41384 Federal Register I Vol. 58, No. 147 / Tuesday, August 3, 1993 / Rules and Regulations

Dated: July 16, 1993. forms in areaswith Mediterranean (1.5—1.8 mm) long; plantssparingly Richard N. Smith, climates where slight depressions pilose (bearing soft and straight Acting Director, U.S. Fish and Wildlife become seasonally wet or Inundated spreading hairs); and spikelets remote Seriice. following fall and winter rains. Water on the axis below, crowded toward the [FR Doc. 93—18432 Filed 8—2—93; 8:45 aml remains in these pools fora few months apex. I~UIGCOOE 431~4~ at a time, due to an Impervious layer o.ristulatuin Jepson var. such as hardpan, clay, or basalt beneath parishii (Coulter and Rose, 1990) the soil surface. Gradual drying occurs Mathias and Constance (San Diego DEPARTMENT OF ThE INTERIOR during the spring (Holland 1976). The button-celery) is a member of the poois form on mesa tops or valley floors parsley family (). It Is Fish and WlldlIf. Service and are Interspersed among very low associated with white clay bottom pools hillsusually referred to asmima devoid of hard pans. Thisplant was 50 CFR Part 17 mounds (Zedler 1987). originally described as H. parishli by RIN1OIS—AB73 Pogogynenudiuscula is a member of Coulter and Rose (19,00). The was the mint family (), typically reclassified by Jepson (1923) asH. Endang.r.d andThreatened Wildlife blooming from May through June (Munz jepsonhi var. parishli. Jepson (1936) and ; Determination of 1974). ThIs aromatic plant was returned to the Coulterand Rose (1900) Endangered Status for Thrss Vernal originally described by Gray (1876), as classification. Mathias and Constance Pool Plants end the Riverside Fairy cited by Howell (1931). P. nudiuscula (1941) separated H. aristulatum from H. Shrimp Gray Isan erect annualreaching 12 fepsoni due to morphological inches (in) (3 decimeters (dm)) in AGENCY: Fish and Wildlife Service, characteristics and treated this plant as height. The brightgreen, spatulate a variety of H. aristulatum (var. parishii). Interior. leaves have few hairs, Bright purple E. an stulatum var. parishil blooms from ACTION: Final rule. flowers occur in whorls on ~pikes.The May through June (Constance 1977). lack of hairs on the calyx and of This plant is usually an annual; SUMMARY: The Fish and Wildlife Service this plant differentiatethe species from (Service) determines three plants abrwnsil. A large population, however, under favorableconditions It (Pogogyne rnidiuscula (Otay Mesa mint), originallyIdentified as P. nudiuscuia, facultatively becomes a perennial herb coiifornica ( Orcutt was recently found inValle do la~ with a perennial tap root. The plant has grass), and Eiyngium aristulatum var. Palmas, in Baja California, Mexico, 17 spreading or ascending shape and parishii (San Diego button-celery)) and miles (28 kilometers (km)) south ofthe reaches a height of 16 In (4 dm). The the Riverside fairy shrimp internationalborder (Howard Weir, stems and lanceolate leaves are gray (Streptocephalus weottoni)to be Dudek and Associates, pers. comm., green with spinose lobes giving the endangered species throughout their 1992). However, enough evidence was plants prickly appearance. respective ranges. These species gathered to describe the Mexican form on short stalks with collectively occur in vernalpools from population as a distinct species, and a few-flowered greenish beads at the ends southwestern Riverside County and of branchea.Its greenish heads, fruits description of this taxon was expected with unequal scales, and bractiets western San Diego County, California, to to be published in the spring of 1993 northwestern Baja California, Mexico. (Scott McMillan, Department ofBiology, without calloused margins separateH. One population of Orcuttia califomica San Diego State University, in Iitt., anistulatum var. panishil from other is known from Ventura County. One 1992). ‘varieties. population of Riverside fairy shrimp is Orcuttiacalifornica Vasey is a The Riverside fairy shrimp known from Orange County. Habitat member of the grass family (). It (Streptocephalus woottoni) is a small loss and degradation due to urban and is associated with deeper pools of water freshwater crustacean of the Order agricultural development, livestock than is Pogogynenudiuscula and Anostraca, Family Streptocephalidae. grazing, off-mad vehicle use, trampling, Eryngium aristulatum vat. parishii. 0. The species was first collected in 1979 Invasion from weedy non-native plants, californica was first collected by Orcutt by Dr. Clyde Erickson and was and other factors threaten the continued and was described by Vasey (1886). identifled as a new species In 1985 (Eng existence of these species. Thisrule Subsequently, this plant was considered et al. 1990). The discoverers of this implements the protective provisions of the nominate varietyof 0. californica, taxon described this animal In the the Endangered Species Act (Act) of and several other varieties were also Journal of Crustacean Biology as a new 1973, asamended, forthese four taxa. recognized. Reeder (1982) raised the species, and named It Streptocephalus EFFECTIVE DATE: August 3, 1993. varieties of 0. californica to species woottoni (Eng ata). 1990). The species ADDRESSES: The complete file for this status. This small annual grass reaches most similar to S. woottoni is S. seaii, rule is available for inspection, by 4 in (1 din) in height, is bright green, discovered by Ryder in 1879. Plumose appointment, during normal business and secretes sticky droplets that taste setae edge the cercopods of mature male hours at the U.S. Fish and Wildlife bitter. Inflorescences, borne from May S. woottoni, whereas spines replace the Service, Carlsbad Field Office, 2730 through June, consist of seven spikelets seteaon the distal half of the cercopods Loker Avenue West, Carlsbad, arranged In two ranks, with the upper in mature S. seali. The last abdominal spikelets overlapping on a somewhat segment Is short In both species; California, 92008. twisted axis. 0. co.lifornica is however, S. woottoni lacks the confluent FOR FURTHER WIFORMAT)ON CONTACT: differentiated from other species in the inner margins of the cercopods Nancy