[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Rules and Regulations]
[Pages 72069-72140]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28250]
[[Page 72069]]
Vol. 77
Tuesday,
No. 233
December 4, 2012
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for the Riverside Fairy Shrimp; Final Rule
Federal Register / Vol. 77 , No. 233 / Tuesday, December 4, 2012 /
Rules and Regulations
[[Page 72070]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2011-0013; 4500030114]
RIN 1018-AX15
Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for the Riverside Fairy Shrimp
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, revise the critical
habitat for the Riverside fairy shrimp under the Endangered Species Act
of 1973, as amended. The previous critical habitat consisted of land in
four units in Ventura, Orange, and San Diego Counties, California. We
now designate land in three units in Ventura, Orange, and San Diego
Counties, California, for a total of approximately 1,724 ac (698 ha),
which represents critical habitat for this species. Areas in Riverside
County are excluded from critical habitat in this final revised rule.
DATES: This rule becomes effective on January 3, 2013.
ADDRESSES: This final rule and the associated final economic analysis
are available on the Internet at http://www.regulations.gov. Comments
and materials received, as well as supporting documentation used in
preparing this final rule, are available for public inspection, by
appointment during normal business hours, at the U.S. Fish and Wildlife
Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road,
Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-
431-5901.
The coordinates or plot points or both from which the maps for this
critical habitat designation were generated are included in the
administrative record and are available on our Internet site (http://www.fws.gov/carlsbad/), at http://www.regulations.gov at Docket No.
FWS-R8-ES-2011-0013, and at the Carlsbad Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting
information developed for this critical habitat designation is
available at the Fish and Wildlife Service Web site and Field Office
set out above, and may also be on http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-
9440; facsimile 760-431-5901. If you use a telecommunications device
for the deaf (TDD), call the Federal Information Relay Service (FIRS)
at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule and the basis for our action. Under
the Endangered Species Act (Act), any species that is determined to be
endangered or threatened shall, to the maximum extent prudent and
determinable, have habitat designated that is considered to be critical
habitat. Designations and revisions of critical habitat can only be
completed by issuing a rule. We listed Riverside fairy shrimp as an
endangered species on August 3, 1993 (58 FR 41384). We published our
first rule designating critical habitat on May 30, 2001 (66 FR 29384).
In response to a settlement agreement, we revised critical habitat in a
final rule published April 12, 2005 (70 FR 19154). That rule was also
challenged in court, and based on the provisions of the new settlement
agreement, we are publishing this final revised critical habitat rule.
The critical habitat areas we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for Riverside fairy shrimp. We are
designating:
Approximately 466 acres (ac) (189 hectares (ha)), in 2
subunits, as critical habitat in Ventura County.
Approximately 396 ac (160 ha), in 4 subunits, as critical
habitat in Orange County.
Approximately 862 ac (348 ha), in 7 subunits, as critical
habitat in San Diego County.
In total, we are designating approximately 1,724 ac (698 ha) as
critical habitat for this species. We are also:
Exempting 1,988 ac (804 ha) from critical habitat
designation in Orange County and San Diego County.
Excluding 1,259 ac (510 ha) from critical habitat
designation in Orange County, Riverside County, and San Diego County.
We have prepared an economic analysis of the designation of
critical habitat. We announced the availability of the draft economic
analysis (DEA) on March 1, 2012 (77 FR 12543), allowing the public to
provide comments on our analysis. We have incorporated the comments and
completed the final economic analysis (FEA).
Peer reviewer and public comment. We sought comments from four
independent specialists to ensure that our designation is based on
scientifically sound data and analysis. We also considered all comments
and information we received during the public comment periods.
Background
It is our intent to discuss in this final rule only those topics
directly relevant to the revision of critical habitat for the Riverside
fairy shrimp under the Act (16 U.S.C. 1531 et seq.). For more
information on the taxonomy, biology, and ecology of Riverside fairy
shrimp, please refer to the final listing rule published in the Federal
Register on August 3, 1993 (58 FR 41384); the first and second rules
proposing critical habitat published in the Federal Register on
September 21, 2000 (65 FR 57136), and April 27, 2004 (69 FR 23024),
respectively; and the subsequent final critical habitat designations
published in the Federal Register on May 30, 2001 (66 FR 29384), and
April 12, 2005 (70 FR 19154). Additionally, more species information
can be found in the 1998 Recovery Plan for the Vernal Pools of Southern
California (1998 Recovery Plan) finalized on September 3, 1998 (Service
1998a, pp. 1-113), in the City of San Diego's 2002-2003 Vernal Pool
Inventory (City of San Diego 2004, pp. 1-125), and in the Riverside
fairy shrimp 5-year review (Service 2008, pp. 1-57). For new
information on Riverside fairy shrimp genetics across the species'
range and on the status and distribution of Riverside fairy shrimp, see
the most recent proposed critical habitat rule published on June 1,
2011 (76 FR 31686). Information on the associated draft economic
analysis (DEA) for the proposed rule to designate revised critical
habitat was published in the Federal Register on March 1, 2012 (77 FR
12543).
Previous Federal Actions
The Riverside fairy shrimp was listed as an endangered species on
August 3, 1993 (58 FR 41384). For a history of Federal actions prior to
2001, please refer to the September 21, 2000, proposed critical habitat
rule (65 FR 57136). On May 30, 2001, we published a final rule
designating critical habitat for the Riverside fairy shrimp (66 FR
29384). On November 6, 2001, the Building Industry Legal Defense
Foundation, Foothill/Eastern Transportation Corridor Agency, National
Association of Home Builders, California Building Industry Association,
and Building Industry Association of San Diego County filed a lawsuit
in the U.S. District Court for the District of Columbia challenging the
[[Page 72071]]
designation of Riverside fairy shrimp critical habitat and alleging
errors in our promulgation of the May 30, 2001, final rule. We
requested a voluntary remand, and on October 30, 2002, critical habitat
for this species was vacated by order of the U.S. District Court for
the District of Columbia, and the Service was ordered to publish a new
final rule with respect to the designation of critical habitat for the
Riverside fairy shrimp (Building Industry Legal Defense Foundation, et
al., v. Gale Norton, Secretary of the Interior, et al., and Center for
Biological Diversity, Inc. and Defenders of Wildlife, Inc. Civil Action
No. 01-2311 (JDB) (U.S. District Court, District of Columbia)).
On April 27, 2004, we again proposed to designate critical habitat
for the Riverside fairy shrimp (69 FR 23024). The final critical
habitat rule was published in the Federal Register on April 12, 2005
(70 FR 19154). On January 14, 2009, the Center for Biological Diversity
filed a complaint in the U.S. District Court for the Southern District
of California challenging our 2005 designation of critical habitat for
Riverside fairy shrimp (Center for Biological Diversity v. U.S. Fish
and Wildlife Service and Dirk Kempthorne, Secretary of the Interior,
Case No. 3:09-CV-0050-MMA-AJB). A settlement agreement was reached with
the plaintiffs (Case No. 3:09-cv-00051-JM-JMA; November 16, 2009) in
which we agreed to submit a proposed revised critical habitat
designation for the Riverside fairy shrimp to the Federal Register by
May 20, 2011, and submit a final revised critical habitat designation
to the Federal Register by November 15, 2012. The proposed revised
critical habitat designation was delivered to the Federal Register on
May 20, 2011, and published on June 1, 2011 (76 FR 31686). This rule
complies with the conditions of the settlement agreement.
Summary of Changes From Proposed Rule
(1) We added updated information on the general impacts of climate
change and its potential impacts to Riverside fairy shrimp in the
Climate Change section of this document. We also performed a climate
change analysis using software available through Climate Wizard, a web-
based climate change prediction program jointly produced by The Nature
Conservancy, the University of Washington, and University of Southern
Mississippi. We incorporated the results of our analysis into the
Climate Change section of this rule.
(2) We added a discussion to the Criteria Used To Identify Critical
Habitat section to supplement our discussion in the proposed rule (76
FR 31686; June 1, 2011) and the March 1, 2012, publication that made
available our DEA of the proposed rule (77 FR 12543) and to clarify the
rationale for designation of critical habitat units. At the time of
listing, we did not have surveys confirming the presence of Riverside
fairy shrimp in each critical habitat unit and subunit. However, we
confirm that the vernal pool complexes within each unit and subunit
were in existence at the time of listing (with the exception of Subunit
3g (Johnson Ranch Created Pool)), and the units and subunits in which
the vernal pool complexes are found are within the geographical area
occupied by the species at the time of listing and contain the physical
or biological features essential to the conservation of the species.
Therefore, we consider Unit 1 (1a, 1b), Unit 2 (2c, 2dA, 2dB, 2e, 2f,
2g, 2h, 2i), Unit 3 (3c, 3d, 3e, 3f, 3h), Unit 4 (4c), and Unit 5 (5a,
5b, 5c, 5d, 5e, 5f, 5g, 5h) to meet the definition of critical habitat
under section 3(5)(A)(i) of the Act (i.e., to be areas within the
geographical area occupied by the Riverside fairy shrimp at the time of
listing) for the reasons explained in the March 1, 2012, publication
(77 FR 12543) despite the absence of proof of occupancy at the time of
listing.
Regardless of the occupancy status (documented or presumed; pre- or
post-listing) of each unit, in Table 1 of the March 1, 2012,
publication (77 FR 12543), we provided our justification for
determining why these areas are essential for the conservation of the
species under section 3(5)(A)(ii) of the Act. For those units for which
we lack data confirming occupancy at the time of listing, we are
alternatively designating them under section 3(5)(A)(ii) because they
are essential for the conservation of Riverside fairy shrimp and a
designation limited to areas confirmed to be occupied at the time of
listing would be inadequate to ensure the conservation of the species.
We provide further explanation of our method and rationale for defining
critical habitat boundaries in the Criteria Used To Identify Critical
Habitat section below.
(3) Based on a public comment, we updated the name of the vernal
pool complex at Marine Corps Air Station (MCAS) Miramar from ``AA 1-7,
9-13 East Miramar (Pool 10) (AA1 East)'' to its recommended name ``East
Miramar (AA1 South + Group) (Pool 4786; previously Pool 12).''
(4) In the proposed revised critical habitat rule, Table 4
incorrectly identified 6 ac (3 ha) of land in Subunit 4c as State-
owned. The land is actually owned by the North [San Diego] County
Transit District. Table 3 in this final revised rule has been updated
to show the correct land ownership.
(5) We are now excluding lands owned by the Department of Homeland
Security (DHS) in Subunit 5b (29 ac (12 ha)) and a portion of the lands
in Subunit 5h (11 ac (4 ha)) from this final critical habitat
designation based on national security. This exclusion is consistent
with the exclusion of DHS lands in our previous final critical habitat
rule published April 12, 2005 (70 FR 19154), due to national security
concerns related to the operation and maintenance of the Border
Infrastructure System (BIS).
In our proposed revised critical habitat rule published June 1,
2011 (76 FR 31686), we sought comments on whether or not these Federal
lands should be considered for exclusion under section 4(b)(2) of the
Act for national security reasons, whether such exclusion is or is not
appropriate, and whether the benefits of excluding any specific area
outweigh the benefits of including that area as critical habitat and
why. On October 16, 2012, DHS commented that designation of these lands
could interfere with U.S. Customs and Border Patrol Protection
activities along the border and urged exclusion of the lands for
national security reasons. Based on the national security importance of
DHS maintaining access to these border areas, the Secretary is
exercising his discretion to exclude lands owned by DHS in this final
critical habitat rule. Details on our rationale can be found in the
``Exclusions Based on National Security Impacts'' section below.
(6) In the June 1, 2011, proposed revised rule, we stated that we
were considering excluding lands owned by or under the jurisdiction of
the Orange County Central-Coastal Natural Community Conservation Plan/
Habitat Conservation Plan (NCCP/HCP), the Orange County Southern
Subregion HCP, the Western Riverside County MSHCP, City of Carlsbad
Habitat Management Plan (HMP) under the San Diego Multiple Habitat
Conservation Program (MHCP), and County of San Diego Subarea Plan under
the MSCP. We have now made a final determination that the benefits of
exclusion outweigh the benefits of inclusion of lands covered by these
plans. Therefore, the Secretary is exercising his discretion to exclude
approximately 89 ac (36 ha) covered by the Orange County Central-
Coastal NCCP/HCP, 233 ac (94 ha) covered by the Orange County Southern
Subregion
[[Page 72072]]
HCP, 865 ac (350 ha) covered by the Western Riverside County MSHCP, 9
ac (4 ha) covered by the City of Carlsbad HMP, and 23 ha (9 ac) covered
by the County of San Diego Subarea Plan under the MSCP. In all, the
Secretary is exercising his discretion to exclude a total of 1,259 ac
(510 ha). For a complete discussion of the benefits of inclusion and
exclusion, see the Exclusions section below.
Table 1--Subunit Occupancy Status and Justifications for Determining Specific Areas Essential for the
Conservation of Riverside Fairy Shrimp 1
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Current status Act section Act section
Unit/subunit \2\ Service status at \4\; year of 3(5)(A)(i) 3(5)(A)(ii)
listing \3\ first record \5\ justification \6\ justification \7\
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Ventura County
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1a: Tierra Rejada Preserve..... Presumed occupied Occupied; 1998 Primary Necessary to stabilize
(CNDDB, EO 9). Constituent Riverside fairy
Elements (PCEs) shrimp populations
1-3; may require per Recovery Plan
management. (RP); possesses
unique soils and
habitat type;
disjunct population
maintains genetic
diversity and
population stability
at species'
northernmost
distribution.
1b: South of Tierra Rejada Presumed occupied Presumed PCEs 1-3; may Provides appropriate
Valley. occupied; no require inundation ponding;
protocol surveys management. proximity and
have been connectivity to 1a at
completed. northern
distribution;
protects existing
vernal pool
composition;
ecological linkage.
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Orange County
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2c: MCAS El Toro............... Confirmed Occupied; 1993 PCEs 1-3; may ......................
occupied. (Service 1993, require
MCAS El Toro management.
survey).
2dA: Saddleback Meadow......... Presumed occupied Occupied; 1997 PCEs 1-3; may Necessary to stabilize
(HELIX 2009 require populations per RP;
Report 10537). geographical,
elevational, and
ecological
distribution;
maintains current
population structure;
provides
connectivity; large
continuous block;
ecological linkage.
2dB: O'Neil Regional Park (near Presumed occupied Occupied; 2001 PCEs 1-3; may Maintains current
Trabuco Canyon). (CNDDB, EO 17). require geographical,
management. elevational, and
ecological
distribution;
maintains current
population structure;
provides
connectivity.
2e: O'Neil Regional Park (near Presumed occupied Occupied; 1997 PCEs 1-3; may Maintains current
Ca[ntilde]ada Gobernadora). (CNDDB, EO 4). require geographical,
management. elevational, and
ecological
distribution;
maintains current
population structure;
provides
connectivity.
2f: Chiquita Ridge............. Presumed occupied Occupied; 1997 PCEs 1-3; may Necessary to stabilize
(CNDDB, EO 5). require populations per RP;
management. maintains current
geographical,
elevational, and
ecological
distribution;
maintains current
population structure;
provides
connectivity.
2g: Radio Tower Road........... Presumed occupied Occupied; 2001 PCEs 1-3; may Maintains current
(CNDDB, EO 15, require geographical,
16). management. elevational, and
ecological
distribution;
maintains current
population structure;
provides
connectivity.
2h: San Onofre State Beach, Presumed occupied Occupied; 1997 PCEs 1-3; may Unique soils and
State Park leased land. (CNDDB, EO 6). require wetland type;
management. maintains habitat
function, genetic
diversity, and
species viability;
ecological linkage.
2i: SCE Viejo Conservation Bank Presumed occupied Occupied; 1998 PCEs 1-3; may Maintains current
(CNDDB, EO 10). require geographical,
management. elevational, and
ecological
distribution;
maintains current
population structure;
provides
connectivity.
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Riverside County
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3c: Australia Pool............. Presumed occupied Occupied; 1998 PCEs 1-3; may Maintains habitat
(CNDDB, EO 11). require function, genetic
management. diversity, and
species viability;
ecological linkage.
3d: Scott Road Pool............ Presumed occupied Occupied; 2002 PCEs 1-3; may Maintains current
(CNDDB, EO 24). require geographical,
management. elevational, and
ecological
distribution;
disjunct habitat.
3e: Schleuniger Pool........... Presumed occupied Occupied; 1998 PCEs 1-3; may Maintains current
(CNDDB, EO 8). require geographical,
management. elevational, and
ecological
distribution.
3f: Skunk Hollow and Field Pool Confirmed Skunk Hollow: PCEs 1-3; may ......................
occupied. Occupied; 1988 require
(CNDDB, EO 3). management.
Field Pool:
Occupied; 1988
(Service, GIS ID
9).
[[Page 72073]]
3g: Johnson Ranch Created Pool. Created (in 2002) Occupied; 2003 PCEs 1-3; may Provides connectivity
(Service, GIS ID require among pools;
13). management. maintains current
population structure.
3h: Santa Rosa Plateau-Mesa de Presumed occupied Occupied; 2009 PCEs 1-3; may Necessary to stabilize
Colorado. (Selheim and require populations per RP;
Searcy 2010, management. unique soils and
Report habitat type; large
11005). continuous blocks of
occupied habitat;
ecological linkage.
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San Diego County
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4c: Poinsettia Lane Commuter Presumed occupied Occupied; 1998 PCEs 1-3; may Necessary to stabilize
Train Station (JJ2). (CNDDB, EO 7). require populations per RP;
management. unique soils and
habitat type;
disjunct habitat;
provides protection
for existing vernal
pool composition and
structure.
5a: J33 (Sweetwater High Presumed occupied Occupied; 2003 PCEs 1-3; may Maintains current
School). (City of San require population structure;
Diego 2004). management. genetic diversity.
5b: J15 (Arnie's Point)........ Presumed occupied Occupied; 2006 PCEs 1-3; may Necessary to stabilize
(ERS, Report require populations per RP;
8639). management. maintains current
population structure;
ecological linkage.
5c: East Otay Mesa............. Presumed occupied Occupied; 2000 PCEs 1-3; may Unique soils and
GIS ID 4; 2001 require habitat type;
(EDAW 2001) management. maintains current
(CNDDB, EO 25). geographical,
elevational, and
ecological
distribution;
disjunct habitat;
protects existing
vernal pool
composition.
5d: J29-31..................... Confirmed Occupied; 1986 PCEs 1-3; may ......................
occupied. (Bauder 1986a); require
(Simovich and management.
Fugate 1992)
(CNDDB, EO 2).
5e: J2 N, J4, J5............... Presumed occupied Occupied; 2003 PCEs 1-3; may Necessary to stabilize
(City of San require populations per RP;
Diego, 2004). management. provides connectivity
among pools;
maintains current
population structure.
5f: J2 S and J2 W.............. Presumed occupied Occupied; 2001 PCEs 1-3; may Necessary to stabilize
(CNDDB, EO 18). require populations per RP;
management. provides connectivity
among pools;
maintains current
population structure.
5g: J14........................ Presumed occupied Occupied; 2002 PCEs 1-3; may Necessary to stabilize
(HELIX 2002, require populations per RP;
Report 2386). among pools;
maintains current
population structure.
5h: J11, J12, J16-18........... Presumed occupied Occupied; 2002 PCEs 1-3; may Necessary to stabilize
(City of San require populations per RP;
Diego 2004). management. provides connectivity
among pools;
maintains current
population structure.
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\1\ As discussed above, we consider the areas for which we lack positive survey results to be ``areas within the
geographical area occupied by the species'' under section 3(5)(A)(i) of the Act as explained in the March 1,
2012, publication at 77 FR 12543, pp. 12545-49. Table 1 summarizes the bases for that conclusion. However, we
are alternatively designating areas that lack positive occupancy data at the time of listing under section
3(5)(A)(ii) of the Act because these areas are essential to the conservation of the species and a designation
limited to known occupied areas would be inadequate to ensure the conservation of the species.
\2\ Unit/Subunit name as it appears in Table 1 of proposed revised rule (76 FR 31698). For additional
information, see the Recovery Plan (RP) for Vernal Pools of Southern California (Service 1998a, 113+ pp.).
\3\ Service status: ``Confirmed occupied'' indicates that there is a record of occupancy at or before the time
of listing; ``Presumed occupied'' indicates no documentation of occupancy for the specific areas (subunits)
prior to 1993, but the areas are presumed to have been occupied at the time of listing based on best available
science and post-1993 positive survey results in the possession of the Service. ``Created'' refers to a vernal
pool enhancement or restoration after the time of listing.
4 5 Current status: ``Occupied'' indicates a positive survey result documenting species occurrence and
``Presumed occupied'' indicates no protocol surveys have been completed. The listed year is the year of first
record followed by source. EO (element occurrence) is the number assigned to that occurrence, as defined and
described according to the California Natural Diversity Data Base (CNDDB 2011). GIS ID is the occurrence
information number for multiple species within jurisdiction of the Carlsbad Fish and Wildlife Office (Service
2011). City of San Diego (2004) is from the ``Vernal pool inventory 2002-2003'' or Contractor, and Report
is the number from a section 10(A)(1)(a) survey report, available in Service files.
\6\ Reasons determined essential to the conservation of the species, as defined according to criteria set forth
in the proposed revised critical habitat rule, this document, and in section 3(5)(A)(i) of the Act, and based
on current information on what we consider as the occupied geographic range of the species at the time of
listing.
\7\ Reasons determined essential for the conservation of the species, as defined according to criteria set forth
in the proposed revised critical habitat rule, this document, in the Recovery Plan (Service 1998a, Appendix F,
pp. F-1-F-5) and in section 3(5)(A)(ii) of the Act. An empty box in the ``Act section 3(5)(A)(ii)
justification'' column indicates this subunit is not proposed under section 3(5)(A)(ii) of the Act, and was
confirmed occupied at the time of listing (see footnote 3).
* PCE: primary constituent element; SCE: Southern California Edison; GIS: geographic information system.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
[[Page 72074]]
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Only where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat would the consultation requirements of section
7(a)(2) of the Act apply.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements (PCEs) such as roost sites, nesting grounds,
seasonal wetlands, water quality, tide, soil type) that are essential
to the conservation of the species. PCEs are those specific elements of
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Climate Change
Our analyses under the Act include consideration of ongoing and
projected changes in climate. The terms ``climate'' and ``climate
change'' are defined by the Intergovernmental Panel on Climate Change
(IPCC). The term ``climate'' refers to the mean and variability of
different types of weather conditions over time, with 30 years being a
typical period for such measurements, although shorter or longer
periods also may be used (IPCC 2007a, p. 78). The term ``climate
change'' thus refers to a change in the mean or variability of one or
more measures of climate (e.g., temperature or precipitation) that
persists for an extended period, typically decades or longer, whether
the change is due to natural variability, human activity, or both (IPCC
2007a, p. 78).
[[Page 72075]]
Scientific measurements spanning several decades demonstrate that
changes in climate are occurring, and that the rate of change has been
faster since the 1950s. Examples include warming of the global climate
system, and substantial increases in precipitation in some regions of
the world and decreases in other regions. (For these and other
examples, see IPCC 2007a, p. 30; and Solomon et al. 2007, pp. 35-54,
82-85). Results of scientific analyses presented by the IPCC show that
most of the observed increase in global average temperature since the
mid-20th century cannot be explained by natural variability in climate,
and is ``very likely'' (defined by the IPCC as 90 percent or higher
probability) due to the observed increase in greenhouse gas (GHG)
concentrations in the atmosphere as a result of human activities,
particularly carbon dioxide emissions from use of fossil fuels (IPCC
2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomon et al. 2007, pp.
21-35). Further confirmation of the role of GHGs comes from analyses by
Huber and Knutti (2011, p. 4), who concluded it is extremely likely
that approximately 75 percent of global warming since 1950 has been
caused by human activities.
Scientists use a variety of climate models, which include
consideration of natural processes and variability, as well as various
scenarios of potential levels and timing of GHG emissions, to evaluate
the causes of changes already observed and to project future changes in
temperature and other climate conditions (for example, Meehl et al.
2007, entire; Ganguly et al. 2009, pp. 11555, 15558; Prinn et al. 2011,
pp. 527, 529). All combinations of models and emissions scenarios yield
very similar projections of increases in the most common measure of
climate change, average global surface temperature (commonly known as
global warming), until about 2030. Although projections of the
magnitude and rate of warming differ after about 2030, the overall
trajectory of all the projections is one of increased global warming
through the end of this century, even for the projections based on
scenarios that assume that GHG emissions will stabilize or decline.
Thus, there is strong scientific support for projections that warming
will continue through the 21st century, and that the magnitude and rate
of change will be influenced substantially by the extent of GHG
emissions (IPCC 2007a, pp. 44-45; Meehl et al. 2007, pp. 760-764 and
797-811; Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011, pp.
527, 529). (See IPCC 2007b, p. 8, for a summary of other global
projections of climate-related changes, such as frequency of heat waves
and changes in precipitation. Also see IPCC 2011(entire) for a summary
of observations and projections of extreme climate events.)
Various changes in climate may have direct or indirect effects on
species. These effects may be positive, neutral, or negative, and they
may change over time, depending on the species and other relevant
considerations, such as interactions of climate with other variables
(for example, habitat fragmentation) (IPCC 2007b, pp. 8-14, 18-19).
Identifying likely effects often involves aspects of climate change
vulnerability analysis. Vulnerability refers to the degree to which a
species (or system) is susceptible to, and unable to cope with, adverse
effects of climate change, including climate variability and extremes.
Vulnerability is a function of the type, magnitude, and rate of climate
change and variation to which a species is exposed, its sensitivity,
and its adaptive capacity (IPCC 2007a, p. 89; see also Glick et al.
2011, pp. 19-22). There is no single method for conducting such
analyses that applies to all situations (Glick et al. 2011, p. 3). We
use our expert judgment and appropriate analytical approaches to weigh
relevant information, including uncertainty, in our consideration of
various aspects of climate change.
Global climate projections are informative, and, in some cases, the
only or the best scientific information available for us to use.
However, projected changes in climate and related impacts can vary
substantially across and within different regions of the world (for
example, IPCC 2007a, pp. 8-12). Therefore, we use ``downscaled''
projections when they are available and have been developed through
appropriate scientific procedures, because such projections provide
higher resolution information that is more relevant to spatial scales
used for analyses of a given species (see Glick et al. 2011, pp. 58-61,
for a discussion of downscaling). The program Climate Wizard provides
regional level projections of future climate patterns, using the World
Climate Research Programme's (WCRP's) Coupled Model Intercomparison
Project phase 3 (CMIP3) multi-model dataset (http://www.climatewizard.org/). These data project an average decrease of
rainfall in coastal Southern California of approximately 5 percent by
the year 2050.
Documentation of climate-related changes that have already occurred
in California (Croke et al. 1998, pp. 2128, 2130; Breshears et al.
