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Dated: January 9, 2004. (16 U.S.C. 1531 et seq.), requires that, Range and Distribution Susan MacMullin, for any petition to revise the List of have been Acting Assistant Regional Director, Ecological Threatened and Endangered Species found in the following Services, Region 2, Albuquerque, New that contains substantial scientific and counties: Sacramento, Solano, Contra Mexico. commercial information that listing may Costa, San Joaquin, Madera, Merced, [FR Doc. 04–1557 Filed 1–23–04; 8:45 am] be warranted, we make a finding within Fresno and Yolo (Belk and Fugate 2000; BILLING CODE 4310–55–P 12 months of the date of the receipt of California Natural Diversity Database the petition on whether the petitioned (CNDDB) 2003a). The known action is (a) not warranted, or (b) occurrences of midvalley fairy shrimp DEPARTMENT OF THE INTERIOR warranted, or (c) warranted but are distributed in five different Vernal precluded by other pending proposals. Fish and Wildlife Service Pool Regions as described by Keeler- Such 12-month findings are to be Wolf et al. (1998) (Southeastern published promptly in the Federal Endangered and Threatened Wildlife Sacramento Valley, Livermore, Southern Register. Sierra Foothills, San Joaquin Valley, and and Plants; 12-Month Finding for a On August 31, 2001, we received a the Solano-Colusa Region). Each of Petition To List the Midvalley Fairy petition dated August 14, 2001, from the Shrimp as Endangered Center for Biological Diversity and these regions is classified as having VernalPools.Org, requesting us to list different or unique vernal pool AGENCY: Fish and Wildlife Service, characteristics. The area encompassed Interior. the midvalley fairy shrimp as an endangered species. On April 29, 2003, by these regions includes the vernal ACTION: Notice of 12-month petition pool habitats in the San Joaquin Valley, finding. we announced an initial petition finding in the Federal Register that the petition the Sierra Nevada foothills from Yuba SUMMARY: We, the U.S. Fish and presented substantial information to County south to Kern County, the Wildlife Service (Service), announce a indicate the petitioned action may be Sacramento Valley from Glenn County 12-month finding for a petition to list warranted (68 FR 22724). In accordance south to Santa Clara County along the the midvalley fairy shrimp with section 4(b)(3)(A) of the Act, we Coast Range. Although the vernal pool ( mesovallensis) under the have now completed a status review of grassland complexes which are Endangered Species Act of 1973, as the best available scientific and contained within these regions offer amended. After reviewing the available commercial information on the species, unique or specific environmental scientific and commercial information, and have reached a determination conditions for the species inhabiting we find that listing is not warranted at regarding the petitioned action. This them, without site specific knowledge of this time. We ask the public to submit determination meets deadline the exact habitat requirements of the to us any new information that becomes requirements established by a court- midvalley fairy shrimp it would be available concerning the status of or approved consent decree (Butte difficult to rule these areas out as not threats to the species. This information Environmental Council v. Wayne White, being habitat available for the species. will help us monitor and encourage the Consent Decree, CIV.S–00–797 WBS). Midvalley fairy shrimp are distributed conservation of this species. within the same vernal pool complexes Species Information as other listed vernal pool DATES: The finding announced in this The midvalley fairy shrimp is a small (vernal pool fairy shrimp, vernal pool document was made on January 20, (0.28 to 0.79 inch (in), (7 to 20 tadpole shrimp ( packardi), 2004. Although further listing action millimeter (mm)) freshwater and ) and will not result from this finding, we found in shallow ephemeral pools known habitat preferences for midvalley request that you submit new (pools that seasonally fill and dry up) fairy shrimp can be reasonably information concerning the status of or near the middle of California’s Central presumed to fall within the parameters threats to this species whenever it Valley (Helm 1998; Eriksen and Belk of these listed vernal pool crustaceans. becomes available. 1999; Belk and Fugate 2000). It swims Since we published our 90-day ADDRESSES: The complete file for this on its back by beating its phyllopods, finding on a petition to list the species finding is available for inspection, by which are legs with leaflike or in April, 2003 (68 FR 22724), the appointment, during normal business paddlelike structures. The moving CNDDB has documented six new sites hours, at the Sacramento Fish and phyllopods also extract oxygen from the (two in Yolo County and 4 in Wildlife Office, U.S. Fish and Wildlife water, along with floating bits of food Sacramento County). This brings the Service, 2800 Cottage Way, Sacramento, such as phytoplankton and detrital total number of known occurrences CA 95825–1846. Submit new bacterial colonies. from 52 to 58. Additional records not information, materials, comments, or The midvalley fairy shrimp was only recorded in CNDDB have also been questions concerning this species to the recently formally described as a species documented as a result of surveys in Service at the above address. by Belk and Fugate (2000). Adult males east Merced County in 2001 and 2002 FOR FURTHER INFORMATION CONTACT: Glen of the species most closely resemble (K. Fien, in litt. 2002, CNDDB 2002, Tarr or Arnold Roessler, at the male Conservancy fairy shrimp CNDDB 2003). The increase of known Sacramento Fish and Wildlife Office (Branchinecta conservatio), while adult locations lends additional support to the (see ADDRESSES section above), by females more closely resemble female idea that the range and distribution of telephone at (916) 414–6600, by vernal pool fairy shrimp (Branchinecta midvalley fairy shrimp is greater than facsimile at (916) 414–6712, or by lynchi). Distinguishing characteristics the distribution of known occurrences. electronic mail at include differently shaped second The two reported occurrences in Yolo [email protected]. antennae for males, and the absence of County are in an area previously not SUPPLEMENTARY INFORMATION: a pair of bumps on the third thoracic known to support midvalley fairy segments of females (Belk and Fugate shrimp. Background 2000). Both of these characteristics can With the exception of eastern Merced Section 4(b)(3)(B) of the Endangered not be confirmed through visual County, the range and distribution of Species Act of 1973, as amended (Act) observation in the field. the midvalley fairy shrimp has been

