Coastal NCCP/HCP provides for the establishment 
of approximately 38,738 ac (15,677 ha) of reserve land for 39 Federal 
or State-listed and unlisted sensitive species within the 208,713-ac 
(84,463-ha) plan area in central and coastal Orange County. The Orange 
County Central-Coastal NCCP/HCP is a multispecies conservation plan 
that minimizes and mitigates expected habitat loss and associated 
incidental take of covered species within the plan area. The ``Reserve 
System'' created pursuant to the NCCP/HCP is designed to function 
effectively as a multiple-habitat and multiple-species reserve that 
specifically includes vernal pool habitat and Riverside fairy shrimp 
(R.J. Meade Consulting, Inc. 1996, entire).
    The Orange County Central-Coastal NCCP/HCP provides for monitoring 
and adaptive management of covered species and their habitats within 
this Reserve System (Consultation 1-6- FW-24, Service 1996, 
pp. 1-4). Conditionally covered species, including the Riverside fairy 
shrimp, receive protection not only through the establishment and 
management of the Reserve System, but also additional mitigation 
measures specified in the NCCP/HCP and implementing agreement (IA) 
(Service et al. 1996, p. 6). Under the NCCP/HCP, incidental take for 
Riverside fairy shrimp is limited to highly degraded or artificial 
vernal pools. Take of Riverside fairy shrimp in nondegraded, natural 
vernal pool habitat, such as habitat in Subunits 2c and 2i, is not 
authorized. If a planned activity will affect Riverside fairy shrimp in 
a highly degraded or artificial vernal pool, it ``must be consistent 
with a mitigation plan that:
     Addresses design modifications and other onsite measures 
that are consistent with the project's purposes, minimizes impacts, and 
provides appropriate protections for vernal pool habitat;
     Provides for compensatory vernal pool habitat restoration/
creation at an appropriate location (which may include the reserve or 
other open space) and includes relocation of potential cyst-bearing 
soils; and
     Provides for monitoring and adaptive management of vernal 
pools consistent with Chapter 5 of this NCCP'' (R.J. Meade Consulting, 
Inc. 1996, p. 97).
    Permittees implement the above conservation measures for Riverside 
fairy shrimp and other covered species over the 75-year permit term, as 
well as provide commitments in perpetuity regarding habitat protection 
for lands in the Reserve System and commitments outlined in the IA 
(R.J. Meade Consulting 1996, p. 12). Subunit 2i (SCE Viejo Conservation 
Bank; 63 ac (25 ha)) is part of the proposed SCE Viejo Conservation 
Bank and is targeted for conservation. Although Subunit 2c

[[Page 72103]]

((MCAS) El Toro; 26 ac (11 ha)) is not yet conserved, loss of vernal 
pool habitat in this area is not authorized under the Orange County 
Central-Coastal NCCP. To date, monitoring and management related to 
Riverside fairy shrimp have included reservewide vernal pool surveys 
conducted from 1997 through 2001, and ongoing control of invasive, 
nonnative vegetation in the upland environment; both Subunit 2c and 2i 
are within the reserve boundaries.
    The Secretary is exercising his discretion to exclude a total of 89 
ac (36 ha) of land that is owned by or under the jurisdiction of the 
permittees of the Orange County Central-Coastal NCCP/HCP (see Table 5 
above).

Benefits of Inclusion--Orange County Central-Coastal NCCP/HCP

    The designation of critical habitat can result in regulatory, 
educational, and ancillary benefits. As discussed under Application of 
the ``Adverse Modification'' Standard, the regulatory benefit of 
including an area in a critical habitat designation is the added 
conservation that may result from the separate duty imposed on Federal 
agencies under section 7(a)(2) of the Act to ensure that actions they 
fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat.
    However, for reasons stated in the Regulatory Benefits of Inclusion 
for Habitat Conservation Plans section above, we conclude any 
additional regulatory benefits of critical habitat designation would be 
minimal because the regulatory benefits from designation are difficult 
to distinguish at this point in time from the benefits of listing. In 
addition, because non-degraded Riverside fairy shrimp habitat within 
the Central-Coastal NCCP/HCP is required to be protected under the 
plan, the likelihood of a future section 7 consultation on these lands 
for other than conservation-related actions is remote. Thus, because we 
do not anticipate that the outcome of future section 7 consultations on 
Riverside fairy shrimp would change if critical habitat were 
designated, and because the likelihood of future Section 7 
consultations is remote, we conclude that the regulatory benefits of 
designating lands identified as critical habitat within the Orange 
County Central Coastal NCCP/HCP (Subunits 2c and 2i) would be, at most, 
minor.
    Another possible benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
may help focus conservation efforts on areas of high conservation value 
for certain species. Any information about Riverside fairy shrimp and 
its habitat that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. In the case of Riverside fairy 
shrimp, however, there have already been multiple occasions when the 
public has been educated about the species. The Orange County Central-
Coastal NCCP/HCP has been in place since 1996. Implementation of the 
plan is reviewed yearly through publicly available annual reports that 
extensively detail progress of the plan and status of nature reserves 
within the plan area. These reports provide extensive opportunity to 
educate the public and landowners about the location of, and efforts to 
conserve, areas that meet the definition of critical habitat for 
Riverside fairy shrimp. As discussed above, the permit holders of the 
Orange County Central-Coastal NCCP/HCP are aware of the value of these 
lands to the conservation of Riverside fairy shrimp, and conservation 
measures are already in place to protect essential occurrences of the 
Riverside fairy shrimp and its habitat.
    Lands identified as critical habitat that are covered by the Orange 
County Central-Coastal NCCP/HCP were also included in the proposed 
critical habitat designation for Riverside fairy shrimp published in 
the Federal Register on June 1, 2011 (76 FR 31686), as well as the 
previous proposed revised critical habitat published on April 27, 2004 
(69 FR 23024), and the previous final revised rule published on April 
12, 2005 (70 FR 19154). These publications were also announced in press 
releases and information was posted on the Service's web site. We also 
sent notifications to local, State, and Federal agencies.
    We consider the educational benefits of critical habitat 
designation (such as providing information to Orange County and other 
stakeholders and to the public regarding areas important to the long-
term conservation of this species) have already been realized through 
development and ongoing implementation of the Orange County Central-
Coastal NCCP/HCP, by proposing these areas as critical habitat, and 
through the Service's public outreach efforts. The educational benefits 
of designating critical habitat within the Orange County Central 
Coastal NCCP/HCP would be negligible.
    Finally, critical habitat designation can result in ancillary 
conservation benefits to Riverside fairy shrimp by triggering 
additional review and conservation through other Federal and State 
laws. The primary State law that might be affected by critical habitat 
designation is CEQA. However, vernal pool habitat occupied by Riverside 
fairy shrimp within the central-coastal subregion of Orange County has 
been identified in surveys conducted since the completion of the Orange 
County Central Coastal NCCP/HCP and is targeted for protection under 
the plan and not authorized for take. Thus, reviews of development 
proposals affecting occupied vernal pool habitat within the plan area 
under CEQA already take into account the importance of this habitat to 
Riverside fairy shrimp and the protections required for the species and 
its habitat under the plan. The Federal law most likely to afford 
protection to designated Riverside fairy shrimp habitat is the CWA. 
Projects requiring a permit under the CWA, such as a fill permit under 
section 404 of the CWA, located within critical habitat or likely to 
affect critical habitat, would trigger section 7 consultation under the 
Act. However, as discussed above, we conclude the potential regulatory 
benefits resulting from designation of critical habitat would be 
negligible because, with regard to Riverside fairy shrimp, the outcome 
of an adverse modification analysis under section 7(a)(2) of the Act 
would not differ materially from the outcome of a jeopardy analysis. 
Therefore, we conclude the ancillary benefits of designating lands 
identified as critical habitat for Riverside fairy shrimp within the 
Orange County Central Coastal NCCP/HCP as critical habitat would be 
negligible.
    For the reasons stated above, we consider section 7 consultations 
for critical habitat designation conducted under the standards required 
by the 9th Circuit Court in the Gifford Pinchot Task Force v. U.S. Fish 
and Wildlife Service decision would provide little conservation benefit 
and would be largely redundant with those benefits attributable to 
endangered species listing as well as those already provided by the 
Orange County Central-Coastal NCCP/HCP. Therefore, the benefits of 
inclusion are reduced because the regulatory benefits of designating 
those acres as Riverside fairy shrimp critical habitat, such as 
protection afforded through the section 7(a)(2) consultation process, 
are minimal. Additionally, the benefits of inclusion are reduced 
because the educational and ancillary benefits of designating lands 
identified as critical habitat for Riverside fairy shrimp covered by 
the Orange County Central-Coastal NCCP/HCP would be

[[Page 72104]]

negligible because the location of habitat for this species within the 
central-coastal subregion of Orange County and the importance of 
conserving such habitat are well known and are already addressed 
through CEQA and through implementation of the Orange County Central-
Coastal NCCP/HCP.

Benefits of Exclusion--Orange County Central-Coastal NCCP/HCP

    The benefits of excluding from designated critical habitat the 
approximately 89 ac (36 ha) of land within the Orange County Central-
Coastal NCCP/HCP are significant. The benefits of excluding lands 
identified as critical habitat for Riverside fairy shrimp covered by 
the plan include: (1) Continuance and strengthening of our effective 
working relationships with the Central-Coastal NCCP/HCP jurisdictions 
and stakeholders to promote the conservation of Riverside fairy shrimp 
and its habitat; (2) allowance for continued meaningful collaboration 
and cooperation in working toward recovering this species, including 
conservation benefits that might not otherwise occur; (3) encouragement 
of other regional jurisdictions with completed NCCP or HCP plans to 
amend their plans to cover and benefit Riverside fairy shrimp and 
vernal pool habitat; (4) encouragement for local jurisdictions to fully 
participate in the Orange County Central-Coastal NCCP/HCP; and (5) 
encouragement of additional HCP and other conservation plan development 
in the future on other private lands that include Riverside fairy 
shrimp and other federally listed species.
    We have developed close partnerships with the County of Orange and 
all other participating entities through the development of the Orange 
County Central-Coastal NCCP/HCP. The protections and management 
provided under the plan for Riverside fairy shrimp and its habitat, 
including the physical or biological features essential to the 
conservation of this species, are consistent with statutory mandate 
under section 7 of the Act to avoid destruction or adverse modification 
of critical habitat. Furthermore, this plan goes beyond the statutory 
mandate by protecting areas that contain the physical or biological 
features essential to the conservation of the species.
    By excluding the approximately 89 ac (36 ha) of land within the 
boundaries of the Orange County Central-Coastal NCCP/HCP from critical 
habitat designation, we are eliminating a redundant layer of regulatory 
review for projects covered by the Orange County Central-Coastal NCCP/
HCP, maintaining our partnership with Orange County and other plan 
stakeholders, and encouraging new voluntary partnerships with other 
landowners and jurisdictions to protect Riverside fairy shrimp and 
other listed species. As discussed above, the prospect of potentially 
avoiding a future designation of critical habitat provides a meaningful 
incentive to plan proponents to extend protections to endangered and 
threatened species and their habitats under a habitat conservation 
plan. Achieving comprehensive landscape-level protection for listed 
species, particularly rare vernal pool species, such as Riverside fairy 
shrimp, through their inclusion in regional conservation plans, 
provides a key conservation benefit for such species. Our ongoing 
partnership with the County of Orange and plan stakeholders, and the 
landscape-level multiple species conservation planning efforts they 
promote, are essential to achieve long-term conservation of Riverside 
fairy shrimp.
    Some NCCP and HCP permittees have expressed the view that 
designation of lands covered by an NCCP/HCP devalues the conservation 
efforts of plan proponents and the partnerships fostered through the 
development and implementation of the plans and would discourage 
development of additional NCCP/HCPs and other conservation plans in the 
future (see the Benefits of Exclusion--Orange County Southern Subregion 
HCP and Benefits of Exclusion--Western Riverside County MSHCP sections 
below). Where an existing NCCP/HCP provides protection for a species 
and its habitat within the plan area, the benefits of preserving 
existing partnerships by excluding the covered lands from critical 
habitat are most significant. Under these circumstances, excluding 
lands owned by or under the jurisdiction of the permittees of an NCCP/
HCP promotes positive working relationships and eliminates impacts to 
existing and future partnerships while encouraging development of 
additional NCCPs and HCPs for other species.
    Large-scale HCPs, such as the Orange County Central-Coastal NCCP/
HCP, take many years to develop, and foster an ecosystem-based approach 
to habitat conservation planning by addressing conservation issues 
through a coordinated approach. If, instead, local jurisdictions were 
to require landowners to individually obtain incidental take permits 
(ITPs) under section 10 of the Act, the conservation likely to result 
would be uncoordinated, patchy, and less likely to achieve listed 
species recovery, as conservation measures would be determined on a 
project-by-project basis instead of on a comprehensive, landscape-level 
scale. To avoid that outcome, we are committed to fostering 
partnerships with local jurisdictions to encourage the development and 
continued implementation of regional HCPs that afford proactive 
landscape-level conservation for multiple species. We conclude that the 
exclusion from critical habitat designation of lands identified as 
critical habitat within the Orange County Central-Coastal NCCP/HCP will 
result in significant partnership benefits that are likely to result in 
important protection for the Riverside fairy shrimp and its habitat and 
also other listed species and their habitats.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Orange County 
Central-Coastal NCCP/HCP

    We reviewed and evaluated the exclusion of approximately 89 ac (36 
ha) of land within the boundaries of the Orange County Central-Coastal 
NCCP/HCP from our revised designation of critical habitat, and we 
determined the benefits of excluding these lands outweigh the benefits 
of including them. The benefits of including these lands in the 
designation are reduced because the regulatory, educational, and 
ancillary benefits that would result from critical habitat designation 
are almost entirely redundant with the regulatory, educational, and 
ancillary benefits already afforded through the Orange County Central-
Coastal NCCP/HCP and under State and Federal law. In contrast to the 
reduced benefits of inclusion, the benefits of excluding lands covered 
by the Orange County Central-Coastal NCCP/HCP from critical habitat 
designation are significant. Exclusion of these lands will help 
preserve the partnerships we developed with local jurisdictions and 
project proponents through the development and ongoing implementation 
of the Orange County Central-Coastal NCCP/HCP, and aid in fostering 
future partnerships for the benefit of listed species. Our partnership 
with plan participants has already resulted in significant benefits to 
listed species and vernal pool habitat; based on this track record of 
success, we expect that this meaningful partnership will continue into 
the future.
    The Orange County Central-Coastal NCCP/HCP will provide significant 
conservation and protection of the Riverside fairy shrimp and its 
habitat and help achieve recovery of this species through habitat 
enhancement and restoration, maintenance of functional connections to 
adjoining

[[Page 72105]]

habitat, and species monitoring efforts. Additional HCPs or other 
species-habitat plans potentially fostered by this exclusion would also 
help to recover this and other federally listed species. Therefore, in 
consideration of the relevant impact to current and future 
partnerships, as summarized in the Benefits of Exclusion--Orange County 
Central-Coastal NCCP/HCP section above, we determine the significant 
benefits of exclusion outweigh the minor benefits of critical habitat 
designation.

Exclusion Will Not Result in Extinction of the Species--Orange County 
Central-Coastal NCCP/HCP

    We determine that the exclusion of 89 ac (36 ha) of land within the 
boundaries of the Orange County Central-Coastal NCCP/HCP from the 
designation of critical habitat for Riverside fairy shrimp will not 
result in extinction of the species. Proposed actions that affect 
waters of the United States as defined under the CWA, which in many 
cases include vernal pools occupied by Riverside fairy shrimp, will 
continue to be subject to consultation under section 7(a)(2) of the Act 
and to the duty to avoid jeopardy to the species. The protection 
provided by the Orange County Central-Coastal NCCP/HCP for the length 
of the permit also provides assurances that this species will not go 
extinct as a result of excluding these lands from the critical habitat 
designation.
    Therefore, the Secretary is exercising his discretion to exclude 89 
ac (36 ha) of land (the entirety of subunits 2c and 2i) within the 
boundaries of the Orange County Central-Coastal NCCP/HCP from this 
final critical habitat designation.
Orange County Southern Subregion HCP
    The Orange County Southern Subregion HCP is a large-scale HCP that 
encompasses approximately 86,021 ac (34,811 ha) in southern Orange 
County. It is a multispecies conservation program that minimizes and 
mitigates expected habitat loss and associated incidental take of 32 
covered species, including Riverside fairy shrimp, incidental to 
residential development and related actions in southern Orange County. 
The Orange County Southern Subregion HCP was developed and is being 
implemented by the County of Orange; Rancho Mission Viejo, LLC (RMV); 
and the Santa Margarita Water District. The Service issued incidental 
take permits based on the plan on January 10, 2007. The permit and plan 
cover a 75-year period.
    The Orange County Southern Subregion HCP provides for the 
conservation of covered species, including Riverside fairy shrimp, 
through the establishment of an approximately 30,426-ac (12,313-ha) 
habitat reserve and 4,456 ac (1,803 ha) of supplemental open space 
areas (Service 2007, p. 19), which primarily consist of land owned by 
Rancho Mission Viejo and three pre-existing County parks (Service 2007, 
pp. 10, 19).
    The Orange County Southern Subregion HCP is expected to provide 
benefits for the conservation of Riverside fairy shrimp through 
implementation of the following conservation measures:
     Conserving vernal pools within the habitat reserve,
     Minimizing impacts to vernal pools from development,
     Maintaining water quality and quantity,
     Controlling nonnative, invasive species,
     Managing livestock grazing, and
     Minimizing human access and disturbance.

Specifically, any development must be located at least 1,000 ft (305 m) 
away from vernal pools and be built at a lower elevation than the 
vernal pools to avoid hydrological alterations (Service 2007, p. 133). 
Water quality monitoring will be conducted throughout the life of the 
permit at occupied vernal pools near development (Service 2007, p. 
133).
    The conservation strategy for this HCP provides a comprehensive 
habitat-based approach to the protection of covered species and their 
habitats by focusing on the lands and aquatic resource areas containing 
the physical or biological features essential for the long-term 
conservation of the covered species (including Riverside fairy shrimp), 
and by providing for appropriate management for those lands (Service 
2007, p. 64). All of the portions of Unit 2 that fall within the Orange 
County Southern Subregion HCP have been conserved or are targeted for 
conservation within the plan's open space area, known as its habitat 
reserve. Portions of Subunits 2dB and 2e are within O'Neill Regional 
Park, a park permanently conserved as open space that is part of the 
habitat reserve system (Dudek and Associates 2006, p. 10-6). The 
remaining portions of Subunits 2dB and 2e are outside the plan 
boundaries and have not been excluded from this final revised critical 
habitat rule. Chiquita Ridge (Subunit 2f) and Saddleback Meadow 
(Subunit 2dA) are also within the habitat reserve. Lands within these 
subunits are conserved with conservation easements, and permittees fund 
the management of these areas to benefit vernal pool species, including 
Riverside fairy shrimp (Service 2007, pp. 15-17). Management provided 
by the plan includes regular monitoring of vernal pools at Chiquita 
Ridge (Subunit 2f) (Service 2007, p. 134). Radio Tower Road (Subunit 
2g) is required to be conserved within the habitat reserve in future 
years in accordance with the schedule set forth in the plan. In the 
interim, the Orange County Southern Subregion HCP mandates that all 
construction must take place at a minimum of 1,000 ft (305 m) from the 
Radio Tower Road vernal pools (Subunit 2g) (Service 2007, p. 135). 
Monitoring and management for Subunit 2g will occur once the property 
is added to the reserve (Service 2007, p. 134).
    The Secretary is exercising his discretion to exclude a total of 
233 ac (94 ha) of covered lands under the Orange County Southern 
Subregion HCP (see Table 5 above).

