Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4925

ANTENNA STANDARDSÐContinued

Maximum Minimum radiation suppression to angle in degrees from center- beamwidth line of main beam in decibels to 3 dB Minimum Frequency (MHz) Category points 1 (in- antenna cluded gain (dbi) 5° 10° to 15° to 20° to 30° to 100° to 140° to angle in de- to10° 15° 20° 30° 100° 140° 180° grees)

Above 31,300 ...... A 2.2 38 25 29 33 36 42 55 55 B 2.2 38 20 24 28 32 35 36 36 1 If a licensee chooses to show compliance using maximum beamwidth to 3 dB points, the beamwidth limit shall apply in both the azimuth and the elevation planes. 2 Except for Multiple Address System frequencies listed in §§ 101.147(b)(1) through (b)(4), where omnidirectional antennas may be used. 3 Antennas used at outlying stations as part of a central protection alarm system need conform to only the following 2 standards: (i) The minimum on-beam forward gain must be at least 10 dBi, and (ii) The minimum front-to-back ratio must be at least 20 dB. 4 Omnidirectional antennas may be authorized in the band 2150±2160 MHz. 5 These antenna standards apply to all point-to-point stations authorized after June 1, 1997. Existing licensees and pending applicants on that date are grandfathered and need not comply with these standards. 6 These antenna standards apply to all point-to-point stations authorized on or before June 1, 1997. 7 Except for antennas between 140° and 180° authorized or pending on January 1, 1989, in the band 10,550 to 10,565 MHz for which mini- mum radiation suppression to angle (in degrees) from centerline of main beam is 36 decibels. 8 These antenna standards apply only to DEMS User Stations licensed, in operation, or applied for prior to July 15, 1993. 9 Except for temporary-fixed operations in the band 13200±13250 MHz with output powers less than 250 mW and as provided in § 101.147(q). 10 DEMS User Station antennas in this band must meet performance Standard B and have a minimum antenna gain of 34 dBi. The maximum beamwidth requirement does not apply to DEMS User Stations. DEMS Nodal Stations need not comply with these standards. 11 Except as provided in § 101.147(t). Note to footnote 11: Stations must employ an antenna that meets the performance standards for Category A, except that in areas not subject to frequency congestion, antennas meeting standards for Category B may be employed. Note, however, that the Commission may require the use of high performance antennas where interference problems can be resolved by the use of such antennas. 12 The minimum front-to-back ratio shall be 38 dBi. 13 Mobile, except aeronautical mobile, stations need not comply with these standards.

* * * * * activity, and livestock overgrazing. This Ocean, from Santa Barbara County south [FR Doc. 97–2083 Filed 1–31–97; 8:45 am] rule implements Federal protection and to northwestern Baja California. The BILLING CODE 6712±01±P recovery provisions afforded by the Act. majority of the vernal pools in this EFFECTIVE DATE: February 3, 1997. region, including many which likely ADDRESSES: The complete file for this served as habitat for the species, were DEPARTMENT OF THE INTERIOR final rule is available for public destroyed prior to 1990. Between 1979 inspection, by appointment, during and 1986, approximately 68 percent of Fish and Wildlife Service normal business hours at the Carlsbad the privately owned vernal pools under Field Office, U.S. Fish and Wildlife the City of San Diego’s jurisdiction were 50 CFR Part 17 Service, 2730 Loker Avenue West, destroyed (Wier and Bauder 1991). Adult male San Diego fairy shrimp Carlsbad, California 92008. RIN 1018±AC83 range in length from 9 to 16 mm (0.4 to FOR FURTHER INFORMATION CONTACT: 0.6 inches (in.)) and the females are 8 to Endangered and Threatened Wildlife Chris Nagano or Susan Wynn at the and Plants; Determination of 14 mm (0.4 to 0.5 in.) long. Mature above address (telephone 619/431– individuals have a delicate elongate Endangered Status for the San Diego 9440). Fairy Shrimp body, large stalked compound eyes, no SUPPLEMENTARY INFORMATION: carapace (shell covering the back), and AGENCY: Fish and Wildlife Service, 11 pairs of swimming legs. They swim Interior. Background or glide gracefully upside down by ACTION: Final rule. The San Diego fairy shrimp is a means of complex beating movements of member of the aquatic crustacean order the legs that pass in a wave-like front- SUMMARY: The U.S. Fish and Wildlife Anostraca. The species was first to-back direction. Nearly all species of Service (Service) determines collected in Poway and Ramona, San fairy shrimp feed on algae, bacteria, endangered status pursuant to the Diego County, in 1962 by J. E. Lynch protozoa, rotifers, and bits of organic Endangered Species Act of 1973, as (Fugate 1993). Michael Fugate (1993) matter (Eng et al. 1990, Pennak 1989). amended (Act), for the San Diego fairy described Branchinecta sandiegonensis The second pair of antennae in adult shrimp (Branchinecta sandiegonensis). based on collections that he and Marie female San Diego fairy shrimp are This animal is restricted to vernal pools Simovich made at Del Mar Mesa in San cylindrical and elongate, but in the in southwestern coastal California and Diego County. The species is restricted males they are greatly enlarged and extreme northwestern Baja California, to vernal pools in coastal southern specialized for clasping the females Mexico. Less than 81 hectares (ha) (200 California south to extreme during copulation. The females carry acres (ac)) of habitat likely remains. This northwestern Baja California, Mexico. their eggs in an oval or elongate ventral species is imperiled by a variety of No individuals have been found in brood sac. factors including: habitat destruction riverine waters, marine waters, or other Five other species of branchinectid and fragmentation from urban permanent bodies of water. All known fairy shrimp occur in southern development and agricultural localities are below 700 meters (m) California (Simovich and Fugate 1992). conversion, alterations of vernal pool (2,300 feet (ft)) and within 65 kilometers The only other branchinectids in hydrology, off-road vehicle (ORV) (km) (40 miles (mi)) of the Pacific southern California that are similar in 4926 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations appearance to the San Diego fairy complexes rather than by individual the hydrological regime is altered shrimp are Lindahl’s fairy shrimp vernal pools (Fugate 1992). Individual (Bauder 1986, 1987). Human-caused (Branchinecta lindalhi) and the vernal pools occupied by the San Diego activities that reduce the extent of the threatened vernal pool fairy shrimp (B. fairy shrimp are most appropriately watershed or that alter runoff patterns lynchi), which occurs in southwestern referred to as subpopulations. (i.e., amounts and seasonal distribution) Riverside County. Male San Diego fairy Vernal pools have a discontinuous may eliminate the animals, reduce their shrimp can be distinguished from males occurrence in several regions of population sizes or reproductive of other Branchinecta species by the California (Keeler-Wolf et al. 1995). success, or shift the location of sites shape of the second antenna. Female Vernal pools form in regions with inhabited by the animals. The vernal San Diego fairy shrimp are Mediterranean climates where shallow pool habitat type has been ranked in the distinguishable from other members of depressions fill with water during fall California Department of Fish and the genus by the shape and length of the and winter rains and then evaporate in Game’s Natural Diversity Data Base in brood sac and by the presence of paired the spring (Collie and Lathrop 1976; priority class G1–S1, which denotes dorsolateral spines on five of the Holland 1976, 1988; Holland and Jain communities in the State of California abdominal segments (Fugate 1993). 1977, 1988; Simovich and Hathaway that occur over less than 800 ha (2,000 The San Diego fairy shrimp is a undated; Thorne 1984; Zedler 1987). ac) globally. habitat specialist found in small, Overbank flooding from intermittent The largest number of vernal pools in shallow vernal pools, which range in streams may augment the amount of California, including those inhabited by depth from 5 to 30 centimeters (cm) (2 water in some vernal pools (Hanes et al. the San Diego fairy shrimp, are located to 12 in.) and in water temperature from 1990). Downward percolation is in San Diego County. However, the 10 to 20 degrees Celsius (C) (50 to 68 prevented by the presence of an cumulative loss of vernal pool habitat in degrees Fahrenheit (F)) (Fugate and impervious subsurface layer, such as a San Diego County is estimated at 90 to Simovich 1992, Hathaway and claypan, hardpan, or volcanic stratum 97 percent (Bauder 1986, Oberbauer and Simovich undated). Water chemistry is (Holland 1976, 1988). Due to local Vanderweir 1991, Keeler-Wolf et al. one of the most important factors in topography and geology, the pools are 1995). Based on a composite of available determining the distribution of fairy usually clustered into pool complexes information, the Service estimates that shrimp (Belk 1977, Branchiopod (Bauder 1986, Holland and Jain 1988). less than 81 ha (200 ac) of occupied Research Group 1996). The San Diego Pools within a complex are typically vernal pool habitat likely remains. Weir fairy shrimp appears to be sensitive to separated by distances on the order of and Bauder (1991) estimate that 70 high water temperatures (Branchiopod meters and may form dense, percent of remaining vernal pool habitat Research Group 1996). Hathaway and interconnected mosaics of small pools occurs on military lands. Keeler-Wolf et Simovich (undated) presented data or a more sparse scattering of larger al. (1995) concluded that the greatest indicating that pools located in the pools. recent losses of vernal pool habitat in inland mountain and desert regions may Temporary inundation makes vernal San Diego County have occurred in Mira be too cool (below 5 degrees C (41 pools too wet during the wet period of Mesa, Penasquitos, and Kearney Mesa, degrees F)) or too warm (above 30 the year for adjacent upland plant which accounted for 73 percent of all degrees C (86 degrees F)) for this species adapted to drier soil conditions, the pools destroyed in the region during species. while rapid drying during late spring the 7-year period between 1979 and Adult San Diego fairy shrimp are makes pool basins unsuitable for typical 1986. Other substantial losses have usually observed from January to March; marsh or aquatic species that require a occurred in the Otay Mesa area, where however, in years with early or late more permanent source of water. over 40 percent of the vernal pools were rainfall, the hatching period may be However, a number of indigenous plant destroyed during the 11-year period extended. The species hatches and and aquatic invertebrate species have between 1979 and 1990. Vernal pools in matures within 7 days to 2 weeks evolved to occupy the extreme southern coastal Santa Barbara County depending on water temperature environmental conditions found in are imperiled by development (Ferren (Hathaway and Simovich undated, vernal pool habitats (Alexander 1976, and Pritchett 1988, Keeler-Wolf et al. Simovich and Hathaway undated). The Barclay and Knight 1984, Baskin 1994, 1995). Vernal pool habitat was once San Diego fairy shrimp disappear after Zedler 1987). Fairy shrimp play an extensive on the coastal plain of Los about a month, but animals will important role in the community Angeles County (R. Mattoni and T. continue to hatch if subsequent rains ecology of many ephemeral water Longcore, in litt., 1996). The loss of result in additional water or refilling of bodies. They are fed upon by waterfowl vernal pool habitat is now nearly total the vernal pools (Branchiopod Research (Krapu 1974, Swanson et al. 1974) and in Los Angeles and Orange counties Group 1996). The eggs are either other vertebrates, such as western (Keeler-Wolf et al. 1995, Ferren and dropped to the pool bottom or remain in spadefoot toad (Scaphiopus hammondi) Pritchett 1988). the brood sac until the female dies and tadpoles (Branchiopod Research Group sinks. The ‘‘resting’’ or ‘‘summer’’ eggs 1996). Previous Federal Action are capable of withstanding heat, cold, Urban and water development, flood On March 24, 1992, the Service and prolonged drying. When the pools control, highway and utility projects, as received a petition dated March 16, refill in the same or subsequent