Tuesday, April 12, 2005

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical for the Riverside Fairy Shrimp ( woottoni); Final Rule

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\12APR2.SGM 12APR2 19154 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

DEPARTMENT OF THE INTERIOR additional agency discretion would with the most biologically urgent allow our focus to return to those species conservation needs. Fish and Wildlife Service actions that provide the greatest benefit The consequence of the critical to the species most in need of habitat litigation activity is that limited 50 CFR Part 17 protection. listing funds are used to defend active RIN 1018—AT45 lawsuits, to respond to Notices of Intent Role of Critical Habitat in Actual (NOIs) to sue relative to critical habitat, Practice of Administering and and to comply with the growing number Endangered and Threatened Wildlife Implementing the Act and Plants; Designation of Critical of adverse court orders. As a result, Habitat for the Riverside Fairy Shrimp While attention to and protection of listing petition responses, the Service’s () habitat are paramount to successful own proposals to list critically conservation actions, we have imperiled species and final listing AGENCY: Fish and Wildlife Service, consistently found that, in most determinations on existing proposals are Interior. circumstances, the designation of all significantly delayed. ACTION: Final rule. critical habitat is of little additional The accelerated schedules of court value for most listed species, yet it ordered designations have left the SUMMARY: We, the U.S. Fish and consumes large amounts of conservation Service with almost no ability to Wildlife Service (Service), designate resources. Sidle (1987) stated, ‘‘Because provide for adequate public critical habitat for the federally the Act can protect species with and participation or to ensure a defect-free endangered Riverside fairy shrimp without critical habitat designation, rulemaking process before making (Streptocephalus woottoni) pursuant to critical habitat designation may be decisions on listing and critical habitat the Act of 1973, as redundant to the other consultation proposals due to the risks associated amended (Act). The critical habitat requirements of section 7.’’ Currently, of with noncompliance with judicially- designation encompasses approximately the 1,253 listed species in the U.S. imposed deadlines. This in turn fosters 306 acres (ac) (124 hectares (ha)) of land under the jurisdiction of the Service, a second round of litigation in which within Ventura, Orange, and San Diego only 470 species (38 percent) have those who fear adverse impacts from counties, California. designated critical habitat. critical habitat designations challenge those designations. The cycle of DATES: This rule becomes effective on We address the habitat needs of all litigation appears endless, is very May 12, 2005. 1,244 listed species through expensive, and in the final analysis ADDRESSES: Comments and materials conservation mechanisms such as provides relatively little additional received, as well as supporting listing, section 7 consultations, the documentation used in the preparation protection to listed species. section 4 recovery planning process, the The costs resulting from the of this final rule, are available for public section 9 protective prohibitions of designation include legal costs, the cost inspection, by appointment, during unauthorized take, section 6 funding to of preparation and publication of the normal business hours, at the Carlsbad the States, and the section 10 incidental designation, the analysis of the Fish and Wildlife Office, U.S. Fish and take permit process. The Service economic effects and the cost of Wildlife Service, 6010 Hidden Valley believes that it is these measures that requesting and responding to public Road, Carlsbad, California 92009 may make the difference between comment, and in some cases the costs (telephone 760/431–9440). The final extinction and survival for many of compliance with the National rule, economic analysis, and maps of species. Environmental Policy Act (NEPA). None the designation are also available via the We note, however, that the recent 9th of these costs result in any benefit to the Internet at http://carlsbad.fws.gov. Circuit judicial opinion in the case of species that is not already afforded by FOR FURTHER INFORMATION CONTACT: Jim Gifford Pinchot Task Force v. United the protections of the Act enumerated Bartel, Field Supervisor, Carlsbad Fish States Fish and Wildlife Service has earlier, and they directly reduce the and Wildlife Office, at the above address invalidated the Service’s regulation funds available for direct and tangible (telephone 760/431–9440; facsimile defining destruction or adverse conservation actions. 760/431–9618). modification of critical habitat. We are Background SUPPLEMENTARY INFORMATION: currently reviewing the decision to determine what effect it may have on Among the rarest species Designation of Critical Habitat Provides the outcome of consultations pursuant endemic (native) to Southern California Little Additional Protection to Species to section 7 of the Act. is a tiny freshwater known as In 30 years of implementing the Act, the Riverside fairy shrimp Procedural and Resource Difficulties in the Service has found that the (Streptocephalus woottoni). Its Designating Critical Habitat designation of statutory critical habitat distribution is highly restricted, with provides little additional protection to We have been inundated with most of the known populations of the most listed species, while consuming lawsuits for our failure to designate endangered Riverside fairy shrimp significant amounts of available critical habitat, and we face a growing observed in vernal pools located in conservation resources. The Service’s number of lawsuits challenging critical portions of a few counties and 50 miles present system for designating critical habitat determinations once they are (mi) (24 kilometers (km)) or less from habitat has evolved since its original made. These lawsuits have subjected the the California coast, and ranging only statutory prescription into a process that Service to an ever-increasing series of approximately 125 mi (200 km) from its provides little real conservation benefit, court orders and court-approved known northern limit (Ventura and Los is driven by litigation and the courts settlement agreements, compliance with Angeles counties) to its southern limit rather than biology, limits our ability to which now consumes nearly the entire (Mexico border, San Diego County) fully evaluate the science involved, listing program budget. This leaves the within the U.S. (Eng et al. 1990; consumes enormous agency resources, Service with little ability to prioritize its Simovich and Fugate 1992; Eriksen and and imposes huge social and economic activities to direct scarce listing Belk 1999; Service 2004 (69 FR 23024)). costs. The Service believes that resources to the listing program actions It does not occur in the nearby desert or

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19155

mountain areas (Hathaway and for portions of the wet season, when 2.5 ac (1 ha) or more. They occur on Simovich 1996). It is also among the temperatures are sufficient for plant gently sloping mesas above the primary most recently discovered freshwater growth (Keeley and Zedler 1998). drainages, or in valleys at the low end crustacean species in California, first Following a brief waterlogged period of a watershed (Bauder and McMillan identified in 1985 as a unique species during the late wet season or early dry 1998). Vernal pools may be fed or (Eng et al. 1990) in the genus season, a vernal pool will eventually connected by low drainage pathways, or Streptocephalus (Baird 1852). With 63 drain and dry out, followed by an swales. The micro-relief of a vernal pool species that occur worldwide (retrieved extended period of extreme soil-drying may be complex, and some are dotted February 22, 2005, from the Integrated conditions (Keeley and Zedler 1998; with numerous rounded soil mounds Taxonomic Information System on-line Rains et al. 2005). Swales are defined as (mima) (Scheffer 1947). Their typical database, http://www.itis.usda.gov), shallow drainages that carry water patterning, visible from the air, has Streptocephalus is the most species-rich seasonally. Central to the distinctive allowed a number of vernal pools to be genus within the aquatic crustacean ecology of vernal pools is that they are mapped throughout California’s Central order , which comprises over vernal, or ephemeral, i.e., occurring Valley, on a 10–40 ac unit scale 258 fairy shrimp species and 7 only temporarily, during late winter and (Holland 1998; 2003, Service 2003). The subspecies worldwide, organized into spring. The water in vernal pools stands landscape in which they occur is 21 genera (Belk et al. 1993). The fairy sufficiently long to prohibit zonal typically grassland, but vernal pools shrimp (Anostraca) are, except for one vegetation growth (Holland 1976), yet also occur in a variety of other habitat other group, the most primitive living not long enough to allow for types (Service 2003). , or members of the sub- colonization by fish species. Vernal pool A critical factor in the development of phylum Crustacea (Eriksen and Belk habitat thus forms a unique type of a vernal pool is the soil conditions of 1999). Among the 23 fairy shrimp ecosystem, different in character and the landscape (an impermeable surface (Anostracan) species that are found in species composition from the or subsurface layer) and a gently sloping California, 8 species are found only in surrounding (Service 2003; 68 topography (slope of 10 percent or less). this State, giving California the highest FR46684), and being intermediate Vernal pools form because the soil or level of endemism for any comparable between marsh (nearly always wet) and sediment layer at or below the surface geographic region in most zonal vegetation communities is nearly or completely impermeable to (Eng et al. 1990), and resulting in the (nearly always dry) (Holland 1976). In downward water seepage (Smith and highest number of species occurring in California, where extensive areas of Verrill 1998), and thus rainfall and a comparable land area in both North vernal pool habitat have developed over water from the surrounding watershed America and worldwide (Eriksen and long periods, unique species groups becomes trapped above this layer. Soil Belk 1999). Despite this fact, the level of have evolved special adaptations to types of the California vernal pools are knowledge about many Anastrocans is allow them to survive the unusual volcanic flows, and hardpans and relatively low due to the relative conditions of vernal pools. Vernal pools claypans, the latter of which have recentness of their discovery. are often defined by their unique, often developed gradually over thousands of The Riverside fairy shrimp and vernal endemic, flora as well (Smith and pool crustaceans in general, occupy the Verrill 1998). years, and can be a yard (1 m) or more first consumer level in the food chain, The Riverside fairy shrimp occupies, thick. The unique assemblage of soils and thus constitute a cornerstone in the and is thus completely dependent upon, plays a critical role in nutrient cycling food web. Fairy shrimp form an vernal pools to survive. A combination in vernal pool ecosystems. The soil important food source for an array of of physical and environmental factors types which underlie and surround the aquatic and terrestrial species, from allows for the annual formation and vernal pool therefore greatly influence diving beetles, backswimmers maintenance of their vernal pool the species composition of both plant (Notonectids), vernal pool tadpole habitat. Vernal pools form generally and , as well as the hydrological shrimp ( species), where there is a Mediterranean climate, functioning of the vernal pool (Hanes predaceous aquatic insects and their i.e., a wet season during fall and winter, and Stromberg 1998; Hobson and larvae, to waterfowl and shorebirds, and when rainfall exceeds evaporation and Dahlgren 1998; Smith and Verrill 1998). occasionally even for frogs, toads, and fills the pools, followed by a spring and Because water and precipitation flow tadpoles (Eriksen and Belk 1999). summer dry season, when evaporation through the soil to the pool, the Humans have also been known to exceeds rainfall and the pools dry up. A chemistry of the soils underlying a consume fairy shrimp; tribes in typical vernal pool season is vernal pool, and in the surrounding California have been known to characterized by an inundation phase, upslope areas, is directly linked to the extensively consume dried Artemia, and an aquatic phase, a water-logged drying chemistry of the vernal pool’s water, Tripos is said to be used as food by phase, and a dried-out phase (Keeley i.e., on its alkalinity, pH, oxidation and some natives in Mexico (Pennak 1989). and Zedler 1998). Thus, the water reduction processes, dissolved salts and The Riverside fairy shrimp, along regime (hydrologic system) is crucial to gasses, ion concentrations, mineral with numerous sensitive and rare plant the formation and functioning of a richness, and organic material. Thus, species, lives only in vernal pools, healthy vernal pool ecosystem. Some soil chemistry likely has a tremendous vernal ponds, swales, and ephemeral pools fill entirely from direct impact on aquatic invertebrate (short-lived) freshwater habitats. A precipitation (Hanes and Stromberg endemism (cf. Hobson and Dahlgren vernal pool (including vernal pond and 1998), while others have a substantial 1998). The distinct seasonality of vernal vernal lake) is defined as an area of watershed, including both surface, pools results in alternating conditions of shallow depression, usually underlain subsurface, and groundwater, flowing reduction and oxidation within the soil by some subsurface layer which through the surrounding bedrock and profile, creating edaphic (soil- prohibits drainage into the lower soil soils that contributes to their water influenced) controls that may provide a profile, thus causing water to collect inputs (Rains et al. 2005). refuge for competition-sensitive plant during the rainy winter season (Holland Vernal pools can be a variety of and animal species (Hobson and 1976; Chetham 1976; Weitkamp et al. shapes and sizes, from less than a Dahlgren 1998). The length of ponding 1996), i.e., the depression is inundated square yard (0.8 square meters (m2), to may also be affected by variables like

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19156 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

consistency of soil, depth of soil to they swim about, fairy shrimp use these of eggs into her brood pouch. If the impervious layer (e.g., duripan, same appendages to filter-feed from the vernal pool persists for several weeks to claypan), type and thickness of the water column, allowing them to non- a few months, fairy shrimp may have impervious layer, and local climatic selectively consume algae, bacteria, multiple hatches in a single season factors (e.g., rainfall abundance and protozoa, rotifers and bits of detritus (Eriksen and Belk 1999). Cysts can also regularity, evaporation rates; Helm (Eng et al. 1990; Eriksen and Belk 1999). remain in the brood pouch until the 1998). Note that nothing is known specifically female dies and sinks to the pool bottom Because of the transportation of water, about the Riverside fairy shrimp’s food (Eriksen and Belk 1999). However, soil, minerals and nutrients over the resource requirements (Simovich and females of some fairy shrimp species landscape into vernal pools, the upland, Ripley, pers. comm., May 25, 2004). can, in the presence of male adults or upslope areas associated with vernal Riverside fairy shrimp are during the wet period, eject thin-shelled pools are an important source of these distinguished from other fairy shrimp cysts that hatch immediately without for vernal pool organisms (Wetzel 1975). species primarily by the second pair of becoming dormant (‘‘summer eggs’’), Since vernal pools are mostly rain-fed, antennae on the adult male, which are thus allowing for multiple generations they tend to have low nutrient levels enlarged for grasping the female during during a single wet season, while the (Keeley and Zedler 1998). In fact, most copulation (Pennak 1989; Eriksen and thick-shelled, dormant (‘‘winter’’) eggs of the nutrients that vernal pool Belk 1999; Service 2003). Both males are deposited in the absence of males in crustaceans derive from their vernal and females are generally off-white in the population (Pennak 1989). By the pool habitat come from the detritus color, with orange pigment in their tail time the pool dries out, the numbers of (decaying organic matter) that washes appendages (cercopods) and sometimes dormant cysts within each pool basin into pools from the adjacent upslope along the edges of the phyllopods can reach tens of thousands to millions, areas; these nutrients provide the (although some females have been depending on pool size, volume, and foundation for the food chain in the observed to be entirely bright red- depth (Belk 1998). vernal pool aquatic community (Eriksen orange) (Eriksen and Belk 1999). The Mature cysts become fully desiccated and Belk 1999), of which the fairy females, when mature, can be identified (dried) after their pool has evaporated, shrimp fauna constitutes an important by their brood pouch, the elongate, and due to their protective coating, they component. ventral protruding egg sac immediately can withstand extreme environmental Typical to vernal pools are their behind the phyllopods (Eriksen and conditions (Pennak 1989; Eriksen and dramatic fluctuations in local Belk 1999). environmental conditions. The water, Relative to most other fairy shrimp Belk 1999). For example, they can generally unbuffered, fluctuates greatly species, the Riverside fairy shrimp is a survive subjection to physical extremes, on a daily basis in pH, and rare species with a highly restricted such as near-boiling temperatures, concentrations of ions and dissolved distribution (Hathaway and Simovich months of freezing (Carlisle 1968), fire gasses (oxygen and carbon dioxide), due 1996). They are found only in a few (Wells et al. 1997), or near-vacuum to varying daily evaporation (Keeley and pools at lower elevations in the conditions for 10 years without damage Zedler 1998). On a larger time-scale, Southern California coastal range that to the embryo (Clegg 1967). These there is extensive monthly and annual are inundated for a longer duration and adaptations allow fairy shrimp cysts to variation in the duration and extent of generally deeper (greater than 12 in or survive extreme environmental ponding of vernal pools, some pools not 30 centimeters (cm)) than pools that fluctuations, and hatch only when filling at all in some years, as the timing support San Diego fairy shrimp conditions are favorable, after remaining and amount of annual rainfall in (Branchinecta sandiegonensis) dormant for as much as decades, California varies widely. Because of the (Hathaway and Simovich 1996). Some possibly centuries (Belk 1998). In one unique and ephemeral nature of vernal of these pools may have been artificially closely related fairy shrimp, pool habitat, and the adaptations of its deepened with berms (i.e., cattle tanks Streptocephalus sealii, cysts were plant and animal species, vernal pools and road embankments) (Hathaway and brought to hatch after 25 years of storage are rich in species composition and Simovich 1996). The two species are in the lab (Belk 1998). Further, because contain a large number of highly known to co-occur in a few deep pools; the wall of the cyst can even resist specialized, native species that are however they generally do not co-exist, damage by stomach enzymes (Horne found nowhere else in the region as adults of the Riverside fairy shrimp 1966), the cyst can pass through the (endemic) (Holland and Jain 1978; emerge later in the season than San digestive tract of animals without harm, Simovich 1998). Vernal pool habitats Diego fairy shrimp (Simovich and thus allowing for one possible yield the highest number and species Fugate 1992; Hathaway and Simovich mechanism of cyst dispersal. There are richness of endemics (native species) in 1996). several mechanisms for cyst dispersal, comparison to other wetland types After copulation, the males of some and thus fairy shrimp dispersal, to other (Helm 1998). fairy shrimp species die within a few habitats. Historically, large-scale hours (Pennak 1989). When the eggs are flooding from heavy winter and spring Riverside Fairy Shrimp fertilized in the female’s pouch, they rains has been a primary dispersal (Streptocephalus woottoni) become coated (encysted) with a protein mechanism, but other major The Riverside fairy shrimp is a small layer that develops into a thick, usually mechanisms include dispersal by (0.56–0.92 inches (in) (14–23 multilayered shell (Eriksen and Belk migratory birds (i.e., wading birds, millimeters (mm))), slender Anostracan 1999). When the egg enters the late stage shorebirds, waterfowl), ungulates (i.e., that has large stalked compound eyes of embryonic development, all growth cattle, buffalo, deer), and possibly and a delicate, elongate body with 11 then ceases, and the egg enters into a amphibians (i.e., salamanders, frogs) pairs of phyllopods, or swimming dormant stage, or diapause (Drinkwater and humans (Eriksen and Belk 1999). appendages, which also function as gills and Clegg 1991; Eriksen and Belk 1999). These animals either carry cyst- (Eng et al. 1990; Eriksen and Belk 1999). The female then either ejects the cysts containing mud on their bodies Using their phyllopods in a complex, to fall to the pool bottom, or, if she incidentally from pool to pool, or the wavelike motion from front to back, survives for an extended period, cysts are ingested and are passed they swim gracefully upside-down. As continues to move successive clutches through the gut at another location.

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19157

Wind, although less probable, may also 1996). Their development or maturation percent) at steady higher temperature of be a dispersal agent (Eriksen and Belk rate is also slow, and individuals are 77 degrees F (25 degrees C), than at 1999). relatively long-lived (Hathaway and cooler temperatures (i.e., 7 days Although cysts can remain dormant Simovich 1996), as is typical of obligate hatching time at 59–77 degrees F (15– within the pool for decades, they can deep pool species. The developmental 25 degrees C); over 10 percent hatching also hatch about a week after a rain-fill, time to maturity for the Riverside fairy at 50 degrees F (10 degrees C) (Gonzalez due to their advanced stage of shrimp was found to be 7–8 weeks, far et al. 1996). embryonic development (Pennak 1989; longer than to the 7–10 day period of The upslope areas surrounding vernal Hathaway and Simovich 1996). the San Diego fairy shrimp. pools are critical to the functioning of However, when a dry vernal pool is It is not surprising, therefore, that the the vernal pool and thus to the survival once again inundated with water, only Riverside fairy shrimp also lives much of the Riverside fairy shrimp. The a fraction of the dormant cysts in the longer (2.5 to over 4 months) than the surrounding upslope areas provide the pool will hatch. Simovich and San Diego fairy shrimp (4–6 weeks) vernal pool with the appropriate annual Hathaway (1997) found that when (Hathaway and Simovich 1996). Thus, and season temporality and volume of Riverside fairy shrimp cysts were the minimum period of inundation, or hydrological flow. With that flow hydrated once, only 0.18 percent pool duration, that the Riverside fairy follows the necessary nutrients, salts hatched, and after three successive shrimp need in order to hatch and reach and minerals from the soil and bedrock hydration periods, the cumulative total maturity is 9 to 10 weeks (Gonzalez et that all influence the pool’s water increased to only 2.8 percent. This is al. 1996; Hathaway and Simovich 1996). volume, the duration of ponding, and among the lowest hatching rates, or Thus, the association of the Riverside the complete chemistry, mineral and prolonged diapause, yet recorded among fairy shrimp with large, deep vernal nutrient contents of the water itself. fairy shrimp species (Simovich and pools that pond continuously for many Therefore, Riverside fairy shrimp, Hathaway 1997). They suggested that months may perhaps be explained by its together with its cohabitating vernal the prolonged diapause of so many cysts long period of maturity and longevity pool flora and fauna, is as dependent was an adaptation to the variable nature (cf. Helm 1998). Because of their slow upon the upland areas for survival and of local rainfall patterns, as pools at hatch and growth, the Riverside fairy reproduction as it is upon the pool it times fill only partially and dry shrimp occur therefore much later in the occupies. quickly—before the fairy shrimp are season than other fairy shrimp species Urban and water development, flood able to reach maturity and reproduce. (cf. Hathaway and Simovich 1996). control, and highway and utility Thus, in such an environment with The vernal pools that Riverside fairy projects, as well as conversion of wild unpredictable filling events, it benefits shrimp are found in typically have lands to agricultural use, have the individual to have offspring in water with a relatively neutral pH eliminated or degraded vernal pools prolonged diapause, such that not all (approximately 7), low to moderate and/or their watersheds in southern hatch after just one hydration (Simovich salinity, and low to moderate levels of California (Jones and Stokes Associates and Hathaway 1997). In San Diego total dissolved solids (Gonzalez et al. 1987). Changes in hydrologic patterns, County, only approximately 28 percent 1996; Eriksen and Belk 1999). One certain military activities, unauthorized of all filling events recorded over 13 laboratory study conducted on the fills, overgrazing, and off-road vehicle years lasted at least a 17-day period, the tolerance of Riverside fairy shrimp to use also may imperil this aquatic habitat minimum length of time needed by the variations in water chemistry found that and the Riverside fairy shrimp. The San Diego fairy shrimp to develop to they tolerate an 8-hour exposure to pH flora and fauna in vernal pools or swales first reproduction (and insufficient time levels ranging from 8 to 10.5, with little can change if the hydrologic regime is for the Riverside fairy shrimp); this effect (Gonzalez et al. 1996). Generally, altered (Bauder 1986). Anthropogenic period corresponded to the 28-percent in vernal pools where Riverside fairy (human-origin) activities that reduce the hatching rate for their cysts found in the shrimp occur, the external ion extent of the watershed or that alter lab (Philippi 2001). This strategy of concentrations (Na+) averaged 0.73 runoff patterns (i.e., amounts and prolonged diapause is possibly a risk- mmol/l3 (Gonzalez et al. 1996). seasonal distribution of water) may spreading (‘‘bet-hedging’’) adaptation to Although the species was also able to eliminate the Riverside fairy shrimp, the unpredictability of their maintain its internal levels of salt reduce population sizes or reproductive environment (Simovich and Hathaway concentration fairly constantly over a success, or shift the location of sites 1997; Philippi 2001). wide range of external concentrations inhabited by this species. The In addition to their low hatching (0.5–60 mmol/l3), it was sensitive to the introduction of non-native plant percentage, the cysts of the Riverside extremes, with 100-percent mortality species, competition with invading fairy shrimp also take longer to hatch occurring at 100 mmol/l3 (Gonzalez et species, trash dumping, fire, and fire after inundation, relative to other al. 1996). Levels of alkalinity in the suppression activities were some of the species (Hathaway and Simovich 1996). vernal pool are affected by the reasons for listing the Riverside fairy The time from hydration to the hatching surrounding soil type and hydrological shrimp as endangered on August 3, of Riverside fairy shrimp cysts took regime of the immediate adjacent 1993 (58 FR 41384). Because of these between 12 to 25 days in the lab at upland watershed; in four vernal pools, threats, we anticipate that intensive varying temperatures, with the most alkalinity averaged 41 mg/l3 (Gonzalez long-term monitoring and management rapid hatching occurring when et al. 1996). In the laboratory, Riverside will be needed to conserve this species. temperatures were fluctuating at 41–59 fairy shrimp were found to tolerate a Historically, vernal pool soils covered degrees Fahrenheit ((F) 5–15 degrees wide range of alkalinities (0–600 mg/l3), approximately 500 km2 (200 mi2 of San Celsius (C)). San Diego fairy shrimp, in but none could survive levels above 800 Diego County (Bauder and McMillan comparison, can hatch after only 3 days mg/l3 (Gonzalez et al. 1996). 1998). The greatest recent losses of (Hathaway and Simovich 1996). The Importantly, studies show that the vernal pool habitat in San Diego County greatest number of Riverside fairy Riverside fairy shrimp is sensitive to have occurred in Mira Mesa, Rancho shrimp cysts hatching in the lab, water temperature; with their hatching Pen˜ asquitos, and Kearny Mesa, which however, was achieved at 50 degrees F occurring a longer time after inundation together account for 73 percent of all the (10 degrees C) (Hathaway and Simovich (25 days) and fewer hatching (1–3 pools destroyed in the region during the

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19158 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

7-year period between 1979 and 1986 Previous Federal Actions proposed critical habitat designation. (Keeler-Wolf et al. 1995). Other For more information on previous Comments received were grouped into substantial losses have occurred in the Federal actions concerning the six general issues specifically relating to Otay Mesa area, where over 40 percent Riverside fairy shrimp, please refer to the proposed critical habitat designation of the vernal pools were destroyed the proposed rule to designate critical for the Riverside fairy shrimp, and are between 1979 and 1990. Similar to San habitat for the Riverside fairy shrimp addressed in the following summary Diego County, vernal pool habitat was (69 FR 23024) and the notice of and incorporated into the final rule as appropriate. We did not receive any once extensive on the coastal plain of availability for the draft economic requests for a public hearing. We have Los Angeles and Orange counties. analysis (DEA) and reopening of the reviewed all comments received from Unfortunately, there has been a near- public comment period for the proposed the peer reviewers and the public for total loss of vernal pool habitat in these designation of critical habitat for the substantive issues and new information areas (Ferren and Pritchett 1988; Keeler- Riverside fairy shrimp published in the regarding critical habitat for the Wolf et al. 1995; Mattoni and Longcore Federal Register (October 19, 2004, 69 Riverside fairy shrimp, and have 1997; Service 1998). Significant losses FR 61461). of vernal pools supporting this species incorporated them into the final rule as have also occurred in Riverside County. Summary of Comments and appropriate. These are addressed below Recommendations in the following summary. Adequately quantifying occurrence and distribution of the Riverside fairy We requested written comments from Peer Review shrimp can be difficult due to a number the public on the proposed designation In accordance with our policy of factors. Firstly, Riverside fairy shrimp of critical habitat for the Riverside fairy published on July 1, 1994 (59 FR are restricted to a narrow geographic shrimp in the proposed rule (69 FR 34270), to solicit opinions from at least region, to certain pool types, and also 23024). We also contacted and invited three experts, we solicited the expert temporally, as they emerge later in the the appropriate Federal, State, and local opinions of 7 knowledgeable season than other fairy shrimp species agencies, as well as scientific individuals with significant scientific (Hathaway and Simovich 1996). Thus, organizations and other interested expertise that included familiarity with surveys conducted to also encounter parties to comment on the proposed the Riverside fairy shrimp, the earlier-occurring species may actually rule. In the notice of availability of the geographic region in which the species miss the Riverside fairy shrimp as they draft economic analysis for the occurs, and conservation biology may still be so small (in the juvenile proposed designation of critical habitat principles. We received responses from stage) that they pass through the mesh (69 FR 61461), we again solicited six of the peer reviewers. The peer of the collecting nets (Eriksen and Belk comments from the public on both the reviewers were generally supportive of 1999). Secondly, surveys may also miss draft economic analysis and the the designation of critical habitat, but collecting adults simply due to their low proposed rule. All comments and new strongly endorsed the approach that the hatching percent (as few as 0.18 percent; information received during the two appropriate management unit was the Simovich and Hathaway 1997), which comment periods were incorporated vernal pool complex (not single pools) may result in either a very low into the final rule as appropriate. together with their immediately population level, or to none being During the first comment period, open surrounding upland watershed. They detected in a particular year, when from April 27, 2004, to May 27, 2004, emphasized the importance of providing we received 21 letters containing 143 viable cysts are actually present. conservation protection of pool comments directly addressing the Further, only males can be identified to complexes to ensure the survival of the proposed critical habitat designation the species level with certainty (Eriksen Riverside fairy shrimp in perpetuity, from 6 peer reviewers, 5 Federal and Belk 1999), and cysts can only be and of identifying and preserving all agencies, 2 county and local agencies, 1 identified to the genus level. To add to remaining populations of Riverside fairy group, 4 businesses, 1 city, 1 water the difficulty, vernal pools are generally shrimp, including those within district, 1 individual, and 1 law firm too small to appear on topographic conservation-managed areas. Three peer writing on behalf of 2 groups and 2 maps (Holland 1976), not all vernal reviewers also gave specific comments transportation agencies. on our decision to exclude certain lands pools fill each year, or fill long enough During the second comment period, for hatching (i.e., discovery) of the from critical habitat based on Habitat open from October 19, 2004, to Conservation Plans (HCPs) and Riverside fairy shrimp. Some estimates November 18, 2004, we received 11 for San Diego County show that over a Integrated Natural Resources letters containing 148 comments Management Plans (INRMPs). period of 13 years, only about 28 directly addressing the proposed critical percent of the pool-filling events lasted habitat designation and the draft Comments From Peer Reviewers 17 days or longer (Philippi 2001). economic analysis. The letters came 1. Peer Reviewer Comment: Most of For a more detailed discussion about from 4 Federal agencies, 3 groups, 2 the reviewers stressed the importance of the Riverside fairy shrimp’s physical businesses, 1 law firm on behalf of 2 providing or increasing Federal description, ecology, range, status and businesses, and 1 law firm on behalf of protection to the Riverside fairy shrimp distribution, and a discussion of factors 2 groups and 2 transportation agencies. and their vernal pool habitat, since affecting this species, please refer to the Of a total 32 letters received, 4 conservation measures are needed to following documents from the Federal supported the designation of critical protect them. Over 95 percent of vernal Register: The final rule listing the habitat for the Riverside fairy shrimp, 2 pools in Southern California have been species as threatened (58 FR 41384), opposed the designation, 18 letters extirpated (destroyed), and the published on August 3, 1993, the suggested reducing the area of remaining vernal pools and the species previous final rule to designate critical designation, and 4 letters suggested that inhabit them are currently under habitat (66 FR 29384), published on expanding the area. Two letters were threat of elimination from both private May 30, 2001, and our latest proposed requests for an extension of the and public organizations. Additionally, rule to designate critical habitat (69 FR comment submission period, but did vernal pools are valuable in that they 23024), published on April 27, 2004. not express support or opposition to the are ecologically unique, while also

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19159

providing valuable ecosystem functions. populations. Firstly, reviewers strongly These installations have either been Vernal pool complexes act as hydrologic emphasized the importance of excluded from final designated critical ‘‘sponges,’’ buffering against drought considering the vernal pool complex habitat pursuant to section 4(b)(2) of the and flooding. Large-scale alterations or and the surrounding watershed as the Act, or exempted according to section developments within the local management unit for this species. The 4(a)(3) of the Act. Please refer to the watershed of vernal pool complexes unique physiochemical requirements of sections Relationship of Critical Habitat would affect the local hydrology the Riverside fairy shrimp make it to Approved Habitat Conservation Plans dramatically and, from an engineering particularly vulnerable to changes in and Relationship of Critical Habitat to and public works perspective, can lead hydrology. Further, other vernal pool Department of Defense Lands below in to increases in the need for management species have their own unique this final rule for detailed discussions of of unnaturally large amounts of runoff ecological requirements in terms of soil, our rationale for exclusions and following a rainstorm. Thus, vernal hydrology, etc. Protecting and exemptions. pools have not received adequate maintaining entire vernal pool 3. Peer Reviewer Comment: Any recognition in the rule for the benefits complexes and their surrounding consideration of whether the Riverside (ecological services) they provide. For watershed as a functioning unit will fairy shrimp will persist indefinitely their long-term survival, vernal pools benefit the Riverside fairy shrimp and (i.e., avoid extinction due to must be adequately protected; the the other endangered species that live in anthropogenic causes) would require a designation of critical habitat does not these habitats. If the landscape at a site quantification of the Riverside fairy seem to provide adequate conservation is changed sufficiently to alter the shrimp’s (a) dispersal biology, (b) measures to serve this purpose. hydrology of individual vernal pools, adaptation to local physiochemical Our Response: Section 4 of the Act then the species in them will eventually conditions, and (c) adaptation to requires us to designate critical habitat go extinct, regardless of whether the hydrologic uncertainties (via reliance on to the maximum extent prudent and pools are disturbed or not. Secondly, an egg bank). In terms of the hydrology determinable, which we have done, some vernal pools excluded from the of the vernal pool habitat, quantifiable based upon the best data available to us designation, but set aside for data is needed on (d) the historic at this time. We concur that additional, conservation or mitigation, do not have environmental variation and (e) the long-term conservation measures are sufficient protection in the surrounding predicted future environmental needed to protect the Riverside fairy watershed, and thus become variation. However, only rudimentary shrimp and its habitat, and additional ecologically useless. The exclusion of data are available on any of these topics, data is needed on locations of their military lands from the final designation with the possible exception of (d). occurrence. is particularly troubling in this regard, Therefore, it would be wise to err on the In developing our final designation of because there are no guarantees that the side of caution and offer maximal critical habitat for the Riverside fairy watershed, let alone pools with protection to all remaining populations shrimp, we used the best scientific and Riverside fairy shrimp in them, will be of this species. commercial data available to identify adequately protected. those areas that contain essential Our Response: We concur that more occurrences of Riverside fairy shrimp Our Response: Firstly, we note the detailed studies are needed on most and/or are defined by the physical and support of our critical habitat aspects of the Riverside fairy shrimp’s biological features essential to their designation, and concur with the biology. In this rule, we address the conservation. We used a number of reviewers on the importance of issue of designating critical habitat criteria in defining critical habitat, considering the vernal pool complexes areas, areas containing the necessary including but not limited to the known together with their immediately primary constituent elements (PCEs) species occurrence (known at the time surrounding upslope areas as the that are essential to the conservation of of listing, as well as discovered management unit (see Background and the Riverside fairy shrimp. For this subsequently) and distribution data, Primary Constituent Elements sections purpose, we used the best scientific and habitat types, presence of PCE’s, degree below). We have used this approach in commercial information that were of habitat fragmentation, soil and our analyses when finalizing our critical available to us and based our analyses landform relationships, connectivity habitat designation for the Riverside upon areas either containing with and dispersal factors, and conservation fairy shrimp, and have, wherever existing populations of Riverside fairy biology principles. We did not include possible, included the upslope areas shrimp or containing features essential all vernal pool landscapes within the surrounding the pools. Secondly, for for the conservation of the species using Riverside fairy shrimp’s range although approved, legally operative HCPs that the vernal pool complex together with surveys in these areas may result in the include areas eligible for designation as the immediately surrounding upslope detection of other occurrences in the critical habitat and that specifically areas as our management unit. To assist future. If significant information address the Riverside fairy shrimp and us in developing this final rule, we also becomes available indicating that areas provide for its long-term conservation, opened two comment periods to obtain outside of our designation are essential we believe that the benefits of excluding as much additional, currently available to the conservation of the Riverside fairy those HCPs will outweigh the benefits of information as possible. shrimp, we can, under the Act, revise including them. Thirdly, we received 4. Peer Reviewer Comment: One critical habitat in the future. requests from three military bases to reviewer suggested that the designation 2. Peer Reviewer Comment: While the exclude lands owned or managed by the of critical habitat is no longer effective Service’s proposed designation of Department of Defense for military as a means to protect the species and its critical habitat for the Riverside fairy purposes because the designation would habitat, as funds that are needed to shrimp in southern California was increase the costs and regulatory achieve that goal are spent instead on supported, reviewers stated it is requirements, hamper the military’s litigation. Rather, a new method is questionable whether 5,795 acres in the ability to carry out their national needed to accomplish this goal, such proposed rule is ‘‘enough’’ critical security objectives, or because there is that the Riverside fairy shrimp and its habitat for the conservation of the an INRMP in place that provides a habitat are actually preserved (rather remaining Riverside fairy shrimp benefit to the Riverside fairy shrimp. than designated, then litigated).