Benefits of Inclusion--Orange County Southern Subregion HCP

    The designation of critical habitat can result in regulatory, 
educational, and ancillary benefits. As discussed under Application of 
the ``Adverse Modification'' Standard, the regulatory benefit of 
including an area in a critical habitat designation is the added 
conservation that may result from the separate duty imposed on Federal 
agencies under section 7(a)(2) of the Act to ensure that actions they 
fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat.
    However, for reasons stated in the Regulatory Benefits of Inclusion 
for Habitat Conservation Plans section above, we conclude that any 
additional regulatory benefits of critical habitat designation would be 
minimal because the regulatory benefits from designation are difficult 
to distinguish at this point in time from the benefits of listing. In 
addition, because essential Riverside fairy shrimp habitat within the 
Orange County Southern Subregion HCP is required to be protected under 
the plan, the likelihood of a future section 7 consultation on these 
lands for other than conservation related actions is remote. Thus, 
because we do not anticipate that the outcome of future section 7 
consultations on Riverside fairy shrimp would change if critical 
habitat were designated and because the likelihood of future section 7 
consultations is remote, we conclude that the regulatory benefits of 
designating lands that meet the

[[Page 72106]]

definition of critical habitat within the Orange County Southern 
Subregion HCP (Subunits 2f and 2g and portions of Subunits 2dA, 2dB, 
and 2e) would be, at most, minor.
    As discussed under Benefits of Inclusion--Orange County Central-
Coastal NCCP/HCP, another possible benefit of including lands in a 
critical habitat designation is that the designation can serve to 
educate landowners and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. In the case of Riverside 
fairy shrimp, however, there have already been multiple occasions when 
the public has been educated about the species. The planning process 
for the Orange County Southern Subregion HCP began in 1992, when the 
County of Orange formally enrolled its unincorporated area in the NCCP 
program, and then signed a planning agreement with CDFG and the Service 
in 1993. Planning efforts were delayed for a time, but scoping and 
planning meetings continued. The Orange County Southern Subregion HCP 
was finalized in 2006. As discussed above, the permit holders of the 
Orange County Southern Subregion HCP are aware of the value of these 
lands to the conservation of Riverside fairy shrimp, and conservation 
measures are already in place to protect essential occurrences of the 
Riverside fairy shrimp and its habitat.
    Lands meeting the definition of critical habitat that are covered 
by the Orange County Southern Subregion HCP were also included in the 
proposed designation published in the Federal Register on June 1, 2011 
(76 FR 31686), as well as the previous proposed revised critical 
habitat published on April 27, 2004 (69 FR 23024), and the previous 
final revised rule published on April 12, 2005 (70 FR 19154). These 
publications were announced in press releases and information was 
posted on the Service's Web site. We consider the educational benefits 
of critical habitat designation (such as providing information to the 
participating entities and to the public regarding areas important to 
the long-term conservation of this species) have already been realized 
through development and ongoing implementation of the Orange County 
Southern Subregion HCP, by proposing these areas as critical habitat, 
and through the Service's public outreach efforts. The educational 
benefits of designating critical habitat within the Orange County 
Southern Subregion HCP would be negligible.
    Finally, critical habitat designation can result in ancillary 
conservation benefits to Riverside fairy shrimp by triggering 
additional review and conservation through other Federal and State 
laws. The primary State law that might be affected by critical habitat 
designation is CEQA. However, Riverside fairy shrimp lands that meet 
the definition of critical habitat within the Southern Subregion of 
Orange County have been identified and are either already protected or 
targeted for protection under the plan. Thus, review of development 
proposals affecting lands identified as critical habitat covered by the 
plan under CEQA by the entities participating in the Orange County 
Southern Subregion HCP already takes into account the importance of 
this habitat to the species and the protections required for the 
species and its habitat under the plan. The Federal law most likely to 
afford protection to designated Riverside fairy shrimp habitat is the 
CWA. Projects requiring a permit under the CWA, such as a fill permit 
under section 404 of the CWA, located within critical habitat or likely 
to affect critical habitat, would trigger section 7 consultation under 
the Act. However, as discussed above, we conclude the potential 
regulatory benefits resulting from designation of critical habitat 
would be negligible because, with regard to Riverside fairy shrimp, the 
outcome of an adverse modification analysis under section 7(a)(2) of 
the Act would not differ materially from the outcome of a jeopardy 
analysis. Therefore, we conclude that the ancillary benefits of 
designating lands identified as critical habitat for Riverside fairy 
shrimp within the Orange County Southern Subregion HCP as critical 
habitat would be negligible.
    For the reasons stated above and under Benefits of Inclusion--
Orange County Central-Coastal NCCP/HCP, we consider section 7 
consultations for critical habitat designation conducted under the 
standards required by the 9th Circuit Court in the Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service decision would provide little 
conservation benefit and would be largely redundant with those benefits 
attributable to listing as well as those already provided by the Orange 
County Southern Subregion HCP. Therefore, the benefits of inclusion are 
reduced because the regulatory benefits of designating those acres as 
Riverside fairy shrimp critical habitat, such as protection afforded 
through the section 7(a)(2) consultation process, are minimal. 
Additionally, the benefits of inclusion are reduced because the 
educational and ancillary benefits of designating critical habitat 
covered by the Orange County Southern Subregion HCP would be negligible 
because the location of lands identified as critical habitat for this 
species within the County of Orange and the importance of conserving 
such habitat are well known and are already addressed through CEQA and 
through implementation of the Orange County Southern Subregion HCP.

Benefits of Exclusion--Orange County Southern Subregion HCP

    The benefits of excluding from designated critical habitat the 
approximately 233 ac (94 ha) of land within the Orange County Southern 
Subregion HCP are significant. The discussion of partnership benefits 
under Benefits of Exclusion--Orange County Central-Coastal NCCP/HCP 
applies equally to the Orange County Southern Subregion HCP. The 
benefits of excluding lands identified as critical habitat covered by 
the Orange County Southern Subregion HCP include continuing and 
strengthening our existing partnerships with the HCP permittees and 
stakeholders across the subregion to promote the conservation of the 
Riverside fairy shrimp and its habitat and encouraging new partnerships 
with other jurisdictions to amend existing and develop future HCPs that 
cover and provide conservation for the Riverside fairy shrimp and other 
listed species.
    We have developed close partnerships with participating entities 
through the development of the Orange County Southern Subregion HCP. 
The protections and management provided for the Riverside fairy shrimp 
and its habitat, including the physical or biological features 
essential to the conservation of the species, are consistent with 
statutory mandates under section 7 of the Act to avoid destruction or 
adverse modification of critical habitat. Furthermore, this plan goes 
beyond the statutory mandate including active management and protection 
of areas that contain the physical or biological features essential to 
the conservation of the species. By excluding the approximately 233 ac 
(94 ha) of land within the boundaries of the Orange County Southern 
Subregion HCP from critical habitat designation, we are eliminating a 
redundant layer of regulatory review for projects covered by the Orange 
County Southern Subregion HCP, maintaining our partnership with Orange 
County and other plan permittees, and encouraging new voluntary 
partnerships with other

[[Page 72107]]

landowners and jurisdictions to protect the Riverside fairy shrimp and 
other listed species. As discussed above, the prospect of potentially 
avoiding a future designation of critical habitat provides a meaningful 
incentive to plan proponents to extend protections to endangered and 
threatened species and their habitats under a conservation plan. 
Achieving comprehensive landscape-level protection for listed species, 
particularly rare vernal pool species such as the Riverside fairy 
shrimp through their inclusion in regional conservation plans, provides 
a key conservation benefit for such species. Our ongoing partnerships 
with the participating entities, and the landscape-level multiple 
species conservation planning efforts they promote, are essential to 
achieve long-term conservation of the Riverside fairy shrimp.
    As noted above, some HCP permittees have expressed the view that 
critical habitat designation of lands covered by an HCP devalues the 
conservation efforts of plan proponents and the partnerships fostered 
through the development and implementation of the plan, and would 
discourage development of additional HCPs and other conservation plans 
in the future. Landowners in the Orange County Southern Subregion HCP 
have repeatedly expressed their belief that lands covered by the plan 
should be excluded from critical habitat (RMV 2012, pp. 1, 8). Where an 
existing HCP provides protection for a species and its essential 
habitat within the plan area, such as is the case with the Orange 
County Southern Subregion HCP, the benefits of preserving existing 
partnerships by excluding the covered lands from critical habitat are 
most significant. Under these circumstances, excluding lands owned by 
or under the jurisdiction of the permittees of an HCP promotes positive 
working relationships and eliminates impacts to existing and future 
partnerships while encouraging development of additional HCPs for other 
species.
    Large-scale HCPs, such as the Orange County Southern Subregion HCP, 
take many years to develop, and foster an ecosystem-based approach to 
habitat conservation planning by comprehensively addressing 
conservation issues. If local jurisdictions were to require landowners 
to individually obtain ITPs under section 10 of the Act, the 
conservation likely to result would be uncoordinated, patchy, and less 
likely to achieve listed species recovery, as conservation measures 
would be determined on a project-by-project basis instead of on a 
comprehensive, landscape-level scale. To avoid that outcome, we are 
committed to fostering partnerships with local jurisdictions and large 
landowners to encourage the development and continued implementation of 
regional HCPs that afford proactive landscape-level conservation for 
multiple species. We conclude that the exclusion from critical habitat 
designation of lands that contain the physical and biological factors 
essential to the conservation of the species within the Orange County 
Southern Subregion HCP will result in significant partnership benefits 
that we believe will result in important protection for Riverside fairy 
shrimp and its habitat and other listed species and their habitats.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Orange County 
Southern Subregion HCP

    We reviewed and evaluated the exclusion of approximately 233 ac (94 
ha) of land within the boundaries of the Orange County Southern 
Subregion HCP from our revised designation of critical habitat, and we 
determined the benefits of excluding these lands outweigh the benefits 
of including them. The benefits of including these lands in the 
designation are reduced because the regulatory, educational, and 
ancillary benefits that would result from critical habitat designation 
are almost entirely redundant with the regulatory, educational, and 
ancillary benefits already afforded through the Orange County Southern 
Subregion HCP and under State and Federal law. In contrast to the 
reduced benefits of inclusion, the benefits of excluding lands covered 
by the Orange County Southern Subregion HCP from critical habitat 
designation are significant. Exclusion of these lands will help 
preserve the partnerships we developed with local jurisdictions and 
project proponents through the development and ongoing implementation 
of the Orange County Southern Subregion HCP, and will aid in fostering 
future partnerships for the benefit of listed species. Our partnership 
with plan participants has already resulted in significant benefits to 
listed species and vernal pool habitat; based on this track record of 
success, we expect that this meaningful partnership will continue into 
the future.
    The Orange County Southern Subregion HCP will provide significant 
conservation and management of the Riverside fairy shrimp and its 
habitat, and help achieve recovery of this species through habitat 
enhancement and restoration, functional connections to adjoining 
habitat, and species monitoring efforts. Additional HCPs or other 
species-habitat plans potentially fostered by this exclusion would also 
help to recover this and other federally listed species. Therefore, in 
consideration of the relevant impact to current and future 
partnerships, as summarized in the Benefits of Exclusion--Orange County 
Southern Subregion HCP section above, we determine the significant 
benefits of exclusion outweigh the minor benefits of critical habitat 
designation.

Exclusion Will Not Result in Extinction of the Species--Orange County 
Southern Subregion HCP

    We determined that the exclusion of 233 ac (94 ha) of land within 
the boundaries of the Orange County Southern Subregion HCP from the 
designation of critical habitat for the Riverside fairy shrimp will not 
result in extinction of the species. Proposed actions that affect 
waters of the United States as defined under the CWA, including in many 
cases vernal pools occupied by Riverside fairy shrimp, will continue to 
be subject consultation under section 7(a)(2) of the Act and to the 
duty to avoid jeopardy to the species. The protection provided by the 
Orange County Southern Subregion HCP also provides assurances that this 
species will not go extinct as a result of excluding these lands from 
the critical habitat designation. Therefore, the Secretary is 
exercising his discretion to exclude 233 ac (94 ha) of land within the 
boundaries of the Orange County Southern Subregion HCP from this final 
critical habitat designation.
Western Riverside County Multiple Species Habitat Conservation Program
    The Western Riverside County MSHCP is a regional, 
multijurisdictional HCP that encompasses approximately 1.26 million ac 
(510,000 ha) of land in western Riverside County. The Western Riverside 
County MSHCP addresses 146 listed and unlisted ``covered species,'' 
including the Riverside fairy shrimp. The Western Riverside County 
MSHCP is a multispecies conservation program designed to minimize and 
mitigate the expected loss of habitat and associated incidental take of 
covered species resulting from covered development activities such as 
indirect effects from flood control, road maintenance, housing 
construction, and construction of public facilities in the plan area. 
On June 22, 2004, the Service issued a single incidental take permit 
under section 10(a)(1)(B) of the Act to 22 permittees under the Western 
Riverside County MSHCP to be in effect for a period of 75 years 
(Service 2004a).

[[Page 72108]]

    The Western Riverside County MSHCP, when fully implemented, will 
establish approximately 153,000 ac (61,917 ha) of new conservation 
lands (additional reserve lands (ARL)) to complement the approximate 
347,000 ac (140,426 ha) of preexisting natural and open space areas 
(public/quasi-public (PQP) lands) in the plan area. PQP lands include 
those under ownership of public agencies, primarily the U.S. Forest 
Service (USFS) and Bureau of Land Management (BLM), as well as 
permittee-owned or controlled open-space areas managed by the State of 
California and Riverside County. Collectively, the ARL and PQP lands 
form the overall Western Riverside County MSHCP Conservation Area. The 
configuration of the 153,000 ac (61,916 ha) of ARL is not mapped or 
precisely delineated (hard-lined) in the Western Riverside County 
MSHCP. Instead, the configuration and composition of the ARL are 
described in text within the bounds of the approximately 310,000-ac 
(125,453-ha) criteria area. Additional reserve lands are being acquired 
and conserved as part of the ongoing implementation of the Western 
Riverside County MSHCP.
    Skunk Hollow and Field Pool (Barry Jones Wetland Mitigation Bank, 
Subunit 3f), Lake Elsinore Back Basin (Australia Pool; Subunit 3c), and 
Murrieta (Schleuniger Pool, Subunit 3e) are conserved or will be 
conserved in the Western Riverside County MSHCP Conservation Area. The 
plan protects Riverside fairy shrimp within the plan area by ensuring 
the species is conserved within 90 percent of an occupied area (County 
of Riverside 2003, Table 9-2). All vernal pool habitat within the 
Western Riverside County MSHCP Conservation Area will be conserved. For 
vernal pool habitat outside the Conservation Area, vernal pool habitat 
is assessed on a project by project basis and an avoidance alternative 
implemented, if feasible. If an avoidance alternative is not feasible, 
a practicable alternative that minimizes direct and indirect effects to 
riparian/riverine areas, vernal pools/fairy shrimp habitat, and 
associated functions will be selected and unavoidable impacts will be 
mitigated. To ensure adequate replacement of lost functions and values, 
the permittee is required to make a determination of biologically 
equivalent or superior preservation, as described in the Plan (pp. 6-24 
and 6-25), that evaluates the effects to habitats and effects on 
species (Dudek and Associates 2003, pp. 6-20, 6-21, 6-23). This 
analysis must demonstrate that a proposed action, including design 
features to minimize impacts and compensation measures (for example, 
restoration, enhancement), will provide equal or better conservation 
than avoidance of the riparian, riverine, vernal pools, or fairy shrimp 
habitats (Dudek and Associates 2003, pp. 6-23-6-25). All projects 
impacting vernal pool habitat must be reviewed by project permittees 
and the Service (Dudek and Associates 2003, p. 6-84).
    Subunit 3g (Johnson Ranch Created Pool) is on existing conserved 
lands and is managed by CDFG (Service 2001, p. 2). Portions of Subunits 
3e (Schleuniger Pool) and 3h (Santa Rosa Plateau--Mesa de Colorado) 
have been conserved. Subunits 3c (Australia Pool), 3d (Scott Road 
Pool), 3f (Skunk Hollow and Field Pool (Barry Jones Wetland Mitigation 
Bank)), and the remaining portions of Subunits 3e and 3h are on PQP 
lands.
    Species-specific conservation objectives are included in the 
Western Riverside County MSHCP for the Riverside fairy shrimp. One 
objective is to conserve at least 11,942 ac (4,833 ha) of occupied or 
suitable habitat for the species. In addition, other areas within the 
criteria area identified as important for Riverside fairy shrimp will 
be conserved, including areas in Murrieta (Schleuniger Pool, Subunit 
3e), Skunk Hollow (Subunit 3f), and Santa Rosa Plateau (Subunit 3h). 
This objective is intended to be met through implementation of the 
Protection of Species Associated with Riparian/Riverine Areas and 
Vernal Pools policy under the plan, which states that 90 percent of the 
area of occupied properties that provide long-term conservation value 
for Riverside fairy shrimp shall be conserved.
    We anticipate that this species will persist in the remaining 90 
percent of occupied habitat with long-term conservation value for the 
species, including all of the modeled habitat within both the existing 
public/quasi-public lands and the additional reserve lands. All 
critical habitat units within the boundaries of the Western Riverside 
MSHCP are conserved or on PQP lands. The MSHCP will further offset the 
proposed impacts to this species through management and monitoring 
actions within the reserve, including the enhancement of historic or 
vestigial vernal pools within Conservation Areas. This enhancement will 
help offset the impacts of activities covered by the plan by increasing 
the quality of the habitat that is conserved for this species and by 
allowing the expansion of populations within the reserve through the 
enhancement of historic or vestigial vernal pools that do not currently 
provide habitat for the species (Service 2004a, pp. 239-245).
    The 1993 final listing rule for the Riverside fairy shrimp 
attributed the primary threat to this species to present or threatened 
destruction, modification, or curtailment of its habitat or to urban 
and agricultural development, OHV use, cattle trampling, human 
trampling, road development, and water management activities (58 FR 
41387, August 3, 1993). The 1993 final listing rule also identified 
other natural and manmade factors, including introduction of nonnative 
plant species, competition with invading species, trash dumping, fire, 
and fire suppression activities (58 FR 41389, August 3, 1993) as 
primary threats to the Riverside fairy shrimp. The Western Riverside 
County MSHCP helps to address these threats through a regional planning 
effort, and contains species-specific objectives and criteria to 
provide for the conservation of the Riverside fairy shrimp and its 
habitat as the plan is implemented.