rainy well as conversion of wildlands to 1992, from David Hogan, formerly of the seasons, some but not all of the eggs agricultural use, have eliminated vernal San Diego Biodiversity Project in Julian, may hatch. Fairy shrimp egg banks in pools in southern California (Jones and California, and Dr. Denton Belk of the the soil may be comprised of the eggs Stokes Associates 1987). Changes in Lady of Our Lake University in San from several years of breeding (Donald hydrological pattern, overgrazing, and Antonio, Texas, to list the San Diego 1983). ORV use also imperil this aquatic fairy shrimp as an endangered species. The genetic characteristics of the San habitat and the San Diego fairy shrimp. On August 4, 1994, the Service Diego fairy shrimp, as well as ecological Human activities that impact the published a proposed rule in the conditions such as watershed watershed of vernal pools indirectly Federal Register (59 FR 39874) to list contiguity, indicate that populations of affect this animal. The flora and fauna the San Diego fairy shrimp as an these animals are defined by pool in vernal pools or swales can change if endangered species. The proposed rule Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4927 was the first Federal action on the San corrections to the range of the species, Issue 2 Diego fairy shrimp and also constituted the spelling of its scientific name, and Several respondents stated that the the 12-month warranted finding that the additional information on co-occurrence Service’s notification to the public on petitioned action was warranted, as with other listed vernal pool species. the proposal was inadequate. required by section 4(b)(3)(B) of the Act. These revisions have been incorporated The processing of this final rule into this final rule. Service Response follows the Service’s fiscal year 1997 On August 18, 1994, the Service The Service went through an listing priority guidance published in received a written request for a public extensive notification process to make the Federal Register on December 5, hearing from the late Dr. William the public aware of the proposal, 1996 (61 FR 64475). The guidance Hazeltine of Oroville, California. Several including Federal Register notifications, clarifies the order in which the Service other requests for a public hearing also letters to specific concerned parties, and will process rulemaking following two were received. As a result, on notifications in local newspapers. This related events: (1) the lifting on April September 26, 1994, the Service process satisfied the requirements of the 26, 1996, of the moratorium on final published a notice in the Federal listings imposed on April 10, 1995 Act and was described at the beginning Register (59 FR 49045) announcing the of this section. (Public Law 104–6), and (2) the public hearing and extending the restoration of significant funding for comment period until October 31, 1994. Issue 3 listing through passage of the Omnibus The Service conducted a public hearing Some respondents believed that Budget Reconciliation Act passed on on October 19, 1994, at the Radisson listing the San Diego fairy shrimp would April 26, 1996, following severe funding Hotel in Rancho Bernardo, California. result in adverse economic impacts to constraints imposed by a number of Testimony was taken from 6 p.m. to 8 continuing resolutions between hundreds of acres of land and p.m. Twenty-one individuals presented questioned the value of these animals to November 1995 and April 1996. The testimony on the San Diego fairy guidance calls for giving highest priority society. Two commenters requested that shrimp. During the comment periods, an analysis of the economic impact of to handling emergency situations (Tier the Service received 63 comments 1) and second highest priority (Tier 2) listing the species be completed. Other (letters and oral testimony), from 1 commenters claimed the San Diego fairy to resolving the listing status of the Federal agency, 1 local agency, and 61 outstanding proposed listings. This final shrimp is an ‘‘insignificant’’ species and individuals or groups. Several that listing would interfere with the rule falls under Tier 2. At this time there individuals submitted more than one are no pending Tier 1 actions. This rule natural evolutionary process of comment. Twenty-six comments has been updated to reflect any changes extinction. Conversely, a number of supported the proposed listing, 30 in distribution, status and threats since respondents asserted that opposition to opposed it, and 7 were neutral. the effective date of the listing the listing of the species was based moratorium. This additional The Service has reviewed all of the solely on economic interests. They cited information was not of a nature to alter written and oral comments received the ecological and educational value of the Service’s decision to list the species. during the comment period. Several vernal pool plants and animals. Four comments dealt with matters of opinion crustacean biologists noted that the Summary of Comments and or legal history, which are not relevant species is of great scientific value to the Recommendations to the listing decision. Comments study of biological evolution, In the August 4, 1994, proposed rule updating the data presented in the systematics, and ecology. ‘‘Background’’ or ‘‘Summary of Factors and associated notifications, all Service Response interested parties were requested to Affecting the Species’’ are incorporated submit factual reports or information into those sections of this final rule. Under section 4(b)(1)(A) of the Act, a that might assist the Service in Opposing comments and other listing determination must be based determining whether listing is substantive comments concerning the solely on the best scientific and warranted for this species. Appropriate rule have been organized into specific commercial data available. The State agencies, county governments issues. These issues and the Service’s legislative history of this provision (including affected planning response to each are summarized as clearly states the intent of Congress to departments), Federal agencies, follows. ‘‘ensure’’ that listing decisions are ‘‘based solely on biological criteria and scientific organizations, and other Issue 1 interested parties were contacted and to prevent non-biological criteria from requested to comment. Notices of the A number of commenters stated that affecting such decisions’’ (H.R. Rep. No. proposed rule were published in the a single public hearing was inadequate 97–835, 97th Cong. 2d Sess. 19 (1982)). San Diego Union Tribune, Orange to obtain full public input on the As further stated in the congressional County Register, and the Riverside proposal. They requested that public report, ‘‘economic considerations have County Press-Enterprise. hearings be held in more than one no relevance to determinations In compliance with Service policy on location. regarding the status of species.’’ Because information standards under the Act (59 the Service is specifically precluded Service Response FR 34270; July 1, 1994), the Service from considering economic impacts in a solicited the expert opinions of three The Service is obligated to hold at final decision on a proposed listing, the appropriate and independent specialists least one public hearing on a listing Service does not consider the possible regarding pertinent scientific or proposal if requested to do so within 45 economic consequences of listing the commercial data and assumptions days of publication of the proposal (50 San Diego fairy shrimp. Although a relating to the taxonomy, population CFR 424.16(c)(3)). Considering the variety of opinions likely exist as to a models, and supportive biological and limited geographic distribution of the particular species’ contribution to ecological information for the San Diego species, the Service judged that holding society, including its aesthetic, fairy shrimp. Comments received from a single public hearing did not cause scientific, or other significance, this these reviewers were supportive of the undue inconvenience to those wishing issue is not among the five factors upon proposed listing action and included to attend. which a listing determination is based. 4928 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations

Issue 4 for this animal that were destroyed to Service Response One commenter stated that the listing escape regulatory requirements. The other vernal pool taxa that have of the San Diego fairy shrimp will result Designation of critical habitat for the been listed under the Act have a more in a ‘‘taking’’ of their private property in San Diego fairy shrimp is not prudent restricted range, inhabit different clear violation of their constitutional and would increase the degree of threat geographic areas, or different vernal rights. facing the species. Further discussion is pool habitats (e.g., deeper pools) than contained in the ‘‘Critical Habitat’’ Service Response the San Diego fairy shrimp. In addition, section below. although one purpose of the Act is to Listing under the Act does not imply Issue 6 conserve ecosystems upon which that private land would be confiscated endangered and threatened species or taken without just compensation. The One commenter claimed that the depend, species rather than ecosystems San Diego fairy shrimp will be protected petition was not valid because, pursuant are listed under the Act. Please see under section 9 of the Act, which to 50 CFR 424.14(b)(2)(I), the document Factor ‘‘D’’ below for further discussion. prohibits the take of this animal. was submitted prior to the publication Recovery planning for the species may of the scientific paper naming the Issue 9 include recommendations for land species. Two commenters stated that the acquisition or easements involving Service Response Service had not obtained the review of private landowners. These efforts would the proposed listing by three experts. only be undertaken with the Pursuant to 50 CFR 424.14(b)(2)(I), a One of these commenters, in his cooperation of the landowner. In the petition must contain the scientific and discussion of the motives of one majority of cases, private landowners common name of the species. The petitioner and two of his scientific are not precluded from using their land petition for the listing of the San Diego colleagues, questioned whether the in the manner originally intended. fairy shrimp contained this information. Service had ‘‘accounted for the bias on Executive Order 12630, Government Although the document was received the part of the listing proponents.’’ Actions and Interference with prior to publication of the formal Constitutionally Protected Property description of the animal, the petition Service Response Rights, requires that a Takings included sufficient information, In accordance with the Service’s Implications Assessment (TIA) be including a pre-publication copy of the policy on peer review, the proposed rule conducted ‘‘as a part of any final paper, to adequately identify the for the San Diego fairy shrimp was rulemaking to evaluate the risk of and species. reviewed by at least four vernal pool strategies for avoidance of the taking of specialists, including three experts other private property.’’ However, the Issue 7 than the individuals referred to by the Attorney General has issued guidelines Two commenters stated that commenter, as well as by all interested to the Department of the Interior development of areas containing the San reviewers during the public comment (Department) regarding TIAs. The Diego fairy shrimp should be allowed to period on the proposed rule. Although Attorney General’s guidelines state that proceed because this is the only way to the Service acknowledges the concern of TIAs used to analyze the potential for provide an economic incentive for Fifth Amendment ‘‘taking claims’’ are to the commenter regarding the parties private landowners to protect the expressing contrary views, the final be prepared after, rather than before, an habitat of this animal. agency makes a restricted discretionary decision to list the San Diego fairy decision. In enacting the Act, Congress Service Response shrimp is based on the best scientific required the Department to list a species and commercial information available, The Service recognizes that while based solely upon scientific and which includes peer review by some populations of the San Diego fairy commercial data indicating whether or acknowledged authorities. shrimp located on private lands are not the species is in danger of protected by their owners, significant Issue 10 extinction. The Service may not privately owned areas containing the withhold a listing based upon economic Three commenters requested that the animal and its habitat are not secure concerns. Therefore, even though a TIA Service delay or not list the San Diego against adverse impacts. Between 1979 may be required, a TIA for a listing fairy shrimp because they felt that there action is finalized only after the final and 1986, approximately 68 percent of is insufficient information on the determination is made regarding the privately owned vernal pools under distribution and abundance of the whether to list the species. the City of San Diego’s jurisdiction were animal. Some of these parties contended destroyed (Weir and Bauder 1991). that the data are lacking because the Issue 5 Please refer to Factor ‘‘A’’ below for an species was not formally described until Three respondents stated that critical expanded discussion on landownership 1993. One commenter stated that the habitat should be designated for the San patterns and protection for the species. status of the species in Ventura, Los Angeles, and Orange counties is not Diego fairy shrimp. Issue 8 clear. Expressing a contrary view, a Service Response Two commenters stated that the San recognized crustacean biologist stated The Service believes that the risk Diego fairy shrimp should not be listed that the fairy shrimp fauna of southern posed by designating critical habitat at under the Act because the animal is California is well known. Two biologists this time outweighs the potential indirectly protected by other taxa noted that misidentification of the benefits. As discussed in Factors ‘‘A’’ inhabiting vernal pools that have been species may have caused confusion and ‘‘E’’ under the ‘‘Summary of Factors designated as endangered or threatened regarding the distribution of the San Affecting the Species’’ section below, species. Another commenter said that Diego fairy shrimp. Four biologists the San Diego fairy shrimp could be only the protection of ecosystems rather commented that the species has specific adversely affected by acts of vandalism. than species-by-species listing will ecological and biological requirements The Service is aware of vernal pools protect the San Diego fairy shrimp and and the animal has a restricted apparently containing suitable habitat its vernal pool habitat. geographic range. Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4929

Service Response changes in hydrological patterns in Baja California peninsula. In addition, areas it inhabits). the respondent said that the Service The Service concludes, as detailed in lacks the data to complete a ‘‘reasoned Issue 12 the ‘‘Background’’ and ‘‘Summary of analysis’’ of the historic and potential Factors’’ sections, that sufficient Two commenters claimed that the loss of the vernal pool habitat of the biological data exist to warrant listing of data on the San Diego fairy shrimp do animal and requested specific the San Diego fairy shrimp under the not demonstrate a historic and information on potential development Act. Sampling conducted at various consistent decline in population levels. projects to allow public review and locations and intensities between 1962 Service Response comment on threats to the species posed and 1993 by biologists familiar with by these proposed actions. fairy shrimp and their habitats provided Relatively little information is adequate information on the available to reconstruct the distribution Service Response distribution, habitat requirements, and, of the San Diego fairy shrimp prior to Potentially suitable conditions for most importantly, threats to the San the loss of its vernal pool habitat that vernal pools in Baja California exist Diego fairy shrimp to warrant the began in the 1800’s. However, the along the coast from the United States/ present action. Fugate’s formal Service is required to evaluate species Mexico border south to about 30 degrees description of the species (Fugate 1993) based on current and likely future north Latitude. Only a few vernal pools contains records of the San Diego fairy threats to their status. In all likelihood, are known from this area because of the shrimp that were collected in 1962. The the species’’ status over time probably typically mountainous terrain and species has not been found in the few paralleled the region-wide trend in relative absence of plateaus and mesas. extant vernal pools in Ventura and Los vernal pool losses. As discussed in this Those present are subject to adverse Angeles counties, and it has an final rule, 97 percent of its vernal pool human impacts. Sonoran Desert habitat extremely limited distribution in Santa habitat has been destroyed, and all is found south of 30 degrees north Barbara and Orange counties, in part extant populations of this endemic Latitude (Shreve and Wiggins 1986, based on the prevailing lack of suitable vernal pool species face severe, Wiggins 1980); ephemeral wetlands in habitat. The majority of the extant imminent threats that could result in that region do not provide suitable populations of the San Diego fairy substantial habitat losses and conditions for the San Diego fairy shrimp are found in San Diego County. extirpations in the future. shrimp. Please see Factor ‘‘A’’ for a The listing process includes an discussion of the specific threats to each Issue 13 opportunity for the public to comment of the locations inhabited by the San and provide information that is Several commenters noted that the Diego fairy shrimp in California and evaluated and considered by the Service proposed rule incorrectly stated that the northwestern Baja California. Copies of before making a final decision. The San Diego fairy shrimp is found in more the Environmental Impact Statements additional data provided by respondents than 70 vernal pools located in 11 for individual development projects during the comment period, the report vernal pool complexes. impacting occupied locations are by the Branchiopod Research Group Service Response available for public review at the (1996), and other appropriate Carlsbad Field Office (see ADDRESSES information available to the Service After reviewing all available section). information, the Service has determined have been incorporated into this final Issue 15 rule. None of these sources provide that the San Diego fairy shrimp inhabits evidence indicating that this taxon is a minimum of 25 vernal pool complexes One commenter stated that 90 percent not endangered. These materials in San Diego, Orange, and Santa Barbara of the remaining vernal pool habitat in represent the best available scientific counties, and Baja California. Although San Diego County is located on U.S. and commercial information upon the species inhabits a number of vernal Navy and Marine Corps bases and, which to base a listing decision. pool complexes that were not included therefore, is protected. Two commenters in the proposed rule, the Service’s noted that proactive management Issue 11 decision to list the animal is based on programs for vernal pools have been significant threats associated with past implemented at the affected military Several commenters stated that the and likely future habitat loss and facilities. However, three commenters San Diego fairy shrimp does not warrant fragmentation, rather than solely on the noted that vernal pool habitat for the listing because of its ‘‘widespread’’ basis of numbers of inhabited vernal San Diego fairy shrimp has been distribution. pools or vernal pool complexes. degraded by ORVs and trash dumping at Service Response Furthermore, based on available Miramar Naval Air Station and Marine information, the Service estimates that Corps Base Camp Pendleton. After reviewing all available data, the less than 81 ha (200 ac) of habitat Service Response Service concludes the San Diego fairy remain that support the species. Please shrimp is found in less than 81 ha (200 see Factor ‘‘A’’ for a discussion of the Weir and Bauder (1991) state that 70 ac) of vernal pool habitat and is not a status of the locations inhabited by the percent of the remaining vernal pools widespread species. The animal is animal. occur on military lands. The largest restricted to vernal pools in coastal remaining block of habitat for the San southern California and extreme Issue 14 Diego fairy shrimp is located at Miramar northwestern Baja California, Mexico. One commenter asserted that there are Naval Air Station. This site contains As described elsewhere in this final insufficient data upon which to approximately 26 ha (65 ac) of vernal rule, the San Diego fairy shrimp is determine the potential habitat of the pools, exclusive of associated imperiled by habitat loss from San Diego fairy shrimp in California and watersheds. The base is owned by the construction activities (urban Baja California, Mexico. This U.S. Navy and will be realigned to the development, highway construction, commenter suggested that the Service U.S. Marine Corps on October 1, 1997. etc.) and degradation (conversion of survey for the species throughout Furthermore, proposed re-alignment land to agricultural use, ORV use, and southern California, as well as the entire related activities will impact 4930 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations approximately 4 percent of the vernal pool habitat. Some of these records, because trash could provide shade and pools at the air station. (Department of such as roadside ditches, scraped areas, ORVs could serve as a dispersal agent. the Navy 1996). The U.S. Navy and the and airport runoff ditches likely This same party questioned whether U.S. Marine Corps have stated that they represent remnant vernal pool habitat or fragmentation of the vernal pool do not have plans to permit a National are part of the swale systems connected complexes resulting from human Wildlife Refuge overlay of the vernal to vernal pools, a fact reiterated in the actions poses a threat to the San Diego pools, and have not prepared a oral comments of a vernal pool expert fairy shrimp because the complexes management plan for the vernal pools during the public hearing. Most of these have historically constituted fragmented (Department of the Navy 1996). The U.S. disturbed habitats are also imperiled by habitat. In contrast, two biologists noted Marine Corps has not yet prepared a urban development. that the species is imperiled by management plan for the vernal pools at The record of San Diego fairy shrimp chemicals associated with trash Camp Pendleton. Therefore, the in ‘‘mud puddles’’ at El Camino dumping, such as motor oil or protection of the San Diego fairy shrimp Memorial Park in Mira Mesa likely pesticides, and by the physical damage at the two bases containing the largest represents degraded vernal pool habitat. or destruction of the vernal pools blocks of extant vernal pools within the The animals that inhabit the Miramar through alteration in hydrology caused range of the species is not assured. Landfill site were likely distributed into by urban development, ORVs, and other this area from adjacent areas with extant actions. Issue 16 vernal pools, or eggs were contained in One commenter questioned the material that was scraped from an area Service Response accuracy of the references (Bauder 1986, that previously contained vernal pools After reviewing all available data, the Oberbauer 1990) which provided the and was used to cover the landfill. Service has determined that habitat amount of historic and extant vernal In addition, the accurate fragmentation, trash dumping, ORV use, pools. In addition, the commenter stated identification of fairy shrimp is and alterations in the hydrology of the that some of the information was only extremely difficult because the vernal pool habitat of the San Diego relevant to San Diego County and not morphological characters that fairy shrimp imperil the species. Please the remainder of the species’ range in differentiate the species are often subtle refer to Factors ‘‘A’’ and ‘‘E’’ for an California and Baja California. The and can be misinterpreted by biologists expanded discussion of these threats. commenter did not provide data to not specifically trained in fairy shrimp Issue 20 support his assertion that the identification. Widespread common information utilized by the Service was species, such as Lindahl’s fairy shrimp, One commenter stated that cattle incorrect. can be mistaken for