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poorly documented by surveys. Helm’s factors including the species’ range and been recorded. This would result in (1998) survey of large branchiopods is distribution. Vernal pool fairy shrimp portions of a vernal pool complex not the most comprehensive, but the 95 species such as midvalley and the other being specifically surveyed. Also the locations surveyed in that study are listed Branchinecta are cryptic in nature frequency of sampling outlined in the spread out across the northern counties and often require several years of protocols may also result in negative of the state, leaving many counties surveying to identify occupied and detections of midvalley fairy shrimp within or on the borders of the unoccupied habitat. Also these species due to their ability to complete their midvalley fairy shrimp’s known range (especially the vernal pool fairy shrimp) lifecycle within a short time frame with few or no sampled locations. The tend to experience local extirpation and (Service Eriksen and Belk 1999). With known range is primarily based on colonization events overtime within and the similarity of physical characteristics occurrence data submitted to the between the vernal pool habitats and between midvalley and other CNDDB, but such data do little to rule complexes in which it is found. As a Branchinecta species it would be out the existence of additional occupied result, a species may not express itself difficult at best to identify the species areas (CNDDB in litt 2003). Most on a regular basis in every vernal pool only through visual observation of the potentially occupied sites have yet to be or vernal pool complex it is found. pools. surveyed for the species, and surveys During the process to list the four vernal We attempted to address these conducted for other vernal pool species pool crustaceans, the original problems in 2001 by commissioning a can not be relied on to provide distribution and range of the California rangewide midvalley fairy shrimp midvalley fairy shrimp data to the fairy shrimp () survey, but although the survey did find CNDDB. The species is difficult to was believed to be much more restricted some new populations, the survey was identify, and was not formally described than later found after subsequent survey not conducted comprehensively or until 2000 (Belk and Fugate 2000). efforts. The California fairy shrimp is systematically. Also, most of the Although survey permits for listed subject to the same threats of habitat sightings found merely served to vernal pool species now require loss and alteration as the four listed confirm population sites that were biologists to submit any midvalley fairy crustaceans, yet due to its range and already in the published literature. The shrimp data to the CNDDB, failure to do distribution is more widespread and not survey therefore did little to verify range so would be difficult to detect. under threat of extinction. or distribution limits of the species (Jan In addition the CNDDB has yet to Subsequently, the final rule to list Knight, Service, in litt. 2002). We are incorporate data from certain surveys excluded the California fairy shrimp currently funding a new survey to conducted in eastern Merced County in and designated the vernal pool fairy complete this work and are working 2001 and 2002 that specifically looked shrimp as threatened from endangered closely with the contractors to ensure for midvalley fairy shrimp (among other (59 FR 48136, September 19, 1994). use of a reliable sampling methodology species) (K. Fien, California Department Similarly the vernal pool capable of supporting conclusions of Fish and Game (CDFG), in litt. 2002). (Cyzicus sp.) also occurs in vernal pools, regarding both absence and presence of These surveys are among the most is under the same threats as other vernal midvalley fairy shrimp in surveyed comprehensive conducted for the pool species yet is well distributed and areas. species in the Merced area and well documented throughout its range Habitat produced a great deal of new site data. and not under threat of extinction. As Midvalley fairy shrimp live primarily It is difficult to estimate how many new discussed above, the range and occurrences the additional surveys sites in vernal pools, but occasionally may distribution of the midvalley fairy represent because CNDDB occurrences also be found in vernal swales and other shrimp is not well established due to its combine population locations within ephemeral wetlands such as roadside recent description as a species and may about 0.25 miles (mi) (0.40 kilometers puddles (Helm 1998; Belk and Fugate conceivably be much more extensive (km)) (Darlene McGriff, CNDDB, pers. 2000; Vollmar 2002; CNDDB 2003). than indicated by currently available comm. 2003), and because some of the Vernal pools are shallow depressions information. additional site data include multiple with relatively impermeable soils that records at the same location (John The vernal pool habitat within pond water during the winter and early Hunter, Restoration Ecologist, Jones and Stanislaus and San Joaquin Counties spring, dry down during the spring, and Stokes, pers comm. 2003). However, provides specific examples that are completely dry by the late spring or visual examination of the new locations midvalley fairy shrimp may be more early summer. Vernal pools support a using Geographic Information Systems widespread than currently documented specific community of plants and (GIS) software shows a fairly continuous (CNDDB 2003). Both these counties adapted to such conditions distribution of new sightings running have relatively large tracts of habitat (as (Keeler-Wolf et al. 1998). Vernal swales from the proposed UC