Benefits of Inclusion--Western Riverside County MSHCP

    The designation of critical habitat can result in regulatory, 
educational, and ancillary benefits. As discussed under Application of 
the ``Adverse Modification'' Standard, the regulatory benefit of 
including an area in a critical habitat designation is the added 
conservation that may result from the separate duty imposed on Federal 
agencies under section 7(a)(2) of the Act to ensure that actions they 
fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat.
    However, for reasons stated in the Regulatory Benefits of Inclusion 
for Habitat Conservation Plans section above, we conclude any 
additional regulatory benefits of critical habitat designation would be 
minimal because the regulatory benefits from designation are difficult 
to distinguish at this point in time from the benefits of listing 
because all areas are considered occupied. In addition, because 
essential Riverside fairy shrimp habitat within the Western Riverside 
County MSHCP is required to be protected under the plan, the likelihood 
of a future section 7 consultation on these lands for other than 
conservation-related actions is remote. Thus, because we do not 
anticipate that the outcome of future section 7 consultations on 
Riverside fairy shrimp would change if critical habitat was designated 
and because the likelihood of future section 7 consultations is remote, 
we conclude that the regulatory benefits of

[[Page 72109]]

designating habitat that contains the physical or biological features 
essential to the conservation of the species and within the Western 
Riverside County MSHCP (all acreages within Unit 3) would be, at most, 
minor.
    As discussed under Benefits of Inclusion--Orange County Central-
Coastal NCCP/HCP, another possible benefit of including lands in a 
critical habitat designation is that the designation can serve to 
educate landowners and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. In the case of Riverside 
fairy shrimp, however, there have already been multiple occasions when 
the public has been educated about the species. The Western Riverside 
County MSHCP was developed over a 5-year period, and has been in place 
for almost a decade. Implementation of the plan is formally reviewed 
yearly through publicly available annual reports, again providing 
extensive opportunity to educate the public and landowners about the 
location of, and efforts to conserve, areas identified as critical 
habitat for the Riverside fairy shrimp. The permit holders of the 
Western Riverside County MSHCP are aware of the value of these lands to 
the conservation of the Riverside fairy shrimp, and conservation 
measures are already in place to protect the Riverside fairy shrimp and 
its habitat within the Conservation Area. Areas identified as critical 
habitat for the Riverside fairy shrimp that are covered by the Western 
Riverside County MSHCP were also included in the proposed designation 
published in the Federal Register on June 1, 2011 (76 FR 31686), as 
well as the previous proposed revised critical habitat published on 
April 27, 2004 (69 FR 23024), and the previous final revised rule 
published on April 12, 2005 (70 FR 19154). These publications were 
announced in a press release and information was posted on the 
Service's Web site.
    We consider the educational benefits of critical habitat 
designation for Riverside fairy shrimp (such as providing information 
to the County of Riverside, other stakeholders, and the public 
regarding areas important to the long-term conservation of this 
species) have already been realized through the development and ongoing 
implementation of the Western Riverside County MSHCP, by proposing 
these areas as critical habitat, and through the Service's public 
outreach efforts. For these reasons, we conclude that the educational 
benefits of designating critical habitat within the Western Riverside 
County MSHCP would be negligible.
    Finally, critical habitat designation can result in ancillary 
conservation benefits to Riverside fairy shrimp by triggering 
additional review and conservation through other Federal and State 
laws. The primary State law that might be affected by critical habitat 
designation is CEQA. However, lands identified as critical habitat 
within Western Riverside County have been identified in the Western 
Riverside County MSHCP and are either already protected or targeted for 
protection under the plan. Thus, review of any future development 
proposals affecting lands identified as critical habitat within the 
plan area under CEQA already take into account the importance of this 
habitat to the species and the protections required for the species and 
its habitat under the plan. The Federal law most likely to afford 
protection to designated Riverside fairy shrimp habitat is the CWA. 
Projects requiring a permit under the CWA, such as a fill permit under 
section 404 of the CWA, located within critical habitat or likely to 
affect critical habitat, would trigger section 7 consultation under the 
Act. However, as discussed above, we conclude the potential regulatory 
benefits resulting from designation of critical habitat would be 
negligible because, with regard to the Riverside fairy shrimp, the 
outcome of an adverse modification analysis under section 7(a)(2) of 
the Act would not differ materially from the outcome of a jeopardy 
analysis. Therefore, we conclude the ancillary benefits of designating 
lands identified as critical habitat for the Riverside fairy shrimp 
within the Western Riverside County MSHCP as critical habitat would be 
negligible.
    For the reasons stated above, we consider section 7 consultations 
for critical habitat designation conducted under the standards required 
by the 9th Circuit Court in the Gifford Pinchot Task Force v. U.S. Fish 
and Wildlife Service decision would provide little conservation benefit 
and would be largely redundant with those benefits attributable to 
listing as well as those already provided by the Western Riverside 
County MSHCP. Therefore, the benefits of inclusion are reduced because 
the regulatory benefits of designating those acres as Riverside fairy 
shrimp critical habitat, such as protection afforded through the 
section 7(a)(2) consultation process, are minimal. Additionally, the 
benefits of inclusion are reduced because the educational and ancillary 
benefits of designating lands identified as critical habitat for the 
Riverside fairy shrimp covered by the Western Riverside County MSHCP 
would be negligible because the location of lands identified as 
critical habitat for Riverside fairy shrimp for this species within 
Western Riverside County and the importance of conserving such habitat 
are well known and are already addressed through CEQA and through 
implementation of Western Riverside County MSHCP.

Benefits of Exclusion--Western Riverside County MSHCP

    The benefits of excluding from designated critical habitat the 
approximately 865 ac (350 ha) of land within the Western Riverside 
County MSHCP are significant. The benefits of excluding lands 
identified as critical habitat covered by these plans include: (1) 
Continuance and strengthening of our effective working relationships 
with all MSHCP jurisdictions and stakeholders to promote the 
conservation of the Riverside fairy shrimp and its habitat; (2) 
allowance for continued meaningful collaboration and cooperation in 
working toward recovering this species, including conservation benefits 
that might not otherwise occur; (3) encouragement of other 
jurisdictions with completed HCP/NCCP plans to amend their plans to 
cover and benefit the Riverside fairy shrimp and vernal pool habitat; 
and (4) encouragement of additional HCP and other conservation plan 
development in the future on other private lands that include Riverside 
fairy shrimp and other federally listed species.
    We have developed close partnerships with the County of Riverside 
and several other stakeholders through the development of the Western 
Riverside County MSHCP. The protection and management provided for the 
Riverside fairy shrimp and its habitat, including the physical or 
biological features essential to the conservation of the species, are 
consistent with statutory mandates under section 7 of the Act to avoid 
destruction or adverse modification of critical habitat. Furthermore, 
this plan goes beyond the statutory mandate by actively protecting 
habitat areas that contain the physical or biological features 
essential to the conservation of the species. By excluding the 
approximately 865 ac (350 ha) of land within the boundaries of the 
Western Riverside County MSHCP from critical habitat designation, we 
are eliminating a redundant layer of regulatory review for projects 
covered by the Western Riverside County MSHCP, maintaining our 
partnership with Riverside County and other participating 
jurisdictions,

[[Page 72110]]

and encouraging new voluntary partnerships with other landowners and 
jurisdictions to protect the Riverside fairy shrimp and other listed 
species. As discussed above, the prospect of potentially avoiding a 
future designation of critical habitat provides a meaningful incentive 
to plan proponents to extend protections to endangered and threatened 
species and their habitats under a habitat conservation plan. Achieving 
comprehensive landscape-level protection for listed species, 
particularly rare vernal pool species such as the Riverside fairy 
shrimp through their inclusion in regional conservation plans, provides 
a key conservation benefit for such species. Our ongoing partnerships 
with the County of Riverside and the regional Western Riverside County 
MSHCP participants, and the landscape-level multiple species 
conservation planning efforts they promote, are essential to achieve 
long-term conservation of the Riverside fairy shrimp.
    As noted earlier, some HCP permittees have expressed the view that 
critical habitat designation of lands covered by an HCP devalues the 
conservation efforts of plan proponents and the partnerships fostered 
through the development and implementation of the plans, and would 
discourage development of additional HCPs and other conservation plans 
in the future. Permittees of the Western Riverside County MSHCP have 
repeatedly stated that exclusion of lands covered by the plan would 
prove beneficial to our partnership (WRCRCA 2012, p. 5). In a comment 
letter on the proposed critical habitat, a representative from the 
Western Riverside Regional Conservation Authority stated that lands 
covered by the Western Riverside County MSHCP should be excluded from 
critical habitat. We consider that where an existing HCP provides 
protection for a species and its habitat within the plan area, the 
benefits of preserving existing partnerships by excluding the covered 
lands from critical habitat are most significant. Under these 
circumstances, excluding lands owned by or under the jurisdiction of 
the permittees of an HCP promotes positive working relationships and 
eliminates impacts to existing and future partnerships while 
encouraging development of additional HCPs for other species.
    Large-scale HCPs, such as the Western Riverside County MSHCP, take 
many years to develop, and foster a strategic ecosystem-based approach 
to habitat conservation planning by addressing conservation issues 
through a coordinated approach. If, instead, local jurisdictions were 
to require landowners to individually obtain ITPs under section 10 of 
the Act, the conservation likely to result would be uncoordinated, 
patchy, and less likely to achieve listed species recovery as 
conservation measures would be determined on a project-by-project basis 
instead of on a comprehensive, landscape-level scale. To avoid that 
outcome, we are committed to fostering partnerships with local 
jurisdictions to encourage the development of regional HCPs that afford 
proactive landscape-level conservation for multiple species. We 
conclude that the exclusion from critical habitat designation of lands 
meeting the definition of critical habitat within the Western Riverside 
County MSHCP will result in significant partnership benefits that we 
believe will result in important protection for and conservation of the 
Riverside fairy shrimp and other listed species and their habitats.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Western 
Riverside County MSHCP

    We reviewed and evaluated the exclusion of approximately 865 ac 
(350 ha) of land within the boundaries of the Western Riverside County 
MSHCP from our revised designation of critical habitat, and we 
determined the benefits of excluding these lands outweigh the benefits 
of including them. The benefits of including these lands in the 
designation are reduced because the regulatory, educational, and 
ancillary benefits that would result from critical habitat designation 
are almost entirely redundant with the regulatory, educational, and 
ancillary benefits already afforded through the Western Riverside 
County MSHCP and under State and Federal law. In contrast to the 
reduced benefits of inclusion, the benefits of excluding lands covered 
by the Western Riverside County MSHCP from critical habitat designation 
are significant. Exclusion of these lands will help preserve the 
partnerships we developed with local jurisdictions and project 
proponents through the development and ongoing implementation of the 
Western Riverside County MSHCP, and aid in fostering future 
partnerships for the benefit of listed species. Our partnership with 
plan participants has already resulted in significant benefits to 
listed species and vernal pool habitat; based on this track record of 
success, we expect that this meaningful partnership will continue into 
the future.
    The Western Riverside County MSHCP will provide significant 
conservation and management of the Riverside fairy shrimp and its 
habitat and help achieve recovery of this species through habitat 
enhancement and restoration, functional connections to adjoining 
habitat, and species monitoring efforts. Additional HCPs or other 
species-habitat plans potentially fostered by this exclusion would also 
help to recover this and other federally listed species. Therefore, in 
consideration of the relevant impact to current and future 
partnerships, as summarized in the Benefits of Exclusion--Western 
Riverside County MSHCP section above, we determine the significant 
benefits of exclusion outweigh the minor benefits of inclusion.

Exclusion Will Not Result in Extinction of the Species--Western 
Riverside County MSHCP

    We determine that the exclusion of 865 ac (350 ha) of land within 
the boundaries of the Western Riverside County MSHCP from the 
designation of critical habitat for the Riverside fairy shrimp will not 
result in extinction of the species. Proposed actions that affect 
waters of the United States as defined under the CWA, which in many 
cases include vernal pools occupied by Riverside fairy shrimp, will 
continue to be subject to consultation under section 7(a)(2) of the Act 
and to the duty to avoid jeopardy to the species. The protection 
provided by the Western Riverside County MSHCP also provides assurances 
that this species will not go extinct as a result of excluding these 
lands from the critical habitat designation.
    Therefore, the Secretary is exercising his discretion to exclude 
865 ac (350 ha) of land (all of Unit 3) within the boundaries of the 
Western Riverside County MSHCP from this final critical habitat 
designation.
Carlsbad HMP Under the San Diego MHCP
    The San Diego Multiple Habitat Conservation Program (MHCP) is a 
comprehensive, multijurisdictional planning program designed to create, 
manage, and monitor an ecosystem preserve in northwestern San Diego 
County while providing for economic and urban development by 
streamlining the permitting process. The MHCP is also a subregional 
plan under the State of California's NCCP program, which was developed 
in cooperation with CDFG. The MHCP preserve system (focused planning 
area (FPA)) is intended to protect viable populations of native plant 
and animal species and their habitats in perpetuity, while 
accommodating continued economic

[[Page 72111]]

development and quality of life for residents of northern San Diego 
County.
    The MHCP includes an approximately 112,000-ac (45,324-ha) study 
area within the cities of Carlsbad, Encinitas, Escondido, San Marcos, 
Oceanside, Vista, and Solana Beach (MHCP 2003, entire). These cities 
will implement their respective portions of the MHCP through subarea 
plans. Only the City of Carlsbad has an approved subarea plan at this 
time, which is called the Carlsbad Habitat Management Plan (Carlsbad 
HMP). The section 10(a)(1)(B) incidental take permit and IA for the 
Carlsbad HMP were issued on November 12, 2004 (Service 2004b). 
Conservation requirements within the Carlsbad HMP for Riverside fairy 
shrimp include conserving 100 percent of the known Riverside fairy 
shrimp habitat and implementing the MHCP's narrow endemic and no net 
loss of wetlands (including vernal pools) policies for any additional 
vernal pools discovered in the MHCP planning area. These policies 
require all vernal pools and their watersheds within the MHCP study 
area to be 100 percent conserved, regardless of occupancy by Riverside 
fairy shrimp and regardless of location inside or outside of the FPA, 
unless doing so would remove all economic uses of a property. In the 
event that no feasible project alternative avoids all impacts on a 
particular property, the impacts must be minimized and mitigated to 
achieve no net loss of biological functions and values (Service 2004c, 
p. 330). Unit 4c covers the Poinsettia Lane Commuter Train Station 
vernal pool complex within the Carlsbad HMP, and consists of 9 ac (4 
ha): 3 ac (1 ha) of private property and 6 ac (3 ha) local land owned 
by the North County Transit District.
    The Poinsettia Lane Commuter Train Station vernal pool complex 
supports the only known occurrence of the Riverside fairy shrimp within 
the boundaries of the Carlsbad HMP. Coverage of the Riverside fairy 
shrimp under the Carlsbad HMP is conditioned on permanent protection, 
management, and monitoring of the Poinsettia Lane Commuter Train 
Station vernal pool complex as outlined in the biological opinion for 
the Carlsbad HMP (Service 2004c, pp. 327-33). We continue to work with 
the City of Carlsbad to conserve this area.

Benefits of Inclusion--Carlsbad HMP Under the San Diego MHCP

    The designation of critical habitat can result in regulatory, 
educational, and ancillary benefits. As discussed under Application of 
the ``Adverse Modification'' Standard, the regulatory benefit of 
including an area in a critical habitat designation is the added 
conservation that may result from the separate duty imposed on Federal 
agencies under section 7(a)(2) of the Act to ensure that actions they 
fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat.
    However, as discussed above and for reasons stated in the 
Regulatory Benefits of Inclusion for Habitat Conservation Plans section 
above, we conclude any additional regulatory benefits of critical 
habitat designation would be minimal because the regulatory benefits 
from designation are difficult to distinguish at this point in time 
from the benefits of listing. In addition, because lands identified as 
critical habitat for the Riverside fairy shrimp habitat within the 
Carlsbad HMP are required to be protected under the plan, the 
likelihood of a future section 7 consultation on these lands for other 
than conservation related actions is remote. Thus, because we do not 
anticipate that the outcome of future section 7 consultations on 
Riverside fairy shrimp would change if critical habitat were designated 
and because the likelihood of future section 7 consultations is remote, 
we conclude that the regulatory benefits of designating lands 
identified as critical habitat for Riverside fairy shrimp within the 
Carlsbad HMP (Subunit 4c) would be, at most, minor.
    Another possible benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
may help focus conservation efforts on areas of high conservation value 
for certain species. Any information about the Riverside fairy shrimp 
and its habitat that reaches a wide audience, including parties engaged 
in conservation activities, is valuable. In the case of Riverside fairy 
shrimp, however, there have already been multiple occasions when the 
public has been educated about the species. The framework of the 
regional San Diego MHCP was developed over a 6-year period and both the 
San Diego MHCP and the Carlsbad HMP have been in place for almost a 
decade. Implementation of the subarea plan is formally reviewed yearly 
through publicly available annual reports and a public meeting, again 
providing extensive opportunity to educate the public and landowners 
about the location of, and efforts to conserve, lands identified as 
critical habitat for the Riverside fairy shrimp. As discussed above, 
the permit holders of the Carlsbad HMP are aware of the value of these 
lands to the conservation of Riverside fairy shrimp. Lands identified 
as critical habitat for Riverside fairy shrimp that are covered by the 
Carlsbad HMP were included in the proposed designation published in the 
Federal Register on June 1, 2011 (76 FR 31686), as well as the previous 
proposed revised critical habitat published on April 27, 2004 (69 FR 
23024), and the previous final revised rule published on April 12, 2005 
(70 FR 19154). These publications were announced in press releases and 
information was posted on the Service's Web site.
    We consider the educational benefits of critical habitat 
designation (such as providing information to the City of Carlsbad and 
other stakeholders and to the public regarding areas important to the 
long-term conservation of this species) have already been realized 
through development and ongoing implementation of the Carlsbad HMP, by 
proposing these areas as critical habitat, and through the Service's 
public outreach efforts. For these reasons, we conclude that the 
educational benefits of designating critical habitat within the 
Carlsbad HMP would be negligible.
    Finally, critical habitat designation can also result in ancillary 
conservation benefits to Riverside fairy shrimp by triggering 
additional review and conservation through other Federal and State 
laws. The primary State law that might be affected by critical habitat 
designation is CEQA. However, lands identified as critical habitat 
within the City of Carlsbad have been identified in the HMP and are 
either already protected or targeted for protection under the plan. 
Thus, review of development proposals affecting habitat that contains 
the physical or biological features essential to the conservation of 
the species under CEQA by the City of Carlsbad already takes into 
account the importance of this habitat to the species and the 
protections required for the species and its habitat under the plan. 
The Federal law most likely to afford protection to designated 
Riverside fairy shrimp habitat is the CWA. Projects requiring a permit 
under the CWA, such as a fill permit under section 404 of the CWA, 
located within critical habitat or likely to affect critical habitat, 
would trigger section 7 consultation under the Act. However, as 
discussed above, we conclude the potential regulatory benefits 
resulting from designation of critical habitat would be negligible 
because, with regard to Riverside fairy shrimp, the outcome of an 
adverse modification analysis under section 7(a)(2) of the Act would 
not differ materially from the outcome of a

[[Page 72112]]

jeopardy analysis. Therefore, we conclude that the ancillary benefits 
of designating lands identified as critical habitat for Riverside fairy 
shrimp within the Carlsbad HMP as critical habitat would be negligible.
    For the reasons stated above, we consider section 7 consultations 
for critical habitat designation conducted under the standards required 
by the 9th Circuit Court in the Gifford Pinchot Task Force v. U.S. Fish 
and Wildlife Service decision would provide little conservation benefit 
and would be largely redundant with those benefits attributable to 
listing as well as those already provided by the Carlsbad HMP. 
Therefore, the benefits of inclusion are reduced because the regulatory 
benefits of designating those acres as Riverside fairy shrimp critical 
habitat, such as protection afforded through the section 7(a)(2) 
consultation process, are minimal. Additionally, the benefits of 
inclusion are reduced because the educational and ancillary benefits of 
designating lands identified as critical habitat for Riverside fairy 
shrimp covered by the Carlsbad HMP would be negligible because the 
location of such habitat for this species within the City of Carlsbad 
and the importance of conserving such habitat are well known and are 
already addressed through CEQA and through implementation of the 
Carlsbad HMP.