other fairy shrimp grazing does not affect the San Diego species, including the San Diego fairy fairy shrimp, but did not present Service Response shrimp. Some of the records of the San supporting data. The Service has determined that Diego fairy shrimp in non-vernal pool Service Response Bauder (1986) and Oberbauer (1990) habitats may be the result of such based their conclusions on data misidentifications. The Service recognizes and gathered utilizing acceptable scientific acknowledges that low to moderate methods. Except for a few remnant sites, Issue 18 levels of livestock grazing likely have vernal pools in Santa Barbara, Ventura, Three commenters questioned the minimal impacts on the San Diego fairy Los Angeles, and Orange counties have scientific basis upon which the shrimp. However, overgrazing in areas been destroyed. taxonomy of the San Diego fairy shrimp containing the animal is likely to be is based. Two of these parties, citing the detrimental. High livestock densities Issue 17 lack of unambiguous genetic data, may result in excessive physical Two commenters asserted that the claimed that it is unclear that the animal disturbances, such as trampling, and San Diego fairy shrimp is not restricted is a distinct species. However, a changes in pool water chemistry and to vernal pools because individuals recognized crustacean biologist stated water quality. Trampling of pool have been observed in man-made non- that the San Diego fairy shrimp is margins and thinning of vegetation from vernal pool habitats such as roadside distinct. This biologist noted that the overgrazing may increase pasture runoff, ditches, mud puddles, and road ruts. genetics of the genus had been leading to erosion and increased The City of San Diego provided examined in detail by Fugate (1992). siltation of vernal pool habitat. information describing vernal pools inhabited by the animal that formed on Service Response Issue 21 soil placed on top of the Miramar Using the best and most recent One commenter stated that a Landfill. Expressing a contrary view, systematic information from a number minimum viable population analysis for five biologists stated that the San Diego of reliable sources, including Eng et al. the San Diego fairy shrimp must be fairy shrimp is restricted to vernal (1990), Fugate (1992, 1993), and other completed prior to listing because an pools. They reported that the ‘‘artificial’’ recognized experts on fairy shrimp analysis based on the loss of the vernal habitats are either degraded vernal pools taxonomy, the Service adopts the pool habitat of the species does not or areas subject to overflow from extant prevailing scientific consensus and provide a basis upon which to evaluate pools during periods of high water. maintains that the San Diego fairy the status of the animal. shrimp is a distinct species. Service Response Service Response The Service has carefully reviewed Issue 19 A minimum viable population the assertion that the San Diego fairy One commenter questioned the threat analysis, while potentially useful for shrimp is found in non-vernal pool to the San Diego fairy shrimp posed by developing a recovery plan for the habitat. A number of the sites that ORV activity, trash dumping, and species (Shaffer 1990), is not required to served as the basis for this belief have alterations of vernal pool hydrology. determine whether a taxon should be been examined by Service biologists and This commenter felt that trash dumping listed, nor does it address foreseeable were found to represent degraded vernal and ORV use could benefit the animal deterministic threats to species. Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4931

Issue 22 support brine shrimp (Artemia sp.) to Issue 23 Three respondents contended that the snow melt pools. Poor planning, Nine respondents alleged that proposed rule did not accurately reflect careless construction, or haphazard Federal, State and local regulatory the success of vernal pool ‘‘creation’’ placement of the substrate during vernal processes provide adequate protection efforts. The commenters claimed that pool creation may enhance conditions for the crustaceans. Several of these artificial vernal pools were successful for species like Lindahl’s fairy shrimp. commenters said that listing would and were adequate mitigation for Laboratory studies have shown that directly affect agricultural, industrial adverse impacts to vernal pools Lindahl’s fairy shrimp and the San and commercial development in areas resulting from urban development. Diego fairy shrimp readily hybridize in that have been meticulously planned the laboratory and produce viable first and subject to State laws such as the Service Response generation hybrids (Fugate 1992, Natural Community Conservation In a review of 21 vernal pool creation Branchiopod Research Group 1996). Planning (NCCP) Act and the California projects located throughout California, Evidence suggests that hybridization Environmental Quality Act (CEQA). Ferren and Gervitz (1990) concluded between other fairy shrimp has occurred Some commenters noted the ‘‘no net that no conclusive data exist to in the field due to human actions. Belk loss’’ wetlands policies of several State substantiate the hypothesis ‘‘that vernal (1977) reported that the westward and county agencies, while others cited pools can be restored or created to dispersal of a desert fairy shrimp section 404 of the Clean Water Act as provide functional values within the (Streptocephalus dorothae) from Texas providing protection for this habitat. range of variability of natural pools.’’ and New Mexico across extensive Two commenters, citing two The only known vernal pool creation expanses of arid land into Arizona may development projects in San Diego experiment conducted in southern be due to the cattle ponds and livestock County, claimed that significant California that specifically investigated watering holes that were built in the portions of the vernal pools at these fairy shrimp was a failure (Branchiopod region during the past century. Wiman project sites will be preserved. These Research Group 1996). Although some (1979) reported that viable hybrid commenters stated that these projects individuals (Sugnet and Associates et offspring are produced by this species are representative of the level of al. 1992) have claimed complete success and Mackin’s desert fairy shrimp (S. preservation afforded vernal pool or some degree of success for vernal mackini), a resident species in Arizona. habitat in the San Diego area. pools in the Central Valley of California, The San Diego fairy shrimp may be Expressing a contrary position, these conclusions are generally based on adversely impacted as a result of actions several other commenters noted that anecdotal studies and the persistence of taken to create and/or restore vernal Federal, State, and local laws have been fairy shrimp for only a short period of pools (Branchiopod Research Group ineffective in providing protection for time (e.g., 3 years or less). Moreover, the 1996). Scraping of the vernal pool the species. One commenter noted that principle pool creation technique (i.e., bottoms for plant seed collection can the City of San Diego has approved the relocation of soil from excavated pool damage or destroy fairy shrimp eggs, California Terraces project on Otay bottoms rather than inoculation with a and heat or humidity during storage can Mesa, and has advanced other projects known quantity of eggs) and a lack of mold or kill eggs. Created or modified impacting San Diego fairy shrimp scientifically designed monitoring do vernal pools may hold water for habitat through the CEQA planning not allow for collection of the necessary inappropriate lengths of time, at process without adequate mitigation for data to determine the long-term inappropriate depths or temperatures. the species. population viability of transplanted species (Branchiopod Research Group Given these uncertainties associated Service Response 1996). with vernal pool creation, the Service Based on an examination of the In a study of the preservation and maintains that transplanting target available information, the Service has management of vernal pools (Jones and species (e.g., listed, proposed, and determined that proposed and on-going Stokes Associates 1990), the researchers candidate species) into artificial pools damage or destruction of vernal pools in concluded that the ‘‘science of vernal cannot be considered adequate southern California caused by urban and pool creation is still in its infancy and replacement for the loss of occupied agricultural development is prevalent is primarily an experimental mitigation vernal pool habitat. Even if such despite existing Federal, State, and local technique.’’ Environmental transplantation of the San Diego fairy regulations. Existing levels of protection requirements, not dispersal, are likely shrimp and creation of its habitat were are not adequate to assure the survival the limiting factors in the distribution of documented to be a proven procedure of the San Diego fairy shrimp. For fairy shrimp (U.S. Fish and Wildlife rather than an evolving problematic example, while vernal pool habitat has Service (USFWS) 1994). The San Diego venture, artificial pool creation for the been preserved permanently for some fairy shrimp requires more restrictive species would not fulfill the mandates projects through special conditions of environmental conditions than more of section 2 of the Act, which require permits authorized under section 404 of widely distributed taxa (Branchiopod the Service to develop programs that the Federal Clean Water Act, significant Research Group 1996). No demonstrated conserve the ecosystems upon which areas of vernal pool habitat continue to long-term populations of the San Diego listed species depend. As discussed be destroyed in spite of the U.S. Army fairy shrimp exist in artificial habitats. elsewhere in this rule, natural habitat Corps of Engineers’ (Corps) Artificially created habitats may also throughout the range of the San Diego jurisdictional authority to regulate these increase the potential for hybridization fairy shrimp has been damaged or wetlands under the Clean Water Act. between the San Diego fairy shrimp and eliminated. As a result, the Service Between 1993 and 1996, the Service other more widespread species. For concludes that the continued survival identified 15 unauthorized projects in example, Lindahl’s fairy shrimp is a and recovery of the San Diego fairy San Diego and Orange counties that widespread species found in western shrimp can only be assured at this time destroyed or damaged a minimum of 40 North America that occurs in a wide by the preservation and enhancement of vernal pools exclusive of watersheds array of habitats, ranging from pools extant vernal pools and their associated (Susan Wynn, USFWS, unpub. notes). whose salinity is high enough to watersheds. The projects were not authorized 4932 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations because landowners either were not protections that would be afforded the could further fragment and degrade the required or failed to comply with the San Diego fairy shrimp by this plan remaining vernal pool habitat of the San regulatory requirements of the section cannot yet been determined. Please see Diego fairy shrimp. 