Merced area to discussed below), including rangeland are similar to vernal pools, but tend to Myer’s Ranch, about 6 mi (9.7 km) to the on their eastern margins (University of convey surface runoff during wet east. New sightings also show up in the California 1998) with mapped vernal seasons in shallow, vegetated channels. area of the Cunningham Ranch, about 10 pool areas containing widely scattered Vernal swales may interconnect vernal mi (16 km) east by southeast of the UC smaller pools and closely packed (high pools to form a matrix of swale and pool Merced site, and also in a relatively density) pools of varying sizes (Holland features called a vernal pool complex small area at the southeast corner of the 1998). They also include Riverbank (Helm 1998). The majority of sightings County about 20 mi (32 km) southeast geologic formations, as well as other of this species have been in vernal of the UC Merced site. The total area formations shown by surveys in east pools. For instance, a survey conducted roughly encompassed by new sightings Merced County to support midvalley in the early 1990s for large not yet included in the CNDDB is fairy shrimp populations (CDMG 1981, branchiopods in 27 California counties approximately 25 square miles (mi2) (65 CDMG 1991, Vollmar 2002). The current found 13 midvalley fairy shrimp square kilometers (km2)) or 15,600 acres survey protocols for the listed vernal occurrences in vernal pools (Helm 1998) (ac) (6,475 hectares (ha)). pool crustaceans requires that permitees and one in a vernal swale. A 2002 The extent which a species is stop netting vernal pools once a positive survey of eastern Merced County found threatened depends on numerous identification of a listed species has midvalley fairy shrimp in 72 locations,

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all of which were vernal pools (Vollmar smaller areas of such habitat at higher were also found on every geographic 2002). A survey in 2000 documented elevations. Yolo County has two formation and in every area of the map several midvalley fairy shrimp midvalley fairy shrimp occurrences, but (within 1 mi (1.6 km)) where midvalley occurrences in vernal pools, roadside has virtually no high density vernal fairy shrimp were found (EIP Associates drainages, and along a railroad easement pool areas at all. Vollmar (2002) found 2001; Vollmar 2002). In other counties, (Rogers 2001). midvalley fairy shrimp on Laguna known midvalley fairy shrimp locations Generally, the species appears to geological formations, which are more also tend to occur within about a mile require shallow vernal pools with low to typically found underlying high terrace of known vernal pool fairy shrimp moderate dissolved salts (Eriksen and grasslands (Reiner and Swenson 2000). locations. The six midvalley fairy Belk 1999). Cysts appear to hatch best Additionally, Helm (1998) found about shrimp occurrences in San Joaquin in cool water (about 10 degrees Celsius 20 percent of his midvalley fairy shrimp County are the most serious exceptions (°C) (50 degrees Fahrenheit (°F))), populations on volcanic mudflow to this trend. These occurrences were though adults have exhibited a high landforms underlain by Merhten found in marginal roadside habitat from tolerance for warmer water conditions, geologic formations. Valley Springs is 5 to 15 mi (8 to 24 km) away from the and Helm (1998) found one occurrence another geologic formation typical of nearest vernal pool fairy shrimp. Solano in water that was 32 °C (90 °F) (Helm volcanic mudflow landforms (Reiner County also has four midvalley 1998; Eriksen and Belk 1999). A and Swenson 2000), and Vollmar’s occurrences at distances of 1.5 to 5 mi comparison of the characteristics of (2002) study found roughly as many (2.4 to 8 km) away from vernal pool pools used by eight branchiopod species populations on Merhten and Valley fairy shrimp, and there is one such endemic to northern California found Springs formations combined, as on occurrence each in Contra Costa, that midvalley fairy shrimp used the Riverbank. Sacramento, Fresno, and Madera shallowest pools, both as determined The apparent tendency of the species Counties. according to average pool depth (4.0 in to avoid higher elevation terraces may (10.1 centimeters (cm)) and maximum conflict with its tendency to occur in Reproduction and Growth potential pool depth (5.4 in (13.7 cm)) smaller pools. Vollmar’s (2002) As might be expected from a species (Helm 1998). It also used pools with the stratified random survey of rangeland in found in relatively small, potentially least potential ponding area (average of eastern Merced County found average quick-drying pools, the midvalley fairy 721 square feet (ft2) (67 square meters pool size on higher terraces to be small, shrimp showed the fastest maturation (m2)) and total water volume (average of shallow, and ‘‘seemingly ideal’’ for the rate of all the endemic Northern 23,908 cubic feet (ft3) (677 cubic meters species. Yet midvalley occurrences California branchiopods tested (Helm (m3)) of all the endemic branchiopods tended to occur in the smaller pools of 1998). Interestingly, whereas Helm but one (that one being the Modoc the lower terraces, where average pool found that midvalley fairy shrimp could Plateau tadpole shrimp (Lepidurus sp., size was medium to large. Across the reach maturity (defined as having at not yet formally described), which was state, only three known population least one individual in the population only found in two pools). Another study locations occur on soils associated with with apparently functioning sexual in Merced County found midvalley fairy high terrace landforms (USDA 1998; organs) in as few as 8 days, the average shrimp in even smaller and shallower Smith and Verrill 1998; CNDDB 2003). time to maturity was 26.3 days, which pools, averaging 5.1 in (13 cm) These occurrences (occurrences 1, 28, was considerably more than the 18.0 maximum ponding depth and 229.4 ft2 and 45 in the CNDDB) all occur within days on average required for vernal pool (21 m2) maximum ponding area 2.0 mi (3.2 km) of each other in fairy shrimp. Helm relates that the late- (Vollmar 2002). Sacramento County, and are all within season rain that led to the quickest Known midvalley fairy shrimp about 0.5 mi (0.8 km) of