2005, p. 15144), and future drought predictions for California (for
example, Field et al. 1999, pp. 8-10; Lenihen et al. 2003, p. 1667;
Hayhoe et al. 2004, p. 12422; Breshears et al. 2005, p. 15144; Seager
et al. 2007, p. 1181) and North America (IPCC 2007a, p. 9), indicate
prolonged drought and other climate-related changes will continue in
the future. While climate change was not discussed in the 1993 listing
rule, drought was noted in the rule as a stochastic (random or
unpredictable) event that could have drastic effects on Riverside fairy
shrimp, given its fragmented and restricted range (58 FR 41384, August
3, 1993, p. 41389; Service 1998a, p. 34). Local climate-related changes
or drought-induced impacts that may negatively affect limited ephemeral
wetland habitats include alterations in seasonal timing, ponding
durations, or patterns of inundation and draw down (the drying period
of a vernal pool). However, the magnitude and frequency of these
factors remain untested.
In southern California, climatic variables affecting vernal pool
habitats are most influenced by distance from the coast, topography,
and elevation (Bauder and McMillian 1998, p. 64). As presence and
persistence of Riverside fairy shrimp appear to be associated with
precipitation patterns, draw-down factors, and other regional climatic
factors, including aridity (Eriksen and Belk 1999, p. 71), the likely
impacts of climate change on ecological processes for Riverside fairy
shrimp are most closely tied to availability and persistence of ponded
water during the winter and spring. Vernal pools are particularly
sensitive to slight increases in evaporation or reductions in rainfall
due to their relative shallowness and seasonality (Field et al. 1999,
p. 19). Based on existing data, weather conditions in which vernal pool
flooding promotes hatching, but pools become dry (or too warm) before
embryos are fully developed, are expected to have the greatest negative
impact on Riverside fairy shrimp resistance and resilience. In the 2008
5-year review, we noted that climate change may potentially cause
changes in vernal pool inundation patterns and pool consistency, and
that drought may decrease or terminate reproductive output if pools
fail to flood or dry up before reproduction is complete (Service 1998a,
p. 34). Long-term or continuing drought conditions may deplete cysts
(eggs) or cyst banks in affected pools due to the lack of new
reproductive cysts.
Additionally, localized climate-related changes may alter the
temporal
[[Page 72076]]
spatial array of occupied habitat patches across the species'
geographic range (in other words, the presence of Riverside fairy
shrimp across and between pool complexes). The ability of Riverside
fairy shrimp to survive is likely to depend in part on their ability to
disperse to pools where conditions are suitable (Bohonak and Jenkins
2003, p. 786) through passive dispersal mechanisms utilizing
reproductive cysts (see the Life History section in the proposed rule,
published June 1, 2011 (76 FR 31686)).
As discussed above, climate projections produced through Climate
Wizard predict a decrease in annual rainfall by 2050. For a species
that depends on long-term filling of vernal pools, any decrease in
rainfall amount could affect the persistence of the species and the
quality of available habitat. However, such projections are not
straightforward, because filling of vernal pools may also depend on
local watershed characteristics not directly related to annual
rainfall. Additionally, the climate projections do not take storm
events into account that could provide for filling of vernal pools.
Therefore, designation of a wide variety of vernal pool habitat types
is necessary to buffer against the projected future impacts of climate
change. We find the designation herein provides for the array of
habitat to provide for the conservation of the species.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the Riverside fairy shrimp from studies of this species' habitat,
ecology, and life history as described in the Critical Habitat section
of the proposed rule to designate critical habitat published in the
Federal Register on June 1, 2011 (76 FR 31686), and in the information
presented below. Additional information can be found in the final
listing rule published in the Federal Register on August 3, 1993 (58 FR
41384), and the 1998 Recovery Plan (Service 1998a). We have determined
that the Riverside fairy shrimp requires the physical or biological
features described below.
Space for Individual and Population Growth and for Normal Behavior
Riverside fairy shrimp require vernal pool habitat to grow and
reproduce. Their life cycle requires periods of inundation as well as
dry periods (Ripley et al. 2004, pp. 221-223). Habitats (ephemeral
wetlands) that provide space for growth and persistence of Riverside
fairy shrimp include areas that generally pond for 2 to 8 months and
dry down for a period during the late spring to summer months. Habitats
include natural and created pools (usually greater than 12 inches (in)
(30 centimeters (cm)) deep) that support these longer inundation
periods; some of these habitats are artificial pools (cattle watering
holes and road embankments) that have been modified or deepened with
berms (Hathaway and Simovich 1996, p. 670). Artificial depressions,
often associated with degraded vernal pool habitat, are capable of
functioning as habitat and can support vernal pool species, including
Riverside fairy shrimp (Moran 1977, p. 155; Service 1998a, p. 22).
Space for the Riverside fairy shrimp's normal growth and behavior
requires an underlying soil series (typically clay soil inclusions with
a subsurface claypan or hardpan component), which forms an impermeable
layer that sustains appropriate inundation periods (water percolates
slowly once filled) and provides necessary physiological requirements
including, but not limited to, appropriate water temperature and water
chemistry (mineral) regimes, a natural prey base, foraging
opportunities, and areas for predator avoidance.
Intact vernal pool hydrology (including the seasonal filling and
drying down of pools) is the essential feature that governs the life
cycle of the Riverside fairy shrimp. An intact hydrological regime
includes seasonal hydration (during most but not all years) followed by
drying out of the substrate to promote overwintering of cysts and
provide conditions for a viable cyst bank for the following season.
Proper timing of precipitation and the associated hydrological and soil
processes in the upland watershed contribute to the provision of space
for growth and normal behavior. Seasonal filling and persistence of the
vernal pool are necessary for cyst hatching and successful reproduction
of Riverside fairy shrimp (see ``Sites for Breeding, Reproduction, and
Rearing (or Development) of Offspring'', below).
To maintain high-quality vernal pool ecosystems, the vernal pool
basin (a specific vernal pool and surrounding landscape) or complex and
its upslope watershed (adjacent vegetation and upland habitat) must be
available and functional (Hanes and Stromberg 1998, p. 38). Adjacent
upland habitat supplies important hydrological inputs to sustain vernal
pool ecosystems. Protection of the upland habitat between vernal pools
within the watershed is essential to maintain the space needs of
Riverside fairy shrimp and to buffer the vernal pools from edge
effects. Having the spatial needs that create pools of adequate depth
also supports the temporal needs of Riverside fairy shrimp, as deep
pools provide for inundation periods of adequate length to support the
entire life-history function and reproductive cycles necessary for
Riverside fairy shrimp.
Vernal pools generally occur in complexes, which are defined as two
or more vernal pools in the context of a larger vernal pool watershed.
The local watershed associated with a vernal pool complex includes all
surfaces in the surrounding area that flow into the vernal pool
complex. Within a vernal pool complex, vernal pools are hydrologically
connected to one another within the local geographical context. These
vernal pool complexes may connect by either surface or subsurface
flowing water. Pools and complexes are dependent on adjacent
geomorphology and microtopography for maintenance of their unique
hydrological conditions (Service 1998a, p. 23). Water may flow over the
surface from one vernal pool to another (over-fill or overbanking),
throughout a network of swales or low-point depressions within a
watershed. Due to an impervious clay or hardpan layer, water can also
flow and collect below ground, such that the soil remains saturated
with water. The result of the movement of water through vernal pool
systems is that pools fill and hold water continuously for a number of
days, weeks, or months following the initial rainfall (Hanes et al.
1990, p. 51). Some hydrological systems have watersheds covering a
large area, which contributes to filling and the hydrological dynamics
of the system,
[[Page 72077]]
while other hydrologic systems have very small watersheds and fill
almost entirely from direct rainfall. It is also possible that
subsurface inflows from surrounding soils within a watershed contribute
to filling some vernal pools (Hanes et al. 1990, p. 53; Hanes and
Stromberg 1998, p. 48).
Impervious subsurface layers of clay or hardpan soils, combined
with flat to gently sloping topography, inhibit rapid infiltration of
rainwater and result in ponded water in vernal pools (Bauder and
McMillian 1998, pp. 57-59). These soils also act as a buffer that
moderates the water chemistry and rate of water loss to evaporation
(Zedler 1987, pp. 17-30). In Ventura County, soil series known to
support Riverside fairy shrimp include, but are not limited to, the
Azule, Calleguas, Cropley, and Linne soil series. In Orange County,
soils series include the Alo, Balcom, Bosanko, Calleguas, Cieneba,
Myford, and Soper soil series. In western Riverside County, vernal pool
habitat known to support Riverside fairy shrimp includes the Altamont,
Auld, Bosanko, Cajalco, Claypit, Murrietta, Porterville, Ramona,
Traver, and Willows soil series. In San Diego County, vernal pool
habitat known to support Riverside fairy shrimp includes the Diablo,
Huerhuero, Linne, Placentia, Olivenhain, Salinas, Stockpen, and Redding
soil series. Soil series data are based on 2008 Soil Survey Data and
are available online at: http://websoilsurvey.nrcs.usda.gov. For
additional information on soils, see the ``Primary Constituent Elements
for Riverside Fairy Shrimp'' section below.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Many fairy shrimp species are filter feeders with a diet that
consists mostly of algae, bacteria, and other microorganisms (Parsick
2002, pp. 37-41, 65-70). In a natural vernal pool setting, these food
items are readily available. Typically, an undisturbed, intact surface
and subsurface soil structure (not permanently altered by anthropogenic
land use activities such as deep, repetitive discing or grading), and
the associated hydrogeomorphic processes within the basin and upland
watershed, are necessary to provide food, water, minerals, and other
physiological needs for Riverside fairy shrimp. Water temperature,
water chemistry, and length of time that vernal pools are inundated are
the important factors in the hatching and temporal appearance of
Riverside fairy shrimp (Gonzalez et al. 1996, pp. 315-316; Hathaway and
Simovich 1996, p. 669). Riverside fairy shrimp hatch and reproduce in
water at temperatures that range generally from 5 to 20 degrees Celsius
(C) (41 to 68 degrees Fahrenheit (F)), and typically do not hatch at
temperatures greater than 25 degrees C (77 degrees F) (Hathaway and
Simovich 1996, pp. 674-675). Riverside fairy shrimp have a wider
thermal tolerance than San Diego fairy shrimp (Branchinecta
sandiegonensis), which allows Riverside fairy shrimp to hatch later in
the season when deeper vernal pools are still filled with water.
Cover or Shelter
Ponding of vernal pool habitat (water) also provides cover and
shelter for Riverside fairy shrimp. During the period when these
habitats are inundated, water plays an important role in providing the
necessary aquatic environment (shelter) for the fairy shrimp to
complete its life-history requirements. Without water to protect them
from desiccation, fairy shrimp would be unable to hatch, grow, mature,
reproduce, and disperse within the vernal pool habitat (Helm 1998, p.
136; Service 1998a, p. 34; Eriksen and Belk 1999, pp. 71, 105).
Additionally, the wet (ponding) period excludes plant and animal
species that are exclusively terrestrial, providing a level of shelter
from predation and competition for the fairy shrimp, which are adapted
to short-lived, ephemeral wetland habitats.
The undisturbed soil bank also provides cover and shelter for fairy
shrimp cysts during the draw-down period of the vernal pool habitat.
The drying phase allows reproductive cysts to overwinter, as they lay
dormant in the soil. Basin soils provide cover and shelter to Riverside
fairy shrimp as the vernal pool dries out (Simovich and Hathaway 1997,
p. 42; Eriksen and Belk 1999, p. 105). By maintaining the population in
a dormant state, reproductive cysts and the undisturbed soil in which
they rest protect Riverside fairy shrimp from predators and competitors
during the vernal pool dry period. Cyst dormancy is an important life-
history adaptation for surviving arid phases, and is important for
synchronizing life cycles in unstable and ephemeral wetland habitats
(Belk and Cole 1975, pp. 209-210). Like the wet period exclusion of
terrestrial plants, the draw-down period excludes species that are
exclusively aquatic (such as fish), providing shelter for specially
adapted Riverside fairy shrimp.
Sites for Breeding, Reproduction, and Rearing (or Development) of
Offspring
Mature Riverside fairy shrimp are typically observed from mid-March
through April (Eng et al. 1990, p. 259). In years with early or late
rainfall, the hatching period may be extended. Riverside fairy shrimp
can reach sexual maturity and begin mating approximately 8 weeks from
the time a vernal pool fills with water (Hathaway and Simovich 1996, p.
673). Length of time to maturity restricts Riverside fairy shrimp to a
small subset of relatively long-lasting vernal pools and ephemeral
wetlands in southern California (Hathaway and Simovich 1996, p. 673).
This maturation rate, which is distinctly longer than for other fairy
shrimp, presumably restricts Riverside fairy shrimp typically to
moderate to deep vernal pools and ephemeral basins (generally ranging
from 12 in (30 cm) to 5 to 10 feet (ft) (1.5 to 3 meters (m)) in depth)
(Hathaway and Simovich 1996, p. 675).
Because the length of time that pools remain filled in vernal pool
ecosystems is highly variable, Riverside fairy shrimp have become
adapted to some degree of unpredictability in their habitat (Eriksen
and Belk 1999, pp. 104-105) and to a system where the requisite
conditions are transitory. Depending on rainfall and environmental
conditions, a vernal pool may fill and recede numerous times. Often,
the pool may evaporate before Riverside fairy shrimp are able to mature
and reproduce (Ripley et al. 2004, pp. 221-223). The females' eggs
begin to develop as soon as they are fertilized and then the
development stops at an early stage (after a few cell divisions) and
the eggs enter diapause (become dormant) as cysts or resting eggs
(Lavens and Sorgeloos 1987, p. 29; Ericksen and Belk 1999, p. 105).
Riverside fairy shrimp cysts are smaller than a tip of a pencil and
contain a dormant fairy shrimp embryo encased in a hard outer shell.
Cysts are generally retained in a brood pouch on the underbelly of the
female until she dies, when both drop to the bottom of the vernal pool
to become part of a cyst bank in the soil. During subsequent filling
events, eggs may emerge from dormancy and hatch, or continue to
diapause. Signals that break diapause include temperature and oxygen
concentrations (Belk and Cole 1975, p. 216; Thorp and Covich 2001, p.
767). Resting eggs of freshwater crustaceans such as fairy shrimp have
been shown to survive drying, heat, freezing, and ingestion by birds
(Fryer 1996, pp. 1-14). Resting stages (dormancy) appear to be an
adaptation
[[Page 72078]]
to temporary habitats and may aid in long-distance dispersal because
they can survive unfavorable conditions during dispersal by birds or
tires of off-highway vehicles (OHVs) (Belk and Cole 1975, pp. 209, 222;
Williams 1985, p. 97).
Researchers have found that only a small proportion of Riverside
fairy shrimp cysts in the cyst bank hatch each time the vernal pool
fills. Therefore, if the pool dries before the species is able to
mature and reproduce, there are still many more cysts left in the soil
that may hatch the next time the pool fills (Simovich and Hathaway
1997, p. 42). Simovich and Hathaway (1997, pp. 40-43) referred to this
as bet-hedging and concluded that it allows fairy shrimp, including
Riverside fairy shrimp, to survive in an unpredictable environment.
Bet-hedging ensures that some cysts will be available for hatching when
the vernal pools hold water for a period long enough for Riverside
fairy shrimp to complete their entire life cycle. Thus, reproductive
output is spread over several seasons for small aquatic crustaceans,
such as fairy shrimp, living in variable environments. Allowing
conditions within the above parameters to occur on a natural basis is
essential for the survival and conservation of Riverside fairy shrimp.
Habitats That Are Protected From Disturbance or Are Representative of
the Historical, Geographical, and Ecological Distributions of the
Species
Pools that support Riverside fairy shrimp are generally found in
flat or moderately sloping areas, primarily in annual, disturbed (such
as grazed or deep disced) grassland and chaparral habitats. The
majority of complexes and pools that currently support Riverside fairy
shrimp have experienced some level of disturbance, primarily from
agriculture, cattle, and OHV activity.
Estimates of the historical distribution of Riverside fairy shrimp
suggest that 90 to 97 percent of vernal pool habitat has been lost in
southern California (Mattoni and Longcore 1997, pp. 71-73, 86-88;
Bauder and McMillan 1998, p. 66; Keeler-Wolf et al. 1998, p. 10;
Service 1998a, p. 45). Consideration should be given to conserve much
of the remaining Riverside fairy shrimp occurrences from further loss
and degradation in a configuration that maintains habitat function and
species viability (Service 1998a, p. 62). Historically, there were
larger complexes of vernal pools, including areas on the Los Angeles
coastal prairie (Mattoni and Longcore 1997, p. 88). In other places,
such as Riverside County, which has not yet been developed and
fragmented to the same extent as Los Angeles County, we believe it is
possible that additional occurrences of the Riverside fairy shrimp may
be documented through more intensive survey efforts and reporting.
The conservation of Riverside fairy shrimp is dependent on several
factors including, but not limited to, maintenance of areas (of
sufficient size and configuration to sustain natural ecosystem
components, functions, and processes) that provide appropriate
inundation and ponding durations, natural hydrological regimes and
appropriate soils, intermixed wetland and upland watershed,
connectivity among pools within geographic proximity to facilitate gene
flow among complexes, and protection of existing vernal pool
composition and structure.
In a few locations, two species of fairy shrimp--San Diego fairy
shrimp and Riverside fairy shrimp--are known to co-occur (Hathaway and
Simovich 1996, p. 670). However, where these species do co-occur, they
rarely have been observed to coexist as adults (Hathaway and Simovich
1996, p. 670). San Diego fairy shrimp are usually found earlier in the
season than Riverside fairy shrimp, due to the Riverside fairy shrimp's
slower rate of development (Hathaway and Simovich 1996, p. 675).
Maturation rates are responsible for the sequential appearance of the
species as adults in pools where they co-occur (Hathaway and Simovich
1996, p. 675). Neither species is found in the nearby desert or
mountain areas, as temperature has been shown to play an important role
in the spatial and temporal appearance of fairy shrimp.
Primary Constituent Elements for Riverside Fairy Shrimp
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of Riverside fairy shrimp in areas occupied at the time of
listing, focusing on the features' primary constituent elements.
Primary constituent elements are those specific elements of the
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to Riverside fairy shrimp are:
(1) Ephemeral wetland habitat consisting of vernal pools and
ephemeral habitat that have wet and dry periods appropriate for the
incubation, maturation, and reproduction of the Riverside fairy shrimp
in all but the driest of years, such that the pools:
(a) Are inundated (pond) approximately 2 to 8 months during winter
and spring, typically filled by rain, and surface and subsurface flow;
(b) Generally dry down in the late spring to summer months;
(c) May not pond every year; and
(d) Provide the suitable water chemistry characteristics to support
the Riverside fairy shrimp. These characteristics include
physiochemical factors such as alkalinity, pH, temperature, dissolved
solutes, dissolved oxygen, which can vary depending on the amount of
recent precipitation, evaporation, or oxygen saturation; time of day;
season; and type and depth of soil and subsurface layers. Vernal pool
habitat typically exhibits a range of conditions but remains within the
physiological tolerance of the species. The general ranges of
conditions include, but are not limited to:
(i) Dilute, freshwater pools with low levels of total dissolved
solids (low ion levels (sodium ion concentrations generally below 70
millimoles per liter (mmol/l)))
(ii) Low alkalinity levels (lower than 80 to 1,000 milligrams per
liter (mg/l)); and
(iii) A range of pH levels from slightly acidic to neutral
(typically in range of 6.4-7.1).
(2) Intermixed wetland and upland habitats that function as the
local watershed, including topographic features characterized by
mounds, swales, and low-lying depressions within a matrix of upland
habitat that result in intermittently flowing surface and subsurface
water in swales, drainages, and pools described in PCE 1. Associated
watersheds provide water to fill the vernal or ephemeral pools in the
winter and spring months. Associated watersheds vary in size and
therefore cannot be generalized, and they are affected by factors
including surface and underground hydrology, the topography of the area
surrounding the pool or pools, the vegetative coverage, and the soil
substrates in the area. The size of associated watersheds likely varies
from a few acres to greater than 100 ac (40 ha).
(3) Soils that support ponding during winter and spring which are
found in areas characterized in PCEs 1 and 2 that have a clay component
or other property that creates an impermeable surface or subsurface
layer. Soil series with a clay component or an impermeable surface or
subsurface layer typically slow percolation, increase water run-off (at
[[Page 72079]]
least initially), and contribute to the filling and persistence of
ponding of ephemeral wetland habitat where the Riverside fairy shrimp
occurs. Soils and soil series known to support vernal pool habitat
include, but are not limited to:
(a) The Azule, Calleguas, Cropley, and Linne soils series in
Ventura County;
(b) The Alo, Balcom, Bosanko, Calleguas, Cieneba, and Myford soils
series in Orange County;
(c) The Cajalco, Claypit, Murrieta, Porterville, Ramona, Traver,
and Willows soils series in Riverside County; and
(d) The Diablo, Huerhuero, Linne, Placentia, Olivenhain, Redding,
Salinas, and Stockpen soils series in San Diego County.
This final rule identifies the PCEs necessary to support one or
more of the life-history functions of Riverside fairy shrimp and those
areas containing the PCEs. We conclude that conservation of the
Riverside fairy shrimp is dependent upon multiple factors. We consider
the criteria for conservation of Riverside fairy shrimp to include: (1)
Conservation and management of areas across the species' range that
maintain normal hydrological and ecological functions where existing
populations survive and reproduce and that are representative of the
geographical distribution of the species; (2) conservation of areas
representative of the ecological distribution of Riverside fairy shrimp
(various combinations of soil types, vernal pool chemistry, geomorphic
surfaces, and vegetation community associations), and (3) conservation
of areas that allow for the movement of cysts between areas
representative of the geographical and ecological distribution of the
species (within and between vernal pool complexes).
We are designating most of the known occupied habitat of Riverside
fairy shrimp because: (1) Riverside fairy shrimp are not migratory; (2)
disjunct populations likely represent unique, locally adapted
populations (adapted to unique site-specific or habitat-specific
environmental conditions); and (3) gene exchange that should naturally
occur between populations or critical habitat units is likely
infrequent. Where management units are sufficiently distant (16 to 159
miles (mi) (26 to 256 kilometers (km)) from one another, the likelihood
of gene exchange is reduced. All of the areas designated contain all of
the PCEs essential for the species that may require special management
considerations or protection, and they: (1) Maintain the genetic
variability of Riverside fairy shrimp across its known geographical
range and allow for a varying nature and expression of the species; (2)
allow for natural levels of gene flow and dispersal where possible, in
order to accommodate natural processes of local extirpation and
colonization over time (and thereby reduce the risk of extinction
through random and natural events); and (3) maintain a full range of
varying habitat types and characteristics for the species by
encompassing the full extent of the physical, biological, and
environmental conditions essential for the conservation of Riverside
fairy shrimp.
Not all life-history functions require all of the PCEs. For
example, Riverside fairy shrimp can persist as cysts for several years
when the vernal pools are not filled to the proper depth (note also PCE
1c, which recognizes that vernal pools occupied by Riverside fairy
shrimp may not fill every year). Therefore, at any given time and
particularly in the dry summer months, not all areas designated as
revised critical habitat will demonstrate all aspects of the PCEs.
However, over the longer time scale that represents the normal life-
history functions of Riverside fairy shrimp, all of the PCEs are
present in all of the units. Therefore, in consideration of that longer
scale, we confirm that all units in this final critical habitat
designation contain all of the PCEs. Further, all units and subunits
designated as critical habitat are currently known to be occupied by
Riverside fairy shrimp (with the exception of Subunit 1b, which is
presumed to be occupied by Riverside fairy shrimp although not every
portion of every unit and subunit is occupied by Riverside fairy
shrimp. As discussed above, Riverside fairy shrimp require a
functioning local watershed that results in intermittently flowing
surface and subsurface water to fill the vernal pool basins in which
the species occurs (PCE 2). Thus each unit and subunit consists of
occupied vernal pool basins and the surrounding local watersheds that
intermittently fill those basins. See the Final Critical Habitat
Designation section below for more details.
Special Management Considerations or Protection
When designating critical habitat, we first assess whether there
are specific areas within the geographical area occupied by the species
at the time of listing that contain features essential to the
conservation of the species that may require special management
considerations or protection before considering whether any areas
outside the geographical area occupied by the species at the time of
listing may be essential for its conservation. The determination that
special management may be required is not a prerequisite to designating
critical habitat in areas essential for the conservation of the species
that are outside the geographical area occupied at the time of listing.
However, all areas (units/subunits) we are designating as revised
critical habitat in this final rule, whether or not confirmed occupied
or unoccupied at the time of listing, contain essential features that
require special management considerations or protection to address
current and future threats to Riverside fairy shrimp, maintain or
enhance the features, and ensure the recovery and survival of the
species.
The physical or biological features in areas designated as revised
critical habitat in this final rule all face ongoing threats that
require special management considerations or protection. For Riverside
fairy shrimp, such threats include vernal pool elimination due to
agricultural and urban development, including activities associated
with construction of infrastructure (such as highways, utilities, and
water storage) (PCEs 1, 2, 3); construction of physical barriers or
impervious surfaces around a vernal pool complex (PCEs 1, 2); altered
water quality or quantity (PCEs 1, 3) due to channeling water runoff
into a vernal pool complex or to the introduction of water, other
liquids, or chemicals (including herbicides and pesticides) into the
vernal pool basin; physical disturbance to the claypan and hardpan
soils within the vernal pool basin (PCEs 1, 3), including discharge of
dredged or fill material into vernal pools and erosion of sediments
from fill material; disturbance of soil profile by grading, digging, or
other earthmoving work within the basin or its upland slopes or by
other activities such as OHV use, heavy foot traffic, grazing,
vegetation removal, fire management, or road construction within the
vernal pool watershed (PCEs 1, 2, 3); invasion of nonnative plant and
animal species into the vernal pool basin (PCEs 1, 2), which alters
hydrology and soil regimes within the vernal pool; and any activity
that permanently alters the function of the underlying claypan or
hardpan soil layer (PCE 3), resulting in disturbance or destruction of
vernal pool flora or the associated upland watershed (PCEs 2, 3). All
of these threats have the potential to permanently reduce or increase
the depth of a vernal pool, ponding duration and inundation of the
vernal pool, or other vernal pool features beyond the tolerances of
Riverside fairy shrimp (PCE 1).
Loss and degradation of wetland habitat, most directly from
conversion
[[Page 72080]]
to agriculture and development, was cited in the final listing rule as
a cause for the decline of Riverside fairy shrimp (58 FR 41387, August
3, 1993). Most of the populations of this species are located in San
Diego, Orange, and Riverside Counties. These counties have had (and
continue to have) increasing human populations, development, and
infrastructure needs. Natural areas in these counties are frequently
near or bounded by urbanized areas. Grading, discing, and scraping for
urbanization results in loss of vernal pool topography and soil
surface, as well as the subsurface soil layers, to the degree that they
will no longer support ponding for Riverside fairy shrimp (PCE 3).