404 permitting process. Please see Factor ‘‘D’’ for a discussion of the The following is a discussion of the Factor ‘‘D’’ for a detailed discussion of inadequacy of these regulatory status of the locations that contain the inadequacy of existing regulations. mechanisms. suitable vernal pool habit for the San Diego fairy shrimp. Issue 24 Summary of Factors Affecting the Five commenters stated that the San Species San Diego County Diego Multiple Species Conservation After a thorough review and Tijuana Slough National Wildlife Refuge Program (MSCP) plan and the Multiple consideration of all available The vernal pool watershed is Habitat Conservation Plan (MHCP) that information, the Service has determined approximately 2 ha (5 ac) in size. are being prepared pursuant to the State that the San Diego fairy shrimp should Construction of an improved fence on of California’s NCCP Act of 1991 will be classified as an endangered species. the United States/Mexican border has adequately protect the San Diego fairy Procedures found at section 4 of the Act apparently eliminated trampling caused shrimp and its vernal pool habitat in and regulations implementing the by persons crossing the border illegally. San Diego County. For this reason, the listing provisions of the Act (50 CFR commenters urged the Service not to list part 424) were followed. A species may Proctor Valley the animal. Expressing a contrary view, be determined to be an endangered or This small vernal pool complex is one respondent stated that the MSCP threatened species due to one or more located in an isolated valley (Bauder and the MHCP will not adequately of the five factors described in section 1986). The vernal pools are highly protect the animal or its habitat. This 4(a)(1). These factors and their disturbed by grazing and ORV traffic same respondent noted that no plan that application to the San Diego fairy (Julie Vanderweir, USFWS, pers. obs.). will protect the San Diego fairy shrimp shrimp (Branchinecta sandiegonensis The San Diego fairy shrimp has been has been adopted by any local Fugate) are as follows. documented at this site. The vernal government in southern California. A. The Present or Threatened pools in Proctor Valley are part of the Service Response Destruction, Modification, or MSCP. The San Diego fairy shrimp is Curtailment of Their Habitat or Range Otay Mesa proposed to be covered under the MSCP The San Diego fairy shrimp is The vernal pools at this site are plan, which is currently in the final imperiled because its vernal pool located in several disjunct locations stages of the National Environmental habitat is being damaged or destroyed across the southernmost mesa in Policy Act public review process. The by a variety of human-caused activities, California. Otay Mesa extends from just Service anticipates making a decision primarily urban development and south of the Otay River, across the on ‘‘incidental take’’ (section agricultural conversion. Habitat loss international border into Mexico, west 10(a)(1)(B)) permit issuance in April occurs from destruction and to Interstate 805, and east to the 1997. The Service has determined that modification of vernal pools due to foothills below Otay Mountain. 72 percent of the remaining vernal pool filling, grading, discing, leveling, and Historical and ongoing agricultural habitat within the MSCP planning area other activities, as well as the activities, such as cattle ranching and is located in the proposed program modification of surrounding uplands dry land farming, have continually preserve. However, less than 30 percent that alters vernal pool watersheds. disturbed this area and have destroyed of the total San Diego fairy shrimp Rapid urbanization of areas 78 percent of the vernal pools once habitat is protected within the MSCP containing vernal pools poses a located on Otay Mesa. The remaining planning area. Additional important significant threat to the San Diego fairy vernal pools are scattered, with the only habitat for this species occurs on shrimp. Nearly all of the vernal pools sizeable areas of vernal pool habitat military lands, such as Miramar Naval that occurred throughout the range of occurring on the northeastern corner of Air Station, but this land is not included the species from southern Santa Barbara Otay Mesa. The San Diego fairy shrimp as part of the MSCP. Military lands County to extreme northwestern Baja has been documented at this site (H. contain the largest remaining blocks of California have been eliminated (Keeler- Wier and J. Brown, in litt., 1994). vernal pool habitat for the San Diego Wolf et al. 1995). The majority of extant Portions of the vernal pool complexes fairy shrimp, approximately 70 percent vernal pools located in the range of the on Otay Mesa are part of the MSCP and of the total habitat of the species. San Diego fairy shrimp are found in San are also being considered for inclusion Conservation planning for listed species Diego County. According to Bauder in the proposed San Diego National on military lands will be accomplished (1986), 838 vernal pools comprising 283 Wildlife Refuge. Otay Mesa currently is through separate avenues, such as ha (698 ac) were eliminated by urban farmed for truck crops and barley and is formal consultations pursuant to section development between 1979 and 1986. grazed. However, significant portions 7 of the Act and through the Sikes Act Adequate mitigation measures were not have been or are proposed for industrial agreements. It will be the responsibility implemented for these areas. In general, and residential development in the Otay of the Service to ensure that these the growth rate of the human population Mesa Community Plan. This conservation planning activities are and associated urban development in development is closely associated with consistent with the MSCP or MHCP southern California and northwestern development projects that have been or should these plans be approved. Baja California is equal to or exceeds will be implemented on the United Preserve management plans must that of any other region in California. States/Mexican border. A proposed toll include specific measures to protect San Diego is one of the fastest growing road would facilitate the development against detrimental edge effects to the counties in the nation, with a of significant portions of Otay Mesa. San Diego fairy shrimp. The MHCP is population increase of 349 percent On west Otay Mesa, the proposed still in development and the precise between 1950 and 1990 (California California Terraces residential project configuration and conservation strategy Department of Finance 1993). The will eliminate significant amounts of have not been determined. Therefore the population growth rate that is predicted vernal pool habitat for the San Diego Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4933 fairy shrimp. The Final Environmental damage caused by bikes, trash dumping, would damage or eliminate the vernal Impact Report for this project has been and unrestricted hiking. pools containing habitat for the species. approved by the City of San Diego. Linda Vista Del Mar Mesa, Lopez Ridge, and Mira Other proposed projects, such as State Mesa Highway 905, Robinhood Ridge, Hidden Museum specimens of the San Diego Trails, and Santee Investments also fairy shrimp are known from Linda The vernal pools found on Del Mar would adversely impact vernal pool Vista. However, these vernal pools have Mesa are part of a large mesa of habitat for this animal. been eliminated by urban development. approximately 36 square km (14 square mi). Approximately 120 vernal pools On east Otay Mesa, the proposed Otay Kearney Mesa Ranch and State Highway 125 would with a high diversity of sizes, depths, impact approximately 9,300 ha (23,000 The vernal pools on Kearney Mesa surface configuration, and soil type ac), including substantial areas originally covered approximately 38 occur in this area (Bauder 1986). The containing habitat for the San Diego square km (15 square mi). However, the San Diego fairy shrimp has been fairy shrimp. Some of the vernal pools majority of this region has been documented in vernal pools at this site located within these project areas are developed for residential and (H. Wier and J. Brown, in litt., 1994). located in a proposed biological reserve. commercial uses. Some of the vernal pool complexes at However, the projects as proposed The largest and most contiguous block Del Mar Mesa are included in the MSCP would eliminate the majority of the and number of vernal pools in southern and are proposed to be included within the San Diego National Wildlife Refuge. habitat for the San Diego fairy shrimp. California and northwestern Baja California occurs on Miramar Naval Air Residential development occurs to the On-going actions by the U.S. Border east, agriculture consisting of row-crop Patrol on Otay Mesa continue to Station. Weir and Bauder (1991) state that 70 percent of the remaining vernal dry farming occurs in McGonigle significantly impact vernal pools by Canyon, and undeveloped private lands ORV use and associated law pools occur on military lands. Approximately 26 ha (65 ac) of vernal occur to the west. enforcement activities. Unauthorized The City of San Diego’s proposed pools are located on the Miramar Naval discing and grading on Otay Mesa also Future Urbanizing Area Neighborhood Air Station. These pools exhibit a wide has impacted vernal pool habitat for the 8A project would result in the damage San Diego fairy shrimp. variety of conditions from disturbed to or loss of several vernal pools on Del pristine, and vary greatly in size, depth, Otay Lakes Mar Mesa. Some of these vernal pools type and number of cobbles, soil type, have recently been scraped. The These vernal pools consist of several hydrological characteristics, and species construction of two major roads is scattered complexes, north and south of composition. The San Diego fairy proposed in the immediate vicinity of the lake, not connected by any shrimp has been estimated to inhabit 80 the California Department of continuous mesa system (Bauder 1986). percent of the vernal pools at the base Transportation vernal pool reserve. If Four vernal pool complexes at Otay (Branchiopod Research Group 1996). completed, these roads would result in Lakes are included in the MSCP and are This military base will be transferred further isolation and fragmentation of proposed to be included within the San from the U.S. Navy to the U.S. Marine these vernal pools and their watersheds, Diego National Wildlife Refuge. These Corps (Department of the Navy 1996). as well as impacts to several pools pools are owned by the City of San The Marine Corps has proposed outside of the reserve. Used Diego. A proposed resort would construction of additional helicopter refrigerators, sofas, and other trash have eliminate all vernal pools that are landing fields, ammunition bunkers, been dumped in and around the vernal located north of the lake. and other facilities that may adversely pools outside of the vernal pool reserve. affect areas containing habitat for the Sweetwater Reservoir Ninety of the vernal pools on Lopez San Diego fairy shrimp. Ridge are owned by the California The vernal pools occur on the The vernal pools at Montgomery Field Department of Transportation and the southwestern edge of Sweetwater occur within the approach path of the City of San Diego. The vernal pools have Reservoir in southern San Diego County. airport. This vernal pool complex is in a wide variety of sizes and depths These pools are one of the few a heavily urbanized area surrounded by (Bauder 1986). The area containing remaining examples of isolated vernal the airport, research and office vernal pools on the north side of Carroll pool habitat between the central mesas developments, and Interstate 15 and Canyon is being quarried for sand and of San Diego and Otay Mesa to the south State Route 163. Three separate areas of gravel. Some of the vernal pool (Bauder 1986). The surrounding area airport land encompass the watershed complexes at Lopez Ridge are included has been brushed or grazed and consists containing 138 vernal pools. Although in the MSCP and are proposed to be primarily of disturbed ruderal this site has been set aside for the included within the San Diego National vegetation. Portions of the area protection of the vernal pools, in Wildlife Refuge. The remainder are containing vernal pools have been February 1995 unknown persons dug located on private property and are proposed for urban development. Some trenches which resulted in the draining proposed to be developed for residential of the vernal pool complexes at of some high-quality pools. The vernal housing. Although the publicly owned Sweetwater Reservoir are included in pools at Montgomery Field are included pools are protected from development, the MSCP and are proposed to be in the MSCP and are proposed to be part ORV activity, proposed development included within the San Diego National of the San Diego National Wildlife immediately adjacent to the preserve, Wildlife Refuge. However, the extension Refuge. and proposed restoration actions may of State Route 125 may impact a portion The construction of a sludge threaten the San Diego fairy shrimp at of these vernal pools. processing facility and mounding of this locality (M. Simovich, pers. comm., excess dirt at the Miramar Landfill, as Mission Trails County Park 1993). well as on-going landfill maintenance Some of the vernal pools at The small vernal pool complex at this have eliminated vernal pools inhabited Challenger High School in Mira Mesa site is inhabited by the San Diego fairy by the San Diego fairy shrimp. The were filled without authorization under shrimp. The