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19160 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

Our Response: We concur that the in the rule as it is illogical and self- MSHCP outweigh the benefits of Service’s present system for designating contradictory. Not designating critical inclusion. Of the conservation measures critical habitat has evolved into a habitat within HCPs in order to allow this plan identifies for the Riverside process that is often driven by litigation seeking new partnerships implies that fairy shrimp, the first objective is to and the courts, and thus consumes the new partnerships would be include within its Conservation Area at enormous agency resources. The Service compromised if they were actually least five Core Areas of vernal pools (or believes that additional agency forced to protect Riverside fairy shrimp vernal pool complexes) and their discretion would allow our focus to habitat, which should be one goal of any watersheds; these areas contain five return to those actions that provide the ‘‘partnership.’’ known key Riverside fairy shrimp greatest benefit to the species most in Our Response: Both HCPs and critical populations. Core Areas include the need of protection. Pursuant to section habitat designations are designed to Santa Rosa Plateau Ecological Reserve 4 of the Act, however, the Secretary provide conservation measures to (17,188 acres), Skunk Hollow (156 shall, to the maximum extent prudent protect the Riverside fairy shrimp. The acres), Murrieta (1,292 acres) and Lake and determinable, designate any habitat advantage of seeking new conservation Elsinore back basin (3,180 acres). which is then considered to be critical partnerships, through HCPs or other Within the key population areas, habitat for listed endangered or means, is that they can offer active approximately 5,868 acres (33 percent) threatened species. Alternative or management and other conservation of potential vernal pool and playa additional methods for accomplishing measures for the habitat on a full-time habitat and suitable soils habitat land more effective conservation of the and predictable basis, while a critical coverages would be located outside the Riverside fairy shrimp are discussed in habitat designation only prevents MSHCP Conservation Area. Any the Recovery Plan, Multiple Species adverse modification of the habitat Riverside fairy shrimp present within Habitat Conservation Plans (MSHCPs), where there is a Federal nexus to the this area would be subject to incidental Natural Community Conservation modifying activity, a far lesser level of take under the guidelines implemented Programs (NCCPs), and other protection. It is our experience that as part of this Plan. Each Reserve conservation plans. These plans address landowners generally react very Manager responsible for a Core Area the survival and recovery of this negatively to having their property containing soils identified as supporting species, and we expect they will be in designated as critical habitat, and that the Riverside fairy shrimp (e.g., the a continual process of improvement and this is then a strong disincentive for Santa Rosa Plateau Ecological Reserve) increased efficiency with time. them to cooperate in conservation of the shall evaluate their Core Area for the 5. Peer Reviewer Comment: Several species in question. HCPs offer presence of historic or vestigial vernal reviewers disagreed with the Service’s conservation of covered species whether pools. A program to enhance these areas statement in the rule (see or not the area is designated as critical will be undertaken. Within the MSHCP SUPPLEMENTARY INFORMATION above) that habitat (for details see the section Conservation Area, that pond water designation of critical habitat provides Relationship of Critical Habitat to seasonally will be identified and little additional protection to species, Approved Habitat Conservation Plans). monitored for the presence of fairy 7. Peer Reviewer Comment: The and believed this should be amended or shrimp. Reserve managers will ensure proposed rule appears to find ways to omitted from the rule, as it is self- habitat support functions within the exclude most of the ‘‘potential’’ critical contradictory. Although designating MSHCP Conservation Area by habitat in Riverside and San Diego critical habitat does not in itself protect maintaining and/or preserving any habitat, the biggest advantage of counties. Except for areas on March Air watersheds of conserved known or critical habitat designation is the ability Reserve Base, the proposed Map Unit 3 future vernal pools or depressions. to address the ‘‘cumulative effects’’ of for Riverside County excludes all Particular management emphasis will be many small impacts to the habitat. critical habitat, and specifically that on given to disking, illegal dumping and Impacts to a single location are not the Santa Rosa Plateau, based on the maintaining hydrology (MSHCP Final likely to drive the species to extinction, speculative assertion that the proposed Documents, Vol. 1—The Plan, June 17, but the effects of impacts at many Western Riverside County Multiple 2003). See Western Riverside County individual locations may, in total, create Species Habitat Conservation Plan Multiple Species Habitat Conservation a substantial risk for species extinction. (MSHCP) will adequately protect the Plan in the section Relationship of Designating critical habitat establishes a Riverside fairy shrimp. What is the core, reducing the potential for benefit of excluding critical habitat for Critical Habitat to Approved Habitat individual small impacts to be allowed the Riverside fairy shrimp on the Santa Conservation Plans below for more to drive the species to extinction. Rosa Plateau? Any scientifically details. Our Response: While we concur that defensible HCP must protect nearly all 8. Peer Reviewer Comment: The critical habitat designation can provide of the Santa Rosa Plateau. Service’s assumption that the existence some level of species protection by Our Response: HCPs and their of an HCP automatically affords addressing cumulative effects of Implementing Agreements include protection to the Riverside fairy shrimp numerous impacts to the habitat in management measures and protections within the covered area is questionable. certain circumstances, this can only be designed to protect, restore, monitor, In the development of the San Diego provided if there is Federal nexus for manage, and enhance the habitat to Multiple Species Conservation Plan those agencies planning actions that benefit the conservation of the species (MSCP)/HCP, vernal pools were may impact the designated habitat. covered in the plans. The Western explicitly excluded from its intended 6. Peer Reviewer Comment: The Riverside County MSHCP, which has coverage, because at the time, those Service’s statement in the rule, that the now been finalized, seeks to accomplish areas covered by the conservation plans exclusion of HCPs offers ‘‘unhindered, these goals for the Riverside fairy were regulated as wetlands by the continued ability to seek new shrimp through the implementation of Environmental Protection Agency. As partnerships with future HCP species-specific conservation objectives. San Diego County does not have a good participants’’ (see Relationship of In our analyses, the benefits of record of enduring protection of vernal Critical Habitat to Approved Habitat excluding critical habitat areas covered pools, it is important, from a scientific Conservation Plans) should be amended by the Western Riverside County and land-management perspective, to

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19161

have an explicit analysis of what (if any) Defense land, are not protected and are populations of the San Diego fairy Riverside fairy shrimp populations and either being lost at present, or shrimp. Currently, there is not enough their habitats are actually covered in the vulnerable to loss due to a number of scientific information on the population designated protected areas of the HCP, sources and activities, including genetic structure or life history of the before exclusion of any areas are made. military maneuvers, crushing by Riverside fairy shrimp to be able to Our Response: Vernal pool habitats vehicles and toxic poisoning from predict the consequences of population that support the Riverside fairy shrimp vehicles or ordnances. In fact, lands losses. Without such data, it is not that were considered essential but under the jurisdiction of HCPs, MSCPs, possible to identify the areas of highest excluded from critical habitat were and the Department of Defense have genetic variability, population sources included on our website for public continued to lose populations of San and sinks, levels of gene flow, gene flow review and comment. Of the 1,183 ac Diego fairy shrimp (e.g., Cousin’s pool, distances, evolutionarily significant (479 ha) of mapped vernal pool habitat Marine Corps Air Station Miramar) and units or population viability within the MSCP planning area, over restoration/creation efforts have thus far requirements. Loss of critical 847 ac (343 ha) occur within the not succeeded, and this will likely populations or connections between planning area. The Service has happen with the Riverside fairy shrimp populations could increase the completed a Biological Opinion (June unless adequate protection is provided probability of extinction and put the 1997) on the San Diego MSCP, and for the existing populations. For species as a whole in jeopardy. Thus, it found that the Plan meets the standards example, in San Diego County, 66 of 67 is important that all populations of the set forth in 50 CFR 17.32(b)(2), and has vernal pools occupied by the federally Riverside fairy shrimp be included in issued an incidental take permit to the endangered San Diego fairy shrimp the critical habitat designation to City of San Diego for the 85 species (Branchinecta sandiegonensis) have provide adequate protection of the covered in the plan, including the been recently lost in Mira Mesa, an area species as required by the Act. Riverside fairy shrimp. The permit covered by the San Diego County MSCP. Our Response: We recognize the action does not, however, authorize Thus, the benefits of exclusion do not current threats facing the Riverside fairy impacts to wetlands or wetland outweigh the benefits of inclusion due shrimp, the need to minimize communities; the MSCP assumes a to the significantly increased threat to fragmentation effects, and to provide policy of ‘‘no net loss’’ of vernal pools. the species survival that exclusion of adequate conservation protection. The permit requires that impacts to critical habitat poses to the species. However, we did not designate critical vernal pools be avoided; unavoidable Our Response: We do not agree with habitat for all populations of the impacts will be minimized to the the peer reviewer that excluding critical Riverside fairy shrimp. Some areas in maximum extent practicable and habitat on lands covered by an HCP or our proposed designation were not mitigated at a 2:1 or 4:1 ratio to prevent INRMP poses a ‘‘significantly increased designated as critical habitat for the any net loss of vernal pool function and threat to the species survival.’’ Please following reasons: (1) The area did not value. In addition to conserving existing refer to the responses to Peer Reviewer meet the definition of critical habitat vernal pool habitat, the Multiple Habitat Comments 7 and 8 above, and the under section 3(5)(A) of the Act, (2) the Planning Area is expected to conserve sections Relationship of Critical Habitat area is now included within legally 7,745 ac (3,134 ha) of undeveloped areas to Department of Defense Lands and operative HCPs, (3) the area was with clay soils and clay hardpan, and Relationship of Critical Habitat to necessary for national security implement management and monitoring Approved Habitat Conservation Plans measures, or (4) economic impact costs. measures for vernal pools within the below. However, for some areas which were area. In the Biological Opinion issues, 10. Peer Reviewer Comment: The excluded from critical habitat under the Service has specifically addressed small amounts of habitat designated as section 4(b)(2) of the Act, or exempted the Riverside fairy shrimp, and critical habitat may be questionable. The under section 4(a)(3) of the Act, the emphasized the conservation of the strip along the international border in Riverside fairy shrimp still receives hydrological processes needed for the proposed rule (Map Sub-unit 5B, protection under conservation plans vernal pool functioning. Pursuant to southwestern Otay Mesa) appears to be such as HCPs or INRMPs. section 4(b)(2), we have excluded lands mitigation or restoration from the 12. Peer Reviewer Comment: within legally operative HCPs, Border Infrastructure System. It is not According to the proposed rule, critical including the San Diego MSCP, that clear that the current hydroperiods are habitat is identified for the Riverside address the conservation needs of the comparable to the pre-impact fairy shrimp in six separate units, each Riverside fairy shrimp, if the plans hydroperiods. Further, it appears that of which correspond to the larger provide assurances that the the Department of Homeland Defense Management Areas that support conservation measures outlined will be drives vehicles through the pools with Riverside fairy shrimp occurrences as implemented and effective. Please see impunity, without the need for outlined in the Recovery Plan (Service Relationship of Critical Habitat to permitted take from the Service. Habitat 1998; 2004). However, the management Approved Habitat Conservation Plans of such dubious condition is not a areas specified in the Recovery Plan for section of the rule below. suitable substitute for the excluded (but Vernal Pools of Southern California are 9. Peer Reviewer Comment: Several intact) habitat surrounding the proposed based on simple geographical locations, reviewers stated that the proposed areas on western Otay Mesa (critical not the biology of the species critical habitat designation does not go habitat Map Sub-units 5A, 5B). considered, and the Recovery Plan does far enough to provide for the protection Our Response: Please refer to the not include a population viability of the Riverside fairy shrimp, because response to Comment 4–1 below. analysis. Genetic information on the San significant portions of the species’ range 11. Peer Reviewer Comment: Areas of Diego fairy shrimp has shown that these were excluded from critical habitat critical habitat that have been excluded management areas do not coincide with protection. These areas include in the proposed rule are under a high the species’ evolutionarily significant Department of Defense lands and level of threat, and local populations of units based on the population genetic MSCP/HCP lands. The Riverside fairy Riverside fairy shrimp in those areas structure of the species. The shrimp populations in these areas, thus face considerable risk of being identification of populations essential to particularly those on Department of extirpated, as has happened with the species requires genetic analysis and

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19162 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

life history analysis to determine Our Response: We did not designate the most important tools for reconciling ‘‘source/sink’’ status and to evaluation any artificial vernal pools as critical land use with the conservation of listed the viability of the population and habitat for the Riverside fairy shrimp. species on non-Federal lands. Section probability of persistence. Simple 4(b)(2) of the Act allows us to exclude Public Comments geographic location is not sufficient, from critical habitat designation areas especially considering the amount of Issue 1: Policy and Regulations where the benefits of exclusion loss of intervening habitat. The 1–1. Comment: It was suggested that outweigh the benefits of designation, management areas are therefore not all essential Riverside fairy shrimp provided the exclusion will not result in relevant to the species’ conservation, a habitat areas within the boundaries the extinction of the species. We believe fact which likely also applies for the covered by the Western Riverside that in most instances, the benefits of Riverside fairy shrimp (Bohonak et al. County Habitat Conservation Plan excluding HCPs from critical habitat 2003). (HCP), Central/Coastal Orange County designations will outweigh the benefits of including them. For this designation, Our Response: We agree that no Natural Community Conservation we find that the benefits of exclusion scientific information is available on the Program (NCCP), and San Diego outweigh the benefits of designation for genetic diversity of the Riverside fairy Multiple Species Conservation Plan all approved and legally operative HCPs shrimp, as is the case for the San Diego (MSCP) should be included in the final which address the Riverside fairy fairy shrimp. Thus, we used critical habitat designation because (a) shrimp and provide for its long-term geographical descriptions to identify areas within those plans meet the conservation. These include the San critical habitat units. These geographical definition of critical habitat; the Service Diego MSCP in San Diego County, the descriptions are not meant to suggest has identified those areas as essential to Western Riverside County MSHCP and any evolutionary divergence or the conservation of the species, and the population genetic structure. At the the Rancho Bella Vista HCP and plans provide special management for Assessment District 161 Sub-regional same time, we also based our analyses the species, (b) the benefits of inclusion on what areas constituted critical HCP in Riverside County. far outweigh the harm wrongly HCPs must meet issuance criteria, habitat upon the best available scientific perceived by others, (c) the critical and commercial data available to us at according to section 10(a)(1)(B) of the habitat designation provides greater Act, including minimizing and the time, and made available public conservation benefits than those comment periods to allow for mitigating any take of the listed species contained in the plans, which are covered by the permit to the maximum submission of any new information. inadequate to conserve the Riverside extent practicable, and that the taking 13. Peer Reviewer Comment: The fairy shrimp, (d) because the must not appreciably reduce the proposed rule stated that an artificial educational benefits of HCPs are much likelihood of the survival and recovery vernal pool complex had been created to less than those provided by critical of the species in the wild. The take offset the impacts to a population of habitat designation, and (e) the critical minimization and mitigation measures Riverside fairy shrimp by the Redhawk habitat designation has greater provided under the above-mentioned Development, and that another artificial specificity, addressing the needs of HCPs are expected to adequately protect vernal pool creation was planned in specific species, than HCPs. Another the essential habitat lands designated as order to offset the taking of Riverside commenter suggested that the critical critical habitat in this rule, such that the fairy shrimp at the Clayton Ranch Pool. habitat designation should be expanded value of these lands for the survival and Two reviewers questioned whether to include all Riverside fairy shrimp recovery of the Riverside fairy shrimp is these artificial pools have produced populations, including those in not appreciably diminished through viable, reproducing populations with excluded Department of Defense lands direct or indirect alterations. We expect positive rates of increase, rather than or HCP areas. In contrast, one that HCPs undertaken by local simply hatching shrimp from the commenter suggested that lands within jurisdictions (e.g., counties and cities) transplanted cysts. To the reviewers’ the Western Riverside County MSHCP and other parties will identify, protect, knowledge, no such successes have do not require additional special and provide appropriate management been recorded in the primary literature; management considerations or for those specific lands within the i.e., see Ripley et al. (2004). protection, and thus do not meet boundaries of the plans that are Furthermore, the proposed rule stated definition of ‘‘critical habitat.’’ essential for the long-term conservation that on Otay Mesa in San Diego County, Our Response: Although the habitat of the species. We discuss these significant work had been done to within the boundaries of these standards in detail in the section 7 restore and enhance vernal pools for conservation plans contains one or more Consultation and Relationship of listed species, including the Riverside of the physical and biological Critical Habitat to Approved Habitat fairy shrimp. However, the reviewers characteristics essential to the Conservation Plans portions of this noted that due to failure to check the conservation of the Riverside fairy document below). transplanted cysts, the Otay pools have shrimp, we have determined that these 1–2. Comment: It was suggested that become ‘‘infected’’ with a ‘‘weedy’’ conservation plans provide special the essential Riverside fairy shrimp species, the winter fairy shrimp management and/or protection for the habitat areas within the boundaries (Branchinecta lindahli), which can Riverside fairy shrimp, and we have covered by the Western Riverside hybridize with the San Diego fairy concluded that the benefits of excluding County HCP should not be excluded as shrimp (Fugate 1998); its effect on the the lands covered by these plans from critical habitat because the plan was Riverside fairy shrimp is yet unknown. the final critical habitat designation only recently approved and the Thus, the restoration or creation efforts outweigh the benefits of including these protection benefits the plan provided to have not been verified as successful areas. Thus, we have excluded these the species were thus unproven and (producing viable populations and a areas from critical habitat designation speculative. According to the Act, the growing cyst bank) for either San Diego under 4(b)(2) of the Act. Service cannot base its decisions to fairy shrimp or Riverside fairy shrimp, We recognize that critical habitat is exclude areas from its critical habitat and have in fact, introduced new only one of many conservation tools for designation on unproven conservation potential threats. federally listed species. HCPs are one of activities.

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19163

Our Response: Under section 4(b)(2), important tools for reconciling land use 1–5. Comment: The critical habitat we may exclude any area from critical with the conservation of listed species designation does not give landowners habitat if we determine that the benefits on non-Federal lands. Furthermore, the effective notice as to whether their of such an exclusion outweigh the benefits of including HCPs or NCCP/ property contains critical habitat, benefits of including the area in the HCPs in the critical habitat designation causing a burden to landowners who critical habitat designation, unless, are normally small; i.e., any federally must determine which portions of their based on the best scientific and funded or authorized activities in such land contain critical habitat. commercial data available, we habitat that may affect critical habitat Our Response: We identified, as determine that failure to designate the would require consultation under critical habitat, specific areas in the area as critical habitat will result in the section 7 of the Act. Such consultation proposed determination that are extinction of the species. We have would ensure that adequate protection referenced by UTM coordinates found excluded the areas within the Western is provided to avoid adverse on standard topographic maps. Note Riverside County MSHCP from the final modification of critical habitat. Where that areas delineated as critical habitat critical habitat designation under HCPs are in place, we believe that this on the maps do not include developed section 4(b)(2) of the Act because the benefit is small or non-existent. areas within the boundaries that do not benefits of exclusion outweigh the Although conservation plans are contain more than one of the primary benefits of inclusion. (For a detailed important tools to ensure the species constituent elements for the species. discussion please see the section survival and recovery, our actions During the public comment periods, we Relationship of Critical Habitat to regarding newly implemented plans are also made available the proposed Approved Habitat Conservation Plans not automatic; it is our policy is to critical habitat units, superimposed on below). carefully review each plan, and only 7.5 minute topographic maps and spot 1–3. Comment: Several comments exclude areas from critical habitat imagery, for inspection by the public at were made that the Service inaccurately designations consistent with section the Carlsbad Fish and Wildlife Office. overstates the benefits of conservation 4(b)(2) of the Act. Furthermore, we distributed geographic plans while overemphasizing possible 1–4. Comment: All essential habitats data and maps of the proposed critical harm of critical habitat designation within the boundaries of the Central/ habitat to all individuals, organizations, within plans’ boundaries, that the Coastal Orange County NCCP/HCP local jurisdictions and State and Federal Service cannot rest any claim of harm should be included in the critical agencies that requested them. We believe the information made available on mere perceptions; possible habitat designation because the complaints by plan participants would to the public is sufficiently detailed to Riverside fairy shrimp in natural vernal suggest intention of significantly allow for determination of critical pools is not covered by these plans, and reduced conservation compared to those habitat boundaries. This final rule therefore cannot benefit from the in a designated critical habitat. Critical contains the legal descriptions of areas conservation measures in the plan. habitat designation of an area after the designated as critical habitat required approval of an HCP there will not serve Our Response: The Riverside fairy under 50 CFR 424.12(c). The as disincentive, but actually encourage shrimp is known to occur in only two accompanying maps are for illustration HCP preparation. areas within the Central-Coastal Orange purposes only. If additional clarification In an opposing view, one commenter County NCCP/HCP, which provides for is necessary, contact the Carlsbad Fish supported the exclusion of critical the establishment of approximately and Wildlife Office, 6010 Hidden Valley habitat within the Western Riverside 38,738 ac (15,677 ha) of reserve lands Road, Carlsbad, California 92009 County MSHCP, asserting that if it were for 39 Federal or State listed, unlisted, (telephone 760/431–9440). included, it would undermine and sensitive species. Within this 1–6. Comment: Essential Riverside cooperative conservation partnerships. NCCP/HCP, we proposed critical habitat fairy shrimp habitat within MCAS Two commenters stated, in general, that at the former Marine Corps Air Station Miramar should be included as critical all lands covered by an HCP (e.g., (MCAS) El Toro but we excluded this habitat because the habitat under their NCCPs/ special area management plans) area pursuant to section 4(b)(2) for Integrated Natural Resource should be automatically excluded from economic impacts. We excluded an area Management Plan (INRMP) meets the critical habitat designation upon within the Edison Viejo Conservation definition of critical habitat, as the approval of the respective conservation Bank, as their management plan meets Service has identified those areas as or management plan. our criteria for conservation measure for essential to conservation of species and Our Response: It is our experience the species. The Riverside fairy shrimp the plan provides special management that most landowners strongly object to is also known to occur in the North for the species. Further, the current inclusion of their lands within critical Ranch Policy Plan area which was INRMP (a) does not provide details for habitat; thus while proposing a originally not included within the any existing or future exotic control designation may in some cases provide Central-Coastal NCCP/HCP. However, in project and thus does not provide an incentive to participate in developing 2002, the Irvine Company, owner of adequate protection against current an HCP, we have no indication that lands within the North Ranch Policy threats posed by the spread of exotic designating private lands as critical Plan area, granted a conservation plants, (b) contains mainly future plans habitat encourages the owners to engage easement to The Nature Conservancy and few active measures addressing in conservation activities. We do over the portion of the land where this current conservation needs, and little recognize that the designation of critical vernal pool is located, and provided a information on when and where the habitat does not provide the same set of $10 million management endowment. actions will be accomplished, (c) does conservation conditions that an HCP The conservation easement and not include the Navy’s past Miramar does, and an HCP may well provide management endowment ensure Vernal Pool Management Plan, i.e., more benefits to the species than critical conservation of the Riverside fairy treatment of vernal pools is not habitat designation. We recognize that shrimp at this site. (For details, see mandated, (d) its protection measures critical habitat is only one of many Relationship of Critical Habitat to are not permanent, i.e., its reference to conservation tools for federally listed Approved Habitat Conservation Plans ‘‘political developments’’ could be seen species, but HCPs are one of the most below). as future decision to convert base to a

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19164 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

regional airport or other development; the public for 30 days, to May 27, 2004. Our Response: We are directed by the (e) identifies the NEPA and the Clean We contacted all appropriate State and Act to use the best commercial and Water Act as primary mechanisms for Federal agencies, county governments, scientific information available to us at reconciling land uses with conservation, elected officials, and other interested the time we conduct our analyses. In but these do not provide effective parties and invited them to comment on response to part (a), we relied on the conservation of vernal pools, and (f) the the proposed rule. In addition, we best scientific resources when INRMP provides few benefits, as the published notices in the San Diego determining to either designate areas INRMP and past consultations will not Union Tribune, the Orange County essential to the conservation of the ensure conservation or protection of Register, and the Los Angeles Times, all Riverside fairy shrimp and to exclude Riverside fairy shrimp and its essential on May 6, 2004. We published a second other areas from our final critical habitat habitat. notice in the Federal Register on designation. Our final delineation of Our Response: Under section 4(a)(3) October 19, 2004 (69 FR 61461), critical habitat is based on the best of the Act, we must exempt military announcing the availability of the draft available scientific and commercial data lands subject to an INRMP from critical economic analysis and opening a 30-day regarding the species, including a habitat if that plan provides a benefit to public comment period until November compilation of data from peer-reviewed Riverside fairy shrimp. The lands at 18, 2004, to allow for comments on the published scientific literature, MCAS Miramar are covered by an draft economic analysis and additional unpublished or non-peer-reviewed approved INRMP that identifies comments on the proposed survey or research reports, and sensitive natural resources within determination. We provided notification statements from expert biologists management areas that have various of the draft economic analysis through knowledgeable about the Riverside fairy resource conservation requirements and telephone calls, letters, and news shrimp and its habitat. In addition to the management concerns. These areas have releases faxed and/or mailed to relevant above information available to us, we been assigned five levels of conservation elected officials, local jurisdictions, and also requested additional information priority corresponding with their interest groups. Following its release, from the public and from peer reviewers sensitivity, with e.g., Level I we also published the draft economic to further assist us in our analyses. All management areas receiving the highest analysis and associated material on our new information that was provided proactive measures. MCAS Miramar Web site (http://carlsbad.fws.gov). We during the public comment periods was continues to monitor, restore and believe these two public comment considered in this final designation, as manage its vernal pool resources, periods provided adequate opportunity appropriate. The areas designated as including studies in progress, and has for public comment and constitute critical habitat represents our best indicated it has no plans for changes in compliance with our implementing estimate of what areas are essential and future land use. MCAS Miramar has regulations at 50 CFR 424.16. Because of critical for the conservation of the completed an INRMP which we have the court-ordered time frame, we were species. In response to part (b), please reviewed and determined that it not able to extend the second comment refer to our section Relationship of provides benefits to the Riverside fairy period or open an additional public Critical Habitat to Approved Habitat shrimp. Therefore, lands at MCAS comment period. Conservation Plans for details on our Miramar have not been included in the 1–8. Comment: Would the designation analyses of approved conservation proposed or final designation in of critical habitat for the Riverside fairy plans. In response to comments (c) and accordance with 4(a)(3) of the Act (for shrimp be considered a changed or (d), we have provided a draft economic more details, see benefits analysis in unforeseen circumstance with respect to analysis, available for public review proposed rule (69 FR 23024) under the various sub-area HCPs presently during the second comment period, Relation of Critical Habitat to approved or pending? giving individuals opportunity to Department of Defense Lands; Marine Our Response: In this rule, no critical submit comments on its contents, which Corps Air Station Miramar). habitat was designated within lands we have reviewed and addressed in this 1–7. Comment: The Service did not covered by any pending or un-approved rule. In response to comment (e), we are provide for adequate public notice of HCP. not required to prepare environmental the proposed rule and sufficient 1–9. Comment: One commenter stated analyses as defined by the NEPA in opportunity for public comment. that the proposal to designate critical connection with designating critical Additionally, requests for extension of habitat violates the Act because of (a) habitat under the Endangered Species the comment period were denied, while failure to use the best available science Act of 1973, as amended. (For more previous comments have not been acted to exclude non-essential lands from the details, see National Environmental upon. The 30-day comment period on critical habitat designation, (b) failure to Policy Act (NEPA) below). the draft economic analysis lacks determine whether any specific areas 1–10. Comment: Would on-going compliance with the required 60-day may require special management activities (such as routine inspections, comment period per the Service’s own considerations or protection, (c) it does road grading, construction, etc.) that regulations, the Act and the Regulatory not contain an economic impact occur adjacent to designated critical Flexibility Act; with a shorter comment analysis; Congress intended that the habitat be considered to appreciably period. Service consider economic and other decrease habitat values or quality Our Response: Pursuant to our impacts of the critical habitat through indirect effects? implementing regulations at 50 CFR designation concurrently with the Our Response: The Federal agency 424.16, we are required to provide for at formulation of critical habitat proposals, planning to conduct such activities least 60-days for public comment (d) certification pursuant to the must determine if their proposed action following the publication of a proposed Regulatory Flexibility Act may affect critical habitat designated for rule in the Federal Register. We impermissibly relies on the as-yet the Riverside fairy shrimp. The action published the proposed rule to unavailable economic analysis, reducing agency determines whether their designate critical habitat for the ability of public to provide meaningful action(s) ‘‘may affect’’ the Riverside Riverside fairy shrimp in the Federal comment, and because (e) the Service fairy shrimp or its primary constituent Register on April 27, 2004 (69 FR has failed to comply with NEPA prior to elements within the adjacent critical 23024), and accepted comments from designating critical habitat. habitat based on their analyses. If so, the