the mapped maturation rate was followed by occurrences most commonly occur on edge of such soils. particularly warm weather and ‘‘Riverbank’’ geologic formations and on Generally, all the midvalley fairy eventually resulted in water low terrace, basin rim, and volcanic shrimp habitat requirements and temperatures of 32 °C (90 °F) in the mudflow landforms (Helm 1998; correlations appear to fall within the midvalley fairy shrimp’s pool. The Vollmar 2002). Landforms are surface range of habitat used by vernal pool midvalley fairy shrimp’s ability to geomorphic features formed by the fairy shrimp. For instance, midvalley mature and reproduce unusually deposition of soil and rock through fairy shrimp tend to use small, shallow quickly in warm water, while flooding, glacial outwash, and volcanic pools, while vernal pool fairy shrimp maintaining a maturation rate eruptions (Smith and Verrill 1998). The can use pools that are either small or comparable to other species in cooler landform types frequented by midvalley medium (Helm 1998). Helm’s (1998) water, may allow it to take advantage of fairy shrimp occur at relatively low study, for example, found midvalley late spring or early summer storms elevations with low gradients. fairy shrimp in pools ranging from 8 to without sacrificing its ability to utilize Additionally, occurrences in eastern 19 cm (3.1 to 7.5 in) maximum ponding more long-lived ponds that form earlier Merced County appear to cluster in depth, and vernal pool fairy shrimp in in the season (Helm 1998). As stated areas containing a dense concentration pools of 3 to 122 cm (1.2 to 48 in) above current survey protocols call for of vernal pools, as mapped by Holland maximum ponding depth. Similarly, surveys to begin during the winter once (1998) (CNDDB 2003; Kristi Fien, CDFG, Vollmar’s (2002) study in east Merced the pools fill and stop once a listed in litt. 2002, as explained by Jennifer County found midvalley fairy shrimp in species has been found or the pool dries Housely, Jones and Stokes, in litt. 2003, pools from 2 to 9 cm (0.79 to 3.5 in) in the spring. The timing and frequency compiling data from Vollmar 2002, EIP maximum ponding depth, and vernal of sampling outlined in the protocols Associates 1999, EIP Associates 2001, pool fairy shrimp in 2 to 16 cm (0.79 to may not be able to detect midvalley and URS 2000). This association is less 6.3 in) pools. Vollmar (2002) also found fairy shrimp occurrences. clear in the northern portion of the that midvalley fairy shrimp tend to Midvalley fairy shrimp populations species’ range, holding fairly well for avoid high terrace landforms, but found survive the seasonal desiccation of their Solano County, which has a large area vernal pool fairy shrimp in both high ponds by laying eggs encased in nearly of high-density habitat, but less well for and low terrace landforms. Vernal pool impervious shells. Embryos within Sacramento County, which has several fairy shrimp in eastern Merced County these eggs enter a dormant state called

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diapause, which in related species can vernal pool crustaceans were listed (59 Valley Region), 13 sites in east Merced last for decades if necessary, until such FR 48136, September 19, 1994), the County (Southern Sierra Foothills time as their pools refill and proper average loss rate drops to 182 ac (74 ha) Region), one site in central Merced environmental cues allow them to per year. Although this drop in the rate County (San Joaquin Valley Region), hatch. Dormant eggs are referred to as of habitat loss cannot be specifically and four sites in Solano and Yolo cysts, and because not all cysts hatch attributed to the listing of the four counties (Solano-Colusa Region). with each refilling of a pool, they can vernal pool crustaceans, the listing and In east Merced County, 13 CNDDB form a cyst bank (similar to a seed bank) the protections of the Act certainly can occurrences are on large land parcels in the soil that produces new be attributed to moderating vernal pool protected by conservation easements. populations of adult shrimp where none losses. The CDFG purchased the easements had been seen in years. Since the cysts Of the 58 midvalley fairy shrimp specifically to help mitigate any impacts can pass unharmed through the occurrences in the CNDDB (2003), 23 to vernal pool species that might result digestive systems of other animals, and occurrences (roughly 40 percent) are on from construction in the area, since they are very small (0.012 in (0.27 protected lands and 14 are in rural areas particularly construction of the mm)), they can be transported to new not currently under threat. In addition, University of California (UC), Merced. locations by birds or mammals and approximately 66 sightings of midvalley The only portion of the proposed UC potentially colonize other vernal pools. fairy shrimp have also been documented which has gone through Service review Cysts also float after having been dried, as a result of surveys in east Merced and the section 7 process is the phase so they can be washed to new locations County in 2001 and 2002 (K. Fien, in 1 of the project. Phase 1 of the project by flooding (Eriksen and Belk 1999). litt. 2002, CNDDB 2002, CNDDB 2003). occurred on an area which did not After hatching, the shrimp pass through Approximately 30 of these sightings are result in take to listed vernal pool three stages of growth, called nauplius, on protected lands and 23 are in rural species and as a result no take metanauplius and juvenile, before areas not currently under threat. The authorization was given for the becoming adults. These stages differ remainder is within the proposed UC development. Additional expansion of primarily in the extent to which the Merced development area. As discussed the UC will require consultation with thoracic and abdominal segments have in the Range and Distribution section the Service through section 7 of the Act. developed. For instance, the nauplius above, it is not clear how many CNDDB In contrast, we are aware of lacks thoracic segments and their occurrences these sightings will development plans at various stages of accompanying phyllopods, and so must eventually represent; however, after completion for nine sites (15.5 percent). use