Urban development modifies and removes vernal pool topography, compacts
or disturbs soils such that basins and upland watershed components are
altered, and likely eliminates or fragments populations of Riverside
fairy shrimp through direct crushing of cysts, disruption of soils and
removal of the cyst bank, and modification of upland hydrology and
topography, which may potentially isolate a pool or pools within a
complex. Overall, habitat loss continues to be the greatest direct
threat to Riverside fairy shrimp.
Because the flora and fauna in vernal pools or swales can change if
the hydrological regime is altered (Bauder 1986b), human activities
that reduce the extent of the watershed or alter runoff patterns
(timing, amount, or flow of water) (PCE 2) may also eliminate Riverside
fairy shrimp, reduce their population size or reproductive success, or
alter the duration or filling of basins such that the location of sites
inhabited by this species may shift. Changes to hydrological patterns
due to cattle trampling, OHV use, human trampling, road development,
military activities, and water management activities impact vernal
pools (PCEs 1, 2, 3) (58 FR 41387, August 3, 1993). Impacts to
Riverside fairy shrimp such as the species' genetic diversity and
patterns of gene flow, persistence from reductions in air and water
quality due to human urbanization, or changes in nutrient availability
associated with altered hydrology may be exacerbated by the species'
highly fragmented and restricted range (Bauder 1986b, pp. 209-211).
Unpredictable natural events, such as fire, can be especially
devastating due to the fragmented and restricted range of the species
(58 FR 41390, August 3, 1993). Vernal pool habitat is naturally subject
to wildfires, and cysts of other fairy shrimp species are known to
survive fire events (Zedler 1987, p. 96; Wells et al. 1997, p. 200).
However, fire can have detrimental impacts on vernal pools from direct
burning of dense surrounding vegetation (Bauder and Wier 1991, p. 5-
10). Fire suppression can also damage vernal pools due to grading
activities, suppression activities, crushing from vehicles associated
with fire control, or from sediment runoff following fire (Bauder
1986a, p. 21; Bauder and Wier 1991, pp. 5-10-5-11; Hecht et al. 1998,
p. 33). These threats may require special management considerations or
protection.
Changes in hydrology that affect the Riverside fairy shrimp's PCEs
are caused by activities that alter the surrounding topography or
change historical water flow patterns in the watershed (PCEs 2, 3).
Even slight alterations in the hydrology can change the depth, volume,
and duration of ponding inundation; water temperature; soil; mineral
and organic matter transport to the pool; and water quality and
chemistry, which in turn can make the ephemeral wetland habitat (PCE 1)
unsuitable for Riverside fairy shrimp. Activities that impact the
hydrology include, but are not limited to, road building, grading and
earth moving, impounding natural water flows, and draining of pools or
their immediately surrounding upland watershed. Impacts to the
hydrology of vernal pools can be managed through avoidance of such
activities in and around the pools and the associated surrounding
upland areas.
Disturbance to the impermeable substrate layer of claypan and
hardpan soils within vernal pools occupied by Riverside fairy shrimp
(PCE 3) may alter the depth, ponding inundation, water temperature, and
water chemistry. Physical disturbances to claypan and hardpan soils may
be caused by excavation of borrow material (soil or sediments), OHV
use, military training activities, repeated or deep agricultural
discing, drilling during construction activities, or creation of berms
that obstruct the natural hydrological surface or subsurface flow of
water runoff and precipitation. Impacts to the soils of vernal pools
can be managed through avoidance of these activities in and around the
pools and the associated surrounding upland areas.
Nonnative plant species may alter ponding inundation and water
temperature by changing the evaporation rate and shading of standing
water in vernal pools (PCEs 1, 2). Invasive plant species, such as
Cotula coronopifolia (brass-buttons) and Agrostis avenacea (Pacific
bentgrass), compete with native vernal pool plant species and may alter
the physiochemical factors of the water (PCE 1), the ponding duration
(PCE 1), and the upland habitat (PCE 2) in these vernal pools. Impacts
from nonnative plants can be managed to maintain the appropriate
hydrology and physiochemical nature of the vernal pools required by the
life-history processes of Riverside fairy shrimp.
Further discussion of specific threats to the PCEs in individual
critical habitat units is provided in the unit descriptions below. In
these revised critical habitat units, special management considerations
or protection may be needed to ensure the long-term existence and
management of ephemeral and upland habitat sufficient for the Riverside
fairy shrimp's successful reproduction and growth, adequate feeding
habitat, proper physiochemical and environmental regimes, linked
hydrology, and connectivity within the landscape.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available in determining areas within
the geographical area occupied at the time of listing that contain the
features essential to the conservation of the Riverside fairy shrimp.
In accordance with the Act and its implementing regulations at 50 CFR
424.12(e), we considered whether designating additional areas outside
the geographical area occupied at the time of listing are essential to
ensure the conservation of the species. At the time of listing,
Riverside fairy shrimp were known to occupy nine vernal pool complexes
within Orange, Riverside, and San Diego Counties, California, and Baja
California, Mexico. Occupied complexes included four vernal pools in
Riverside County, one population in Orange County, two complexes in San
Diego County, and two locations in Baja California, Mexico (58 FR
41384; August 3, 1993).
In determining which areas within the geographical area occupied at
the time of listing currently contain the physical or biological
features essential to the conservation of Riverside fairy shrimp, we
used all available scientific and commercial data, including
information from the 1991 proposed listing rule (56 FR 57503, November
12, 1991), the 1993 final listing rule (58 FR 41384, August 3, 1993),
the 1998 Recovery Plan (Service 1998a, pp. 1-113), the 2008 5-year
review for Riverside fairy shrimp (Service 2008, pp. 1-57), the
California Department of Fish and Game's (CDFG) California Natural
Diversity Data Base
[[Page 72081]]
(CNDDB) records, published peer-reviewed articles, unpublished papers
and reports, academic theses, survey results, geographic information
system (GIS) data (such as species occurrences, soil data, land use,
topography, and ownership maps), and correspondence to the Service from
recognized experts. We solicited new information collected since
publication of the 1998 Recovery Plan and 2005 final critical habitat
designation (70 FR 19154), including information from State, Federal,
and tribal governments; scientific data on Riverside fairy shrimp
collected by academia and private organizations; information in reports
submitted during consultations under section 7 of the Act; information
contained in analyses for individual and regional HCPs where Riverside
fairy shrimp is a covered species; and data collected from reports
submitted by researchers holding recovery permits under section
10(a)(1)(A) of the Act.
We acknowledge the geographical area known to be occupied by the
species in the United States as presented in the listing rule (58 FR
41384; August 3, 1993) is that area bounded by the coastline to the
west, east to an area near tribal land of the Pechanga Band of
Luise[ntilde]o Mission Indians of the Pechanga Reservation, California,
in western Riverside County, north into the central foothills of Orange
County near the former Marine Corps Air Station (MCAS) El Toro, and
south to coastal mesa tops along the United States-Mexico Border in San
Diego County. However, as with many species, listing often results in
greater efforts to conduct surveys that may reveal more information
related to specific occurrences across a greater geographical area than
were initially known (76 FR 31690; June 1, 2011). The current known
range of Riverside fairy shrimp is from Ventura County to the United
States-Mexico Border in San Diego County, a north-south distance of
approximately 163 miles (mi) (262 kilometers (km)) within southern
California and inland from the Pacific Coast 50 mi (80 km), based on
all available species occurrence data pre- and post-listing. Two
additional records documented Riverside fairy shrimp in northwestern
Baja California, Mexico, at the time the species was listed (58 FR
41384). Extant occurrences are located within four counties in southern
California: Ventura, Orange, Riverside, and San Diego.
When we developed our proposed critical habitat, we considered
areas where Riverside fairy shrimp have been documented since listing
(1993), including areas outside the geographical range of the species
as presented in the listing rule, to be ``within the geographical area
occupied by the species at the time of listing [in 1993]'' (see
proposed rule at 76 FR 31689, June 1, 2011, and discussion below).
Based on our review of the species' biology and life-history traits, we
conclude that occurrences documented since the 1993 listing do not
represent an expansion of the species' distribution and range, but
rather reflect our better understanding of the distribution and range
of the species at the time of listing (Service 2008, p. 9).
The life history of Riverside fairy shrimp supports the conclusion
that many of the pools surveyed after publication of the listing rule
were, in fact, occupied at the time of listing. Riverside fairy shrimp
are relatively sedentary and possess limited dispersal capabilities
(Davies et al. 1997, p. 157). Dispersal is assumed to be through
passive means, including movement of diapausing cysts by rain and
overponding of water (Zedler 2003, p. 602) and wind (Brendonck and
Riddoch 1999, p. 67; Vanschoenwinkel 2008, pp.130-133), or through
active means, such as animal-mediated transport (Keeler-Wolf et al.
1998, p. 11; Bohonak and Jenkins 2003, p. 784; Green and Figuerola
2005, p. 150). However, evidence of passive dispersal remains limited,
and the relative role of vertebrate vectors requires additional studies
(see Bohonak and Jenkins 2003, p. 786).
Riverside fairy shrimp have a relatively long maturation time
(Simovich 1998, p. 111), which limits the species to deeper pools with
longer ponding durations (Hathaway and Simovich 1996, p. 675).
Riverside fairy shrimp exhibit a diversified bet-hedging reproductive
strategy (Simovich and Hathaway 1997, p. 42). In other words, the
species spreads reproductive effort over more than one ponding event
through diapause of eggs (production of a cyst bank) and the hatching
of a fraction of the cyst bank (Simovich and Hathaway 1997, p. 42;
Philippi et al. 2001, p. 392; Ripley et al. 2004, p. 222).
Riverside fairy shrimp are restricted to certain pool types (deep,
long-ponding, along coastal mesas or in valley depressions) with
certain underlying soils (Bauder and McMillian 1998, p. 57), which have
variable but specific water chemistry (Gonzalez et al. 1996, p. 317)
and temperature regimes (Hathaway and Simovich 1996, p. 672). Suitable
pools are geographically fixed and limited in number, and influenced by
position, distance from coast, and elevation (Bauder and McMillian
1998, pp. 62, 64). Typically, mima mound topography (landscapes
consisting of mounds of soil) and impervious soils with a subsurface
clay or hardpan layer provide the necessary ponding opportunities
during winter and spring (Zedler 1987, pp. 13, 17). Underlying soil
types and pool size influence the wetland habitat physiochemical
parameters, associated vegetation, and faunal communities; those latter
three factors are also affected by regional climate (rainfall,
temperature, evaporation rate) and elevational differences (Keeler-Wolf
et al. 1998, p. 9). Vernal pools are discontinuously distributed in
several regions in southern California, and Riverside fairy shrimp are
well adapted to the ephemeral nature of their habitat and to the
localized climate, topography, and soil conditions (Bauder and
McMillian 1998, p. 56; Keeley and Zedler 1998, p. 6). These statements
are supported by careful review of the species' habitat, ecology, and
life-history requirements.
Based on these habitat and life-history traits, we conclude that
the additional occurrences detected since listing, both within and to
the north of the species' known geographical area at the time of
listing, were likely present in those areas prior to listing, but the
presence of the species was not known because protocol surveys had not
been conducted prior to listing. Occurrences documented since the 1993
listing should not be construed to represent an expansion of the
species' distribution and range, but rather to reflect our current and
better understanding of the distribution and range of the species at
the time of listing based on the best information available to us at
this time (Service 2008, p. 9).
After publication of the June 1, 2011, proposed rule but before the
March 1, 2012, publication, the Federal Circuit Court of Appeals for
the District of Columbia invalidated a portion of the final rule
designating critical habitat for the San Diego fairy shrimp under
section 3(5)(A)(i) of the Act. The court concluded that the Service
lacked adequate information to support its conclusion that the area in
question was occupied at the time of listing and qualified as critical
habitat under section 3(5)(A)(i) (Otay Mesa Property, L.P. et al. v.
U.S. Dept. of the Interior, 646 F.3d 914 (D.C. Cir. 2011) (Otay Mesa)).
The court noted, however, that its ruling was narrow and directed only
at the Service's reliance on section 3(5)(A)(i) of the Act. The court
pointed out that the Service could choose to designate the area in
question under section 3(5)(A)(ii) of the Act as long as we provide
adequate justification for designation under that provision (Otay
[[Page 72082]]
Mesa, 646 F.3d at 914). Because habitat containing the physical or
biological features essential for the conservation of Riverside fairy
shrimp overlaps with essential habitat for the San Diego fairy shrimp
at issue in Otay Mesa, and because the species have similar life-
history and habitat requirements, we applied the circuit court's
reasoning in our March 1, 2012, publication (77 FR 12543), and apply it
in this final designation of revised critical habitat for the Riverside
fairy shrimp.
In light of that ruling, we reiterate that Unit 1 (1a, 1b), Unit 2
(2dA, 2dB, 2e, 2f, 2g, 2h, 2i), Unit 3 (3c, 3d, 3e, 3h), Unit 4 (4c),
and Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, 5h) meet the definition of critical
habitat under section 3(5)(A)(i) of the Act (i.e., are areas within the
geographical area occupied by the Riverside fairy shrimp at the time of
listing) for the reasons explained in our March 1, 2012, publication
(77 FR 12543) despite the absence of proof of occupancy at the time of
listing. However, assuming such areas would not meet the definition of
critical habitat under section 3(5)(A)(i) of the Act under the Otay
Mesa court's application of ``occupancy'' under that provision due to
the absence of prelisting surveys confirming the presence of Riverside
fairy shrimp, we conclude that the areas alternatively meet the
definition of critical habitat under section 3(5)(A)(ii) of the Act.
These areas are essential for the conservation of the species, and a
designation limited to areas documented to have been occupied at the
time of listing would be inadequate to ensure the conservation of
Riverside fairy shrimp. Nine occurrences of Riverside fairy shrimp were
identified in the listing rule (58 FR 41384). One of those occurrences,
located in Riverside County, has been lost due to development
activities (Service 1998a, Appendix 1); a further two are in Baja
California, Mexico, and therefore not subject to critical habitat
designation (50 C.F.R. 424.12(h)). Based on a review of the best
available scientific and commercial information, only five of those
remaining six occurrences known at the time of listing currently
contain the physical or biological features essential to the
conservation of the species (see further details on identification of
critical habitat units below). Those five occurrences are MCAS El Toro
(Subunit 2c), Skunk Hollow Pool (Subunit 3f), Field Pool (Subunit 3f),
complex J29-31 (Subunit 5d), and East Miramar (AA1 South+ Group)(Pool
4786; previously Pool 12). The latter occurrence is on MCAS Miramar and
exempt from this final critical habitat rule. The sixth occurrence
identified at the time of listing was a vernal pool partially within
the Pechanga Band of Luise[ntilde]o Mission Indians reservation and
partially on private land abutting the reservation. That occurrence has
been lost as a result of agricultural activities and construction of a
gravel pit. In the proposed revised critical habitat rule published in
2011 (76 FR 31686; June 1, 2011), we requested comments from the public
about these vernal pools, but received no information pertaining to
them. Therefore, due to insufficient occurrence information and
evidence of severely modified and impacted pools from years of discing
and plowing, we are not proposing to designate critical habitat on
tribal lands of the Pechanga Band of Luise[ntilde]o Mission Indians.
These remaining five occurrences (representing three subunits)
alone are not sufficient to conserve Riverside fairy shrimp. In
addition, all of the areas that support extant occurrences of Riverside
fairy shrimp face threats including development, habitat fragmentation,
altered hydrology, livestock grazing, nonnative vegetation, military
activities, pollution, dumping, human disturbance, and climate change
(Service 2008, pp. 12-37; see also the Climate Change section above).
Protecting a wide variety of habitat will provide a buffer against
these threats and provide for the conservation of the species.
Therefore, given the endangered status and the small number of extant
Riverside fairy shrimp populations, and the need to protect the
species' genetic and habitat variability to minimize the likelihood of
a stochastic event eliminating most or all of the surviving
populations, a critical habitat designation limited to areas known to
be occupied at the time of listing would be inadequate to provide for
the conservation of the species.
We identify three subunits (Subunit 2c, 3f, and 5d) as meeting the
definition of critical habitat under section 3(5)(A)(i) of the Act
because the areas were known to be occupied at the time of listing. We
identify Subunit 3g as meeting the definition of critical habitat under
section 3(5)(A)(ii) of the Act because the pool was created after the
time of listing and because we consider it to be essential for the
conservation of the species. We consider the remaining 21 subunits
(Subunits 1a, 1b; Subunits 2dA, 2dB, 2e, 2f, 2g, 2h, 2i; Subunits 3c,
3d, 3e, 3h; Subunit 4c; Subunits 5a, 5b, 5c, 5e, 5f, 5g, 5h) to meet
the definition of critical habitat under section 3(5)(A)(i) of the Act.
However, because we lack definitive evidence of their occupancy at the
time of listing, which under Otay Mesa could disqualify the areas from
designation under section 3(5)(A)(i) of the Act, we alternatively
identify these areas as meeting the definition of critical habitat
under section 3(5)(A)(ii) of the Act. We identify them as such to make
clear that we consider these specific areas to be essential for the
conservation of Riverside fairy shrimp, notwithstanding the absence of
surveys confirming the presence of Riverside fairy shrimp at the time
of listing. Although we consider the available evidence sufficient to
conclude that these subunits were occupied by Riverside fairy shrimp at
the time the species was listed, due to the lack of documentation of
occupancy, such as survey results prior to 1993, for the purposes of
this rulemaking we determine that these subunits also alternatively
meet the definition of critical habitat in section 3(5)(A)(ii) of the
Act.
Our identification of these units and of habitat essential to the
conservation of Riverside fairy shrimp takes into consideration the
conservation approach described in the 1998 Recovery Plan and considers
areas identified therein as necessary for the species' stabilization
and recovery. The 1998 Recovery Plan identifies management areas on
which the long-term conservation and recovery of Riverside fairy shrimp
depend. Appendices F and G in the 1998 Recovery Plan defined known
vernal pool complexes essential to the conservation of several vernal
pool species, including Riverside fairy shrimp (Service 1998a, pp. F1-
G3). Eight distinct management areas were identified based on plant and
animal distribution, soil types, and climatic variables (Service 1998a,
pp. 38-39). Management areas include vernal pools and complexes known
to be occupied and essential to the conservation of Riverside fairy
shrimp.
We have used these same eight management areas and names, where
possible, to assist us in identifying specific areas essential to the
conservation of the Riverside fairy shrimp. In cases where new
occurrence data identify occupied vernal pools not identified in the
1998 Recovery Plan, we have relied on the best available scientific
data to update map coverage (for example, in Orange and Riverside
Counties). Our 2005 final rule (70 FR 19154) used locations identified
in Appendices F and G of the 1998 Recovery Plan; however, for this
final revised critical habitat rule (due to revisions to the PCEs and
improvements in mapping methodologies), some additions and subtractions
have
[[Page 72083]]
occurred in areas previously identified as essential either in the 1998
Recovery Plan or in the 2005 final critical habitat designation (Table
2). In some cases, areas within subunits have been removed because,
based on new information, they no longer contain the physical or
biological features or PCEs that are essential to the conservation of
Riverside fairy shrimp. Specific differences from the 2005 final rule
are summarized in the Summary of Changes from Previously Designated
Critical Habitat section of the proposed rule published on June 1, 2011
(76 FR 31686).
We are designating critical habitat in specific areas that include
ephemeral wetland habitat and intermixed wetland and upland habitats of
various sizes; possess appropriate soils and topography that support
ponding during winter and spring; are within the known geographical and
elevational range of Riverside fairy shrimp; are geographically
distributed throughout the range of the species; represent unique
ecological or biological features and associations; and will help
protect against stochastic extirpation, allow for local adaptation, and
provide connectivity to facilitate dispersal and genetic exchange. By
protecting a variety of habitats throughout the species' range, we
increase the probability that the species can adjust in the future to
various limiting factors that may affect the population, such as
changes in abundance and timing of precipitation.
As required by section 4(b)(2) of the Act, we used the best
scientific data available to designate critical habitat. The steps we
followed in identifying critical habitat are described in detail below.
(1) We determined, in accordance with section 3(5)(A)(i) of the Act
and regulations at 50 CFR 424.12, the physical or biological features
that are essential to the conservation of the species (see the Physical
or Biological Features section above).
(2) We compiled all available observational data on Riverside fairy
shrimp into a GIS database. Data on locations of Riverside fairy shrimp
occurrences are based on collections and observations made by
biologists, biological consultants, and academic researchers. We
compiled data from the following sources to create our GIS database for
Riverside fairy shrimp: (a) Data used in the 1998 Recovery Plan, 2005
final critical habitat rule for Riverside fairy shrimp, and 2008 5-year
review for Riverside fairy shrimp; (b) the CNDDB data report and
accompanying GIS records for Riverside fairy shrimp (CNDDB 2010, pp. 1-
9); (c) data presented in the City of San Diego's Vernal Pool Inventory
for 2002-2003 (City of San Diego 2004, pp. 1-125); (d) monitoring
reports for Riverside fairy shrimp from Marine Corps Base (MCB) Camp
Pendleton and MCAS Miramar; (e) the Western Riverside County Multiple
Species Habitat Conservation Plan (MSHCP) species GIS database; and (f)
the Carlsbad Fish and Wildlife Office's (CFWO) internal species GIS
database, which includes the species data used for the County of San
Diego Multiple Species Conservation Plan (MSCP) and Western Riverside
County MSHCP, reports from section 7 consultations, and Service
observations of Riverside fairy shrimp (CFWO internal species GIS
database). Compiled data were reviewed to ensure accuracy. Each data
point in our database was checked to ensure that it represented an
original collection or observation of Riverside fairy shrimp and that
it was mapped in the correct location. Data points that did not match
the description for the original collection or observation were
remapped in the correct location or removed from our database.
(3) We determined which occurrences were extant at the time of
listing, based on the 1993 listing rule, as well as information that
has become available since the time of listing. We considered several
sources in compiling the best available data on Riverside fairy shrimp
vernal pool distribution and species' occurrence. We have concluded
that, with the exception of Johnson Ranch Created Pool (Subunit 3g,
which was created using cysts salvaged from a nearby historical
occurrence at Redhawk development), all currently occupied vernal pools
were also occupied and extant at the time of listing (see Background
section and the specific unit descriptions below). We have drawn this
conclusion because Riverside fairy shrimp have limited dispersal
capabilities, and because surveys for the species at the time of
listing were incomplete. We conclude that the documentation of
additional occurrences within the range of Riverside fairy shrimp after
it was listed was due to an increased survey effort for this species.
However, as described above, we also find these areas are essential for
the conservation of the species.
(4) We identified which areas contain the PCEs for Riverside fairy
shrimp, and identified those areas that may require special management
considerations or protection. Units were identified based on sufficient
PCEs being present to support Riverside fairy shrimp life-history
processes. Some units contain all of the identified PCEs and support
multiple life stages (resting cyst, nauplii (recently hatched larvae),
and adult). Areas that we have identified as having one or more PCEs:
(a) Contain large interconnected ephemeral wetlands, large numbers of
individuals, or habitat areas that allow for connections between
existing occurrences of Riverside fairy shrimp; (b) represent important
occurrences of this species on the geographic edge of its distribution;
(c) contain occurrences that are more isolated from other occurrences
by geographic features, but may represent unique adaptations to local
features (biogeochemistry, hydrology, microclimate, soil mineralogy,
soil fertility, soil formation processes, evolutionary time scale); or
(d) exist within the distribution of the species and provide
connections between occupied areas. The conservation of stable and
persistent occurrences throughout the species' range helps to maintain
connectivity and gene flow between occurrences that are in proximity to
one another, as well as by preserving unique genetic assemblages in
vernal pools across the range, including those pools not within close
proximity to one another.
(5) We circumscribed boundaries of potential critical habitat,
based on information obtained from the above steps. For areas
containing the physical or biological features essential to the
conservation of the species, we mapped the specific areas that contain
the PCEs for Riverside fairy shrimp. First, we mapped the ephemeral
wetland habitat in the occupied area using occurrence data, aerial
imagery, and 1:24,000 topographic maps. We then mapped the intermixed
wetland and upland habitats that function as the local watersheds and
the topography and soils that support the occupied ephemeral wetland
habitat. We mapped these areas to identify the gently sloping area
associated with ephemeral wetland habitat and any adjacent areas that
slope directly into the ephemeral wetland habitat, and that contribute
to the hydrology of the ephemeral wetland habitat. We delineated the
border of the revised critical habitat around the occupied ephemeral
wetlands and associated local watershed areas to follow natural breaks
in the terrain such as ridgelines, mesa edges, and steep canyon slopes.
(6) We removed all areas not containing the physical or biological
features essential to the conservation of Riverside fairy shrimp. For
example, when determining critical habitat boundaries, we made every
effort to
[[Page 72084]]
avoid including developed areas, such as lands covered by buildings,
pavement, and other structures, because such lands lack physical or
biological features for Riverside fairy shrimp. The scale of the maps
we prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the final rule and are not designated as critical habitat.
Therefore, in this final revised critical habitat rule, a Federal
action involving these lands would not trigger section 7 consultation
with respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect any adjacent
critical habitat.
(7) We exempted areas within the boundaries of MCB Camp Pendleton
and MCAS Miramar in this final rule because we determined that these
areas are exempt under section 4(a)(3)(B)(i) of the Act from critical
habitat designation (see Exemptions section below).
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. The coordinates or plot points or both on which each
map is based are available to the public on http://www.regulations.gov
at Docket No. FWS-ES-R8-2011-0013, on our Internet site (http://www.fws.gov/carlsbad/), and at the field office responsible for the
designation (see FOR FURTHER INFORMATION CONTACT above).
Table 2--Areas Identified as Necessary for Stabilizing Riverside Fairy Shrimp Populations
[As listed in Appendix F of 1998 Recovery Plan, and as identified as essential and as containing the PCEs in the
2005 final critical habitat designation and this 2012 final revised critical habitat designation]
----------------------------------------------------------------------------------------------------------------
2005 final critical 2012 final revised
Name/Location Listed in Appendix F habitat designation critical habitat
of 1998 Recovery Plan (subunit) (subunit)
----------------------------------------------------------------------------------------------------------------
Unit 1: Ventura County (Goleta and Transverse MA)
----------------------------------------------------------------------------------------------------------------
Tierra Rejada Preserve (*RP: Yes.................. 1a...................... 1a.
Carlsberg (Ranch)).
South of Tierra Rejada Valley (east No................... 1b...................... 1b.
of Hwy 23).
Cruzan Mesa (*RP: Cruzan Mesa)....... Yes.................. 1c; Removed............. Not proposed; not
designated.