Gilbert or Ellen Berryman at the genus by the following characteristics: characteristic for male S. sealiand S. above address (619/431—9440). teeth of lemma ( enclosing the similis, which was discovered by Baird SUPPLEMENTARY 14FORMATION: floret) 0.2 in (5 millimeters (mm)) long in 1852. Both males and females of S. or less, the teeth sharp-pointed or with woottoni have the red color of the Background awns (terminal bristles) 0.2 in (0.5 mm) cercopods covering all of the ninth and The three plants and the fairy shrimp long or less;culms (stems) usually 30 to 40 percent of the eighth abdominal occur in vernal pools, a habitat that prostrate, caryopsis (fruit) 0.06—0.07 in segments; no red extends ontothe Federal Register / Vol. 58, No. 147 / Tuesday, August 3, 1993 / Rules and Regulations 41385 abdominal segments of either sex in S. San Diego County (Bauder 1986) to Thisspecies currently occurs on the seali. immediatelysouth of the international Santa Rosa Plateau in Riverside County; Mature males are between0.56 in (14 border in Baja California, Mexico on Otay Mesa, Kearny Mesa, Del Mar mm) and 0.92 in (23 mm) in length. The (Moran 1981). The historic range of this Mesa, Miramar Naval Station, and Camp frontal appendage Is cylindrical, bibbed species may have extended to the mesas Pendletonin San Diego County; and in at the tip, and extends only part way to east of Balboa Park and south of Mission northern Baja California, Mexico. A the distal end of the basal segment of Valley in San Diego where vernal pools number of sites were eliminated in the antenna. The spur of the thumb is contain P. abnamsii, another endangered recent years. Although this species a simplebladelike process. The finger vernal pool plant (Bauder 1986). The remains comparatively widespread has two teeth; the proximal tooth is sites in extreme northern Baja within and adjacent to remaining vernal shorter than the distal tooth. The distal California, Mexico, were very likely pools, vernal pool habitat has greatly tooth has a lateralshoulder that is equal extirpated (Moran 1981). The current declined, and most of the remaining to about half the tooth’s total length known distribution ofP. nudiuscula is pools face one or more threats. measured along the proximal edge. The restricted to some of the remaining Additionally, the distribution of E. cercopods are separatewith plurnose vernal pools on Otay Mesa. anistulatuni var. parishii is patchy, setae along the medial and lateral Orcuttia colifornicaonce occurred in which makes it more vulnerable to local borders. Maturefemales are between vernal pools from San Quintin, Baja extinction than more evenly distributed 0.56 in (14 mm) and 0.84 in (21 mm) in California, Mexico (Moran 1981), species (Bauder 1986). total length. The brood pouch extends to northward to Riverside, Los Angeles, abdominal segments 7,8, or9. The and San Diego Counties in southern The Riverside fairy shrimp is known cercopods are as In the male. California. Historically known from four vernal pools in a 37 square The conditions that create suitable populations from near Downey and mile (91 square km) area near Temecula habitat forthese four species are Lakewood in Los Angeles County and in southwestern Riverside County (Eng seasonal (vernal) pools of shallow near Murietta Hot Springs in Riverside et a). 1990), andfrom one population in freshwater, which were probably never County were extirpated. This species Orange County. in San Diego County in common. However,agricultural and, prefers deeper water than Pogogyne the fall of 1989, this species was more recently, urban development have discovered within vernal pools on eliminated the majority of suitable nudiuscula or Eryngium aristulatum var. parishii. 0. californica still occurs Miramar Naval Air Station and Otay habitat. in vernal pools on The Nature Mesa (Marie Simovich, University of A number of studies were conducted San Diego, in Iitt., 1989). However, since on vernal pools In San Diego County. Conservancy’s Santa Rosa Plateau For mapping and description purposes, Preserve, in a vernal pool within Salt the 1989 discovery of the~specIesin San Creek drainage near Hemet (Dave Diego County, numerousvernal pool a standardized system was developed complexes in the county have been for the designation of these vernal pools Bramlet, botanist,in Iitt., 1992), and in (Beauchamp 1979). A series letter is the Skunk Hollow pool in Riverside surveyed by Simovitch, but no used to denote vernalpools in a general County (Lathrop 1976). In San Diego additional populations of Riverside fairy region, and numbers areused to County, this species is present in pools shrimp have been found. Thisspecies designate several pool groups within the on Otay Mesa (Bauder 1986). One was also found at two locations in Baja series. Examples include: Pogogyne population of 0. californica is present California, Mexico: Valle de las Palmas, nudiuscula and Orcuttia californica are in a vernal pool in Woodland Hills of 28 kilometers south of the Mexican both found In the pools of the “J” series Ventura County. The current population border; and approxImately 37 on Otay Mesa (these two species are not status of 0. californica in Baja kilometers south of El Rosario (H. Weir, known to occurin the same pool), California, Mexico, is unknown. and J. Brown, Dudek and Associates, Ezyngium aristulatum var. parlshii Agricultural development is widespread pers. comm., 1992). Urban and occurs in several pool series, and the and increasing in areas where vernal agricultural development currently Riverside fairy shrimp is known to pool habitat is typically found (Moran threaten all four remaining pools occur within two pool series (J and U) 1981). supporting the fairy shrimp In Riverside in San Diego (the “U” series occurs on Eiyngium anistulatum var. parishii County. The distribution of these three the Mirainar Naval Air Station). once occurred from Riverside County, plant and one crustacean vernal pool Historically. Pogogyne nudiuscula California, south to northern Baja species amongpooi group sites is was known to exist from Otay Mesa of California, Mexico (Constance 1977). summarized in the following table.