its antenna for locomotion (Eriksen reviewing the point data it is reasonable Of these nine, none have finalized plans and Belk 1999). to assume that a majority of the sites to remove the known midvalley fairy will represent new occurrences and not shrimp habitat, and some are Discussion of Listing Factors confirmations of existing CNDDB undergoing formal or informal Section 4 of the Act (16 U.S.C. 1533) records. Taken together, the eastern consultation with us under section 7 of and implementing regulations at 50 CFR Merced easement lands, which contain the Act for potential effects to listed part 424 set forth procedures for adding known midvalley fairy shrimp sightings, vernal pool species. An additional 12 species to the Federal endangered and total approximately 20,750 ac (8,397 ha) sites are located on habitat that has threatened species list. A species may (Kristi Fien, in litt. 2003). The already been largely converted to other be determined to be an endangered or easements are permanent, will generally uses such as housing developments, threatened species due to one or more be managed by the Nature Conservancy, vineyards or row crops. These sites of the five factors described in section and cannot be extinguished by selling generally involve relatively small 4(a)(1). These factors and their the land to a new owner (Jeff Single, remnant patches of habitat surrounded application to midvalley fairy shrimp California Department of Fish and by the new land use. Although some of are as follows: Game, in litt. 2003; Service, in litt. these sites are small, the midvalley fairy shrimp’s ability to occupy small shallow A. The Present or Threatened 2003). They are also currently pools, and its relative heat tolerance, Destruction, Modification, or independent of any additional vernal may allow it to persist under the Curtailment of Its Habitat or Range pool conservation actions to be taken by UC as part of its Conservation Strategy modified hydrologic patterns of such Midvalley fairy shrimp are potentially for vernal pool species. areas. Freshwater fairy shrimp species vulnerable to the same urban and Compared to the vernal pool fairy such as the midvalley may also be less agricultural conversion pressures shrimp and vernal pool tadpole shrimp susceptible to inbreeding effects that mentioned in our listing determination which consistently occur within the can threaten small isolated populations for the vernal pool fairy shrimp, vernal range of midvalley fairy shrimp this (Fugate 1998). pool tadpole shrimp, Conservancy fairy proportion of protection of occurrences Based on the information available on shrimp, and longhorn fairy shrimp (B. is far greater than the other listed specific threats, the amount of land area longiantenna) (Service 1994). Holland species. The protected midvalley fairy protected containing midvalley fairy (1998) documented average annual shrimp lands include two national shrimp occurrences either through losses of vernal pool complexes by wildlife refuges, several vernal pool location on specific vernal pool county ranging from 0 to over 30,000 ac conservation banks, a California preserves, wildlife refuges, or through (12,140 ha) per year, and averaging Department of Fish and Game ecological conservation easements we believe that about 550 ac (223 ha) per year through reserve, and several Nature Conservancy the threats to the known occurrences of 1997 in counties known to contain and CDFG conservation easements. midvalley fairy shrimp are not to a level midvalley fairy shrimp. Baseline years Overall the protected sites include where the species is at risk of becoming for each county ranged from 1985 to representative locations from four of the extinct through a significant portion of 1994, however. If we include only those five vernal pool regions occupied by its range. Approximately 64 percent of counties (Sacramento, Solano, Fresno midvalley fairy shrimp (see Habitat, the CNDDB occurrences are either and Contra Costa) whose vernal pool above) (Keeler-Wolf et al. 1998), protected or are currently not under any losses can be ascertained from about including five sites in Sacramento identifiable threat (23 protected, 14 not 1994, which was the year the first 4 County (Southeastern Sacramento specifically threatened). In addition, a

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significant number of sightings in ranching activities’’ (33 U.S.C. common type issued, and require less eastern Merced County not included in 1344(f)(1)(A)). The CWA requires review by the Corps than individual CNDDB are also either protected or not project proponents to obtain a permit permits (Ruffolo 2002). Provisions in currently under threat. These from the Corps prior to undertaking both NWP 39 and 40 also provide for occurrences represent a good cross many activities (e.g., grading, discharge the lowest level of review, under which section of the known range of the of soil or other fill material) that would wetlands of up to 0.1 ac (0.04 ha) may species and occupy examples of the result in the filling of wetlands subject be filled without prior notification to various vernal pool habitat types habitat to the Corps’ jurisdiction. However, in the Corps if other requirements of the within four of the five vernal pool light of a recent Supreme Court decision permit are met. regions (Keeler-Wolf et al. 1998). (Solid Waste Agency of Northern Cook Available information indicates the County v. U.S. Army Corps of Engineers section 404 permit process in some B. Overutilization for Commercial, No. 99–1178, 2001 (SWANCC)), the cases may be relatively effective at Recreational, Scientific, or Educational Corps’ Sacramento District Office, protecting wetlands under its Purposes which administers the section 404 jurisdiction (Ruffolo 2002). Such The listing petition acknowledges, permit process across the known range information, however, does not account and we agree, that current data do not of the midvalley fairy shrimp, no longer for projects that do not come under indicate that these factors constitute a requires section 404 permits for filling permit review, such as vernal pool fill threat to the midvalley fairy shrimp at in vernal pools unless those pools are associated with normal farming or this time. connected