----------------------------------------------------------------------------------------------------------------
Unit 2: Los Angeles Basin--Orange County Foothills (Los Angeles Basin--Orange MA)
----------------------------------------------------------------------------------------------------------------
(MCAS) El Toro (*RP: El Toro)........ Yes.................. 2c; 4(b)(2) exclusion... 2c; 4(b)(2) exclusion.
SCE Viejo Conservation Bank.......... No................... No subunit ; 2i; 4(b)(2) exclusion.
4(b)(2) exclusion.
Saddleback Meadow (*RP: Saddleback Yes **............... 2d; 4(b)(2) exclusion... 2dA; partial 4(b)(2)
Meadow). exclusion.
O'Neill Regional Park (near Trabuco Yes **............... 2d; 4(b)(2) exclusion... 2dB; partial 4(b)(2)
Canyon). exclusion.
O'Neill Regional Park (near Yes **............... 2....................... 2e; partial 4(b)(2)
Ca[ntilde]ada Gobernadora). exclusion.
Chiquita Ridge (*RP: Chiquita Ridge). Yes.................. 2f; 4(b)(2) exclusion... 2f; 4(b)(2) exclusion.
RP: ``Orange County Foothills Yes **............... Not proposed............ 2h; partial designation
(undescribed)''. 2dB, 2e, 2g, 2h, 2i;
4(b)(2) exclusion.
Radio Tower Road..................... No................... 2g; 4(b)(2) exclusion... 2g; 4(b)(2) exclusion.
San Onofre State Beach, State Park- No................... 2h; 4(a)(3)(B) exemption 2h; partial 4(a)(3)(B)
leased land (near Christianitos exemption.
Creek foothills).
----------------------------------------------------------------------------------------------------------------
Unit 3: Riverside Inland Valleys (Riverside MA)
----------------------------------------------------------------------------------------------------------------
March Air Reserve Base............... No................... 3a; Removed............. Not proposed; not
designated.
March Air Reserve Base............... No................... 3b; 4(a)(3)(B) exemption Not proposed; not
designated.
Australia Pool....................... No................... No subunit ; 3c; 4(b)(2) exclusion.
4(b)(2) exclusion.
Scott Road Pool...................... No................... No subunit ; 3d; 4(b)(2) exclusion.
4(b)(2) exclusion.
Schleuniger Pool..................... No................... No subunit ; 3e; 4(b)(2) exclusion.
4(b)(2) exclusion.
Skunk Hollow and Field Pool (Barry Yes.................. No subunit ; 3f; 4(b)(2) exclusion.
Jones Wetland Mitigation Bank) (*RP: 4(b)(2) exclusion.
Skunk Hollow/Murrieta).
Johnson Ranch Created Pool........... No................... No subunit ; 3g; 4(b)(2) exclusion.
4(b)(2) exclusion.
Santa Rosa Plateau--Mesa de Colorado Yes.................. Not proposed............ 3h; 4(b)(2) exclusion.
(*RP: Santa Rosa Plateau).
----------------------------------------------------------------------------------------------------------------
No Unit : Northern San Diego County Military Land, Exempted (San Diego North Coastal Mesa MA)
----------------------------------------------------------------------------------------------------------------
Stuart Mesa, MCB Camp Pendleton (*RP: Yes.................. No subunit ; 4(a)(3)(B) exemption.
Stuart Mesa). 4(a)(3)(B) exemption.
Cockleburr, MCB Camp Pendleton (*RP: Yes.................. No subunit ; 4(a)(3)(B) exemption.
Cockleburr ). 4(a)(3)(B) exemption.
[[Page 72085]]
Las Pulgas, MCB Camp Pendleton (*RP: Yes.................. No subunit ; 4(a)(3)(B) exemption.
Las Pulgas). 4(a)(3)(B) exemption.
Land south of San Onofre State Park.. Yes.................. No subunit ; 4(a)(3)(B) exemption.
4(b)(2) exclusion for
National Security.
San Mateo, MCB Camp Pendleton (*RP: Yes.................. No subunit ; Not proposed; not
San Mateo). 4(a)(3)(B) exemption. designated.
Wire Mountain, MCB Camp Pendleton Yes.................. 4(a)(3)(B) exemption.... Not proposed; not
(*RP: Wire Mountain). designated.
Portion of San Onofre State Beach, No................... No subunit ; 4(a)(3)(B) exemption.
State Park-leased land (near 4(b)(2) exclusion for
Christianitos Creek foothills) (*RP: National Security.
State Park Lease Area).
----------------------------------------------------------------------------------------------------------------
No Unit Number: Central Sand Diego County, Military Land, Exempted (San Diego Central Coastal Mesa MA)
----------------------------------------------------------------------------------------------------------------
East Miramar (AA1 South+ Group)(Pool Yes.................. 4(a)(3)(B) exemption.... 4(a)(3)(B) exemption.
4786; previously Pool 12).
Unit 4: San Diego North Coastal Mesas (San Diego: North Coastal MA)
----------------------------------------------------------------------------------------------------------------
Poinsettia Lane Commuter Train Yes.................. 4c...................... 4c; 4(b)(2) exclusion.
Station (JJ 2) (*RP: JJ2 Poinsettia
Lane).
----------------------------------------------------------------------------------------------------------------
Unit 5: San Diego Southern Coastal Mesas (San Diego: South Coastal MA)
----------------------------------------------------------------------------------------------------------------
J33 (Sweetwater High School)......... No................... 5a; 4(b)(2) exclusion... 5a.
J15 (Arnie's Point) (*RP: J2, J5, J7, Yes **............... 5b; 4(b)(2) exclusion... 5b; 4(b)(2) exclusion.
J11-21, J23-30).
East Otay Mesa (*RP: Otay Mesa Yes.................. 5c; partial 4(b)(2) 5c.
undescribed). exclusion.
``Otay Mesa vernal pool complexes'' Yes **............... No subunit ; Designated as subunits
(*RP: J2, J5, J7, J11-21, J23-30). 4(b)(2) exclusion. below.
J29-31 (*RP: J2, J5, J7, J11-21, J23- Yes **............... No subunit ; 5d; partial 4(b)(2)
30). 4(b)(2) exclusion. exclusion.
J2 N, J4, J5 (Robinhood Ridge-J2) Yes.................. No subunit ; 5e.
(*RP: J2, J5, J7, J11-21, J23-30). 4(b)(2) exclusion.
J2 S and J2 W (Hidden Valley, Cal Yes.................. No subunit ; 5f.
Terraces, Otay Mesa Road) (*RP: J2, 4(b)(2) exclusion.
J5, J7, J11-21, J23-30).
J14.................................. No................... No subunit ; 5g.
4(b)(2) exclusion.
J11-12, J16-18 (Goat Mesa) (*RP: J2, Yes.................. No subunit ; 5h; partial 4(b)(2)
J5, J7, J11-21, J23-30). 4(b)(2) exclusion. exclusion.
----------------------------------------------------------------------------------------------------------------
MA: Management Area as defined in 1998 Recovery Plan.
(*RP): name of pool (or pool complex) as stated in the 1998 Recovery Plan.
No: not in 1998 Recovery Plan; occurrence not identified until after 1998.
Yes: location was identified in the 1998 Recovery Plan.
Yes **: location was considered in the 1998 Recovery Plan, but at that time was grouped (lumped) as multiple
vernal pool complexes. These locations have now been separated in this 2012 final rule.
Final Critical Habitat Designation
We are designating 3 units, containing 13 subunits, as critical
habitat for Riverside fairy shrimp. The three units are: Unit 1
(Ventura County), Unit 2 (Los Angeles Basin--Orange County Foothills),
and Unit 5 (San Diego Southern Coastal Mesas). All of Unit 3 (Riverside
County) and Unit 4 (San Diego North and Central Coastal Mesas) are
excluded in this final rule. Table 3 shows all of the critical habitat
units, including excluded acreages.
[[Page 72086]]
Table 3--Final Critical Habitat for Riverside Fairy Shrimp Is Shown in the Last Column of the Table.
[This table does not include habitat exempted under Section 4(a)(3) of the Act but does identify habitat excluded under Section 4(b)(2) in column 6.]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total area containing Final critical
Critical habitat unit Federal land State land Local land \1\ Private land essential features Area excluded habitat
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Ventura County........ ...................... ..................... 31 ac (13 ha)........ 435 ac (176 ha)...... 466 ac (189 ha)...... ..................... 466 ac (189 ha).
1a. Tierra Rejada Preserve.... ...................... ..................... ..................... 18 ac (7 ha)......... 18 ac (7 ac)......... ..................... 18 ac (7 ac).
1b. South of Tierra Rejada ...................... ..................... 31 ac (13 ha)........ 417 ac (169 ha)...... 448 ac (182 ha)...... ..................... 448 ac (182 ha).
Valley.
Unit 2: Los Angeles Basin-- ...................... ..................... 142 ac (58 ha)....... 576 ac (233 ha)...... 718ac (291 ha)....... 322 ac (130 ha)...... 396 ac (160 ha).
Orange County Foothills.
2c. (MCAS) El Toro............ ...................... ..................... 18 ac (7 ha)......... 8 ac (3 ha).......... 26 ac (11 ac)........ 26 ac (11 ha)........ .....................
2dA. Saddleback Meadow........ ...................... ..................... 4 ac (2 ha).......... 252 ac (102 ha)...... 256 ac (104 ha)...... 4 ac (2 ha).......... 252 ac (102 ha).
2dB. O'Neill Regional Park ...................... ..................... 75 ac (30 ha)........ 15 ac (6 ha)......... 90 ac (37 ha)........ 75 ac (30 ha)........ 15 ac (6 ha).
(near Trabuco Canyon).
2e. O'Neill Regional Park ...................... ..................... 45 ac (18 ha)........ 24 ac (10 ha)........ 69 ac (28 ha)........ 47 ac (19 ha)........ 22 ac (9 ha)
(near Ca[ntilde]ada
Gobernadora).
2f. Chiquita Ridge............ ...................... ..................... ..................... 56 ac (23 ha)........ 56 ac (23 ha)........ 56 ac (23 ha)........ .....................
2g. Radio Tower Road.......... ...................... ..................... ..................... 51 ac (21 ha)........ 51 ac (21 ha)........ 51 ac (21 ha)........ .....................
2h. San Onofre State Beach, ...................... ..................... ..................... 107 ac (43 ha)....... 107 ac (43 ha)....... ..................... 107ac (43 ha).
State Park-leased land (near
Christianitos Creek
foothills).
2i. SCE Viejo Conservation ...................... ..................... ..................... 63 ac (25 ha)........ 63 ac (25 ha)........ 63 ac (25 ha)........ .....................
Bank.
Unit 3: Riverside Inland ...................... 54 ac (22 ha)........ ..................... 811 ac (328 ha)...... 865 ac (350 ha)...... 865 ac (350 ha)...... .....................
Valleys.
3c. Australia Pool............ ...................... ..................... ..................... 19 ac (8 ha)......... 19 ac (8 ha)......... 19 ac (8 ha)......... .....................
3d. Scott Road Pool........... ...................... ..................... ..................... 9 ac (4 ha).......... 9 ac (4 ha).......... 9 ac (4 ha).......... .....................
3e. Schleuniger Pool.......... ...................... ..................... ..................... 23 ac (9 ha)......... 23 ac (9 ha)......... 23 ac (9 ha)......... .....................
3f. Skunk Hollow and Field ...................... ..................... ..................... 163 ac (66 ha)....... 163 ac (66 ha)....... 163 ac (66 ha)....... .....................
Pool (Barry Jones Wetland
Mitigation Bank).
3g. Johnson Ranch Created Pool ...................... 54 ac (22 ha)........ ..................... ..................... 54 ac (22 ha)........ 54 ac (22 ac)........ .....................
3h. Santa Rosa Plateau--Mesa ...................... ..................... ..................... 597 ac (242 ha)...... 597 ac (242 ha)...... 597 ac (242 ha)...... .....................
de Colorado.
Unit 4: San Diego North and ...................... ..................... 6 ac (3 ha).......... 3 ac (1 ha).......... 9 ac (4 ha).......... 9 ac (4 ha).......... .....................
Central Coastal Mesas.
4c. Poinsettia Lane Commuter ...................... ..................... 6 ac (3 ha).......... 3 ac (1 ha).......... 9 ac (4 ha).......... 9 ac (4 ha).......... .....................
Train Station.
Unit 5: San Diego Southern 40 ac (16 ha)......... 256 ac (104 ha)...... 157 ac (64 ha)....... 472 ac (191 ha)...... 925 ac (375 ha)...... 63 ac (25 ha)........ 862 ac (348 ha).
Coastal Mesas.
5a. Sweetwater (J33).......... ...................... ..................... 2 ac (less than 1 ha) less than 1 ac (0 ha) 2 ac (less than 1 ha) ..................... 2 ac (less than 1
ha).
5b. Arnie's Point (J15)....... 29 ac (12 ha)......... ..................... ..................... ..................... 29 ac (12 ha)........ 29 ac (12 ha)........ .....................
5c. East Otay Mesa............ ...................... ..................... ..................... 57 ac (23 ha)........ 57 ac (23 ha)........ ..................... 57 ac (23 ha).
5d. J29-31.................... less than 1 ac (0 ha). 211 ac (85 ha)....... ..................... 159 ac (64 ha)....... 370 ac (149 ha)...... 23 ac (9 ha)......... 347 ac (140 ha).
5e. J2 N, J4, J5 (Robinhood ...................... ..................... 32 ac (13 ha)........ 12 ac (5 ha)......... 44 ac (18 ha)........ ..................... 44 ac (18 ha).
Ridge).
5f. J2 W and J2 S: (Hidden ...................... ..................... 22 ac (9 ha)......... 11 ac (4 ha)......... 33 ac (13 ha)........ ..................... 33 ac (13 ha).
Trails, Cal Terraces, Otay
Mesa Road).
5g. J14....................... ...................... 45 ac (18 ha)........ 18 ac (7 ha)......... 72 ac (29 ha)........ 135 ac (55 ha)....... ..................... 135 ac (55 ha).
5h. J11 E and J11 W, J12, J16- 11 ac (4 ha).......... ..................... 83 ac (34 ha)........ 161 ac (65 ha)....... 255 ac (103 ha)...... 11 ac (4 ha)......... 244 ac (99 ha).
18 (Goat Mesa).
-----------------------------------------------------------------------------------------------------------------------------------------------------------------
Totals.................... 40 ac (16 ha)......... 310 ac (126 ha)...... 336 ac (138 ha)...... 2,297 ac (929 ha).... 2,984 ac (1,208 ha).. 1,259 ac (510 ha).... 1,724 ac (698 ha).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Sums of land areas may not total due to rounding.
Details on excluded acres and HCPs are given in Table 5.
\1\ Local land includes land owned by local government agencies.
[[Page 72087]]
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for Riverside fairy shrimp,
below.
Unit 1: Ventura County Unit (Transverse Range)
Unit 1 is located in central Ventura County and consists of two
occupied subunits totaling approximately 466 ac (189 ha), with 31 ac
(13 ha) of local land and 435 ac (176 ha) of private land. Unit 1 is
within the geographical area occupied by the species at the time of
listing. This unit includes vernal pools near the City of Moorpark in
Ventura County at Tierra Rejada Preserve (formerly Carlsberg Ranch) on
the west side of State Highway 23, and a basin to the southeast of the
Carlsberg Ranch site called South of Tierra Rejada Valley, east of
State Highway 23. This unit occurs within the larger Santa Clara-
Calleguas/Calleguas-Conejo Tierra Rejada Valley watershed, within the
east-west trending Transverse (mountain) Range. The Transverse Range
system was formed by the interaction of an east-west oceanic fault zone
with the San Andreas Fault. Because the interaction of the two fault
systems has been extensive and continues with rapid local uplift,
Riverside fairy shrimp habitat within the Transverse Range reflects
past activities of tectonic processes and their effects on watershed
development. Accelerated erosion, sedimentation, and debris processes,
such as mud and rock flows, landslides, wind flows, and debris flows
(soil development processes), contribute to a unique set of
physiochemical and geomorphic features for pools occupied by Riverside
fairy shrimp.
Subunit 1a: Tierra Rejada Preserve
Subunit 1a is located near the City of Moorpark in southeastern
Ventura County, California. This subunit is located on what was
formerly known as the Carlsberg Ranch, at the north end of the Tierra
Rejada Valley and just west of State Highway 23. It is near the
northeast intersection of Moorpark Road and Tierra Rejada Road in a
residential housing development. Subunit 1a consists of 18 ac (7 ha) of
privately owned land. The vernal pool (pond), 4.6 acres (1.7 ha) in
size, is located in the Tierra Rejada Vernal Pool Preserve, owned and
managed by Mountains Recreation and Conservation Authority (MCRA).
Subunit 1a contains areas identified in the 1998 Recovery Plan
(Appendix F) as necessary to stabilize and protect (conserve) existing
populations of Riverside fairy shrimp.
We consider this subunit to have been occupied at the time of
listing, and it is currently occupied. Subunit 1a is within the
geographical area occupied by the species at the time of listing.
Resting cysts were detected in recent soil analyses (C. Dellith 2010,
pers. comm.) and adult fairy shrimp were observed on April 7, 2011 (J.
Tamasi 2011, pers. comm.), the first observation of adults since the
2000-2001 ponding season. This area is essential to the conservation of
this species for several reasons. The pool supports endangered Orcuttia
californica (Orcutt's grass), which is an indicator of the longer
ponding duration necessary to support the life-history needs of
Riverside fairy shrimp. This pool is fundamentally different in terms
of size, origin, depth, and duration of ponding, contributing areas
(watershed), and the thickness of the underlying sediments compared to
flat areas of older soils with highly developed claypans and hardpans
throughout the State (Hecht et al. 1998, p. 47). This pool was formed
primarily by tilting and subsidence along the Santa Rosa fault (Hecht
et al. 1998, p. 5). Given its geological and hydrological features and
associated wetland vegetation within the subunit, this pool possesses a
set of physical and biological factors unique to this occurrence to
which the Riverside fairy shrimp has likely become adapted. The present
biological resources and value of the pool have been sustained despite
``substantial disturbance and change [in] the general area of the
vernal pool'' and given the history of land and water use and analysis
of 60 years of aerial photography (Hecht et al. 1998, p. 6 and Appendix
A). Although Lahti et al. (2010) did not survey this pool during their
completion of a rangewide genetic analysis, this occurrence represents
the northernmost extension of the species' occupied range within a
notably unique vernal wetland type (Hecht et al. 1998, p. 5, and see
discussion below).
Subunit 1a contains the physical or biological features essential
to the conservation of Riverside fairy shrimp, including appropriate
soil series (Azule, Calleguas, Linne; PCE 3) situated on a saturated
fault between rocks of different permeability (``tectonogenic''; Hecht
et al. 1998, p. 5), and it is ``sediment-tolerant'' given that it
possesses a watershed with reasonably steep slopes (10-50 percent) that
yield substantial amounts of sediment that provide nutrients and
minerals (Hecht et al. 1998, p. 6). The fine clay sediment deposited in
the basin settles and allows the pool to fill; this is in contrast to
most other vernal pools, where hydrology is maintained through clay
soils created by soil forming processes (Hecht et al. 1998, p. 5).
Additionally, because of adjacent urban development, altered hydrology,
and potential for runoff, the PCEs in this subunit may require special
management considerations or protection for the recovery of Riverside
fairy shrimp. This subunit has one large ponding feature, and is
essential to maintain habitat function, genetic diversity, and species
viability (Service 1998a, p. 65) at the species' northernmost
geographical distribution.
Due to its unique geographic location and other features stated
above, Subunit 1a is essential to the conservation of Riverside fairy
shrimp. Although preliminary genetic studies are not definitive with
regard to gene flow and genetic variability across the range of this
species, populations at the edge of a species' distribution have been
demonstrated to be important sources of genetic variation, may provide
an important opportunity for colonization or recolonization of
unoccupied vernal pools, and, thus, contribute to long-term
conservation (and recovery) of the species (Gilpin and Soule[acute]
1986, pp. 32-33; Lande 1999, p. 6). Research on genetic differentiation
among fairy shrimp species across their known distributions has
demonstrated that geographically distinct populations may or may not be
genetically distinct, but that they have unique genetic characteristics
that may allow for adaption to environmental changes (Bohonak 2003, p.
3; Lahti et al. 2010, p. 17). These characteristics may not be present
in other parts of a species' range (Lesica and Allendorf 1995, p. 756),
making preservation of this subunit and the unique genetic diversity it
contains essential for the recovery of the species.
We are lacking specific documentation of Riverside fairy shrimp
occupancy in Subunit 1a at the time of listing. However, Subunit 1a
contains the physical or biological features necessary to the
conservation of the species, and these features support life-history
characteristics of Riverside fairy shrimp (such as the presence of cyst
banks that indicate long-term occupancy of a vernal pool). The presence
of these traits makes it likely that the subunit was occupied at the
time of listing, and that it meets the definition of critical habitat
under section 3(5)(A)(i) of the Act because it is within the
geographical area occupied by the species at the time of listing.
However, as discussed in the Criteria Used To Identify Critical Habitat
section above, we alternatively designate Subunit 1a under section
3(5)(A)(ii) of the Act because the subunit is essential for the
conservation
[[Page 72088]]
of Riverside fairy shrimp, regardless of occupancy data at the time of
listing. Thus, for the purposes of this rulemaking, we determine that
Subunit 1a meets the definition of critical habitat in section
3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species (nonnative grasses and Schinus molle (Peruvian pepper) groves)
and alterations to the hydrological cycle, including type conversion of
habitat; activities that remove or destroy the habitat assemblage of
the pools, such as creation of fuel breaks, mowing, and grading; and
human encroachment that occurs in the area. These threats could impact
the water chemistry characteristics that support Riverside fairy shrimp
(PCE 1) and disrupt the surrounding watershed that provides water to
fill the pool in the winter and spring (PCE 2). For example, inundation
from artificial water sources can cause pools to stay inundated longer
than normal or even convert vernal pools into perennial pools that are
not suitable for Riverside fairy shrimp (Service 2008, p. 16). Please
see Special Management Considerations or Protection section of this
final rule for a discussion of the threats to Riverside fairy shrimp
habitat and potential management considerations.
Subunit 1b: South of Tierra Rejada Valley
Subunit 1b is located near the City of Moorpark in Ventura County,
California. This subunit is approximately 1 mi (1.5 km) southeast of
Subunit 1a and east of State Highway 23. Subunit 1b consists of 31 ac
(13 ha) of locally owned land and 417 ac (169 ha) of private land. We
assume that Subunit 1b was not identified in the 1998 Recovery Plan
(Appendix F) because at that time we were unable to confirm occupancy.
To the best of our knowledge, this subunit has never been protocol
surveyed to confirm the presence or absence of Riverside fairy shrimp
(C. Dellith 2010, pers. comm.). This subunit, however, was proposed and
designated as critical habitat in the 2005 final revised critical
habitat rule because we considered it occupied (see discussion below)
and because the necessary PCEs were present. We continue to presume
that Subunit 1b is occupied, despite the absence of protocol survey
results, and have determined that the subunit contains the PCEs.
Subunit 1b is located approximately 1 mile to the south of Tierra
Rejada Preserve (Subunit 1a) within the Tierra Rejada Valley watershed.
Like Subunit 1a, this pool is one of the last representatives of what
is believed to be a historical distribution of coastal terrace vernal
pools common to the marine terraces and inland area of Ventura County
prior to the 1950s (Hecht et al. 1998, p. 6 and Appendix A). This
subunit is considered occupied based on several factors that strongly
suggest the likelihood of Riverside fairy shrimp occurrence. As
discussed in the 2005 proposed rule (70 FR 19154; April 12, 2005),
these are: (1) The important biotic and abiotic conditions (soil type,
geology, morphology, local climate, topography, and plant associations,
for example, Orcuttia californica, which suggests the presence of
vernal pool ponding at the appropriate season and for the appropriate
duration); (2) topographic features and ponding evidence based on
aerial surveys that confirm a ponding pool basin; (3) several large
permanent and semipermanent pools observed within the subunit's local
watershed; (4) proximity (less than 1 mi (< 1 km)) to a known Riverside
fairy shrimp occurrence, and likely within the known dispersal distance
expected for an invertebrate species with a resistant cyst stage; and
(5) the determination that Subunit 1a and Subunit 1b are adjoined,
based on fluvial and geomorphic evidence that suggest the Tierra Rejada
Valley river system once likely connected the two pools and would have
provided the connectivity to disperse cysts between the two subunits.
Subunit 1b is designated as revised critical habitat because we
have determined it is essential for the conservation of the species. It
includes one or more pools capable of maintaining habitat function,
genetic diversity, and species viability (Service 1998a, p. 65) for
Riverside fairy shrimp at the northern limit of its current
distribution, and is near, and likely has connectivity with, a known
occupied location of ecological and distributional significance. It is
also essential because the best supporting evidence indicates the basin
contains the appropriate depth and ponding duration (PCE 1), soils and
topography (PCEs 2 and 3), elevation, and water chemistry (pH,
temperature, salinity, etc.; PCE 1) to satisfy the life-history needs
of existing Riverside fairy shrimp populations.
Though the life history of Riverside fairy shrimp suggests that
Subunit 1b was occupied at the time of listing, specific documentation
of occupancy is lacking. Based on the biology and life history of
Riverside fairy shrimp, we believe that the subunit was indeed occupied
at the time of listing, and that it meets the definition of critical
habitat under section 3(5)(A)(i) of the Act because it is within the
geographical area occupied by the species at the time of listing and
contains all of the PCEs. However, as discussed in the Criteria Used To
Identify Critical Habitat section above, we alternatively designate
Subunit 1b under section 3(5)(A)(ii) of the Act because we consider
this subunit essential for the conservation of Riverside fairy shrimp,
regardless of occupancy data at the time of listing. Thus, for the
purposes of this rulemaking, we determine that Subunit 1b meets the
definition of critical habitat under section 3(5)(A)(i) or,
alternatively, under section 3(5)(A)(ii) of the Act.
Unit 2: Los Angeles Basin--Orange County Foothills
Unit 2 is located in central coastal Orange County and consists of
4 subunits totaling approximately 396 ac (160 ha) of privately owned
land. Unit 2 falls within the Los Angeles Basin-Orange County
Management Area as outlined in the 1998 Recovery Plan. The majority of
vernal pools in this management area were extirpated prior to 1950, and
only a small number of vernal pools remain in Los Angeles and Orange
Counties (Service 1998a, p. 40).
This unit includes the vernal pools and vernal pool-like ephemeral
ponds located along a north-south band in the Orange County Foothills.
It includes examples of the historical distribution of coastal terraces
at moderate elevations (183 to 414 m (600 to 1,358 ft)), and includes
ephemeral ponds formed by landslides and fault activity, and remnant
stream (fluvial) terraces along foothill ridgelines (Taylor et al.