DISTRIBUTION OF SPECIES AMoNG POOL GROUP SITES E~yn- P090- Orcut- Zistu- River- side Pool group sites ,~. ~ ~ ~ sc~Aa ~..,__ var. shrimp ah~ San D~goCoun~ Otay Mesa x x x x Keam x Miramar Naval Station x x Can~Pen~Jeton x SanMaroos x ‘Pen_ x 41386 Federal Register / Vol. 58, No. 147 / Tuesday, August 3, 1093 / Rules and Regulations

DISTRIBUTION OF SPECIES AMONG PooL GROUP SrrEs—Continued E~’,m P090- Orcut- p”” River-

- Pool group sites t~J~-caV*w- ~“ fairy

~ ~-- ~ aM — Riverside County Santa Rosa Plateau ...... x x SkunkHotiow.._...... x x SaltCreek ..... x Pechanga Indian Res .. .. x Murvieta Golf Course ...... ~. .. x Ventura County ...... x OrangeCounty ...... ~. .. x Baja California, Mexico x x

Previous FederalAction The Service published an updated State agencies, county governments, Federal action on two of the plant notice of review forplants on December Federal agencies, scientific speciesbegan whenthe Secretary ofthe 15, 1980 (45 FR 82480). This notice organizations, and other Interested Smithsonian Institution, as directed by included Eiyngium aristulatum var. parties were contacted and requested to section 12 of the EndangeredSpecies parishil. Orcuttia californica, and comment. Fourletters werereceived In Act (Act) of 1973, prepared a report on Pogogynenudiuscula as category I support of listing the Riverside fairy those native plants considered to be candidates (species forwhich the shrimp, and two ofthese letters endangered, threatened, or extinct in the Servicehas suffiden~data in its contributed additional information that United States. This report (House possession to support a Federallisting is incorporated Into the Summaryof Document No. 94—51) was presented to proposal as endangered or threatened). Factors Affecting the Species section On February 15, 1983, the Service Congress on January 9, 1975, and published a notice (48 FR 6752) of its presented below. One of the four letters, Included Pogogyne nudiusculaand prior finding that the listing of these from the California Department of Fish Orcuttia coiifornica, but not Eiyngium species may be warranted in accordance and Game, also supported listing of the aristulatum var. parishii. On July 1, three proposed plants. No other 1975, the Service published a notice with section 4(b)(3)(A) of the Act. On October 13, 1983, the Service found that comments were received regarding the accepting the report as a petition under listing of these plant specieswas Service’s position, the proposed action, section 4(c)(2) (now section 4(b)(3)(A)) warranted but precluded in accordance or data on the proposed species. of the Act (40 FR 27823),and gave with section 4(b)(3)(ii) of the Act, notice of the status review of P. SummaryofFactors Affecting the Notification of this finding was Specie. nudiuscula and 0. californica. On June published on January 20, 1984-(49 FR 16, 1976, the Service published a 2485), Such a finding requires the proposed rule In the FederalRegister After a thorough review and (41 FR 24523) to determine petition to be recycledpursuant to consideration of all Information section 4(b)(3XC)(i) of the Act. The available, the Service has determined approximately 1,700 finding was reviewed In October of species, IncludIng 0. californica and E. that Orcuttia coiifornicaVasey - 1984, 1985, 1986, 1987, 1988, 1989, (California Orcutt grass), Pogogyne aristulatum var. parislzii, but not P. 1990, and 1991. nudiuscula, to be endangered species Because it was not identifieduntil nudiuscula Gray(Otay mesa mint), pursuant to section 4 of the Act. This- 1985, and its existence remained known Eiyngium aristulatum var. parishii list was assembled on the basis of only to a fewscientists until 1988, the (Coulter and Rose, 1990) Mathlas and comments and data receivedby the proposed rule represented the first Constance (San Diego button-celery), Smithsonian Institution and the Service Federal action on the Riverside fairy and the Riverside fairy shrimp in response to House Document No, 94— shrimp. The proposed rule to list the (Streptocephoius woottoni) should be 51 and the July 1, 1975, Federal three vernal pool plants and the classifiedas endangered species. Register publication. A summary of Riverside fairyshrimp as endangered Procedures found at section 4 of the general comments received by the was published in the FederalRegister Endangered Species Act (16U.S.C. 1531 Service on the 1976 proposal was on November 12, 1991 (56 FR57503). A et seq.) and regulations (50 CFR part published in the Federal Register on notice that the proposed rule was 424) promulgated to implement the April 28, 1978 (43 FR 17909). published in the Federal Register, was listing provisions of the Actwere In 1978, the amendments to the Act printed on October 14, 1992 in the followed. A species may be determined required that all proposals over 2 years Riverside “Press Enterprise” and the to be endangered or threatened due to old be withdrawn. A 1-year grace period “San Diego Union Tribune”. one or more of the five factors described was given to proposals already more than 2 years old.On December 10, 1979, Summary of Comments and in section 4(a)(1). These factors and the Service published a notice in the Recommendations their application to Orcuttiacalifornlcu, Federal Register withdrawing the The proposed rule and associated Pogogyne nudiuscula, Eiyngium portion of the. June 16, 1976, proposal notifications solicited all Interested aristulatum var. parishii, and the that was not made final, Including partiesto submit factual reports or Riverside fairy shrimp are asfollows: Orcuttiacalifornica and Ezyngium Information that might contribute to the aris2ulatuin.var. parishil. development of a final rule. Appropriate Federal Register I Vol. 58, No. 147 / Tuesday, August 3, 1993 / Rules and Regulations 41387