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19165

action agency would enter into shrimp. While we have excluded lands habitat designation if additional consultation with the Service under covered by approved sub-area plans information becomes available that section 7. under the MSCP, the plans for the changes our assessment of the relative 1–11. Comment: Can the Service Major/Minor Amendment areas are benefits of including or excluding these exclude all areas addressed under incomplete and thus do not provide areas from critical habitat. We also existing section 7 permits in a manner adequate conservation measures contacted appropriate State and Federal similar to the exclusions for areas addressing the Riverside fairy shrimp. agencies, county governments, elected covered under existing section 10 However, we have excluded all of Sub- officials, and other interested parties permits? Specifically, can an existing unit 5C in private ownership within the and invited them to comment on the section 7 permit based on a biological Otay Mesa Major/Minor Amendment proposed rule, and published notices in opinion for the California gnatcatcher be areas, under section 4(b)(2) of the Act, the San Diego Union Tribune, Orange amended to cover the Riverside fairy in order to avoid some or all of the County Register, and Los Angeles Times shrimp critical habitat in the Otay Mesa additional costs incurred by affected on May 6, 2004. We published a second area? Specifically, this would be landowners. notice on October 19, 2004 (69 FR necessary for ongoing operations and 1–13. Comment: One commenter 61461), announcing the availability of maintenance by the San Diego County suggested that the areas proposed as the draft economic analysis and opening Water Authority of the Mexico Riverside Fairy Shrimp critical habitat a 30-day public comment period until Emergency Connection Pipeline on the (a) do not need special protection or November 18, 2004, and also published western portion of Otay Mesa (final Map satisfy the definition of critical habitat the draft economic analysis and Unit 4). because they receive substantial associated material on our Web site Our Response: Consultation under protections under new regulations (i.e., (http://carlsbad.fws.gov). In making our section 7 of the Act does not result in Clean Water Act, Porter-Cologne Water final critical habitat determination, we the issuance of a section 7 ‘‘permit’’ per Quality Control Act, California considered every comment submitted. se. Federal actions that we conclude are Environmental Quality Act, California not likely to jeopardize the continued Department of Fish and Game Issue 2: Adequacy and Extent of Critical existence of a listed species are permitting codes, State Water Board Habitat Designation exempted from the prohibition against regulations; and (b) must be re- 2–1. Comment: One commenter stated take of listed animal species under evaluated to determine whether the that there is no substantiation for an section 9 of the Act so long as the habitat requires special protection in increase in area designated as critical Federal agency and any permittee light of new regulations governing such habitat from the previous critical habitat comply with the terms and conditions areas, i.e., the California Porter-Cologne rule issued on May 30, 2001 (66 FR of the incidental take statement Water Quality Control Act. 29384). accompanying the Service’s biological Our Response: While the statutes Our Response: In the May 30, 2001, opinion. Assuming the Federal agency listed above may provide some final critical habitat rule for the that was subject to consultation under regulatory protection for the Riverside Riverside fairy shrimp (66 FR 29384), section 7 of the Act for a listed species fairy shrimp and its associated essential we designated approximately 6,870 ac still retains discretionary jurisdiction habitat, they do not provide assured (2,790 ha) as critical habitat. Since then, over the action, the Federal agency must management for the species. additional, new information on vernal re-initiate section 7 consultation if its Therefore, exclusion of essential pools and the occurrences of the little- action ‘‘may affect’’ designated critical habitat from this designation on the studied Riverside fairy shrimp has habitat for the Riverside fairy shrimp. basis of the regulatory protections become available, while on the other See Section 7 Consultation below. potentially afforded by these statutes is hand, numerous of the discovered 1–12. Comment: One commenter not warranted. essential areas have been included in requested that the Major and Minor 1–14. Comment: One commenter several regional HCPs or INRMPs. Thus, Amendment areas of the eastern portion asserted that Service has unlawfully on April 27, 2004, we proposed to of Otay Mesa, southern San Diego region pre-determined that exclusion from the designate approximately 5,795 ac (2,345 (Map Unit 5C), be excluded from the final critical habitat designation of ha) of vernal pools and their adjacent critical habitat designation because essential Riverside fairy shrimp habitat watersheds essential to the conservation these areas must conform to the MSCP, that lies within other conservation plan of the species as critical habitat for the sub-area plans, and the resource areas outweighs any benefits of Riverside fairy shrimp (69 FR 23024). protection ordinance, and a critical inclusion because the acknowledged This final determination designates 306 habitat designation would result in essential habitat was excluded prior to ac (124 ha) as critical habitat, which additional section 7 requirements, the public’s review of the Service’s represents less than five percent of the economic burdens on HCP participants, analyses of benefits and harm. area originally designated as critical discourage HCP development, cause Our Response: Notice of our intent to habitat in the previous rule of 2001. additional regulatory review that could exclude lands within approved and/or 2–2. Comment: One commenter stated jeopardize ongoing conservation efforts, pending HCPs was provided to the that the Service did not use an possibly encourage legal challenges to public, and maps showing the lands appropriate mapping scale for this the HCPs because of the uncertainty of proposed for exclusion were readily species, and since the species’ range is the ‘‘adverse modification’’ threshold, available to the public for inspection well known in San Diego County, the and afford no additional benefit to the during the two public comment periods. Service should have been able to species because HCPs provide better We solicited comments from the public delineate critical habitat boundaries long-term conservation measures. for 30 days about the areas which we with extreme precision. The current 100 Our Response: Although the Major/ proposed to include or exclude from the m2 blocks include areas that do not have Minor Amendment areas are within the proposed rule to designate critical the PCEs for the Riverside fairy shrimp, boundaries of the San Diego MSCP, habitat for the Riverside fairy shrimp on and those areas should be excluded. these areas are not covered by April 27, 2004 (69 FR 23024). In the Another commenter asked whether the completed plans that address the Federal Register notice, we notified the Service intends to exclude from the conservation of the Riverside fairy public that we may revise the critical designated critical habitat all existing

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19166 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

roads, aqueducts, etc. regardless of the designation. Please see the sections that we used the best scientific and state of these features. Background, Criteria Used to Identify commercial information available in Our Response: We are required to Critical Habitat, and Critical Habitat determining those areas essential for the define and delimit critical habitat by Designation of this rule for further Riverside fairy shrimp that were specific limits using reference points discussions on how we determined proposed as critical habitat and and lines as found on standard habitat that is essential to the subsequently finalized. Please see the topographic maps of the area’’ (50 CFR conservation of the species. The areas sections Background, Criteria Used to 424.12(c)). We have delimited the designated by this final rule are limited Identify Critical Habitat, and Critical boundaries of critical habitat boundaries to lands essential for the conservation of Habitat Designation of this rule for in this rule based on a minimum the Riverside fairy shrimp. further discussion on how we mapping scale of 100 m. This mapping 2–4. Comment: Rancho Mission Viejo determined habitat that is essential to scale was based on the availability and stated that in the proposed rule: (a) The the conservation of the Riverside fairy accuracy of aerial photography and GIS Service used a ‘‘recovery standard’’ shrimp. data layers used to develop the which resulted in an overly broad designation. In drawing our critical critical habitat designation, (b) the Issue 3: Biological Justification and habitat boundaries for the proposed and Service did not provide scientific data Methodology final rules, we have attempted to to indicate how it determined the extent 3–1. Comment: There is insufficient exclude all areas that do not contain of watersheds that comprise the extent data to show that the Riverside fairy essential habitat for the Riverside fairy of critical habitat within Rancho shrimp is present in the proposed shrimp as defined by its PCEs. Based on Mission Viejo, and that (c) one vernal critical habitat areas at March Air information obtained through public pool (within Map Unit 2), included in Reserve Base (March ARB). Further, the comments and updated imagery and GIS the proposed designation, no longer Service did not use best scientific data data layers, we have been able to further exists. available in the proposed critical habitat refine the boundaries of critical habitat Our Response: The definition of designation, as it did not consider the during the development of this final critical habitat in section 3(5)(A) of the ‘‘1998 Fairy Shrimp Surveys at March rule. Within the limitations of our Act includes ‘‘(i) specific areas within Air Reserve Base, Riverside County, mapping scale, we have been able to the geographic area occupied by a California’’ (RECON Number 2965B, exclude most, but not all areas, that do species, at the time it is listed in September 14, 1998) which concluded not contain the PCEs, including some accordance with the Act, on which are that ‘‘potential habitats at March Air man-made features. Note, however, that found those physical or biological Reserve Base are of poor quality and do we have determined that existing man- features (I) essential to the conservation not support the Riverside fairy shrimp.’’ made features and structures, such as of the species and (II) that may require Because the surveys indicated that the buildings, roads, railroads, airports, special management considerations or habitat was unoccupied, the pools on runways, other paved areas, lawns, and protection; and (ii) specific areas March ARB are not essential to the other urban landscaped areas are not outside the geographic area occupied by conservation of the species. likely to contain one or more of the a species at the time it is listed, upon Our Response: The delineation of PCEs and thus do not constitute critical a determination that such areas are critical habitat for the Riverside fairy habitat and the lands on which they are essential for the conservation of the shrimp was based on the best available found. Activities in these areas are species.’’ The term ‘‘conservation,’’ as scientific and commercial data unlikely to affect PCEs (i.e., essential defined in section 3(3) of the Act, means regarding the species. During both habitat for the Riverside fairy shrimp), ‘‘to use and the use of all methods and public comment periods, all new and therefore, consultation under procedures which are necessary to bring information provided was considered in section 7 of the Act would not be any endangered species or threatened this final designation, as appropriate. required unless such activities would species to the point at which the The areas proposed and designated as affect the species or adjacent critical measures provided pursuant to the Act critical habitat, as described, represent habitat. In making the critical habitat are no longer necessary’’. In designating our best estimate of what areas are designation, we used the best scientific critical habitat for the Riverside fairy essential and critical for the and commercial information available to shrimp, we identified those areas that conservation of the species. Critical us, including information obtained are essential to the conservation of this habitat at March ARB was excluded during the two public comment periods species. The areas we designate as from critical habitat based on section 2–3. Comment: The proposed critical critical habitat provide one or more of 4(b)(2) of the Act. habitat designation violates the Act those habitat components essential for Issue 4: Comments on Individual Map because of the Service’s failure to limit conservation of the Riverside fairy Units—Exclusions the designation to areas essential to the shrimp. In this final rule, we have not conservation of the Riverside fairy included all areas currently occupied by 4–1. Comment: The U.S. Department shrimp. the Riverside fairy shrimp, but instead of Homeland Security (DHS), U.S. Our Response: In proposing critical have designated those areas that are Border Patrol, San Diego Sector, habitat designation, we used the best essential for the conservation of the submitted comments (May 27, 2004) scientific and commercial information species and that may possess large raising the following issues: (1) Lands available to determine those areas populations, have unique ecological owned by the DHS within Sub-units 5B essential for the conservation of the characteristics, and/or represent the and 5C have previously been disturbed Riverside fairy shrimp. We used known historic geographic areas where and developed by the construction of additional information available to us, the Riverside fairy shrimp can be re- the Border Infrastructure System (BIS), including a more detailed aerial established. The Recovery Plan (Service (2) the DHS has conducted two imagery, a finer mapping grid (changed 1998) details some measures to meet the restoration projects to offset losses for from 250 m2 to 100 m2), as well as recovery needs of the Riverside fairy fairy shrimp, and 135 ac (55 ha) of DHS- information provided by commenters to shrimp, and provides a description of owned lands located north of the BIS refine our mapping of all essential habitat attributes that are essential to have been designated as mitigation for habitat included in the final conservation of the species. We believe completion of the border system and

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19167

should not be designated as critical Our Response: We have determined contain this primary constituent habitat. DHS has made a commitment to to: (1) Remove Sub-unit 3A from this element; the Riverside fairy shrimp is the Service to transfer these lands to a critical habitat designation as the area unable to complete its lifecycle at LAX conservation resource agency and/or to has been modified and no longer without these pools being inundated for protect and conserve the lands in contains the primary constituent a minimum of two months. Thus, we perpetuity, (3) lands within the elements for the Riverside fairy shrimp, conclude that the ephemeral pools footprint of the BIS do not or will not and (2) exclude Sub-unit 3B from this originally proposed as critical habitat at contain any of the primary constituent final critical habitat designation LAX are not essential for the elements for the Riverside fairy shrimp according to section 4(b)(2) of the Act. conservation of the Riverside fairy once construction is completed, and (4) The main benefit of the latter exclusion shrimp and we are not designating them the BIS is considered integral to is to ensure that mission-critical as critical habitat. national security. military flight activities can continue 4–4. Comment: The U.S. Marine Our Response: We have excluded without interruption at March ARB Corps has requested the exclusion of essential habitat within DHS-owned while their INRMP is being completed. lands on Marine Corps Base (MCB) lands along the U.S.-Mexico border (i.e., Under section 4(b)(2) of the Act, we may Camp Pendleton from critical habitat all of Sub-unit 5B, and portions of Sub- exclude lands from critical habitat if the designation per the Act, under section unit 5C) under section 4(b)(2) of the Act benefits of excluding them, including 4(a)(3) and section 4(b)(2) They stated and removed non-essential areas. The the benefits to national security, that MCB Camp Pendleton has an concerns related to the presence or outweigh the benefits of including them INRMP that provides significant direct absence of primary constituent elements in the designation. We have determined and indirect benefits to the Riverside within the footprint of the BIS are moot that the benefits to national security of fairy shrimp, that section 7 provides because no lands owned by the DHS excluding lands within Sub-unit 3B sufficient protection for the Cocklebur have been designated as critical habitat. from critical habitat outweighs the Sensitive Area as described in a For a detailed explanation, please see benefits of including these lands in the previous biological opinion (1–1–82–I– the section Application of Section critical habitat designation (see 92) and therefore, this area should be 4(b)(2) to Department of Homeland Application of Section 4(b)(2) to March excluded from critical habitat. They Security (DHS) lands below. Air Reserve Base (March ARB) for a stated that designation would interfere detailed discussion). with the base’s critical military training 4–2. Comment: March ARB requested 4–3. Comment: We received comment mission and military readiness and that vernal pools located on their lands letters from the Federal Aviation concurred with the Service’s proposal to be excluded from critical habitat under Administration (FAA) and Los Angeles exclude mission-critical areas from section 4(b)(2) of the Act because World Airports (LAWA; Sapphos critical habitat designation. designation would adversely impact Environmental 2004) regarding the Our Response: According to section commercial reuse of former military proposed designation of critical habitat 4(a)(3) of the Act, we must exempt property currently under development, at the Los Angeles International Airport Department of Defense lands covered by severely limit civilian aviation at the (Sub-units 2A and 2B). FAA and LAWA an INRMP from the critical habitat joint-use March ARB airport, result in questioned the appropriateness of the designation if we determine that the aviation delays, jeopardize public safety proposed designation of critical habitat INRMP provides a benefit to the and impact firefighting mission of because of past decisions by the Service Riverside fairy shrimp. We have California Department of Forestry, in the Recovery Plan for Vernal Pools in reviewed Camp Pendleton’s INRMP and increase possible risk of bird-aircraft Southern California, previous conclude that their plan provide a strikes, and ‘‘adversely impact mission designation of critical habitat for the benefit to the Riverside fairy shrimp. execution and military training critical Riverside fairy shrimp, the April 2004 With the INRMP in place and progress to national security.’’ One pool is biological opinion for the Los Angeles being made towards improving the located near the airfield zone where International Airport Master Plan, protection of Riverside fairy shrimp, we ongoing maintenance is necessary to concern for the potential increased risk have therefore exempted MCB Camp ensure proper drainage and prevent to public safety and air navigation, and Pendleton under section 4(a)(3) of the possible runway damage. Further, they conflicts with FAA’s mission. These Act. See the Exclusion of Critical suggested that the vernal pools on agencies also recommended that critical Habitat Under Sections 4(a)(3), 3(5)(A) March ARB (called Pools 3 and 6 by habitat not be designated within the Los and 4(b)(2) of the Act section below for March ARB) do not meet the definition Angeles International Airport because of further discussion of lands excluded of ‘‘critical habitat,’’ suitable habitat for the ongoing section 7 consultations for from critical habitat. the Riverside fairy shrimp is not present the Riverside fairy shrimp with FAA 4–5. Comment: We received a request or determinable and cannot be and LAWA for their operations and to exclude areas owned by San Diego maintained on March ARB, and the maintenance activities and the absence Gas and Electric (SDG&E) that fall pools are not essential to the of the primary constituent elements for within their sub-regional NCCP/HCP conservation of the species as required the Riverside fairy shrimp within the boundaries from the critical habitat by Act. Thus, the benefits of exclusion proposed critical habitat units. designation because these areas do not outweigh benefits of inclusion, will not Our Response: In the proposed rule, meet definition of critical habitat (i.e., is result in extinction of the Riverside fairy we identified vernal pools at the Los covered by an HCP plan) and exclusion shrimp, and the proposed critical Angeles International Airport (LAX) as will not pose any potential risk to the habitat designation is not prudent. The critical habitat (Sub-units 2A, 2B). As a Riverside fairy shrimp. Designation of Air Force’s Environmental Impact result of the ongoing operations and critical habitat imposes economic Analysis Process ensures the maintenance activities at LAX, the burdens on HCP participants, increases compliance of March ARB with the requirement of the primary constituent the cost of consultation, increases delay, NEPA, and also, an INRMP is being element related to the length of time imposes additional regulatory review, revised that will ensure all potential that ponding seasonally occurs within and will reduce incentive to participate habitat areas on March ARB will be these ephemeral wetlands is not met. in the HCP process. HCPs provide a investigated for Riverside fairy shrimp. Thus, these ephemeral wetlands do not much greater conservation benefit to

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19168 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

private land areas than other protection, the site cannot be designated regulatory burden, costs, and Endangered Species Act programs, critical habitat; (c) the area that has been administrative delays that would be while critical habitat designation affords proposed as critical habitat (536 ac) caused by a critical habitat designation, no additional benefits to the species as exceeds the area that contains the PCEs. requested that their facilities (the section 7 is applied on an inconsistent Pardee Homes engaged Sikand Mexico Emergency Connection and sporadic basis, and does not Engineering, whose hydrological model Pipeline) on Otay Mesa (Sub-unit 5C) be provide long-term protection. determined that the maximum surface excluded or, alternatively, that Our Response: Where site-specific area of the two main pools was 12 ac (5 provisions be made in the designation to documentation was submitted to us ha) and the tributary area necessary to address the existing activities and providing a rationale as to why an area fill the pool volumes from rainfall run- operations within their right-of-way, should not be designated critical off constituted 90 ac (36 ha), totaling through either exclusions or textual habitat, we evaluated that information 102 ac (41 ha), and (d) the benefits of exemptions. in accordance with the definition of excluding outweigh the benefits of Our Response: Please see the response critical habitat pursuant to section 3 of including lands within Skyline Ranch to comment 1–10 above and discussion the Act. We made a determination as to as critical habitat; exclusion would not in Section 7 Consultation, below. Please whether modifications to the proposal lead to the extinction of the species. The note that critical habitat within Sub-unit were appropriate. We reviewed the commenter listed the benefits of 5C has been excluded based on section maps to ensure that only those lands exclusion from critical habitat 4(b)(2) of the Act. essential for the conservation of the designation as the implementation of 4–8. Comment: One commenter stated Riverside fairy shrimp were designated Pardee plans to construct approximately that critical habitat designation should as critical habitat. We excluded lands 1,344 single family detached homes on exclude Rancho Mission Viejo lands from the final designation that we the property, creation of new jobs and (within Map Sub-units 2F and 2G) ‘‘in determined to be non-essential to the tax revenues for local jurisdictions, and light of disincentives to continued species’ conservation. We also excluded the removal of burden of substantial participation in conservation planning,’’ lands, including lands identified in the impending litigation to Skyline Ranch because of a pending HCP, and because Vernal Pool Recovery Plan that were property by ‘‘No Growth’’ advocates. the benefits of exclusion outweigh included in an approved HCP which Our Response: Cruzan Mesa benefits of inclusion. provides for the conservation of (proposed Map Sub-unit 1C), constitutes Our Response: We are continuing to Riverside fairy shrimp, and where we a portion of a larger area of Pardee- work with Rancho Mission Viejo to determined that the benefits of owned property (Skyline Ranch). complete their HCP (please see excluding those areas outweighed the Cruzan Mesa contains several isolated Relationship of Critical Habitat to HCPs benefits of including them. We included vernal pool complexes within a unique in Development section below). The lands in the final designation that are topography, i.e., a topographically South Orange County NCCP/HCP covers essential to the conservation of the enclosed basin atop a large, elevated approximately 128,000 ac (51,799 ha) of species which may require special mesa (1,230 ft (375 m)) on an eroded land within the plan area and has been management considerations or foothill. In 2004, the Los Angeles in development for a number of years. protection for the Riverside fairy County Department of Regional This NCCP/HCP planning effort shrimp. Portions of essential habitat Planning proposed to designate a 958 ac includes the participation of Rancho areas within the SDG&E Sub-regional area Sensitive Ecological Area (SEA), Mission Viejo and the cities of Rancho Plan which are used for SDG&E including all of Cruzan Mesa, due to its Santa Margarita, Mission Viejo, San operational maintenance activities have regional biological values. In evaluating Juan Capistrano and San Clemente, and been excluded from critical habitat the Cruzan Mesa sub-unit, we relied the County of Orange. However, the based on section 4(b)(2) of the Act. This upon various sources, including Environmental Impact Statement and sub-regional plan and the clarification information in the Final Recovery Plan Environmental Impact Report for the document (July 2004) defines for Vernal Pools of Southern California NCCP/HCP proposal have not been avoidance, minimization, and offsetting (Service 1998) and the Biological released for public review and measures to be implemented by SDG&E Resources Assessment Report of the comment. There are altogether at least for the operations and maintenance Proposed Cruzan Mesa Vernal Pools four vernal pools that support the activities and future construction of new SEA prepared for the Los Angeles Riverside fairy shrimp within the study facilities and roads. County Department of Regional area of the South Orange County NCCP/ 4–6. Comment: Skyline Ranch Planning (PCR Services 2000). This HCP (please see Critical Habitat suggested that lands owned by Pardee information referenced the occurrence Designation below for more Homes be removed from critical habitat of Riverside fairy shrimp at Cruzan information). The features within these designation because it does not fit Mesa. Information from the referenced pools have been determined to be critical habitat designation, and is not comment letter refers to another survey essential to the conservation of the within the geographical area occupied of some vernal pools on Cruzan Mesa species and may require special by the species. The commenter stated that did not encounter Riverside fairy management consideration or that: (a) The Service has no proof shrimp. However, we have not protections. Please note that critical showing Cruzan Mesa pools in Skyline designated critical habitat on Cruzan habitat within these subunits has been Ranch property are occupied; attached Mesa for the Riverside fairy shrimp excluded based on section 4(b)(2) of the information referred to two surveys because at present, we do not have Act. conducted in 2002 and 2003 that sufficient documentation supporting the 4–9. Comment: The vernal pool on the recorded the vernal pool fairy shrimp occurrence or non-occurrence of the former MCAS El Toro does not have the (Branchinecta lynchi), but did not Riverside fairy shrimp in the Cruzan PCEs to support the Riverside fairy record Riverside fairy shrimp on Cruzan Mesa vernal pools. Thus, we have shrimp and further, critical habitat Mesa; (b) because the Service has not concluded that Cruzan Mesa is not designation at El Toro would impede made a finding that the site is essential essential for the Riverside fairy shrimp. the Comprehensive Environmental to the species, and Skyline Ranch does 4–7. Comment: San Diego County Response, Compensation, and Liability not need special management or Water Authority, citing undue increased Act (CERCLA) response actions

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19169

necessary to remediate both soil and publication. Not all vernal pools section below on Relationship of groundwater contamination on the discussed in the plan are known to be Critical Habitat to Department of property. Thus, the benefits of occupied by the Riverside fairy shrimp, Defense Lands. excluding the pool at El Toro from the or considered to be essential to the Issue 6—Miscellaneous critical habitat designation outweigh the conservation of the Riverside fairy benefits of including it. shrimp. Only those vernal pool habitats 6–1. Comment: The U.S. Navy at the Our Response: We have reviewed the that are essential to the conservation of former MCAS El Toro commented that available information and believe that Riverside fairy shrimp were included in the proposed inclusion of the El Toro the vernal pool at former MCAS El Toro the critical habitat designation for the property as critical habitat was based on has the primary constituent elements for Riverside fairy shrimp. Where site- erroneous property ownership the Riverside fairy shrimp. We have specific documentation was submitted information, as the Department of excluded all of Unit 2C, consisting of to us providing a rationale as to why an Defense still owns almost 3,800 ac of lands within the former MCAS El Toro area should not be designated critical former MCAS El Toro Property. Further, from critical habitat based on section habitat, we evaluated that information Map Sub-unit 2C included 1000 ac of 4(b)(2) of the Act. in accordance with the definition of Navy and Federal Aviation Administration owned property, not 1 Issue 5: Comments on Individual Map critical habitat pursuant to section 3 of ac as described in rule. Units—Inclusions the Act. We made a determination as to whether modifications to the proposal Our Response: We have noted these 5–1. Comment: One group and the were appropriate. We reviewed the errors and have amended our records City of Moorpark requested the maps to ensure that only those lands and this rule. inclusion of areas containing vernal essential for the conservation of the 6–2. Comment: The Service’s citation pools within Map Unit 1 in the final Riverside fairy shrimp were designated of its website as an example of public critical habitat designation as it will as critical habitat. We removed lands education about the Riverside fairy help ensure the protection of the habitat from the final designation that we shrimp is inadequate; all the available and the species. In addition, determined to be non-essential to the materials about the Riverside fairy clarification was given that (a) the species’ conservation. We also excluded shrimp at the website are related vernal pool located on the former lands, including those identified in the entirely to critical habitat. Carlsberg Ranch is on part of a land Vernal Pool Recovery Plan, that were Our Response: We thank the parcel (650,000 ac) owned and managed located within an approved HCP, which commenter for their observation, and by the Santa Monica Nature provides for the conservation of will seek to improve our website with Conservancy, and (b) Sub-units 1A and Riverside fairy shrimp, and where we additional educational material on the 1B include portions of land within the determined that the benefits of Riverside fairy shrimp. Tierra Rejada Greenbelt, an area of land excluding those areas outweighed the with formal agreement by the Cities of Comments Related to the Draft benefits of including them, or an INRMP Economic Analysis Moorpark, Thousand Oaks, Simi Valley, which provided a benefit to the species. and the County of Ventura to be We included lands in the final 1. Comment: One comment requests preserved for open space and designation that are essential to the that the DEA update its land use and agricultural uses. conservation of the species which may land ownership information regarding Our Response: This area is included require special management the former MCAS El Toro in Orange in our final critical habitat designation, considerations or protection for the County. The comment also suggests that and we have amended our records to Riverside fairy shrimp. the Riverside fairy shrimp conservation include the ownership and land usages 5–3. Comment: All essential Riverside activities will impose higher costs on information. fairy shrimp habitat within MCB Camp facility improvements and land transfer 5–2. Comment: A number of requests Pendleton should be included in the projects planned for the former base were made that additional areas be critical habitat designation because (a) than estimated by the DEA. included in the critical habitat Service has failed to state how benefits Our Response: The DEA describes the designation because critical habitat of exclusion outweigh benefits of former MCAS El Toro’s likely future provides significant conservation designation, especially in light of the land uses based on the best available benefits to listed species, is an essential Act’s exemptions that would allow public information and statements made tool for species recovery, it mandates otherwise incompatible military training by knowledgeable individuals in higher habitat conservation standards activities; (b) inclusion will not limit or personal interviews. Base Realignment not otherwise available to the species, additionally impact military training and Closure staff estimated that provides detailed, practical guidance on and readiness at the base; existing Riverside fairy shrimp-related locations of areas essential to the requirements of uplands consultation at conservation costs for El Toro would be species’ survival, and also carries a very MCB Camp Pendleton will ensure the $150,000 over the next 20 years based valuable, practical educational value. It avoidance of adverse impacts to the on the assumption that the Service was also requested that the vernal pools Riverside fairy shrimp and involve would allow historical uses of the site identified in Appendices F and G of the section 7 consultations; thus little to continue if El Toro instituted a Service’s Recovery Plan for Vernal Pools benefit of exclusion, (c) it has the particulate monitoring program. of Southern California be included benefit of providing the military with The comment suggests that if because they are essential to clear, independent scientific regulatory historical uses for the site continue and conservation of the species and in need guidance on location of critical habitats planned improvements to the base uses of special management. for the Riverside fairy shrimp and other are implemented, then the habitat Our Response: The Recovery Plan for endangered species, and (d) the benefits mitigation costs incurred by MCAS the Vernal Pools of Southern California of inclusion outweigh any costs of Tustin, a neighboring base that was also (Service 1998), discusses vernal pool inclusion. recently decommissioned, serve as a complexes and pools, their distribution, Our Response: Please see our better estimate of costs for El Toro. The and known occupancy by federally responses to Peer Reviewer Comment 2 Final Economic Analysis (FEA) revises listed species at the time of the plan’s and to Comment 4–4 above, and the the land use and land ownership

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19170 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

context of the El Toro Sub-unit 2C and related conservation impacts to major regional, traffic flow. Future differences accepts the revised cost impact of $100 transportation infrastructure projects in in traffic flows and volumes can, in million, noting that El Toro plans to Southern California. turn, have a variety of indirect economic acquire expensive land off-site, restore Our Response: The DEA estimated no effects, including opportunity costs of vernal pools, relocate the species to impacts of Riverside fairy shrimp labor, efficiency of goods delivery, and these pools, initiate biological conservation activities on the proposed growth-inducing effects, among other monitoring, and provide for project extension of the 241 Toll Road based on factors. However, given the high degree management. the best available public GIS of uncertainty associated with the Toll 2. Comment: One commenter stated information and statements made by Road project and the variety of factors that the DEA underestimates the impact knowledgeable individuals in personal at play, it is difficult to isolate the of Riverside fairy shrimp conservation interviews. At this time, the project has unique contribution of the Riverside activities on operations and planned nine alternatives that range from no fairy shrimp conservation activities on capital improvements to March ARB in action to two alternative road widening the final outcome. Consequently, the Riverside County. projects (I–5 and local arterials, both FEA does not estimate potential Our Response: The DEA estimates avoiding construction of the 241 Toll economic impacts associated with impacts of Riverside fairy shrimp Road itself) to six alignment variations potential changes in future conservation activities on the former for the toll road. The public review, transportation patterns attributable to March Air Force Base based on the best comment, and approval process for this the Riverside fairy shrimp conservation available public information and project has been and is expected to activities. statements made by knowledgeable continue be a time-consuming and The comment also suggests that no individuals in personal interviews. For politically contentious. Given the wide formal analysis was completed on impacts likely to occur in the next 20 variety of regulatory, institutional, and Caltrans projects underway or just years, March Joint Powers Authority political factors are play, the ultimate completed in Southern San Diego staff estimated that $500,000 would be outcome cannot be predicted at this County. Estimates of project-specific required to implement required time. cost impacts based on Caltrans Riverside fairy shrimp conservation The comment suggests that critical interviews for three projects in the Otay while increasing the capacity of habitat Sub-unit 2H has the potential to Mesa area of San Diego County can be drainage facilities within which the add enormous costs to three of the Far found in Chapter V of the Economic habitat is located. The drainage facility East alignments. Additional analysis Analysis. improvements would support real estate and interviews with local experts 4. Comment: Two comments suggest development on more than 3,000 acres suggest instead that Map Sub-units 2F that real estate assumptions used to of the former base. and 2H lie in the path of the Alignment calculate impacts to private land The comment suggests that ongoing 7/Avenida La Pata Variation alternative development activities in one Southern operations at March ARB will also need and the A–7 Far East Crossover, Far East Orange County sub-unit are inaccurate. costly modifications to comply with (West), and Far East Modified The comments also recommend using Riverside fairy shrimp-related alternatives. While no information is census tract level data for supply and regulations and laws. Based on March publicly available on the surface area of price effects associated with Riverside ARB’s understanding of NEPA, an vernal pools likely to be disturbed by fairy shrimp conservation activities. additional $950,000 of environmental any of these alignments, there is some DEA Methods studies (at the Environmental Impact probability that one of these alignments Statement level) will need to be will be chosen and Riverside fairy Our Response: The DEA relies on completed to maintain operations of its shrimp conservation measures may be DataQuick’s transaction-based 2003 runway and taxiways. In addition, a required prior to project construction. residential market data to characterize California Air National Guard heavy Given the uncertainty associated with real estate prices in all zip codes where equipment unit will require relocation, the ultimate outcome, the FEA weights critical habitat was proposed. In costing an additional $31.5 million. each of the nine project alternatives addition, regional planning agencies Although the comment references equally and multiplies the probability of such as the Southern California additional improvements to the site, each (1⁄9 or 11 percent) by an estimated Association of Governments and the San including the relocation of California worst case cost impact for each Diego Association of Governments Department of Forestry aircraft to March alternative. The analysis assumes no provided the DEA with Global ARB, construction of a parallel taxiway impact (a $0 economic costs estimate) if Information System (GIS) layers that on the existing airfield, and installation the toll road is not built or if the describe existing and planned land uses of instrument upgrades as part of the construction footprint is located outside for areas of proposed critical habitat. March Inland Port, no information is of proposed critical habitat. For Biological opinion records from the available about the potential for these alternatives expected to cross Riverside Service also establish a range for the projects to impact Riverside fairy fairy shrimp habitat, the impact is the habitat setaside, given variable project shrimp habitat or the magnitude of surface area of all vernal pools in the footprint and vernal pool site geometry. Riverside fairy shrimp-related project sub-unit times $500,000 per acre as a The combination of the three datasets modification, if any. generalized mitigation cost for produces an estimate of the total value The FEA accepts revised total cost transportation projects. Based on this of unimproved land affected by impacts of $33.0 million resulting from revised methodology, the FEA estimates Riverside fairy shrimp-related the California Air National Guard unit the 241 Toll Road may incur an conservation measures such as on-site relocation, the incremental additional $43,000 in project habitat setasides. Environmental Impact Statement costs, modification costs based on available The DEA considers the potential for and March Joint Powers Authority’s vernal pool surface area data for all nine habitat set-asides to affect aggregate drainage improvements. alternatives. housing supply and market prices. The 3. Comment: A number of The Service recognizes that the Toll San Diego Association of Government’s commenters stated that the DEA omits Road alignment ultimately constructed, data covering the period of 1990 to 1995 consideration of Riverside fairy shrimp- if any, will impact local, and possibly allow for an estimate of gross public