2006, pp. 1-2). Occupied Riverside fairy shrimp pools occur on former
MCAS El Toro; Southern California Edison (SCE) Viejo Conservation Bank;
Saddleback Meadows; O'Neill Regional Park (near Trabuco Canyon east of
Tijeras Creek at the intersection of Antonio Parkway and the Foothill
Transportation Corridor (FTC-north segment)); O'Neill Regional Park
(near Ca[ntilde]ada Gobernadora); Chiquita Ridge; Radio Tower Road; and
San Onofre State Beach, State Park-leased land (near Christianitos
Creek foothills) that falls partially within MCB Camp Pendleton. These
vernal pools are the last remaining vernal pools in Orange County known
to support this species (58 FR 41384; August 3, 1993) and represent a
unique type of vernal pool habitat that differs from the
[[Page 72089]]
traditional mima mound vernal pool complexes of coastal San Diego
County, the coastal pools at MCB Camp Pendleton, and the inland pools
of Riverside County (70 FR 19182).
Unit 2 is within the geographical area occupied by the species at
the time of listing. The areas within Unit 2 are occupied and contain
the physical or biological features essential to the conservation of
Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1),
intermixed wetland and upland habitats that act as the local watershed
(PCE 2), and the topography and soils that support ponding during
winter and spring months (PCE 3); in almost all cases, slow-moving or
still surface water and saturated soils are present at or near vernal
pool habitat. Conservation of an array of vernal pools that contain the
physical or biological features essential to the conservation of
Riverside fairy shrimp in the foothill region of Orange County provides
for necessary habitat function, natural genetic diversity and exchange,
and species viability in the central portion of the species' range.
Subunit 2dA: Saddleback Meadows
Subunit 2dA is located in the community of Silverado in southern
Orange County, California. This subunit is near the St. Michael's
College Preparatory School, east of El Toro Road and southwest of Live
Oak Canyon Road. Subunit 2dA consists of 252 ac (102 ha) of privately
owned land. It contains areas identified in the 1998 Recovery Plan
(Appendix F) as necessary to stabilize and protect (conserve) existing
populations of Riverside fairy shrimp, as well as other proposed and
listed vernal pool species. This subunit is essential to the
conservation and recovery of Riverside fairy shrimp because it is
currently occupied and includes one or more pools necessary to maintain
habitat function, genetic diversity, and species viability (Service
1998a, p. 65). Further, it is essential because the basin contains the
appropriate depth and ponding duration, soils, elevation, and water
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy
shrimp's life-history needs. This vernal pool complex includes a series
of natural and impounded cattle troughs that have been breached and
degraded by past agricultural activities and urban development.
Additionally, Subunit 2dA is an important link to the northern occupied
locations, and represents a nearby source for recolonization of pools
in the Orange County foothills.
Subunit 2dA contains the physical or biological features essential
to the conservation of Riverside fairy shrimp, including ephemeral
wetland habitat (PCE 1), intermixed wetland and upland habitats that
act as the local watershed (PCE 2), and topography and soils that
support ponding during winter and spring months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy
in Subunit 2dA at the time of listing. However, Subunit 2dA contains
the physical or biological features necessary to the conservation of
the species and these features support life-history characteristics of
Riverside fairy shrimp (such as the presence of cyst banks that
indicate long-term occupancy of a vernal pool). The presence of these
traits makes it likely that the subunit was occupied at the time of
listing, and that it meets the definition of critical habitat under
section 3(5)(A)(i) of the Act because it is within the geographical
area occupied by the species at the time of listing. However, as
discussed in the Criteria Used To Identify Critical Habitat section
above, we alternatively designate Subunit 2dA under section 3(5)(A)(ii)
of the Act because we consider this subunit to be essential for the
conservation of Riverside fairy shrimp, regardless of occupancy data at
the time of listing. Thus, for the purposes of this rulemaking, we
determine that Subunit 2dA meets the definition of critical habitat
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii)
of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species, development, or grazing that may occur in the vernal pool
basins. These threats could impact the water chemistry characteristics
that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding
watershed that provides water to fill the pool in the winter and spring
(PCE 2). Please see the Special Management Considerations or Protection
section of this final rule for a discussion of the threats to Riverside
fairy shrimp habitat and potential management considerations.
Subunit 2dB: O'Neill Regional Park (Near Trabuco Canyon)
Subunit 2dB is located approximately 1.5 km (1 mi) southeast of
Subunit 2dA in southern Orange County, California. This subunit is west
of Live Oak Canyon Road and northeast of the O'Neill Regional Park,
near Ca[ntilde]ada Gobernadora (see Subunit 2e below). In the 2008 5-
year review, this area was referred to as ``O'Neill Park/Clay Flats
pond property'' (Service 2008, p. 7). Subunit 2dB consists of 15 ac (6
ha) of privately owned land. Subunit 2dB was not specifically
identified in the 1998 Recovery Plan (Appendix F), but is classified as
necessary to stabilize and protect (conserve) existing populations of
Riverside fairy shrimp within the ``Orange County Foothills
(undescribed)'' heading in Appendix F (Service 1998a, p. F1).
This subunit is essential for the conservation of Riverside fairy
shrimp because it is currently occupied and includes one or more pools
essential to maintain habitat function, genetic diversity, and species
viability (Service 1998a, p. 65). Further, it is essential because the
basin contains the appropriate depth and ponding duration, soils,
elevation, and water chemistry (pH, temperature, salinity, etc.) to
fulfill Riverside fairy shrimp's life-history needs. Subunit 2dB
contains the physical or biological features essential to the
conservation of Riverside fairy shrimp, including ephemeral wetland
habitat (PCE 1), intermixed wetland and upland habitats that act as the
local watershed (PCE 2), and topography and soils that support ponding
during winter and spring months (PCE 3). A portion of this subunit lies
at 1,413 ft (431 m), and is among the highest elevation occurrences of
Riverside fairy shrimp.
We are lacking specific documentation of Riverside fairy shrimp
occupancy in Subunit 2dB at the time of listing. However, Subunit 2dB
contains the physical or biological features necessary to the
conservation of the species and these features support life-history
characteristics of Riverside fairy shrimp (such as the presence of cyst
banks that indicate long-term occupancy of a vernal pool). The presence
of these traits makes it likely that the subunit was occupied at the
time of listing, and that it meets the definition of critical habitat
under section 3(5)(A)(i) of the Act because it is within the
geographical area occupied by the species at the time of listing.
However, as discussed in the Criteria Used To Identify Critical Habitat
section above, we alternatively designate Subunit 2dB under section
3(5)(A)(ii) of the Act because we consider the subunit essential for
the conservation of Riverside fairy shrimp, regardless of occupancy
data at the time of listing. Thus, for the purposes of this rulemaking,
we determine that Subunit 2dB meets the definition of critical habitat
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii)
of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require
[[Page 72090]]
special management considerations or protection to address threats from
nonnative plant species and activities, such as unauthorized
recreational use, OHV use, and fire management. These threats could
impact the water chemistry characteristics that support Riverside fairy
shrimp (PCE 1) and disrupt the surrounding watershed that provides
water to fill the pool in the winter and spring (PCE 2) as well as the
vegetative coverage and soil substrates surrounding the pool (PCE 2).
Please see the Special Management Considerations or Protection section
of this final rule for a discussion of the threats to Riverside fairy
shrimp habitat and potential management considerations.
Subunit 2e: O'Neill Regional Park (Near Ca[ntilde]ada Gobernadora)
Subunit 2e is located near the city of Rancho Santa Margarita in
southern Orange County, California, and is currently occupied. This
subunit is east of Ca[ntilde]ada Gobernadora and bounded to the west by
State Highway 241. In the 2008 5-year review this area was referred to
as ``east of Tijeras Creek complex'' (Service 2008, p. 7). Subunit 2e
consists of 22 ac (9 ha) of private land. Subunit 2e was not
specifically identified in the 1998 Recovery Plan (Appendix F), but was
classified as necessary to stabilize and protect (conserve) existing
populations of Riverside fairy shrimp within the ``Orange County
Foothills (undescribed)'' heading in Appendix F (Service 1998a, p. F1).
This subunit is essential for the conservation of Riverside fairy
shrimp because it includes one or more pools essential to maintain
habitat function, genetic diversity, and species viability (Service
1998a, p. 65). Further, it is essential because the basin contains the
appropriate depth and ponding duration, soils, elevation, and water
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy
shrimp's life-history needs. Areas within this subunit contain clay,
clay loam, or sandy loam, and consist primarily of dry-land agriculture
and sagebrush-buckwheat scrub habitat. Located in the water drainages
of the foothills of the Santa Ana Mountains, this pool rests in a
canyon bottomland at approximately 919 ft (280 m) of elevation.
Subunit 2e contains the physical or biological features essential
to the conservation of Riverside fairy shrimp including clay soils and
loamy soils underlain by a clay subsoil (PCE 3); areas with a natural,
generally intact surface and subsurface soil structure (PCE 2); and the
ephemeral habitat (PCE 1) that supports Riverside fairy shrimp,
including slow-moving or still surface water and/or saturated soils.
Subunit 2e also supports a stable, persistent occurrence of the
species.
We are lacking specific documentation of Riverside fairy shrimp
occupancy in Subunit 2e at the time of listing. However, Subunit 2e
contains the physical or biological features necessary to the
conservation of the species and these features support life-history
characteristics of Riverside fairy shrimp (such as the presence of cyst
banks that indicate long-term occupancy of a vernal pool). The presence
of these traits makes it likely that the subunit was occupied at the
time of listing, and that it meets the definition of critical habitat
under section 3(5)(A)(i) of the Act because it is within the
geographical area occupied by the species at the time of listing.
However, as discussed in the Criteria Used To Identify Critical Habitat
section above, we alternatively designate Subunit 2e under section
3(5)(A)(ii) of the Act because we consider the subunit to be essential
for the conservation of Riverside fairy shrimp, regardless of occupancy
data at the time of listing. Thus, for the purposes of this rulemaking,
we determine that Subunit 2e meets the definition of critical habitat
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii)
of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species and anthropogenic activities (for example, surrounding
residential and commercial development, unauthorized recreational use,
OHV use, and fire management). These threats could impact the water
chemistry characteristics that support Riverside fairy shrimp (PCE 1)
and disrupt the surrounding watershed that provides water to fill the
pool in the winter and spring (PCE 2) as well as the vegetative
coverage and soil substrates surrounding the pool (PCE 2). Please see
the Special Management Considerations or Protection section of this
final rule for a discussion of the threats to Riverside fairy shrimp
habitat and potential management considerations.
Subunit 2h: San Onofre State Beach, State Park-Leased Lands
Subunit 2h is located along the border between Orange and San Diego
Counties, southeast of Richard Steed Memorial Park and north of
Christianitos Road. Nearly half of this subunit (105 ac (42 ha)) occurs
on Department of Defense (DOD) land on MCB Camp Pendleton, and is
exempt from critical habitat under section 4(a)(3)(B)(i) of the Act.
The other half of Subunit 2h consists of 107 ac (43 ha) of privately
owned land. The portion of Subunit 2h that falls within DOD land, the
``Cal State Parks Lease,'' as described in the 2007 Integrated Natural
Resources Management Plan (INRMP) (U.S. Marine Corps 2007, p. 2-30), is
part of a lease agreement made between the U.S. Marine Corps and
California State Department of Parks on September 1, 1971, for a 50-
year term. Portions of Subunit 2h exempt from this final critical
habitat rule include military thoroughfares (roads), military training
with advanced coordination, utility easements, fire suppression
activities, and public recreation. The presence of Riverside fairy
shrimp in Subunit 2h was discovered after the 1993 listing rule and
1998 Recovery Plan were written.
This subunit is essential for the conservation of Riverside fairy
shrimp because it is currently occupied and includes one or more pools
essential to maintain habitat function, genetic diversity, and species
viability (Service 1998a, p. 65). It represents an important ecological
linkage for genetic exchange between the coastal mesa pools of San
Diego and the Orange County Foothills occurrences. Further, it is
essential because the basin contains the appropriate depth and ponding
duration, soils, elevation, and water chemistry (pH, temperature,
salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs.
Subunit 2h consists of two sag ponds (a pool that forms as a result
of movement between two plates on an active fault line) at the eastern
section of the unit and their associated upland watersheds on land
within Orange County near the city of San Clemente. Subunit 2h contains
the physical or biological features essential to the conservation of
Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1),
intermixed wetland and upland habitats that act as the local watershed
(PCE 2), and topography and soils that support ponding during winter
and spring months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy
in Subunit 2h at the time of listing. However, Subunit 2h contains the
physical or biological features necessary to the conservation of the
species and these features support life-history characteristics of
Riverside fairy shrimp (such as the presence of cyst banks that
indicate long-term occupancy of a vernal pool). The presence of these
traits makes it likely that the subunit was occupied at the time of
listing, and that
[[Page 72091]]
it meets the definition of critical habitat under section 3(5)(A)(i) of
the Act because it is within the geographical area occupied by the
species at the time of listing. As discussed in the Criteria Used To
Identify Critical Habitat section above, we alternatively designate
Subunit 2h under section 3(5)(A)(ii) of the Act because we consider the
subunit essential for the conservation of Riverside fairy shrimp,
regardless of occupancy data at the time of listing. Thus, for the
purposes of this rulemaking, we determine that Subunit 2h meets the
definition of critical habitat under section 3(5)(A)(i) or,
alternatively, under section 3(5)(A)(ii) of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species and anthropogenic activities (for example, military activities,
unauthorized recreational use, agricultural runoff, OHV use, and fire
management). These threats could disrupt the surrounding watershed that
provides water to fill the pool in the winter and spring (PCE 2) as
well as the vegetative coverage and soil substrates surrounding the
pool (PCE 2). Please see the Special Management Considerations or
Protection section of this final rule for a discussion of the threats
to Riverside fairy shrimp habitat and potential management
considerations. The 105 ac (42 ha) of lands identified as critical
habitat within the boundaries of MCB Camp Pendleton are exempt from
critical habitat under section 4(a)(3)(B)(i) of the Act.
Unit 5: San Diego Southern Coastal Mesas
Unit 5 is located in Southern San Diego County and consists of
seven subunits totaling 862 ac (349 ha). This unit contains 250 ac (101
ha) of State-owned land, 157 ac (64 ha) of locally owned land, and 455
ac (184 ha) of private land. This unit falls within the San Diego
Southern Coastal Management Area, as identified in the 1998 Recovery
Plan. Land we are designating as critical habitat includes vernal pool
complexes within the jurisdiction of the Service, City of San Diego,
County of San Diego, other DOD land, and private interests. This unit
contains several mesa-top vernal pool complexes on western Otay Mesa
(Bauder vernal pool complexes J2 N, J2 S, J2 W, J4, J5, J11 W, J11 E,
J12, J16-18, J33) and eastern Otay Mesa (Bauder pool complexes J29-31,
J33) as in Appendix D of City of San Diego (2004).
These vernal pool complexes are associated with coastal mesas from
the Sweetwater River south to the U.S.-Mexico International Border, and
represent the southernmost occurrences of Riverside fairy shrimp in the
United States. This unit is also genetically diverse, including two
haplotypes (a unique copy or form of a sequenced gene region) not found
outside of the Otay Mesa area (Lahti et al. 2010, Table 5).
Additionally, Otay Mesa pools are significantly differentiated from one
another (Lahti et al. 2010, p. 19). This area is essential for the
conservation of Riverside fairy shrimp for the following reasons: (1)
These vernal pool complexes represent the few remaining examples of the
much larger and mostly extirpated vernal pool complexes on the highly
urbanized Otay Mesa (Bauder 1986a); (2) recent genetic work indicates
that complexes within this unit (J26, J29-30) support Riverside fairy
shrimp with the unique haplotype B; and (3) this is one of only three
locations that supports haplotype C (Lahti et al. 2010). Maintaining
this unique genetic structure may be crucial in the conservation of
this species. Unit 5 is within the geographical area occupied by the
species at the time of listing.
Subunit 5a: Sweetwater (J33)
Subunit 5a is located in the City of San Diego in southern San
Diego County, California. This subunit is at Sweetwater High School
(site J33), south of the intersection between Otay Mesa and Airway
Roads. Subunit 5a consists of 2 ac (less than 1 ha) of locally owned
land and less than 1 ac (< 1 ha) of private land. Subunit 5a contains
areas identified in the 1998 Recovery Plan (Appendix F) as necessary to
stabilize and protect (conserve) existing populations of Riverside
fairy shrimp, as well as other proposed and listed vernal pool species.
This subunit is essential for the conservation of Riverside fairy
shrimp because it includes one or more pools essential to maintain
habitat function, genetic diversity, and species viability (Service
1998a, p. 65). Further, it is essential because the basin contains the
appropriate depth and ponding duration, soils, elevation, and water
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy
shrimp's life-history needs. This subunit is under the ownership of the
Sweetwater Union High School District.
We lack specific documentation of Riverside fairy shrimp occupancy
in Subunit 5a at the time of listing. However, Subunit 5a contains the
physical or biological features necessary to the conservation of the
species and these features support life-history characteristics of
Riverside fairy shrimp (such as the presence of cyst banks that
indicate long-term occupancy of a vernal pool). The presence of these
traits makes it likely that the subunit was occupied at the time of
listing, and that it meets the definition of critical habitat under
section 3(5)(A)(i) of the Act because it is within the geographical
area occupied by the species at the time of listing. As discussed in
the Criteria Used To Identify Critical Habitat section above, we
alternatively designate Subunit 5a under section 3(5)(A)(ii) of the Act
because we consider the subunit essential for the conservation of
Riverside fairy shrimp, regardless of occupancy data at the time of
listing. Thus, for the purposes of this rulemaking, we determine that
Subunit 5a meets the definition of critical habitat under section
3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the Act.
Subunit 5a contains the physical or biological features essential
to the conservation of Riverside fairy shrimp, including ephemeral
wetland habitat (PCE 1), intermixed wetland and upland habitats that
act as the local watershed (PCE 2), and topography and soils
(Olivenhain cobbly loam soil series) that support ponding during winter
and spring months (PCE 3). The physical or biological features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from nonnative plant species, unauthorized recreational use and
OHV use, and other human-related activities. These threats could impact
the water chemistry characteristics that support Riverside fairy shrimp
(PCE 1) and disrupt the surrounding watershed that provides water to
fill the pool in the winter and spring (PCE 2) as well as the
vegetative coverage surrounding the pool (PCE 2). Please see the
Special Management Considerations or Protection section of this rule
for a discussion of the threats to Riverside fairy shrimp habitat and
potential management considerations.
Subunit 5c: East Otay Mesa
Subunit 5c is located in the eastern Otay Mesa region of southern
San Diego County, California. This subunit is approximately 1.75 mi
(2.75 km) southeast of Kuebler Ranch and just north of the U.S.-Mexico
Border. Subunit 5c consists of 57 ac (23 ha) of privately owned land.
These lands fall within the County of San Diego Subarea Plan under the
San Diego MSCP. Subunit 5c was not specifically identified in the 1998
Recovery Plan (Appendix F), but is classified as
[[Page 72092]]
necessary to stabilize and protect (conserve) existing populations of
Riverside fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay
Mesa'' heading in Appendix F (Service 1998a, p. F1). The pool in
Subunit 5c is not included in the list above, but is within the
geographical area of those listed pools. Areas within Subunit 5c were
also identified as essential in the previous critical habitat rules for
Riverside fairy shrimp (66 FR 29384, May 30, 2001; 70 FR 19154, April
12, 2005). Subunit 5c contains one vernal pool; this pool is occupied
by Riverside fairy shrimp. It also contains a small stream as well as
the downward slope and mima mound topography that make up the watershed
associated with the occupied vernal pool.
This subunit is currently occupied; dry season surveys in 2011 by
Busby Biological Services documented the presence of Riverside fairy
shrimp cysts (Busby Biological Services 2011, entire). This subunit was
first documented as occupied in 2000 (GIS ID 4). Though the stock pond
in Subunit 5c was not surveyed by Lahti et al. (2010), other vernal
pools surveyed in Otay Mesa were found to have unique genetic diversity
in the range of the species, including two haplotypes not found
elsewhere. Otay Mesa pools also show significant genetic
differentiation from each other (Lahti et al. 2010, p. 19). Given the
subunit's location as the very easternmost pool in Otay Mesa, we
determine that Subunit 5c may also host unique genetic diversity.
This subunit is essential for the conservation of Riverside fairy
shrimp because its occupied pool and surrounding watershed are
essential to maintain habitat function, genetic diversity, and species
viability (Service 1998a, p. 65). Further, it is essential because the
basin contains the appropriate depth and ponding duration, soils,
elevation, and water chemistry (pH, temperature, salinity, etc.) to
fulfill Riverside fairy shrimp's life-history needs. The vernal pool in
this subunit has been impacted by OHV use, cattle grazing, development,
and nonnative grasses. Subunit 5c contains the physical or biological
features essential to the conservation of Riverside fairy shrimp,
including ephemeral wetland habitat (PCE 1), intermixed wetland and
upland habitats that act as the local watershed (PCE 2), and topography
and soils that support ponding during winter and spring months (PCE 3).
This subunit also contains critical habitat for the endangered Quino
checkerspot butterfly (Euphydryas editha quino) and is occupied by both
the Quino checkerspot butterfly and San Diego fairy shrimp (72 FR
70648, December 12, 2007; 74 FR 28776, June 17, 2009).
We lack specific documentation of Riverside fairy shrimp occupancy
in Subunit 5c at the time of listing. However, Subunit 5c contains the
physical or biological features necessary to the conservation of the
species and these features support life-history characteristics of
Riverside fairy shrimp (such as the presence of cyst banks that
indicate long-term occupancy of a vernal pool). The presence of these
traits makes it likely that the subunit was occupied at the time of
listing, and that it meets the definition of critical habitat under
section 3(5)(A)(i) of the Act because it is within the geographical
area occupied by the species at the time of listing. As discussed in
the Criteria Used To Identify Critical Habitat section above, we
alternatively designate Subunit 5c under section 3(5)(A)(ii) of the Act
because we consider the subunit to be essential for the conservation of
Riverside fairy shrimp, regardless of occupancy data at the time of
listing. Thus, for the purposes of this rulemaking, we determine that
Subunit 5c meets the definition of critical habitat under section
3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii) of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species and anthropogenic activities (for example, development, OHV
use, water runoff, and grazing). These threats could impact the water
chemistry characteristics that support Riverside fairy shrimp (PCE 1)
and disrupt the surrounding watershed that provides water to fill the
pool in the winter and spring (PCE 2) as well as the vegetative
coverage and soil substrates surrounding the pool (PCE 2). Please see
the Special Management Considerations or Protection section of this
final rule for a discussion of the threats to Riverside fairy shrimp
habitat and potential management considerations.
Subunit 5d: J29-31
Subunit 5d is located in the Otay Mesa region of southern San Diego
County, California. This subunit is to the east and west of State
Highway 125, south of the Otay Valley, and north of the U.S.-Mexico
Border. Subunit 5d consists of 347 ac (140 ha), including less than 1
ac (< 1 ha) of federally owned land, 205 ac (83 ha) of State-owned land
(Caltrans), and 142 ac (57 ha) of private land. One vernal pool complex
within Subunit 5d (J31) was not specifically identified in the 1998
Recovery Plan (Appendix F). However, pool J31 within the same watershed
as pool complexes J29 and J30, both of which were listed as necessary
to stabilize and protect (conserve) existing populations of Riverside
fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay Mesa''
heading in Appendix F (Service 1998a, p. F1). This subunit was
confirmed occupied at the time of listing by protocol surveys, and is
currently occupied. Subunit 5d is within the geographical area occupied
by the species at the time of listing. Therefore, we are designating it
under section 3(5)(A)(i) of the Act.
This subunit is essential for the conservation of Riverside fairy
shrimp because it includes one or more pools essential to maintain
habitat function, genetic diversity, and species viability (Service
1998a, p. 65). Further, it is essential because the basin contains the
appropriate depth and ponding duration, soils, elevation, and water
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy
shrimp's life-history needs. Subunit 5d is predominantly in the City of
San Diego in San Diego County, California, although portions of pools
J29-31 are within the County of San Diego's jurisdiction. This subunit
contains a large area of habitat that supports sizable occurrences of
Riverside fairy shrimp, and provides potential connectivity between
occurrences of Riverside fairy shrimp in Subunits 5e and 5c. This
subunit contains several mesa-top vernal pool complexes on eastern Otay
Mesa (Bauder vernal pool complexes J22, J29, J30, J31 N, J31 S as in
Appendix D of City of San Diego (2004) and Service GIS files). Subunit
5d contains the physical or biological features essential to the
conservation of Riverside fairy shrimp, including ephemeral wetland
habitat (PCE 1), intermixed wetland and upland habitats that act as the
local watershed (PCE 2), and topography and soils that support ponding
during winter and spring months (PCE 3).
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species and anthropogenic activities (for example, OHV use,
unauthorized recreational use, impacts from development (including
water runoff), and fire management). These threats could impact the
water chemistry characteristics that support Riverside fairy shrimp
(PCE 1) and disrupt the surrounding watershed that provides water to
fill the pool in the winter and spring (PCE 2) as well as the
[[Page 72093]]
vegetative coverage and soil substrates surrounding the pool (PCE 2).
Please see the Special Management Considerations or Protection section
of this final rule for a discussion of the threats to Riverside fairy
shrimp habitat and potential management considerations.
Subunit 5e: J2 N, J4, J5 (Robinhood Ridge)
Subunit 5e is located in the Otay Mesa region of southern San Diego
County, California. This subunit is approximately 1 mi (1.5 km) east of
Ocean View Hills Parkway, 0.6 mi (1 km) north of State Highway 905, and
bounded by Vista Santo Domingo to the east. Subunit 5e consists of 44
ac (18 ha), including 32 ac (13 ha) of locally owned land and 12 ac (5
ha) of private land. Subunit 5e was not specifically identified in the
1998 Recovery Plan (Appendix F), but is classified as necessary to
stabilize and protect (conserve) existing populations of Riverside
fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay Mesa''
heading in Appendix F (Service 1998a, p. F1). This subunit is currently
occupied.