A. The Present or Threatened Otay Mesa, where all four species containing some 170 individuaL vernal Destruction,Modification or occur, has the most throats ofhabitat pools. By 1986. this specieswas Curtailment ofJt.s Habitat orRange damage of all the sites. The Service is extirpated from all but 3 pool groups aware of 37 separate proposed precise encompassing about 38 pools. In two The habitat and range of these four development plans and tentative maps groups, the plant was limited to a single species has been greatly reduced. Vernal that have been filed for Otay Mesa, as pool each and was noticeably declining pools, existing as slight depressions on required by the California in the third group. Vehicular activity flat mesas, are found in locations that Environmental Quality Act. These plans was occurring,in two of the remaining are especiallyvulnerable to one or more encompass approximately 80 percent of groups and partially explained one of of the following habitat disturbances: the undeveloped portion of the mesa the extirpations. Only one of the pool Urban and agricultural development, within the jurisdiction of the City of San groups was described as having dense off-road vehicle use, cattletrampling, Diego and virtuallyall but four of the populations of P. nudiuscula (Bauder human trampling, road development, remaining vernal pool complexes. Of 1986) This site is on protected private military activities,and water the four remaining pooicomplexes, Land. In the 1990 survey of Otay Ranch, management activities. Many pool three areadversely affected by other four P. nudiuscula populations were groups were entirely eliminated and activities or development proposals. confirmed (CaliforniaDepartment of replacedwith urban or agricultural Preliminary designs by the California Fish and Came 1991). developments. Department of Transportation for State Pogogyne nudiuscula now only Vernal pool habitat in San Diego Route 125 include alignmentsthat sever remains in four populations, all located County has declined by 97 percent (T. the existing naturalconnection between oi~OtayMesa. These poo1s are Oberbauer, Department of Planning and two of the Largest remaining vernalpool threatened by various activities;for Land Use, San Diego County,pers. complexes on Otay Mesa. The example, one of the alternatives for a comm., 1990),and most of the construction of this new major highway proposed development project would remaining pools face one or more access route into Otay Mesa would eliminate 80 of 97 of the remaining threats. Similar declines in habitat have further facilitate its development. vernal pools on Otay Mesa containing P. occurredIn Riverside and’Ventura The existing BrownField Airport is nudiuscula (S. McMiIIan, in lift., 1992). Counties, and to a lesser degree inBaja presently being evaluated as a potential However, proposed mitigation measures - California, Mexico, Vernal pool habitat site for an International airport servicing for the project would preserve a in Los Angeles County has been San Diego. This proposaL includes minimum of 95 percent of the vernal destroyed. In Orange County, 90 to 98 alternative runway alignmentsthat pool habitat (no loss than 330 acres percent of the historical vernal pool would destroyportions ofone of the south of the Otay River) within the habitat has beeneliminated (F. Roberts, two largest remaining vernal pool project area. Although the developer’s Service, pers. comm.. 1993). Vernal pool complexes. A binational airport is also proposed vernal pen1 preservation plan- flora in Orange County has notbeen being considered for Otay Mesa, would include soil stabilization, welL documented. Most of the remaining althoughthese plans axe too preliminary hydrologic functions could change, and vernal pools face one or more threats in to allowassessment of potential impacts adversely affect vernal pool plants. the rapidly growing southern California to vernal pools. An Increase in the Final approval of the proposed project area. numberof vehicle trips in this area and mitigation measures are pending would occur as a result of the airport, before the City of Chm.mlaVista and Th. vernal poe1 habitat upon which and this increased traffic would likely County of San Diego (Otay Ranch Joint these four speciesdepend is also - lead to a demand for more roads, which Planning Project 1992). vulnerable to destruction due to could directly impact the pooLs. In 1979. Orcuttia coiifonuca occurred alteration of the watershed. In some Habitat trampling, and in some cases on Otay Mesa in 7 pool groups cases, an increasein pan1 water volume trampling of the organisms, due to containing 34 vernal pools. By 1986, due to urban run-off has led to more livestock grazing occurs on Otay Mesa agricultural plowing had destroyed 11 prolonged periods of inundation, and at in areas where several vernal pool of these vernal penis. 0. californica on the otherextreme, some pools have been complexes collectively contain~allfour Otay Mesa presently occurs in only 2 drained or blocked from their source of of the proposed spades. Organisms vernal pool groups, which contain 10 water. Orcuttia ctzlifornicausually - within the pools may be trampled and vernal pools. All of the remaining 10 occurs in the deepest portion of vernal killedby livestock prior to poolssupporting 0. californica on Otay pools and occurs in some pocis with reproduction. Soil may become Mesa are grazed by livestock; hence, the marshy elements. Hence, it is more compacted or eroded, and water may be habitat and pLants are1 impacted by likelyto be adverselyaffected by the impacted with sediment, Eiyngium trampling. Five poo a ware adversely latter type of drainage alterations. aristulatum var. parishii is sometimes affectedby trampling associated with Pools have also been degraded due to able to withstand light trampling immigrants attempting to cross the the use of off-roadvehicles, which have because of the buffering effect of its Mexico—United States border (Bauder impactedthe habitats of all four species. perennial tap root. 1986). These vehicles compact soils, crush Otay Mesa is a common area fortravel Three vernal pool groups in plantswhen water is in the pools, cause from Mexico to the United States; southwestern Riverside County also turbidity, and leave deep ruts. The hence, habitat and plantsare threatened contain Orcuttia californica. One of damage1may alterthe microhydrology of with trampling by humans. Also, the these complexes is partially preserved the poo s.Dirt roadsthat go through or Immigration and Naturalization Service within The Nature Conservancy’s Santa adjacent topools are widened as has proposed severalprojects at the Rosa Plateau Reserve. Another compLex motoriststry to avoid the Inevitable internationalborder, including border is located within the 14-acre Skunk mud puddles. Thus, pools are gradually lighting, that could result in direct Hollow pool,the lastremaining valley destroyedby vehiclestraveling on dirt adverse impacts to vernal pools on Otay type vernal pool in Riverside County. roads. Vehicle access and damage has Mesa, due to construction activities. This pool is often plowed and is within occurred on virtuallyall remaining In 1979, Pogogyne nudiuscula was the general locale of a conditionally vernal pool complexes. limited to 10 pooi groups on Otay Mesa approved residential development. A 41388 Federal Register / Vol. 58, No. 147 / Tuesday, August 3, 1993 / Rules and Regulations