vernal pools are subject to proposed extension of Nobel Drive the Clean Water Act during the winter 4934 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations of 1987 to 1988. No restoration for this Ramona Airport may impact some of the substantial agricultural and urban action has occurred to date; a public vernal pools. Other vernal pools have development in Ventura, Los Angeles, park is proposed for this location. been eliminated by the construction of and Orange counties. retail stores and the realignment of Dye The vernal pools at Isla Vista are Carlsbad and Highland Roads. Bauder (1986) found in an isolated group that occurs The small vernal pool complex in stated that overgrazing by cattle has a on a flat-topped coastal mesa. Despite Carlsbad is located on a coastal bluff in significant impact on these pools. To intensive sampling, only a single adult an urbanized area. The San Diego fairy date, no proposal has been made to female San Diego fairy shrimp is known shrimp has been documented at this site protect the Ramona vernal pools. from the Del Sol Open Space and Vernal (H. Wier and J. Brown, in litt., 1994). Pool Reserve in Isla Vista. This park is Construction of a railroad station and San Marcos owned and managed by the Isla Vista associated facilities resulted in the The vernal pools in San Marcos are Recreation and Park District, a local permanent loss of some of the vernal more closely related, physically and agency (Ferren and Pritchett 1988). pools. The mitigation consisted of botanically, to vernal pools in Riverside Directed surveys of vernal pools in Isla restoration and preservation of County than those in San Diego County Vista for fairy shrimp have not located additional habitat. The remaining vernal (Bauder 1986). Two of the four vernal any additional San Diego fairy shrimp pools are protected in a preserve. pool complexes in San Marcos have individuals (M. Simovich, pers. comm., 1994). Marine Corps Base Camp Pendleton been eliminated (Bauder 1986; Chris Nagano, USFWS, pers. obs., 1996). The Baja California The vernal pools at Marine Corps remaining complexes have been Base Camp Pendleton are found on the significantly impacted by discing (F. Few vernal pool complexes in Baja coastal bluffs in the vicinity of Interstate Roberts, USFWS, pers. obs., 1995). California are similar to those in San 5 north of the mouth of the Santa Indirect impacts, such as runoff from Diego County. The vernal pool complex Margarita River, and in the vicinity of adjacent industrial areas, adversely at Valle de las Palmas, located south of Wire Mountain (Bauder 1986). Mima affect the vernal pools. No conservation Tecate, contains several proposed or mound topography (a natural patchwork measures have been undertaken or are rare plant species (Brown et al. 1993). of soil mounds and surrounding flat proposed for the San Marcos vernal The vernal pools at Valle de las Palmas ground) is well developed on the coastal pools, which the City of San Marcos has are being adversely affected by cattle bluffs and the vernal pools vary greatly requested be excluded from the grazing, agriculture, and removal of clay in size and depth. The vernal pools on proposed MHCP. soil for pottery and bricks. The highly Wire Mountain, in the western portion disturbed vernal pool complex located of the base, are located in a watershed Orange County at Bajamar, north of Ensenada, is consisting of coastal sage scrub. The The San Diego fairy shrimp has been imperiled by cattle grazing and vernal pools on Wire Mountain have recorded at Fairview Park in the City of potentially from chemical spills from been fenced to prevent entry by casual Costa Mesa. This site has been damaged the adjacent highway. No Federal, State, visitors and ‘‘keep out’’ signs have been by recreational activities, such as dog or local regulations protect the vernal placed around a few of the pools. Many walking, model airplane flying, and pools or the San Diego fairy shrimp in of the vernal pools on the coastal bluffs soccer players. Insecticide spraying for Mexico. continue to be damaged or destroyed mosquito control in the park also likely The San Diego fairy shrimp is during military maneuvers. adversely impacts the vernal pool especially vulnerable to alterations in hydrology. Its vernal pool habitat is also Poway habitat. The San Diego fairy shrimp has been found inhabiting a single vernal vulnerable to indirect destruction due to The vernal pools in Poway were pool located along the proposed the alteration of supporting watersheds. historically located north of Poway Antonio Parkway in southern Orange Development projects adjacent to vernal Road and east of Interstate 15 (Bauder County. pools are often responsible for adverse 1986). Some of the pools occurred on alterations in drainage. Hydrological mesa fingers and others were in grassy Los Angeles County alterations can result from urban or hills (Bauder 1986); however, only three The San Diego fairy shrimp has not agricultural development or a vernal pools were extant at this site by been recorded from the two known combination of these activities. An the end of 1987. The majority of the extant vernal pools in Los Angeles increase in water due to urban run-off vernal pools at this site have been County. leads to increased inundation, making eliminated by urban development. No the pools vulnerable to invasion by conservation measures have been Ventura County marsh plant species that outcompete undertaken or are proposed for the The San Diego fairy shrimp has not obligate (restricted to) vernal pool taxa, Poway vernal pools. Therefore, these been recorded from the two known resulting in decreased abundance of pools are still subject to potential urban extant vernal pool complexes in Ventura obligate vernal pool taxa. At the other development, ORV use, and other County. extreme, some pools have been drained human-caused disturbances. or blocked from their source of water Santa Barbara County and have shown an increased Ramona Vernal pools are rare in Santa Barbara domination by upland plant species. The vernal pools in Ramona are found County; they are located at Moore Mesa, Alterations in vernal pool hydrology in an inland valley approximately 65 Ellwood Mesa, and Isla Vista. All of the may adversely impact the San Diego km (40 mi) from the coast (Bauder vernal pools in this area have been or fairy shrimp due to changes in the 1986). They represent the easternmost are currently imperiled by urban maximum and minimum water and highest elevational occurrences in development, ORVs, draining, and other temperatures. San Diego County. These vernal pools, human-caused factors (Ferren and Filling of vernal pool wetlands which vary in size and depth, are Pritchett 1988). The Santa Barbara without authorization from the Corps located in non-native grassland and County vernal pools are now isolated also poses a threat to this species. The coastal sage scrub. Expansion of the from those in San Diego County by Service is aware of 15 actions that Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4935 occurred between 1993 and 1996 in San NCCP/HCP; (5) local laws and smaller projects is generally less than 1 Diego County, including urban regulations; (6) Federal land acre, and therefore, most projects development, that have resulted in the management responsibilities; and (7) qualify for Nationwide Permit 26. damage or destruction of approximately Mexican law. Discing and other farming or ranching 40 vernal pools, exclusive of associated practices, including grazing, can Clean Water Act watersheds, that likely provided habitat degrade or destroy vernal pool habitat for the San Diego fairy shrimp (S. Wynn, Under section 404 of the Clean Water without a permit from the Corps F. Roberts, unpub. notes). At least three Act, the Corps regulates the discharge of because many of these activities are of these parties likely intended to alter fill into waters of the United States, exempt from regulation under the Clean the elevations of the site to eliminate including navigable waters, wetlands Water Act (33 CFR 323.4(a)). The one or more of the parameters used by (e.g., vernal pools), and other waters (33 discontinuous configuration of the pools the Corps to define a wetland according CFR parts 320–330). The Clean Water and swales further obscures separation to their 1987 jurisdictional manual (U.S. Act requires project proponents to of these wetland losses. Army Corps of Engineers 1987). Similar obtain a permit from the Corps prior to Endangered Species Act deliberate activities that are damaging or undertaking many activities (e.g., destroying vernal pools are likely grading, discharge of soil or other fill The Act can incidentally afford occurring throughout the range of the material) that would result in the filling protection to San Diego fairy shrimp if San Diego fairy shrimp (S. Wynn, of wetlands subject to the Corps’ they co-exist with species already listed unpub. notes). Because of the immediate jurisdiction. The Corps promulgated as threatened or endangered. Pogogyne threat posed by these on-going Nationwide Permit Number 26 to abramsii (San Diego mesa mint), P. activities, the Service finds that good address fill of isolated or headwater nudiscula (Otay mesa mint), Orcuttia cause exists for this rule to take effect wetlands totaling less than 10 acres. californica (California orcutt grass), immediately upon publication in Under the 1996 reauthorized Eryngium aristulatum var. parishii (San accordance with 5 U.S.C. 553(d)(3). Nationwide Permit 26 (61 FR 65873), Diego button celery), and the Riverside project proposals that involve the fill of fairy shrimp (Streptocephalus wootoni) B. Overutilization for Commercial, wetlands of less than one-third of an are listed as endangered under the Act Recreational, Scientific or Educational acre are considered authorized. Fill of and occur in the same habitat as the San Purposes between one-third and one acre requires Diego fairy shrimp. However, these Not known to be applicable. notification only to the Corps. Where fill species are not always found in the would adversely modify between 1 and same vernal pools or vernal pool C. Disease or Predation. 3 acres of wetland, the Corps circulates complexes as the San Diego fairy No known diseases affect the San a predischarge notification to the shrimp. The Riverside fairy shrimp and Diego fairy shrimp. Fairy shrimp are a Service and other interested parties for San Diego fairy shrimp are known to co- food item in the diet of migratory comment to determine whether an exist in only three vernal pool waterfowl and other native animals individual permit should be required for complexes in San Diego County. Within (Krapu 1974, Swanson et al. 1974). a proposed fill activity and associated a vernal pool complex, the San Diego However, this naturally occurring impacts. fairy shrimp often does not occur in the predation is not considered a threat to Individual Corps permits are required same pools as listed plant species. the continued existence of the San for discharge of material that would fill Except for the Riverside fairy shrimp, Diego fairy shrimp. or adversely modify more than 3 acres these other noted vernal pool species of wetlands. The review process for are plants for which the Act does not D. The Inadequacy of Existing individual permits is more rigorous than provide prohibitions against take. Regulatory Mechanisms for nationwide permits. Unlike Therefore, the umbrella protection that The primary cause for the decline of nationwide permits, an analysis of they may provide would only occur if this species is loss of habitat due to cumulative wetland impacts is required a proposed federally funded or human activities. No State or local laws for individual permit applications. authorized action would jeopardize the exist that adequately protect the San Resulting permits may include special continued existence of those species, as Diego fairy shrimp. Other regulatory conditions that require potential determined in a biological opinion mechanisms necessary for the avoidance or mitigation for developed under section 7 of the Act. conservation of its vernal pool habitat environmental impacts. On nationwide have also proven inadequate and permits, the Corps has discretionary California Environmental Quality Act ineffective. authority to instead require an Section 15380 of the CEQA requires Existing regulatory mechanisms that individual permit if the Corps believes that impacts to any taxon that meets the could