Benefits of Exclusion--Carlsbad HMP Under the San Diego MHCP

    The benefits of excluding from designated critical habitat the 
approximately 9 ac (4 ha) of land within the Carlsbad HMP are 
significant. The benefits of excluding lands identified as critical 
habitat covered by this plan include: (1) Continuance and strengthening 
of our effective working relationships with the City of Carlsbad and 
other plan stakeholders to promote the conservation of the Riverside 
fairy shrimp and its habitat; (2) allowance for continued meaningful 
collaboration and cooperation in working toward recovering this 
species, including conservation benefits that might not otherwise 
occur; (3) encouragement of other jurisdictions to complete subarea 
plans under the MHCP (including the cities of Oceanside, San Marcos, 
and Escondido) that cover or are adjacent to Riverside fairy shrimp or 
other vernal pool habitat; and (4) encouragement of additional NCCP/HCP 
and other conservation plan development in the future on private lands 
within the region that includes Riverside fairy shrimp and other 
federally listed species.
    We have developed close partnerships with the City of Carlsbad and 
several other stakeholders through the development of the Carlsbad HMP. 
The protections and management provided for Riverside fairy shrimp and 
its habitat under the plan are consistent with statutory mandates under 
section 7 of the Act to avoid destruction or adverse modification of 
critical habitat. By excluding the approximately 9 ac (4 ha) of land 
within the boundaries of the Carlsbad HMP from critical habitat 
designation, we are eliminating a redundant layer of regulatory review 
for projects covered by the Carlsbad HMP, maintaining our partnership 
with the City of Carlsbad, and encouraging new voluntary partnerships 
with other landowners and jurisdictions to protect the Riverside fairy 
shrimp and other listed species. As discussed above, the prospect of 
potentially avoiding a future designation of critical habitat provides 
a meaningful incentive to plan proponents to extend protections to 
endangered and threatened species and their habitats under a habitat 
conservation plan. Achieving comprehensive landscape-level protection 
for listed species, particularly rare vernal pool species such as the 
Riverside fairy shrimp through their inclusion in regional conservation 
plans, provides a key conservation benefit for such species. Our 
ongoing partnerships with the City of Carlsbad and other regional MHCP 
participants, and the landscape-level multiple species conservation 
planning efforts they promote, are essential to achieve long-term 
conservation of Riverside fairy shrimp.
    As noted in the Benefits of Exclusion--Orange County Southern 
Subregion HCP and Benefits of Exclusion--Western Riverside County MSHCP 
sections above, some HCP permittees have expressed the view that 
critical habitat designation of lands covered by an HCP devalues the 
conservation efforts of plan proponents and the partnerships fostered 
through the development and implementation of the plans, and would 
discourage development of additional HCPs and other conservation plans 
in the future. Where an existing HCP provides protection for a species 
and its essential habitat within the plan area, the benefits of 
preserving existing partnerships by excluding the covered lands from 
critical habitat are most significant. Under these circumstances, 
excluding lands owned by or under the jurisdiction of the permittees of 
an HCP promotes positive working relationships and eliminates impacts 
to existing and future partnerships while encouraging development of 
additional HCPs for other species.
    Large-scale HCPs, such as the regional MHCP and subarea plans in 
development under its framework, take many years to develop and foster 
an ecosystem-based approach to habitat conservation planning by 
addressing conservation issues through a coordinated approach. If, 
instead, local jurisdictions were to require landowners to individually 
obtain ITPs under section 10 of the Act, the conservation likely to 
result would be uncoordinated, patchy, and less likely to achieve 
listed species recovery as conservation measures would be determined on 
a project-by-project basis instead of on a comprehensive, landscape-
level scale. To avoid that outcome, we are committed to fostering 
partnerships with local jurisdictions to encourage the development of 
regional HCPs that afford proactive landscape-level conservation for 
multiple species. We find that the exclusion from critical habitat 
designation of lands identified as critical habitat for the Riverside 
fairy shrimp within the Carlsbad HMP will result in significant 
partnership benefits that we believe will result in greater protection 
for the Riverside fairy shrimp and its habitat and other listed species 
and their habitats.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Carlsbad HMP 
Under the San Diego MHCP

    We reviewed and evaluated the exclusion of approximately 9 ac (4 
ha) of land within the boundaries of the Carlsbad HMP from our revised 
designation of critical habitat, and we determined the benefits of 
excluding these lands outweigh the benefits of including them. The 
benefits of including these lands in the designation are reduced 
because the regulatory, educational, and ancillary benefits that would 
result from critical habitat designation are almost entirely redundant 
with the regulatory, educational, and ancillary benefits already 
afforded through the Carlsbad HMP and under State and Federal law. In 
contrast to the reduced benefits of inclusion, the benefits of 
excluding lands covered by the Carlsbad HMP from critical habitat 
designation are significant. Exclusion of these lands will help 
preserve the partnerships we developed with local jurisdictions and 
project proponents through the development and ongoing implementation 
of the Carlsbad HMP, and aid in fostering future partnerships for the 
benefit of listed species. Our partnership with the City of Carlsbad

[[Page 72113]]

has already resulted in significant benefits to listed species and 
vernal pool habitat; based on this track record of success, we expect 
that this meaningful partnership will continue into the future.
    The Carlsbad HMP will provide significant conservation and 
management of the Riverside fairy shrimp and its habitat and help 
achieve recovery of this species through habitat enhancement and 
restoration, functional connections to adjoining habitat, and species 
monitoring efforts. Additional HCPs or other species-habitat plans 
potentially fostered by this exclusion would also help to recover this 
and other federally listed species. Therefore, in consideration of the 
relevant impact to current and future partnerships, as summarized in 
the Benefits of Exclusion--Carlsbad HMP under the San Diego MHCP 
section above, we determine the significant benefits of exclusion 
outweigh the minor benefits of inclusion.

Exclusion Will Not Result in Extinction of the Species--Carlsbad HMP 
Under the San Diego MHCP

    We determine that the exclusion of 9 ac (4 ha) of land within the 
boundaries of the Carlsbad HMP from the designation of critical habitat 
for Riverside fairy shrimp will not result in extinction of the 
species. Proposed actions that affect waters of the United States as 
defined under the CWA, which in many cases include vernal pools 
occupied by Riverside fairy shrimp, will continue to be subject 
consultation under section 7(a)(2) of the Act and to the duty to avoid 
jeopardy to the species. The protection provided by the Carlsbad HMP 
also provides assurances that this species will not go extinct as a 
result of excluding lands from critical habitat within the plan area.
    Therefore, the Secretary is exercising his discretion to exclude 9 
ac (4 ha) of land (Subunit 4c) within the boundaries of the Carlsbad 
HMP from this final critical habitat designation.
County of San Diego Subarea Plan Under the San Diego MSCP
    The Riverside fairy shrimp is covered under the County of San Diego 
Subarea Plan. The Multiple Species Conservation Program (MSCP) is a 
comprehensive habitat conservation planning program that encompasses 
582,243 ac (235,626 ha) within 12 jurisdictions in southwestern San 
Diego County. The MSCP is a subregional plan that identifies the 
conservation needs of 85 federally listed and sensitive species, 
including the Riverside fairy shrimp, and serves as the basis for 
development of subarea plans by each jurisdiction in support of section 
10(a)(1)(B) permits. The subregional MSCP identifies where mitigation 
activities should be focused, such that upon full implementation of the 
subarea plans, approximately 171,920 ac (69,574 ha) of the 582,243-ac 
(235,626-ha) MSCP plan area will be preserved and managed for covered 
species. The MSCP also provides for a regional biological monitoring 
program, with the Riverside fairy shrimp identified as a first-priority 
species for field monitoring.
    Consistent with the MSCP, the conservation of Riverside fairy 
shrimp is addressed in the County of San Diego Subarea Plan. The County 
of San Diego Subarea Plan identifies areas that are hard-lined for 
conservation and areas where mitigation activities should be focused to 
assemble its preserve (pre-approved mitigation area). Implementation of 
the County of San Diego Subarea Plan will result in a minimum 98,379-ac 
(39,813-ha) preserve area.
    A portion of Subunit 5d (23 ac (9 ha)) is within the County of San 
Diego Subarea Plan. Within the covered area, 6 ac (2 ha) are within a 
hard-lined preserve area. These hard-lined preserve lands were 
designated in conjunction with the Otay Ranch Specific Plan, and are to 
be conveyed to a land manager (for example, County or Federal 
government) in phases such that 1.18 ac (0.48 ha) are conserved for 
every 1 ac (0.40 ha) developed. A natural resource management plan has 
been developed that addresses the preservation, enhancement, and 
management of sensitive natural resources on the 22,899-ac (9,267-ha) 
Otay Ranch hard-lined preserve area (County of San Diego 1997, pp. 3-
15). The remaining 17 ac (7 ha) are outside the hard-lined preserve. 
This portion of the unit receives protections set out in the County of 
San Diego Subarea Plan, including the requirement that any impacts to 
the Riverside fairy shrimp and vernal pools be avoided to the maximum 
extent practicable; where complete avoidance is infeasible, projects 
would be designed to avoid any significant reduction to species 
viability (Service 1998b, pp. 33, 43, 66). Any unavoidable impacts will 
be minimized and mitigated to achieve no net loss of function or value 
(Service 1998b, p. 66).
    The Secretary is exercising his discretion to exclude the portion 
of Subunit 5d (23 ac (9 ha)) of land within the boundaries of the 
County of San Diego Subarea Plan from this final critical habitat 
designation.

Benefits of Inclusion--County of San Diego Subarea Plan Under the San 
Diego MSCP

    The designation of critical habitat can result in regulatory, 
educational, and ancillary benefits. As discussed under Application of 
the ``Adverse Modification'' Standard, the regulatory benefit of 
including an area in a critical habitat designation is the added 
conservation that may result from the separate duty imposed on Federal 
agencies under section 7(a)(2) of the Act to ensure that actions they 
fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat.
    However, for reasons stated in the Regulatory Benefits of Inclusion 
for Habitat Conservation Plans section above, we conclude any 
additional regulatory benefits of critical habitat designation would be 
minimal because the regulatory benefits from designation are difficult 
to distinguish at this point in time from the benefits of listing. 
Thus, because we do not anticipate that the outcome of future section 7 
consultations on the Riverside fairy shrimp would change if critical 
habitat were designated, we conclude that the regulatory benefits of 
designating lands identified as critical habitat for the Riverside 
fairy shrimp within the portion of Subunit 5d within the County of San 
Diego Subarea Plan would be, at most, minor.
    Another possible benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
may help focus conservation efforts on areas of high conservation value 
for certain species. Any information about the Riverside fairy shrimp 
and its habitat that reaches a wide audience, including parties engaged 
in conservation activities, is valuable. In the case of the Riverside 
fairy shrimp, however, there have already been multiple occasions when 
the public has been educated about the species. The framework of the 
regional San Diego MSCP was developed over a 7-year period, while the 
County of San Diego Subarea Plan has been in place for over a decade. 
Implementation of the subarea plans is formally reviewed yearly through 
publicly available annual reports and a public meeting, again providing 
extensive opportunity to educate the public and landowners about the 
location of, and efforts to conserve, essential Riverside fairy shrimp 
habitat. As discussed above, the permit holders of the County of San

[[Page 72114]]

Diego Subarea Plan are aware of the value of these lands to the 
conservation of the Riverside fairy shrimp, and measures are already in 
place to protect Riverside fairy shrimp and its habitat.
    Lands identified as critical habitat for the Riverside fairy shrimp 
that are covered by the County of San Diego Subarea Plan were also 
included in the proposed designation published in the Federal Register 
on June 1, 2011 (76 FR 31686), as well as the previous proposed revised 
critical habitat published on April 27, 2004 (69 FR 23024), and the 
previous final revised rule published on April 12, 2005 (70 FR 19154). 
These publications were announced in press releases and information was 
posted on the Service's web site. We consider the educational benefits 
of critical habitat designation (such as providing information to the 
County and other stakeholders and to the public regarding areas 
important to the long-term conservation of this species) have already 
been realized through the development and ongoing implementation of the 
County of San Diego Subarea Plan, by proposing these areas as critical 
habitat, and through the Service's public outreach efforts. The 
educational benefits of designating critical habitat within the County 
of San Diego Subarea Plan would be negligible.
    Finally, critical habitat designation can also result in ancillary 
conservation benefits to the Riverside fairy shrimp by triggering 
additional review and conservation through other Federal and State 
laws. The primary State law that might be affected by critical habitat 
designation is CEQA. However, lands identified as critical habitat 
within the County of San Diego in Subunit 5d are required to be 
protected under the Subarea Plan. Thus, review of development proposals 
affecting lands identified as critical habitat for the Riverside fairy 
shrimp in Subunit 5d under CEQA by the County of San Diego already 
takes into account the importance of this habitat to the species and 
the protections required for the species and its habitat under the 
Subarea plan. The Federal law most likely to afford protection to 
designated Riverside fairy shrimp habitat is the CWA. Projects 
requiring a permit under the CWA, such as a fill permit under section 
404 of the CWA, located within critical habitat or likely to affect 
critical habitat, would trigger section 7 consultation under the Act. 
However, as discussed above, we conclude the potential regulatory 
benefits resulting from designation of critical habitat would be 
negligible because, with regard to the Riverside fairy shrimp, the 
outcome of an adverse modification analysis under section 7(a)(2) of 
the Act would not differ materially from the outcome of a jeopardy 
analysis. Therefore, we conclude the ancillary benefits of designating 
habitat containing the physical or biological features essential to the 
conservation of the Riverside fairy shrimp within that portion of 
Subunit 5d covered by the County of San Diego Subarea Plan as critical 
habitat would be negligible.
    For the reasons stated above, we consider section 7 consultations 
for critical habitat designation conducted under the standards required 
by the 9th Circuit Court in the Gifford Pinchot Task Force v. U.S. Fish 
and Wildlife Service decision would provide little conservation benefit 
and would be largely redundant with those benefits attributable to 
listing as well as those already provided by the County of San Diego 
Subarea Plan. Therefore, the benefits of inclusion are reduced because 
the regulatory benefits of designating those acres as Riverside fairy 
shrimp critical habitat, such as protection afforded through the 
section 7(a)(2) consultation process, are minimal. Additionally, the 
benefits of inclusion are reduced because the educational and ancillary 
benefits of designating lands identified as critical habitat for 
Riverside fairy shrimp covered by the County of San Diego Subarea Plan 
would be negligible because the location of lands identified as 
critical habitat for Riverside fairy shrimp for this species within the 
County of San Diego and the importance of conserving such habitat are 
well known and are already addressed through CEQA and through 
implementation of the County of San Diego Subarea Plan.

Benefits of Exclusion--County of San Diego Subarea Plan Under the San 
Diego MSCP

    The benefits of excluding from designated critical habitat the 
approximately 23 ac (9 ha) of land within the County of San Diego 
Subarea Plan are significant. The benefits of excluding critical 
habitat covered by these plans include: (1) Continuance and 
strengthening of our effective working relationships with the County of 
San Diego and all MSCP jurisdictions and stakeholders to promote the 
conservation of the Riverside fairy shrimp and its habitat; (2) 
allowance for continued meaningful collaboration and cooperation in 
working toward recovering the Riverside fairy shrimp, including 
conservation benefits that might not otherwise occur; (3) encouragement 
of other jurisdictions with completed subarea plans under the MSCP to 
amend their plans to cover and benefit Riverside fairy shrimp and 
vernal pool habitat (such as the City of Poway Subarea Plan under the 
MSCP); (4) encouragement of other jurisdictions to complete subarea 
plans under the MSCP (including the City of Santee) to cover and 
benefit Riverside fairy shrimp and vernal pool habitat; (5) 
encouragement for the City of San Diego to complete its draft vernal 
pool management plan; and (6) encouragement of additional HCP and other 
conservation plan development in the future on other private lands that 
include Riverside fairy shrimp and other federally listed species.
    We have developed close partnerships with the County of San Diego, 
and several other stakeholders, and the protections and management 
provided for the Riverside fairy shrimp and its habitat are consistent 
with statutory mandates under section 7 of the Act to avoid destruction 
or adverse modification of critical habitat. Furthermore, this plan 
goes beyond the statutory mandate by requiring active management of the 
portion of Subunit 5d covered by the County of San Diego Subarea Plan 
and within the hardline reserves (6 ac (2 ha)). By excluding the 
approximately 23 ac (9 ha) of land covered by the County of San Diego 
Subarea Plan from critical habitat designation, we are eliminating a 
redundant layer of regulatory review for the approved Otay Ranch 
Specific Plan under the County of San Diego Subarea Plan and 
encouraging new voluntary partnerships with other landowners and 
jurisdictions to protect the Riverside fairy shrimp and other listed 
species. As discussed above, the prospect of potentially avoiding a 
future designation of critical habitat provides a meaningful incentive 
to plan proponents to extend protections to endangered and threatened 
species and their habitats under a habitat conservation plan. Achieving 
comprehensive landscape-level protection for listed species, 
particularly rare vernal pool species such as Riverside fairy shrimp 
through their inclusion in regional conservation plans, provides a key 
conservation benefit for such species. Our ongoing partnerships with 
the county of San Diego and the regional MSCP participants, and the 
landscape-level multiple species conservation planning efforts they 
promote, are essential to achieve long-term conservation of Riverside 
fairy shrimp.
    As noted in the Benefits of Exclusion--Orange County Southern 
Subregion HCP and Benefits of Exclusion--Western Riverside County

[[Page 72115]]

MSHCP sections above, some HCP permittees have expressed the view that 
critical habitat designation of lands covered by an HCP devalues the 
conservation efforts of plan proponents and the partnerships fostered 
through the development and implementation of the plans, and would 
discourage development of additional HCPs and other conservation plans 
in the future. Where an existing HCP provides protection for a species 
and its essential habitat within the plan area, the benefits of 
preserving existing partnerships by excluding the covered lands from 
critical habitat are most significant. Under these circumstances, 
excluding lands owned by or under the jurisdiction of the permittees of 
an HCP promotes positive working relationships and eliminates impacts 
to existing and future partnerships while encouraging development of 
additional HCPs for other species.
    Large-scale HCPs, such as the regional MSCP and County of San Diego 
Subarea Plan issued under its framework, take many years to develop, 
and foster a strategic, ecosystem-based approach to habitat 
conservation planning by addressing conservation issues through a 
coordinated approach. If, instead, local jurisdictions were to require 
landowners to individually obtain ITPs under section 10 of the Act, the 
conservation likely to result would be uncoordinated, patchy, and less 
likely to achieve listed species recovery as conservation measures 
would be determined on a project-by-project basis instead of on a 
comprehensive, landscape-level scale. To avoid that outcome, we are 
committed to fostering partnerships with local jurisdictions to 
encourage the development of regional HCPs that afford proactive 
landscape-level conservation for multiple species. We conclude that the 
exclusion from critical habitat designation of lands identified as 
critical habitat for the Riverside fairy shrimp in Subunit 5d within 
the County of San Diego Subarea Plan will result in significant 
partnership benefits that we conclude will result in greater protection 
for the Riverside fairy shrimp and its habitat and also other listed 
species and their habitats.

Benefits of Exclusion Outweigh the Benefits of Inclusion--County of San 
Diego Subarea Plan Under the San Diego MSCP

    We reviewed and evaluated the exclusion of approximately 23 ac (9 
ha) of land within the boundaries of the County of San Diego Subarea 
Plan from our revised designation of critical habitat, and we 
determined the benefits of excluding these lands outweigh the benefits 
of including them. The benefits of including these lands in the 
designation are reduced because the regulatory, educational, and 
ancillary benefits that would result from critical habitat designation 
are almost entirely redundant with the regulatory, educational, and 
ancillary benefits already afforded through the County of San Diego 
Subarea Plan and under State and Federal law. In contrast to the 
reduced benefits of inclusion, the benefits of excluding lands covered 
by the County of San Diego Subarea Plan from critical habitat 
designation are significant. Exclusion of these lands will help 
preserve the partnerships we developed with local jurisdictions and 
project proponents through the development and ongoing implementation 
of the MSCP and the County of San Diego Subarea Plan, and aid in 
fostering future partnerships for the benefit of listed species. Our 
partnership with the County of San Diego has already resulted in 
significant benefits to listed species and vernal pool habitat; based 
on this track record of success, we expect that this meaningful 
partnership will continue into the future.
    Designation of lands covered by the County of San Diego Subarea 
Plan may discourage other partners from seeking, amending, or 
completing subarea plans under the MSCP framework or from pursuing 
other HCPs that cover the Riverside fairy shrimp and other listed 
vernal pool species. Designation of critical habitat does not require 
that management or recovery actions take place on the lands included in 
the designation. The County of San Diego Subarea Plan will provide 
significant protection of the Riverside fairy shrimp and its habitat, 
and help achieve recovery of this species through habitat enhancement 
and restoration, functional connections to adjoining habitat, and 
species monitoring efforts. Additional HCPs or other species-habitat 
plans potentially fostered by this exclusion would also help to recover 
this and other federally listed species. Therefore, in consideration of 
the relevant impact to current and future partnerships, as summarized 
in the Benefits of Exclusion--County of San Diego Subarea Plan under 
the San Diego MSCP section above, we determine the significant benefits 
of exclusion outweigh the minor benefits of critical habitat 
designation.