proposed project In the Skunk Hollow Three pool groups in the San Marcos offer some protection for this site. area Includes major improvements to area contain Brynglum aristulatum var. However, as discussed above, a roadsand utility crossings that would parishii. Each group is on private currently proposed road project would directlyimpact 0.2 acres of the Skunk property, surrounded by development. impact the pool. Hollow watershed. Proposed mitigation In 1991, one of these pool groups was A fourth pool that contains the consists of experimental watershed vandalized; ditches were createdin Riverside fairy shrimpis located creation. Soil sedimentation could still early spring thereby draining the pools partially on private land and partially occur as well asimpacts ta hydrologic and destroying vernal pool plants. It is on the Pechanga Indian Reservation. function. Several tract projects, already unknown whether these pools have The portion on private land was approved within the watershed, would recovered from the disturbance. cultivated during 1990. The region’s alter the pool hydrology and adversely Two pool groups on Camp Pendletori drought conditions over the last 2 to 3 impact the species therein (Trans- Marine Corps Base containBrynglum years may have renderedthe pool dry Pacific Consultants 1992). The Service aristulatumvar. parishii. Thisspecies enough to be plowed. A fifth pool, and California Department of Fish and was once believed to be more common located on the Pechanga Indian Game are working to find a buyer for the on the Base, but most of the plants have Reservation within a mile of the fourth Skunk Hollow site. since been determinedto belong to a pool mentioned above, was recently A third population of Orcuttia different species currently under study converted into a gravel pit (L. Dobson, californica exists on private unprotected (S. Blitz, San Diego State University, Riverside County Transportation and land, southwest of Hemet in the Old pers. comm., 1993). The two Land Management Agency, pers. comm., Salt Creek drainage area. One pool ness populations on the military base are 1992). Only one documented Riverside the roadwas disced. These pools are near the unfenced boundary with a fairy shrimppopulation occurs In also potentially threatened by widening housing development. The potential Orange County. of an adjacent road. exists-that civilians would enter and Eiyngium aristulatumvar. parishii trample the pools in the area, and that B. Overutilization for Commercial, has the largest remaining distribution of military operations such astank activity Recreational, Scientific, or Educational the three plant species under could damage the ?ools. Purposes consideration herein, In 1979, this The -Riverside fairy shrimp has very Overutilization is notknown to be a species was known from 65 pool groups; narrow habitat requirements. This factor forthese four species; however, by 1986, this plant remained in 61 pool species is only found in deep lowland unrestricted collecting forscientific or groups. Although several sites receive pools that retain water through the horticultural purposes orexcessive some protection, the remaining pool warmer weather of late spring (Clyde visits by individuals interested in seeing groups are threatened by one or more of - Eriksen, Claremont College, in Jill., rare species can potentially Impact these the following: Urban development, off- 1992; Jamie King, University of species as a result of Increased publicity roadvehicular traffic, habitat trampling California—Davis, in litt., 1992). associated with listing under the Act. associated with cattle, mowingor Riverside fairy shrimp will nothatch in plowing, highway construction, pools that receivecool waters from early C. Disease orPredation drainage or watershed alterations (often winterrains (Eriksen in litt., 1992), such Orcuttia californica Is consumed by due to adjacent urban development), asthose pools on the Santa Rosa cattle in areas where vernalpools are military activities (e.g., driving Plateau, nor will they hatch in shallow within pastures, as discussed In Factor equipment), and trampling associated pools. A. Grazing may occur prior to the with migrant workersIllegally entering The Riverside fairy shrimp is setting of seed, that could affect the United States (Bander 1986). vulnerable to landuse changesaffecting reproductivesuccess. The other three Twopool groups in Kearny Mesa the small number of pools that meet the species are notknown to be affectedby contain Eryngium aristulatum var. species’ strict habitat requirements. Of disease or predation. parishii. The first group is composed of the four remaining pools supporting the only 5 pools and Is a remnantof a broad fairy shrimp In Riverside County, only D. The Inadequacy ofExisting expanse that oncestretched over the Skunk Hollow vernal pooi is greater Regulatory Mechanisms approxImately 15 miles (Bauder 1986). than I acre In size. The Skunk Hollow Existing regulatory mechanisms are These pools are surroundedby vernal pool, aspreviously discussed, Is not sufficient to reducethe losses of industrial development and have been within a planned development. Other Orcuttia californica, Pogogyne invadedby weedy species. The second sites supportingthe fairy shrimp may nudiuscula, Eryngium aristulatum var. group Is composed of 213 pools, but B. lack some of the typical vegetation of parishli, or the Riverside fairy shrimp. aristulatum var. parishii is only present vernal pools, but that condition Vernal pools, asIsolated wetlands and in less than half of these pools.The probably reflects Impacts from past waters of the United States, are - — southern portion of this pool group was agricultural activities. One pool Is regulated by the U.S. Army Corps of eliminated by State Route 52. located within an approved tract for a Engineers (Corps)under section 404 of Vernal pools In the Penasquitosarea housing development. the Clean Water Act. The Corps contain Eiyngluni aristulatum var. A third pool is on a parcel that is generally does not require individual parishii. Two-thirds of these pools were currentlyproposed for a housing permits for impacts on less than 1 acre purchased and preservedby the development, adjacentto the Murrieta of wetlands or Isolated waters of the California Department of Transportation GolfCourse and Highway 79. This pool United States above their headwaters. to mitigate Impacts from highway is in an agricultural fieldnear the Skunk Most individual vernal pools areless projects. However, fences surrounding Hollow pool and was disced. The than 1 acre insize. the preserve were broken, and there is Environmental Impact Reportprepared Section 404 of the Clean Water Act evidence of damage by off-road vehicles by a consultant forthe developerof this has nothistorically provided adequate in the pools. The remaining one-third of project failed to acknowledge the protection to these species from grading this poolgroup is on privately owned existence of the Riverside fairy shrimp or fill activities formost pools. land, and development is proposed for on the site. Representatives of the However, in October 1987, the Corps the property. landowner expressed a willingness to released a Public Notice proposingto Federal Register I Vol. 58, No. 147 / Tuesday, August 3, 1993 / Rules and Regulations 41389 exerciseits jurisdiction over vernal conservation organizations, the vulnerableto extinction due to poolsregardless of size or the lack of California Department of Fish and stochastic events as1well. sensitive or endangered species in the Came, the Fish and Wildlife Service, Many vernal poo s on Otay Mesa are pools. Since then, the Corps requires and the County of Riverside conditioned dominated by non-native plants such as individual permits for the discharge of one project to set one poolaside asan the common grass Lolium perenne. This fill into vernal pools. ,1 area for further studyto provide species is tolerant ofinundationand Section 404 regulates the discharge of temporary protection for the Riverside crowds out the native vernal poe1 fill material, but it does not regulate fairy shrimp. However, several proposed species such asPogogyne nudiuscula, other activities such as grazing, off-road projects surrounding the poo1 are Orcuttia californica, and Bryngium activity, and seeding with non-native expected to adversely impact the pool aristulatum vat. parishli. Ranchers species. Moreover, section 404 of the watershed (Trans-Pacific Consultants introduced non-native species into some Clean Water Act does not regulate 1992). On another site, the Riverside areas to increase the amount of forage activities within the watershed (i.e., County Planning Director indicated that available to livestock. Excessive cover of adjacent upland) of vernal pools. The the County would attempt to prevent weedy non-native grasses was noted in watershed is an essential component of grading where an approved six ofthe pool groups that contained P. the vernal poe1 ecosystem. The development would eliminate one pool. nudiuscula and partially explainedtwo disturbance and/or loss of watersheds This site, however, was recently cleared. extirpations of this species. The can result in a greatlyreduced volume No Federal or State laws protect the invasion of non-nativeplants and and1duration of water supply invernal Riverside fairy shrimp, and minimal livestock grazing (as discussed In Factor poo a end thereby adversely affect all protection given to the species was the C) apparently caused the extirpation of four of the proposed species. result of local planning decisions. 