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Designation of Critical Habitat for the Riverside Fairy Shrimp (Streptocephalus Woottoni); Final Rule

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Designation of Critical Habitat for the Riverside Fairy Shrimp (Streptocephalus Woottoni); Final Rule 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 Habitat for the Riverside Fairy Shrimp (Streptocephalus 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 (Streptocephalus woottoni) 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 Endangered Species 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 animal 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 crustacean 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 Anostraca, 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
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