Exclusion Will Not Result in Extinction of the Species--County of San 
Diego Subarea Plan Under the San Diego MSCP

    We determine that the exclusion of 23 ac (9 ha) of land in Subunit 
5d within the boundaries of the County of San Diego Subarea Plan from 
the designation of critical habitat for the Riverside fairy shrimp will 
not result in extinction of the species. Proposed actions that affect 
waters of the United States as defined under the CWA, which in many 
cases include vernal pools occupied by Riverside fairy shrimp, will 
continue to be subject consultation under section 7(a)(2) of the Act 
and to the duty to avoid jeopardy to the species. The protection 
provided by the County of San Diego Subarea Plan also provides 
assurances that this species will not go extinct as a result of 
excluding these lands from the critical habitat designation.
    Therefore, the Secretary is exercising his discretion to exclude 23 
ac (9 ha) of land within the boundaries of the County of San Diego 
Subarea Plan from this final critical habitat designation.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of revised critical habitat for Riverside fairy shrimp 
during two comment periods. The first comment period associated with 
the publication of the proposed rule (76 FR 31686) opened on June 1, 
2011, and closed on August 1, 2011. We also requested comments on the 
proposed critical habitat designation and associated DEA during a 
comment period that opened March 1, 2012, and closed on April 2, 2012 
(77 FR 12543). We published a notice of the proposed rulemaking in 
local newspapers on June 6, 2011. We did not receive any requests for a 
public hearing. We also contacted appropriate Federal, State, and local 
agencies; scientific organizations; and other interested parties and 
invited them to comment on the proposed rule and DEA during these 
comment periods.
    During the first comment period, we received five comment letters 
directly addressing the proposed critical habitat designation. During 
the second comment period, we received one comment letter addressing 
the proposed critical habitat designation or the DEA. All substantive 
information provided during the comment periods has either been 
incorporated directly into this final determination or is addressed 
below. Comments we received were grouped into two general issues 
specifically relating to the proposed critical habitat

[[Page 72116]]

designation for Riverside fairy shrimp, and are addressed in the 
following summary and incorporated into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from four species experts 
in invertebrate biology, freshwater crustaceans and fairy shrimp. These 
reviewers are also experts in vernal pool habitat in southern 
California, and conservation biology principles. We received responses 
from all four of the peer reviewers.
    We reviewed all peer reviewer comments for substantive issues and 
new information regarding critical habitat for Riverside fairy shrimp. 
In general, the peer reviewers welcomed the expanded critical habitat 
and the conservation of more pools, but disagreed with the exclusion of 
lands within HCPs and the exemption of military lands. The peer 
reviewers provided additional information on Riverside fairy shrimp 
ecology and vernal pool ecology, including information on climate 
change. The reviewers also provided clarification and suggestions to 
improve the final critical habitat rule. Peer reviewer comments are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Peer Reviewer Comments

Comments on Riverside Fairy Shrimp Biology
    (1) Comment: One peer reviewer agreed that maintaining natural 
levels of connectivity, which provide for gene flow, is important for 
the persistence of Riverside fairy shrimp, but noted that both 
unnaturally low and unnaturally high levels of connectivity are 
undesirable. The reviewer noted that unnaturally high levels of 
connectivity could result from recreational activities, such as bikers 
or OHVs, thus transferring Riverside fairy shrimp between distant pools 
and disrupting locally adapted populations.
    Our Response: We agree with the peer reviewer that both too little 
and too much connectivity, and thus gene flow, are undesirable. We 
acknowledge that humans can impact Riverside fairy shrimp genetic 
diversity through undesirable increases in gene flow, and that these 
artificial increases in gene flow can impact locally adapted genetic 
conditions and decrease the fitness of vernal pool populations.
    (2) Comment: Two peer reviewers appreciated the inclusion of a 
discussion about the importance of functional hydrology to the 
Riverside fairy shrimp and its habitat within the critical habitat unit 
descriptions and the PCEs. One reviewer noted that due to this 
complexity, management that addresses individual pools is not as likely 
to be as successful as management at the watershed level.
    Our Response: We appreciate the peer reviewers' critical review and 
agree that management at the watershed level is the most likely to be 
successful in the conservation and recovery of the Riverside fairy 
shrimp. We have considered functional hydrology in previous documents 
addressing Riverside fairy shrimp conservation. The 1998 Recovery Plan 
addressing vernal pool species, including Riverside fairy shrimp, takes 
into account the importance of functional hydrology to Riverside fairy 
shrimp and designates entire pool complexes rather than individual 
vernal pools (Service 1998a, pp. 38-39). This final revised critical 
habitat rule includes functional hydrology in PCE 2, which requires 
``intermixed wetland and upland habitats that function as the local 
watershed, including topographic features characterized by mounds, 
swales, and low-lying depressions within a matrix of upland habitat 
that result in intermittently flowing surface and subsurface water in 
swales, drainages, and pools described in PCE 1.''
    (3) Comment: One peer reviewer noted that, though our description 
of critical habitat states that units include vernal pool networks and 
watersheds, the maps within the proposed rule do not show those 
features. The peer reviewer recommended including those features in the 
maps so that their inclusion could be verified.
    Our Response: The printing standards of the Federal Register are 
not compatible with topographical maps or other detailed features that 
would show vernal pool networks and watersheds. However, the GIS files 
we used to delineate critical habitat are available by request from the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT). The shapefiles can be laid over other layers (aerial 
photography, roads) for users to view the vernal pool networks and 
watersheds.
    (4) Three peer reviewers had comments on genetic aspects of 
Riverside fairy shrimp ecology. The reviewers noted that genetic 
variation in Riverside fairy shrimp is lower than for other 
Streptocephalus species, and that untested pools may host unique 
genetic diversity. The reviewers concluded that maintaining genetic 
variation is important for the viability of the species, and that no 
genetic diversity is expendable.
    Our Response: We appreciate the peer reviewers' critical review, 
and agree that genetic diversity is crucial to the continued viability 
of the Riverside fairy shrimp. As described in our Criteria Used To 
Identify Critical Habitat section, genetic diversity was one of the 
main criteria used in creating critical habitat units. Our final 
critical habitat designation provides for the preservation of existing 
Riverside fairy shrimp genetic diversity across the range of the 
species and makes use of the best scientific and commercial data 
available.
    (5) Comment: One peer reviewer stated that the proposed rule 
overstated the longevity and durability of Riverside fairy shrimp 
cysts. The reviewer noted that cysts, particularly those that are 
salvaged from vernal pools and placed in storage, can be crushed or 
destroyed by disease.
    Our Response: We appreciate the peer reviewer's critical review. We 
did not intend for our text to imply that cysts were indestructible, 
and we agree with the peer reviewer that cysts can be vulnerable to 
factors such as crushing, disease, or aging.
    (6) Comment: One peer reviewer stated that the definition of 
haplotype given in the proposed rule is confusing, and that haplotype 
is better defined as ``a unique copy or form of a sequenced gene 
region.''
    Our Response: We appreciate the peer reviewer's critical review. We 
agree that this is a clearer definition, and have made use of it in 
this final rule.
    (7) Comment: Two commenters stated that many of the pools currently 
occupied were also occupied at the time of listing, and that the 
increase of known occupied pools was due to the increase of survey 
efforts rather than newly colonized pools.
    Our Response: We agree with the peer reviewers' assessment, and in 
the proposed revised rule published on June 1, 2011 (76 FR 31686), we 
proposed all but one subunit under section 3(5)(A)(i) of the Act. All 
of these subunits are within the known geographical area occupied by 
the species at the time of listing. However, because we lack definitive 
evidence of their occupancy at the time of listing, which under Otay 
Mesa could disqualify the areas from designation under section 
3(5)(A)(i) of the Act, we alternatively identify these areas as meeting 
the definition of critical habitat under section 3(5)(A)(ii) of the 
Act. We identify them as such to make clear that we consider these

[[Page 72117]]

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. As described in the 
Criteria Used to Identify Critical Habitat section above, a designation 
limited to areas known to be occupied at the time of listing would be 
inadequate to conserve the species. See the Criteria Used To Identify 
Critical Habitat section above for more information on our designation 
of critical habitat units, and see Table 3 for details of the units 
designated as final critical habitat or excluded under section 4(b)(2) 
of the Act.
    (8) Comment: One peer reviewer offered detailed feedback on 
scientific aspects of our Species Description, Habitat, Life History, 
and New Information Specific to Riverside Fairy Shrimp sections of the 
proposed rule. The suggested changes included aspects of vernal pool 
characteristics that support Riverside fairy shrimp, cyst bank 
dynamics, and vernal pool ecology specific to southern California.
    Our Response: We appreciate the peer reviewer's thorough review of 
our proposed revised critical habitat rule, and agree with all the 
suggested changes. However, as this final revised critical habitat rule 
does not include these sections, the suggested changes are not 
specifically reflected in this final revised critical habitat rule. We 
will, however, make use of the updated information in future actions 
related to the Riverside fairy shrimp.
    (9) Comment: One peer reviewer stated that our description of red-
color cercopods as useful to distinguish between other fairy shrimp in 
the genus Streptocephalus was misleading. The peer reviewer noted that, 
``While a red tail is a character not seen in other genera in the area, 
it is not a useful character in distinguishing among species within the 
genus Streptocephalus.''
    Our Response: The reference by Eng et al. that we quoted in the 
proposed rule (77 FR 31686) specifically states, ``both living male and 
female S. woottoni have the red color of the cercopods covering the 
ninth and 30-40 percent of the eighth abdominal segments. No red 
extends onto the abdominal segments in living S. seali of either sex'' 
(Eng et al. 1990, pp. 358-359). We had intended for our statement in 
the proposed rule to specifically refer to genera in the area, in 
which, as the peer reviewer notes, this is a useful distinguishing 
characteristic. However, we agree with the peer reviewer that the 
characteristic is not useful with other non-local Streptocephalus 
species, and we will be more specific when using this reference in the 
future.
    (10) Comment: One reviewer suggested that the Service should 
conduct a long-term viability analysis of the Riverside fairy shrimp 
that incorporates GIS modeling, field studies, and species 
requirements.
    Our Response: We thank the peer reviewer for the suggestion and 
will consider it in our next 5-year review and future recovery planning 
efforts for the Riverside fairy shrimp.
    (11) Comment: One peer reviewer requested that we consider the 
ecosystem supporting Riverside fairy shrimp in our future actions 
regarding the species. The reviewer noted that the Riverside fairy 
shrimp is part of a complex food web, not all of which is considered in 
actions that address Riverside fairy shrimp conservation.
    Our Response: We concur with the peer reviewer that it is crucial 
to consider the entire vernal pool ecosystem in conserving Riverside 
fairy shrimp. However, we did not explicitly focus on an ecosystem 
approach in this final revised critical habitat rule. A critical 
habitat designation is a regulatory action that identifies specific 
areas within the geographical area occupied by the species at the time 
of listing on which are found those physical or biological features 
that are essential to the conservation of the species and that may 
require special management considerations or protection, and areas 
outside the geographical area occupied at the time of listing that are 
determined to be essential for the conservation of the species. In the 
1998 Vernal Pool Recovery Plan, we took an ecosystem-centered approach 
to the conservation of Riverside fairy shrimp. A recovery plan (and the 
associated recovery goals and objectives) is a guidance document 
developed in cooperation with partners, which provides a roadmap with 
detailed site-specific management actions to help conserve listed 
species and their ecosystems. We will continue to consider the entire 
vernal pool ecosystem in developing future recovery actions for the 
Riverside fairy shrimp and recommendations in future 5-year reviews.
    (12) Comment: One peer reviewer noted that we had incorrectly cited 
a reference by Parsick (2002). The reviewer noted that Parsick analyzed 
the gut contents of San Diego fairy shrimp, not Riverside fairy shrimp.
    Our Response: We appreciate the peer reviewer's critical review. We 
have reworded the sentence containing that reference to make clear that 
Parsick did not analyze the gut contents of Riverside fairy shrimp.
Comments on Critical Habitat, Exclusions, and Exemptions
    (13) Comment: All four reviewers stressed the importance of 
maximizing critical habitat. The commenters reasoned that all suitable 
and potentially suitable habitat would be needed as critical habitat to 
fully recover the species. The commenters also reasoned that 
classifying all suitable areas as critical habitat would counter 
threats based on: (1) Limited habitat requirements; (2) low genetic 
variability; (3) previous population declines; and (4) stochastic or 
chance catastrophic events.
    Our Response: We appreciate the peer reviewers' concern for the 
recovery of the Riverside fairy shrimp. Based on the best available 
scientific information, we have identified all habitat areas that we 
are able to determine meet the definition of critical habitat at this 
time. We have excluded certain areas covered by the Orange County 
Central-Coastal NCCP/HCP, the Orange County Southern Subregion HCP, the 
Western Riverside County MSHCP, City of Carlsbad HMP under the San 
Diego MHCP, County of San Diego Subarea Plan under the MSCP, and lands 
owned by DHS, where we have determined that the benefits of exclusion 
outweighs the benefits of inclusion within the critical habitat 
designation (see the Exclusions section above). In the case of each of 
the HCP exclusions, we concluded that the plan provides protection for 
the Riverside fairy shrimp and its habitat that contains the physical 
or biological features essential to the conservation of the species. In 
the case of the DHS exclusion, we excluded lands based on national 
security concerns. As required by section 4(a)(3)(B)(i) of the Act, we 
have also exempted certain military lands from critical habitat that 
are covered by approved INRMPs that provide a benefit to Riverside 
fairy shrimp (see the Application of Section 4(a)(3) of the Act section 
above). Nevertheless, our final critical habitat designation still 
includes a wide variety of vernal pool habitat. With the inclusion of 
diverse vernal pool habitat types across the range of the species, our 
critical habitat designation addresses the threats outlined by the 
reviewers. The designation addresses these threats through inclusion of 
a variety of vernal pool habitat types, which assists the species in 
buffering against catastrophic events, and through inclusion of lesser 
known occupied areas to target preservation for declining populations

[[Page 72118]]

and areas with unique genetic variability.
    We recognize that the designation of critical habitat may not 
include all of the habitat that may eventually be determined to be 
necessary for the recovery of the Riverside fairy shrimp. Critical 
habitat designations do not signal that habitat outside the designation 
is unimportant or may not contribute to recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions implemented under section 7(a)(1) of the Act and 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the prohibitions of section 9 of the Act, if actions 
occurring in these areas may affect the Riverside fairy shrimp. These 
protections and conservation tools will continue to contribute to 
recovery of this species.
    (14) Comment: Two peer reviewers recommended designating both a 
wide variety of types of vernal pool habitats and upland habitat 
surrounding vernal pools. The reviewers suggested that preserving a 
diverse range of habitats could help to buffer the Riverside fairy 
shrimp against the possible unknown future changes due to climate 
change. One reviewer added that maintaining vernal pools with 
connectivity in natural watersheds could help Riverside fairy shrimp 
survive better than if they were in isolated pools. One reviewer also 
noted that preserving upland habitat as critical habitat could alter 
the water chemistry and ponding depth in pools that currently possess 
the features that support the Riverside fairy shrimp.
    Our Response: We fully agree with the peer reviewers that it is 
essential to preserve a diverse array of vernal pool habitat. As we 
stated in our Criteria Used To Identify Critical Habitat section above, 
by protecting a variety of habitats throughout the species' current and 
historical range, we increase the probability that the species can 
adjust in the future to various limiting factors that may affect the 
population. Preserving this wide array of habitat types will also help 
to buffer against the uncertain and complex future effects of climate 
change. We also concur that preserving upland habitat is necessary to 
preserve the functional hydrology that supports Riverside fairy shrimp. 
This idea is reflected in PCE 2 for Riverside fairy shrimp critical 
habitat, which requires a mixture of ephemeral and wetland habitats as 
necessary to support the Riverside fairy shrimp. We conclude that PCE 2 
and our criteria used to identify critical habitat have resulted in the 
designation of a diverse array of vernal pool habitat (see unit 
descriptions in the Final Critical Habitat Designation section above 
for further description of the types of vernal pool habitat that are 
designated as critical habitat).
    We also agree that it is important to preserve upland habitat and 
watersheds associated with vernal pool complexes, and that the loss of 
those features could detrimentally alter water chemistry and ponding 
depth. In PCE 2, we require ``intermixed wetland and upland habitats 
that function as the local watershed, including topographic features 
characterized by mounds, swales, and low-lying depressions within a 
matrix of upland habitat that result in intermittently flowing surface 
and subsurface water in swales, drainages, and pools described in PCE 
1.'' We conclude that, with the PCEs, we have preserved upland habitat 
and watersheds associated with vernal pools that support the physical 
or biological features necessary for the conservation of the Riverside 
fairy shrimp.
    (15) Comment: Three peer reviewers expressed strong concern about 
exemption of military lands from the final critical habitat 
designation. One of the three peer reviewers listed several specific 
concerns with base activities affecting Riverside fairy shrimp: (1) 
OHVs frequently impact vernal pools, pulverize cysts, and allow 
invasion of nonnative species; (2) large numbers of pools are slated to 
be developed for reasons not having to do with national security; (3) 
military staff are not taking the requirement for management seriously; 
and (4) there are too many populations on military property to warrant 
exemption from critical habitat. The peer reviewer concluded that, with 
the amount of area excluded, continued military activities could 
potentially jeopardize the continued existence of the Riverside fairy 
shrimp.
    Our Response: We appreciate the peer reviewers' concerns about the 
ongoing conservation of the Riverside fairy shrimp. In our analysis of 
the INRMPs provided by MCB Camp Pendleton and MCAS Miramar, we found 
that these plans provide considerable conservation benefits to the 
Riverside fairy shrimp and its habitat. These conservation measures are 
typically not addressed through a critical habitat designation, which 
is a statutory prohibition on destruction or adverse modification of 
critical habitat.
    Section 4(a)(3)(B)(i) of the Act describes exemptions from critical 
habitat that apply to DOD land. The Secretary has determined that the 
INRMPs for MCB Camp Pendleton and MCAS Miramar provide a benefit to the 
Riverside fairy shrimp, and that the lands they cover are therefore 
exempt from critical habitat designation. More detail on our rationale 
is presented in the Application of Section 4(a)(3) of the Act section 
above.
    We respectfully disagree with the peer reviewer that staff at MCB 
Camp Pendleton do not take their requirement for management seriously. 
MCB Camp Pendleton consults with the Service for all impacts to vernal 
pool habitat, including unplanned impacts sustained during training 
activities. In the case of any unplanned impacts, MCB Camp Pendleton 
consults with us retroactively on those impacts and works to minimize 
future impacts to vernal pool habitat. In regard to the commenter's 
assertion that pools are planned for development for reasons other than 
national security, the Service continues to review all project 
proposals through the section 7 process, and will ensure that all 
development carried out does not jeopardize the continued existence of 
the Riverside fairy shrimp.
    We also disagree that exempting these areas from critical habitat 
will jeopardize the continued existence of the Riverside fairy shrimp. 
Sections 4(a)(3)(B)(ii) and (iii) of the Act note that agencies granted 
an exemption must still consult under section 7(a)(2) of the Act, and 
that the DOD must comply with section 9, ``including the prohibition 
preventing extinction and taking of endangered species and threatened 
species.'' Thus, although military bases can be exempt from critical 
habitat, the Act has mechanisms in place to prevent extinction. 
Therefore, we find that exempting military lands at MCB Camp Pendleton 
and MCAS Miramar under section 4(a)(3)(B)(i) of the Act is justified.
    (16) Comment: Two peer reviewers expressed the belief that lands 
covered by HCPs should not be excluded from critical habitat because 
HCPs do not offer the same levels of protection as critical habitat.
    Our Response: Critical habitat designation and HCPs offer distinct 
benefits to species. The primary benefit of a critical habitat 
designation derives from the requirement under section 7(a)(2) of the 
Act that Federal agencies consult with the Service to insure that any 
action authorized, funded, or carried out by such agencies does not 
destroy or adversely modify critical habitat. Thus, critical habitat 
designation precludes Federal action if it will destroy or adversely 
modify critical habitat, but designation does not require any 
affirmative action on a Federal agency's part to protect, enhance, or 
manage critical habitat. On the other hand, HCPs typically offer