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19171

land uses required per 1,000 acres of a finished home may require the actions $45 million dollars in potential land private development. The Construction of several major agents who in turn value over the next 20 years. Industry Research Board supplies move the land from an agricultural or The FEA also uses corrected information about building activity un-entitled basis to an entitled, paper references of this region’s habitat sub- since 1993. From this information, a lot basis through to a finished lot and units to the Ranch Plan, a master forecast can be made of the Riverside finished home, at which point the planned community covering many fairy shrimp-related conservation land product is sold to the end user. Multiple thousands of acres of the area. that is taken from residential private entities are likely to have 6. Comment: One comment requests development as a share of the market’s participated in this process, each at that the land ownership and planned future demand for land used to build different levels of risk. uses information for Los Angeles new housing. The result suggests an The comments’ preferences for a International Airport (LAX) from the insignificant or near zero impact on below-10 percent return on investment DEA be revised. The comment also housing market supply and price in all apply best to higher volume segments of suggests that the impacts to LAX from ‘‘since listing’’ time periods and the homebuilding industry in which a Riverside fairy shrimp-related counties and in all but one county single entity purchases lots, builds conservation activities in the DEA are during the ‘‘2005–2024’’ time period. homes, and sells them to buyers. The grossly understated. Our Response: DEA Methods. Specific Real Estate Assumptions DEA, in contrast, uses a composite risk level that includes the greater returns to The DEA estimated the impacts of Several comments object to the use of speculative land purchase and Riverside fairy shrimp conservation a 4.25 percent property appreciation entitlement obtained for such property, activities on LAX based on the best rate in the DEA, believing it to be an and bases its calculations on a more available public information and understatement of the true appreciation appropriate composite return of 25 statements made by knowledgeable rate given an anticipated shortage of percent. individuals in personal interviews. finished lots for new housing in the 5. Comment: One comment requests Several individuals contacted for County. To estimate future appreciation that the DEA revise the sub-unit land personal interviews did not return in home values, the DEA relies on long- use and land ownership descriptions for phone calls during the process of term historical trends which are Southern Orange County proposed preparing the DEA. The agency appropriate for the 20-year forecast critical habitat. The comment also states operating LAX, in recent publications, utilized by the DEA. has characterized the airport’s daily In particular, the DEA relies on the that development of one sub-unit is now foreseeable and will be adversely operations at and major facility average of a 10-year and a 20-year trend expansion plans as incompatible with of repeat sales and refinancing of the impacted by Riverside fairy shrimp- related conservation activities. maintenance of Riverside fairy shrimp same properties in California. The price habitat. indexing of the same properties over Our Response: The DEA estimated the Given LAX’s objectives of minimizing time controls for potential changes in impacts of Riverside fairy shrimp the risk of aircraft-bird collisions that it housing quality, location and size over conservation activities for the Radio believes is higher due to the presence of time. These data were obtained from Tower Road (Sub-unit 2G) and other seasonal vernal pools on the airfield, the U.S. Department of Labor, Office of Foothill sub-units based on the best DEA assumes that Riverside fairy Federal Housing Enterprise Oversight. available public information and shrimp-related conservation measures The Service regards this source as the statements made by knowledgeable would include eventual off-site most reliable indicator of long-term real individuals in personal interviews. mitigation of the entire 1.3 acres of estate price trends because it is less After the publication of the notice of wetted area. Adding monitoring and affected by short-term business cycle availability of the DEA, the Orange administrative costs to this sub-total, fluctuations. County Board of Supervisors changed approximately $950,000 in impacts are Several comments also state that 2004 the designation of the property to estimated for the airport over the next housing price data would show a Suburban Residential from Open Space, 20 years. significant increase over 2003 data. and rezoned much of the land for Although potentially true at the County Planned Community instead of Impacts of Significant Events level, different zip codes may have Agricultural. The comment requests that a full highly varied year to year changes in The FEA analyzes impacts from accounting of the cost impact of two housing prices. Establishing the actual Riverside fairy shrimp-related significant events be attributed to the year to year change in housing prices at conservation using the same methods designation of critical habitat on the the zip code level would require a established and applied to land use data LAX airfield: purchase of a new dataset and matching in the DEA. Land that is zoned for • Property loss and loss of life (using GIS-based weighting) of this data development is deemed likely to be damages resulting from serious aircraft- to critical habitat land areas. developed within the next 20 years, bird collisions. Recalculating the median housing price given general trends in land use for the • Loss of regional mobility for goods is not possible given the time areas identified as supportive of the and people given an inability of the constraints for preparation of the FEA. Riverside fairy shrimp. These areas tend airport to complete its planned Finally, the comments posit that to be generally flat and readily built improvements. returns on real estate investments upon, notwithstanding other Publicly available literature was typically fall below the 10 percent level, development considerations such as searched for references to impacts in contrast to the assumption in the infrastructure, and land ownership. related to catastrophic events involving DEA of a 25 percent pre-tax return. Given this conservative assumption, all bird strikes. One source estimates that These assumptions are used to 753 undeveloped acres of the Radio between 1990 and 2004 approximately determine the value of raw land as a Tower Road are considered impacted by 732 bird strikes have taken place at percent of finished home price. The Riverside fairy shrimp-related LAX, inflicting total damages of $17.5 DEA bases its calculation on the conservation measures that include on- million. The estimate did not match the understanding that the development of site habitat setasides worth $8 million to damage levels of these incidents to birds

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19172 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

using vernal pool habitat, apart from $750,000. Administrative costs are Summary of Changes From Proposed birds that came into contact with listed in the FEA as $400,000 for Rule aircraft because of other landscape historical (since listing) section 7 Based on our review of the public features, natural or human constructed. compliance regarding the Riverside fairy comments received on the proposed It is not possible, therefore, to easily shrimp, and $180,000 for the recently designation of critical habitat, the distinguish damage due to Riverside initiated consultation, for a total of economic analysis for the Riverside fairy shrimp-related habitat from $580,000 in administrative spending. fairy shrimp, and available information, damage related to birds attracted by we re-evaluated our proposed other habitat or landscape features. FEA References to Documents and designation and revised the final critical In addition, these bird strike loss Permitting Processes habitat designation for this species as estimates do not include an analysis of hardware or other means that would The FEA text on LAX’s Master Plan follows. reduce bird attraction to ephemeral and operations has been revised based Areas Removed From Critical Habitat wetlands on airport land without on new information provided in the Designation removal of the wetlands as a habitat comment. EIR/EIS documents released We re-evaluated our proposed critical feature. Current discussions being held to the public since the appearance of the habitat unit boundaries, refined our between LAX and the Service will first drafts of the DEA were reviewed, mapping methodology, and used new explore the installation of equipment and the consultation history with the information to remove 4,822 ac (1,951 that allows for wetlands to be Service was updated. ha) of non-essential habitat within each maintained on the airfield while Land Ownership Information critical habitat map sub-unit (see Table discouraging avian feeding or travel 1 and Methods section below for more patterns within the habitat. The DEA cites GIS layers provided by Regarding airport operation and details). Southern California Association of In the proposed rule, we identified expansion plans, the DEA assumes that Governments as the basis of existing Riverside fairy shrimp conservation critical habitat in Sub-units 1C, 2A, 2B, land uses for proposed critical habitat 3A, and in portions of 5A and 5B. activities will have no impact on on or near LAX. Table 10 in the DEA regional transportation mobility. Based However, we have re-evaluated these notes that Southern California sub-units based on updated information, on comments received, additional Association of Governments data research was conducted on the potential and determined that, due to habitat classifies 3 acres of the proposed habitat modifications and ongoing operations relationship between LAX’s operational sub-unit as private developed, 66 acres capacity and regional economic activity. and maintenance activities, these areas as public land, and 35 acres as no longer contain one or more of the However, the Service was unable to unfeasible to develop due to physical identify any existing studies providing necessary PCE’s for the Riverside fairy constraints. The comment requests that shrimp to successfully complete its life- quantitative analysis of this all sub-unit land be recognized as relationship. A detailed analysis of the cycle. We therefore removed the airport controlled (public) land. The impact of LAX on the regional economy following areas from consideration for impacts estimated by the FEA would and/or the potential for RSF the final critical habitat designation: not change based on the different land conservation activities to affect airport (1) Cruzan Mesa (Sub-unit 1C). This use classifications assigned to the capacity, would require more time and sub-unit consisted of approximately 534 effort than can be devoted to this FEA. proposed critical habitat by either the ac (216 ha). We have insufficient No information about Riverside fairy Southern California Association of documentation regarding the occurrence shrimp habitat disposition appears in Governments or the comment. Hence, or non-occurrence of the Riverside fairy any Environmental Impact Report/ the Southern California Association of shrimp in the Cruzan Mesa vernal pools, Statement alternative besides a loss of a Governments information will remain it occurs outside the known small amount of wetted acreage in the primary source of land use data. geographical range of the species, and Alternative D. A consultation has been Comments From States we were unable to determine whether completed with the Service regarding this area is essential to the conservation Alternative D of the LAX Master Plan, Section 4(i) of the Act states ‘‘the of this species. We therefore removed in which construction activities at LAX Secretary shall submit to the State this sub-unit from our analyses of would require a staging area that will agency a written justification for her critical habitat. necessitate fill of portions of the vernal failure to adopt regulation consistent (2) Los Angeles International Airport pools. A second consultation recently with the agency’s comments or (LAX; Sub-units 2A, 2B). These sub- began that will address LAX operations. petition.’’ Comments received from units consisted of approximately 103 ac As a worst case scenario, the FEA States regarding the proposal to (42 ha) in total. As a result of the calculates the impact of Riverside fairy designate critical habitat for the ongoing operations and maintenance shrimp conservation as a requirement Riverside fairy shrimp are addressed activities at LAX, these ephemeral for LAX to mitigate for the entire loss of below. wetlands cannot pond long enough for vernal pool habitat. At $500,000 per the Riverside fairy shrimp to complete 1. State Comment: The California wetted acre in unit mitigation costs, the its lifecycle. Thus, we have removed Department of Fish and Game requested sub-total of habitat restoration activities both proposed sub-units at LAX from that the Service avoid any later for the worst case scenario is estimated critical habitat designation as they do revisions to the proposed critical habitat at $650,000 for LAX. not contain this primary constituent The comment also stipulates that the that would include Department-owned elements, and are thus not essential for restoration monitoring period will last lands. the conservation of the Riverside fairy 15 years instead of 5, and that the Our Response: No lands or areas shrimp. administrative cost of the operations within the jurisdiction of the California (3) March ARB (Sub-unit 3A). This consultation will amount to $180,000. Department of Fish and Game were sub-unit consisted of approximately 101 The FEA accepts these statements and considered within the proposed or final ac (41 ha). We have re-evaluated this calculates monitoring impacts at critical habitat designation. sub-unit and determined to remove it

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19173

from this critical habitat designation as essential habitat within DHS-owned approximately 489 ac (198 ha), and the vernal pool area has been modified lands along the U.S—Mexico border (see contains approximately 263 ac (106 ha) and no longer contains the primary Application of Section 4(b)(2) to of essential habitat in the final rule. We constituent elements for the Riverside Department of Homeland Security lands have excluded all of this sub-unit (see fairy shrimp. for a detailed discussion). Thus, no Application of Section 4(b)(2) Economic (4) Southwestern and Southeastern lands owned by the DHS have been Exclusion to lands on Chiquita Ridge Otay Mesa (portions of Sub-units 5A, designated as critical habitat. (Sub-unit 2F) below for a detailed 5B). These sub-units consisted of (1) Lands near Christianitos Creek discussion). approximately 255 ac (104 ha) in total. (Sub-unit 2H). This sub-unit consisted (5) Radio Tower Road (Sub-unit 2G). Portions of these sub-units (totaling 119 of approximately 47 (19 ha) of essential The proposed area of this sub-unit was ac (48 ha)) lie within the footprint of the habitat on lands MCAS Camp Pendleton approximately 736 ac (298 ha), and BIS, which is completed or under leased to the California Department of contains approximately 417 ac (169 ha) construction by the DHS for use in their Parks and Recreation. We have excluded of essential habitat in the final rule. We border patrol activities. After evaluation this sub-unit (see Application of Section have excluded all of this sub-unit (see of these areas, we determined that the 4(b)(2) National Security to MCAS Application of Section 4(b)(2) Economic necessary PCE’s for the Riverside fairy Camp Pendleton for a detailed Exclusion to lands near Radio Tower shrimp are absent; these areas have thus discussion. Road (Sub-unit 2G) below for a detailed been removed from our critical habitat discussion). Exclusions Due to Economic Impacts (6) Southeastern Otay Mesa (Sub-unit analyses. See discussion of Units Under Section 4(b)(2) of the Act Excluded Due to National Security 5C). The proposed area of this sub-unit Under Section 4(b)(2) of the Act below. In the proposed rule, we identified was approximately 866 ac (350 ha), and vernal pools in 6 sub-units for which we contains approximately 111 ac (45 ha) of Units Exempted Due to INRMPs Under proposed critical habitat. In this final essential habitat in the final rule. We Section 4(a)(3) of the Act rule, we have conducted benefits have excluded all of this sub-unit (see (1) MCB Camp Pendleton (Sub-units analyses and under section 4(b)(2) of the Application of Section 4(b)(2) Economic 4A, 4B). The total area of these proposed Act and have determined not to Exclusion to Southeastern Otay Mesa sub-units was approximately 254 ac designate critical habitat in these sub- (Sub-unit 5C) below for a detailed (103 ha), and contains approximately units for economic impacts. By discussion). excluding these 6 units, some or all of 226 ac (91 ha) of essential habitat in the Critical Habitat final rule. In the proposed rule, we the costs associated with a critical excluded essential habitat within habitat designation in those areas will Critical habitat is defined in section 3 mission-critical training areas on MCB be avoided. This regards the following of the Act as: (i) The specific areas Camp Pendleton under section 4(b)(2) of sub-units: within the geographic area occupied by the Act. In this final rule, we re- (1) Former MCAS El Toro (Sub-unit a species, at the time it is listed in evaluated this exclusion and instead 2C). The proposed area of this sub-unit accordance with the Act, on which are have exempted these mission-critical was approximately 133 ac (54 ha), and found those physical or biological training areas as well as other essential contains approximately 14 ac (6 ha) of features (I) essential to the conservation habitat areas on MCB Camp Pendleton essential habitat in the final rule. We of the species and (II) that may require from critical habitat under section have excluded all of this sub-unit (see special management considerations or 4(a)(3) of the Act (see Application of Application of Section 4(b)(2) Economic protection; and (ii) specific areas Section 4(a)(3) to MCB Camp Pendleton Exclusion to lands on Former MCAS El outside the geographic area occupied by for a detailed discussion). Thus, no Toro (Sub-unit 2C) below for a detailed a species at the time it is listed, upon lands owned or controlled by MCB discussion). a determination that such areas are Camp Pendleton have been designated (2) Saddleback Meadows (northern essential for the conservation of the as critical habitat in this final rule. portion of Sub-unit 2D). In the proposed species. ‘‘Conservation’’ means the use Lands leased to the California rule, Sub-unit 2D consisted of of all methods and procedures that are Department of Parks and Recreation approximately 736 ac (298 ha). We have necessary to bring an endangered or a have been excluded under section excluded approximately 57 ac (23 ha) of threatened species to the point at which 4(b)(2) of the Act (see Units Excluded essential habitat in the northern portion listing under the Act is no longer Due to National Security Under Section of sub-unit 2D that occurs within necessary. 4(b)(2) of the Act). private lands owned by Saddleback Critical habitat receives protection (2) MCAS Miramar. We reaffirm our Meadows Residential Development under section 7 of the Act through the exemption of MCAS Miramar under Project and other private landowners. prohibition against destruction or section 4(a)(3) of the Act. See Application of Section 4(b)(2) adverse modification of critical habitat Economic Exclusion to Saddleback with regard to actions carried out, Units Excluded Due to National Meadows (portion of Sub-unit 2D) below funded, or authorized by a Federal Security Under Section 4(b)(2) of the Act for a detailed discussion. agency. Section 7 requires consultation (2) March ARB (Sub-unit 3B). This (3) Tijeras Creek (Sub-unit 2E). The on Federal actions that are likely to sub-unit consisted of approximately 44 proposed area of this sub-unit was result in the destruction or adverse ac (18 ha) of essential habitat. See approximately 321 ac (130 ha), and modification of critical habitat. The Application of Section 4(b)(2) National contains approximately 101 ac (41 ha) of designation of critical habitat does not Security to March Air Reserve Base essential habitat in the final rule. We affect land ownership or establish a (March ARB) for a detailed discussion. have excluded all of this sub-unit (see refuge, wilderness, reserve, preserve, or Thus, no lands owned or controlled by Application of Section 4(b)(2) Economic other conservation area. Such March ARB have been designated as Exclusion to lands near Tijeras Creek designation does not allow government critical habitat in this final rule. (Sub-unit 2E) below for a detailed or public access to private lands. (3) Department of Homeland Security discussion). To be included in a critical habitat (DHS; Sub-unit 5B). We have excluded (4) Chiquita Ridge (Sub-unit 2F). The designation, the habitat within the area approximately 147 ac (59 ha) of proposed area of this sub-unit was occupied by the species must first have

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19174 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

features that are ‘‘essential to the the provisions of section 515 of the observations published in peer- conservation of the species.’’ Critical Treasury and General Government reviewed scientific journals, maps from habitat designations identify, to the Appropriations Act for Fiscal Year 2001 the regional Geographic Information extent known using the best scientific (Pub.L. 106–554; H.R. 5658) and the System (GIS) database with vegetation and commercial data available, habitat associated Information Quality and species coverages (including areas that provide essential life cycle Guidelines issued by the Service. vegetation layers for Orange and San needs of the species (i.e., areas on which Section 4 of the Act requires that we Diego counties), the California Natural are found the primary constituent designate critical habitat on the basis of Diversity Database (CNDDB), the elements, as defined at 50 CFR the best scientific data available. Habitat California Vernal Pool Assessment 424.12(b)). is often dynamic, and species may move Preliminary Report (Keeler-Wolf et al. Specific areas within the geographic from one area to another over time. 1998), vernal pool mapping and other area occupied by the species may be Furthermore, we recognize that data collected for the development of included in critical habitat only if the designation of critical habitat may not HCPs, reports submitted by biologists essential features thereon may require include all of the habitat areas that may holding section 10(a)(1)(A) recovery special management or protection. eventually be determined to be permits, biological assessments Thus, we do not include areas where necessary for the recovery of the provided to us through section 7 existing management is sufficient to species. For these reasons, critical consultations, reports from site conserve the species. (As discussed habitat designations do not signal that investigations on MCB Camp Pendleton below, such areas may also be excluded habitat outside the designation is and MCAS Miramar, site visit reports by from critical habitat pursuant to section unimportant or may not be required for staff biologists, reports and documents 4(b)(2).) recovery. on file in the Service’s field offices, and Our regulations state that, ‘‘The Areas that support populations, but communications with experts outside Secretary shall designate as critical are outside the critical habitat the Service who have extensive habitat areas outside the geographical designation, will continue to be subject knowledge of vernal pool species and area presently occupied by a species to conservation actions implemented habitats. In addition, we used only when a designation limited to its under section 7(a)(1) of the Act and to information contained in comments present range would be inadequate to the regulatory protections afforded by received by May 27, 2004 which were ensure the conservation of the species’’ the section 7(a)(2) jeopardy standard, as submitted on the proposed critical (50 CFR 424.12(e)). Accordingly, when determined on the basis of the best habitat designation (69 FR 23024) and the best available scientific and available information at the time of the comments received by November 18, commercial data do not demonstrate action. Federally funded or permitted 2004 submitted on the draft economic that the conservation needs of the projects affecting listed species outside analysis (69 FR 61461). species so require, we will not designate their designated critical habitat areas Based on a compilation of information critical habitat in areas outside the may still result in jeopardy findings in listed above on the known occurrences geographic area occupied by the species. some cases. Similarly, critical habitat of Riverside fairy shrimp, we created The Service’s Policy on Information designations made on the basis of the maps indicating the habitat associated Standards Under the Endangered best available information at the time of with each of the occurrences. The Species Act, published in the Federal designation will not control the habitat units were delineated using Register on July 1, 1994 (59 FR 34271), direction and substance of future ArcView (Environmental Systems and section 515 of the Treasury and recovery plans, habitat conservation Research Institute, Inc.), a computer GIS General Government Appropriations plans, or other species conservation program to evaluate GIS data derived Act for Fiscal Year 2001 (Pub. L. 106– planning efforts if new information from a variety of Federal, State, and 554; H.R. 5658) and the associated available to these planning efforts calls local agencies, and from private Information Quality Guidelines issued for a different outcome. organizations and individuals. Data by the Service, provide criteria, Methods layers included current and historic establish procedures, and provide species occurrence locations (CNDDB guidance to ensure that decisions made As required by section 4(b)(2) of the 2002); we presumed occurrences by the Service represent the best Act and regulations at 50 CFR 424.12, identified in the database to be extant scientific and commercial data we are to use the best scientific and unless there was affirmative available. They require Service commercial data available to determine documentation that an occurrence had biologists to the extent consistent with areas that contain the physical and been extirpated. We also relied on the Act and with the use of the best biological features that are essential to unpublished species occurrence data scientific and commercial data the conservation of the Riverside fairy contained within our files, including available, to use primary and original shrimp. We have reviewed available section 10(a)(1)(A) reports and sources of information as the basis for information that pertains to the habitat biological assessments. recommendations to designate critical requirements of this species. To We then evaluated the areas defined habitat. When determining which areas accomplish this, we utilized data and by the overlap of the combined constitute critical habitat, a primary information contained in, but not coverages (data layers) to initially focus source of information is generally the limited to, the final rule listing the on those areas which provide those listing documents for the species. Riverside fairy shrimp (58 FR 41384, the physical and biological features Additional information sources include prior proposed and final rules essential to the conservation of the the recovery plan for the species, designating critical habitat for the Riverside fairy shrimp; i.e., we articles in peer-reviewed journals, Riverside fairy shrimp (69 FR 23024, 65 identified and mapped vernal pool conservation plans developed by States FR 57136, 66 FR 29384), the proposed basins and ephemeral wetlands and counties, scientific status surveys rule to designate critical habitat for the supporting the Riverside fairy shrimp and studies, biological assessments, or San Diego fairy shrimp (68 FR 19888), that contained the primary constituent other unpublished materials and expert the Vernal Pools of Southern California elements for the species. The areas were opinion or personal knowledge. All Final Recovery Plan (Recovery Plan; further refined by using satellite information is used in accordance with Service 1998), research and survey imagery, aerial map coverages,

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19175

elevational modeling data, vegetation/ extinction of the Riverside fairy shrimp the vernal pool, maintain suitable land cover data, and agricultural/urban (see Exclusion of Critical Habitat Under periods of pool inundation, and land use data to eliminate areas that Sections 4(a)(3), 3(5)(A) and 4(b)(2) of maintain water and nutrient quality and contained features such as cultivated the Act below). The specific soil moisture to enable the Riverside agriculture fields, housing modifications are described in the fairy shrimp to carry out their lifecycle. developments, and other areas that are Summary of Changes from the Proposed 1. Primary Constituent Element: Vernal unlikely to contribute to the Rule section of this rule. The remaining Pools, Swales, Other Ephemeral conservation of the Riverside fairy essential areas are the final designation Wetland Features shrimp. of critical habitat, presented as four Next, the upslope areas, located geographically distinct habitat units. Vernal pools provide for space, immediately surrounding the vernal The essential areas, an elaboration on physiological requirements, shelter, and pool basins and ephemeral wetlands, exclusions, and the specific areas reproduction sites for the Riverside fairy areas that also contained the primary designated as critical habitat are shrimp. Vernal pools provide the constituent elements for the Riverside described below. necessary soil moisture and aquatic fairy shrimp were mapped based on environment required for cyst hatching, topographic features such as ridges, Primary Constituent Elements growth, maturation, reproduction, and mima mounds, and elevational In accordance with section 3(5)(A)(i) dispersal, and the appropriate periods of gradients or slopes. The boundaries for of the Act and regulations at 50 CFR dry-down for seed and cyst dormancy, these areas were further refined and 424.12, in determining which areas to as well as for seed germination of plant delineated by mapping those areas that designate as critical habitat, we are species found in the pool that contribute sloped toward the pools, from highest required to base critical habitat organic matter and dissolved gasses to point to highest point in the immediate determinations on the best scientific the water. Both the wet and dry phases surrounding upland areas, following the and commercial data available and to of the vernal pool help to reduce map’s topographic elevational gradient consider those physical and biological competition with strictly terrestrial or around the high points (peaks), to the features (primary constituent elements strictly aquatic plant or animal species. sides and the lowest part of the basin (PCEs)) that are essential to the The wet phase provides the necessary that encompassed the complex of vernal conservation of the species, and that cues for hatching, germination, and pools, keeping within the boundaries of may require special management growth, while the drying phase allows the previously proposed critical habitat. considerations and protection. These the vernal pool plants to flower and Those areas that the topographic maps include, but are not limited to: Space for produce seeds and the vernal pool showed sloped steeply away from the individual and population growth and crustaceans to mature and produce pools, or that were developed or altered, for normal behavior; food, water, air, cysts. We conclude this element is such that necessary PCEs (i.e., water, light, minerals, or other nutritional or essential to the conservation of the soil, minerals) could not be transported physiological requirements; cover or Riverside fairy shrimp because this toward the vernal pools over such areas, shelter; sites for breeding, reproduction, species is ecologically dependent on were left outside the refined and rearing (or development) of seasonal fluctuations, such as absence delineation. This method was used for offspring; and habitats that are protected or presence of water during specific vernal pools in both basin and mesa- from disturbance or are representative of times of the year, and duration of type topographic settings. the historic geographical and ecological inundation and the rate of drying of The combined extent of these mapped distributions of a species. their habitats. The Riverside fairy areas was defined as the habitat Based on our current knowledge of shrimp cannot persist in perennial essential to the survival and recovery of the life history and ecology of the wetlands or wetlands that are inundated the Riverside fairy shrimp. Whenever Riverside fairy shrimp, the requirements for the majority of the year, nor can they possible, areas not containing the of the habitat to sustain the essential life persist without periodic seasonal primary constituent elements, such as history functions of the species, and the inundation. developed areas or open water, were not ecological and hydrologic functions of Vernal pools and other ephemeral included as essential habitat. To aid us vernal pool complexes, as summarized wetlands provide space during their in this elimination, we used a finer above in the Background section, we wetted periods for individual and mapping unit of 100 x 100 m. After have determined that the Riverside fairy population growth and normal behavior creating GIS coverage of the essential shrimp has several primary constituent of vernal pool species by providing still, areas, we described the boundaries of elements, or PCEs. Its two most freshwater habitat of appropriate depth, the essential areas using a 100 m grid to significant PCEs are: (1) Vernal pools, duration, temperature, and chemical establish Universal Transverse Mercator swales, and other ephemeral wetland characteristics for juvenile and adult (UTM) North American Datum 27 (NAD features of appropriate sizes and depths vernal pool crustaceans to hatch, swim, 27). The areas were then analyzed with that typically become inundated during grow, reproduce and behave normally. respect to sections 4(a)(3), and 4(b)(2) of winter rains and hold water for Vernal pools and other ephemeral the Act, and any applicable and sufficient lengths of time necessary for wetlands also provide soil space during appropriate exclusions were made. the Riverside fairy shrimp to complete both dry and wetted periods for the We eliminated areas because: (1) The their life cycle; and (2) the geographic, maintenance of dormant cyst and seed area is highly degraded and may not be topographic, and edaphic features that banks, which allow populations of restorable or, (2) the area is small, support aggregations or systems of vernal pool species to maintain highly fragmented, or isolated, and may hydrologically interconnected pools, themselves throughout the provide little or no long-term swales, and other ephemeral wetlands unpredictable and highly variable conservation value. We also exempted and depressions within a matrix of environmental conditions experienced areas under section 4(a)(3) and excluded immediately surrounding upslope areas by their active, non-dormant life history areas under section 4(b)(2) of the Act for that together form hydrologically and stages. Vernal pools and other military, economic or other reasons ecologically functional units called ephemeral wetlands also provide where we concluded that such vernal pool complexes. These features various physiological requirements for exclusions will not result in the contribute to the filling and drying of both vernal pool plants and crustaceans.

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19176 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

For crustaceans they provide water, crustaceans and nutrient source for no hatched vernal pool crustaceans, and oxygen, and food such as plankton, vernal pool plants. Certain upland and that is unlikely to contain a viable cyst detritus, and rotifers. By drying swale areas may also provide for or seed bank. Determining the specific seasonally, ephemeral wetlands provide population growth by channeling flood areas that the vernal pool crustaceans cover or shelter from many aquatic waters from overflowing ephemeral occupy is difficult (see Background). predators and competitors. Similarly, by wetland areas so that seeds, cysts, or Depending on climatic factors and other undergoing seasonal inundation, these adult individuals are washed from one natural variations in habitat conditions, areas provide shelter for vernal pool such wetland to another. The upslope the size of the localized area in which species from invading species which areas provide habitat for avian species hatched crustaceans appear may would otherwise out-compete them for and other animals known to aide in the fluctuate dramatically from one year to space, light, water, or nutrients. Finally, dispersal of vernal pool species (Zedler another. In some years, individuals may vernal pool crustaceans require wetted and Black 1992; Silveira 1998). The be observed throughout a large area, and ephemeral wetlands in which to mate, surrounding upslope and swale areas in other years they may be observed in and both vernal pool crustaceans and also provide habitat for pollinator a smaller area or not at all. Because it vernal pool plants deposit cysts or eggs species that may be specifically adapted is logistically difficult to determine how in these wetland areas, which must then to some of the vernal pool plant species extensive the cyst or seed bank is at any dry to allow hatching or germination. (Thorp 1998; Eriksen and Belk 1999), as particular site, and because hatched Wetted ephemeral wetlands may also well as habitat for waterfowl, Riverside fairy shrimp may or may not tend to attract waterfowl, which act as amphibians, mammals, or insects, all of be present in all vernal pools within a important seed and cyst dispersers which are important for dispersal of site every year, we cannot quantify in (Proctor 1965; Silveira 1998). cysts (and seeds, pollen of vernal pool any meaningful way what proportion of flora). each critical habitat unit may actually 2. Primary Constituent Element: The upslope areas immediately be occupied by the vernal pool Geographic, Topographic, and Edaphic surrounding vernal pools are therefore crustaceans. Therefore, small areas of Features That Support Aggregations of essential for providing the same currently unoccupied habitat are Hydrologically Interconnected Pools, physical and biological factors as are probably interspersed with areas of Swales, and Other Ephemeral Wetlands provided by the vernal pools or occupied habitat in each unit. The The second PCE (the entire vernal ephemeral wetland areas. We have used inclusion of unoccupied habitat in our pool complex, including the pools, vernal pool complexes as the basis for critical habitat units reflects the swales, and associated upslope areas) is determining populations of vernal pool dynamic nature of the habitat and the essential to maintain both the aquatic crustaceans since the species were first life history characteristics of the phase and the drying phase of the vernal proposed for listing. The genetic Riverside fairy shrimp. Unoccupied pool habitat. Although the Riverside characteristics of fairy shrimp, as well areas provide areas into which fairy shrimp does not occur in the as ecological conditions, such as populations might expand, provide strictly upslope areas surrounding watershed contiguity, indicate that connectivity or linkage between groups vernal pools, they are critically populations of these animals are defined of organisms within a unit, and support dependent on these upland areas to by pool complexes rather than by populations of vernal pool plant maintain the seasonal cycle of ponding individual vernal pools (cf. Fugate 1992, pollinators and cyst dispersal and drying in the ephemeral wetland 1998; King 1996). Therefore, the most organisms. Both occupied and areas. The hatching of cysts (and the accurate indication of the distribution unoccupied areas that are designated as germination of vernal pool plants) is and abundance of the Riverside fairy critical habitat are essential to the dependent on the timing and length of shrimp is the number of inhabited conservation of the Riverside fairy inundation of the vernal pool habitat. vernal pool complexes. Individual shrimp. All of the above described PCEs The rate of vernal pool drying, which vernal pools occupied by the Riverside do not have to occur simultaneously greatly influences the water chemistry, fairy shrimp are most appropriately within a unit for that unit to constitute in turn directly affecting the life cycle referred to as ‘‘sub-populations’’ (59 FR critical habitat for the Riverside fairy of the Riverside fairy shrimp, is also 48136). shrimp. largely controlled by interactions Our use of vernal pool complexes to between the vernal pool and the define populations of the four listed 3. Water Chemistry and Physiological surrounding uplands (Hanes et al. 1990; crustaceans was upheld by the U.S. Requirements Hanes and Stromberg 1998). Soil District Court in post-listing challenge Temperature, water chemistry, and morphology at the pool basin and on the to the listing (Building Industry length of time vernal pools are upslope areas provides the pool with an Association of Superior California et al. inundated with water are important impermeable surface or subsurface v. Babbitt et al., CIV 95–0726 PLF). The factors that effect and potentially limit layer, accumulation of organic matter, July 25, 1997, court decision stated that the distribution of the Riverside fairy and a unique assemblage of nutrient the plaintiffs were on notice that the shrimp. The water in the pools that availability; in fact, biotic and Service would consider vernal pool support Riverside fairy shrimp typically reduction-oxidation (redox) interactions complexes as a basis for determining is dilute with (1) low to moderate total in the soil control the turnover of fairy shrimp populations. The court also dissolved solids (mean 77 milligrams nutrients in the pool (Hobson and concluded that the use of this per liter (mg/l) or parts per million Dahlgren 1998). Thus, the methodology was neither arbitrary nor (ppm)), (2) low to moderate salinity, (3) biogeochemical environment strongly capricious. The Court of Appeals for the low levels of alkalinity (mean 65 mg/l), influences hydrologic properties and D.C. Circuit upheld the district court’s and (4) water pH at neutral or just below play a critical role in nutrient cycling in decision, and the Supreme Court has (6.4–7.1; Eng et al. 1990; Gonzalez et al. vernal pool ecosystems (Hobson and declined to hear the case. Each of the 1996; Eriksen and Belk 1999). Riverside Dahlgren 1998). Additionally, upslope critical habitat units likely includes fairy shrimp can tightly regulate their areas provide an important (and often some areas that are unoccupied by the internal body chemistry in pool primary) source of detritus, which is a vernal pool crustaceans. ‘‘Unoccupied’’ environments with varying salinity and major food source for vernal pool is defined here as an area that contains alkalinity (Gonzalez et al. 1996). In a