at some time by overland ranching practices. The tendency for flow to navigable waters or their midvalley fairy shrimp to occur on C. Disease or Predation tributaries. The district office is Riverbank formations and other low The listing petition acknowledges, determining which pools will require terrace land forms would subject the and we agree, that current data do not permits on a case-by-case basis, and species and its habitat to a high degree indicate that these factors constitute a estimates that ‘‘most’’ of the vernal of agricultural development pressure. In threat to the midvalley fairy shrimp at pools in the district will remain subject reviewing the information on habitat this time. to section 404 regulations (Nancy Haley, preferences for midvalley fairy shrimp D. The Inadequacy of Existing Corps Sacramento District Office, pers. for shallow vernal pool habitats and the Regulatory Mechanisms comm. 2003). fact that some of the occurrences are For pools and discharges requiring already isolated due to habitat The primary cause for the decline of permits, the section 404 process fragmentation it is questionable that the vernal pool species is loss of habitat due provides three levels of review. Projects Corps would take jurisdiction over the to human activities. State and Federal involving fill of more than 0.5 ac (0.2 pools inhabited by midvalley fairy laws exist that provide some protection ha), or which may affect listed species shrimp. to the midvalley fairy shrimp. Existing or otherwise have more than a minimal Considering the potential continued regulatory mechanisms that could adverse effect on the environment, trend of vernal pool losses throughout provide some protection for the require individual permits. The Corps the state and the questions raised midvalley fairy shrimp include: (1) issues such permits on a case-by-case regarding jurisdiction over vernal pools, Section 404 of the Federal Clean Water basis according to guidelines it is possible that the regulatory Act; (2) occurrence with other species established at 40 CFR part 230. mechanisms provided under the CWA protected by the Federal Endangered Guidelines particularly applicable to may provide some minimal protection Species Act; (3) consideration under the vernal pool protection include to the midvalley fairy shrimp. California Environmental Quality Act requirements that: (1) No practicable Endangered Species Act (CEQA) and other State regulations; and alternatives exist with less (4) local laws and regulations. environmental impact; (2) the project The Act will afford incidental protection to midvalley fairy shrimp Federal comply with the Endangered Species Act; (3) the project not contribute to where they co-exist with species already Clean Water Act (CWA): The Clean significant water quality degradation as listed as threatened or endangered. Water Act (33 U.S.C. 1251 et. seq.) measured by impacts to (among other Fleshy owl’s-clover (Castilleja prohibits the discharge of pollutants things) wildlife health and ecosystem campestris ssp. succulenta), Solano into ‘‘navigable waters,’’ which it diversity; and (4) appropriate and grass (Tuctoria mucronata), Colusa grass defines as ‘‘the waters of the United practicable steps be taken to minimize (Neostafia colusana), Conservancy fairy States’’ (33 U.S.C. 1311, 1362). Section adverse impacts. Such appropriate and shrimp, vernal pool tadpole shrimp, and 404 of the CWA (33 U.S.C. 1344) practicable steps may include the vernal pool fairy shrimp, are listed as provides an exception to this general creation and protection of vernal pools threatened or endangered under the Act prohibition by authorizing the U.S. in mitigation banks (60 FR 58605, July and occur in some of the same habitat Army Corps of Engineers (Corps) to 31, 1998). as the midvalley fairy shrimp. issue permits for the discharge of dredge Smaller projects with minimal Consequently, prospective developers or fill material. Regulations issued by adverse effects may be issued a general requiring a Federal permit (such as a the Corps define the term ‘‘waters of the permit. Such permits contain permit to fill vernal pools under section United States’’ to include ‘‘wetlands standardized provisions for particular 404 of the CWA, 33 U.S.C. 1344 et seq.) * * * the use, degradation or types of projects within a particular would already be required to survey for destruction of which could affect region or across the nation. The general listed species prior to developing interstate or foreign commerce’’ (33 CFR permits most applicable to midvalley midvalley fairy shrimp pools in those 328.3). Under this authority, the Corps fairy shrimp are nationwide permits quadrangles. This could lead to has regulated the discharge of fill (NWPs) 39 and 40, which authorize consultation requirements prior to material into vernal pools, except for discharges due to development and to destruction or modification of midvalley discharges specifically exempted by the nonexempted agricultural activities fairy shrimp pools, if those pools or CWA, such as those resulting from respectively (67 FR 2019, January 15, their associated complexes also support ‘‘normal farming, silvicultural and 2002). General permits are the most occurrences of listed shrimp. When

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considering the occupancy of vernal review of the project and consulting coincidental and the CWA and CEQA pool grasslands with listed vernal pool with other agencies concerned with the while protecting some vernal pool crustaceans we evaluate the biological resources affected by the project. habitat do not necessarily protect all of and physical factors associated with the Section 15065 of the CEQA guidelines it. vernal pool wetland. Factors such as requires a finding of significance if a E. Other Natural or Manmade Factors proximity to adjacent vernal pools, project has the potential to ‘‘reduce the watersheds, hydrology, number of number or restrict the range of a rare or Affecting Its Continued Existence occurrences, connectivity with other endangered plant or .’’ Once We are not aware of any other factors vernal pools, wetland swales, and extent significant effects are identified, the that constitute a threat to the midvalley of the associated uplands are evaluated. lead agency may either require changes fairy shrimp at this time. As a result of this evaluation occupancy in the project to mitigate the effects, or is usually considered within the else in rare instances may decide that Petition Finding complex and not isolated to an overriding social or economic We have carefully assessed the best individual pool. This distribution considerations make mitigation scientific and commercial information occurs because different areas of the infeasible. Projects approved under the available regarding the past, present, cyst bank hatch at different times in latter circumstances are still required to and future threats faced by this species. response to local conditions (59 FR mitigate. However, as a result without We reviewed the petition, information 48136, September 19, 1994; Eriksen and the fail safe of a jeopardy prohibition, available in our files, other published Belk 1999). However, none of these projects may be approved that cause and unpublished information, and species except the vernal pool fairy environmental damage, such as the comments submitted to us during the shrimp have been found to co-occur destruction of rare species or their public comment period following our with midvalley fairy shrimp in the same habitats. Protection of listed or rare 90-day petition finding, and we vernal pools (Eriksen and Belk 1999) species through CEQA is, therefore, consulted with recognized vernal pool and this observation is believed to be a dependent upon the discretion of the crustacean experts and other resource result of overland flow in a heavy agency involved and available agencies. On the basis of the best precipitation event and not as a result mitigation with no absolute protection. scientific and commercial information of overlapping habitat requirements. CEQA will therefore contribute to the available, we find that the proposal to Biological surveys are often inadequate protection of midvalley fairy shrimp list the midvalley fairy shrimp is not and project proponents may miss habitat, but there may be instances warranted at this time. Although vernal detection of midvalley fairy shrimp due where ‘‘overriding considerations’’ pool habitat continues to be lost in parts to its ability to occur in shallow pools result in destruction, albeit mitigated, of of the midvalley fairy shrimp’s range, which are inundated for short periods. midvalley fairy shrimp habitat. from what we know of the current range In instances where coexistence of listed The California Department of Fish and distribution of the species, it is well and Game (CDFG) is the agency species and midvalley fairy shrimp are represented by occurrences on protected responsible for managing and regulating documented in the same complex, there lands and with occurrences in areas fish and wildlife resources in California. may be incidental protection although with little or no current threat. CDFG’s mission is to manage there is no consultation requirement to Additionally, although several California’s diverse fish, wildlife, and avoid take or minimize effects of the development projects and land use plant resources, and the habitats upon action on the midvalley fairy shrimp. changes are affecting known which they depend, for their ecological occurrences, their effects are being State values and for their use and enjoyment mitigated and we are not aware of any California Environmental Quality Act by the public. CDFG has no officially occurrences likely to be extirpated in (CEQA): The California Environmental adopted regulations or statutes Quality Act (Public Resources Code Sec. pertaining to wetlands. However, Fish the near future due to habitat loss. 21000–21177) requires a full disclosure and Game Code § 1601 and § 1603 While the existing regulatory of potential environmental impacts of charge CDFG with executing Streambed mechanisms under CEQA, the CWA, proposed projects and offers broad Alteration Agreements. As a designated and the ESA do not ensure protection of opportunities to protect rare, threatened, Trustee and/or Responsible Agency midvalley fairy shrimp, they are likely endangered plants or animals and their under CEQA § 15386 and § 15381, CDFG to moderate the rate and extent of habitats. Federally listed animals are reviews and comments on documents habitat loss for midvalley fairy shrimp considered rare, threatened, or produced by the lead agencies. These through their direct application and as endangered for purposes of CEQA (14 regulations only apply to streams and an indirect benefit of conservation CCR 15380), which means that habitat stream corridors and are not efforts undertaken for the other listed protections taken under CEQA for the mechanisms which would protect vernal pool crustaceans. As a result of vernal pool fairy shrimp may also upland areas and vernal pool these factors we find that the species is benefit the midvalley fairy shrimp in the grasslands. not in danger of extinction in the same manner as discussed above with foreseeable future. regard to the Act. In addition CEQA Local We will continue to monitor the protects the environment more generally We are not aware of any specific status of the species, and to accept and broadly than the Endangered county or city ordinances or regulations additional information and comments Species Act and mitigates all impacts to that provide protection for the from all concerned governmental the environment. Protection of habitat midvalley fairy shrimp. agencies, the scientific community, under CEQA does not require the Based on the current level of industry, or any other interested party species be listed under the Endangered protections afforded wetland habitats concerning this finding. through the CEQA, CWA and the ESA, Species Act. References The public agency with primary we believe that the existing regulatory authority or jurisdiction over a proposed mechanisms provide some protection of A complete list of references used in project is designated as the lead agency the midvalley fairy shrimp. However, the preparation of this finding is and is responsible for conducting a the protections of the ESA are only available upon request from the