[[Page 72119]]

landscape-level conservation, monitoring, and management of covered 
species' habitat. The Orange County Central-Coastal NCCP/HCP, Orange 
County Southern Subregion HCP, Western Riverside County MSHCP, Carlsbad 
HMP under the San Diego MHCP, and County of San Diego Subarea Plan 
under the MSCP all provide ongoing protection for the Riverside fairy 
shrimp and its habitat that will benefit the long-term conservation of 
the species, as well as providing strong partnerships to promote future 
conservation of the Riverside fairy shrimp and vernal pool habitat.
    Based on the benefits to the Riverside fairy shrimp and its habitat 
that are provided by these habitat conservation plans, we chose to 
conduct exclusion analyses to compare the benefits of excluding areas 
covered by these existing conservation plans with the benefits of 
including those areas within this final revised critical habitat 
designation. We note that a decision to exclude an area is not based on 
the difference between the protection provided by critical habitat 
designation and an HCP, but takes into account the redundancy of 
protections provided by an HCP with those provided by critical habitat 
designation. Conservation benefits provided by an existing HCP are not 
considered a benefit of exclusion because they would remain in place 
regardless of critical habitat designation; however, the conservation 
provided under an HCP does minimize the benefits of inclusion to the 
extent that the protection that would result from critical habitat 
designation is redundant with the protection already provided under an 
HCP. In the case of the identified HCPs, we concluded that the 
protection for habitat containing physical or biological features 
essential to the conservation of the Riverside fairy shrimp that is 
likely to result from designation of lands covered by the HCPs is 
almost entirely redundant with the protection for such habitat provided 
by the HCPs, thus minimizing the conservation benefit of designation.
    In the case of the HCPs discussed above, we also weighed other 
benefits of designation against the potential negative effects of 
designating areas covered by the HCPs on future partnerships and the 
development of new HCPs. We concluded that designating critical habitat 
within these HCPs could have a detrimental effect on our conservation 
partnerships (see the Benefits of Exclusion sections above). Weighing 
the significant conservation benefits of excluding lands identified as 
critical habitat for the Riverside fairy shrimp that are covered by the 
Orange County Central-Coastal NCCP/HCP, Orange County Southern 
Subregion HCP, Western Riverside County MSHCP, Carlsbad HMP under the 
San Diego MHCP, and County of San Diego Subarea Plan under the MSCP 
against the minimal and largely redundant benefits of designating such 
habitat, we determined that the benefits of exclusion outweigh the 
benefits of inclusion. The Secretary is therefore exercising his 
discretion to exclude lands identified as critical habitat for the 
Riverside fairy shrimp that are covered by these HCPs (see Table 5).
    (17) Comment: One peer reviewer disagreed with the exclusions we 
were considering as described in the proposed revised critical habitat 
rule. The reviewer stated that all conservation plans (HCPs) should be 
critically analyzed before deciding to exclude lands within their 
boundaries. The commenter cited as an example the new vernal pool plan 
being developed by the City of San Diego due to the original plan being 
struck down by the courts.
    Our Response: Our decision to exclude areas from critical habitat 
does not take place in the proposed rule, but in the final rule. 
Section 4(b)(2) of the Act authorizes the Secretary to designate 
critical habitat after taking into consideration the economic impacts, 
national security impacts, and any other relevant impacts of specifying 
any particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of designating a particular area as critical 
habitat, unless the failure to designate will result in the extinction 
of the species. Before we made the decision to exclude any area from 
critical habitat, we carefully weighed the benefits of exclusion of an 
area from critical habitat versus the benefits of inclusion of an area 
in critical habitat. As described in comment (16), we concluded that 
the benefits of exclusion outweigh the benefits of inclusion for the 
Orange County Central-Coastal NCCP/HCP, Orange County Southern 
Subregion HCP, Western Riverside County MSHCP, Carlsbad HMP under the 
San Diego MHCP, and County of San Diego Subarea Plan under the MSCP. We 
conclude that the exclusions made in this final rule are legally 
supported under section 4(b)(2) of the Act and scientifically 
justified. Our detailed rationale for our decision is provided in the 
Land and Resource Management Plans, Conservation Plans, or Agreements 
Based on Conservation Partnerships section above.

Comments From Federal Agencies

    (18) Comment: A representative from the U.S. Marine Corps noted 
that we had incorrectly identified the pool on MCAS Miramar that 
supports the Riverside fairy shrimp as the ``AA 1-7, 9-13 East Miramar 
(Pool 10) (AA1 East),'' and that the pool is more appropriately 
identified as ``East Miramar (AA1 South+ Group)(Pool 4786; previously 
Pool 12).''
    Our Response: We appreciate the commenter's feedback, and we have 
made the appropriate changes throughout this rule.
    (19) Comment: A commenter emphasized that the basin supporting the 
Riverside fairy shrimp on MCAS Miramar is not a naturally occurring 
vernal pool, but one ``created by construction of an earthen dam across 
a small ephemeral streambed, and associated excavations, many decades 
in the past,'' and that naturally occurring vernal pools on MCAS 
Miramar do not hold water long enough to support the Riverside fairy 
shrimp.
    Our Response: We acknowledge that the vernal pool on MCAS Miramar 
that supports the Riverside fairy shrimp was created by construction 
activities many decades ago. However, we still believe that the pool 
contains the physical or biological features essential to the 
conservation of Riverside fairy shrimp. While we believe that this area 
contains the physical or biological features essential to the 
conservation of the species, we have also determined that it is exempt 
from critical habitat under section 4(a)(3)(B)(i) of the Act because 
the INRMP at MCAS Miramar provides conservation benefits to the 
species.
    (20) Comment: The commenter agreed with the Service's exemptions of 
lands under the management of MCAS Miramar and MCB Camp Pendleton, and 
reiterated that the INRMPs at both stations provide for conservation 
and management of Riverside fairy shrimp habitat.
    Our Response: We concur that the INRMPs at MCB Camp Pendleton and 
MCAS Miramar continue to provide conservation benefits to the species 
and its habitat. Details of our rationale to exempt MCB Camp Pendleton 
and MCAS Miramar from critical habitat are given in the Exemptions 
section above. We look forward to working with the Marine Corps to 
further conservation and management of the Riverside fairy shrimp and 
other listed and sensitive species.
    (21) Comment: The commenter concurred with the Service's assessment 
that the San Mateo and Wire Mountain areas on MCB Camp Pendleton no

[[Page 72120]]

longer meet the definition of critical habitat. The commenter asserted 
that staff at the Base will continue to work with the Service on 
Riverside fairy shrimp conservation.
    Our Response: We appreciate the Marine Corps' continued efforts to 
conserve the Riverside fairy shrimp and its habitat.
    (22) Comment: The DHS has requested exclusion for national security 
reasons of lands owned by DHS on which activities related to the 
operation and maintenance of the Border Infrastructure System are 
carried out. These lands are composed of all of Subunit 5(b) ((29 ac) 
(12 ha)) and a portion of Subunit 5h ((11 ac) (4 ha)). The Department 
states that the lands should be excluded because: (1) The same areas 
were excluded in the previous 2005 critical habitat rule; (2) though 
the situation at the border has changed since the 2005 rule, there are 
still ongoing activities that relate to national security interests; 
and (3) all areas are either already disturbed, do not contain the 
PCEs, or have been set aside for conservation.
    Our Response: We appreciate the commenter's information regarding 
ongoing national security issues. As described in our response to 
comment (17), section 4(b)(2) of the Act authorizes the Secretary to 
designate critical habitat after taking into consideration the economic 
impacts, national security impacts, and any other relevant impacts of 
specifying any particular area as critical habitat. Before we make the 
decision to exclude any area from critical habitat, we carefully weigh 
the benefits of exclusion of an area from critical habitat versus the 
benefits of inclusion of the area in critical habitat. As described in 
our ``Exclusions Based on National Security Impacts'' section above, we 
have determined that the benefits of excluding the DHS owned lands 
outweigh the benefits of inclusion, and that such exclusion will not 
result in extinction of the species. Based on that discussion, the 
Secretary is exercising his discretion to exclude all lands owned by 
DHS. We believe that this exclusion is consistent with the analysis in 
our 2005 final revised critical habitat rule (70 FR 19154; April 12, 
2005).
    We respectfully disagree with the commenter that the DHS lands 
identified as essential do not contain the PCEs. In an earlier proposed 
revised critical habitat rule published on April 27, 2004 (69 FR 
23024), we did identify some lands as critical habitat that we 
subsequently removed in the final revised rule (70 FR 19154; April 12, 
2005) due to lack of PCEs from construction of the BIS. The removed 
areas were not included in our 2011 proposed critical habitat 
designation, because they do not contain the PCEs. As described under 
Criteria Used to Identify Critical Habitat section above, we carefully 
assessed all areas occupied by Riverside fairy shrimp, and only 
proposed those areas as critical habitat that contain the PCEs. We do 
acknowledge that all lands in Subunit 5b (29 ac (12 ha)) have been set 
aside for conservation, and took that factor into consideration in our 
exclusion analysis.
    (23) Comment: The commenter requested that we more clearly define 
the role of DHS. The commenter suggested adding the language, ``U.S. 
Customs and Border Protection is tasked with maintaining National 
Security interests along the nation's international borders. As such, 
CBP activities may qualify for exclusions under section 4(b)(2) of the 
act.''
    Our Response: We acknowledge the important role of U.S. Customs and 
Border Protection in protecting our nation's international borders, 
including operation and maintenance of the BIS in the Exclusions Based 
on National Security Impact section above.
    (24) Comment: The commenter requested an explanation of how road 
maintenance could impact the Riverside fairy shrimp. The commenter 
stated that we had not provided further information on how road 
maintenance could impact Riverside fairy shrimp critical habitat, and 
stated that if there was no such information, we should replace the 
term ``maintenance'' with ``widening or construction of roadways.''
    Our Response: Ongoing road maintenance may impact Riverside fairy 
shrimp habitat. These activities could potentially adversely affect the 
habitat and physical or biological features essential to the Riverside 
fairy shrimp by damaging, disturbing, and altering soil composition 
through direct impacts, increased erosion, and increased nutrient 
content (PCEs 1d, 3). Additionally, road maintenance may lead to runoff 
that could alter the water quality and natural hydrology of vernal 
pools through changes in pool characteristics (Rodgers 2000, pp. 247-
248), including interfering with ponding depths and duration necessary 
to support the Riverside fairy shrimp. Therefore, we consider road 
maintenance as an activity that may adversely affect or modify critical 
habitat. In order to make our definition of road maintenance more 
clear, we have added clarification of road maintenance activities that 
could adversely affect critical habitat to include road construction, 
widening, and grading in the Application of the ``Adverse 
Modification'' Standard section above.
    (25) Comment: The commenter requested that we provide a clearer 
definition for OHV, and asked if it was synonymous with off-road 
vehicle. The commenter also stated that the use of the term ``roads'' 
seemed to apply to paved highways in some cases and unpaved roads in 
others. The commenter requested we clarify these terms, particularly as 
off-road impacts could have a significant effect on DHS border patrol 
operations, and requested that the term ``roads'' should include all 
roads, and not just paved roads.
    Our Response: We intended the term ``off-highway vehicle'' to refer 
to any and all vehicles capable of travelling on dirt roads or across 
the countryside; this may include trucks or non-motorized vehicles not 
able to use highways. We have changed all instances off ``off-road 
vehicle'' to OHV in order to avoid confusion.
    In reference to the commenter's question about roads, the term 
``roads'' refers to all roads, including both paved roads and unpaved 
dirt roads.

Comments from Local Agencies

    (26) Comment: One commenter stated that lands covered by the Orange 
County Southern Subregion HCP should be excluded from critical habitat 
because: (1) The plan is complete and provides a conservation benefit 
to the species; (2) the plan provides assurances that the conservation 
strategies and actions will be implemented and effective; (3) the 
Service has stated its intention to exclude habitat within this plan 
area from any revision to an existing critical habitat designation as 
long as the Conservation Strategy is being properly implemented; and 
(4) designation of critical habitat within Subarea 1 will not provide 
educational benefits or improve CEQA review of local projects.
    Our Response: The Secretary may exercise his discretion to exclude 
an area from critical habitat designation under section 4(b)(2) of the 
Act if he concludes that the benefits of excluding the area outweigh 
the benefits of its designation. Areas are not excluded based solely on 
the existence of management plans or other conservation measures; 
however, we acknowledge that the existence of a plan may reduce the 
benefits of inclusion of an area from critical habitat designation to 
the extent that the protections provided under the plan are redundant 
with conservation benefits of the critical habitat

[[Page 72121]]

designation. Thus, in some cases, the benefits of exclusion in the form 
of sustaining and encouraging partnerships that result in on-the-ground 
conservation of listed species may outweigh the incremental benefits of 
inclusion. We have weighed the benefits of exclusion against the 
benefits of inclusion for lands covered by the Orange County Southern 
Subregion HCP, and the Secretary is exercising his discretion to 
exclude all lands within the boundaries of the Orange County Southern 
Subregion HCP from this final critical habitat designation.
    In regard to the commenter's point about educational benefits and 
impacts of critical habitat on CEQA analysis, we agree that negligible 
educational benefits would be realized by the designation of critical 
habitat. We also agree that review of development proposals affecting 
lands identified as critical habitat for the Riverside fairy shrimp 
under CEQA by Orange County already takes into account the importance 
of this habitat to the species and the protections required for the 
species and its habitat under the Subarea plan. Details of our 
rationale are given in our discussion of the Orange County Southern 
Subregion HCP under Land and Resource Management Plans, Conservation 
Plans, or Agreements Based on Conservation Partnerships above.
    (27) Comment: One commenter believed that all lands covered by the 
Western Riverside County MSHCP should be excluded from critical 
habitat. The commenter stated that: (1) The Service has previously 
found the Western Riverside County MSHCP sufficient for the 
conservation and recovery of the Riverside fairy shrimp; (2) the 
Western Riverside County MSHCP contains a plan to conserve and manage 
the Riverside fairy shrimp that is currently being implemented; and (3) 
excluding lands covered by the Western Riverside County MSHCP from 
critical habitat fosters important conservation partnerships with local 
agencies.
    Our Response: As we stated in comment 26 above, the Secretary can 
exercise his discretion to exclude an area from critical habitat under 
section 4(b)(2) of the Act if we conclude that the benefits of 
exclusion of the area outweigh the benefits of its inclusion. In this 
case, the Secretary's decision to exclude is consistent with previous 
critical habitat rules; however, the decision to exclude is not based 
on previous rulemakings, but on the exclusion analysis within this 
final revised critical habitat rule.
    In regard to the commenter's point about the existing conservation 
and management plan, we reiterate that areas are not excluded based 
solely on the existence of management plans or other conservation 
measures; however, we acknowledge that the existence of a plan may 
reduce the benefits of inclusion of an area from critical habitat to 
the extent that the protections provided under the plan are redundant 
with conservation benefits of the critical habitat designation. Thus, 
in some cases the benefits of exclusion in the form of sustaining and 
encouraging partnerships that result in on-the-ground conservation of 
listed species may outweigh the incremental benefits of inclusion. In 
this case, we agree with the commenter that excluding areas covered by 
the Western Riverside County MSHCP will foster our partnership. We have 
weighed the benefits of exclusion against the benefits of inclusions 
for lands covered by the Western Riverside County MSHCP, and based on 
the discussion of the Western Riverside County MSHCP under Land and 
Resource Management Plans, Conservation Plans, or Agreements Based on 
Conservation Partnerships, the Secretary is exercising his discretion 
to exclude all lands within the boundaries of the Western Riverside 
County MSHCP from this final critical habitat designation.
    (28) Comment: One commenter believed that lands from the Western 
Riverside County MSHCP should be excluded because the exclusion would 
be consistent with the Service's previous exclusions of land within the 
Western Riverside County MSHCP, including in the 2005 final revised 
critical habitat designation for Riverside fairy shrimp. The commenter 
stated that a different determination in this rule would violate the 
Act and regulations at 50 CFR 424.12(g) because conditions have not 
changed since the 2005 revised designation. Furthermore, the commenter 
stated that a designation of critical habitat is required only to the 
``maximum extent prudent and determinable'' (based on regulations at 50 
CFR 424.12(a)(1)), but would not be prudent when such designation is 
not beneficial to the species.
    Our Response: Section 4(b)(2) of the Act requires us to make 
critical habitat determinations on the basis of the best available 
scientific data at the time the designation is made. Therefore, 
critical habitat determinations are made based on individual species 
biology and an individual weighing analysis, not on decisions made in 
previous critical habitat rules. Additionally, we do not agree that 
designating critical habitat would violate regulations at 50 CFR 
424.12(g). The regulations state that ``Existing critical habitat may 
be revised according to procedures in this section as new data become 
available to the Secretary.'' As described in our Criteria Used to 
Identify Critical Habitat section above, in determining which areas 
meet the definition of critical habitat, we considered information 
including new survey reports; CDFG's CNDDB records; published peer-
reviewed articles; unpublished papers and reports; and GIS data (such 
as species occurrences, soil data, land use, topography, and ownership 
maps), some of which has been published since the 2005 revised critical 
habitat designation. We also disagree with the commenter's assertion 
that designation of critical habitat for the Riverside fairy shrimp 
would not be beneficial.
    However, as described in our discussion of the Western Riverside 
MSHCP under Land and Resource Management Plans, Conservation Plans, or 
Agreements Based on Conservation Partnerships and in the response to 
comment 27 above, we have determined that the benefits of excluding 
lands covered by the Western Riverside County MSHCP outweigh the 
benefits of including such lands. Therefore, we are excluding all lands 
within the boundaries of the Western Riverside County MSHCP from this 
final critical habitat designation.

Public Comments

    (29) Comment: One commenter stated that Subunit 5c should not be 
designated as critical habitat because the Service lacks surveys 
proving occupancy of the subunit at the time of listing. The commenter 
concluded that the Service had not used the best available scientific 
information in making this decision.
    Our Response: As required by section 4(b)(1)(A) of the Act, we used 
the best scientific and commercial data available to define areas that 
contain the physical or biological features necessary for the 
conservation of the Riverside fairy shrimp. As with many species, 
listing often results in greater efforts to conduct surveys, which may 
reveal a greater number of occurrences than were initially known. We 
determine that many additional occurrences, including Subunit 5c, were 
occupied at the time of listing but had not been identified due to lack 
of survey effort. We find occurrences documented since the 1993 listing 
do not represent an expansion of the species' distribution and range 
into previously unoccupied areas, but rather a better understanding of 
the historical distribution and range of the species (Service 2008, p. 
9).