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19177

laboratory experiment, Riverside fairy accumulate water to a depth greater scientific and commercial data shrimp could maintain their internal than 10 in (25 cm) and some pools that available. The three main primary levels of salt concentration (Na∂) fairly support this species fill to a depth of 5 constituent elements determined constant over a wide range of external to 10 ft (1.5–3 m). In the years that essential to the conservation of concentrations (0.5–60 mmol/l3), but Riverside fairy shrimp successfully Riverside fairy shrimp must have the they were sensitive to the extremes, reproduce, pools fill for 2 to 3 months following characteristics. with 100 percent mortality occurring at and some pools have been reported to A. The first PCE, small to large pools 100 mmol/l3 (2,300 mg/l3; Gonzalez et remain filled for up to 7 months. or pool complexes, must have the al. 1996). Although the species could Riverside fairy shrimp can survive as appropriate size and volume, local maintain their internal levels of salt cysts for multiple years; therefore, it is climate, topography, water temperature, concentration fairly constant over a not necessary for ideal conditions to water chemistry, soil conditions, and wide range of external concentrations exist every year for this species to length of time of inundation with water (0.5–60 mmol/l3), Riverside fairy shrimp persist. necessary for Riverside fairy shrimp could not survive in laboratory 5. Disturbance, Protection, and the incubation and reproduction, as well as environments where external alkalinity Historical Geographical Distributions dry periods necessary to provide the was higher than 800 to 1,000 mg/l conditions to maintain a dormant and HCO-3. The majority of sites currently viable cyst bank. Specifically, the vernal The Riverside fairy shrimp is found in supporting the Riverside fairy shrimp pool conditions necessary to allow for water temperatures ranging between 50 have experienced disturbance, some successful reproduction of Riverside and 77 degrees F (10 and 25 degrees C; more recently than others and some to fairy shrimp fall within the following Hathaway and Simovich 1996). a greater extent than others. The pools ranges: Importantly, studies show that the that support Riverside fairy shrimp are i. Moderate to deep depths ranging Riverside fairy shrimp is sensitive to generally found in flat or moderately from 10 in (25 cm) to 5–10 ft (1.5–3 m), water temperature (Hathaway and sloping areas. Many of the pools are on ii. Ponding inundation lasting for a Simovich 1996). After pool inundation, gently sloping areas near the coast, and minimum length of 2 months up to 5– hatching occurred significantly more in grassland habitats. These areas, 8 months or more, i.e., a sufficient wet rapidly (mean 7 days) when the located in a region of current explosive period in winter and spring months to temperature was cooler and fluctuated urban expansion, are easily assessable allow the Riverside fairy shrimp to within a range of 41–77 degrees F (5– and amenable to construction. Thus a hatch, mature, and reproduce, followed 25 degrees C), and most slowly (mean major factor contributing to the decline by a dry period prior to the next winter 25 days) with steady warm temperature of vernal pool species, including the and spring rains, of 77 degrees F (25 degrees C). Riverside fairy shrimp, is mortality and iii. Water temperature that falls Furthermore, at cooler fluctuating habitat elimination through human within the range of 41 and 77 degrees temperatures (41–59 degrees F (5–15 construction and development of vernal F (5 and 25 degrees C), degrees C)), the highest proportion of pool areas for a wide variety of iv. Water chemistry with low total cysts hatched, over 15 percent, while purposes. Additionally, vernal pool dissolved solids and alkalinity (means fewest cysts hatched (1–3 percent) at a areas have been vulnerable to of 77 and 65 parts per million, steady higher temperature of 77 degrees agriculture, cattle grazing, and off-road respectively), and F (25 degrees C). In fact, the proportion vehicle activities. Many of the pools that v. Water pH within a range of 6.4–7.1. of cysts hatching after exposure to a (5– currently support Riverside fairy shrimp B. The second PCE, the immediately 15 C) fluctuating temperature range have been artificially deepened in the surrounding upslope areas, must regime far exceeded that reached at past by ranchers to provide water for provide: steady temperature, with cysts exposed stock animals (Hathaway and Simovich i. Hydrologic flow to fill the pools and to any steady temperature above 50 (10 1996). This species has only been maintain the seasonal cycle of ponding degrees C) showing almost no hatching studied since the late 1980s; therefore, and drying, at the appropriate rates, success (Hathaway and Simovich 1996). the extent of its historical distribution is ii. A source of detritus and nutrients, Water within pools supporting fairy not well understood. Current estimates iii. A source of soil and mineral shrimp may be clear, but more suggest that 90 to 97 percent of vernal transport to maintain the appropriate commonly it is moderately turbid pool habitat has been lost in southern water chemistry and impermeability of (Eriksen and Belk 1999). California (Mattoni and Longcore 1997; the pool basin, and Bauder and McMillan 1998; Keeler-Wolf iv. Habitat for animals that act as 4. Sites for Breeding, Reproduction and et al. 1998; Service 1998). The dispersers of cysts and vernal pool plant Rearing of Offspring conservation of the few remaining seeds or pollen. The Riverside fairy shrimp is occurrences of Riverside fairy shrimp is The size of the immediately restricted to a small sub-set of long- essential for its conservation (Service surrounding upslope areas varies greatly lasting vernal pools and ephemeral 1998). and cannot be generalized and has been wetlands in southern California because assessed for each sub-unit. Factors that this animal takes approximately two 6. Summary of PCEs Essential to the affect the size of the surrounding months to mature and reproduce Conservation of the Riverside Fairy upslope area include surface and (Hathaway and Simovich 1996). In Shrimp underground hydrology, the topography contrast, the San Diego fairy shrimp, Pursuant to our regulations, we are of the area surrounding the pool or another federally endangered fairy required to identify the known physical pools, the vegetative coverage, and the shrimp species found in southern and biological features, i.e., primary soil substrate in the area. Watershed California, can mature and reproduce in constituent elements, essential to the sizes designated vary from a few acres less than one month. Most vernal pools conservation of the Riverside fairy to greater than 100 ac (40 ha). in southern California do not pool for a shrimp, together with a description of C. The third PCE, the soils in the sufficient amount of time to support the any critical habitat that is proposed. In summit, rim and basin geomorphic Riverside fairy shrimp. Pools that identifying the primary constituent positions, must have a clay component contain Riverside fairy shrimp usually elements, we used the best available and/or an impermeable surface or

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19178 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

subsurface layer, and must provide a geomorphic surfaces (landforms), and shrimp to ensure that the density and unique assemblage of available nutrients vegetation community associations. localized distribution of vernal pools and redox conditions known to support Maintaining the full range of varying occurs within a variety of different vernal pool habitat. The biogeochemical habitat types and characteristics for a habitat types. Map Unit 2 represents the environment strongly influences species is essential because it would last known vernal pools in Orange hydrologic properties and play a critical encompass the full extent of the County, and they are within 5 mi (8 km) role in nutrient cycling in vernal pool physical and environmental conditions of each other and include pool habitats ecosystems (Hobson and Dahlgren necessary for the species (Zedler and not associated with mima mound vernal 1998). Ebert 1979; Ikeda and Schlising 1990; pools complexes. Fugate 1992; Gonzales et al. 1996; Section 10(a)(1)(B) of the Act Criteria Used To Identify Critical Fugate 1998; Platenkamp 1998; authorizes us to issue permits for the Habitat Bainbridge 2002; Noss et al. 2002a). take of listed species incidental to Based on the best scientific Vernal pool species are extremely otherwise lawful activities. An information available, we are adapted to the physical and chemical incidental take permit application must designating as critical habitat lands that characteristics of the habitat in which be supported by a habitat conservation are essential to the conservation of the they occur. Additionally, the plan (HCP) that identifies conservation Riverside fairy shrimp and contain the conservation of the ecological measures that the permittee agrees to PCEs identified above and require distribution of the species is one of the implement for the species to minimize special management considerations or physical and biological features we are and mitigate the impacts of the protection. Both individual vernal pools required to consider under our requested incidental take. We often and vernal pool complexes are essential regulations 50 CFR 424.13(b), and was exclude non-Federal public lands and for conservation of the Riverside fairy also strongly endorsed by several peer private lands that are covered by an shrimp because of the limited numbers reviewers (see Peer Review section). existing operative HCP and executed of remaining vernal pools and their Accordingly, we considered the extent implementation agreement under highly localized distribution (cf. Gilpin to which habitat types occupied by the section 10(a)(1)(B) of the Act from and Soule´ 1986; Lesica and Allendorf species could be conserved in light of designated critical habitat because the 1995; Lande 1999). the number of occupied areas and the benefits of exclusion outweigh the Areas essential to the conservation of threats involved. benefits of inclusion as discussed in the species are those that are necessary (3) The conservation of areas section 4(b)(2) of the Act. to advance at least one of the following necessary to allow movement of cysts When defining critical habitat conservation criteria: (1) The between areas representative of the boundaries, we made every effort to conservation of areas representative of geographic and ecological distribution exclude all developed areas, such as the geographic distribution of the of the species. As a result of dispersal buildings, paved areas, and other lands species. Species that are protected events within and between vernal pool unlikely to contain primary constituent across their ranges have lower chances complexes, and environmental elements essential for the Riverside fairy of extinction (Soule´ and Simberloff conditions that may prevent the shrimp conservation. Any such 1986; Murphy et al. 1990; Primack 1993; emergence of dormant cysts for up to structures remaining inside of final Given 1994; Hunter 1996; Pavlik 1996; several decades, the presence of vernal critical habitat boundaries are not Noss et al. 1999; Grosberg 2002). pool species is dynamic in both space considered part of the units. This also Maintenance of representative and time (Eriksen and Belk 1999; Noss applies to the lands directly on which occurrences of the species throughout et al. 2002a). We therefore determined such structures lie. A brief discussion of its geographic range helps ensure the that essential habitat for the Riverside each area designated as critical habitat conservation of regional adaptive fairy shrimp must provide for is provided in the unit descriptions differences and makes the species less movement within and between vernal below. Additional detailed susceptible to environmental variation pool complexes to provide for the documentation concerning the essential or negative impacts associated with varying nature and expression of the nature of these areas is contained in our human disturbances or natural species, and also allow for gene flow supporting record for this rulemaking. catastrophic events across the species’ and dispersal and habitat availability Special Management Considerations or entire range at any one time (Primack that accommodate natural processes of Protections 1993; New 1995; Hunter 1996; Helm local extirpation and colonization over 1998; Redford and Richter 1999; time (Stacey and Taper 1992; Falk et al. When designating critical habitat, we Rossum et al. 2001; Grosberg 2002). 1996; Davies et al. 1997; Husband and assess whether the areas determined to Additionally, the conservation of the Barrett 1998; Holt and Keitt 2000; be essential for conservation may geographic distribution of the species is Keymer et al. 2000; Donaldson et al. require special management one of the physical and biological 2002). considerations or protections. As we features we are required to consider We therefore selected vernal pool undertake the process of designating under our regulations (50 CFR complexes occupied by the Riverside critical habitat for a species, we first 424.13(b)). Accordingly, we considered fairy shrimp in a distribution sufficient evaluate lands defined by those physical the number of occupied areas in each to ensure the known geographic range, and biological features essential to the vernal pool region, and determined geographical isolation, and likely conservation of the species for inclusion whether each occupied area is essential genetic diversity of the species. Map in the designation pursuant to section to the conservation of the species in the Unit 1 represents the northern extreme 3(5)(A) of the Act. Secondly, we region or as a whole. of the distribution and Map Unit 4 evaluate lands defined by those features (2) The conservation of areas represents the southern extreme of the to assess whether they may require representative of the ecological distribution. Each of these isolated special management considerations or distribution of the Riverside fairy occurrences is greater than 10 mi (16 protection. shrimp. Each of the critical habitat units km) from other known Riverside fairy The areas designated as critical is associated with various combinations shrimp locations. We also selected habitat in this final rule face ongoing of soil types, vernal pool chemistry, vernal pools occupied by Riverside fairy threats that will require special

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19179

management considerations or around the pools and the associated habitat areas described below constitute protection. These threats are common to surrounding upslope areas. our best assessment at this time of the all of the areas designated as critical Disturbance to the impermeable layer areas essential for the conservation and habitat. The threats that require special of claypan and hardpan soils within provide one or more of the primary management considerations or vernal pools occupied by the Riverside constituent elements essential to the protection are vernal pool elimination fairy shrimp may alter the depth, species of the Riverside fairy shrimp, due to destruction and development, ponding inundation, water temperature, and that may require special alterations made to the hydrologic or and water chemistry. Physical management. The four map units soil regime of the vernal pools and their disturbances to claypan and hardpan designated as critical habitat include associated upslope areas; disturbance to soils may be caused by excavation of Riverside fairy shrimp habitat within the claypan and hardpan soils within borrow material, off-road vehicles, the species’ range in the United States, the vernal pools, disturbance or military training activities, agricultural and are referred to by the following destruction of the vernal pool flora; and disking, drilling, or creation of berms geographic names: (Map Unit 1) Ventura the invasion of exotic plant and animal that obstruct the natural hydrological County, (Map Unit 2) Orange County, species into the vernal pool basin. surface or sub-surface flow of water run- (Map Unit 3) North San Diego County Habitat loss continues to be the greatest off and precipitation. These impacts can coastal area, and (Map Unit 4) South direct threat to Riverside fairy shrimp. be reduced by avoidance of vernal San Diego County, Otay Mesa. An Changes in hydrology which affect the pools. overview of the regional units that are Riverside fairy shrimp’s primary Invasive plant and animal species designated as critical habitat in this constituent elements are caused by may alter the ponding inundation and final rule, with the proposed and final activities that alter the surrounding water temperature by changing the sub-unit sizes, are shown in Table 1. topography or change historical water evaporation rate and shading of Other lands have not been designated flow patterns in the watershed. Even standing water in vernal pools. Invasive critical habitat for the Riverside fairy slight alterations of the hydrology can plant species, such as brass-buttons shrimp because they do not meet the change the depth, volume and duration (Cotula coronopifolia) and Pacific definition of critical habitat under of ponding inundation, water bentgrass (Agrostis avenaceae), compete section 3(5)(A), or, although essential, temperature, soil, mineral and organic with native vernal plant species and have been exempted under section matter transport to the pool and thus its may alter the primary constituent 4(a)(3) and excluded under section water quality and chemistry, which in elements in these vernal pools. Invasive 4(b)(2) of the Act (see Table 2). For a turn can make these primary constituent plants need to be removed and managed summary of the approximate total elements unsuitable for Riverside fairy to maintain the primary constituent critical habitat area designated by shrimp. Activities that impact the elements needed by the Riverside fairy county and land ownership, and a hydrology include but are not limited to shrimp in a manner consistent with the summary of the areas of land road building, grading and earth conservation of native vernal pool encompassed by HCPs and NCCPs, see moving, impounding natural water plants. Tables 3 and 4. flows, and draining of the pool(s) or of Critical habitat units and areas their immediately surrounding upslope Critical Habitat Designation designated for the Riverside fairy areas. Impacts to the hydrology of vernal We are designating four units (5 sub- shrimp. Also shown are proposed units pools can be managed through units) as critical habitat for the which were exempted or excluded from avoidance of such activities in and Riverside fairy shrimp. The critical the final designation.

TABLE 1

Ac (ha) Essential Sub-unit proposed habitat Designated Critical Habitat Unit number: rule Ac (ha) Ac (ha) proposed (April 28, final final rule rule 2004) rule

Ventura County, land in City of Moorpark Greenbelt, north Tierra Rejada Valley ...... 1A 74 (30) 47 (19) 47 (19) Ventura County, land south Tierra Rejada Valley ...... 1B 437 (177) 185 (75) 185 (75) Ventura County, land on Cruzan Mesa ...... 1C 534 (216) 0 0 Los Angeles County, Los Angeles Basin—Orange Management Area, land at LAX ...... 2A 103 (42) 0 0 2B Orange County, land within former MCAS El Toro ...... 2C 133 (54) 14 (6) 0 Orange County, land near O’Neill Regional Park ...... 2D 736 (298) 49 (20) 49 (20) Orange County, land near Tijeras, Mission Viejo ...... 2E 321 (130) 101 (41) 0 Orange County, Rancho Mission Viejo, land on Chiquita Ridge ...... 2F 489 (198) 263 (106) 0 Orange County, Rancho Mission Viejo, land near Radio Tower Road ...... 2G 736 (298) 417 (169) 0 North San Diego County, State-leased land, Christianitos Creek foothills ...... 2H 566 (229) 47 (19) 0 Riverside County, lands on March ARB ...... 3A 44 (18) 101 (41) 0 3B 101 (41) North coastal San Diego County, land on MCB Camp Pendleton ...... 4A 254 (103) 226 (91) 0 4B North coastal San Diego County, Carlsbad HCP, land near Poinsettia Lane Commuter 4C 143 (58) 22 (9) 22 (9) Station. South San Diego County, land on western Otay Mesa Sweetwater Union High School Dis- 5A 61 (25) 3 (1) 3 (1) trict lands. South San Diego County, southwestern Otay Mesa, federal lands adjacent to the U.S.— 5B 194 (79) 147 (59) 0 Mexico border. South San Diego County, southeastern Otay Mesa, land adjacent to the U.S.–Mexico bor- 5C 866 (350) 111 (45) 0 der.

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19180 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

TABLE 1—Continued

Ac (ha) Essential Sub-unit proposed habitat Designated Critical Habitat Unit number: rule Ac (ha) Ac (ha) proposed (April 28, final final rule rule 2004) rule

Total area designated in final rule ...... 306 (124)

Total size of areas designated as shrimp, and areas excluded from the critical habitat or as essential to the final designation. conservation of the Riverside fairy

TABLE 2

Area determined to be essential to the conservation of the Riverside fairy shrimp ...... 13,913 ac (5,630 ha) Essential area exempted pursuant to section 4(a)(3) of the Act due to an INRMP that benefits Riverside fairy shrimp: San Diego 3,053 ac County, MCAS Miramar and MCB Camp Pendleton (Sub-units 4A and 4B). (1,236 ha) Essential area excluded pursuant to section 4(b)(2) of the Act: Completed and pending HCPs in San Diego MSCP, Orange Coun- 9,354 ac ty Central-Coastal NCCP and Western Riverside County MSHCP: Northern San Diego County, Carlsbad HCP (portion of Sub- (3,785 ha) unit 3A). Essential area excluded pursuant to section 4(b)(2) of the Act: Impacts to national security on Department of Defense lands: Riv- 295 ac erside County, March Air Reserve Base (Sub-unit 3B); San Diego County (Otay Mesa Sub-unit 5B; portion of Sub-unit 5C); San (119 ha) Onofre State Park. Essential area excluded pursuant to section 4(b)(2) of the Act: Impacts to Economy on privately-owned lands within Sub-units 2C 295 (former MCAS El Toro), 2D (Saddleback Meadows portion), 2E (Tijeras Creek), 2F (Chiquita Ridge), 2G (Radio Tower Road), (119) 5C (Southeastern Otay Mesa). Designated Critical Habitat ...... 306 ac (124 ha)

Approximate designated critical area within critical habitat unit habitat area (ha (ac)) by County and land boundaries. ownership. Estimates reflect the total

TABLE 3

Local/ County Federal* State Private Total

Ventura ...... 0 ac 0 ac 232 ac 232 ac (94 ha) (94 ha) Orange ...... 0 ac 39 ac 10 ac 49 ac (16 ha) (4 ha) (20 ha) San Diego ...... 0 ac 25 ac 0 ac 25 ac (10 ha) (10 ha) Total ...... 0 ac 64 ac 242 ac 306 ac (26 ha) (98 ha) (124 ha) * Federal lands include Department of Defense, U.S. Forest Service, and other Federal land.

Habitat Conservation Plans (HCPs) general area of the designated critical and Natural Communities Conservation habitat. Program (NCCP) areas within the

TABLE 4

NCCP/HCP Planning area Preserve area

San Diego Multiple Species Conservation Program (MSCP) ...... 582,000 ac 171,000 ac (236,000 ha) (69,573 ha) Central-Coastal Orange County NCCP/HCP ...... 208,713 ac 38,738 ac (84,463 ha) (15,677 ha) Proposed Northwestern San Diego Multiple Habitat Conservation Program (MHCP) ...... 111,908 ac 19,928 ac (45,287 ha) (8,064 ha) Proposed Southern Sub-region NCCP/HCP Orange County ...... 128,000 ac 14,000 ac (51,800 ha) (5,666 ha) Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) ...... 1,260,000 ac 153,000 ac (510,000 ha) (61,919 ha)

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19181

The critical habitat unit names are area of land with a formal agreement by and in Ventura County (Unit 1 and based on the county where the vernal the Cities of Moorpark, Thousand Oaks, proposed Sub-units 2A, 2B) represent pool complexes occur and their and Simi Valley, and County of Ventura isolated occurrences at the geographic location. For the map sub- to be preserved for open space and northernmost extent of the Riverside units, we used the names for the vernal agricultural uses. Sub-unit 1A contains fairy shrimp’s known range. Recent pool complexes that are commonly a large vernal pool in land that was scientific research on desert fishes, a given in survey reports or development formerly the Carlsberg Ranch. species group similar to the fairy shrimp proposals. These various identifiers Development has occurred adjacent to group in that it is non-mobile and allow the public to locate the units in this vernal pool, but it is now protected restricted within narrow habitat limits, the context of past vernal pool mapping from future development. This pool has has found that the risk of extinction efforts. Past mapping may not been surveyed numerous times, and is among the populations was more correspond to current boundaries of characterized as excellent, with 5– closely correlated to range critical habitat. Areas proposed for 10,000 Riverside fairy shrimp recorded fragmentation than to the number of designation are divided into four within (CNDDB 1998). Sub-unit 1B is occurrences (Fagan et al. 2004). This different units; we present brief located less than a mile to the south, emphasizes the importance of protecting descriptions of all units, and reasons just across the Tierra Rajada valley populations of the Riverside fairy why they are essential for the basin. This sub-unit has not been shrimp throughout as much of its conservation of the Riverside fairy surveyed for Riverside fairy shrimp; a known range as possible, to minimize shrimp, below. number of factors strongly suggest it is range fragmentation and thus obtain likely to occur there, including: maximal conservation efficiency. Final Unit 1: Tierra Rejada Valley (a) The biotic and abiotic conditions Conservation biologists have Critical Habitat of the sub-unit (i.e., its soil type, demonstrated that populations at the Unit 1 contains approximately 1,045 geology, morphology, local climate, edge of a species’ distribution can be acres. Its habitat sub-regions include topography, and occurrence of local important sources of genetic variation Carlsberg Ranch in Ventura County and vernal pool vegetation, such as and represent the best opportunity for Cruzan Mesa in Los Angeles County. California orcutt grass (Orcuttia colonization or re-colonization of One portion of the Carlsberg Ranch sub- californica)), unoccupied essential areas and, thus, region, on the edge of the city of (b) The topographic conditions of the for the species’ long-term conservation Moorpark, has already been largely sub-unit, which are ideally suited to (Gilpin and Soule´ 1986; Lande 1999). developed by Lennar Homes. The collect water at the basin center, These outlying populations may be southeastern portion, Tierra Rajada, lies (c) The fact that the sub-unit contains genetically divergent from populations between the cities of Thousand Oaks several large permanent and semi- in the center of the range and, therefore, and Simi Valley, with a substantial permanent pools within its basin, may have genetic characteristics that portion falling in Ventura County lands. (d) The fact that the sub-unit is would allow adaptation in the face of Cruzan Mesa is on the northeastern edge located less than 1 mi (1,500 m) from environmental change. Such of the City of Santa Clarita, and contains essential habitat where Riverside fairy characteristics may not be present in a residential development by Pardee shrimp occurrence is known and other parts of the species’ range (Lesica Homes. Unit 1 represents that documented. Because this distance is and Allendorf 1995). Research on the northernmost habitat of the RFS habitat. less than distances between other San Diego fairy shrimp has shown that The vernal pools in this unit (220 ac known occurrences of Riverside fairy geographically distinct populations in (89 ha)) lie within the Transverse Range shrimp within the same pool complex, various vernal pools are also genetically Management Area. Sub-units 1A and 1B which can occur as much as 1.1–1.9 mi distinct from each other, to the extent occur in the Tierra Rajada Valley in (2,000–3,000 m) apart, this pool that individuals within populations may Ventura County, California (220 ac (89 complex is within the dispersal distance be identified at the individual vernal ha)), and represent the currently known for this species, pool complex level based on their northern limit of occupied habitat for (e) The two sub-units are adjoined, on genetic make-up (Bohonak 2003). This the Riverside fairy shrimp and are opposite sides, to a large river basin is likely to be also true of the Riverside among the last remaining vernal pools passing between (the Tierra Rejada fairy shrimp (Bohonak pers. comm.). in Ventura County known to support Valley river system) which may have The preservation of genetic diversity this species. The areas that are historically connected the two pools, or can greatly aid future conservation and designated as critical habitat in Unit 1 dispersed cysts between the two sub- recovery efforts of the species provide the primary constituent units. populations throughout its range, as elements that support the Riverside This 74 ha (184 ac) sub-unit contains well as provide insight into the fairy shrimp as described above, relating the primary constituent elements for evolutionary history of a species. For all to the pooling basins, watersheds, Riverside fairy shrimp, and is of these reasons, the lands identified in underlying soil substrate and considered essential habitat for the Unit 1 are essential for the conservation topography. These lands are considered species. The above factors strongly of the Riverside fairy shrimp. essential to the conservation of the support the likelihood of the species Riverside fairy shrimp. occurring there. This area is currently in Proposed Unit 2/Final Unit 2: Los The Tierra Rajada Valley Critical private ownership and we are unaware Angeles Basin—Orange Management Habitat Unit has two sub-units located of any plans to develop this site. The Area Critical Habitat on either side of the Tierra Rajada preservation and management of vernal In the proposed rule, this unit was Valley basin, near the city of Moorpark, pools in both sub-units in the comprised of the Los Angeles Basin— west of Simi in Ventura County. The Transverse Range Management Area are Orange Management Area, Los Angeles northern Sub-unit 1A includes portions also described by the Recovery Plan as and Orange Counties, California (3,180 of land within the City of Moorpark, essential for the conservation of the ac (1,287 ha)). This area encompassed within the City’s designated ‘‘Area of Riverside fairy shrimp. two distinct regions where Riverside Interest’’ in the Terra Rajada Greenbelt The occurrences of Riverside fairy fairy shrimp are known to occur: in zone. Thus, this sub-unit lies within an shrimp in northern Los Angeles County vernal pools in coastal Los Angeles

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19182 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

County, and in vernal pools and vernal restoration (planting of native vernal terraces suggests that these populations pool-like ephemeral ponds located pool plant species), removal of invasive may be genetically distinct from other along the foothills of Orange County. plants, protection of the watershed and populations of the Riverside fairy These pools are found at the former protection from trampling and other shrimp as indicated by recent genetic MCAS El Toro, O’Neill Regional Park sources of habitat damage within the studies that document unique which is east of Tijeras Creek at the vicinity of the vernal pools. haplotypes between geographically intersection of Antonio Parkway and the separated populations of the San Diego Proposed Unit 3: Western Riverside FTC-north segment, and in Rancho fairy shrimp (Bohonak 2004). This unit County Mission Viejo upon Chiquita Ridge and provides space for individual and in the Radio Tower Road area, and on No critical habitat has been population growth and reproduction; lands leased to the California designated in the Western Riverside the soils and surrounding uplands Department of Parks and Recreation by County Critical Habitat Unit. In provide food, water, light, minerals, and Camp Pendleton. These vernal pools are accordance with section 4(b)(2) of the other nutritional and physiological the last remaining vernal pools in Act, we have excluded lands that are requirements, and represent the Orange County known to support this encompassed by the Western Riverside historical geographic distribution of the species (58 FR 41384). These pools County MSHCP (see Relationship of San Diego fairy shrimp. represent a unique type of vernal pool Critical Habitat to Approved Habitat The majority of the vernal pool habitat much different from the Conservation Plans). We removed from complex along the railroad right-of-way traditional mima mound vernal pool this critical habitat designation the at the Poinsettia Lane Commuter Station complexes. They are also different from proposed Sub-unit 3A as the area has is now in a conservation easement coastal pools at MCB Camp Pendleton been modified and no longer contains managed by the California Department and the inland pools of Riverside the primary constituent elements for the of Fish and Game (CDFG). The lands are County. The Orange County vernal pool Riverside fairy shrimp. We excluded owned by the North County Transit habitat and essential associated proposed Sub-unit 3B for national District. CDFG is currently in the watershed represent the majority of security impacts in accordance with process of developing a long-term Riverside fairy shrimp habitat within section 4(b)(2) of the Act (see management plan for this area to control the Los Angeles Basin—Orange Relationship of Critical Habitat to non-native weeds and maintain the Management Area discussed in the Department of Defense Lands, and hydrology of the site. The portion of this Recovery Plan. The ephemeral pond on Application of Section 4(b)(2) to March vernal pool complex excluded from the former MCAS El Toro is within the Air Reserve Base (March ARB)). critical habitat is part of the North San boundary of the Central—Coastal HCP Diego MHCP. Originally included in the Unit 4: Northern Coastal San Diego proposed rule, the Cocklebur Sensitive planning area. With the exception of a County Critical Habitat portion of habitat on Sub-unit 2D (lands Area and other areas on or controlled by within O’Neill Regional Park), critical Proposed Unit 4/Final Unit 3: Northern MCB Camp Pendleton (proposed map habitat for the Riverside fairy shrimp Coastal San Diego County Critical Sub-units 4A and 4B) are exempted has been excluded under section 4(b)(2) Habitat from the final designation of critical of the Act. habitat for the Riverside fairy shrimp Approximately 397 ac (161 ha) of under section 4(a)(3) of the Act. For In the southern end of proposed Sub- habitat were proposed for designation in more details, see the sections unit 2D lies O’Neill Regional Park, in San Diego County, and included some Relationship of Critical Habitat to the vicinity of Trabuco Canyon, where of the vernal pools found on MCB Camp Department of Defense Lands and we have determined to designate Pendleton as well as the Poinsettia Lane Relationship of Critical Habitat to approximately 49 ac (20 ha) of habitat Train Station vernal pool area in the Approved Habitat Conservation Plans considered essential to the conservation City of Carlsbad. below. of the Riverside fairy shrimp (Final Unit The Coastal Northern San Diego 2). This portion of the sub-unit lies at County Unit in this final rule consists of Proposed Unit 5/Final Unit 4: South San 1,413 ft (431 m), the highest elevation of a vernal pool complex located on Diego County Critical Habitat the occurrences of Riverside fairy coastal terraces. This unit (8 ac (3 ha), In the proposed rule, Unit 5 contained shrimp considered in this designation. map Sub-unit 4C in the proposed rule) 1,120 acres proposed for designation, all The habitat consists of several vernal is located along the railroad right-of-way located in the City or County of San pools surrounded by grassland and at the Poinsettia Lane Commuter Station Diego. Some of this land is located in coastal sage scrub, and may represent a and supports populations of the the federally owned area known as unique genetic population for this Riverside fairy shrimp. These Arnie’s Point along the border with species (CNDDB 2001). The threats to populations represent the last remnant Mexico, and most of the remainder is in this area consist of, among others, of the historic distribution of vernal East Otay Mesa, an area of major proposed development projects (e.g., pool on coastal terraces in San Diego commercial and residential growth. Unit possible expansion of a County and the northernmost 5 is the southernmost extent of the telecommunications facility, and occurrences of the Riverside fairy Riverside fairy shrimp habitat in the easement for water and sewer shrimp within San Diego County (not U.S. construction). These vernal pools have including MCB Camp Pendleton). As a The vernal pool complexes in this been included in the O’Neill Regional result of coastal development, the critical habitat map unit are located Park Resource Management Plan by the Coastal Northern San Diego County Unit within a Major/Minor Amendment area County of Orange (August 1989), which represents the only remnant of the within the San Diego MSCP. While includes efforts to implement historic distribution of vernal pools these areas are within the San Diego restoration and monitoring plans (for supporting the Riverside fairy shrimp MSCP, Major/Minor Amendment areas biota species, turbidity, and cattle along the coastal terraces in San Diego do not currently have approved plans trespass). These plans include County. that provide conservation measures for inspection of the vernal pools within The highly limited distribution and the Riverside fairy shrimp. The vernal the determined sensitive ecological area, fragmentation of vernal pools on coastal pool complexes in this unit represent