provide some protection for the that resources are sufficiently important, criteria for listing under the California San Diego fairy shrimp include: (1) regardless of the wetland’s size. In Endangered Species Act be treated as section 404 of the Federal Clean Water practice, however, the Corps generally significant regardless of its current Act; (2) occurrence with other species does not require an individual permit listing status. The San Diego fairy protected by the Federal Endangered when a project qualifies for a shrimp has been recognized as a distinct Species Act; (3) consideration under the nationwide permit, unless a threatened taxon by the scientific and local California Environmental Quality Act or endangered species or other conservation communities since 1990. (CEQA); (4) implementation of significant resources would be adversely Impacts to this species would qualify as conservation plans pursuant to the State affected by the proposed activity. Most significant under section 15380 of the of California’s Natural Community vernal pools and swales within the CEQA even though this species was not Conservation Planning Act of 1991 range of the San Diego fairy shrimp described taxonomically until 1993 (NCCP), including the San Diego encompass less than 1 acre. The (Fugate 1993). However, this taxon has Multiple Species Conservation Plan discontinuous distribution of these sites only been considered in a limited (MSCP), the San Diego County Multiple has allowed some landowners to divide number of environmental impact reports Habitat Conservation Plan (MHCP), and large projects into several smaller since 1990. Required biological surveys the Central/Coastal Orange County projects. Wetland acreage on these are often inadequate and project 4936 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations proponents may ignore the results of Local Laws and Regulations Highways Administration does not have surveys if occurrences of sensitive The San Diego fairy shrimp is not to complete an evaluation pursuant to species are viewed as a constraint on specifically protected under any local section 4(f) of the U.S. Department of project design. Mitigation measures laws or regulations. The San Diego fairy Transportation Act (49 U.S.C. 303). In used to condition project approvals are shrimp occurs within the California addition, a resort is proposed within the essentially experimental and fail to Department of Transportation Vernal unit located above Otay Lakes that adequately guarantee protection of the Pool Preserve on Del Mar Mesa. would eliminate the vernal pools on populations. Most mitigation plans that Although these pools are being managed that site. The San Diego fairy shrimp is found have been required were designed for the long-term protection of vernal on Federal lands managed by the U.S. specifically for vernal pool plants. The pool flora and fauna, ORV activity, Navy at Cholla Heights Naval Housing artificial creation of vernal pools as proposed development immediately compensatory mitigation has not been and Miramar Naval Air Station, and the adjacent to the preserve, and proposed U.S. Marine Corps at Camp Pendleton. scientifically demonstrated to be restoration actions may threaten the San successful (Ferren and Gevirtz 1990; These lands are used, in part, for Diego fairy shrimp at this locality (M. military training activities that involve Zedler and Black 1988; M. Simovich, in Simovich, pers. comm., 1993). litt., 1992). For example, in San Diego ORV maneuvers that adversely impact The San Diego Vernal Pool the species (Hogan and Belk 1992). The County, vernal pools containing the San Preservation Program, enacted by the Diego fairy shrimp and the federally and air station will be transferred to the City of San Diego in 1980, did not Marine Corps on October 1, 1997. The State-listed San Diego mesa mint were include adequate protection for vernal destroyed without adequate Marine Corps has indicated that they pools, nor did it contain sufficient will not allow a National Wildlife environmental documentation or mitigation to compensate for the loss of coordination with the Service and the Refuge overlay on the air station vernal pools. More than 800 pools have (Department of the Navy 1996); California Department of Fish and been destroyed under the preservation Game. however, they have agreed to place a plan, and only three sites containing vernal pool stewardship overlay on the Natural Communities Conservation approximately 8 ha (21.8 ac) of areas of the base containing vernal Planning Act watersheds containing vernal pools pools. The Marine Corps stated that they have been purchased using $882,000 of will implement management plans for In 1991, the State of California passed the mitigation funds. The preservation the vernal pools at Miramar Naval Air the NCCP Act to address the program did not collect sufficient funds Station and Camp Pendleton, but none conservation needs of natural to mitigate the vernal pool land area has been prepared to date. Surrounding ecosystems throughout the State. The lost, nor did it include suitable preserve privately owned vernal pool habitat and initial focus of this program was the size, design configuration, or adequate watershed is not protected. coastal sage scrub community in management. southern California, although other Mexican Law associated vegetation communities are Federal Land Management Responsibilities The Service is not aware of any also being addressed in this ecosystem- existing regulatory mechanisms that based planning approach. The San The Service has proposed a National would protect the San Diego fairy Diego fairy shrimp is found in vernal Wildlife Refuge in San Diego County shrimp or its habitat where it occurs in pools that are often not located in which includes a proposed Vernal Pool northwestern Baja California, Mexico. coastal sage scrub. However, the San Stewardship Project. The Draft Diego fairy shrimp is being treated as a Environmental Assessment for the E. Other Natural or Man-Mmade Factors covered species under the MSCP plan Vernal Pools Stewardship Project was Affecting Their Continued Existence and MHCP. These plans, under released in November of 1996. Approval Secondary impacts associated with development by the County of San of the Vernal Pools Stewardship Project urbanization include disposal of waste Diego and its coastal cities, are being does not grant the Service jurisdiction materials into habitat for the San Diego integrated as components of the NCCP or control over lands within the project fairy shrimp. Disposal of concrete, tires, program. The MSCP is developed and is boundary, nor does it automatically refrigerators, sofas, and other trash currently undergoing the final stages of make lands within the project boundary adversely affects these animals by the public review process. The MHCP is part of the National Wildlife Refuge eliminating habitat, disrupting pool still in the developmental phase, and it System (NWRS). Lands do not become hydrology or, in some cases, through is uncertain as to how successful it will part of the NWRS until they are release of toxic substances (Bauder be in providing protection for this purchased by the Service or are placed 1986, 1987). Malathion, herbicides, species. The Central/Coastal Orange under an agreement that provides for laundry detergent, household plant County NCCP/HCP (approved by the management as part of the refuge fertilizer, and motor oil have been Service on July 17, 1996) treats the San system. Service policy is to acquire documented to be fatal to the San Diego Diego fairy shrimp as a ‘‘conditionally lands only from willing sellers. To date, fairy shrimp through poisoning of the covered’’ species and provides coverage the Service has not purchased any lands animals or by the formation of a barrier for this species under the section for inclusion in the vernal pool unit, nor to gas exchange on the surface of the 10(a)(1)(B) ‘‘incidental take’’ permits are any lands under an agreement to be water, which can result in asphyxiation only for highly degraded and/or managed as part of the refuge. Proposed (Branchiopod Research Group 1996). artificial habitat. Non-degraded, natural projects are located within several of the Dust and other forms of air or water vernal pool habitat is not covered. The areas recommended for inclusion in the pollution from commercial development San Diego fairy shrimp has not been vernal pool refuge. On Otay Mesa and or agricultural projects may also be confirmed in the Central/Coastal NCCP/ below the Sweetwater Reservoir, the deleterious to this animal. HCP planning area. If present, it would proposed alignment for State Route 125 ORV use also imperils the San Diego likely occur in highly degraded and/or intersects lands within the proposed fairy shrimp. ORVs crush fairy shrimp artificial habitat, where incidental take refuge boundary. Because these lands eggs (Ericksen et al. 1986); less than the would be allowed under the permit. have not been purchased, the Federal weight of an apple can crush dormant Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4937 fairy shrimp eggs (Branchiopod for the San Diego fairy shrimp is not identified without designation of critical Research Group 1996). ORVs can also prudent for the reasons discussed habitat. Therefore, the Service finds that cut deep ruts, compact soil, destroy below. designation of critical habitat for the native vegetation, and alter pool San Diego fairy shrimp is not prudent at Critical Habitat hydrology. Fire fighting activities, this time, because such designation security patrols, military maneuvers, Critical habitat is defined in section 3 would likely increase the degree of and recreational activities have of the Act as—(I) the specific areas threat from vandalism or other human cumulatively damaged vernal pool within the geographical area occupied activities. habitats in many areas within the range by a species, at the time it is listed in Available Conservation Measures of the species (Bauder 1986, 1987). On accordance with the Act, on which are the Otay Mesa, law enforcement-related found those physical or biological Conservation measures provided to ORV use by the U.S. Border Patrol has features (I) essential to the conservation species listed as endangered or adversely impacted vernal pools known of the species and (II) that may require threatened under the Act include to be inhabited by the San Diego fairy special management consideration or recognition, recovery actions, shrimp. protection; and (ii) specific areas requirements for Federal protection, and Cattle grazing occurs on Otay Mesa, outside the geographical area occupied prohibitions against certain activities. Otay Lakes, and Ramona in areas where by a species at the time it is listed, upon Recognition through listing encourages several vernal pool complexes contain a determination that such areas are and results in public awareness and the San Diego fairy shrimp. Overgrazing essential for the conservation of the conservation actions by Federal, State, in areas containing the animal and its species. ‘‘Conservation’’ means the use and local agencies, private habitat is likely detrimental. High levels of all methods and procedures needed organizations, and individuals. The Act of pasture runoff may lead to increased to bring the species to the point at provides for possible land acquisition siltation of vernal pool habitat. High which listing under the Act is no longer and cooperation with the States and livestock densities may result in necessary. requires that recovery plans be excessive physical disturbance, such as Section 4(a)(3) of the Act, as developed for listed species. The trampling, and cause changes in pool amended, and implementing regulations protection required by Federal agencies water chemistry and water quality. (50 CFR 424.12) require that, to the and the prohibitions against taking and Impacts due to overgrazing have been maximum extent prudent and harm are discussed, in part, below. described as analogous to those from determinable, the Secretary designate Section 7(a) of the Act, as amended, vehicle traffic (e.g., causing deep tracks, critical habitat concurrently with requires Federal agencies to evaluate burying eggs, and trampling determining a species to be endangered their actions with respect to any species individuals) (Bauder 1986, 1987). or threatened. The Service finds that the that is proposed or listed as endangered The Service has carefully assessed the designation of