0. californico from 13 pools. Pools containing the federally listed In 1980, the City of ~an Diego Unprotected pee1 groups that contain B. Pogogyne abramsii are subject to instituted a vernal pool preservation aristulatum var. parzshii are also individual permit actions under section program wherein developers pay a fee to threatenedby invasionof weedy non- 404 ofthe Clean Water Actbecause of a preservation fund when a project native plants. the presence of an endangered species. would destroy vernal poo1s. The amount These vernal poolplant species are in the past, Pogogynenudiuscula may of the fee required, $4,000.00 pervernal also vulnerable to competition with have occurred In the same pools as P. pool acre (usually onlya small fraction marsh species as a result of urban water abramsii, east of Balboa Park and south of a typical acre of land containing run-off, and with upland speciesas a of Mission Valley in San Diego; vernal pools). is not sufficient to replace result of a lack of water in pools,as however, these pools were lost (Bander the lost habitat that, In some cases, sells discussed under Factor A. An increased 1988). Orcuttiacalifornk-a and P. for in excess of$100,000 per acre. The domination of these marsh or upland abramsii are not sympatric. Eiyngiunr City of San Diego has accumulated species results in decreased abundance aristulaiurnvar. parishii and P. abraxnsii approximately 3700.000 (from of obligate vernal pool taxa. occur in the same poe1 group areas in collections and Interest) through this Trash dumping also degrades vernal some cases, but do not share the same program for the loss of over800 pools, pools. Chunks of concrete, tires, individual pooia. The Riverside fairy and has used this fund to purchasethree refrigerators, sofas, and other piecesof shrimpand P. alramsii occur in the sites consisting of a total of 21 acres, garbage or debris were found inpoois same pooi group area inone case,but containing several vernal poois. The containing these four species. Thistrash may not share the same Individual remaining smallamount of the vernal crushes or shades vernal pool plants, pools.Thus, the listing of P. abramsii poolpreservation fund will be used for disrupts the hydrologic functions of the has not reduced the degree of threat to maintenance. pool, and in some cases may relsese P. nudiuscula, 0. colifosmico, B. A study on San Diego County vernal toxic substances. Trash dumping aristulaluin var. parishii, or the pools conducted in 1986 revealed that threatensthe remaining poolgroups of Riverside fairy shxi.nip~ little protection was afforded vernal Eiyngiunr tzristulatum var. parishli. Pogagynenuthusc.üIa. Orcuttia pools (Bawler 19e6),Vernal poo1 losses During a fire in the summer of 1992, californico. and Eiyngiwrz aristulatuni reported since 1979 indicate that 97 one-fourth of the Pbgogyne nuthuscula var. parkllii are listedas endangered by percent of poolscovered under the City population wasburned, and extensive the CaliforniaFish and Game of San Diego’splan and the California seed damage may haveresult~d.A fire Commission (Commission). Listing by Environmental Quality Act werelost. break made duringthis fire Isolated t~ieCoi ii~rn~requires that Those pool groups where permits pools that were formerly connected individuals who wishtopossess listed pursuant tosection 404 of the Clean during heavy rains,end verylikely species obtain a memorandum of Water Act were required showed a. 26 impaired the dispersal of seeds from the understanding from the California percent reduction inthe number of unburned pools toberned pools(S. Department ofFish and Caine. Under pools.Eight percent of the pools on McMillan, pen. comm., 1992). the California Endangered Species Act federally-owned lands were lost (Bander In the drought year of 1989,Pogogyne of 1985, Stat. lead agencies are required 1986). nudiuscula was only found within 1. to consuk withthe California pool complex madeup e130 pools with Department of Fish and Game when E. OtherNatural orManmade Factors a pool surface ares totaling less than I their projects would affectState listed Affecting Its Continued Existence acre (Ellen Bander, San Diego Stats species. The prohibition against Other factors have greatly impacted University, peas..cvnrm.~19S9). P. possession does net reduce the degree of the existence of thesefourvernal pool nuthuscularemáison a few riles on threat reeukiag fromadverse sp.cise, including introduction ofn~- C*ay Mesa in Sen Diego County. modification ofvisual poolhthitat native plest species. cempetitirm with The geographically restricted range incidental toother ectivities such as invading species, trash dumping, fire, and distrthut~ssof thes. species fire suppression activities, and drought increasesthe possibility that proeja.s currently ezist to The low numbers of vernal pooihabitats agriculturalactivity, urban protect the Riveastc~fairy shrimp. In remaining and than scattered developrnont.or other activities in or response to concerne expressed by distributions nteke these species near these remnant vernalpool 41390 Federal Register / Vol. 58, No. 147 / Tuesday, August 3, 1993 / Rules and Regulations ecosystems could destroy a significant process. Therefore, the Service finds Montgomery Field within the city limits portion of the spades’ remaining that It would notbe prudent to of San Diego and at BrownAir Field on population and habitat. Unpredictable determine critical habitat for Pogogyne Otay Mesa. MiramarNaval Air Station natural events, such as drought or fire, nudiuscula, Orcuttia californica, contains vernal pools withnot only the would be devastating to these species Eiyngium aristulatuni var. parishii, and Riverside fairy shrimp and Ezyngium due totheir fragmented and restricted the Riverside fairy shrimp at this time, aristulatuni var. parishii, but also range. Thisis especially important for because such designation would Pogogyne abramsii. which is presently Orcuttia californica, Pogogyne increasethe degree of threat from listed asendangered. CampPendleton nudiuscula, and the Riverside fairy vandalism, collecting, or other human Marine Corps Base contains some vernal shrimp, asthese species are restricted to activities. pools with H. aristuiafum var. parishii. a fewsites, The Veterans Administration will be The Servicehas carefully assessed the AvailableConservation Measures required toconsiderthe consequences best scientific and commercial Conservation measures provided to of funding housing loans where these information available regarding the past, species listedas endangered or species or their habitat occur. The present, and future threats faced by this threatened under the Endangered Immigration and Naturalization Service species in determining to make this rule Species Actinclude recognition, will need to evaluate Its activities and final, Based on this evaluation, the recovery actions,requirements for its effects on these species. This agency preferred action is to list Pogogyne Federalprotection, and prohibitions may be able to offer some help where nudiuscula, Orcuttia culifornica, against certain activities. Recognition trampling associated with Mexican Eiyngium aristulatum var. parishii, and through listing encourages and results citizens entering the United States Is the Riverside fairyshrimp as in conservation actions by Federal, occurring. The Federal Highway endangered. For the reasons discussed State, and private agencies, groups, and Administration will likely be Involved below, the ServiceIsnot designating individuals. The Endangered Species through potentially funding a portion of critical habitat for these species. Act