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Sacramento Fish and Wildlife Office FOR FURTHER INFORMATION CONTACT: mountain yellow-legged frog (Rana (see ADDRESSES section). Chad Mellison, Fish and Wildlife muscosa) and the Yosemite toad (Bufo Biologist, at the above Reno address. canorus), which occur within the Silver Author SUPPLEMENTARY INFORMATION: King Creek drainage as well as in the vicinity of the out-of-basin population The primary author of this document Background is the Sacramento Fish and Wildlife sites. This plan identifies actions to Office, U.S. Fish and Wildlife Service Recovery of endangered or threatened maintain ecosystem integrity as well as (see ADDRESSES section). animals and plants is a primary goal of recover the listed species. our endangered species program and the The draft revised recovery plan Authority Endangered Species Act (Act) (16 U.S.C. includes conservation measures 1531 et seq.). Recovery means designed to ensure that self-sustaining The authority for this action is the improvement of the status of listed populations of Paiute cutthroat trout Endangered Species Act of 1973, as species to the point at which listing is will once again occupy its historic amended (16 U.S.C. 1531 et seq.). no longer appropriate under the criteria range. Specific recovery actions focus Dated: January 20, 2004. set out in section 4(a)(1) of the Act. on removing non-native salmonids and Marshall P. Jones Jr., Recovery plans describe actions establishing a viable population in its Director, Fish and Wildlife Service. considered necessary for the historic range. The plan also identifies [FR Doc. 04–1510 Filed 1–23–04; 8:45 am] conservation of the species, establish the need to protect pure populations BILLING CODE 4310–55–P criteria for downlisting or delisting which exist outside of the historic listed species, and estimate time and range. The ultimate goal of this plan is cost for implementing the measures to delist the Paiute cutthroat trout by DEPARTMENT OF THE INTERIOR needed for recovery. implementing a variety of measures to The Act requires the development of attain the following criteria: (1) All non- Fish and Wildlife Service recovery plans for listed species unless native salmonids are removed in Silver such a plan would not promote the King Creek and its tributaries Draft Revised Recovery Plan for the conservation of a particular species. downstream of Llewellyn Falls to fish Paiute Cutthroat Trout (Oncorhynchus Section 4(f) of the Act requires that barriers in Silver King Canyon; (2) a clarki seleniris) public notice and an opportunity for viable population of Paiute cutthroat public review and comment be provided trout occupies all historic habitat in AGENCY: Fish and Wildlife Service, during recovery plan development. We Silver King Creek and its tributaries Interior. will consider all information presented downstream of Llewellyn Falls to fish during the public comment period prior ACTION: Notice of document availability barriers in Silver King Canyon; (3) for review and comment. to approval of each new or revised Paiute cutthroat trout habitat is recovery plan. Comments may result in maintained in all occupied streams; (4) changes to the plan. Comments SUMMARY: The U.S. Fish and Wildlife the refuge populations in Corral and regarding recovery plan implementation Coyote Creeks, Silver King Creek and Service (‘‘we’’) announces the will be forwarded to appropriate Federal availability of the Draft Revised tributaries above Llewellyn Falls, as or other entities so that they can take well as out-of-basin populations are Recovery Plan for the Paiute Cutthroat these comments into account during the Trout (Oncorhynchus clarki seleniris) maintained as refugia and are secured course of implementing recovery from the introduction of other salmonid for public review. This draft plan actions. Individual responses to includes specific recovery criteria and species; and (5) develop a long-term comments will not be provided. conservation plan and conservation measures to be taken in order to delist The Paiute cutthroat trout is native to the Paiute cutthroat trout. agreement which will be the guiding Silver King Creek in the East Fork management documents once Paiute Carson River drainage of east-central DATES: Comments on the draft revised cutthroat trout are delisted. recovery plan must be received on or California, Humboldt-Toiyabe National before March 26, 2004, to receive our Forest, Alpine County, California. Public Comments Solicited Hybridization with non-native consideration. We solicit written comments on the salmonids is the primary threat to the draft revised recovery plan described. ADDRESSES: Copies of the draft revised species. All comments received by the date recovery plan are available for The original recovery plan for the specified above will be considered in inspection, by appointment, during Paiute cutthroat trout was published in developing a final revised recovery normal business hours at the following 1985. The objectives of the 1985 plan. location: U.S. Fish and Wildlife Service, recovery plan were to reestablish a pure Nevada Fish and Wildlife Office, 1340 population of Paiute cutthroat trout in Authority Financial Boulevard, Suite 234, Reno, Silver King Creek above Llewellyn Falls, The authority for this action is section Nevada (telephone (775) 861–6300). and secure and maintain the integrity of 4(f) of the Endangered Species Act, 16 Requests for copies of the draft revised the occupied habitats in Silver King U.S.C. 1533(f). recovery plan and written comments Creek, North Fork Cottonwood Creek, and materials regarding this plan should and Stairway Creek, all which occur Dated: November 24, 2003. be addressed to Robert D. Williams, outside of the presumed historic habitat. Steve Thompson, Field Supervisor, at the above Reno This revised plan incorporates recent Manager, California/Nevada Operations address. An electronic copy of the draft research data and addresses the species’ Office, Region 1, U.S. Fish and Wildlife revised recovery plan is also available current status, threats, distribution, and Service. at: http://endangered.fws.gov/recovery/ recovery needs. It also addresses the [FR Doc. 04–1559 Filed 1–23–04; 8:45 am] index.html#plans. effects of recovery actions on the BILLING CODE 4310–55–P

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