This subunit is essential for the conservation of Riverside fairy
shrimp because it includes one or more pools essential to maintain
habitat function, genetic diversity, and species viability (Service
1998a, p. 65). Further, it is essential because the basin contains the
appropriate depth and ponding duration, soils, elevation, and water
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy
shrimp's life-history needs. Subunit 5e contains the physical or
biological features essential to the conservation of Riverside fairy
shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland
and upland habitats that act as the local watershed (PCE 2), and the
topography and soils that support ponding during winter and spring
months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy
in Subunit 5e at the time of listing. However, Subunit 5e contains the
physical or biological features necessary to the conservation of the
species and these features support life-history characteristics of
Riverside fairy shrimp (such as the presence of cyst banks that
indicate long-term occupancy of a vernal pool). The presence of these
traits makes it likely that the subunit was occupied at the time of
listing, and that it meets the definition of critical habitat under
section 3(5)(A)(i) of the Act because it is within the geographical
area occupied by the species at the time of listing. However, as
discussed in the Criteria Used To Identify Critical Habitat section
above, we alternatively designate Subunit 5e under section 3(5)(A)(ii)
of the Act because we consider the subunit to be essential for the
conservation of Riverside fairy shrimp, regardless of occupancy data at
the time of listing. Thus, for the purposes of this rulemaking, we
determine that Subunit 5e meets the definition of critical habitat
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii)
of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species and anthropogenic activities (for example, OHV use,
unauthorized recreational use, impacts from development, and fire
management). These threats could impact the water chemistry
characteristics that support Riverside fairy shrimp (PCE 1) and disrupt
the surrounding watershed that provides water to fill the pool in the
winter and spring (PCE 2) as well as the vegetative coverage and soil
substrates surrounding the pool (PCE 2). Please see the Special
Management Considerations or Protection section of this final rule for
a discussion of the threats to Riverside fairy shrimp habitat and
potential management considerations.
Subunit 5f: J2 W, J2 S (Hidden Trails, Cal Terraces, Otay Mesa Road)
Subunit 5f is located in the Otay Mesa region of southern San Diego
County, California, and consists of three pool complexes. All complexes
are located north of State Highway 905 and southwest of Subunit 5e,
with one complex in the lot southwest of Ocean View Hills Parkway, one
bounded to the west by Hidden Trails Road, and one bounded to the west
by Corporate Center Drive. Subunit 5f consists of 22 ac (9 ha) of
locally owned land and 11 ac (4 ha) of private land. Subunit 5f was not
mentioned by name in the 1998 Recovery Plan (Appendix F), but portions
of vernal pool complexes within the units (J2 W and J2 S) were listed
as necessary to stabilize and protect (conserve) existing populations
of Riverside fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay
Mesa'' heading in Appendix F (Service 1998a, p. F1). This subunit is
currently occupied.
This subunit is essential for the conservation of Riverside fairy
shrimp because it includes one or more pools essential to maintain
habitat function, genetic diversity, and species viability (Service
1998a, p. 65). Further, it is essential because the basin contains the
appropriate depth and ponding duration, soils, elevation, and water
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy
shrimp's life-history needs. Subunit 5f contains the physical or
biological features essential to the conservation of Riverside fairy
shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland
and upland habitats that act as the local watershed (PCE 2), and
topography and soils that support ponding during winter and spring
months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy
in Subunit 5f at the time of listing. However, Subunit 5f contains the
physical or biological features necessary to the conservation of the
species and these features support life-history characteristics of
Riverside fairy shrimp (such as the presence of cyst banks that
indicate long-term occupancy of a vernal pool). The presence of these
traits makes it likely that the subunit was occupied at the time of
listing, and that it meets the definition of critical habitat under
section 3(5)(A)(i) of the Act because it is within the geographical
area occupied by the species at the time of listing. However, as
discussed in the Criteria Used To Identify Critical Habitat section
above, we alternatively designate Subunit 5f under section 3(5)(A)(ii)
of the Act because we consider the subunit to be essential for the
conservation of Riverside fairy shrimp, regardless of occupancy data at
the time of listing. Thus, for the purposes of this rulemaking, we
determine that Subunit 5f meets the definition of critical habitat
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii)
of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species and anthropogenic activities (for example, OHV use;
unauthorized recreational use; impacts from development, including
water runoff; and fire management). These threats could impact the
water chemistry characteristics that support Riverside fairy shrimp
(PCE 1) and disrupt the surrounding watershed that provides water to
fill the pool in the winter and spring (PCE 2) as well as the
vegetative coverage and soil substrates surrounding the pool (PCE 2).
Please see the Special Management Considerations or Protection section
of this final rule for a discussion of the threats to Riverside fairy
shrimp habitat and potential management considerations.
[[Page 72094]]
Subunit 5g: J14
Subunit 5g is located in the Otay Mesa region of southern San Diego
County, California. This subunit is south of State Highway 905,
southeast of Caliente Avenue, west of Heritage Road, and northwest of
Spring Canyon. Subunit 5g consists of 45 ac (18 ha) of State-owned land
(Caltrans), 18 ac (7 ha) of locally owned land, and 72 ac (29 ha) of
private land. Subunit 5g was not mentioned by name in the 1998 Recovery
Plan (Appendix F), but is included in the list of vernal pool complexes
necessary to stabilize and protect (conserve) existing populations of
Riverside fairy shrimp within the ``J2, J5, J7, J11-21, J23-30 Otay
Mesa'' heading in Appendix F (Service 1998a, p. F1). This subunit is
currently occupied.
This subunit is essential for the conservation of Riverside fairy
shrimp because it includes one or more pools essential to maintain
habitat function, genetic diversity, and species viability (Service
1998a, p. 65). Further, it is essential because the basin contains the
appropriate depth and ponding duration, soils, elevation, and water
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy
shrimp's life-history needs. Subunit 5g contains the physical or
biological features essential to the conservation of Riverside fairy
shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland
and upland habitats that act as the local watershed (PCE 2), and
topography and soils that support ponding during winter and spring
months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy
in Subunit 5g at the time of listing. However, Subunit 5g contains the
physical or biological features necessary to the conservation of the
species and these features support life-history characteristics of
Riverside fairy shrimp (such as the presence of cyst banks that
indicate long-term occupancy of a vernal pool). The presence of these
traits makes it likely that the subunit was occupied at the time of
listing, and that it meets the definition of critical habitat under
section 3(5)(A)(i) of the Act because it is within the geographical
area occupied by the species at the time of listing. However, as
discussed in the Criteria Used To Identify Critical Habitat section
above, we alternatively designate Subunit 5g under section 3(5)(A)(ii)
of the Act because we consider the subunit to be essential for the
conservation of Riverside fairy shrimp, regardless of occupancy data at
the time of listing. Thus, for the purposes of this rulemaking, we
determine that Subunit 5g meets the definition of critical habitat
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii)
of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species and anthropogenic activities (for example, OHV use;
unauthorized recreational use; impacts from development, (including
water runoff and fire management). These threats could impact the water
chemistry characteristics that support Riverside fairy shrimp (PCE 1)
and disrupt the surrounding watershed that provides water to fill the
pool in the winter and spring (PCE 2) as well as the vegetative
coverage and soil substrates surrounding the pool (PCE 2). Please see
the Special Management Considerations or Protection section of this
final rule for a discussion of the threats to Riverside fairy shrimp
habitat and potential management considerations.
Subunit 5h: J11 E, J11 W, J12, J16-18 (Goat Mesa)
Subunit 5h is located in the Otay Mesa region of southern San Diego
County, California. This subunit is north and west of Subunit 5b,
bounded by the U.S.-Mexico Border to the south, and bisected by Jeep
Trail. Subunit 5h consists of 83 ac (34 ha) of locally owned land (City
of San Diego) and 161 ac (65 ha) of privately owned land. Subunit 5h
was not mentioned by name in the 1998 Recovery Plan (Appendix F), but
is included in the list of vernal pool complexes necessary to stabilize
and protect (conserve) existing populations of Riverside fairy shrimp
within the ``J2, J5, J7, J11-21, J23-30 Otay Mesa'' heading in Appendix
F (Service 1998a, p. F1). This subunit is currently occupied.
This subunit is essential for the conservation of Riverside fairy
shrimp because it includes one or more pools essential to maintain
habitat function, genetic diversity, and species viability (Service
1998a, p. 65). Further, it is essential because the basin contains the
appropriate depth and ponding duration, soils, elevation, and water
chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy
shrimp's life-history needs. Subunit 5h contains the physical or
biological features essential to the conservation of Riverside fairy
shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland
and upland habitats that act as the local watershed (PCE 2), and
topography and soils that support ponding during winter and spring
months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy
in Subunit 5h at the time of listing. However, Subunit 5h contains the
physical or biological features necessary to the conservation of the
species and these features support life-history characteristics of
Riverside fairy shrimp (such as the presence of cyst banks that
indicate long-term occupancy of a vernal pool). The presence of these
traits makes it likely that the subunit was occupied at the time of
listing, and that it meets the definition of critical habitat under
section 3(5)(A)(i) of the Act because it is within the geographical
area occupied by the species at the time of listing. However, as
discussed in the Criteria Used To Identify Critical Habitat section
above, we alternatively designate Subunit 5h under section 3(5)(A)(ii)
of the Act because we consider the subunit to be essential for the
conservation of Riverside fairy shrimp, regardless of occupancy data at
the time of listing. Thus, for the purposes of this rulemaking, we
determine that Subunit 5h meets the definition of critical habitat
under section 3(5)(A)(i) or, alternatively, under section 3(5)(A)(ii)
of the Act.
The physical or biological features essential to the conservation
of the species in this subunit may require special management
considerations or protection to address threats from nonnative plant
species and anthropogenic activities (for example, OHV use;
unauthorized recreational use; impacts from development, including
water runoff; and fire management). These threats could impact the
water chemistry characteristics that support Riverside fairy shrimp
(PCE 1) and disrupt the surrounding watershed that provides water to
fill the pool in the winter and spring (PCE 2) as well as the
vegetative coverage and soil substrates surrounding the pool (PCE 2).
Please see the Special Management Considerations or Protection section
of this final rule for a discussion of the threats to Riverside fairy
shrimp habitat and potential management considerations.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
[[Page 72095]]
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(CWA) (33 U.S.C. 1251 et seq.) or a permit from the Service under
section 10 of the Act) or that involve some other Federal action (such
as funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action;
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Thus, the analysis of effects to
critical habitat under Section 7(a)(2) of the Act is a separate and
distinct analysis from an analysis of the effects to the species. While
the jeopardy analysis focuses on an action's effects on the survival
and recovery of a species, the adverse modification analysis
investigates the action's effects to the designated habitat's
contribution to conservation. Activities that may destroy or adversely
modify critical habitat are those that alter the physical or biological
features to an extent that appreciably reduces the conservation value
of critical habitat for a species. The difference in outcomes of the
jeopardy and adverse modification analyses represents the regulatory
benefit of critical habitat designation.
As discussed above, the role of critical habitat is to support
life-history needs of the species and provide for the conservation of
the species. For Riverside fairy shrimp, this includes supporting
viable vernal pools containing the species and the associated
watersheds upon which the pools depend.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for Riverside fairy shrimp. These activities include, but
are not limited to:
(1) Actions that result in ground disturbance. Such activities
could include, but are not limited to, residential or commercial
development, OHV activity, pipeline construction, new road
construction, existing road maintenance (including road widening and
grading), manure dumping, and grazing. These activities potentially
impact the habitat and physical or biological features essential to
Riverside fairy shrimp by damaging, disturbing, and altering soil
composition through direct impacts, increased erosion, and increased
nutrient content. Additionally, changes in soil composition may lead to
changes in the vegetation composition, thereby changing the overall
habitat type.
(2) Actions that would impact the ability of an ephemeral wetland
to continue to provide habitat for Riverside fairy shrimp and other
native species that require this specialized habitat type. Such
activities could include, but are not limited to, water impoundment,
stream channelization, water diversion, water withdrawal, and
development activities. These activities could alter the physical or
biological features essential to the conservation of Riverside fairy
shrimp by eliminating ponding habitat; changing the duration and
frequency of the ponding events on which this species relies; making
the habitat too wet, thus allowing obligate wetland species to become
established;
[[Page 72096]]
making the habitat too dry, thus allowing upland species to become
established; causing large amounts of sediment or manure to be
deposited in Riverside fairy shrimp habitat; or causing increased
erosion and incising of waterways.
(3) Actions that result in alteration of the hydrological regimes
typically associated with Riverside fairy shrimp habitat, including
actions that would impact the soil and topography that cause water to
pond during the winter and spring months. Such activities could
include, but are not limited to, deep-ripping of soils, trenching, soil
compaction, and development activities. These activities could alter
the biological and physical features essential to the conservation of
Riverside fairy shrimp by eliminating ponding habitat, impacting the
impervious nature of the soil layer, or making the soil so impervious
that water pools for an extended period that is detrimental to
Riverside fairy shrimp (see ``Primary Constituent Elements for
Riverside Fairy Shrimp'' section above). These activities could alter
surface layers and the hydrological regime in a manner that promotes
loss of soil components, ponding regimes, or hydrological connectivity
to upland habitats that support the growth and reproduction of
Riverside fairy shrimp.
(4) Road construction and maintenance (including widening and
grading), right-of-way designation, regulation of agricultural
activities, or any activity funded or carried out by a Federal agency
that could result in excavation or mechanized clearing of Riverside
fairy shrimp critical habitat. These activities could alter the habitat
in such a way that cysts of Riverside fairy shrimp are crushed,
Riverside fairy shrimp are removed, or ephemeral wetland habitat is
permanently altered.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations that cover lands we determined meet
the definition of critical habitat for Riverside fairy shrimp to
determine if they are exempt from designation under section 4(a)(3) of
the Act. The following Department of Defense installations include
lands that meet the definition of critical habitat for Riverside fairy
shrimp and have completed, Service-approved INRMPs.
Approved INRMPs
MCB Camp Pendleton (Units 4 and Portion of 2h)
In the previous final critical habitat designation for Riverside
fairy shrimp, we exempted MCB Camp Pendleton from the designation (70
FR 19154, April 12, 2005). MCB Camp Pendleton completed their INRMP in
November 2001, and updated it in March 2007 (U.S. Marine Corps 2007).
The INRMP includes the following conservation measures for the
Riverside fairy shrimp: (1) Surveys and monitoring, studies, impact
avoidance and minimization, and habitat restoration and enhancement;
(2) species survey information stored in MCB Camp Pendleton's GIS
database and recorded in a resource atlas that is published and updated
on a semi-annual basis; (3) application of a 984-ft (300-m) radius to
protect the microwatershed buffers around current and historical
Riverside fairy shrimp locations; and (4) use of a resource atlas to
plan operations and projects to avoid impacts to Riverside fairy shrimp
and to trigger section 7 consultations if an action may affect the
species. These measures are established, ongoing aspects of existing
programs or Base directives (for example, Range and Training
Regulations), or measures that are being implemented as a result of
previous consultations.
To avoid and minimize adverse effects to Riverside fairy shrimp,
MCB Camp Pendleton implements Base directives, such as: (1) Bivouac
(temporary camps for military training purposes), command post, and
field support activities should be no closer than 984 ft (300 m) to
occupied Riverside fairy shrimp habitat year round; (2) vehicle and
equipment operations should be limited to existing road and trail
networks year round; and (3) environmental clearance is required prior
to any soil excavation, filling, or grading. MCB Camp Pendleton has
also demonstrated ongoing funding of their INRMP and management of
endangered and threatened species. MCB Camp Pendleton continues to
expend significant resources for management of federally listed species
and habitat on their land, including management actions that provide a
benefit for Riverside fairy shrimp. Moreover, in partnership with the
Service, MCB Camp Pendleton provides funding for Service biologists to
assist in implementing their Sikes Act program and buffer land
acquisition initiative.
Based on MCB Camp Pendleton's past funding history for listed
species and their Sikes Act program (including the management of
Riverside fairy shrimp), we conclude there is a high degree of
certainty that MCB Camp Pendleton will continue to implement the INRMP
in coordination with CDFG and the Service in a manner that provides a
benefit to Riverside fairy shrimp. We also find there is a high degree
of certainty that the conservation efforts of their INRMP will be
effective. Service biologists work closely with MCB Camp Pendleton on a
variety of endangered and threatened species issues, including the
Riverside fairy shrimp. The management programs and Base directives to
avoid and minimize impacts to the species are consistent with current
and ongoing
[[Page 72097]]
section 7 consultations with MCB Camp Pendleton.
In MCB Camp Pendleton, lands that contain the features essential to
the conservation of Riverside fairy shrimp are within the following
areas: San Onofre State Beach, State Park-leased land (near the
Christianitos Creek foothills portion of Subunit 2h); Oscar One; Oscar
Two; Victor area south of San Onofre State Park (Uniform Training
Area); Red Beach; and Tango (U.S. Marine Corps 2007, Section 4, pp. 51-
76).
State Park-leased lands are treated under the Real Estate
Agreements and Lease section in the INRMP. Base real estate agreements
(for example, leases, easements, outleases, assignments) cover
approximately 5,000 ac (2,020 ha) of the Base (not inclusive of leased
acreage within cantonment areas). These agreements include easements
for public utilities and transit corridors, leases to public
educational and retail agencies, State Beach leases, and agricultural
leases for row crop production and seed collection.
In the portion of Subunit 2h within MCB Camp Pendleton boundaries,
permissible activities include military thoroughfares (use of roads),
military training (with advanced coordination), fire suppression
activities, and public recreational access. Lessees are required to
manage the natural resources on the lands leased for their use
consistent with the philosophies and supportive of the objectives of
the MCB Camp Pendleton INRMP. Each lessee that manages and/or controls
use of lands leased from MCB Camp Pendleton (for example, State Parks
or agriculture leases) is required to generate and submit a natural
resources management plan for their leased lands for approval by the
Base within 1 year of establishment of their lease or renewal. Lessees
are also required to identify any activity that may affect federally
regulated resources (for example, listed species, wetlands, waters of
the United States) and provide information and mitigation that may be
required to support consultation with the applicable regulatory agency.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that all identified lands
on MCB Camp Pendleton that meet the definition of critical habitat are
subject to the MCB Camp Pendleton INRMP, and that conservation efforts
identified in the INRMP will provide a benefit to Riverside fairy
shrimp and to vernal pool habitat on MCB Camp Pendleton. Therefore,
1,929 ac (781 ha) of land containing physical or biological features
essential to the conservation of the species are exempt from the final
critical habitat designation in accordance with section 4(a)(3) of the
Act.
MCAS Miramar (Within Unit 4)
In the previous final critical habitat designation for Riverside
fairy shrimp, we exempted MCAS Miramar from the designation of critical
habitat (70 FR 19154, April 12, 2005). MCAS Miramar completed an INRMP
in May 2000, which was updated in October 2006 and again in August 2011
(Gene Stout and Associates et al. 2011, entire). The INRMP is being
fully implemented at MCAS Miramar, and provides for the conservation,
management, and protection of Riverside fairy shrimp. The INRMP
classifies 95.6 percent of the vernal pool basins and watersheds on
MCAS Miramar, including the two pools containing Riverside fairy
shrimp, as a Level I Management Area (Gene Stout and Associates et al.
2011, Table 5.1). A Level I Management Area receives the highest
conservation priority under the INRMP. Preventing damage to vernal pool
resources is the highest conservation priority in management areas with
the Level I designation (Gene Stout and Associates et al. 2011, p. 5-
2). The conservation of vernal pool basins and watersheds in a Level I
Management Area is achieved through educating Base personnel; taking
proactive measures, including signs and fencing, to avoid accidental
impacts; developing procedures to respond to and fix accidental impacts
on vernal pools; controlling nonnative vegetation within vernal pools;
and maintaining an updated inventory of vernal pool basins and
associated vernal pool watersheds (Gene Stout and Associates et al.
2011, p. 7-3).
Since the completion of MCAS Miramar's INRMP, the Service has
received reports on their vernal pool monitoring and restoration
program, and correspondence detailing the installation's expenditures
on the objectives outlined in its INRMP. MCAS Miramar continues to
monitor and manage its vernal pool resources. Ongoing programs include
a study of the effects of fire management on vernal pool resources,
vernal pool mapping, and species and vernal pool surveys. Based on the
value MCAS Miramar's INRMP assigns to vernal pool basins and
watersheds, and the management actions undertaken to conserve them, we
find that the INRMP provides a benefit for the Riverside fairy shrimp.
Land that contains the features essential to the conservation of
Riverside fairy shrimp is within the following area at MCAS Miramar:
AA1 east complex, near the junction of Interstate 15 and Pomerado Road.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the MCAS Miramar INRMP, and that conservation efforts
identified in the INRMP will provide a benefit to Riverside fairy
shrimp occurring in habitats within or adjacent to MCAS Miramar.
Therefore, 59 ac (24 ha) of land containing physical or biological
features essential to the conservation of the species are exempt from
the final critical habitat designation in accordance with section
4(a)(3) of the Act.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exercise his discretion to exclude an area from critical
habitat if he determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless he determines, based on the best scientific data available, that
the failure to designate such area as critical habitat will result in
the extinction of the species. In making that determination, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise his discretion to exclude the area only if such exclusion
would not result in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus, the educational benefits of mapping
essential habitat for recovery of the
[[Page 72098]]
listed species, and any ancillary benefits that may result from a
designation due to State or Federal laws that may apply to critical
habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to further
national security interests; result in conservation; result in the
continuation, strengthening, or encouragement of partnerships; or
result in implementation of a management plan that provides equal to or
more conservation than a critical habitat designation would provide.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation. If we
determine that the benefits of exclusion outweigh the benefits of
inclusion and that exclusion will not result in extinction, we may, but
are not required to, exercise Secretarial discretion to exclude the
area from a designation of critical habitat.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis (DEA)
of the proposed critical habitat designation and related factors
(Industrial Economics Inc. 2011, entire). The draft analysis, dated
November 3, 2011, was made available for public review from March 1
through April 2, 2012 (77 FR 12543, March 1, 2012). Following the close
of the comment period, a final analysis (dated August 30, 2012) of the
potential economic effects of the designation was developed, taking
into consideration the public comments and any new information
(Industrial Economics Inc. 2012).
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of foreseeable conservation efforts for Riverside
fairy shrimp; some of these costs will likely be incurred regardless of
whether we designate critical habitat (baseline). The economic impact
of the final critical habitat designation is analyzed by comparing
scenarios both ``with critical habitat'' and ``without critical
habitat.'' The ``without critical habitat'' scenario represents the
baseline for the analysis, considering protections already in place for
the species (for example, under the Federal listing and other Federal,
State, and local regulations). The baseline, therefore, represents the
costs incurred regardless of whether critical habitat is designated.
The ``with critical habitat'' scenario describes the incremental
impacts associated specifically with the designation of critical
habitat for the species. The incremental conservation efforts and
associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur with the designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decisionmakers can use this information to assess whether the
effects of the designation might unduly burden a particular group or
economic sector. Finally, the FEA looks retrospectively at costs that
have been incurred since the species' listing in 1993 (58 FR 41384,
August 3, 1993). The analysis only considers the current critical
habitat designation and estimates the costs as if the previous critical
habitat designation did not exist (Industrial Economics Inc. 2012, p.
2-2). The analysis considers those costs that may occur in the 24 years
following the current designation of critical habitat. This was
determined to be the appropriate period for analysis because 24 years
is the amount of time for which regional planning information is
available (Industrial Economics Inc. 2012, p. 2-23). The FEA quantifies
economic impacts of Riverside fairy shrimp conservation efforts due to
critical habitat designation associated with the following categories
of activity: (1) Agricultural, commercial, and residential development;
(2) transportation; and (3) livestock grazing and other activities
(including roadway construction and maintenance, livestock grazing,
water management activities, OHV use, heavy foot traffic, vegetation
removal, nonnative plants, pesticides, and fire suppression and
management).
The majority of incremental costs (90 percent) related to revised
critical habitat result from time delays to development activities. The
remaining 10 percent of incremental costs result from the additional
administrative costs of considering adverse modification to proposed
projects, and from conducting environmental assessments in compliance
with the California Environmental Quality Act (CEQA) (Industrial
Economics Inc. 2012, pp. ES-5--ES-6). The total future incremental
impacts are estimated to be $1.75 million to $2.87 million ($166,000 to
$273,000 annualized) in present value terms, using a 7 percent discount
rate over the next 24 years (2012 to 2035) in areas that we proposed as
revised critical habitat (Industrial Economics Inc. 2012, pp. ES-1--ES-
2, ES-5). The majority of the costs are expected to occur in
developable areas in Unit 2 (Orange County) and Unit 5 (San Diego
County). Smaller impacts are expected in Unit 1 (Ventura County) and
Unit 3 (Riverside County), and no impacts are forecast in Unit 4 (San
Diego County), as no developable area exists in Unit 4 (Industrial
Economics Inc. 2012, p. 4-17). Only minor impacts to transportation and
habitat management are anticipated from this final critical habitat
designation, and no economic impacts to livestock grazing, OHV
activities, vegetation removal, water management activities, nonnative
plants, or fire management are forecast (Industrial Economics Inc.
2012, pp. 5-1, 5-4).
Our economic analysis did not identify any disproportionate costs
likely to result from the designation, and we are not excluding any
lands from this designation of critical habitat for Riverside fairy
shrimp based on economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Carlsbad Fish and Wildlife Office (see ADDRESSES) or by
downloading it from the Internet at http://www.regulations.gov.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) or other
agencies where a national security impact might exist. In preparing
this final rule, we have
[[Page 72099]]
exempted from the designation of critical habitat those DOD lands with
completed INRMPs determined to provide a benefit to Riverside fairy
shrimp. Areas identified as owned and managed by DOD on MCB Camp
Pendleton and MCAS Miramar that are exempt from critical habitat
designation under section 4(a)(3) of the Act are discussed in the
Exemptions section above.
In our previous final revised critical habitat rule published April
12, 2005 (70 FR 19154) rule, we excluded from critical habitat lands
adjacent to the U.S.-Mexico border under the jurisdiction of the U.S.
Department of Homeland Security (DHS), U.S. Border Patrol, San Diego
Sector. In that rule, we found that the portion of the lands owned by
the DHS that are directly adjacent to the U.S.-Mexico border have
previously been disturbed and developed by the ongoing construction of
the Border Infrastructure System (BIS), and those lands within the
constructed portion of the footprint of the BIS do not contain any of
the primary constituent elements for the Riverside fairy shrimp. The
U.S. Customs and Border Protection of the DHS is tasked with
maintaining National Security interests along the nation's
international borders. As such, lands on which DHS activities occur may
qualify for exclusion under section 4(b)(2) of the Act. The BIS is
considered integral to national security, and therefore, lands owned by
DHS along the U.S.-Mexico border have been excluded from the
designation under section 4(b)(2) of the Act for national security
impacts (see Table 4 below).
Table 4--Areas Excluded From the Riverside Fairy Shrimp Final Revised
Critical Habitat Under Section 4(b)(2) of the Act for National Security
Reasons
------------------------------------------------------------------------
Land ownership Acreage
------------------------------------------------------------------------
Department of Homeland Security
------------------------------------------------------------------------
5b. Arnie's Point (J15)............. 29 ac (12 ha).
5h (portion). J11 E, J11 W, J12, J16- 11 ac (4 ha).
18 (Goat Mesa).
-----------------------------------
Total........................... 40 ac (16 ha).