provides for possible land future highway construction that could As provided by 5 U.S.C. 553(d), the acquisition and cooperation with the affect these species. The Bureati of Servicehas determinedthat good cause States and requires that recovery actions Indian Affairs may need to evaluate existsto make the effectivedate of this be carried out for all listedspecies. Such future proposals that may affect the rule immediate. Delayin actions areInitiated following listing. Riverside fairyshrimp. implementation of the effective date The protection required from Federal The Act and its Implementing would place the habitat of the species at agencies, the prohibitions against taking regulations found at 50 CFR 17.61, risk. and harm of the Riverside fairy shrimp, 17.62, and 17.63 set forth a seriesof and certain activities Involving listed general prohibitions and exceptions that Critical Habitat plants are discussed, in part, below. apply to all endangered plants. With Section 4(a)(3) of the Actrequires, to SectIon 7(a) ofthe Act, asamended, respect to the three plantsconsidered the maximum extent prudent and requires Federalagencies to evaluate herein, all tradeprohibitions of section determinable,that the Secretary their actions with respect to any spades 9(a)(2) of the Act, implemented by 50 designate criticalhabitat at the time a that Isproposed or listedas endangered ~FR 17.61, would apply. These species is determined to be endangered or threatened and with respect to its prohibitions, in part, makeIt Illegal or threatened. The Service finds that critical habitat, If any is being proposed. with respect to any endangered plant for designation of critical habitat for these Regulations implementingthis any personsubject to the jurisdiction of three plant species and the Riverside interagency cooperation provision of the the United States to Import or export; fairy shrimp Is not prudent at this time. Act are codified at 50 CFR part 402. transport in interstate or foreign As discussed under Factor A in the Section 7(a)(4) of the Actrequires commerce inthe course of a commercial “Summary of Factors Affecting the Federal agencies to confer informally activity; sell or offer for sale in Interstate Species,” these plant speciesare with the Service on any action that is or foreign coInmerce; remove and vulnerable to trampling. Curiosity likely to jeopardize the continued reduceto possessIon any such spades seekers may Investigate vernalpoois existence of a proposed species or result from areas under Federal jurisdiction. in and Inadvertently further degrade the In the destruction or adverse addition, the 1988 amendments (Pub. L. habitat of these three plants and the modification of proposed critical 100—478) to the Act makes It Illegal to Riverside fairy shrimp by trampling. habitat. If a species Is listed maliciously damage or destroy any such Publication of precise maps and subsequently, section 7(a)(2) requires species on any areaunder Federal descriptions of critIcal habitat for the Federal agencies to ensure that activities jurisdiction; or remove, cut, dig up, three plants would Increase the degree they authorize, fund, or carry out are not damage, or destroy any such species on of threat to these plants from take or likely to jeopardize the continued any other area in knowing violation of vandalismas discussed in Factor B and, existence of such species or to destroy any State law or regulation or In the therefore, could contribute to their or adversely modify its critical habitat. course of any violation of a State decline and increaseenforcement If a Federal action may affecta listed criminal trespass law. Certain problems, The listing of the plants as species or Its criticalhabitat, the exceptions can apply to agents of the endangered publicizes their rarity and, responsible Federal agency must enter Service and State conservation agencies. thus, can makethese plants more into formal consultation with the The Act and 50 CFR 17.62 ancli 7.63 attractive to researchers, curiosity Service. also provideforthe Issuance of permits seekers, or collectors of rare plants. All Federal agencies expected to have to carry out otherwise prohibited involved parties and landowners will be involvement withthese species include activities involving endangered plants notified of the general location and the Army Corps of Engineersand the under certain circumstances. It is importance of protecting the habitat of Environmental Protection Agency due anticipated that few trade permits these species. Protection of the habitat to their permit authority under section would ever be sought or Issued forthe ofthese species will be addressed 404 of the Clean Water Act. Federal three plant species sincethese spades through the recoveryprocess and Aviation AdminIstration Jurisdiction are not common In cultivationor in the through the sectIon 7 consultation would applyto vernal pools near wild. Additionally,these species have Federal Register / Vol. 58, No. 147 / Tuesday, August 3, 1993 / Rules and RegulatIons 41391 specific germination and growth instances, permits may be issued for a Wildlife Service, Carlsbad Field Office requirements Including seasonal specified time to relieve undue (see ADDRESSES section). This rulewas inundation, which would be difficult to economic hardship that would be adapted from the proposed rule, the recreate in biltivatlon. suffered If such relief were not primary authors of which were Mr. The Act and implementing available. The Riverside fairy shrimp is Peter A. Stine and Ms. Nancy Gilbert, regulations found at 50 CFR 17.21 for not involved in trade, and such permit Carlsbad Field Office, and Ms. Karla endangered spades set forth a series of requests are notexpected. Kramer, Eastside Federal Complex, 911 general prohibitions and exceptions that Requests for copies of the regulations NE 11th Avenue, Portland, Oregon apply to all endangered wildlife. These on listed wildlife and plants and 97232—4181. inquiries regarding them may be prohibitions,In part, would make it List of Subjects In 50 CFRPart 17 illegal forany person subject to the addressed to the Office of Management Jurisdiction of the United States to take Authority, U.S. Fish and Wildlife Endangered and threatened species, (including harass, harm, pursue, hunt, Service, 4401 North Fairfax Drive, room Exports, Imports, Reporting and shoot, wound, kill, trap, capture, collect, 432, Arlington, Virginia 22203—3507 recordkeeping requirements,and or to attempt any of these), Import or (703/358—2104). Transportation. export, transport In Interstate or foreign National Environmental Policy Act Regulations Promulgation commerce In the courseof commercial activity, or sell or offer for sale in The Fish and Wildlife Service has Accordingly, part 17, subchapter B of Interstate or foreign commerce any determined that an Environmental chapter I, title 50 of the Code of Federal listedwildlife. It also would be illegal Assessment, as defined under the Regulations, is amended as sot forth to possess, sell, deliver, carry, transport, authority of the National Environmental below: Policy Act of 1969, need notbe or ship any such wildlife that was taken PART 17—fAMENDED] illegally. CertaIn exceptions apply to prepared In connection with regulations agents ofthe Service and State adopted pursuant to Section 4(a) of the 1. The authority citation for part 17 conservation agencies. Endangered Species Actof 1973, as continues to read as follows: amended. A notice outlining the Permits may be issued to carry out Service’s reasons forthis determination Authority: 16 U.S.C. 1361—1407; 16 U.S.C. otherwiseprohibited activities was published In the FederalRegister 1531—1544; 16 U.S.C. 4201—4245; Pub. L. 99— 625, 100 Stat. 3500; unless otherwise noted. involving endangered wildlife species on October 25, 1983 (48 FR 49244), under certain circumstances. 2. Amend § 17.11(h) by adding the Regulations governing permits to carry References Cited following,In alphabetical order under out otherwise prohibited activities A complete list of all references cited Crustaceans, to the List of Endangered involving endangered wildlife are herein Isavailable upon request from end Threatened Wildlife to read as codified at 50 CFR 17.22 and 17.23. the Carlsbad Field Office (see follows: Such permits are available for scientific ADDRESSES section). purposes, to enhance the propagation or 511.11 Endangerad and threatened survival of the species, and/or for Author(s) wildlife. incidental take In connection with The primary author of this final rule * * * a * otherwise lawful activities, In some is Ellen Berryman, U.S. Fish and