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19183

the southernmost extent of the Riverside Section 7(a)(4) of the Act requires habitat is subsequently designated and fairy shrimp within the United States. Federal agencies to confer with us on the Federal agency has retained Pools on Otay Mesa are considered San any action that is likely to jeopardize discretionary involvement or control Diego claypan vernal pools. The vernal the continued existence of a proposed over the action or such discretionary pool complexes in this unit are the only species or result in destruction or involvement or control is authorized by vernal pools on Huerhuero loam and adverse modification of proposed law. Consequently, some Federal Linne´ clay loam in this critical habitat critical habitat. Conference reports agencies may request re-initiation of designation. This unit is essential in provide conservation recommendations consultation or conference with us on preserving the genetic diversity of this to assist the agency in eliminating actions for which formal consultation species and in maintaining the historic conflicts that may be caused by the has been completed, if those actions range of this species. The majority of proposed action. We may issue a formal may affect designated critical habitat or vernal pool complexes on Otay Mesa conference report if requested by a adversely modify or destroy proposed have been severely degraded by Federal agency. Formal conference critical habitat. numerous activities, including reports on proposed critical habitat Federal activities that may affect the agricultural development, trash- contain an opinion that is prepared Riverside fairy shrimp or its critical dumping, and vehicle and human according to 50 CFR 402.12, as if critical habitat will require section 7 traffic, and many pools have been habitat were designated. We may adopt consultation. Activities on private or destroyed and removed due to the formal conference report as the State lands requiring a permit from a industrial development in the area. This biological opinion when the critical Federal agency, such as a permit from southernmost section is essential to the habitat is designated, if no substantial the U.S. Army Corps of Engineers under conservation of the Riverside fairy new information or changes in the section 404 of the Clean Water Act, a shrimp because it maintains the action alter the content of the opinion section 10(a)(1)(B) permit from the ecological distribution and genetic (see 50 CFR 402.10(d)). The Service, or some other Federal action, diversity of this species. No Department conservation recommendations in a including funding (e.g., Federal of Homeland Security lands along the conference report are advisory. Highway Administration or Federal U.S.-Mexico border are designated as If a species is listed or critical habitat Emergency Management Agency), will critical habitat in this final rule and we is designated, section 7(a)(2) requires also continue to be subject to the section have excluded all other lands within Federal agencies to ensure that activities 7 consultation process. Federal actions Subunit 5C from critical habitat based they authorize, fund, or carry out are not not affecting listed species or critical on section 4(b)(2) of the Act. likely to jeopardize the continued habitat and actions on non-Federal and existence of such a species or to destroy private lands that are not federally Effects of Critical Habitat Designation or adversely modify its critical habitat. funded, authorized, or permitted are not Section 7 Consultation If a Federal action may affect a listed subject to section 7 consultations. species or its critical habitat, the Section 4(b)(8) of the Act requires us Section 7 of the Act requires Federal responsible Federal agency (action to briefly evaluate and describe in any agencies, including the Service, to agency) must enter into consultation proposed or final regulation that ensure that actions they fund, authorize, with us. Through this consultation, the designates critical habitat those or carry out do not destroy or adversely action agency ensures that their actions activities involving a Federal action that modify designated critical habitat. In do not destroy or adversely modify may destroy or adversely modify such our regulations at 50 CFR 402.2, we critical habitat. habitat, or that may be affected by such define destruction or adverse When we issue a biological opinion designation. Activities that may destroy modification as ‘‘a direct or indirect concluding that a project is likely to or adversely modify critical habitat may alteration that appreciably diminishes result in the destruction or adverse also jeopardize the continued existence the value of critical habitat for both the modification of critical habitat, we also of the Riverside fairy shrimp. Federal survival and recovery of a listed species. provide reasonable and prudent activities that, when carried out, may Such alterations include, but are not alternatives to the project, if any are adversely affect critical habitat for the limited to: Alterations adversely identifiable. ‘‘Reasonable and prudent Riverside fairy shrimp include, but are modifying any of those physical or alternatives’’ are defined at 50 CFR not limited to: biological features that were the basis 402.02 as alternative actions identified (1) Actions that would permanently for determining the habitat to be during consultation that can be alter the function of the underlying critical.’’ We are currently reviewing the implemented in a manner consistent claypan or hardpan soil layer to hold regulatory definition of adverse with the intended purpose of the action, and retain water. This would affect the modification in relation to the that are consistent with the scope of the duration and extent of inundation, conservation of the species and are Federal agency’s legal authority and water temperature and chemistry, and relying on the statutory provisions of jurisdiction, that are economically and other vernal pool features beyond the the Act in evaluating the effects of technologically feasible, and that the tolerances of the Riverside fairy shrimp. Federal actions on designated critical Director believes would avoid Damage or alternation of the claypan or habitat, pending further regulatory destruction or adverse modification of hardpan soil layer would eliminate the guidance. critical habitat. Reasonable and prudent function of this PCE for providing space Section 7(a) of the Act requires alternatives can vary from slight project for individual and population growth Federal agencies, including the Service, modifications to extensive redesign or and for normal behavior; water and to evaluate their actions with respect to relocation of the project. Costs physiological requirements; and sites for any species that is proposed or listed as associated with implementing a breeding, reproduction and rearing of endangered or threatened and with reasonable and prudent alternative are offspring. Actions that could respect to its critical habitat, if any is similarly variable. permanently alter the function of the proposed or designated. Regulations Regulations at 50 CFR 402.16 require underlying claypan or hardpan soil implementing this interagency Federal agencies to reinitiate layer include, but are not limited to, cooperation provision of the Act are consultation on previously reviewed grading or earthmoving work that codified at 50 CFR part 402. actions in instances where critical disrupts or rips into the claypan or

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19184 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

hardpan soil layer; or and channelizing, function of this PCE for maintaining the plan. We consult with the Department mining, dredging, or drilling into the water and physiological requirements of of Defense on the development and claypan or hardpan soil layer. the vernal pool habitat for the Riverside implementation of INRMPs for (2) Actions that would permanently fairy shrimp, and beyond the specie’s installations with federally listed reduce the depth of a vernal pool, and tolerances. Actions that could species. the ability of a vernal pool to pond with substantially alter vernal pool water Section 318 of the National Defense water, the duration and extent of temperature include, but are not limited Authorization Act for Fiscal Year 2004 inundation, water temperature and to, discharge of heated effluents into the (Pub. L. 108–136) amended the Act to chemistry, and other vernal pool surface water or by dispersed release address the relationship of INRMPs to features beyond the tolerances of the (non-point source). critical habitat by adding a new section Riverside fairy shrimp. Reducing the If you have questions regarding 4(a)(3)(B). This provision prohibits us depth of the vernal pool would whether specific activities will from designating as critical habitat any eliminate the function of this PCE for constitute destruction or adverse lands or other geographical areas owned providing space for normal behavior modification of critical habitat, contact or controlled by the DOD, or designated and for individual and population the Field Supervisor, Carlsbad Fish and for its use, that are subject to an INRMP growth, water and physiological Wildlife Office (see ADDRESSES section). prepared under section 101 of the Sikes requirements, sites for breeding, Requests for copies of the regulations on Act (16 U.S.C 670a), if the Secretary of reproduction and rearing of offspring, listed wildlife and inquiries about the Interior determines in writing that and reduce the time available for growth prohibitions and permits may be such plan provides a benefit to the and reproduction as it would accelerate addressed to the U.S. Fish and Wildlife species for which critical habitat is the pool’s drying phase. Actions that Service, Endangered Species, 911 N.E. proposed for designation. could permanently reduce the depth of 11th Ave, Portland, OR 97232 In our April 27, 2004 rule, we the vernal pool include, but are not (telephone 503/231–2063; facsimile proposed critical habitat for the limited to, discharge of dredged or fill 503/231–6243). Riverside fairy shrimp for areas material into vernal pools and erosion of All lands designated as critical habitat containing essential habitat, but not sediments from fill material, are within the geographical area considered mission-critical at MCB disturbance of soil profile by grading, occupied by the species and are Camp Pendleton. We also considered, ditch digging in and around vernal necessary to preserve functioning vernal but did not propose, critical habitat for pools, earthmoving work, OHV use, pool habitat for the Riverside fairy the Riverside fairy shrimp on mission- grazing, vegetation removal, or shrimp. Federal agencies already essential training areas at MCB Camp construction of roads, culverts, berms or consult with us on activities in areas Pendleton and at MCAS Miramar (69 FR any other impediment to natural sub- currently occupied by the species, or if 23024). For this final rule, we re- surface or surface hydrological flow the species may be affected by the evaluated both our exclusions and our within the watershed for the vernal action, to ensure that their actions do proposed designations on MCB Camp pools. These activities should be not jeopardize the continued existence Pendleton and on MCAS Miramar based carefully planned with hydrology of the species. Thus, we do not on the completion of their INRMPs, studies and monitored because both anticipate substantial additional which address the conservation of the increases and decreases to ponding regulatory protection will result from Riverside fairy shrimp. We have duration can have negative impacts to critical habitat designation, although therefore exempted all areas on MCB the Riverside fairy shrimp’s ability to there may be consultations that result Camp Pendleton and on MCAS Miramar persist. from Federal actions within critical from the final critical habitat (3) Actions that would substantially habitat in the watersheds associated designation pursuant to section 4(a)(3) alter vernal pool water chemistry to with vernal pools. of the Act. exceed the levels discussed in the ‘‘Primary Constituent Elements’’ Application of Section 4(a)(3) and Relationship of Critical Habitat to section. Exceeding these water Exclusions Under Section 4(b)(2) of the Department of Defense Lands chemistry parameters would eliminate Act We received comments regarding the the function of this PCE for maintaining proposed critical habitat designation Application of Section 4(a)(3) of the the water and physiological and economic impact on Department of Act—Approved and Completed INRMPs requirements of the vernal pool habitat Defense lands from the Navy at MCB for the Riverside fairy shrimp, and The Sikes Act Improvements Act of Camp Pendleton and the former MCAS beyond the species’ tolerances. Actions 1997 (Sikes Act) (16 U.S.C. 670a) El Toro, and from the Air Force at that could substantially alter vernal pool requires each military installation that March ARB. To ensure that the water chemistry include, but are not includes land and water suitable for the Department of Defense could comment limited to, erosion from fill material or conservation and management of on the proposed rule and its soils disturbed by grading within the natural resources to complete an INRMP relationship to section 4(a)(3) of the Act, watershed for the vernal pools, by November 17, 2001. An INRMP as amended, we specifically requested discharge of dredged or fill material into combines implementation of the information from the Department of vernal pools, removal of the clay soils military mission of the installation with Defense regarding MCB Camp underlying vernal pools, and release of stewardship of its natural resources. Pendleton’s INRMP to determine if the chemicals or pollutants. Each INRMP includes an assessment of INRMP provides a benefit to the (4) Actions that would substantially the ecological needs on the installation, Riverside fairy shrimp in the proposed alter vernal pool water temperatures to including the need to provide for the rule published on April 27, 2004 (69 FR exceed temperature ranges beyond those conservation of listed species; a 23024). discussed in the ‘‘Primary Constituent statement of goals and priorities; a Elements’’ section when juvenile and detailed description of management Application of Section 4(a)(3) to MCB adult Riverside fairy shrimp are present. actions to be implemented to provide Camp Pendleton (Sub-Units 4A, B) Exceeding these water temperature for these ecological needs; and a Camp Pendleton completed their parameters would eliminate the monitoring and adaptive management INRMP in November 2001, which

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19185

includes the following conservation also believe that there is a high degree objectives outlined in its INRMP. MCAS measures for the Riverside fairy shrimp: of certainty that the conservation efforts Miramar continues to monitor and (1) Surveys and monitoring, studies, of their INRMP will be effective. Service manage its vernal pool resources. impact avoidance and minimization, biologists work closely with MCB Camp Ongoing programs include a study on and habitat restoration and Pendleton on a variety of endangered the effects of fire on vernal pool enhancement, (2) species survey and threatened species issues, including resources, vernal pool mapping and information stored in MCB Camp the Riverside fairy shrimp. The species surveys, and a study of Pacific Pendleton’s GIS database and recorded management programs and Base bentgrass (Agrostis avenaceae), an in a resource atlas which is published directives to avoid and minimize invasive nonnative grass found in some and updated on a semi-annual basis, (3) impacts to the species’ are consistent vernal pools on MCAS Miramar. Based application of a 984 ft (300 m) radius to with current and ongoing section 7 on the value MCAS Miramar’s INRMP protect the micro-watershed buffers consultations with MCB Camp assigns to vernal pool basins and around current and historic Riverside Pendleton. watersheds, and the management fairy shrimp locations, and (4) use of the We are also in the process of actions undertaken conserve them, we resource atlas to plan operations and completing a section 7 consultation for find that the INRMP provides a benefit projects to avoid impacts to the upland species on MCB Camp for the Riverside fairy shrimp. In Riverside fairy shrimp and to trigger Pendleton. Vernal pools and associated accordance with section 4(a)(3) of the section 7 consultations if an action may species, including the Riverside fairy Act, MCAS Miramar is exempted from affect the species (R.L. Kelly, in lit. shrimp, are addressed in the ‘‘Uplands critical habitat designation for the 2003). These measures are established, Consultation.’’ When this consultation Riverside fairy shrimp. ongoing aspects of existing programs is completed, MCB Camp Pendleton and/or Base directives (e.g., Range and will incorporate the conservation Application of Section 4(b)(2) of the Training Regulations) or measures that measures from the biological opinion Act—National Security will be implemented when the current into their INRMP. At that time, MCB Application of Section 4(b)(2) National section 7 consultation for upland Camp Pendleton’s INRMP will provide Security to March Air Reserve Base species (Uplands Consultation), further benefits to the Riverside fairy (Sub-Unit 3B) including the Riverside fairy shrimp, is shrimp. Therefore, we find that the completed. INRMP for MCB Camp Pendleton March Air Reserve Base (March ARB) Camp Pendleton implements Base provides a benefit for the Riverside fairy is an Air Force Command installation directives to avoid and minimize shrimp and are exempting from critical that includes runways, hangars, aircraft adverse effects to the Riverside fairy habitat lands on MCB Camp Pendleton parking aprons, taxiways, shrimp, such as: (1) Bivouac, command pursuant to section 4(a)(3) of the Act. administrative facilities, billeting post, and field support activities should facilities, associated road network, Application of Section 4(a)(3) to MCAS be no closer than 984 ft (300 m) to landscape areas, and open areas Miramar occupied Riverside fairy shrimp habitat associated with runway threshold and year round, (2) limiting vehicle and We reaffirm our exemption of MCAS lateral clear zones. March ARB hosts the equipment operations to existing road Miramar under section 4(a)(3) of the 452nd Air Mobility Wing and supports and trail networks year round, and (3) Act. MCAS Miramar completed a final an Air National Guard Wing, requiring environmental clearance prior INRMP in May 2000 that provides for Headquarters 4th Air Force, and other to any soil excavation, filling, or conservation, management and military and civilian organizations. The grading. MCB Camp Pendleton has also protection of the Riverside fairy shrimp. 452nd Air Mobility Wing is the primary demonstrated ongoing funding of their The INRMP is in place and is being air mobility organization for supporting INRMP and management of endangered implemented. With regard to the the 1st Marine Expeditionary Force for and threatened species. In Fiscal Year Riverside fairy shrimp, the INRMP worldwide contingency operations. The 2002, MCB Camp Pendleton spent classifies nearly all of the vernal pool Air National Guard Wing includes the approximately $1.5 million on the basins and watersheds on MCAS 163d Air Refueling Wing and 120th management of federally listed species. Miramar as a Level I Management Area. Fighter Wing. March ARB also supports In Fiscal Year 2003, MCB Camp A Level I Management Area receives the the Department of Homeland Security Pendleton expended over $5 million to highest conservation priority within the Riverside Aviation Unit. INRMP. Preventing damage to vernal fund and implement their INRMP, (1) Benefits of Inclusion including management actions that pool resources is the highest provided a benefit for the Riverside fairy conservation priority in MAs with the The primary benefit of designating shrimp. Moreover, in partnership with Level I designation. The conservation of critical habitat is that Federal agencies the Service, MCB Camp Pendleton is vernal pool basins and watersheds in a would have to consult with us on funding two Service biologists to assist Level I Management Area is achieved projects they carry out, fund, or in implementing their Sikes Act through education of base personnel, authorize to ensure such activities do program and buffer lands acquisition proactive measures to avoid accidental not adversely modify or destroy initiative. impacts, including signs and fencing, designated critical habitat. Absent the Based on MCB Camp Pendleton’s past developing procedures to respond to designation of critical habitat, Federal funding history for listed species and and fix accidental impacts on vernal agencies must still consult with us if their Sikes Act program (including the pools, and maintenance of an updated they determine an action may affect a management of the Riverside fairy inventory of vernal pool basins and federally listed species to ensure those shrimp), we believe there is a high associated vernal pool watersheds. actions will not jeopardize the species. degree of certainty that MCB Camp Since the completion of MCAS We already consult with March ARB on Pendleton will implement the INRMP in Miramar’s INRMP, we have received actions that may affect listed species, coordination with the California reports on their vernal pool monitoring including the Riverside fairy shrimp. Department of Fish and Game and with and restoration program, and Because protection of vernal pool the Service in a manner that provides a correspondence detailing the habitat is key to avoiding jeopardy to benefit to the Riverside fairy shrimp. We installation’s expenditures on the the Riverside fairy shrimp, we carefully

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19186 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

consider the effects on habitat in our equipment unit would require ‘‘simply because some areas of the Base evaluation of impacts to the species. relocation, costing $31.5 million. may not be designated as a range or Another possible benefit of a critical training area, * * * such areas should (3) Benefits of Exclusion Outweigh the habitat designation is education of not be presumed to be unimportant or Benefits of Inclusion in Critical Habitat landowners and the public regarding the not useful to support training actions, potential conservation value of these Because of the relatively limited either today or in the future.’’ In the areas. This may focus and contribute to benefits arising from designation, we same letter (Bowdon, May 2004, in litt.) conservation efforts by other parties by believe the role played in supporting the Commanding General said: ‘‘In clearly delineating areas of high overseas Marine Corps operations and particular, both the Commandant of the conservation values for certain species. the related importance to national Marine Corps and I have personally However, we believe that this security of ensuring March ARB’s ability expressed deep concerns that the educational benefit has been achieved, to maintain a high level of military designation of critical habitat aboard as both the military and civilian readiness, and the additional cost Camp Pendleton would impose long managers and users of the area are fully impacts identified in our economic term, cumulative and detrimental familiar with the existence and needs of analysis, we believe the benefits of impacts on the capabilities of the base the shrimp. Therefore, we believe the exclusion outweigh the benefits of to perform its military mission, * * *’’. education benefits which might arise inclusion and have excluded this The San Onofre State Park lands are from a critical habitat designation here facility pursuant to section 4(b)(2) of the potential training lands that are not have largely already been generated. Act. covered by the other exemptions Under the Gifford Pinchot decision, (4) Exclusion Will Not Result in provided to Camp Pendleton lands, as the designation of critical habitat may Extinction of the Species they are managed by the State and not provide greater benefits to the recovery covered by the base’s INRMP. Based on of the species than previously believed. We believe that exclusion of these the comments from the Corps, we are However, at this point, it is not possible lands will not result in extinction of the excluding these lands, consisting of to quantify that benefit. species, as they are considered occupied approximately 47 acres, on national In summary, we believe that this habitat. Any actions which might security grounds, so they could be proposed unit as critical habitat would adversely affect the shrimp must available quickly to the Marines in the provide little additional federal undergo a consultation with the Service event they were needed for military regulatory benefits for the species. under the requirements of section 7 of training. Because the proposed critical habitat is the Act. The species is protected from occupied by the species, there must be take under section 9 of the Act. The (1) Benefits of Inclusion consultation with the Service over any exclusions leave these protections The primary benefit of any critical action which might impact it. The unchanged. There is accordingly no habitat with regard to activities that additional educational benefits which reason to believe that these exclusions require consultation pursuant to section might arise from critical habitat would result in extinction of the 7 of the Act is to ensure that the activity designation are accomplished. species. will not destroy or adversely modify designated critical habitat. However, (2) Benefits of Exclusion Leased Lands at Marine Corps Base since this land is managed by the State In contrast to the absence of a Camp Pendleton (San Onofre State of California, it is not open to significant benefit resulting from Park)—Exclusions Under Section 4(b)(2) development and is subject to the designating critical habitat for the The Marine Corps operates Camp protective laws and regulations Riverside fairy shrimp at March ARB, Pendleton as an amphibious training applicable to the State Parks. The there are substantial benefits to base that promotes the combat readiness educational benefits of critical habitat excluding this area from critical habitat. of military forces and is the only West include informing the Marine Corps and If critical habitat were to be designated Coast Marine Corps facility where the State of California of areas that are on this land the Air Force could be amphibious operations can be combined important to the conservation of listed compelled to re-initiate consultations with air, sea, and ground assault species. However, we are confident both with us under section 7 of the Act on training activities year-round. Currently, are now aware of this. As long as the activities that have previously been the Marine Corps has no alternative land is managed by the State of reviewed but have not yet been installation available for the types of California, there is not likely to be a implemented, in order to address training that occur on Camp Pendleton. Federal nexus which would trigger whether the proposed activities may The Marine Corps leases some of the consultation with us should critical affect designated critical habitat. In land at Camp Pendleton to the State of habitat be designated. Therefore, we do addition, they would be required to California for use as San Onofre State not believe that designation of this area consult over possible effects from future Park. In their comments on the as critical habitat will appreciably activities on the critical habitat. The proposed critical habitat for the benefit the shrimp beyond the additional burden of initiating and Riverside fairy shrimp, the Marines protection already afforded the species reinitiating consultations could impede noted the adverse impacts to their under the Act. the timely conduct of mission-essential training abilities which they believe training activities and impair the ability have resulted from various (2) Benefits of Exclusion of the Air Force to fully achieve its environmental laws, with the Act In contrast to the absence of an mission. Moreover, our final Economic foremost among these, and provide a appreciable benefit resulting from Analysis has determined that there study to support their contention. While designation of these lands as critical could be additional costs of $33 million, their comments and the study focused habitat, there is a benefit to excluding including an additional $950,000 for an primarily on lands currently used for them through avoidance of delay should Environmental Impact Statement to be training, and they supported the the Corps need the land for military completed for March ARB to maintain Service’s stated intent to exempt purposes. The Corps’ lease agreement operations of its runway and taxiways. ‘‘mission-critical’’ areas under sections with the State provides that the land can A California Air National Guard heavy 4(a)(3) or 4(b)(2), they also stated be reclaimed with a 90-day notice, and

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19187

if urgently needed for military purpose, excluded from the designation under they support. However, critical habitat the reversion might well be more rapid. section 4(b)(2) of the Act for national designation provides little gain in the However, if the land were designated as security impacts. way of increased recognition on lands critical habitat, the requirement to On February 6, 2002, the Service that are expressly managed to protect consult on activities to be conducted completed a section 7 consultation with and enhance vernal pools for San Diego there could delay and impair the ability the U.S. Army Corps of Engineers fairy shrimp. In addition, the Service of the Marine Corps to conduct effective (Corps) and the former Immigration and has already thoroughly evaluated the training activities and limit Camp Naturalization Service on the effects of impacts of the BIS project on the Pendleton’s utility as a military training closing a gap in the Border Fence Riverside fairy shrimp and its vernal installation. We already have Project’s secondary fence at Arnie’s pool habitat, determined that the project consultations with them under section 7 Point on three endangered species will not jeopardize the continued on activities related to the presence of occurring there, the Riverside fairy existence of the species, and received the shrimp, as a result of which we shrimp, San Diego fairy shrimp, and San commitments from INS (now DHS) for could likely do a consultation related to Diego button-celery (Eryngium restoration, protection and management jeopardy very quickly. However, there aristulatum var. parishii; Service 2002). of nearby Riverside fairy shrimp habitat. has been no consultation on critical We concluded in our biological opinion Therefore, we believe the designation of habitat for the species, and under the that the proposed action, which areas covered by the project and new standard for adverse modification includes the loss of a linear vernal pool restoration areas would provide little that may result from the Gifford Pinchot occupied by both the Riverside fairy benefit to the species. decision there is no reason to believe shrimp and San Diego fairy shrimp, was (2) Benefits of Exclusion this could be done quickly. not likely to jeopardize the continued existence of the three endangered The exclusion of the DHS-owned land (3) Benefits of Exclusion Outweigh the species. On January 9, 2003, the Service within the BIS footprint will remove Benefits of Inclusion completed a section 7 consultation with any delay in the BIS project occasioned Based on the current world situation, the former Immigration and by the need to reinitiate consultation. the Marine Corps’ need to maintain a Naturalization Service of the effects on Expeditious completion of the BIS high level of readiness and fighting the endangered Riverside fairy shrimp project is vital to our country’s national capabilities, and the possible impact on and endangered San Diego fairy shrimp security. Exclusion of the restoration national security if that is obstructed, from the construction of a secondary areas will also remove any regulatory we believe the benefits of excluding border fence and other road and fencing delay associated with completion of this these lands outweigh the benefits of improvements in Area II along the U.S.- important habitat restoration project. including them. Mexico border (Service 2003). We (3) Benefits of Exclusion Outweigh concluded in our biological opinion that (4) Exclusion Will Not Result in Benefits of Inclusion the proposed action, which included the Extinction of the Species loss of three vernal pool basins, was not We conclude that the minimal Because the lands are occupied by the likely to jeopardize the continued benefits of designating critical habitat species and the Marine Corps has a existence of the Riverside fairy shrimp on the BIS project lands, including the statutory duty under section 7 to ensure and San Diego fairy shrimp. To offset 21.8-ac vernal pool restoration area, are that its activities do not jeopardize the losses for fairy shrimp, the DHS has far outweighed by the substantial continued existence of the shrimp, we conducted two restoration projects and benefits to national security from early find that the exclusion of these areas has designated some DHS-owned lands completion of this project. Therefore we will not lead to the extinction of the located north of the BIS (at Arnie’s are excluding the BIS lands within Sub- Riverside fairy shrimp. Point) as mitigation for completion of unit 5B under section 4(b)(2) of the Act (see Relationship of Critical Habitat to Application of Section 4(b)(2) National the border system. As part of the Approved Habitat Conservation Plans Security to U.S. Department of proposed actions for these two section below). The remaining area within Sub- Homeland Security Lands (Sub-Unit 5B 7 consultations, DHS committed to unit 5B and some lands within Sub-unit and Portions of 5C) implement a variety of conservation measures that would restore and create 5C owned by the DHS are within the In our previous (69 FR 23024) rule, vernal pool habitats and enhance their constructed BIS footprint and no longer we proposed to designate as critical watershed, including the commitment contain any vernal pool habitat for the habitat lands adjacent to the U.S.- to transfer these lands to a conservation Riverside fairy shrimp; those impacts Mexico border under the jurisdiction of resource agency and/or to protect and have been offset by the conservation the U.S. Department of Homeland conserve the lands in perpetuity. We measures to be implemented by DHS at Security (DHS), U.S. Border Patrol, San have therefore determined to exclude the 21.8-acre vernal pool restoration Diego Sector (Sub-unit 5B, portion of this area, which contains the remainder area at Arnie’s Point. Thus, the Sub-unit 5C). The portion of the lands of lands within Sub-unit 5B, from the remaining lands within Sub-unit 5B and owned by the DHS that are directly critical habitat designation according to some lands within Sub-unit 5C owned adjacent to the U.S.-Mexico border 4(b)(2) of the Act for national security. by the DHS are not essential to the lands have previously been disturbed conservation of the Riverside fairy (1) Benefits of Inclusion and developed by the ongoing shrimp and are not designated as critical construction of the Border Infrastructure There is minimal benefit from habitat in this final rule. Thus, no lands System (BIS), and those lands within designating critical habitat for the owned by the Department of Homeland the constructed portion of the footprint Riverside fairy shrimp that are already Security have been designated as critical of the BIS do not contain any of the managed for the conservation of vernal habitat. primary constituent elements for the pool habitat. One possible benefit of Riverside fairy shrimp. The BIS is including these lands as critical habitat (4) Exclusion Will Not Result in considered integral to national security, would be to educate the public Extinction of the Species and therefore, lands owned by DHS regarding the conservation value of We believe that exclusion of these along the U.S.-Mexico border have been these areas and the vernal pool complex lands will not result in extinction of the

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19188 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

species, as they are considered occupied Cattle Growers Association case (248 (6 ha) of essential habitat) at the former habitat. Any actions which might F.3d at 1285), which directed us to MCAS El Toro in Orange County, under adversely affect the shrimp, regardless consider all impacts, ‘‘regardless of section 4(b)(2) of the Act. The analysis of whether a Federal nexus is present, whether those impacts are attributable which led us to the conclusion that the must undergo a consultation with the co-extensively to other causes.’’ As benefits of excluding this area exceed Service under the requirements of sec. explained in the analysis, due to the benefits of designating it as critical 7 of the Act. The shrimp is protected possible overlapping regulatory schemes habitat, and will not result in the from take under section 9. The and other reasons, there are also some extinction of the species, follows. exclusions leave these protections elements of the analysis which may unchanged from those which would overstate some costs. (1) Benefits of Inclusion exist if the excluded areas were Conversely, the 9th Circuit has designated as critical habitat. In recently ruled (‘‘Gifford Pinchot’’, 378 If these areas were designated as addition, as discussed above, there are F.3d at 1071) that the Service’s critical habitat, any actions with a a substantial number of Habitat regulations defining ‘‘adverse Federal nexus which might adversely Conservation Plans and other active modification’’ of critical habitat are modify the critical habitat would conservation measures underway for the invalid because they define adverse require a consultation with us, as species, which provide greater modification as affecting both survival explained above, in the section of this conservation benefits than would result and recovery of a species. The court notice entitled ‘‘Effects of Critical from a designation. There is accordingly directed us to consider that adverse Habitat Designation.’’ However, since no reason to believe that these modification should be focused on the species is present, consultation for exclusions would result in extinction of impacts to recovery. While we have not activities which might adversely impact the species. Moreover, at Arnie’s Point, yet proposed a new definition for public the species, including possibly the DHS is restoring habitat for the review and comment, changing the significant habitat modification (see Riverside fairy shrimp and will transfer adverse modification definition to definition of ‘‘harm’’ at 50 CFR 17.3) that land to a MSCP cooperating agency. respond to the Court’s direction may would be required even without the result in additional costs associated critical habitat designation and without Relationship of Critical Habitat to with critical habitat definitions Economic Impacts—Exclusions Under regard to the existence of a Federal (depending upon the outcome of the nexus. Section 4(b)(2) of the Act rulemaking). This issue was not Another possible benefit of a critical This section allows the Secretary to addressed in the economic analysis for habitat designation is education of exclude areas from critical habitat for the Riverside fairy shrimp, as this was landowners and the public regarding the economic reasons if she determines that well underway at the time the decision the benefits of such exclusion exceed was issued and we have a court-ordered potential conservation value of these the benefits of designating the area as deadline for reaching a final decision, so areas. This may focus and contribute to critical habitat, unless the exclusion we cannot quantify the impacts at this conservation efforts by other parties by will result in the extinction of the time. However, it is a factor to be clearly delineating areas of high species concerned. This is a considered in evaluating projections of conservation values for certain species. discretionary authority Congress has future economic impacts from critical However, we believe that this provided to the Secretary with respect habitat. educational benefit has largely been to critical habitat. Although economic We recognize that we have excluded achieved. As explained above, this is and other impacts may not be a significant portion of the proposed the 2nd iteration of the critical habitat considered when listing a species, critical habitat. Congress expressly process for these lands, which has Congress has expressly required their contemplated that exclusions under this included both public comment periods consideration when designating critical section might result in such situations and litigation, all with accompanying habitat. Exclusions under this section when it enacted the exclusion authority. publicity. Therefore, we believe the for non-economic reasons are addressed House Report 95–1625, stated on page education benefits which might arise above. 17: from a critical habitat designation here In general, we have considered in ‘‘Factors of recognized or potential have largely already been generated. making the following exclusions that all importance to human activities in an In summary, we believe that this of the costs and other impacts predicted area will be considered by the Secretary proposed unit as critical habitat would in the economic analysis may not be in deciding whether or not all or part of avoided by excluding the area, due to provide little additional Federal that area should be included in the regulatory benefits for the species. the fact that the areas in question are critical habitat * * * In some situations, currently occupied by the Riverside Under the Gifford Pinchot decision, no critical habitat would be specified. In critical habitat designations may fairy shrimp and there will be such situations, the Act would still be provide greater benefits to recovery of a requirements for consultation under in force to prevent any taking or other species than was previously believed, Section 7 of the Act, or for permits prohibited act * * *’’ under section 10 (henceforth We accordingly believe that these but it is not possible to quantify this at ‘‘consultation’’), for any take of the exclusions, and the basis upon which present. Because the proposed critical species, and other protections for the they are made, are fully within the habitat is occupied by the species, there species exist elsewhere in the Act and parameters for the use of section 4(b)(2) must be consultation with the Service under State and local laws and set out by Congress. over any action which might impact it. regulations. In addition, some areas are The additional educational benefits also occupied by other listed species Application of Section 4(b)(2) Economic which might arise from critical habitat and in some cases are designated as Exclusion to Former MCAS El Toro designation are largely accomplished critical habitat for those species. In (Sub-Unit 2C) through the multiple notice and conducting economic analyses, we are We have excluded all of proposed comments which accompanied the guided by the 10th Circuit Court of Sub-unit 2C, consisting of development of this regulation, and Appeal’s ruling in the New Mexico approximately 133 ac (54 ha; with 14 ac publicity over the prior litigation.