------------------------------------------------------------------------
On February 6, 2002, the Service completed a section 7 consultation
with the U.S. Army Corps of Engineers (Corps) and the former
Immigration and Naturalization Service on the effects of closing a gap
in the Border Fence Project's secondary fence at Arnie's Point on three
endangered species: Riverside fairy shrimp, San Diego fairy shrimp, and
San Diego button-celery (Eryngium aristulatum var. parishii; Service
2002). We concluded in our biological opinion that the proposed action,
which included the loss of a linear vernal pool occupied by both the
Riverside fairy shrimp and San Diego fairy shrimp, was not likely to
jeopardize the continued existence of the three endangered species. On
January 9, 2003, the Service completed a section 7 consultation with
the former Immigration and Naturalization Service of the effects on the
endangered Riverside fairy shrimp and endangered San Diego fairy shrimp
from the construction of a secondary border fence and other road and
fencing improvements in San Diego County along the U.S.-Mexico border
(Service 2003). We concluded in our biological opinion that the
proposed action, which included the loss of three vernal pool basins,
was not likely to jeopardize the continued existence of the Riverside
fairy shrimp and San Diego fairy shrimp. To offset losses for both
fairy shrimp species, the DHS conducted two restoration projects and
identified for conservation some DHS-owned lands located north of the
BIS (at Arnie's Point), including lands identified as critical habitat
in the 2011 proposed revised critical habitat rule (76 FR 31686; June
1, 2011). Though the BIS has been completed, the U.S. Border Patrol
conducts ongoing operations and maintenance activities in the area,
including upkeep of fences, roads, surveillance, communication, and
detection equipment. These areas include lands directly adjacent to the
border, including Subunit 5b and a portion of Subunit 5h. In
recognition of the continuing ongoing national security concerns along
the U.S.-Mexico border, the Secretary is exercising his discretion to
exclude Subunit 5b (a total of 29 ac (12 ha)) and a portion of Subunit
5h (11 ac (4 ha)) from the final revised critical habitat designation.
Benefits of Inclusion--DHS Lands
The designation of critical habitat can result in regulatory,
educational, and ancillary benefits. As discussed under Application of
the ``Adverse Modification'' Standard, the regulatory benefit of
including an area in a critical habitat designation is the added
conservation that may result from the separate duty imposed on Federal
agencies under section 7(a)(2) of the Act to ensure that actions they
fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat.
Section 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Public Law 104-208 (8 U.S.C. 1101
et seq.)), was passed as part of the Omnibus Consolidated
Appropriations Act of 1997, and addressed construction of the BIS.
Among the provisions of section 102 was the authority granted to the
Attorney General (AG) to waive the provisions of the Act and of the
National Environmental Protection Act (NEPA) ``to ensure the
expeditious construction of barriers and roads * * *'' (Public Law 104-
208, 1996; sec. 102 (c)). Although DHS was within its authority to
request the AG grant a waiver from complying with the Act, it did
consult with the Service on impacts associated with the proposed border
fence project, including the preparation of documents to fulfill its
NEPA obligations (42 U.S.C. 4321 et seq.). The result of that
consultation was the restoration of three vernal pools within Arnie's
Point, as discussed above. In 2002, the Homeland Security Act (HSA)
transferred the authority to take such actions as necessary to
construct the BIS to the Secretary of the DHS. In 2005, the Secretary
of the DHS, under the authority granted under the HSA and section 102
of the IIRIRA, as amended by the REAL ID Act of 2005, did, in fact,
make a determination to waive all ``federal, state, or other laws,
regulations or legal requirements of, deriving from, or related to the
subject of, * * * The National Environmental Policy Act, the Endangered
Species Act * * *.'' (70 FR 55623). In light of this determination
(that became effective on September 22, 2005), there is no longer a
requirement
[[Page 72100]]
for DHS to consult with the Service on actions that may impact
federally listed species, including the Riverside fairy shrimp, if
those actions are related to the construction or maintenance or
operations of the BIS. Further, in 2008, the U.S. Congress granted to
the Secretary of Homeland Security the ability to waive all legal
requirements related to construction of the BIS. Subsequently, the
Secretary of Homeland Security published a determination in the Federal
Register (73 FR 18294; April 3, 2008) waiving laws that the Secretary
determined to be necessary to ensure the completion of barriers and
roads related to the BIS, including the Act and the CWA. Though much of
the BIS has been completed, there are ongoing operations and
maintenance activities in the area, including upkeep of fences, roads,
surveillance, communication, and detection equipment. These activities
occur in lands directly adjacent to the border, including Subunit 5b
and a portion of Subunit 5h. Because of the waiver determination, DHS
would not be required to consult under Section 7 of the Act on the
effects of such U.S. Border Patrol activities should critical habitat
for the Riverside fairy shrimp be designated on these lands. Because of
the laws and authorities granted to DHS outlined above, neither section
7 of the Act nor provisions of the CWA apply in these areas; therefore,
a critical habitat designation in these areas will have no regulatory
impact. Further, because the lands at issue are owned by DHS, and
Border Patrol activities are not subject to compliance with state laws
such as CEQA, there are no ancillary benefits of designating critical
habitat on these lands.
Another possible benefit of including lands in a critical habitat
designation is that the designation can serve to educate landowners and
the public regarding the potential conservation value of an area, and
may help focus conservation efforts on areas of high conservation value
for certain species. Any information about Riverside fairy shrimp and
its habitat that reaches a wide audience, including parties engaged in
conservation activities, is valuable. In the case of Riverside fairy
shrimp, however, lands identified as essential to the conservation of
the species were identified in the proposed critical habitat
designation published in the Federal Register on June 1, 2011 (76 FR
31686), as well as the previous proposed revised critical habitat
published on April 27, 2004 (69 FR 23024), and the previous final
revised rule published on April 12, 2005 (70 FR 19154). Notices of
these publications were announced in press releases and newspapers of
general circulation, and information was posted on the Service's Web
site. We also sent notifications to local, State, and Federal agencies.
Therefore, any educational benefits of designating critical habitat on
lands owned by DHS are negligible.
For the reasons stated above, we consider that no regulatory or
ancillary benefits will result from critical habitat designation on
lands owned by DHS. In addition, the Service previously thoroughly
evaluated the impacts of the BIS on the Riverside fairy shrimp and its
vernal pool habitat, and determined that the project will not
jeopardize the continued existence of the species. As part of the BIS
project, DHS has committed to restore, protect, and manage nearby
Riverside fairy shrimp habitat as laid out in our biological opinions
(Service 2002; Service 2003). We also conclude that the educational
benefits of designating lands identified as critical habitat for
Riverside fairy shrimp on lands owned by the DHS are negligible because
the location of habitat for this species within San Diego County is
already well known generally and to DHS. Therefore, these facts render
negligible the benefits of inclusion of subunits 5b and 5h in the
designation of critical habitat for Riverside fairy shrimp.
Benefits of Exclusion--DHS lands
Although designating critical habitat on DHS lands in Subunits 5b
and 5h may clearly reflect our determination that these lands are
essential to the conservation of the Riverside fairy shrimp, there is
no regulatory requirement for the DHS or any other Federal agency
directly involved with the construction and maintenance of the BIS to
consult with us regarding impacts to the species. Designation of
critical habitat on those lands under these circumstances would be
received negatively by Federal agencies directly involved with the
timely operation and maintenance of this critical national security
project to safeguard our international borders and viewed negatively as
well as by the public at large.
In past years, DHS has undertaken additional conservation measures
in Subunit 5b. These measures include: Installation of a chain link
fence along the inside edge of an existing perimeter road to prevent
vehicles from driving into the restoration area; preparation of a
restoration plan for the three pools; and restoration and enhancement
of 1 ac (<1 ha) of native grassland in the restoration area. Excluding
DHS-owned lands from critical habitat will further our partnership with
DHS and could encourage future restoration actions for listed species
and their habitats.
Benefits of Exclusion Outweigh Benefits of Inclusion--DHS Lands
We conclude that the minimal benefits of designating critical
habitat on the DHS lands, including the vernal pool restoration area in
Subunit 5b, are far outweighed by the substantial benefits to national
security and our partnership with DHS. Therefore, the Secretary is
exercising his discretion to exclude the DHS lands within Subunit 5b
(29 ac (12 ha)) and a portion of Subunit 5h (11 ac (4 ha)) under
section 4(b)(2) of the Act. No lands owned by the DHS are being
designated as critical habitat.
Exclusion Will Not Result in Extinction of the Species--DHS Lands
The Service determined that exclusion of these lands will not
result in extinction of the species. We have thoroughly analyzed the
impacts associated with the BIS and conclude that Border Patrol
activities associated with operation and maintenance of the BIS are not
likely to jeopardize the continued existence of Riverside fairy shrimp.
The DHS has also conserved and restored vernal pools at Arnie's Point
since the construction of the border fence to support listed species
such as Riverside fairy shrimp. Therefore, we conclude that the
exclusion of lands in Subunits 5b and in a portion of 5h will not
result in the extinction of the Riverside fairy shrimp.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether landowners
have developed any HCPs or other management plans for areas proposed as
critical habitat, or whether there are conservation partnerships that
would be encouraged by designation of, or exclusion from, critical
habitat. In addition, we look at any tribal issues, and consider the
government-to-government relationship of the United States with tribal
entities.
Based on species information and other information in our files,
information provided by entities seeking exclusion, and public comments
we received, we evaluated whether certain lands in the proposed
critical habitat units 2, 4, and 5 that are covered by approved habitat
conservation plans (HCPs) are appropriate for exclusion
[[Page 72101]]
from this final designation under section 4(b)(2) of the Act. Based on
our review, we are excluding the following areas from critical habitat
designation for Riverside fairy shrimp: Subunits 2c; 2i; portions of
Subunits 2dA, 2dB, and 2e; 2f; 2g; all of Unit 3 (Subunits 3c, 3d, 3e,
3f, 3g, and 3h); Unit 4; and a portion of Subunit 5d. All of those
areas were identified as under consideration for exclusion in the
proposed rule published June 1, 2011 (76 FR 31686).
Table 5, below, provides approximate areas (ac (ha)) of lands that
meet the definition of critical habitat, but that we are excluding
under section 4(b)(2) of the Act from the final revised critical
habitat rule.
Table 5--Areas Excluded From the Riverside Fairy Shrimp Final Revised
Critical Habitat Under Section 4(b)(2) of the Act
------------------------------------------------------------------------
Subunit by Plan ** Acreage
------------------------------------------------------------------------
Orange County Central-Coastal NCCP
------------------------------------------------------------------------
2c. (MCAS) El Toro...................... 26 ac (11 ha).
2i. SCE Viejo Conservation Bank......... 63 ac (25 ha).
-------------------------------
Subtotal for Orange County Central- 89 ac (36 ha)
Coastal Subregional NCCP/HCP.
------------------------------------------------------------------------
Orange County Southern Subregion HCP
------------------------------------------------------------------------
2dA. Saddleback Meadow.................. 4 ac (2 ha).
2dB. O'Neill Regional Park (near Trabuco 75 ac (30 ha).
Canyon).
2e. O'Neill Regional Park (near 47 ac (19 ha).
Ca[ntilde]ada Gobernadora).
2f. Chiquita Ridge...................... 56 ac (23 ha).
2g. Radio Tower Road.................... 51 ac (21 ha).
-------------------------------
Subtotal for Orange County Southern 233 ac (94 ha).
Subregion HCP.
------------------------------------------------------------------------
Western Riverside County MSHCP
------------------------------------------------------------------------
3c. Australia Pool...................... 19 ac (8 ha).
3d. Scott Road Pool..................... 9 ac (4 ha).
3e. Schleuniger Pool.................... 23 ac (9 ha).
3f. Skunk Hollow and Field Pool (Barry 163 ac (66 ha).
Jones Wetland Mitigation Bank).
3g. Johnson Ranch Created Pool.......... 54 ac (22 ha).
3h. Santa Rosa Plateau--Mesa de Colorado 597 ac (242 ha).
-------------------------------
Subtotal for Western Riverside 865 ac (350 ha).
County MSHCP.
------------------------------------------------------------------------
San Diego MHCP--Carlsbad HMP
------------------------------------------------------------------------
4c. Poinsettia Lane Commuter Train 9 ac (4 ha).
Station (JJ2).
-------------------------------
Subtotal Carlsbad HMP under the San 9 ac (4 ha).
Diego MHCP.
------------------------------------------------------------------------
County of San Diego Subarea Plan under the MSCP
------------------------------------------------------------------------
5d. J29-31 (portion).................... 23 ac (9 ha).
-------------------------------
Subtotal County of San Diego Subarea 23 ac (9 ha).
Plan under the MSCP.
-------------------------------
Total........................... 1,219 ac (493 ha).*
------------------------------------------------------------------------
* Values in this table may not sum due to rounding.
** All lands that meet the definition of critical habitat and fall
within the boundaries of an HCP are being excluded, with the exception
of lands within the City of San Diego Subarea Plan. Because Riverside
fairy shrimp is no longer a covered species under the City of San
Diego's Subarea Plan under the MSCP (the City relinquished its permit
on April 20, 2010), we are not excluding critical habitat areas
falling within the boundaries of the City of San Diego Subarea Plan.
We are excluding these areas because we determine that they are
appropriate for exclusion under the ``other relevant factor''
provisions of section 4(b)(2) of the Act.
Land and Resource Management Plans, Conservation Plans, or Agreements
Based on Conservation Partnerships
As discussed above, in considering whether to exclude a particular
area from the designation, we identify the benefits of including the
area in the designation, identify the benefits of excluding the area
from the designation, and evaluate whether the benefits of exclusion
outweigh the benefits of inclusion. If the analysis indicates that the
benefits of exclusion outweigh the benefits of inclusion, the Secretary
may exercise his discretion to exclude the area only if such exclusion
would not result in the extinction of the species.
We find that the Orange County Central-Coastal Natural Community
Conservation Plan/Habitat Conservation Plan (NCCP/HCP), the Orange
County Southern Subregion HCP, the Western Riverside County MSHCP, City
of Carlsbad Habitat Management Plan (HMP) under the San Diego Multiple
Habitat Conservation Program (MHCP), and County of San Diego Subarea
Plan under the MSCP provide protection and management for lands that
meet the definition of critical habitat for Riverside fairy shrimp
based on the weighing of those factors, and the Secretary is exercising
his discretion to
[[Page 72102]]
exclude non-Federal lands covered by these plans (see Table 5 above).
Details of our analysis for each plan are described below.
We did not consider excluding non-Federal lands covered by the City
of San Diego Subarea Plan under the MSCP. In a 2006 Federal district
court ruling in Center for Biological Diversity v. Bartel, 470 F. Supp.
2d 1118 (S.D.Cal.), the court enjoined the incidental take permit
issued to the City of San Diego based on the City's Subarea Plan, as it
applied to Riverside fairy shrimp and six other vernal pool species.
The court held that the City's Subarea Plan did not provide adequate
protection for Riverside fairy shrimp. As a result, the City
surrendered permit coverage for seven vernal pool species, including
Riverside fairy shrimp, on April 20, 2010, and the Service cancelled
the permit insofar as it applied to the seven species on May 14, 2010.
Because the Riverside fairy shrimp is no longer a covered species under
the City of San Diego Subarea Plan under the MSCP, we are not excluding
critical habitat areas that fall within the boundary of the City of San
Diego Subarea Plan. The City is currently preparing a new HCP to obtain
incidental take coverage for the Riverside fairy shrimp and other
vernal pool species. Despite the City's relinquishment of their permit,
54 percent of all currently identified vernal pool habitat, or 1,369
pools, within the boundaries of the City's subarea plan have been
conserved by covenant of easement, conservation easement, or dedication
in fee title to the City (City of San Diego 1997; Service 2006). The
City continues to monitor and manage vernal pools in support of the
MSCP.
Regulatory Benefits of Inclusion for Habitat Conservation Plans
As discussed under Application of the ``Adverse Modification''
Standard, the regulatory benefit of including an area in a critical
habitat designation is the added conservation that may result from the
separate duty imposed on Federal agencies under section 7(a)(2) of the
Act to ensure that actions they fund, authorize, or carry out are not
likely to result in the destruction or adverse modification of any
designated critical habitat.
However, for some species, including Riverside fairy shrimp, the
outcome of adverse modification analysis under section 7(a)(2) will be
similar to the jeopardy analysis because effects to habitat will often
also result in effects to the species. Though jeopardy and adverse
modification analyses must satisfy two different standards, any
modifications to proposed actions resulting from a section 7
consultation to minimize or avoid impacts to Riverside fairy shrimp are
likely to be habitat based, as the Riverside fairy shrimp is completely
dependent on a properly functioning hydrological regime. Avoidance or
adequate minimization of impacts to the wetland area and its associated
watershed, which collectively create the hydrological regime necessary
to support Riverside fairy shrimp, is essential not only to enable the
critical habitat unit to carry out its conservation function such that
adverse modification is avoided, but also to avoid a possible jeopardy
determination with regard to the continued existence of the listed
species. All subunits excluded within the Orange County Central-Coastal
NCCP/HCP, the Orange County Southern Subregion HCP, the Western
Riverside County MSHCP, City of Carlsbad HMP under the San Diego MHCP,
and County of San Diego Subarea Plan under the MSCP are occupied. Thus,
it is difficult to differentiate meaningfully between measures that
would be implemented solely to minimize impacts to critical habitat
from those required under the plans to minimize impacts to Riverside
fairy shrimp. Therefore, in the case of Riverside fairy shrimp, we
believe any additional regulatory benefits of critical habitat
designation within areas covered by approved habitat conservation plans
would be minimal because the regulatory benefits from designation are
difficult to distinguish at this point in time from the benefits of
listing.
Detailed discussion of the regulatory, educational, and ancillary
benefits of critical habitat designation is discussed under the
Benefits of Inclusion sections for each plan below.
Orange County Central-Coastal NCCP/HCP
The Orange County Central-Coastal Natural Community Conservation
Planning/Habitat Conservation Plan (NCCP/HCP) was developed in
cooperation with numerous local jurisdictions, State agencies, and
participating landowners, including the cities of Anaheim, Costa Mesa,
Irvine, Orange, and San Juan Capistrano; Southern California Edison;
Transportation Corridor Agencies; The Irvine Company; California
Department of Parks and Recreation; Metropolitan Water District of
Southern California; and the County of Orange. Approved in 1996, the
Orange County Central-Coastal NCCP/HCP provides for the establishment
of approximately 38,738 ac (15,677 ha) of reserve land for 39 Federal
or State-listed and unlisted sensitive species within the 208,713-ac
(84,463-ha) plan area in central and coastal Orange County. The Orange
County Central-Coastal NCCP/HCP is a multispecies conservation plan
that minimizes and mitigates expected habitat loss and associated
incidental take of covered species within the plan area. The ``Reserve
System'' created pursuant to the NCCP/HCP is designed to function
effectively as a multiple-habitat and multiple-species reserve that
specifically includes vernal pool habitat and Riverside fairy shrimp
(R.J. Meade Consulting, Inc. 1996, entire).
The Orange County Central-Coastal NCCP/HCP provides for monitoring
and adaptive management of covered species and their habitats within
this Reserve System (Consultation 1-6- FW-24, Service 1996,
pp. 1-4). Conditionally covered species, including the Riverside fairy
shrimp, receive protection not only through the establishment and
management of the Reserve System, but also additional mitigation
measures specified in the NCCP/HCP and implementing agreement (IA)
(Service et al. 1996, p. 6). Under the NCCP/HCP, incidental take for
Riverside fairy shrimp is limited to highly degraded or artificial
vernal pools. Take of Riverside fairy shrimp in nondegraded, natural
vernal pool habitat, such as habitat in Subunits 2c and 2i, is not
authorized. If a planned activity will affect Riverside fairy shrimp in
a highly degraded or artificial vernal pool, it ``must be consistent
with a mitigation plan that:
Addresses design modifications and other onsite measures
that are consistent with the project's purposes, minimizes impacts, and
provides appropriate protections for vernal pool habitat;
Provides for compensatory vernal pool habitat restoration/
creation at an appropriate location (which may include the reserve or
other open space) and includes relocation of potential cyst-bearing
soils; and
Provides for monitoring and adaptive management of vernal
pools consistent with Chapter 5 of this NCCP'' (R.J. Meade Consulting,
Inc. 1996, p. 97).
Permittees implement the above conservation measures for Riverside
fairy shrimp and other covered species over the 75-year permit term, as
well as provide commitments in perpetuity regarding habitat protection
for lands in the Reserve System and commitments outlined in the IA
(R.J. Meade Consulting 1996, p. 12). Subunit 2i (SCE Viejo Conservation
Bank; 63 ac (25 ha)) is part of the proposed SCE Viejo Conservation
Bank and is targeted for conservation. Although Subunit 2c
[[Page 72103]]
((MCAS) El Toro; 26 ac (11 ha)) is not yet conserved, loss of vernal
pool habitat in this area is not authorized under the Orange County
Central-Coastal NCCP. To date, monitoring and management related to
Riverside fairy shrimp have included reservewide vernal pool surveys
conducted from 1997 through 2001, and ongoing control of invasive,
nonnative vegetation in the upland environment; both Subunit 2c and 2i
are within the reserve boundaries.
The Secretary is exercising his discretion to exclude a total of 89
ac (36 ha) of land that is owned by or under the jurisdiction of the
permittees of the Orange County Central-Coastal NCCP/HCP (see Table 5
above).
Benefits of Inclusion--Orange County Central-Coastal NCCP/HCP
The designation of critical habitat can result in regulatory,
educational, and ancillary benefits. As discussed under Application of
the ``Adverse Modification'' Standard, the regulatory benefit of
including an area in a critical habitat designation is the added
conservation that may result from the separate duty imposed on Federal
agencies under section 7(a)(2) of the Act to ensure that actions they
fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat.
However, for reasons stated in the Regulatory Benefits of Inclusion
for Habitat Conservation Plans section above, we conclude any
additional regulatory benefits of critical habitat designation would be
minimal because the regulatory benefits from designation are difficult
to distinguish at this point in time from the benefits of listing. In
addition, because non-degraded Riverside fairy shrimp habitat within
the Central-Coastal NCCP/HCP is required to be protected under the
plan, the likelihood of a future section 7 consultation on these lands
for other than conservation-related actions is remote. Thus, because we
do not anticipate that the outcome of future section 7 consultations on
Riverside fairy shrimp would change if critical habitat were
designated, and because the likelihood of future Section 7
consultations is remote, we conclude that the regulatory benefits of
designating lands identified as critical habitat within the Orange
County Central Coastal NCCP/HCP (Subunits 2c and 2i) would be, at most,
minor.
Another possible benefit of including lands in a critical habitat
designation is that the designation can serve to educate landowners and
the public regarding the potential conservation value of an area, and
may help focus conservation efforts on areas of high conservation value
for certain species. Any information about Riverside fairy shrimp and
its habitat that reaches a wide audience, including parties engaged in
conservation activities, is valuable. In the case of Riverside fairy
shrimp, however, there have already been multiple occasions when the
public has been educated about the species. The Orange County Central-
Coastal NCCP/HCP has been in place since 1996. Implementation of the
plan is reviewed yearly through publicly available annual reports that
extensively detail progress of the plan and status of nature reserves
within the plan area. These reports provide extensive opportunity to
educate the public and landowners about the location of, and efforts to
conserve, areas that meet the definition of critical habitat for
Riverside fairy shrimp. As discussed above, the permit holders of the
Orange County Central-Coastal NCCP/HCP are aware of the value of these
lands to the conservation of Riverside fairy shrimp, and conservation
measures are already in place to protect essential occurrences of the
Riverside fairy shrimp and its habitat.
Lands identified as critical habitat that are covered by the Orange
County Central-Coastal NCCP/HCP were also included in the proposed
critical habitat designation for Riverside fairy shrimp published in
the Federal Register on June 1, 2011 (76 FR 31686), as well as the
previous proposed revised critical habitat published on April 27, 2004
(69 FR 23024), and the previous final revised rule published on April
12, 2005 (70 FR 19154). These publications were also announced in press
releases and information was posted on the Service's web site. We also
sent notifications to local, State, and Federal agencies.
We consider the educational benefits of critical habitat
designation (such as providing information to Orange County and other
stakeholders and to the public regarding areas important to the long-
term conservation of this species) have already been realized through
development and ongoing implementation of the Orange County Central-
Coastal NCCP/HCP, by proposing these areas as critical habitat, and
through the Service's public outreach efforts. The educational benefits
of designating critical habitat within the Orange County Central
Coastal NCCP/HCP would be negligible.
Finally, critical habitat designation can result in ancillary
conservation benefits to Riverside fairy shrimp by triggering
additional review and conservation through other Federal and State
laws. The primary State law that might be affected by critical habitat
designation is CEQA. However, vernal pool habitat occupied by Riverside
fairy shrimp within the central-coastal subregion of Orange County has
been identified in surveys conducted since the completion of the Orange
County Central Coastal NCCP/HCP and is targeted for protection under
the plan and not authorized for take. Thus, reviews of development
proposals affecting occupied vernal pool habitat within the plan area
under CEQA already take into account the importance of this habitat to
Riverside fairy shrimp and the protections required for the species and
its habitat under the plan. The Federal law most likely to afford
protection to designated Riverside fairy shrimp habitat is the CWA.
Projects requiring a permit under the CWA, such as a fill permit under
section 404 of the CWA, located within critical habitat or likely to
affect critical habitat, would trigger section 7 consultation under the
Act. However, as discussed above, we conclude the potential regulatory
benefits resulting from designation of critical habitat would be
negligible because, with regard to Riverside fairy shrimp, the outcome
of an adverse modification analysis under section 7(a)(2) of the Act
would not differ materially from the outcome of a jeopardy analysis.
Therefore, we conclude the ancillary benefits of designating lands
identified as critical habitat for Riverside fairy shrimp within the
Orange County Central Coastal NCCP/HCP as critical habitat would be
negligible.
For the reasons stated above, we consider section 7 consultations
for critical habitat designation conducted under the standards required
by the 9th Circuit Court in the Gifford Pinchot Task Force v. U.S. Fish
and Wildlife Service decision would provide little conservation benefit
and would be largely redundant with those benefits attributable to
endangered species listing as well as those already provided by the
Orange County Central-Coastal NCCP/HCP. Therefore, the benefits of
inclusion are reduced because the regulatory benefits of designating
those acres as Riverside fairy shrimp critical habitat, such as
protection afforded through the section 7(a)(2) consultation process,
are minimal. Additionally, the benefits of inclusion are reduced
because the educational and ancillary benefits of designating lands
identified as critical habitat for Riverside fairy shrimp covered by
the Orange County Central-Coastal NCCP/HCP would be
[[Page 72104]]
negligible because the location of habitat for this species within the
central-coastal subregion of Orange County and the importance of
conserving such habitat are well known and are already addressed
through CEQA and through implementation of the Orange County Central-
Coastal NCCP/HCP.