[[Page 72122]]

    Because occurrences documented since listing are within relative 
proximity to existing, occupied, vernal pool habitat or within similar 
landscape types (for example, coastal terraces and mesas, inland 
valleys, inland mesas, and cismontane depressions) supporting ephemeral 
wetlands with occurrences that were known at the time of listing, it is 
reasonable to conclude, based on several life-history traits, that the 
Riverside fairy shrimp was present at the time of listing in these 
unsurveyed habitats. This subunit is known to be currently occupied; 
dry season surveys in 2011 by Busby Biological Services documented the 
presence of Riverside fairy shrimp cysts (Busby Biological Services 
2011, Attachment 3). This subunit was first documented as occupied in 
2000 (GIS ID 4). Subunit 5c contained the physical or biological 
features essential to the conservation of the species and the features 
known to support life-history characteristics of the Riverside fairy 
shrimp at the time of listing. Therefore, for the aforementioned 
reasons, although not ``documented'' to have been occupied at listing, 
we conclude this subunit was occupied at the time of listing, and that 
this rationale makes use of the best scientific and commercial 
information available.
    Regardless, as stated in our March 1, 2012, publication (77 FR 
12543), and in this final revised critical habitat rule, we are 
alternatively designating Subunit 5c under section 3(5)(A)(ii) of the 
Act because we consider this unit essential for the conservation of the 
Riverside fairy shrimp regardless of its occupancy status at listing, 
and conclude that a designation limited to areas known to be occupied 
at the time of listing would be inadequate to ensure the conservation 
of the species. We conclude that this approach also makes use of the 
best scientific and commercial information available.
    (30) Comment: The commenter further stated that Subunit 5c does not 
contain the physical or biological features essential to the 
conservation of the Riverside fairy shrimp, and that it therefore does 
not meet the definition of critical habitat. The commenter stated that 
the pool is heavily disturbed by OHVs and cattle grazing, and that only 
a few surveys since the time of listing have detected the presence of 
Riverside fairy shrimp. The commenter added that in most years, the 
vernal pool does not hold water long enough to allow Riverside fairy 
shrimp to mature. The commenter stated that the infrequent presence of 
Riverside fairy shrimp may be due to transfer by human and animal 
traffic.
    Our Response: As discussed in comment 29, the lack of surveys 
confirming Riverside fairy shrimp in a given year does not mean that a 
pool is not occupied. Cysts of Riverside fairy shrimp can persist--and 
be present--in the soil bank for many years before hatching. When 
mature, cysts can survive environmental conditions such as temperature 
extremes, the digestive tracts of animals, and years of desiccation, 
and still hatch under the appropriate environmental conditions (Pennak 
1989, pp. 352-353; Fryer 1996, pp. 1-14; Eriksen and Belk 1999, p. 22). 
Indeed, as only small percentages of Riverside fairy shrimp cysts hatch 
in any given year, if the pool dries before the species is able to 
mature and reproduce, there are still many more cysts left in the soil 
that may hatch the next time the pool fills (Simovich and Hathaway 
1997, p. 42). Even if the pool does not fill every year, the pool will 
still support Riverside fairy shrimp, and such infrequent fillings are 
a natural feature of the species' habitat (see PCE 1c) (Eriksen and 
Belk 1999, p. 105; Ripley et al. 2004, pp. 221-223). Cysts of other 
vernal pool fairy shrimp have been known to persist for up to 8 years 
in vernal pool soils, although anecdotal evidence states that cysts can 
persist even longer (Belk 1998, Table 1). Therefore, the presence of 
cysts in scattered years is typical of the life-history characteristics 
of the Riverside fairy shrimp.
    We agree with the commenter that Riverside fairy shrimp are 
sometimes transferred by frequent vehicle use (Navy 2001, 2002, 
entire). However, Subunit 5c contains the physical or biological 
features essential to the conservation of the species including 
ephemeral wetland habitat (PCE 1), intermixed wetland and upland 
habitats that act as the local watershed (PCE 2), and topography and 
soils that support ponding during winter and spring months (PCE 3). As 
discussed in the Criteria Used to Identify Critical Habitat section 
above, the presence of these features, which currently support 
Riverside fairy shrimp in Subunit 5c, in combination with the life-
history characteristics of Riverside fairy shrimp, render it likely 
that this subunit was occupied at the time of listing. Dry season 
surveys in 2011 confirmed the presence of Riverside fairy shrimp cysts 
in Subunit 5c (Busby Biological Surveys 2011). Subunit 5c is occupied 
irrespective of whether the cysts naturally occur in this area or if 
they arrived through OHV activity. Notwithstanding our conclusion that 
Subunit 5c meets the definition of critical habitat under section 
3(5)(A)(i), we are alternatively designating this subunit under section 
3(5)(A)(ii) because the area is essential for the conservation of the 
Riverside fairy shrimp regardless of its occupancy status at listing. 
See discussion in Unit 5: San Diego Southern Coastal Mesas and, 
specifically, the discussion in ``Subunit 5c: East Otay Mesa'' under 
Final Designation of Critical Habitat. We conclude that a designation 
limited to areas documented to be occupied at the time of listing would 
be inadequate to ensure the conservation of the species.
    (31) Comment: One commenter questioned the amount of habitat 
designated for the Riverside fairy shrimp in Subunit 5c. The commenter 
stated that the pond is the only basin that could support the Riverside 
fairy shrimp in Subunit 5c, and it is not connected to any other vernal 
pool complexes in the area. The commenter also questioned how an 
artificial pond could be considered essential habitat and stated that 
it does not meet the definition of critical habitat.
    Our Response: In drawing critical habitat units, we relied on the 
best available scientific information to define areas that contain the 
physical or biological features essential to the conservation of the 
Riverside fairy shrimp. We relied on survey reports, information from 
the CNDDB, and GIS mapping data, including topographical maps and 
aerial photographs.
    We agree that not all portions of Subunit 5c are made up of vernal 
pool basins. Vernal pool basins are not the only PCE identified for the 
Riverside fairy shrimp. As described in our Criteria Used to Identify 
Critical Habitat section above, and in our response to Comments 2 and 
14 above, Riverside fairy shrimp require intermixed wetland and upland 
habitats that function as the local watershed, including topographic 
features characterized by mounds, swales, and low-lying depressions. In 
the case of Subunit 5c, the subunit boundary captures a small stream as 
well as the downward slope and mima mound topography that make up the 
watershed associated with the occupied vernal pool (PCE 2). Subunit 5c 
contains the physical or biological features essential to conserve the 
Riverside fairy shrimp (see ``Subunit 5c: East Otay Mesa'' for more 
information), and this subunit is itself essential to the conservation 
of the species.
    In regard to the commenter's assertion that a created pond could 
not provide the physical or biological features essential to the 
conservation of the species, as discussed in the Primary Constituent 
Elements for Riverside Fairy

[[Page 72123]]

Shrimp section above, multiple scientists have documented that both 
natural and created ponds can function as habitat for the Riverside 
fairy shrimp when they contain the appropriate physical or biological 
features (including soil characteristics and ponding duration) (Moran 
1977, p. 155; Hathaway and Simovich 1996, p. 670; Service 1998a, p. 
22). Subunit 5c contains characteristics, including the presence of 
mima mound topography and soils that support long-term ponding during 
winter and spring months and intermixed wetland and upland habitats 
that act as the local watershed, that are representative of Riverside 
fairy shrimp vernal pool habitat. The presence of these 
characteristics, which are shown on topographic maps created prior to 
the time of listing, further suggest that these elements which support 
the Riverside fairy shrimp have long been in place, even as the 
occurrence is now affected by human disturbance and OHV use. 
Additionally, the subunit is currently occupied by Riverside fairy 
shrimp. Habitat loss continues to be the greatest direct threat to 
Riverside fairy shrimp, coupled with the estimated loss of 90 to 97 
percent of vernal pool habitat in southern California (Mattoni and 
Longcore 1997, pp. 71-73, 86-88; Bauder and McMillan 1998, p. 66; 
Keeler-Wolf et al. 1998, p. 10; Service 1998a, p. 45). As we indicated 
in the 1998 Recovery Plan, a key conservation goal for the Riverside 
fairy shrimp is protection of most of the remaining Riverside fairy 
shrimp occurrences (Service 1998a, p. 62). Given the historic and 
continued loss of habitat, and based on the best available scientific 
information available to us at this time, we have determined this 
subunit to be essential for the long-term conservation and recovery of 
the species (see ``Subunit 5c: East Otay Mesa'' section for more 
information).
    (32) Comment: The commenter stated that the proposed development of 
a recycling center and landfill on Subunit 5c would provide benefits to 
the public in the form of jobs and San Diego County's need for 
increased landfill space. The commenter concluded that the subunit 
should be excluded for economic reasons, especially as the commenter 
believes that the Riverside fairy shrimp will not become extinct if the 
subunit is excluded.
    Our Response: Section 4(b)(2) of the Act states that the Secretary 
shall designate and make revisions to 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. In making that 
determination, the statute on its face, as well as the legislative 
history, are clear that the Secretary has broad discretion regarding 
which factors to use and how much weight to give to any factor.
    The commenter suggested that Subunit 5c should be excluded for 
economic reasons. Under section 4(b)(2) of the Act, we consider the 
economic impacts of specifying any particular area as critical habitat. 
We prepared a draft economic analysis (DEA) of the proposed critical 
habitat designation and related factors (Industrial Economics Inc. 
2011, entire). The draft analysis, dated November 3, 2011, was made 
available for public review and comment for 30 days (77 FR 12543, March 
1, 2012). Following the close of the comment period, a final analysis 
(dated August 30, 2012) of the potential economic effects of the 
designation was developed, taking into consideration the public 
comments we received and any new information (Industrial Economics Inc. 
2012). Our economic analysis did not identify any disproportionate 
costs likely to result from the designation. Because this area is 
currently known to be occupied by Riverside fairy shrimp (see ``Subunit 
5c: East Otay Mesa'' above and response to comment 29), consultation 
under section 7 of the Act would be required if the proposed landfill 
would affect waters of the United States under the CWA. Alternatively, 
if the project had no Federal nexus and would result in take of 
Riverside fairy shrimp, an incidental take permit under section 10 of 
the Act would be required. In either case, the costs associated with 
avoiding adverse modification of critical habitat are likely to mirror 
those necessary to avoid jeopardy to the species. Therefore, critical 
habitat designation is not likely to result in incremental costs other 
than minor administrative costs associated with consideration of 
critical habitat in the section 7 consultation. Additionally, the lands 
that make up Subunit 5c area are already identified as critical habitat 
for the Quino checkerspot butterfly; therefore, an adverse modification 
analysis would be required for the project, assuming the existence of a 
Federal nexus, regardless of this final revised critical habitat 
designation. Our economic analysis did not identify any 
disproportionate costs likely to result from the designation. 
Specifically, because we conclude that the designation of critical 
habitat would not meaningfully influence whether a landfill can be 
constructed in Subunit 5c as there are existing constraints on 
development of these lands due to the presence of Riverside fairy 
shrimp and the designation of Subunit 5c lands as Quino checkerspot 
critical habitat, we also conclude that the public benefits asserted by 
the commenter--the need for a new landfill and the jobs that would 
result from a landfill project--are not traceable to and would not be 
avoided by an exclusion of Subunit 5c from the designation. Therefore, 
the Secretary has declined to exercise his discretion to exclude any 
areas, including Subunit 5c, from this designation of critical habitat 
for Riverside fairy shrimp based on economic impacts or public benefits 
(for more information see ``Exclusions Based on Economic Impacts'' 
section above). See also Response to Comment 37.
Comments on Legal and Policy Issues Relating to Critical Habitat
    (33) Comment: One commenter stated that the Service had failed to 
comply with the Regulatory Flexibility Act, as amended (RFA), because 
it did not draft an initial regulatory flexibility analysis (IRFA) at 
the time the proposed revised critical habitat rule was published. The 
commenter believes that the Service had no justifiable reason to delay 
the IRFA, and that postponing the analysis could harm small businesses 
that may be affected by the proposed rule. The commenter also stated 
that 30 days was an insufficient amount of time for small businesses to 
review the DEA and provide comments, and that the dual rulemaking 
provided an unnecessary burden on small entities that might wish to 
comment on both the proposed rule and the DEA.
    Our Response: The Service complied with the RFA when designating 
critical habitat. The RFA requires the head of an agency to certify, at 
the time of the proposal, that a rulemaking will not have a significant 
impact on a substantial number of small business entities. If the 
agency cannot certify, then the RFA recommends conducting an IRFA. It 
is the Service's general practice to issue a proposed critical habitat 
rule followed by a subsequent Federal Register Notice (FRN) that 
announces the availability of the DEA. The DEA provides the substantive 
economic information to evaluate compliance with the RFA and other 
statutes and Executive Orders. In our subsequent FRN announcing the 
availability of the DEA, the Service provides the necessary 
certification

[[Page 72124]]

statement or, if it is unable to make such a certification, conducts an 
IRFA. In both circumstances, the public is provided a second 
opportunity to review and comment on the proposed rule and to review 
and comment on the accompanying DEA or IRFA. We do not agree that a 30 
day public comment period, which is the typical duration for public 
comment periods under the Administrative Procedure Act, is insufficient 
to afford members of the public with a meaningful opportunity to submit 
comments on the DEA or imposes an unreasonable burden on small 
businesses. Because the second FRN announcing the availability of the 
DEA is part of the proposed rulemaking, the Service's practice complies 
with the RFA. Further, in conversations with the Office of Management 
and Budget (OMB) and the Small Business Administration's (SBA) Office 
of Advocacy, and following their recommendations, the Service 
identifies in our initial proposal, to the maximum extent practicable, 
which small business sectors may be affected by the rulemaking. This 
assists SBA and small business sectors to understand whether the 
proposed rulemaking may impact a particular sector and allows for more 
focused public review and comment.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly affected by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. However, Executive Orders 
12866 and 13563 direct Federal agencies to assess costs and benefits of 
all available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts if sufficient data are available, whether or not this 
analysis is believed by the Service to be strictly required by the RFA. 
In other words, while the effects analysis required under the RFA is 
limited to entities directly regulated by the rulemaking, the effects 
analysis under the Act, consistent with the EO regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable. Further 
details are provided in the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.) and Regulatory Planning and Review--Executive Orders 12866 and 
13563 sections below.
    (34) Comment: One commenter believed that previous court decisions 
in the Tenth Circuit Court require the Service to conduct a National 
Environmental Policy Act (NEPA) analysis prior to critical habitat 
designation.
    Our Response: As we stated in the proposed rule, it is our position 
that, outside the jurisdiction of the U.S. Court of Appeals for the 
Tenth Circuit, we do not need to prepare environmental analyses as 
defined by NEPA in connection with designating critical habitat under 
the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This position was upheld by the U.S. Court of Appeals for the 
9th Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), 
cert. denied 516 U.S. 1042 (1996)). This action is outside the 
jurisdiction of the U.S. Court of Appeals for the Tenth Circuit.
Comments Relating to the Draft Economic Analysis (DEA)
    (35) Comment: One commenter stated that the DEA employs a flawed 
methodology because it employs the so-called baseline methodology, 
which, as the Tenth Circuit Court has noted, grossly underestimates the 
cost of designation. The commenter stated that the Service has flip-
flopped on its method of conducting a DEA, and that the change seems 
arbitrary.
    Our Response: As explained in chapter 2 of the DEA, the estimation 
of incremental impacts is consistent with direction provided by OMB to 
Federal agencies for the estimation of the costs and benefits of 
Federal regulations (see OMB, Circular A-4, 2003). It is also 
consistent with several recent court decisions, including Cape Hatteras 
Access Preservation Alliance v. U.S. Department of the Interior, 344 F. 
Supp. 2d 108 (D.D.C.); Center for Biological Diversity v. U.S. Bureau 
of Land Management, 422 F. Supp. 2d 1115 (N.D. Cal. 2006); and Home 
Builders Association of Northern California v. U.S. Fish and Wildlife 
Service, 616 F.3d 983 (9th Cir. 2010). Those decisions found that 
estimation of incremental impacts stemming solely from the designation 
is proper.
    We respectfully disagree with the commenter that our change in 
policy was arbitrary. As described in the DEA, we developed our current 
methodology in response to conflicting court decisions. In the DEA, we 
address the divergent court opinions by analyzing both the baseline 
protections accorded to the Riverside fairy shrimp absent critical 
habitat designation and by monetizing incremental impacts attributable 
to critical habitat designation. We determine that this methodology 
addresses the divergent opinion of the courts and provides a thorough 
review for policymakers that enables them to consider the true costs of 
critical habitat designation, by comparing the costs that would occur 
solely as a result of designation to those costs that would occur in 
the absence of designation.
    (36) Comment: Another commenter stated that the DEA does not 
explain the source of its estimate of administrative costs, and 
expresses concern that not all entities affected by administrative 
costs are included in the analysis.
    Our Response: The consultation cost model was originally based on 
data gathered from three Service field offices (including a review of 
consultation records and interviews with field office staff), telephone 
interviews with Federal action agency staff (for example, BLM, USFS, 
U.S. Army Corps of Engineers), and telephone interviews with private 
consultants who perform work in support of permittees. In the case of 
Service and Federal agency contacts, efforts focused on determining the 
typical level of effort required to complete several different types of 
consultations (hours or days of time), as well as the typical 
Government Service (GS) level of the staff member performing this work. 
In the case of private consultants, we interviewed representatives of 
firms in California and New England to determine the typical cost 
charged to clients for these efforts (for example, biological survey, 
preparation of materials to support a biological assessment). The model 
is periodically updated with new information, received in the course of 
data collection efforts, which support economic analyses and public 
comments on more recent critical habitat rules. In addition, the GS 
rates are updated annually.
    (37) Comment: One commenter stated that Subunit 5c should be 
excluded

[[Page 72125]]

because of its critical function as San Diego County's future recycling 
center and landfill. The commenter believes that the benefits to 
society of development plans at that site outweigh the benefits of 
including Subunit 5c as critical habitat.
    Our Response: The Secretary is required to take into consideration 
``any other relevant impact'' in addition to economic or national 
security impacts, in designating critical habitat under section 4(b)(2) 
of the Act. The commenter suggests that a ``relevant impact'' of 
designating Subunit 5c that should be considered by the Secretary is 
the effect designation would have on the potential future development 
of the area as a recycling center and landfill. As described in the 
comment letter, the project was approved by a county-wide initiative. 
The County Department of Environmental Health put out a Notice of 
Preparation of a Draft Environmental Impact Report (EIR) in September 
of 2011 (County of San Diego DEH 2011, pp. 1-4); the draft EIR is still 
under preparation.
    Under section 4(b)(2) of the Act and its implementing regulations 
at 50 CFR 424.19, the Secretary is required to identify significant 
activities that are likely to be affected by a critical habitat 
designation and consider the probable economic and other impacts of the 
designation on those activities. The significant activities subject to 
this consideration are those that are carried out, authorized, or 
funded by a Federal agency, because the consequences of critical 
habitat designation result from the obligation of Federal agencies to 
consult under section 7 of the Act and to ensure that their activities 
are not likely to jeopardize any listed species or destroy or adversely 
modify designated critical habitat. Thus, whether designation of 
critical habitat could affect the siting of a new recycling center and 
landfill in Subunit 5c depends, in the first instance, on whether 
Federal authorization is required to build such a landfill. For 
purposes of addressing this comment, we assume that a Federal nexus 
that would trigger section 7 consultation under the Act would exist. 
The most likely Federal nexuses triggering section 7 consultation would 
be the need for a Section 404 permit under the CWA if the project would 
affect jurisdictional waters of the United States or the need for an 
incidental take permit under section 10 of the Act because the proposed 
project would result in take of the Riverside fairy shrimp.
    Assuming that a Federal nexus exists, we next must determine if the 
designation of critical habitat would result in impacts to the future 
recycling center and landfill. If the designation would not itself 
result in impacts to the project beyond those already likely to occur 
as a result of the listing of the Riverside fairy shrimp, then the 
project is not an ``other relevant impact'' of designation under 
section 4(b)(2) of the Act.
    The pool in Subunit 5c is known to be occupied by Riverside fairy 
shrimp and, as a result, in the event of a future consultation on the 
project under section 7 of the Act, the Service would be required to 
evaluate the effects of the East Otay Mesa Recycling Collection Center 
and Landfill Project on Riverside fairy shrimp occupying the pool, 
regardless of the designation of critical habitat. As discussed under 
the Physical or biological features section above, intact vernal pool 
hydrology (including the seasonal filling and drying down of pools) is 
the essential feature that governs the life cycle of the Riverside 
fairy shrimp, and intact vernal pool hydrology made up of the vernal 
pool basin and its upslope watershed (adjacent vegetation and upland 
habitat) must be available and functional (Hanes and Stromberg 1998, p. 
38). Adjacent upland habitat supplies essential hydrological inputs to 
sustain vernal pool ecosystems. Protection of the upland habitat 
between vernal pools within the watershed is essential to maintain the 
space needs of the Riverside fairy shrimp and to buffer the vernal 
pools from edge effects. Conserving surrounding uplands ensures 
maintenance of proper hydrology to create pools of adequate depth also 
supports the temporal needs of the Riverside fairy shrimp, as deep 
pools provide for inundation periods of adequate length to support the 
entire life-history function and reproductive cycles necessary for the 
Riverside fairy shrimp.
    We consider it likely that any measures identified as necessary to 
avoid adverse modification of Riverside fairy shrimp critical habitat 
in Subunit 5c would also be required to avoid jeopardy to the species. 
We also note that the project area contains designated critical habitat 
for the Quino checkerspot butterfly. Assuming the existence of a 
Federal nexus for the project, an adverse modification analysis for 
Quino checkerspot butterfly critical habitat also would be required 
(regardless of whether or not Subunit 5c is designated as Riverside 
fairy shrimp critical habitat). For these reasons, we conclude that 
designation of critical habitat in Subunit 5c is not likely to affect 
whether a recycling center and landfill can be developed or to impose 
restrictions on such development beyond those that would result from 
listing of the species. This conclusion is consistent with the results 
of our FEA, which did not identify any incremental economic impacts of 
designation beyond the minor added administrative costs of including an 
evaluation of critical habitat in future section 7 consultations 
involving Subunit 5c (Industrial Economics Inc. 2012, p. 4-17).
    We have taken into account the potential economic impacts (see 
response to comment 32) and any other relevant impact of designating 
Subunit 5c as critical habitat. We conclude that designation of 
critical habitat will not result in significant economic impacts or 
other relevant impacts under section 4(b)(2) of the Act. Subunit 5c 
contains the physical or biological features necessary for the 
conservation of the Riverside fairy shrimp and is essential for the 
conservation of the Riverside fairy shrimp, and the Secretary has 
declined to consider this area for exclusion under 4(b)(2) of the Act.
    (38) Comment: One commenter stated that the DEA uses a flawed Monte 
Carlo analysis. Explanation is needed: (1) For the use of 100,000 
iterations; (2) for the use of a bell curve in the histogram in Exhibit 
4-7 of forecast present value incremental impacts to development (where 
bell curves are generally used for natural phenomena); (3) regarding 
how specific probabilities for the four scenarios were chosen; (4) for 
why the Distribution of Impacts to Development Activities in the 
technical appendix has a narrower range than the collection of 
distributions for the sum of each unit and the sum for each subunit 
does not match the total value for each unit; and (5) regarding which 
scenarios are used for each subunit so grounds for exclusion are 
clearer.
    Our Response: The number of iterations selected ensured a 
representative set of potential outcomes while being computationally 
manageable. This clarification has been added as a footnote in the 
development chapter.
    In regard to the commenter's second point, Monte Carlo analyses 
generate a range of outcomes by randomly sampling from statistical 
distributions of uncertain input parameters, and then running the model 
using those chosen inputs. The process is repeated (in this case 
100,000 times) until a representative set of outputs has been 
generated. The bell-shaped statistical distribution of the outputs in 
this analysis was therefore generated from repeatedly sampling the 
input distributions and running the model; it