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19189

(2) Benefits of Exclusion portion of proposed Sub-unit 2D, development of this regulation, and The economic analysis conducted for consisting of approximately 736 ac (298 publicity over the prior litigation. ha) with 57 ac (23 ha) of essential this proposal estimates that the costs (2) Benefits of Exclusion associated with designating this unit of habitat near O’Neill Regional Park, The economic analysis conducted for the proposed critical habitat would be under section 4(b)(2) of the Act. The this proposal estimates that the costs $56.7 million. By excluding this unit, analysis which led us to the conclusion associated with designating this unit of some or all of those costs will be that the benefits of excluding this area the proposed critical habitat would avoided. exceed the benefits of designating it as critical habitat, and will not result in the range between over $10 million to (3) The Benefits of Exclusion Exceed the extinction of the species, follows. nearly $60 million, largely as loss of Benefits of Inclusion land value and increased costs to (1) Benefits of Inclusion We do not believe that the benefits private landowners. These costs range from the designation of critical habitat The areas excluded are currently from $14,000 and $79,000 per acre. The for lands we have decided to exclude— occupied by the species. If these areas variability in the impact encompasses a a limited educational benefit and very were designated as critical habitat, any low to high amount of required set aside limited regulatory benefit, which are actions with a Federal nexus which acreage that depends on vernal pool site largely otherwise provided for, as might adversely modify the critical geometry, requirements of land use discussed above—exceed the benefits of habitat would require a consultation regulations, and planned uses of the avoiding the potential economic costs with us, as explained above, in the site. By excluding this unit, some or all which could result from including those section of this notice entitled ‘‘Effects of of those costs will be avoided. lands in this designation of critical Critical Habitat Designation.’’ However, (3) The Benefits of Exclusion Exceed the habitat. We also note that the inasmuch as this area is currently Benefits of Inclusion management plans to acquire land off- occupied by the species, consultation We do not believe that the benefits site, restore vernal pools there, relocate for activities which might adversely from the designation of critical habitat the species to these pools, initiate impact the species, including possibly for lands we have decided to exclude— biological monitoring, and provide for significant habitat modification (see a limited educational benefit and very project management. definition of ‘‘harm’’ at 50 CFR 17.3) limited regulatory benefit, which are Designating critical habitat would would be required even without the largely otherwise provided for, as impose a disincentive for this type of critical habitat designation and without discussed above—exceed the benefits of conservation efforts, and add to the regard to the existence of a Federal avoiding the potential economic costs costs. We therefore find that the benefits nexus. which could result from including those of excluding these areas from this Another possible benefit of a critical designation of critical habitat outweigh lands in this designation of critical habitat designation is education of habitat. the benefits of including them in the landowners and the public regarding the designation. We also believe that excluding these potential conservation value of these lands, and thus helping landowners and (4) Exclusion Will Not Result in areas. This may focus and contribute to water users avoid the additional costs Extinction of the Species conservation efforts by other parties by that would result from the designation, We believe that exclusion of these clearly delineating areas of high will contribute to a more positive lands will not result in extinction of the conservation values for certain species. climate for Habitat Conservation Plans species, as they are considered occupied However, we believe that this and other active conservation measures habitat. Any actions which might educational benefit has largely been which provide greater conservation adversely affect the shrimp, regardless achieved. As explained above, this is benefits than would result from of whether a Federal nexus is present, the 2nd iteration of the critical habitat designation of critical habitat—even in must undergo a consultation with the process for these lands, which has the post-Gifford Pinchot environment— Service under the requirements of included both public comment periods which requires only that the there be no section 7 of the Act. The shrimp is and litigation, all with accompanying adverse modification resulting from protected from take under section 9. The publicity. Therefore, we believe the Federally-related actions. We therefore exclusions leave these protections education benefits which might arise find that the benefits of excluding these unchanged from those which would from a critical habitat designation here areas from this designation of critical exist if the excluded areas were have largely already been generated. habitat outweigh the benefits of designated as critical habitat. In In summary, we believe that this including them in the designation. addition, as discussed above, there are proposed unit as critical habitat would (4) Exclusion Will Not Result in a substantial number of Habitat provide little additional Federal Extinction of the Species Conservation Plans and other active regulatory benefits for the species. conservation measures underway for the Under the Gifford Pinchot decision, We believe that exclusion of these species, which provide greater critical habitat designations may lands will not result in extinction of the conservation benefits than would result provide greater benefits to recovery of a species, as they are considered occupied from a designation. There is accordingly species than was previously believed, habitat. Any actions which might no reason to believe that these but it is not possible to quantify this at adversely affect the shrimp, regardless exclusions would result in extinction of present. Because the proposed critical of whether a Federal nexus is present, the species. habitat is occupied by the species, there must undergo a consultation with the must be consultation with the Service Service under the requirements of Application of Section 4(b)(2) Economic over any action which might impact it. section 7 of the Act. The shrimp is Exclusion to Saddleback Meadows and The additional educational benefits protected from take under section 9. The Other Private Lands (Portion of Sub- which might arise from critical habitat exclusions leave these protections Unit 2D) designation are largely accomplished unchanged from those which would We have excluded the Saddleback through the multiple notice and exist if the excluded areas were Meadows and other private lands within comments which accompanied the designated as critical habitat. In

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19190 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

addition, as discussed above, there are the vernal pools and ponds. Reasonable critical habitat designation and without a substantial number of Habitat assurances that the management plan regard to the existence of a Federal Conservation Plans and other active will be implemented are provided by nexus. conservation measures underway for the the requirement that the proposed Another possible benefit of a critical species, which provide greater project proponent execute and record an habitat designation is education of conservation benefits than would result irrevocable offer to dedicate over 97 ac landowners and the public regarding the from a designation. There is accordingly of biological open space, including potential conservation value of these no reason to believe that these avoided and created pools and their areas. This may focus and contribute to exclusions would result in extinction of watersheds, accompanied by a perpetual conservation efforts by other parties by the species. conservation easement for biological clearly delineating areas of high The Service completed a section 7 conservation purposes. Reasonable conservation values for certain species. consultation with the Corps on October assurances that the conservation effort However, we believe that this 26, 2001 on the impacts of the proposed will be effective are given through the educational benefit has largely been Saddleback Meadows Residential Service and Corps-approved plans achieved. As explained above, this is Development Project (Service 2001). mentioned above for perpetual the 2nd iteration of the critical habitat With reference to this critical habitat maintenance and monitoring, and the process for these lands, which has designation, the consultation addressed non-wasting endowment that will be included both public comment periods the effects of proposed residential established to finance it. Further, the and litigation, all with accompanying development project, on the federally easement will state that no other publicity. Therefore, we believe the endangered Riverside fairy shrimp and easements, modifications or other education benefits which might arise its proposed critical habitat. The project activities which would result in from a critical habitat designation here entails a 283-unit residential disturbance to the pools or their PCEs have largely already been generated. development on approximately 128 ac would be allowed within the biological In summary, we believe that this within the 225 ac Saddleback Meadows conservation easement area. proposed unit as critical habitat would site, in the Foothill Trabuco Specific In sum, we believe that these provide little additional Federal Plan area of Orange County, and conservation measures identified in the regulatory benefits for the species. proposed to fill three unbreached vernal consultation, including the dedication Under the Gifford Pinchot decision, pools, and two breached ponds, of the of 97.4 acres of biological open space critical habitat designations may total nine pools in the area that are (including the avoided and created fairy provide greater benefits to recovery of a known to contain Riverside fairy shrimp ponds and their watersheds) and species than was previously believed, shrimp. Approximately 97 ac of the management, maintenance, and but it is not possible to quantify this at biological open space will be monitoring plans and funding to present. Because the proposed critical established by the project, including implement the plans, would provide a habitat is occupied by the species, there native habitat restoration on areas of the conservation benefit to the Riverside must be consultation with the Service surrounding slopes. fairy shrimp. over any action which might impact it. In evaluating the management plan The additional educational benefits Application of Section 4(b)(2) Economic that covers 97 ac of biological open which might arise from critical habitat Exclusion to Lands Near Tijeras Creek space, we determined that the biological designation are largely accomplished (Proposed Sub-Unit 2E) open space area provided by the through the multiple notice and proposed Saddleback Meadows We have excluded all of proposed comments which accompanied the Residential Development Project would Sub-unit 2E, consisting of development of this regulation, and be adequately managed, i.e., the plan or approximately 321 ac (130 ha) with publicity over the prior litigation. agreement would provide conservation approximately 101 ac (41 ha) of benefits to the species. This is ensured essential habitat near Tijeras Creek, (2) Benefits of Exclusion by the following conservation measures Mission Viejo, under section 4(b)(2) of The economic analysis conducted for to be implemented as part of the the Act. The analysis which led us to this proposal estimates that the costs proposed action to mitigate impacts and the conclusion that the benefits of associated with designating this unit of minimize potential adverse effects of the excluding this area exceed the benefits the proposed critical habitat would proposed project. These measures of designating it as critical habitat, and range from over $5 million to over $30 include plans to preserve four pools will not result in the extinction of the million, largely as loss of land value and within the open space area, and to species, follows. increased costs to private landowners. create four ephemeral pools onsite to These costs could exceed $90,000 per (1) Benefits of Inclusion which Riverside fairy shrimp would be acre. The variability in the impact introduced (using cysts from impacted The areas excluded are currently encompasses a low to high amount of vernal pools). Approximately one-fifth occupied by the species. If these areas required set aside acreage that depends of the salvaged soil and cysts will be were designated as critical habitat, any on vernal pool site geometry, placed in storage at the San Diego actions with a Federal nexus which requirements of land use regulations, Zoological Society’s Center for the might adversely modify the critical and planned uses of the site. By Reproduction of Endangered Species habitat would require a consultation excluding this unit, some or all of those until the ponds have met predetermined with us, as explained above, in the costs will be avoided. success criteria. Further, the section of this notice entitled ‘‘Effects of implementation of a 10-year fairy Critical Habitat Designation.’’ However, (3) The Benefits of Exclusion Exceed the shrimp pond creation, maintenance and inasmuch as this area is currently Benefits of Inclusion monitoring plan includes success occupied by the species, consultation We do not believe that the benefits criteria for establishing viable fairy for activities which might adversely from the designation of critical habitat shrimp populations and the hydrology impact the species, including possibly for lands we have decided to exclude— necessary to support them in the created significant habitat modification (see a limited educational benefit and very ponds, and measures to ensure definition of ‘‘harm’’ at 50 CFR 17.3) limited regulatory benefit, which are avoidance of irrigation water entering would be required even without the largely otherwise provided for, as

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19191

discussed above—exceed the benefits of were designated as critical habitat, any acreage that depends on vernal pool site avoiding the potential economic costs actions with a Federal nexus which geometry, requirements of land use which could result from including those might adversely modify the critical regulations, and planned uses of the lands in this designation of critical habitat would require a consultation site. By excluding this unit, some or all habitat. with us, as explained above, in the of those costs will be avoided. We also believe that excluding these section of this notice entitled ‘‘Effects of lands, and thus helping landowners and Critical Habitat Designation.’’ However, (3) The Benefits of Exclusion Exceed the water users avoid the additional costs inasmuch as this area is currently Benefits of Inclusion that would result from the designation, occupied by the species, consultation will contribute to a more positive for activities which might adversely We do not believe that the benefits climate for Habitat Conservation Plans impact the species, including possibly from the designation of critical habitat and other active conservation measures significant habitat modification (see for lands we have decided to exclude— which provide greater conservation definition of ‘‘harm’’ at 50 CFR 17.3) a limited educational benefit and very benefits than would result from would be required even without the limited regulatory benefit, which are designation of critical habitat—even in critical habitat designation and without largely otherwise provided for, as the post-Gifford Pinchot environment— regard to the existence of a Federal discussed above—exceed the benefits of which requires only that the there be no nexus. avoiding the potential economic costs adverse modification resulting from Another possible benefit of a critical which could result from including those Federally-related actions. We therefore habitat designation is education of lands in this designation of critical find that the benefits of excluding these landowners and the public regarding the habitat. potential conservation value of these areas from this designation of critical We also believe that excluding these habitat outweigh the benefits of areas. This may focus and contribute to lands, and thus helping landowners and including them in the designation. conservation efforts by other parties by clearly delineating areas of high water users avoid the additional costs (4) Exclusion Will Not Result in conservation values for certain species. that would result from the designation, Extinction of the Species However, we believe that this will contribute to a more positive We believe that exclusion of these educational benefit has largely been climate for Habitat Conservation Plans lands will not result in extinction of the achieved. As explained above, this is and other active conservation measures species, as they are considered occupied the 2nd iteration of the critical habitat which provide greater conservation habitat. Any actions which might process for these lands, which has benefits than would result from adversely affect the shrimp, regardless included both public comment periods designation of critical habitat—even in of whether a Federal nexus is present, and litigation, all with accompanying the post-Gifford Pinchot environment— must undergo a consultation with the publicity. Therefore, we believe the which requires only that the there be no Service under the requirements of education benefits which might arise adverse modification resulting from section 7 of the Act. The shrimp is from a critical habitat designation here Federally-related actions. We therefore protected from take under section 9. The have largely already been generated. find that the benefits of excluding these exclusions leave these protections In summary, we believe that this areas from this designation of critical unchanged from those which would proposed unit as critical habitat would habitat outweigh the benefits of exist if the excluded areas were provide little additional Federal including them in the designation. designated as critical habitat. In regulatory benefits for the species. addition, as discussed above, there are Under the Gifford Pinchot decision, (4) Exclusion Will Not Result in a substantial number of Habitat critical habitat designations may Extinction of the Species Conservation Plans and other active provide greater benefits to recovery of a conservation measures underway for the species than was previously believed, We believe that exclusion of these species, which provide greater but it is not possible to quantify this at lands will not result in extinction of the conservation benefits than would result present. Because the proposed critical species, as they are considered occupied from a designation. There is accordingly habitat is occupied by the species, there habitat. Any actions which might no reason to believe that these must be consultation with the Service adversely affect the shrimp, regardless exclusions would result in extinction of over any action which might impact it. of whether a Federal nexus is present, the species. The additional educational benefits must undergo a consultation with the which might arise from critical habitat Service under the requirements of Application of Section 4(b)(2) Economic designation are largely accomplished section 7 of the Act. The shrimp is Exclusion to Chiquita Ridge (Sub-Unit through the multiple notice and protected from take under section 9. The 2F) comments which accompanied the exclusions leave these protections We have excluded all of Sub-unit 2F, development of this regulation, and unchanged from those which would consisting of approximately 489 ac (198 publicity over the prior litigation. exist if the excluded areas were ha) and containing approximately 263 (2) Benefits of Exclusion designated as critical habitat. In ac (106 ha) of essential habitat near The economic analysis conducted for addition, as discussed above, there are Chiquita Ridge, Mission Viejo, under a substantial number of Habitat section 4(b)(2) of the Act. The analysis this proposal estimates that the costs Conservation Plans and other active which led us to the conclusion that the associated with designating this unit of conservation measures underway for the benefits of excluding this area exceed the proposed critical habitat would the benefits of designating it as critical range from nearly $8 million to nearly species, which provide greater habitat, and will not result in the $45 million, largely as loss of land value conservation benefits than would result extinction of the species, follows. and increased costs to private from a designation. There is accordingly landowners. These costs range from no reason to believe that these (1) Benefits of Inclusion nearly $16,000 to $89,000 per acre. The exclusions would result in extinction of The areas excluded are currently variability in the impact encompasses a the species. occupied by the species. If these areas low to high amount of required set aside

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19192 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

Application of Section 4(b)(2) Economic The additional educational benefits protected from take under section 9. The Exclusion to Lands Near Radio Tower which might arise from critical habitat exclusions leave these protections Road (Sub-Unit 2G) designation are largely accomplished unchanged from those which would We have excluded all of Sub-unit 2G, through the multiple notice and exist if the excluded areas were near Radio Tower Road in Mission comments which accompanied the designated as critical habitat. In Viejo, consisting of approximately 736 development of this regulation, and addition, as discussed above, there are ac (298 ha) and containing publicity over the prior litigation. a substantial number of Habitat approximately 417 ac (169 ha) of (2) Benefits of Exclusion Conservation Plans and other active conservation measures underway for the essential habitat, under section 4(b)(2) The economic analysis conducted for of the Act. The analysis which led us to species, which provide greater this proposal estimates that the costs conservation benefits than would result the conclusion that the benefits of associated with designating this unit of excluding this area exceed the benefits from a designation. There is accordingly the proposed critical habitat would no reason to believe that these of designating it as critical habitat, and range from $8 million to nearly $45 will not result in the extinction of the exclusions would result in extinction of million, largely as loss of land value and the species. species, follows. increased costs to private landowners. (1) Benefits of Inclusion These costs range from $14,000 and Application of Section 4(b)(2) Economic $79,000 per acre. The variability in the Exclusion to Southeastern Otay Mesa The areas excluded are currently impact encompasses a low to high (Sub-Unit 5C) occupied by the species. If these areas amount of required set aside acreage We have excluded the remainder of were designated as critical habitat, any that depends on vernal pool site actions with a Federal nexus which Sub-unit 5C, approximately 866 ac (350 geometry, requirements of land use ha), and containing approximately 111 might adversely modify the critical regulations, and planned uses of the habitat would require a consultation ac (45 ha) of essential habitat at Otay site. By excluding this unit, some or all Mesa, under section 4(b)(2) of the Act. with us, as explained above, in the of those costs will be avoided. section of this notice entitled ‘‘Effects of The analysis which led us to the Critical Habitat Designation.’’ However, (3) The Benefits of Exclusion Exceed the conclusion that the benefits of inasmuch as this area is currently Benefits of Inclusion excluding this area exceed the benefits occupied by the species, consultation We do not believe that the benefits of designating it as critical habitat, and for activities which might adversely from the designation of critical habitat will not result in the extinction of the impact the species, including possibly for lands we have decided to exclude— species, follows. significant habitat modification (see a limited educational benefit and very (1) Benefits of Inclusion definition of ‘‘harm’’ at 50 CFR 17.3) limited regulatory benefit, which are would be required even without the largely otherwise provided for, as The areas excluded are currently critical habitat designation and without discussed above—exceed the benefits of occupied by the species. If these areas regard to the existence of a Federal avoiding the potential economic costs were designated as critical habitat, any nexus. which could result from including those actions with a Federal nexus which Another possible benefit of a critical lands in this designation of critical might adversely modify the critical habitat designation is education of habitat. habitat would require a consultation landowners and the public regarding the We also believe that excluding these with us, as explained above, in the potential conservation value of these lands, and thus helping landowners and section of this notice entitled ‘‘Effects of areas. This may focus and contribute to water users avoid the additional costs Critical Habitat Designation.’’ However, conservation efforts by other parties by that would result from the designation, inasmuch as this area is currently clearly delineating areas of high will contribute to a more positive occupied by the species, consultation conservation values for certain species. climate for Habitat Conservation Plans for activities which might adversely However, we believe that this and other active conservation measures impact the species, including possibly educational benefit has largely been which provide greater conservation significant habitat modification (see achieved. As explained above, this is benefits than would result from definition of ‘‘harm’’ at 50 CFR 17.3) the 2nd iteration of the critical habitat designation of critical habitat—even in would be required even without the process for these lands, which has the post-Gifford Pinchot environment— critical habitat designation and without included both public comment periods which requires only that there be no regard to the existence of a Federal and litigation, all with accompanying adverse modification resulting from nexus. publicity. Therefore, we believe the Federally-related actions. We therefore Another possible benefit of a critical education benefits which might arise find that the benefits of excluding these habitat designation is education of from a critical habitat designation here areas from this designation of critical landowners and the public regarding the have largely already been generated. habitat outweigh the benefits of potential conservation value of these In summary, we believe that this including them in the designation. areas. This may focus and contribute to proposed unit as critical habitat would conservation efforts by other parties by provide little additional Federal (4) Exclusion Will Not Result in clearly delineating areas of high regulatory benefits for the species. Extinction of the Species conservation values for certain species. Under the Gifford Pinchot decision, We believe that exclusion of these However, we believe that this critical habitat designations may lands will not result in extinction of the educational benefit has largely been provide greater benefits to recovery of a species, as they are considered occupied achieved. As explained above, this is species than was previously believed, habitat. Any actions which might the 2nd iteration of the critical habitat but it is not possible to quantify this at adversely affect the shrimp, regardless process for these lands, which has present. Because the proposed critical of whether a Federal nexus is present, included both public comment periods habitat is occupied by the species, there must undergo a consultation with the and litigation, all with accompanying must be consultation with the Service Service under the requirements of publicity. Therefore, we believe the over any action which might impact it. section 7 of the Act. The shrimp is education benefits which might arise

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19193

from a critical habitat designation here on either set of lands. By excluding Sub- Relationship of Critical Habitat to have largely already been generated. unit 5C, we will avoid some or all of Approved Habitat Conservation Plans In summary, we believe that this these additional costs to those already (HCPs) proposed unit as critical habitat would incurred by affected landowners. The We have excluded lands within provide little additional Federal remaining lands within Subunit 5A are habitat conservation plans under section regulatory benefits for the species. conserved as part of a section 7 4(b)(2) of the Act. The analysis which Under the Gifford Pinchot decision, consultation and are not available for led us to the conclusion that the benefits critical habitat designations may future residential development. of excluding this area exceed the provide greater benefits to recovery of a benefits of designating it as critical species than was previously believed, (3) The Benefits of Exclusion Exceed the habitat, and will not result in the but it is not possible to quantify this at Benefits of Inclusion extinction of the species, follows. present. Because the proposed critical We do not believe that the benefits habitat is occupied by the species, there from the designation of critical habitat (1) Benefits of Inclusion for lands we have decided to exclude— must be consultation with the Service The areas excluded are currently a limited educational benefit and very over any action which might impact it. occupied by the species. If these areas The additional educational benefits limited regulatory benefit, which are were designated as critical habitat, any which might arise from critical habitat largely otherwise provided for, as actions with a Federal nexus which designation are largely accomplished discussed above—exceed the benefits of might adversely modify the critical through the multiple notice and avoiding the potential economic costs habitat would require a consultation comments which accompanied the which could result from including those with us, as explained above, in the development of this regulation, and lands in this designation of critical section of this notice entitled ‘‘Effects of publicity over the prior litigation. habitat. We also believe that excluding these Critical Habitat Designation.’’ However, (2) Benefits of Exclusion lands, and thus helping landowners and inasmuch as this area is currently The economic analysis conducted for water users avoid the additional costs occupied by the species, consultation this proposal estimates that the costs that would result from the designation, for activities which might adversely associated with designating this unit of on top of the extensive costs they have impact the species, including possibly the proposed critical habitat would already incurred, will contribute to a significant habitat modification (see range from $5 million to $31 million, more positive climate for Habitat definition of ‘‘harm’’ at 50 CFR 17.3) largely as loss of land value and Conservation Plans and other active would be required even without the increased costs to private landowners. conservation measures which provide critical habitat designation and without The variability in the impact greater conservation benefits than regard to the existence of a Federal encompasses a low to high amount of would result from designation of critical nexus. required set aside acreage that depends habitat—even in the post-Gifford Another possible benefit of a critical on vernal pool site geometry, Pinchot environment—which requires habitat designation is education of requirements of land use regulations, only that the there be no adverse landowners and the public regarding the and planned uses of the site. modification resulting from Federally- potential conservation value of these In addition, landowners in this related actions. We therefore find that areas. This may focus and contribute to proposed unit have already incurred the benefits of excluding these areas conservation efforts by other parties by approximately $42 million in costs and from this designation of critical habitat clearly delineating areas of high loss of value as a result of the listing of outweigh the benefits of including them conservation values for certain species. the Riverside fairy shrimp. Moreover, in the designation. However, we believe that this the analysis showed that, given RFS- educational benefit has largely been related conservation activities, San (4) Exclusion Will Not Result in achieved. As explained above, this is Diego County may have produced 3,700 Extinction of the Species the 2nd iteration of the critical habitat fewer housing units, or 4.4 percent of We believe that exclusion of these process for these lands, which has the total built, over the 12-year time lands will not result in extinction of the included both public comment periods period since listing, and that the level species, as they are considered occupied and litigation, all with accompanying of supply reductions in San Diego habitat. Any actions which might publicity. Therefore, we believe the County suggest that the real estate adversely affect the shrimp, regardless education benefits which might arise market and housing prices may have of whether a Federal nexus is present, from a critical habitat designation here been affected. It found that additional must undergo a consultation with the have largely already been generated. consumers and producers were and are Service under the requirements of In summary, we believe that this likely affected by the changes in price section 7 of the Act. The shrimp is proposed unit as critical habitat would and quantity, and the magnitude of the protected from take under section 9. The provide little additional Federal total impacts in this instance would exclusions leave these protections regulatory benefits for the species. surpass the landowner-only cost figures unchanged from those which would Under the Gifford Pinchot decision, cited above. exist if the excluded areas were critical habitat designations may Although the analysis considered all designated as critical habitat. In provide greater benefits to recovery of a of proposed unit in its entirety, it seems addition, as discussed above, there are species than was previously believed, clear that the economic impacts to a substantial number of Habitat but it is not possible to quantify this at landowners will largely arise from the Conservation Plans and other active present. Because the proposed critical Sub-unit 5C. Sub-unit 5A (61 ac (25 ha)) conservation measures underway for the habitat is occupied by the species, there is owned by the Sweetwater Union High species, which provide greater must be consultation with the Service School District, and Sub-unit 5B by the conservation benefits than would result over any action which might impact it. DHS (see Application of Section 4(b)(2) from a designation. There is accordingly The additional educational benefits National Security to U.S. Department of no reason to believe that these which might arise from critical habitat Homeland Security Lands above); real exclusions would result in extinction of designation are largely accomplished estate development is not a likely event the species. through the multiple notice and

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19194 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

comments which accompanied the designated as critical habitat. In wherein the conservation of the development of this regulation, and addition, as discussed above, there are Riverside fairy shrimp is addressed, a publicity over the prior litigation. a substantial number of Habitat primary goal is to provide for the Conservation Plans and other active protection and management of habitat (2) Benefits of Exclusion conservation measures underway for the essential for the conservation of the The economic analysis conducted for species, which provide greater Riverside fairy shrimp while directing this proposal estimates that the costs conservation benefits than would result development to non-essential areas. The associated with designating this unit of from a designation. There is accordingly regional HCP development process the proposed critical habitat would no reason to believe that these provides an opportunity for more range from over $5 million to over $30 exclusions would result in extinction of intensive data collection and analysis million, largely as loss of land value and the species. regarding the use of particular habitat increased costs to private landowners. As described above, section 4(b)(2) of areas by the Riverside fairy shrimp. The These costs could exceed $90,000 per the Act requires us to consider other regional HCP planning process also acre. The variability in the impact relevant impacts, in addition to enables us to construct a habitat encompasses a low to high amount of economic and national security impacts, preserve system that provides for the required set aside acreage that depends when designating critical habitat. biological needs and long-term on vernal pool site geometry, Section 10(a)(1)(B) of the Act authorizes conservation of the Riverside fairy requirements of land use regulations, us to issue permits for the take of listed shrimp. Completed HCPs and their and planned uses of the site. By wildlife species incidental to otherwise accompanying Implementation excluding this unit, some or all of those lawful activities. Development of an Agreements contain management costs will be avoided. HCP is a prerequisite for the issuance of measures and protections for identified (3) The Benefits of Exclusion Exceed the an incidental take permit pursuant to preserve areas that protect, restore, and section 10(a)(1)(B) of the Act. An Benefits of Inclusion enhance the value of these lands as incidental take permit application must habitat for the Riverside fairy shrimp. We do not believe that the benefits be supported by an HCP that identifies These measures include explicit from the designation of critical habitat conservation measures that the standards to minimize any impacts to for lands we have decided to exclude— permittee agrees to implement for the the covered species and its habitat. In a limited educational benefit and very species to minimize and mitigate the general, HCPs are designed to ensure limited regulatory benefit, which are impacts of the permitted incidental take. that the value of the conservation lands largely otherwise provided for, as HCPs vary in size and may provide for are maintained, expanded, and discussed above—exceed the benefits of incidental take coverage and improved for the species that they avoiding the potential economic costs conservation management for one or cover. which could result from including those many federally listed species. In approving these HCPs, the Service lands in this designation of critical Additionally, more than one applicant has provided assurances to permit habitat. may participate in the development and holders that once the protection and We also believe that excluding these implementation of an HCP. Some areas management required under the plans lands, and thus helping landowners and occupied by, and determined to be are in place and for as long as the permit water users avoid the additional costs essential to, the Riverside fairy shrimp holders are fulfilling their obligations that would result from the designation, involve complex HCPs that address under the plans, no additional will contribute to a more positive multiple species, cover large areas, and mitigation in the form of land or climate for Habitat Conservation Plans have many participating permittees. financial compensation will be required and other active conservation measures Large regional HCPs expand upon the of the permit holders and, in some which provide greater conservation basic requirements set forth in section cases, specified third parties. Similar benefits than would result from 10(a)(1)(B) of the Act because they assurances will be extended to future designation of critical habitat—even in reflect a voluntary, cooperative permit holders in accordance with the the post-Gifford Pinchot environment— approach to large-scale habitat and Service’s HCP Assurance (‘‘No which requires only that the there be no species conservation planning. Many of Surprises’’) rule codified at 50 CFR adverse modification resulting from the large regional HCPs in southern 17.22(b)(5) and (6) and 17.32(b)(5) and Federally-related actions. We therefore California have been, or are being, (6). find that the benefits of excluding these developed to provide for the We believe that in most instances, the areas from this designation of critical conservation of numerous federally benefits of excluding legally operative habitat outweigh the benefits of listed species and unlisted sensitive HCPs from the critical habitat including them in the designation. species and the habitat that provides for designations will outweigh the benefits their biological needs. These HCPs of including them and would thereby (4) Exclusion Will Not Result in address impacts within the plan’s prevent the extinction of the species. Extinction of the Species boundaries area and create a preserve The following represents our rationale We believe that exclusion of these design within the planning area. Over for excluding essential habitat from lands will not result in extinction of the time, areas in the planning area are critical habitat for lands within species, as they are considered occupied developed according to the HCP, and approved HCPs. habitat. Any actions which might the area within the preserve is acquired, adversely affect the shrimp, regardless managed, and monitored. These HCPs Orange County Central-Coastal Natural of whether a Federal nexus is present, are designed to implement conservation Community Conservation Program/ must undergo a consultation with the actions to address future projects that Habitat Conservation Plan Service under the requirements of sec. are anticipated to occur within the The Central-Coastal Natural 7 of the Act. The shrimp is protected planning area of the HCP, in order to Community Conservation Program/ from take under section 9. The reduce delays in the permitting process. Habitat Conservation Plan (NCCP/HCP) exclusions leave these protections In the case of approved regional HCPs in Orange County was developed in unchanged from those which would (e.g., those sponsored by cities, cooperation with numerous local and exist if the excluded areas were counties, or other local jurisdictions) State jurisdictions and agencies and

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19195

participating landowners, including the Game. The MSHCP establishes a multi- likely have a minimum buffer of 380 cities of Anaheim, Costa Mesa, Irvine, species conservation program to feet to a buffer greater than 1,000 feet Orange, San Juan Capistrano, and the minimize and mitigate the expected loss from the edge of the pool (Service 2004). Southern California Edison and of habitat values of ‘‘covered species’’ Three known populations of Riverside Transportation Corridor Agencies, The and, with regard to covered animal fairy shrimp are located outside of the Irvine Company, California Department species, their incidental take. The intent MSHCP Conservation Area including of Parks and Recreation, Metropolitan of the MSHCP is to provide avoidance, Banning Complex, Pechanga Pool, and Water District of Southern California, minimization, and mitigation measures Scott Pool. The Scott Pool has recently and the County of Orange. Approved in for the impacts of proposed activities on been impacted by disking, several 1996, the Central-Coastal NCCP/HCP covered species and their habitats. pipeline projects, and the installation of provides for the establishment of Within the 1,260,000 ac (510,000 ha) a telephone pole (Service 2004). The approximately 38,738 ac (15,677 ha) of Plan Area of the MSHCP, approximately Pechanga Pool has been subject to reserve lands for 39 Federal- or State- 153,000 ac (62,000 ha) of diverse cultivation (Eriksen 1988). Impacts to listed and unlisted sensitive species habitats are now being conserved. The these pools will be avoided and within the 208,713 ac (84,463 ha) conservation of this large area minimized through implementation of planning area. We issued an incidental complements other existing natural and the Riparian/Riverine Areas and Vernal take permit under section 10(a)(1)(B) of open space areas (e.g., State Parks, Pools Policy. Specifically, this policy the Act that provides conditional Forest Service, and County Park lands). requires that habitat for this species be incidental take authorization for the Essential habitat for the Riverside fairy mapped throughout the Plan Area and Riverside fairy shrimp for all areas shrimp within the Western Riverside within the Central-Coastal Sub-region. County MSHCP area (within Map Unit avoided if feasible. If avoidance is not Within the Central-Coastal NCCP/ 3) has been excluded from critical feasible, surveys will be conducted and HCP, in the North Ranch Policy Plan habitat pursuant to section 4(b)(2) of the 90 percent of the occupied area area, Riverside fairy shrimp are known Act. determined to have long-term to occur in a natural vernal pool located In Riverside County, there are 7 conservation value for the species will on a rock outcropping. The North Ranch naturally occurring populations of be conserved and managed (Service Policy Plan area was excluded from the Riverside fairy shrimp (in Skunk 2004). take authorization provided under the Hollow Pool, Field Pool, Scott Pool, We anticipate the loss of only 10 Central-Coastal NCCP/HCP. However, in Schleuniger Pool, Pechanga Pool, percent of occupied Riverside fairy 2002, the owner of lands within the Australia Pool, March Air Reserve Base, shrimp habitats determined to have North Ranch Policy Plan area (the Irvine and Banning Complex), one population long-term conservation value for the Company), granted a conservation in created pools (Johnson Ranch Created species. We anticipate that this species easement to The Nature Conservancy Pools), and one population proposed to will persist in the remaining 90 percent over the portion of the land where this be relocated into created pools (Clayton of occupied habitat with long-term vernal pool is located, and provided a Ranch Proposed Pools), all of which are conservation value for the species, $10 million management endowment. located within the Plan Area of the including the 39 percent of the modeled The conservation easement and Western Riverside County MSHCP habitat within both the existing public/ management endowment provide (Service 2004). The pools in Riverside quasi-public lands and the Additional special management and protection for County are significant since they Reserve Lands. The MSHCP will further the Riverside fairy shrimp. Therefore, represent the most inland extent of the offset the proposed impacts to this essential habitat within the North Ranch species range (Eriksen and Belk 1999). species through management and Policy Plan area and within the other Also, the type locality for the species, monitoring actions within the Reserve, lands covered by the Central-Coastal which is of taxonomic significance, was including the enhancement of historic NCCP/HCP in Orange County (within located within Riverside County or vestigial vernal pools within Core Map Unit 2) have been excluded from (Eriksen 1988). Habitat within Riverside Areas. This enhancement will help this final critical habitat designation County is ideal for the species. offset the impacts of the action by based on section 4(b)(2) of the Act. Riverside County harbors large vernal increasing the quality of the habitat that pools that persist for long periods of Western Riverside County Multiple is conserved for this species and by time, allowing this slow-maturing Species Habitat Conservation Plan species to reproduce. One of these, the allowing the expansion of populations The Western Riverside County Skunk Hollow Pool, is the largest valley within the Reserve through the Multiple Species Habitat Conservation vernal pool remaining in all of southern enhancement of historic or vestigial Plan (MSHCP) was developed over a California (Eriksen and Belk 1999). vernal pools that do not currently period of eight years. Participants in this Within the Plan Area, four provide habitat for the species (Service HCP include 14 cities, the County of occurrences and their watersheds are 2004). The Western Riverside County Riverside (including the Riverside protected by existing conservation and MSHCP includes a significant number County Flood Control and Water management agreements: (1) Skunk of local and State partners. Moreover, Conservation Agency, Riverside County Hollow Pool, (2) Field Pool, (3) seven the County of Riverside and the Transportation Commission, Riverside Johnson Ranch Created Pools, and (4) participating jurisdictions have County Parks and Open Space District, two Clayton Ranch Proposed Pools. A demonstrated their sustained support and Riverside County Waste fifth occurrence, Schleuniger Pool, is for the Western Riverside County Department), the California Department also protected by existing conservation MSHCP by the November 5, 2002 of Parks and Recreation, and the and management agreements; however, passage of a local bond measure to fund California Department of part of its watershed remains the acquisition of land in support of the Transportation. The Western Riverside unprotected. Under the Western MSHCP. Excluding critical habitat from County MSHCP is a sub-regional plan Riverside County MSHCP, the Lake the Western Riverside County MSHCP under the State’s NCCP and was Elsinore Back Basin Core Area will be will continue to foster the close developed in cooperation with the conserved. The Australia Pool, which is partnerships with the local jurisdictions California Department of Fish and located within this Core Area, will and the State of California.