critical habitat is not or threatened and with respect to its best available scientific and commercial prudent for the San Diego fairy shrimp. critical habitat, if any is being information regarding past, present, and Service regulations at 50 CFR designated. Regulations implementing future threats faced by the San Diego 424.12(a)(1) state that designation of this interagency cooperation provision fairy shrimp in determining to issue this critical habitat is not prudent when one of the Act are codified at 50 CFR part final rule. Based on this evaluation, the or both of the following situations exist: 402. Section 7(a)(1) requires Federal preferred action is to list the San Diego (1) The species is threatened by taking agencies to use their authorities to fairy shrimp as endangered. This or other human activity, and further the purposes of the Act by species is imperiled by rapid identification of critical habitat can be carrying out programs for listed species. urbanization, conversion of land to expected to increase the degree of such Section 7(a)(2) of the Act requires agricultural use, vehicle use, extremely threat to the species, or (2) such Federal agencies to insure that activities limited available habitat (less than 81 ha designation of critical habitat would not they authorize, fund, or carry out are not (200 ac) of vernal pools), and changes in be beneficial to the species. Because the likely to jeopardize the continued hydrologic patterns in areas where they San Diego fairy shrimp faces numerous existence of the species. If a Federal occur. Numerous ongoing and proposed human-caused threats (see Factors ‘‘A’’ action is likely to adversely affect a development projects pose an imminent and ‘‘E’’ above), the publication of listed species, the responsible Federal threat to the San Diego fairy shrimp. precise maps and descriptions of critical agency must enter into formal Extraordinary increases in the human habitat in the Federal Register would consultation with the Service. population and associated pressures make this species more vulnerable to Federal agencies expected to have from urban development have rendered incidents of vandalism and, therefore, involvement with the San Diego fairy existing regulatory mechanisms would contribute to the decline of the shrimp include the Army Corps of inadequate. All of the known species. A number of sites inhabited by Engineers and the Environmental populations of the San Diego fairy the San Diego fairy shrimp occur on Protection Agency due to their permit shrimp are imperiled. Only a portion of private land that is undergoing rapid authority under section 404 of the Clean the extant vernal pools would be urban development and agricultural Water Act. Nationwide permits are not protected under the MSCP and/or the conversion. As documented in this rule, valid where a federally listed proposed San Diego National Wildlife some areas have been destroyed to endangered or threatened species would Refuge. Because the San Diego fairy eliminate vernal pool characteristics be affected by the proposed project. shrimp has been extirpated from all but and escape regulatory jurisdiction by When listed species may be affected, approximately 81 ha (200 ac) of vernal the Corps. The proper agencies have formal consultation is required pursuant pool habitat, and because of the threats been notified concerning management to section 7 of the Act before nationwide to the species discussed above, the San requirements of the animal. Protection permits become effective. Diego fairy shrimp is in danger of of the habitat of the species will be The San Diego fairy shrimp occurs on extinction throughout all or a significant addressed through the recovery, section Miramar Naval Air Station, Marine portion of its range and thus meets the 7 consultation, and incidental take Corps Base Camp Pendleton, and Cholla definition of endangered as defined in permit processes. Federal involvement Heights Naval Housing. These bases will the Act. Designation of critical habitat in areas where the animal occurs can be likely be involved through military 4938 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations activities or potential excessing of to agents of the Service and State to the Field Supervisor of the Service’s Federal lands. The Department of conservation agencies. Carlsbad Field Office (see ADDRESSES Transportation (Federal Highways Permits may be issued to carry out section). Requests for copies of the Administration) may possibly be otherwise prohibited activities regulations regarding listed wildlife and affected by the listing of this species involving endangered wildlife under inquiries about prohibitions and permits because some populations occur on certain circumstances. Regulations should be addressed to U.S. Fish and properties where federally funded governing permits are codified at 50 Wildlife Service, Ecological Services, roadways may be constructed. Activities CFR 17.22 and 17.23. Such permits are Endangered Species Permits, 911 N.E. undertaken by the U.S. Border Patrol available for scientific purposes, to 11th Avenue, Portland, Oregon 97232– may affect vernal pools containing the enhance the propagation or survival of 4181 (telephone 503/231–2063, species along the international border. the species, and/or for incidental take in facsimile 503/231–6243). The Federal Aviation Administration connection with otherwise lawful Reasons for Effective Date will be affected through activities they activities. It is the policy of the Service, fund, permit, or authorize at the The Service is concerned that published in the Federal Register on Ramona Airport and Montgomery Field issuance of a final rule for this species July 1, 1994 (59 FR 34272), to identify Airport. In addition, the Department of that is not effective immediately upon to the maximum extent practicable at Housing and Urban Development (HUD) publication will result in continued may insure housing loans in areas that the time a species is listed those activities that would constitute a deliberate damage to vernal pools presently support San Diego fairy inhabited by the San Diego fairy shrimp. shrimp. HUD actions regarding these violation of section 9 of the Act. The intent of this policy is to increase public As discussed under Factor ‘‘A’’ above, loans would also be subject to review by on-going alteration of vernal pool the Service under section 7 of the Act. awareness of the effect of the listing on proposed and on-going activities within hydrology and destruction of pools has The listing of the San Diego fairy been documented by the Service. shrimp also brings sections 5 and 6 of a species’ range. Activities that could potentially result in ‘‘take’’ of the San Because of the immediate threat to the the Act into effect. Section 5 authorizes Diego fairy shrimp include, but are not continued existence of the San Diego acquisition of lands for the purposes of limited to: unauthorized collecting or fairy shrimp posed by these on-going conserving endangered and threatened handling of the animal, unauthorized activities, the Service finds that good species. Pursuant to section 6, the pesticide applications within the vernal cause exists for this rule to take effect Service will be able to grant funds to the pool habitat of the species, or immediately upon publication in affected State for management actions intentional or unauthorized damage or accordance with 5 U.S.C. 553(d)(3). aiding in protection and recovery of the destruction of its habitat (e.g., ORV use, species. National Environmental Policy Act urban development or agricultural Listing the San Diego fairy shrimp as conversion that damages or destroys the The Fish and Wildlife Service has endangered provides for the vernal pools or alters their hydrology), determined that Environmental development and implementation of a violation of the terms and conditions of Assessments and Environmental Impact recovery plan for the species. Such a discharge permits, and discharges or Statements, as defined under the plan will bring together State and dumping of toxic chemicals, silt authority of the National Environmental Federal efforts for conservation of the fertilizers, oil, organic wastes, or other Policy Act of 1969, need not be species. The plan will establish a pollutants into waters supporting the prepared in connection with regulations framework for agencies to coordinate species. adopted pursuant to section 4(a) of the activities and cooperate with each other Activities that the Service believes are Endangered Species Act of 1973, as in conservation efforts. The plan will set unlikely to result in a violation of amended. A notice outlining the recovery priorities and estimate the section 9 are: possession, delivery, or Service’s reasons for this determination costs of various tasks necessary to movement, including interstate was published in the Federal Register accomplish the priorities. It also will transport and import into or export from on October 25, 1983 (48 FR 49244). describe site-specific management the Unites States, involving no actions necessary to achieve commercial activity, of dead specimens References Cited conservation and survival of the San of the San Diego fairy shrimp that were Diego fairy shrimp. A complete list of all references cited collected prior to the date of publication in this rule is available upon request The Act and its implementing in the Federal Register of the final from the Carlsbad Field Office (see regulations set forth a series of regulation adding this species to the list ADDRESSES section). prohibitions and exceptions that apply of endangered species; and federally to all endangered wildlife. The approved projects that involve activities Required Determinations prohibitions, codified at 50 CFR 17.21 such as discharge of fill material, for endangered wildlife, in part, make it draining, ditching, tiling, pond The Service has examined this illegal for any person subject to the construction, stream channelization or regulation under the Paperwork jurisdiction of the United States to take diversion, or alteration of surface or Reduction Act of 1995 and found it to (includes harass, harm, pursue, hunt, ground water into or out of a wetland contain no information collection shoot, wound, kill, trap, capture, or (i.e., due to roads, impoundments, requirements. This rulemaking was not collect; or to attempt any of these), discharge pipes, storm water detention subject to review by the Office of import or export, ship in interstate or basins, etc.), when such activity is Managment and Budget under Executive foreign commerce in the course of conducted in accordance with any Order 12866. commercial activity, or sell or offer for reasonable and prudent measures given Authors sale in interstate or foreign commerce by the Service in accordance with any listed species. It also is illegal to section 7 of the Act. The primary authors of this final rule possess, sell, deliver, carry, transport, or Questions regarding whether specific are Chris Nagano and Susan Wynn, ship any such wildlife that has been activities will constitute a violation of Carlsbad Field Office (see ADDRESSES taken illegally. Certain exceptions apply section 9 of the Act should be directed section). Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4939

List of Subjects in 50 CFR Part 17 Regulations, is amended as set forth 2. Section 17.11(h) is amended by below: adding the following, in alphabetical Endangered and threatened species, order under CRUSTACEANS, to the List Exports, Imports, Reporting and PART 17Ð[AMENDED] of Endangered and Threatened Wildlife, recordkeeping requirements, and to read as follows: Transportation. 1. The authority citation for part 17 continues to read as follows: § 17.11 Endangered and threatened Regulation Promulgation wildlife. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Accordingly, part 17, subchapter B of 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– * * * * * chapter I, title 50 of the Code of Federal 625, 100 Stat. 3500, unless otherwise noted. (h) * * *

Species Verte- brate popu- lation Historic range where Status When Critical Special Common name Scientific name endan- listed habitat rules gered or threat- ened

******* CRUSTACEANS

******* Fairy shrimp, San Diego ...... Branchinecta U.S.A. (CA), Mexico .. NA E 608 NA NA sandiegonensis.

*******

Dated: January 27, 1997. John G. Rogers, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 97–2578 Filed 1–31–97; 8:45 am] BILLING CODE 4310±55±P