[[Page 72126]]

was not pre-specified. This clarification has been added as a footnote 
in the development chapter of the FEA.
    With regard to the commenter's question about how scenarios were 
chosen, as described on page 4-14 of the DEA, absent information on the 
likelihood of any particular outcome in developable areas not covered 
by HCPs, the analysis assumes that an equal probability exists that a 
property will be located in one of the four geographic situations 
described in the development chapter: (a) Entirely in upland areas, (b) 
proximate to a nonjurisdictional pool, (c) proximate to a 
jurisdictional pool that is occupied, or (d) proximate to a 
jurisdictional pool that is unoccupied.
    The commenter is correct that the sum of development cost ranges 
for each subunit does not match the range from the distribution of all 
costs. As described on page 4-18 and in Exhibit 4-8 of the DEA, this 
occurs because the distribution of total costs across the proposed 
revised critical habitat area has a narrower range than the aggregation 
of the distributions for each subunit. In other words, it is not 
realistic to assume that every property will experience the most costly 
option for each variable included in the model (the sum of the upper 
bounds of the distributions). Likewise, it is unlikely that none of the 
affected properties will experience any impacts (the sum of the lower 
bounds of the distributions).
    Finally, the DEA delineates proposed critical habitat areas into 
three categories in the development chapter: (a) Not developable, (b) 
developable but in HCP areas that the Service is considering for 
exclusion, and (c) other developable areas. As described above, the 
four geographic situations are applied with equal probability to lands 
in the third category (other developable areas). The areas of each 
subunit in this category are identified in Exhibits 4-9 through 4-23.
    (39) Comment: One commenter stated that the DEA makes unexplained 
(and incorrect) assumptions in its development analysis: (1) The 
analysis assumes that all undeveloped parcels that are privately owned 
will be developed (Exhibit 4-24), which means future impacts on 
development will be disparately felt by those private landowners who do 
have plans to develop their land, such as Subunit 5c; (2) the analysis 
assumes a mean development project size of 13.5 housing units 
identified in the consultation history; and (3) the DEA does not 
explain why 60 percent was used as the only alternative to 41 percent 
of the 2,984 acres already subject to conservation plans.
    Our Response: As described on page 4-4 of the DEA, the analysis 
does not assume that all undeveloped parcels that are privately owned 
will be developed, but instead relies on Regional Growth Forecast 
datasets from the Southern California Association of Governments (SCAG) 
and the San Diego Association of Governments (SANDAG) for information 
on future development in proposed revised critical habitat. These 
forecasts provide the total number of projected housing units at the 
Census tract level, which were applied at the proposed critical habitat 
unit level using the relationship between developable acres in the 
units and census tracts.
    With regard to the commenter's assertion about mean development 
project size, as noted by the commenter and described on page 4-5, the 
estimated number of housing units per project is based on the 
consultation history. As described in Exhibit 4-24, it is uncertain 
whether this estimate is too high or too low, and how the number will 
vary across projects in the future. The commenter does not provide 
additional information to refine this estimate.
    In section 2.4.4, the DEA describes why 60 percent and 41 percent 
are used as the two alternative areas subject to conservation plans. If 
the City of San Diego Subarea Plan was approved and implemented, an 
additional 19 percent of proposed critical habitat would be subject to 
an HCP and considered for exclusion. This additional 19 percent over 
the 41 percent subject to existing HCPs would lead to 60 percent of 
proposed critical habitat potentially subject to HCPs in the future.
    (40) Comment: One commenter stated that the DEA should delete the 
willingness-to-pay study because the benefits cannot be directly 
compared to the costs and because it asks how much people would spend 
in order to protect the species from going extinct, not how much they 
did pay.
    Our Response: For completeness, the benefits chapter of the DEA 
describes the results of any relevant studies that have evaluated the 
benefits of Riverside fairy shrimp preservation, and then describes 
whether or not the results of those studies can be compared to the 
costs estimated in the DEA. The willingness-to-pay study described by 
the commenter elicits the importance of preserving the Riverside fairy 
shrimp to local populations within the region of the proposed critical 
habitat using a well-accepted valuation technique. Because of its 
relevance, this study is summarized in the DEA. As suggested by the 
commenter and mentioned in chapter 6 of the DEA, the benefits presented 
in this study cannot be directly compared to the incremental costs 
quantified in chapters 4 and 5 and, as a result, the DEA does not make 
this comparison.
    (41) Comment: One commenter believed that designating critical 
habitat in Subunit 5c would cause undue burden on the owners, who wish 
to develop the subunit as a landfill. The commenter stated that any 
delay to this multimillion dollar project could result in substantial 
costs and delay, and undue burden on the landowners.
    Our Response: We respectfully disagree with the commenter that the 
designation of critical habitat would result in significant time and 
financial burden. The Service expects that, for the Riverside fairy 
shrimp, the outcome of an adverse modification analysis on lands 
identified as critical habitat would be similar to that of a jeopardy 
analysis for lands currently occupied by the Riverside fairy shrimp, 
including Subunit 5c. Again, because the subunit is occupied by the 
Riverside fairy shrimp, a jeopardy analysis would likely occur 
regardless of critical habitat designation. Our rationale is presented 
in Appendix D of the DEA (Industrial Economics Inc. 2011, pp. D-1-D-6). 
See also our responses to Comments 32 and 37. In the DEA analysis we 
note that, with regard to vernal pool species such as Riverside fairy 
shrimp, the outcomes of jeopardy and adverse modification analyses (in 
terms of potential restrictions on development) may often be similar. 
In general, a properly functioning hydrological regime is critical to 
sustain listed vernal pool species and their immediate vernal pool 
habitat (local watershed). Avoidance or adequate minimization of 
impacts to the wetland area and its associated watershed, which 
collectively create the hydrological regime necessary to support the 
Riverside fairy shrimp, are essential not only to enable the critical 
habitat unit to carry out its conservation function such that adverse 
modification is avoided, but also to avoid a jeopardy determination 
with regard to the continued existence (survival) of the listed 
species. Because the Riverside fairy shrimp is completely dependent on 
a properly functioning vernal pool system for its survival, at this 
time we are not able to differentiate meaningfully between the 
conservation measures needed to avoid adverse modification of critical 
habitat and those needed to avoid jeopardy to the species. Impacts to 
both wetland features where Riverside fairy shrimp actually occurs and 
to the associated local watershed necessary to maintain

[[Page 72127]]

those wetland features should generally be avoided to prevent jeopardy 
to the Riverside fairy shrimp or to prevent adverse modification to 
Riverside fairy shrimp critical habitat. Service biologists regularly 
work with project proponents to avoid impacts to vernal pool and 
ephemeral wetland habitat whenever possible; this process includes 
conservation measures designed to avoid or minimize impacts to both the 
pools and the associated local watershed area. Therefore, we do not 
expect that an adverse modification analysis would result in 
significant additional delay or cost to the landowner.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The OIRA 
has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

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 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish 
a notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (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. In this final rule, we are certifying that the critical 
habitat designation for Riverside fairy shrimp will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale.
    According to the SBA, 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, as well as small businesses. 
Small businesses include manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts on these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities, such as: (1) 
Agricultural, commercial, and residential development; (2) 
transportation; and (3) livestock grazing and other human activities. 
We apply the ``substantial number'' test individually to each industry 
to determine if certification is appropriate. However, the SBREFA does 
not explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the Riverside fairy shrimp. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities (see Application 
of the ``Adverse Modification'' Standard section).
    In our FEA of the critical habitat designation, we evaluated the 
potential economic effects on small business entities resulting from 
conservation actions related to the listing of the Riverside fairy 
shrimp and the designation of critical habitat. The analysis is based 
on the estimated impacts associated with the rulemaking as described in 
chapters 4, 5, and Appendix A of the FEA, and evaluates the potential 
for economic impacts related to activity categories, including 
development, transportation, and other human activities, such as 
habitat management, livestock grazing, and water management, as well as 
impacts to the energy industry (Industrial Economics Inc. 2012, pp. 4-
1-6-6, A-1-A-7).
    As described in chapters 4 and 5 of the FEA, estimated incremental 
impacts consist primarily of administrative costs and time delays 
associated with section 7 consultation and CEQA review. The Service and 
the Federal action agency are the only entities with direct compliance 
costs associated with this 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 FEA indicates that the incremental impacts 
potentially incurred by small entities are limited to the development 
sector.
    In order to understand the potential impacts on small entities 
attributable to development activities, the FEA

[[Page 72128]]

conservatively assumed that all of the private owners of developable 
lands affected by the revised critical habitat designation are 
developers. We estimated that a total of 34.2 development projects may 
be affected by the 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 in most 
cases 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 revised critical habitat rule becomes effective 
(Industrial Economics Inc. 2012, p. A-5).
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. However, Executive Orders 
12866 and 13563 direct Federal agencies to assess costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts if sufficient data are available, whether or not this 
analysis is believed by the Service to be strictly required by the RFA. 
In other words, while the effects analysis required under the RFA is 
limited to entities directly regulated by the rulemaking, the effects 
analysis under the Act, consistent with the EO regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable.
    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 region, instead of 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 this final rule becomes effective. 
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 conclude that the number of 
potentially affected small businesses is not substantial.
    The FEA also concludes that none of the government entities with 
which the Service might consult on the Riverside fairy shrimp for 
transportation or habitat management activities meets the definitions 
of small as defined by the SBA (Industrial Economics Inc. 2012, 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 the 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 this rule (Industrial 
Economics Inc. 2012, pp. A-6-A-7).
    In summary, we have considered whether this revised designation 
will 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 SBA, stakeholders, and from Service files. We 
determined that less than 3 percent of land subdividers or 1 percent of 
construction firms engaged in development activity within the area 
proposed for designation would be affected when the final rule becomes 
effective (Industrial Economics Inc. 2012, p. A-5). Given that this 
final rule excludes 1,259 ac (510 ha), the costs of the critical 
habitat designation will likely be even lower. Therefore, we are 
certifying that the designation of critical habitat for Riverside fairy 
shrimp will not have a significant economic impact on a substantial 
number of small entities, and an RFA is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
    The economic analysis finds that none of these criteria is relevant 
to this analysis. Thus, based on information in the economic analysis, 
energy-related impacts associated with Riverside fairy shrimp 
conservation activities within critical habitat are not expected. As 
such, the designation of critical habitat is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and

[[Page 72129]]

``Federal private sector mandates.'' These terms are defined in 2 
U.S.C. 658(5)-(7). ``Federal intergovernmental mandate'' includes a 
regulation that ``would impose an enforceable duty upon State, local, 
or tribal governments'' with two exceptions. It excludes ``a condition 
of Federal assistance.'' It also excludes ``a duty arising from 
participation in a voluntary Federal program,'' unless the regulation 
``relates to a then-existing Federal program under which $500,000,000 
or more is provided annually to State, local, and tribal governments 
under entitlement authority,'' if the provision would ``increase the 
stringency of conditions of assistance'' or ``place caps upon, or 
otherwise decrease, the Federal government's responsibility to provide 
funding,'' and the State, local, or tribal governments ``lack 
authority'' to adjust accordingly. At the time of enactment, these 
entitlement programs were: Medicaid; Aid to Families with Dependent 
Children work programs; Child Nutrition; Food Stamps; Social Services 
Block Grants; Vocational Rehabilitation State Grants; Foster Care, 
Adoption Assistance, and Independent Living; Family Support Welfare 
Services; and Child Support Enforcement. ``Federal private sector 
mandate'' includes a regulation that ``would impose an enforceable duty 
upon the private sector, except (i) a condition of Federal assistance 
or (ii) a duty arising from participation in a voluntary Federal 
program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not expect this rule to significantly or uniquely affect 
small governments. Small governments would be affected only to the 
extent that any programs having Federal funds, permits, or other 
authorized activities must ensure that their actions would not 
adversely affect critical habitat. Therefore, a Small Government Agency 
Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for the Riverside fairy shrimp in a takings 
implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding, assistance, or require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. The takings implications 
assessment concludes that this designation of revised critical habitat 
for Riverside fairy shrimp does not pose significant takings 
implications for lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this critical habitat designation 
with appropriate State resource agencies in California. We received no 
comments from State agencies. The designation of critical habitat in 
areas currently occupied by the Riverside fairy shrimp imposes no 
additional restrictions to those currently in place and, therefore, has 
little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas that contain the physical or biological features 
essential to the conservation of the species are more clearly defined, 
and the elements of the features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7 
consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. To 
assist the public in understanding the habitat needs of the species, 
the rule identifies the elements of physical or biological features 
essential to the conservation of the species. The designated areas of 
critical habitat are presented on maps, and the rule provides several 
options for the interested parties to obtain more detailed location 
information, if desired.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the 9th Circuit (Douglas County 
v. Babbitt, 48 F.3d

[[Page 72130]]

1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no tribal 
lands occupied by the Riverside fairy shrimp at the time of listing 
that contain the features essential to conservation of the species, and 
no tribal lands unoccupied by the Riverside fairy shrimp that are 
essential for the conservation of the species. Therefore, we are not 
designating critical habitat for Riverside fairy shrimp on tribal 
lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Carlsbad Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


0
2. In Sec.  17.95, amend paragraph (h) by revising the entry for 
``Riverside Fairy Shrimp (Streptocephalus woottoni)'' to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (h) Crustaceans.
* * * * *
Riverside Fairy Shrimp (Streptocephalus woottoni)
    (1) Unit descriptions are depicted for Ventura, Orange, and San 
Diego Counties, California, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Riverside fairy shrimp consist of three components:
    (i) Ephemeral wetland habitat consisting of vernal pools and 
ephemeral habitat that have wet and dry periods appropriate for the 
incubation, maturation, and reproduction of the Riverside fairy shrimp 
in all but the driest of years, such that the pools:
    (A) Are inundated (pond) approximately 2 to 8 months during winter 
and spring, typically filled by rain, surface, and subsurface flow;
    (B) Generally dry down in the late spring to summer months;
    (C) May not pond every year; and
    (D) Provide the suitable water chemistry characteristics to support 
the Riverside fairy shrimp. These characteristics include 
physiochemical factors such as alkalinity, pH, temperature, dissolved 
solutes, dissolved oxygen, which can vary depending on the amount of 
recent precipitation, evaporation, or oxygen saturation; time of day; 
season; and type and depth of soil and subsurface layers. Vernal pool 
habitat typically exhibits a range of conditions but remains within the 
physiological tolerance of the species. The general ranges of 
conditions include, but are not limited to:
    (1) Dilute, freshwater pools with low levels of total dissolved 
solids (low ion levels (sodium ion concentrations generally below 70 
millimoles per liter));
    (2) Low alkalinity levels (lower than 80 to 1,000 milligrams per 
liter (mg/l)); and
    (3) A range of pH levels from slightly acidic to neutral (typically 
in range of 6.4-7.1).
    (ii) Intermixed wetland and upland habitats that function as the 
local watershed, including topographic features characterized by 
mounds, swales, and low-lying depressions within a matrix of upland 
habitat that result in intermittently flowing surface and subsurface 
water in swales, drainages, and pools described in paragraph (h)(2)(i) 
of this entry. Associated watersheds provide water to fill the vernal 
or ephemeral pools in the winter and spring months. Associated 
watersheds vary in size and therefore cannot be generalized, and they 
are affected by factors including surface and underground hydrology, 
the topography of the area surrounding the pool or pools, the 
vegetative coverage, and the soil substrates in the area. The size of 
associated watersheds likely varies from a few acres to greater than 
100 ac (40 ha).
    (iii) Soils that support ponding during winter and spring which are 
found in areas characterized in paragraphs (h)(2)(i) and (h)(2)(ii), 
respectively, of this entry, that have a clay component or other 
property that creates an impermeable surface or subsurface layer. Soil 
series with a clay component or an impermeable surface or subsurface 
layer typically slow percolation, increase water run-off (at least 
initially), and contribute to the filling and persistence of ponding of 
ephemeral wetland habitat where the Riverside fairy shrimp occurs. 
Soils and soil series known to support vernal pool habitat include, but 
are not limited to:
    (A) The Azule, Calleguas, Cropley, and Linne soils series in 
Ventura County;
    (B) The Alo, Balcom, Bosanko, Calleguas, Cieneba, and Myford soils 
series in Orange County;
    (C) The Cajalco, Claypit, Murrieta, Porterville, Ramona, Traver, 
and Willows soils series in Riverside County; and
    (D) The Diablo, Huerhuero, Linne, Placentia, Olivenhain, Redding, 
Salinas, and Stockpen soils series in San Diego County.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
January 3, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created using a base of U.S. Geological Survey 7.5' quadrangle maps. 
Unit descriptions were then mapped using Universal Transverse Mercator 
(UTM) zone 11, North American Datum (NAD) 1983 coordinates. The maps in 
this entry, as modified by any accompanying

[[Page 72131]]

regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public on http://regulations.gov at 
Docket No. FWS-R8-ES-2011-0013, on our Internet site (http://www.fws.gov/carlsbad/), and at the Carlsbad Fish and Wildlife Office, 
6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011.

[[Page 72132]]

    (5) Note: Index map follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR04DE12.017


[[Page 72133]]


    (6) Unit 1: Ventura County, California. Map of Subunit 1a, Tierra 
Rejada Preserve, and Subunit 1b, South of Tierra Rejada Valley, 
follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.018


[[Page 72134]]


    (7) Unit 2: Los Angeles Basin-Orange County Foothills, Orange 
County, California.
    (i) Map of Subunit 2dA, Saddleback Meadows, and Subunit 2dB, 
O'Neill Regional Park (near Trabuco Canyon), follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.019


[[Page 72135]]


    (ii) Map of Subunit 2e, O'Neill Regional Park (near Ca[ntilde]ada 
Gobernadora), follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.020


[[Page 72136]]


    (iii) Map of Subunit 2h, San Onofre State Beach, State Park-leased 
land (near Christianitos Creek foothills) (near Camp Pendleton), 
follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.021


[[Page 72137]]


    (8) Unit 5: San Diego Southern Coastal Mesas, San Diego County, 
California.
    (i) Map of Subunit 5a, Sweetwater (J33); Subunit 5e, J2 N, J4, J5 
(Robinhood Ridge); Subunit 5f, J2 W and J2 S (Hidden Trails, Cal 
Terraces, Otay Mesa Road); Subunit 5g, J14; and Subunit 5h, J11 E and 
J11 W, J12, J16-18 (Goat Mesa), follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.022


[[Page 72138]]


    (ii) Map of Subunit 5c, East Otay Mesa, follows:
    [GRAPHIC] [TIFF OMITTED] TR04DE12.023
    

[[Page 72139]]


    (iii) Map of Subunit 5d, J29-31, follows:
    [GRAPHIC] [TIFF OMITTED] TR04DE12.024
    

[[Page 72140]]


* * * * *

    Dated: November 14, 2012.
Rachel Jacobson,
Principal Deputy Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-28250 Filed 12-3-12; 8:45 am]
BILLING CODE 4310-55-C