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19196 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

Northwestern San Diego Multiple conservation for the Riverside fairy have been adequately identified or their Habitat Conservation Plan shrimp within San Diego County. In adequacy determined by the Service. addition, surveys for Riverside fairy The Northwestern San Diego Multiple Economic Analysis Habitat Conservation Plan (MHCP) shrimp are required in suitable habitat (i.e., vernal pools, ephemeral wetlands, Section 4(b)(2) of the Act requires us encompasses approximately 111,939 ac to designate critical habitat on the basis (45,300 ha) and proposes to establish and seasonally ponded areas). The San Diego MSCP provides for of the best scientific and commercial 19,928 ac (8,064 ha) of preserve lands avoidance of impacts to vernal pool information available and to consider covering Federal or State listed, habitat for the Riverside fairy shrimp the economic and other relevant unlisted, and sensitive species, both within and outside of existing and impacts of designating a particular area including the Riverside fairy shrimp. targeted reserve areas. These lands are as critical habitat. We may exclude areas Seven incorporated cities, including to be permanently maintained and from critical habitat upon a Carlsbad, Encinitas, Escondido, managed for the benefit of the Riverside determination that the benefits of such Oceanside, San Marcos, Solana Beach, fairy shrimp and other covered species. exclusions outweigh the benefits of and Vista are participants in this However, ‘‘take’’ is not included in the specifying such areas as critical habitat. regional NCCP/HCP. Under the broad MSCP 10(a)(1)(B) permit. Thus, the We cannot exclude such areas from umbrella of the MHCP, each incidental take permits issued to the critical habitat when such exclusion participating jurisdiction prepares a City and County of San Diego under this will result in the extinction of the sub-area plan that complements the plan do not allow for the take of species concerned. goals of the MHCP. The Service consults Riverside fairy shrimp in natural vernal Following the publication of the on each sub-area plan under section 7 pool habitat. The eastern portion of Otay proposed critical habitat designation, of the Act to ensure they are consistent Mesa includes Major and Minor we conducted an economic analysis to with the aims of the MHCP. For the City Amendment Areas, which require a estimate the potential economic effect of of Carlsbad, we approved their sub-area special permitting process. Portions of the designation. The draft analysis was plan for the MHCP, the Habitat essential habitat areas which the SDG&E made available for public review on Management Plan (HMP), on November company uses for their operational and October 19, 2004 (69 FR 61461). We 12, 2004. The Riverside fairy shrimp is maintenance activities that are located accepted comments on the draft analysis one of the species covered under the within the San Diego MSCP in until November 18, 2004. The primary City of Carlsbad’s HMP and we have southwestern San Diego County (Map purpose of the economic analysis is to determined the plan will provide for the Units 3 and 4), and within the SDG&E estimate the potential economic impacts long-term conservation of the species. Sub-regional Plan have been excluded associated with the designation of San Diego Multiple Species from critical habitat based on section critical habitat for the Riverside fairy Conservation Plan 4(b)(2) of the Act. This sub-regional plan shrimp. This information is intended to and the clarification document (July assist the Secretary in making decisions The San Diego Multiple Species 2004) defines avoidance, minimization, about whether the benefits of excluding Conservation Plan (MSCP) effort and offsetting measures to be particular areas from the designation encompasses more than 582,000 ac implemented by SDG&E for the outweigh the benefits of including those (236,000 ha) and reflects the cooperative operations and maintenance activities areas in the designation. efforts of the County and City of San and future construction of new facilities This economic analysis considers the Diego, ten additional city jurisdictions, and roads. economic efficiency effects that may and several independent special result from the designation, including districts, the State, the building Relationship of Critical Habitat to HCPs habitat protections that may be co- industry, and environmentalists. Over in Development extensive with the listing of the species. the permit term, the San Diego MSCP There are several HCPs and NCCP/ It also addresses distribution of impacts, provides for the establishment of HCPs in development which may including an assessment of the potential approximately 171,000 ac (69,573 ha) of ultimately include the Riverside fairy effects on small entities and the energy preserve areas, and provides shrimp as a covered species. HCPs and industry. This information can be used conservation benefits for 85 federally NCCP/HCPs currently being developed by the Secretary to assess whether the listed and sensitive species, including include various sub-area plans under effects of the designation might unduly the Riverside fairy shrimp. Under the the MHCP in northwestern San Diego burden a particular group or economic broad umbrella of the San Diego MSCP, County, the South Orange County sector. To conduct the analysis, best each participating jurisdiction prepares NCCP/HCP, and the Northern San Diego available data were gathered from a a sub-area plan that implements the Multiple Species Conservation Program variety of sources, including regional, goals of the MSCP. The San Diego MSCP (MSCP North). These aforementioned city, and county planning agencies, land and its approved sub-area plans include HCPs, all of which are being prepared developers and conservancies, and measures to conserve known Riverside in cooperation with the State’s NCCP project managers, including those for fairy shrimp populations on Otay Mesa. program, have been determined to be both preserves and planned The Service consults on each sub-area significant planning efforts that will developments. plan under section 7 of the Act to require the preparation of an This analysis focuses on the direct ensure they are consistent with the aims Environmental Impact Report and and indirect costs of the rule. However, of the San Diego MSCP. Currently, the Environmental Impact Statement, in economic impacts to land use activities County of San Diego, and the Cities of compliance with the National can exist in the absence of critical San Diego, La Mesa, Poway, Chula Environmental Policy Act (40 CFR habitat. These impacts may result from, Vista, and the San Diego Gas and 1502.3) and the California for example, local zoning laws, State Electric (SDG&E) have approved sub- Environmental Quality Act. Further, and natural resource laws, and area plans under the San Diego MSCP. none of the HCPs under development enforceable management plans and best In addition to other Federal or State have reached a point in their management practices applied by other listed species and sensitive species, development where conservation State and Federal agencies. Economic these sub-area plans provide long-term measures for the Riverside fairy shrimp impacts that result from these types of

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19197

protections are not included in the areas as critical habitat. We also used it general, the term ‘‘significant economic analysis as they are considered to be to help determine whether to exclude impact’’ is meant to apply to a typical part of the regulatory and policy any area from critical habitat, as small business firm’s business baseline. provided for under section 4(b)(2), if we operations. The largest share of economic impacts determine that the benefits of such To determine if the rule could identified by this analysis is to real exclusion outweigh the benefits of significantly affect a substantial number estate development. Given the specifying such area as part of the of small entities, we consider the magnitude of forecast real estate critical habitat, unless we determine, number of small entities affected within development impacts in each category based on the best scientific and particular types of economic activities of impact, the analysis performs a commercial data available, that the (e.g., housing development, grazing, oil screening test for efficiency and failure to designate such area as critical and gas production, timber harvesting). distributional effects that go beyond the habitat will result in the extinction of We apply the ‘‘substantial number’’ test impact on the project applicant or the species. individually to each industry to landowner only. That is, where changes determine if certification is appropriate. Regulatory Flexibility Act (5 U.S.C. 601 However, the Small Business Regulatory in the regional output of housing, for et seq.) instance, may be associated with Enforcement Fairness Act does not Riverside fairy shrimp-related Under the Regulatory Flexibility Act explicitly define ‘‘substantial number’’ conservation activities, consumer and (RFA) (as amended by the Small or ‘‘significant economic impact.’’ producer impacts for the entire housing Business Regulatory Enforcement Consequently, to assess whether a market may exist. The screening test Fairness Act of 1996), whenever an ‘‘substantial number’’ of small entities is concludes that the amount of housing agency is required to publish a notice of affected by this designation, this potentially removed from the market rulemaking for any proposed or final analysis considers the relative number supply in each county is not a rule, it must prepare and make available of small entities likely to be impacted in significant amount of the total supply of for public comment a regulatory an area. In some circumstances, new housing. Under these conditions, flexibility analysis that describes the especially with critical habitat significant consumer or producer effect of the rule on small entities (i.e., designations of limited extent, we may surplus losses are not expected. small businesses, small organizations, aggregate across all industries and However, for past impacts occurring on and small government jurisdictions). consider whether the total number of lands excluded from designation, the However, no regulatory flexibility small entities affected is substantial. In housing market in both San Diego analysis is required if the head of an estimating the number of small entities County may have experienced reduced agency certifies the rule will not have a potentially affected, we also consider output or increased prices as a result of significant economic impact on a whether their activities have any Riverside fairy shrimp-related substantial number of small entities. Federal involvement. conservation activities. The Small Business Regulatory Designation of critical habitat only We anticipate no impacts to national Enforcement Fairness Act amended the affects activities conducted, funded, or security, Tribal lands, partnerships, or RFA to require Federal agencies to permitted by Federal agencies. Some habitat conservation plans resulting provide a statement of factual basis for kinds of activities are unlikely to have from this critical habitat designation. certifying that the rule will not have a any Federal involvement and so will not Our economic analysis indicates an significant economic impact on a be affected by critical habitat substantial number of small entities. overall low cost resulting from the designation. In areas where the species The Small Business Regulatory designation. is present, Federal agencies already are A copy of the final economic analysis Enforcement Fairness Act also amended required to consult with us under with supporting documents are the RFA to require a certification Section 7 of the Act on activities they included in our administrative record statement. fund, permit, or implement that may Small entities include small and may be obtained by contacting U.S. affect Riverside fairy shrimp. Federal organizations, such as independent non- Fish and Wildlife Service, Branch of agencies also must consult with us if profit organizations; small governmental their activities may affect critical Endangered Species (see ADDRESSES jurisdictions, including school boards habitat. Designation of critical habitat, section), or by downloading it from the and city and town governments that therefore, could result in an additional Internet at http://carlsbad.fws.gov. serve fewer than 50,000 residents; as economic impact on small entities due Required Determinations well as small businesses. Small to the requirement to reinitiate businesses include manufacturing and consultation for ongoing Federal Regulatory Planning and Review mining concerns with fewer than 500 activities. In accordance with Executive Order employees, wholesale trade entities The draft economic analysis 12866, this document is a significant with fewer than 100 employees, retail (September 15, 2004) was based on rule in that it may raise novel legal and and service businesses with less than $5 acreages from the proposed rule and policy issues, but will not have an million in annual sales, general and predicts potential costs of the proposed annual effect on the economy of $100 heavy construction businesses with less designation to small businesses. Based million or more or affect the economy than $27.5 million in annual business, on this analysis, the number of small in a material way. Due to the tight special trade contractors doing less than land development business affected timeline for publication in the Federal $11.5 million in annual business, and annually would be 7.1 (0.3 percent of Register, the Office of Management and agricultural businesses with annual total small businesses) for Los Angeles Budget (OMB) has not formally sales less than $750,000. To determine County, 5.6 (0.5 percent of total small reviewed this rule. As explained above, if potential economic impacts to these businesses) for Orange County, and 8.0 we prepared an economic analysis of small entities are significant, we (0.9 percent of total small businesses) this action. We used this analysis to consider the types of activities that for San Diego County. Over 20 years, the meet the requirement of Section 4(b)(2) might trigger regulatory impacts under total impact on small land development of the Act to determine the economic this rule, as well as the types of project businesses ranged from $3,534,420 to consequences of designating the specific modifications that may result. In $18,969,901 for Los Angeles County,

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19198 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

$10,705,409 to $58,439,095 for Orange undertaking certain actions. This final Federal entities who receive Federal County, and $2,796,785 to $15,206,384 rule to designated critical habitat for the funding, assistance, permits or for San Diego County. The annual Riverside fairy shrimp is not expected to otherwise require approval or impact on revenue per affected business significantly affect energy supplies, authorization from a Federal agency for per year ranged from $5,000 to $26,700 distribution, or use. Therefore, this an action may be indirectly impacted by for Los Angeles County, $19,000 to action is not a significant energy action the designation of critical habitat, the $104,700 for Orange County, and $3,500 and no Statement of Energy Effects is legally binding duty to avoid to $19,000 for San Diego County. required. destruction or adverse modification of Between 2005–2024, the economic critical habitat rests squarely on the Unfunded Mandates Reform Act (2 analysis predicts potential cost from the Federal agency. Furthermore, to the U.S.C. 1501 et seq.) designation of critical habitat for the extent that non-Federal entities are Riverside fairy shrimp on real estate In accordance with the Unfunded indirectly impacted because they development at Carlsberg Ranch/Tierra Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate Rajada (Sub-Units 1A and 1B) is seq.), we make the following findings: in a voluntary Federal aid program, the $376,000; to public park improvements (a) This rule will not produce a Unfunded Mandates Reform Act would at O’Neill Park (Unit 2) is $28,000; to Federal mandate. In general, a Federal not apply. Nor would critical habitat rail construction at the Poinsettia Lane mandate is a provision in legislation, shift the costs of the large entitlement Train Station (Unit 4) is $28,000; and no statute, or regulation that would impose programs listed above onto State additional economic impact on lands an enforceable duty upon State, local, governments. owned by the Sweetwater Union High Tribal governments, or the private sector (b) We do not believe that this rule School District (Unit 5) because these and includes both ‘‘Federal will significantly or uniquely affect lands have already been conserved as an intergovernmental mandates’’ and small governments because it will not offsetting measure for the development ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 of the Otay Mesa High School. Based on These terms are defined in 2 U.S.C. million or greater in any year, that is, it this data from the proposed rule, and 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ the additional exclusions of units made mandate’’ includes a regulation that under the Unfunded Mandates Reform in this final rulemaking, we have ‘‘would impose an enforceable duty Act. The designation of critical habitat determined that this designation would upon State, local, or tribal governments’’ imposes no obligations on State or local not affect a substantial number of small with two exceptions. It excludes ‘‘a governments. As such, Small land development companies. Further, condition of federal assistance.’’ It also Government Agency Plan is not we have determined that this excludes ‘‘a duty arising from required. participation in a voluntary Federal designation would also not result in a Federalism significant effect to the annual sales of program,’’ unless the regulation ‘‘relates those small businesses impacted by this to a then-existing Federal program In accordance with Executive Order designation. As such, we are certifying under which $500,000,000 or more is 13132, the rule does not have significant that this designation of critical habitat provided annually to State, local, and Federalism effects. A Federalism would not result in a significant tribal governments under entitlement assessment is not required. In keeping economic impact on a substantial authority,’’ if the provision would with the Department of the Interior and number of small entities. ‘‘increase the stringency of conditions of Department of Commerce policy, we assistance’’ or ‘‘place caps upon, or requested information from, and Small Business Regulatory Enforcement otherwise decrease, the Federal coordinated development of, this final Fairness Act (5 U.S.C. 801 et seq.) Government’s responsibility to provide critical habitat designation with Under the Small Business Regulatory funding’’ and the State, local, or Tribal appropriate State resource agencies in Enforcement Fairness Act, this rule is governments ‘‘lack authority’’ to adjust California. The designation of critical not a major rule. Our detailed accordingly. (At the time of enactment, habitat in areas currently occupied by assessment of the economic effects of these entitlement programs were: the Riverside fairy shrimp imposes no this designation is described in the Medicaid; Aid to Families with additional restrictions to those currently economic analysis. Based on the effects Dependent Children (AFDC) work in place and, therefore, has little identified in the economic analysis, we programs; Child Nutrition; Food incremental impact on State and local believe that this rule will not have an Stamps; Social Services Block Grants; governments and their activities. The annual effect on the economy of $100 Vocational Rehabilitation State Grants; designation may have some benefit to million or more, will not cause a major Foster Care, Adoption Assistance, and these governments in that the areas increase in costs or prices for Independent Living; Family Support essential to the conservation of the consumers, and will not have significant Welfare Services; and Child Support species are more clearly defined, and adverse effects on competition, Enforcement.) ‘‘Federal private sector the primary constituent elements of the employment, investment, productivity, mandate’’ includes a regulation that habitat necessary to the survival of the innovation, or the ability of U.S.-based ‘‘would impose an enforceable duty species are specifically identified. While enterprises to compete with foreign- upon the private sector, except (i) a making this definition and based enterprises. Refer to the final condition of Federal assistance; or (ii) a identification does not alter where and economic analysis for a discussion of duty arising from participation in a what federally sponsored activities may the effects of this determination. voluntary Federal program.’’ occur, it may assist these local The designation of critical habitat governments in long-range planning Executive Order 13211 does not impose a legally binding duty (rather than waiting for case-by-case On May 18, 2001, the President issued on non-Federal government entities or section 7 consultations to occur). Executive Order 13211 on regulations private parties. Under the Act, the only that significantly affect energy supply, regulatory effect is that Federal agencies Civil Justice Reform distribution, and use. Executive Order must ensure that their actions do not In accordance with Executive Order 13211 requires agencies to prepare destroy or adversely modify critical 12988, the Office of the Solicitor has Statements of Energy Effects when habitat under section 7. While non- determined that the rule does not

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19199

unduly burden the judicial system and shrimp (Eriksen 1988). After reviewing Code of Federal Regulations, as set forth meets the requirements of sections 3(a) aerial photographs of the area and below: and 3(b)(2) of the Order. We are meeting with the Tribe’s Environmental designating critical habitat in Coordinator in March 2004, we were PART 17—[AMENDED] accordance with the provisions of the unable to confirm these occurrences. It I 1. The authority citation for part 17 Endangered Species Act. This final rule is possible that additional survey work continues to read as follows: uses standard property descriptions and would allow a better documentation of identifies the primary constituent the possible species occurrence. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. elements within the designated areas to 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– However, at this time we have 625, 100 Stat. 3500; unless otherwise noted. assist the public in understanding the insufficient information on the habitat needs of the Riverside fairy occurrence of the Riverside fairy shrimp I 2. In § 17.95(h), revise the entry for the shrimp. on Tribal lands of the Pechanga Band of Riverside fairy shrimp (Streptocephalus woottoni) under ‘‘CRUSTACEANS’’ to Paperwork Reduction Act of 1995 (44 Luisen˜ o Indians. Therefore, critical read as follows: U.S.C. 3501 et seq.) habitat for the Riverside fairy shrimp has not been designated on Tribal lands. This rule does not contain any new § 17.95 Critical habitat—fish and wildlife. collections of information that require References Cited * * * * * approval by OMB under the Paperwork A complete list of all references cited (h) Crustaceans. Reduction Act. This rule will not in this rulemaking is available upon * * * * * impose recordkeeping or reporting request from the Carlsbad Fish and requirements on State or local Riverside Fairy Shrimp Wildlife Office, U.S. Fish and Wildlife (Streptocephalus woottoni) governments, individuals, businesses, or Service, 6010 Hidden Valley Road, organizations. An agency may not Carlsbad, California 92009 (telephone (1) Critical habitat units for Ventura, conduct or sponsor, and a person is not 760/431–9440). Orange, and San Diego Counties, required to respond to, a collection of California, are depicted on the maps information unless it displays a Author(s) that follow. (2) Critical habitat consists of vernal currently valid OMB control number. The primary author of this package is pools, vernal pool complexes, and the Carlsbad Fish and Wildlife Office, National Environmental Policy Act ephemeral ponds and depressions and U.S. Fish and Wildlife Service, 6010 (NEPA) their associated surrounding upslope Hidden Valley Road, Carlsbad, It is our position that, outside the areas with the soil and hydrologic California 92009. Tenth Circuit, we do not need to regimes indicated on the maps below prepare environmental analyses as List of Subjects in 50 CFR Part 17 and in the legal descriptions. defined by the NEPA in connection with (3) Within these areas, the primary Endangered and threatened species, designating critical habitat under the constituent elements for the Riverside Exports, Imports, Reporting and Endangered Species Act of 1973, as fairy shrimp are those habitat recordkeeping requirements, amended. We published a notice components that are essential for the Transportation. outlining our reasons for this primary biological needs of foraging, determination in the Federal Register A Note About Critical Habitat Unit sheltering, reproduction, and dispersal. on October 25, 1983 (48 FR 49244). This Numbering The primary constituent elements are assertion was upheld in the courts of the found in those areas that support vernal A large number of units in the Ninth Circuit (Douglas County v. pools or other ephemeral ponds and proposed rule have been exempted or Babbitt, 48 F.3d 1495 (9th Cir. Ore. depressions, and their associated excluded from designation in the final 1995), cert. denied 116 S. Ct. 698 (1996). watersheds. The primary constituent rule. In order to understand the The final environmental assessment is elements determined essential to the relationship between sub-unit and unit available upon request from the conservation of Riverside fairy shrimp numbers in the proposed rule (which Carlsbad Fish and Wildlife Office, U.S. are: have been retained in the preamble of Fish and Wildlife Service, 6010 Hidden (i) Small to large pools or pool this document), and sub-unit and unit Valley Road, Carlsbad, California 92009 complexes that have the appropriate numbers in the final designation (i.e., in (telephone 760/431–9440), or on our size and volume, local climate, the Regulations Promulgation portion of Web site at http://carlsbad.fws.gov. topography, water temperature, water this document), we provide the chemistry, soil conditions, and length of Government-to-Government following crosswalk: Proposed Sub- time of inundation with water necessary Relationship With Tribes units 1A and 1B in the proposed rule for Riverside fairy shrimp incubation In accordance with the President’s and preamble remain as Sub-units 1A and reproduction, as well as dry periods memorandum of April 29, 1994, and 1B in the Regulations Promulgation necessary to provide the conditions to ‘‘Government-to-Government Relations section. Sub-unit 2D in the proposed maintain a dormant and viable cyst with Native American Tribal rule and preamble is Unit 2 in the bank. Specifically, the conditions Governments’’ (59 FR 22951), Executive Regulations Promulgation section. Sub- necessary to allow for successful Order 13175, and the Department of unit 4C in the proposed rule and reproduction of Riverside fairy shrimp Interior’s manual at 512 DM 2, we preamble is Unit 3 in the Regulations fall within the following ranges: readily acknowledge our responsibility Promulgation section. Sub-unit 5A in (A) Moderate to deep depths ranging to communicate meaningfully with the proposed rule and preamble is Unit from 10 in (25 cm) to 5–10 ft (1.5–3 m); recognized Federal Tribes on a 4 in the Regulations Promulgation (B) Pool or pond inundation lasting government-to-government basis. section. for a minimum of 2 months to 5–8 Historical records indicate that there Regulation Promulgation months or more, i.e., a sufficient wet were two vernal pools on or near Tribal period in winter and spring months to lands of the Pechanga Band of Luisen˜ o I Accordingly, amend part 17, allow the Riverside fairy shrimp to Indians that contained Riverside fairy subchapter B of chapter I, title 50 of the hatch, mature, and reproduce, followed

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 19200 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

by a dry period prior to the next winter pollinators of the vernal pool plants that (v) The matrix of vernal pools/ and spring rains; also form an integral part of the vernal ephemeral wetlands, the immediate (1) Water temperatures within the pool’s ecology. upslope areas, upland habitats, and range of 41–77 degrees F (5–25 degrees (iii) The size of the immediately underlying soil substrates form C); surrounding upslope area varies greatly hydrological and ecologically functional (2) Water chemistry with low total depending on a number of factors and units. These features and the lands that dissolved solids and alkalinity (means has been assessed for each sub-unit. they represent are essential to the of 77 and 65 parts per million, Factors that affect the size of the conservation of the Riverside fairy respectively); and surrounding upslope area include shrimp. All lands identified as essential (3) Water pH within a range of 6.4– surface and sub-surface hydrology, the and proposed as critical habitat contain 7.1. topography of the area surrounding the one or more of the primary constituent (ii) The immediately surrounding pool or pools, the vegetative coverage, elements for the Riverside fairy shrimp. upslope area that provides the pool or and the soil and bedrock substrate in the (4) Critical habitat does not include pool complex with the following: man-made structures existing on the (A) Hydrologic flows, both above- area. The upslope areas designated vary effective date of this rule and not ground (sheet flow) and sub-surface from a few acres to over 100 ac (40 ha) containing one or more of the primary through soil or sediments, to fill the in size. constituent elements, such as buildings, pools and maintain the seasonal cycle of (iv) Soils in the summit, rim and aqueducts, airports, and roads, and the ponding and drying, at the appropriate basin geomorphic positions with a clay land on which such structures are rates; component and/or an impermeable (B) A source of detritus and nutrients; surface or subsurface layer that provide located. (C) Sources of soil, ion and mineral a unique assemblage of nutrient (5) Data layers defining map units transport to the pool or pool complex to availability and redox conditions known were created on a base of USGS 7.5′ provide and maintain the appropriate to support vernal pool habitat. The quadrangles, and critical habitat units water chemistry conditions and biogeochemical environment strongly were then mapped using Universal impermeability of the pool basin(s); and influences hydrologic properties and Transverse Mercator (UTM) coordinates. (D) Habitat for animals that act as plays a critical role in nutrient cycling (6) Index map of critical habitat units dispersers of cysts and vernal pool plant in vernal pool ecosystems (Hobson and for the Riverside fairy shrimp follows: seeds or pollen, as well as habitat for the Dahlgren 1998). BILLING CODE 4310–55–P

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4725 E:\FR\FM\12APR2.SGM 12APR2 ER12AP05.000 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19201

(7) Unit 1: Ventura County, California. (ii) Sub-unit 1B: south Tierra Rejada 331000, 3791300; 330600, 3791300; (i) Sub-unit 1A: City of Moorpark Valley. Lands bounded by the following 330600, 3791900; 330500, 3791900; Greenbelt, north Tierra Rejada Valley UTM NAD27 coordinates (E, N): 330500, 3792000; 330600, 3792000; from USGS 1:24,000 quadrangle map 330900, 3792500; 331100, 3792500; 330600, 3792100; 330700, 3792100; Simi Valley West. Lands bounded by 331100, 3792300; 331200, 3792300; 330700, 3792300; 330800, 3792300; the following UTM NAD27 coordinates 331200, 3792200; 331300, 3792200; 330800, 3792400; 330900, 3792400; (E, N): 329000, 3793300; 329400, 331300, 3792100; 331400, 3792100; 330900, 3792500. 3793300; 329400, 3792900; 329300, 331400, 3791400; 331300, 3791400; (iii) Note: Map of critical habitat Sub- 3792900; 329300, 3792800; 329000, 331300, 3791500; 331100, 3791500; units 1A and 1B for the Riverside fairy 3792800; 329000, 3793300. 331100, 3791400; 331000, 3791400; shrimp follows:

(8) Unit 2: Orange County, California. following UTM NAD27 coordinates (E, 443500, 3725100; 443400, 3725100; From USGS 1:24,000 quadrangle map N): 443400, 3725300; 443900, 3725300; 443400, 3725300. Santiago Peak. 443900, 3724900; 443800, 3724900; (ii) Note: Map of critical habitat Unit 443800, 3724800; 443600, 3724800; (i) Unit 2: Land within O’Neill 2 for the Riverside fairy shrimp follows: Regional Park. Lands bounded by the 443600, 3724900; 443500, 3724900;

VerDate jul<14>2003 17:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 ER12AP05.001 19202 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

(9) Unit 3: North San Diego County, 470300; thence south to UTM NAD27 NSDCT boundary; thence northwest San Diego County, California. From coordinates 470300, 3663300; thence following the NSDCT boundary to UTM USGS 1:24,000 quadrangle map east to the NSDCT boundary at UTM NAD27 x-coordinate 470400; thence Encinitas. NAD27 y-coordinate 3663300; thence north along UTM NAD27 x-coordinate (i) Unit 3: Land near Poinsettia Lane southeast following the NSDCT 470400 to UTM NAD27 coordinates Commuter Station, Carlsbad Lands boundary lands to UTM NAD 27 x- 470400, 3662900; thence west to NSDCT bounded by the following UTM NAD27 coordinate 470400; thence south lands at UTM NAD 27 y-coordinate coordinates (E, N): 470100, 3663600; following UTM NAD27 x-coordinate 3662900; thence northwest following thence east to the North San Diego 470400 to the NSDCT boundary; thence the NSDCT boundary returning to UTM County Transit (NSDCT) boundary at west and south following the NSDCT NAD27 coordinates 470100, 3663600. UTM NAD27 y-coordinate 3663600; boundary to UTM NAD27 y-coordinate thence south following the NSDCT 3662400; thence west following UTM (ii) Note: Map of critical habitat Unit boundary to UTM NAD27 x-coordinate NAD27 y-coordinate 3662400 to the 3 for the Riverside fairy shrimp follows:

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 ER12AP05.002 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations 19203

(10) Map Unit 4: South San Diego NAD27 coordinates (E, N): 498000, UTM NAD27 x-coordinate 498000; County, San Diego, California. From 3602800; 498100, 3602800; thence south thence north following UTM NAD27 x- USGS 1:24,000 quadrangle map to the Sweetwater Union High School coordinate 498000 returning to UTM Imperial Beach. District (SUHSD) boundary at UTM NAD27 coordinates 498000, 3602800. (i) Unit 4: Sweetwater Union High NAD27 x-coordinate 498100; thence (ii) Note: Map of critical habitat Unit School District lands on Otay Mesa. west following the SUHSD boundary to Lands bounded by the following UTM 4 for the Riverside fairy shrimp follows:

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 ER12AP05.003 19204 Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Rules and Regulations

* * * * * Dated: March 31, 2005. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 05–6825 Filed 4–11–05; 8:45 am] BILLING CODE 4310–55–C

VerDate jul<14>2003 16:53 Apr 11, 2005 Jkt 205001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2 ER12AP05.004