Species Vertebrate population Hlstodc range where endangered or Status -: F. Common name Scientific name threatened ~

a a * a a a

cn~staoa~ .

• a a * * a Sh4n~,Riverside fairy Streptoceph&us U.S.& (CA), Mexico.. NA E 512 NA NA

• a * a * a *

3. Amend S 17.12(h) by adding the Endangered and Threatened Plants to 5 17.12 Endangered and threatenid plants. * * * following, In alphabetical order under read as follows: * * the families Indicated, to the List of (h)* * *

Species when list- Cdtlcal Special Historic range Status • Sdendfic name Common name

a 41392 Federal RegIster / Vol. 58, No. 147 / Tuesday, August 3, 1993 / Rules and Regulations

Species Historic ~ge Status SPSCIai Sd~ name Common name t WieS

E~1rç%snailsMaftsn var. San Dtego—button.celery U.S.A. (CA) .. E 512 NA NA -. Lamlaceae-Mnt ~

• a S a a a a

Pogoqyne nudluscula Otay Mesa mint ..... U.S.A. (CA), Mexico E 512 NA NA

Poaceae-Grau tamtiy:

* a a a * a a Orcuitia califomlca Caltfomta—Orcuttgrass U.S.A. (CA) E 512 NA NA

. S S • S a .

Dated: July 15, 1993. Richard N. Smith ActingDirector, Fish and Wildlife Service. (FRDoc. 93—18433 Filed 8—2—93; 8:45 aml S4WNG ~vE 4315-55-P