Benefits of Exclusion--Orange County Central-Coastal NCCP/HCP
The benefits of excluding from designated critical habitat the
approximately 89 ac (36 ha) of land within the Orange County Central-
Coastal NCCP/HCP are significant. The benefits of excluding lands
identified as critical habitat for Riverside fairy shrimp covered by
the plan include: (1) Continuance and strengthening of our effective
working relationships with the Central-Coastal NCCP/HCP jurisdictions
and stakeholders to promote the conservation of Riverside fairy shrimp
and its habitat; (2) allowance for continued meaningful collaboration
and cooperation in working toward recovering this species, including
conservation benefits that might not otherwise occur; (3) encouragement
of other regional jurisdictions with completed NCCP or HCP plans to
amend their plans to cover and benefit Riverside fairy shrimp and
vernal pool habitat; (4) encouragement for local jurisdictions to fully
participate in the Orange County Central-Coastal NCCP/HCP; and (5)
encouragement of additional HCP and other conservation plan development
in the future on other private lands that include Riverside fairy
shrimp and other federally listed species.
We have developed close partnerships with the County of Orange and
all other participating entities through the development of the Orange
County Central-Coastal NCCP/HCP. The protections and management
provided under the plan for Riverside fairy shrimp and its habitat,
including the physical or biological features essential to the
conservation of this species, are consistent with statutory mandate
under section 7 of the Act to avoid destruction or adverse modification
of critical habitat. Furthermore, this plan goes beyond the statutory
mandate by protecting areas that contain the physical or biological
features essential to the conservation of the species.
By excluding the approximately 89 ac (36 ha) of land within the
boundaries of the Orange County Central-Coastal NCCP/HCP from critical
habitat designation, we are eliminating a redundant layer of regulatory
review for projects covered by the Orange County Central-Coastal NCCP/
HCP, maintaining our partnership with Orange County and other plan
stakeholders, and encouraging new voluntary partnerships with other
landowners and jurisdictions to protect Riverside fairy shrimp and
other listed species. As discussed above, the prospect of potentially
avoiding a future designation of critical habitat provides a meaningful
incentive to plan proponents to extend protections to endangered and
threatened species and their habitats under a habitat conservation
plan. Achieving comprehensive landscape-level protection for listed
species, particularly rare vernal pool species, such as Riverside fairy
shrimp, through their inclusion in regional conservation plans,
provides a key conservation benefit for such species. Our ongoing
partnership with the County of Orange and plan stakeholders, and the
landscape-level multiple species conservation planning efforts they
promote, are essential to achieve long-term conservation of Riverside
fairy shrimp.
Some NCCP and HCP permittees have expressed the view that
designation of lands covered by an NCCP/HCP devalues the conservation
efforts of plan proponents and the partnerships fostered through the
development and implementation of the plans and would discourage
development of additional NCCP/HCPs and other conservation plans in the
future (see the Benefits of Exclusion--Orange County Southern Subregion
HCP and Benefits of Exclusion--Western Riverside County MSHCP sections
below). Where an existing NCCP/HCP provides protection for a species
and its habitat within the plan area, the benefits of preserving
existing partnerships by excluding the covered lands from critical
habitat are most significant. Under these circumstances, excluding
lands owned by or under the jurisdiction of the permittees of an NCCP/
HCP promotes positive working relationships and eliminates impacts to
existing and future partnerships while encouraging development of
additional NCCPs and HCPs for other species.
Large-scale HCPs, such as the Orange County Central-Coastal NCCP/
HCP, take many years to develop, and foster an ecosystem-based approach
to habitat conservation planning by addressing conservation issues
through a coordinated approach. If, instead, local jurisdictions were
to require landowners to individually obtain incidental take permits
(ITPs) under section 10 of the Act, the conservation likely to result
would be uncoordinated, patchy, and less likely to achieve listed
species recovery, as conservation measures would be determined on a
project-by-project basis instead of on a comprehensive, landscape-level
scale. To avoid that outcome, we are committed to fostering
partnerships with local jurisdictions to encourage the development and
continued implementation of regional HCPs that afford proactive
landscape-level conservation for multiple species. We conclude that the
exclusion from critical habitat designation of lands identified as
critical habitat within the Orange County Central-Coastal NCCP/HCP will
result in significant partnership benefits that are likely to result in
important protection for the Riverside fairy shrimp and its habitat and
also other listed species and their habitats.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Orange County
Central-Coastal NCCP/HCP
We reviewed and evaluated the exclusion of approximately 89 ac (36
ha) of land within the boundaries of the Orange County Central-Coastal
NCCP/HCP from our revised designation of critical habitat, and we
determined the benefits of excluding these lands outweigh the benefits
of including them. The benefits of including these lands in the
designation are reduced because the regulatory, educational, and
ancillary benefits that would result from critical habitat designation
are almost entirely redundant with the regulatory, educational, and
ancillary benefits already afforded through the Orange County Central-
Coastal NCCP/HCP and under State and Federal law. In contrast to the
reduced benefits of inclusion, the benefits of excluding lands covered
by the Orange County Central-Coastal NCCP/HCP from critical habitat
designation are significant. Exclusion of these lands will help
preserve the partnerships we developed with local jurisdictions and
project proponents through the development and ongoing implementation
of the Orange County Central-Coastal NCCP/HCP, and aid in fostering
future partnerships for the benefit of listed species. Our partnership
with plan participants has already resulted in significant benefits to
listed species and vernal pool habitat; based on this track record of
success, we expect that this meaningful partnership will continue into
the future.
The Orange County Central-Coastal NCCP/HCP will provide significant
conservation and protection of the Riverside fairy shrimp and its
habitat and help achieve recovery of this species through habitat
enhancement and restoration, maintenance of functional connections to
adjoining
[[Page 72105]]
habitat, and species monitoring efforts. Additional HCPs or other
species-habitat plans potentially fostered by this exclusion would also
help to recover this and other federally listed species. Therefore, in
consideration of the relevant impact to current and future
partnerships, as summarized in the Benefits of Exclusion--Orange County
Central-Coastal NCCP/HCP section above, we determine the significant
benefits of exclusion outweigh the minor benefits of critical habitat
designation.
Exclusion Will Not Result in Extinction of the Species--Orange County
Central-Coastal NCCP/HCP
We determine that the exclusion of 89 ac (36 ha) of land within the
boundaries of the Orange County Central-Coastal NCCP/HCP from the
designation of critical habitat for Riverside fairy shrimp will not
result in extinction of the species. Proposed actions that affect
waters of the United States as defined under the CWA, which in many
cases include vernal pools occupied by Riverside fairy shrimp, will
continue to be subject to consultation under section 7(a)(2) of the Act
and to the duty to avoid jeopardy to the species. The protection
provided by the Orange County Central-Coastal NCCP/HCP for the length
of the permit also provides assurances that this species will not go
extinct as a result of excluding these lands from the critical habitat
designation.
Therefore, the Secretary is exercising his discretion to exclude 89
ac (36 ha) of land (the entirety of subunits 2c and 2i) within the
boundaries of the Orange County Central-Coastal NCCP/HCP from this
final critical habitat designation.
Orange County Southern Subregion HCP
The Orange County Southern Subregion HCP is a large-scale HCP that
encompasses approximately 86,021 ac (34,811 ha) in southern Orange
County. It is a multispecies conservation program that minimizes and
mitigates expected habitat loss and associated incidental take of 32
covered species, including Riverside fairy shrimp, incidental to
residential development and related actions in southern Orange County.
The Orange County Southern Subregion HCP was developed and is being
implemented by the County of Orange; Rancho Mission Viejo, LLC (RMV);
and the Santa Margarita Water District. The Service issued incidental
take permits based on the plan on January 10, 2007. The permit and plan
cover a 75-year period.
The Orange County Southern Subregion HCP provides for the
conservation of covered species, including Riverside fairy shrimp,
through the establishment of an approximately 30,426-ac (12,313-ha)
habitat reserve and 4,456 ac (1,803 ha) of supplemental open space
areas (Service 2007, p. 19), which primarily consist of land owned by
Rancho Mission Viejo and three pre-existing County parks (Service 2007,
pp. 10, 19).
The Orange County Southern Subregion HCP is expected to provide
benefits for the conservation of Riverside fairy shrimp through
implementation of the following conservation measures:
Conserving vernal pools within the habitat reserve,
Minimizing impacts to vernal pools from development,
Maintaining water quality and quantity,
Controlling nonnative, invasive species,
Managing livestock grazing, and
Minimizing human access and disturbance.
Specifically, any development must be located at least 1,000 ft (305 m)
away from vernal pools and be built at a lower elevation than the
vernal pools to avoid hydrological alterations (Service 2007, p. 133).
Water quality monitoring will be conducted throughout the life of the
permit at occupied vernal pools near development (Service 2007, p.
133).
The conservation strategy for this HCP provides a comprehensive
habitat-based approach to the protection of covered species and their
habitats by focusing on the lands and aquatic resource areas containing
the physical or biological features essential for the long-term
conservation of the covered species (including Riverside fairy shrimp),
and by providing for appropriate management for those lands (Service
2007, p. 64). All of the portions of Unit 2 that fall within the Orange
County Southern Subregion HCP have been conserved or are targeted for
conservation within the plan's open space area, known as its habitat
reserve. Portions of Subunits 2dB and 2e are within O'Neill Regional
Park, a park permanently conserved as open space that is part of the
habitat reserve system (Dudek and Associates 2006, p. 10-6). The
remaining portions of Subunits 2dB and 2e are outside the plan
boundaries and have not been excluded from this final revised critical
habitat rule. Chiquita Ridge (Subunit 2f) and Saddleback Meadow
(Subunit 2dA) are also within the habitat reserve. Lands within these
subunits are conserved with conservation easements, and permittees fund
the management of these areas to benefit vernal pool species, including
Riverside fairy shrimp (Service 2007, pp. 15-17). Management provided
by the plan includes regular monitoring of vernal pools at Chiquita
Ridge (Subunit 2f) (Service 2007, p. 134). Radio Tower Road (Subunit
2g) is required to be conserved within the habitat reserve in future
years in accordance with the schedule set forth in the plan. In the
interim, the Orange County Southern Subregion HCP mandates that all
construction must take place at a minimum of 1,000 ft (305 m) from the
Radio Tower Road vernal pools (Subunit 2g) (Service 2007, p. 135).
Monitoring and management for Subunit 2g will occur once the property
is added to the reserve (Service 2007, p. 134).
The Secretary is exercising his discretion to exclude a total of
233 ac (94 ha) of covered lands under the Orange County Southern
Subregion HCP (see Table 5 above).
Benefits of Inclusion--Orange County Southern Subregion HCP
The designation of critical habitat can result in regulatory,
educational, and ancillary benefits. As discussed under Application of
the ``Adverse Modification'' Standard, the regulatory benefit of
including an area in a critical habitat designation is the added
conservation that may result from the separate duty imposed on Federal
agencies under section 7(a)(2) of the Act to ensure that actions they
fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat.
However, for reasons stated in the Regulatory Benefits of Inclusion
for Habitat Conservation Plans section above, we conclude that any
additional regulatory benefits of critical habitat designation would be
minimal because the regulatory benefits from designation are difficult
to distinguish at this point in time from the benefits of listing. In
addition, because essential Riverside fairy shrimp habitat within the
Orange County Southern Subregion HCP is required to be protected under
the plan, the likelihood of a future section 7 consultation on these
lands for other than conservation related actions is remote. Thus,
because we do not anticipate that the outcome of future section 7
consultations on Riverside fairy shrimp would change if critical
habitat were designated and because the likelihood of future section 7
consultations is remote, we conclude that the regulatory benefits of
designating lands that meet the
[[Page 72106]]
definition of critical habitat within the Orange County Southern
Subregion HCP (Subunits 2f and 2g and portions of Subunits 2dA, 2dB,
and 2e) would be, at most, minor.
As discussed under Benefits of Inclusion--Orange County Central-
Coastal NCCP/HCP, another possible benefit of including lands in a
critical habitat designation is that the designation can serve to
educate landowners and the public regarding the potential conservation
value of an area, and may help focus conservation efforts on areas of
high conservation value for certain species. In the case of Riverside
fairy shrimp, however, there have already been multiple occasions when
the public has been educated about the species. The planning process
for the Orange County Southern Subregion HCP began in 1992, when the
County of Orange formally enrolled its unincorporated area in the NCCP
program, and then signed a planning agreement with CDFG and the Service
in 1993. Planning efforts were delayed for a time, but scoping and
planning meetings continued. The Orange County Southern Subregion HCP
was finalized in 2006. As discussed above, the permit holders of the
Orange County Southern Subregion HCP are aware of the value of these
lands to the conservation of Riverside fairy shrimp, and conservation
measures are already in place to protect essential occurrences of the
Riverside fairy shrimp and its habitat.
Lands meeting the definition of critical habitat that are covered
by the Orange County Southern Subregion HCP were also included in the
proposed designation published in the Federal Register on June 1, 2011
(76 FR 31686), as well as the previous proposed revised critical
habitat published on April 27, 2004 (69 FR 23024), and the previous
final revised rule published on April 12, 2005 (70 FR 19154). These
publications were announced in press releases and information was
posted on the Service's Web site. We consider the educational benefits
of critical habitat designation (such as providing information to the
participating entities and to the public regarding areas important to
the long-term conservation of this species) have already been realized
through development and ongoing implementation of the Orange County
Southern Subregion HCP, by proposing these areas as critical habitat,
and through the Service's public outreach efforts. The educational
benefits of designating critical habitat within the Orange County
Southern Subregion HCP would be negligible.
Finally, critical habitat designation can result in ancillary
conservation benefits to Riverside fairy shrimp by triggering
additional review and conservation through other Federal and State
laws. The primary State law that might be affected by critical habitat
designation is CEQA. However, Riverside fairy shrimp lands that meet
the definition of critical habitat within the Southern Subregion of
Orange County have been identified and are either already protected or
targeted for protection under the plan. Thus, review of development
proposals affecting lands identified as critical habitat covered by the
plan under CEQA by the entities participating in the Orange County
Southern Subregion HCP already takes into account the importance of
this habitat to the species and the protections required for the
species and its habitat under the plan. The Federal law most likely to
afford protection to designated Riverside fairy shrimp habitat is the
CWA. Projects requiring a permit under the CWA, such as a fill permit
under section 404 of the CWA, located within critical habitat or likely
to affect critical habitat, would trigger section 7 consultation under
the Act. However, as discussed above, we conclude the potential
regulatory benefits resulting from designation of critical habitat
would be negligible because, with regard to Riverside fairy shrimp, the
outcome of an adverse modification analysis under section 7(a)(2) of
the Act would not differ materially from the outcome of a jeopardy
analysis. Therefore, we conclude that the ancillary benefits of
designating lands identified as critical habitat for Riverside fairy
shrimp within the Orange County Southern Subregion HCP as critical
habitat would be negligible.
For the reasons stated above and under Benefits of Inclusion--
Orange County Central-Coastal NCCP/HCP, we consider section 7
consultations for critical habitat designation conducted under the
standards required by the 9th Circuit Court in the Gifford Pinchot Task
Force v. U.S. Fish and Wildlife Service decision would provide little
conservation benefit and would be largely redundant with those benefits
attributable to listing as well as those already provided by the Orange
County Southern Subregion HCP. Therefore, the benefits of inclusion are
reduced because the regulatory benefits of designating those acres as
Riverside fairy shrimp critical habitat, such as protection afforded
through the section 7(a)(2) consultation process, are minimal.
Additionally, the benefits of inclusion are reduced because the
educational and ancillary benefits of designating critical habitat
covered by the Orange County Southern Subregion HCP would be negligible
because the location of lands identified as critical habitat for this
species within the County of Orange and the importance of conserving
such habitat are well known and are already addressed through CEQA and
through implementation of the Orange County Southern Subregion HCP.
Benefits of Exclusion--Orange County Southern Subregion HCP
The benefits of excluding from designated critical habitat the
approximately 233 ac (94 ha) of land within the Orange County Southern
Subregion HCP are significant. The discussion of partnership benefits
under Benefits of Exclusion--Orange County Central-Coastal NCCP/HCP
applies equally to the Orange County Southern Subregion HCP. The
benefits of excluding lands identified as critical habitat covered by
the Orange County Southern Subregion HCP include continuing and
strengthening our existing partnerships with the HCP permittees and
stakeholders across the subregion to promote the conservation of the
Riverside fairy shrimp and its habitat and encouraging new partnerships
with other jurisdictions to amend existing and develop future HCPs that
cover and provide conservation for the Riverside fairy shrimp and other
listed species.
We have developed close partnerships with participating entities
through the development of the Orange County Southern Subregion HCP.
The protections and management provided for the Riverside fairy shrimp
and its habitat, including the physical or biological features
essential to the conservation of the species, are consistent with
statutory mandates under section 7 of the Act to avoid destruction or
adverse modification of critical habitat. Furthermore, this plan goes
beyond the statutory mandate including active management and protection
of areas that contain the physical or biological features essential to
the conservation of the species. By excluding the approximately 233 ac
(94 ha) of land within the boundaries of the Orange County Southern
Subregion HCP from critical habitat designation, we are eliminating a
redundant layer of regulatory review for projects covered by the Orange
County Southern Subregion HCP, maintaining our partnership with Orange
County and other plan permittees, and encouraging new voluntary
partnerships with other
[[Page 72107]]
landowners and jurisdictions to protect the Riverside fairy shrimp and
other listed species. As discussed above, the prospect of potentially
avoiding a future designation of critical habitat provides a meaningful
incentive to plan proponents to extend protections to endangered and
threatened species and their habitats under a conservation plan.
Achieving comprehensive landscape-level protection for listed species,
particularly rare vernal pool species such as the Riverside fairy
shrimp through their inclusion in regional conservation plans, provides
a key conservation benefit for such species. Our ongoing partnerships
with the participating entities, and the landscape-level multiple
species conservation planning efforts they promote, are essential to
achieve long-term conservation of the Riverside fairy shrimp.
As noted above, some HCP permittees have expressed the view that
critical habitat designation of lands covered by an HCP devalues the
conservation efforts of plan proponents and the partnerships fostered
through the development and implementation of the plan, and would
discourage development of additional HCPs and other conservation plans
in the future. Landowners in the Orange County Southern Subregion HCP
have repeatedly expressed their belief that lands covered by the plan
should be excluded from critical habitat (RMV 2012, pp. 1, 8). Where an
existing HCP provides protection for a species and its essential
habitat within the plan area, such as is the case with the Orange
County Southern Subregion HCP, the benefits of preserving existing
partnerships by excluding the covered lands from critical habitat are
most significant. Under these circumstances, excluding lands owned by
or under the jurisdiction of the permittees of an HCP promotes positive
working relationships and eliminates impacts to existing and future
partnerships while encouraging development of additional HCPs for other
species.
Large-scale HCPs, such as the Orange County Southern Subregion HCP,
take many years to develop, and foster an ecosystem-based approach to
habitat conservation planning by comprehensively addressing
conservation issues. If local jurisdictions were to require landowners
to individually obtain ITPs under section 10 of the Act, the
conservation likely to result would be uncoordinated, patchy, and less
likely to achieve listed species recovery, as conservation measures
would be determined on a project-by-project basis instead of on a
comprehensive, landscape-level scale. To avoid that outcome, we are
committed to fostering partnerships with local jurisdictions and large
landowners to encourage the development and continued implementation of
regional HCPs that afford proactive landscape-level conservation for
multiple species. We conclude that the exclusion from critical habitat
designation of lands that contain the physical and biological factors
essential to the conservation of the species within the Orange County
Southern Subregion HCP will result in significant partnership benefits
that we believe will result in important protection for Riverside fairy
shrimp and its habitat and other listed species and their habitats.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Orange County
Southern Subregion HCP
We reviewed and evaluated the exclusion of approximately 233 ac (94
ha) of land within the boundaries of the Orange County Southern
Subregion HCP from our revised designation of critical habitat, and we
determined the benefits of excluding these lands outweigh the benefits
of including them. The benefits of including these lands in the
designation are reduced because the regulatory, educational, and
ancillary benefits that would result from critical habitat designation
are almost entirely redundant with the regulatory, educational, and
ancillary benefits already afforded through the Orange County Southern
Subregion HCP and under State and Federal law. In contrast to the
reduced benefits of inclusion, the benefits of excluding lands covered
by the Orange County Southern Subregion HCP from critical habitat
designation are significant. Exclusion of these lands will help
preserve the partnerships we developed with local jurisdictions and
project proponents through the development and ongoing implementation
of the Orange County Southern Subregion HCP, and will aid in fostering
future partnerships for the benefit of listed species. Our partnership
with plan participants has already resulted in significant benefits to
listed species and vernal pool habitat; based on this track record of
success, we expect that this meaningful partnership will continue into
the future.
The Orange County Southern Subregion HCP will provide significant
conservation and management of the Riverside fairy shrimp and its
habitat, and help achieve recovery of this species through habitat
enhancement and restoration, functional connections to adjoining
habitat, and species monitoring efforts. Additional HCPs or other
species-habitat plans potentially fostered by this exclusion would also
help to recover this and other federally listed species. Therefore, in
consideration of the relevant impact to current and future
partnerships, as summarized in the Benefits of Exclusion--Orange County
Southern Subregion HCP section above, we determine the significant
benefits of exclusion outweigh the minor benefits of critical habitat
designation.
Exclusion Will Not Result in Extinction of the Species--Orange County
Southern Subregion HCP
We determined that the exclusion of 233 ac (94 ha) of land within
the boundaries of the Orange County Southern Subregion HCP from the
designation of critical habitat for the Riverside fairy shrimp will not
result in extinction of the species. Proposed actions that affect
waters of the United States as defined under the CWA, including in many
cases vernal pools occupied by Riverside fairy shrimp, will continue to
be subject consultation under section 7(a)(2) of the Act and to the
duty to avoid jeopardy to the species. The protection provided by the
Orange County Southern Subregion HCP also provides assurances that this
species will not go extinct as a result of excluding these lands from
the critical habitat designation. Therefore, the Secretary is
exercising his discretion to exclude 233 ac (94 ha) of land within the
boundaries of the Orange County Southern Subregion HCP from this final
critical habitat designation.
Western Riverside County Multiple Species Habitat Conservation Program
The Western Riverside County MSHCP is a regional,
multijurisdictional HCP that encompasses approximately 1.26 million ac
(510,000 ha) of land in western Riverside County. The Western Riverside
County MSHCP addresses 146 listed and unlisted ``covered species,''
including the Riverside fairy shrimp. The Western Riverside County
MSHCP is a multispecies conservation program designed to minimize and
mitigate the expected loss of habitat and associated incidental take of
covered species resulting from covered development activities such as
indirect effects from flood control, road maintenance, housing
construction, and construction of public facilities in the plan area.
On June 22, 2004, the Service issued a single incidental take permit
under section 10(a)(1)(B) of the Act to 22 permittees under the Western
Riverside County MSHCP to be in effect for a period of 75 years
(Service 2004a).
[[Page 72108]]
The Western Riverside County MSHCP, when fully implemented, will
establish approximately 153,000 ac (61,917 ha) of new conservation
lands (additional reserve lands (ARL)) to complement the approximate
347,000 ac (140,426 ha) of preexisting natural and open space areas
(public/quasi-public (PQP) lands) in the plan area. PQP lands include
those under ownership of public agencies, primarily the U.S. Forest
Service (USFS) and Bureau of Land Management (BLM), as well as
permittee-owned or controlled open-space areas managed by the State of
California and Riverside County. Collectively, the ARL and PQP lands
form the overall Western Riverside County MSHCP Conservation Area. The
configuration of the 153,000 ac (61,916 ha) of ARL is not mapped or
precisely delineated (hard-lined) in the Western Riverside County
MSHCP. Instead, the configuration and composition of the ARL are
described in text within the bounds of the approximately 310,000-ac
(125,453-ha) criteria area. Additional reserve lands are being acquired
and conserved as part of the ongoing implementation of the Western
Riverside County MSHCP.
Skunk Hollow and Field Pool (Barry Jones Wetland Mitigation Bank,
Subunit 3f), Lake Elsinore Back Basin (Australia Pool; Subunit 3c), and
Murrieta (Schleuniger Pool, Subunit 3e) are conserved or will be
conserved in the Western Riverside County MSHCP Conservation Area. The
plan protects Riverside fairy shrimp within the plan area by ensuring
the species is conserved within 90 percent of an occupied area (County
of Riverside 2003, Table 9-2). All vernal pool habitat within the
Western Riverside County MSHCP Conservation Area will be conserved. For
vernal pool habitat outside the Conservation Area, vernal pool habitat
is assessed on a project by project basis and an avoidance alternative
implemented, if feasible. If an avoidance alternative is not feasible,
a practicable alternative that minimizes direct and indirect effects to
riparian/riverine areas, vernal pools/fairy shrimp habitat, and
associated functions will be selected and unavoidable impacts will be
mitigated. To ensure adequate replacement of lost functions and values,
the permittee is required to make a determination of biologically
equivalent or superior preservation, as described in the Plan (pp. 6-24
and 6-25), that evaluates the effects to habitats and effects on
species (Dudek and Associates 2003, pp. 6-20, 6-21, 6-23). This
analysis must demonstrate that a proposed action, including design
features to minimize impacts and compensation measures (for example,
restoration, enhancement), will provide equal or better conservation
than avoidance of the riparian, riverine, vernal pools, or fairy shrimp
habitats (Dudek and Associates 2003, pp. 6-23-6-25). All projects
impacting vernal pool habitat must be reviewed by project permittees
and the Service (Dudek and Associates 2003, p. 6-84).
Subunit 3g (Johnson Ranch Created Pool) is on existing conserved
lands and is managed by CDFG (Service 2001, p. 2). Portions of Subunits
3e (Schleuniger Pool) and 3h (Santa Rosa Plateau--Mesa de Colorado)
have been conserved. Subunits 3c (Australia Pool), 3d (Scott Road
Pool), 3f (Skunk Hollow and Field Pool (Barry Jones Wetland Mitigation
Bank)), and the remaining portions of Subunits 3e and 3h are on PQP
lands.
Species-specific conservation objectives are included in the
Western Riverside County MSHCP for the Riverside fairy shrimp. One
objective is to conserve at least 11,942 ac (4,833 ha) of occupied or
suitable habitat for the species. In addition, other areas within the
criteria area identified as important for Riverside fairy shrimp will
be conserved, including areas in Murrieta (Schleuniger Pool, Subunit
3e), Skunk Hollow (Subunit 3f), and Santa Rosa Plateau (Subunit 3h).
This objective is intended to be met through implementation of the
Protection of Species Associated with Riparian/Riverine Areas and
Vernal Pools policy under the plan, which states that 90 percent of the
area of occupied properties that provide long-term conservation value
for Riverside fairy shrimp shall be conserved.
We anticipate that this species will persist in the remaining 90
percent of occupied habitat with long-term conservation value for the
species, including all of the modeled habitat within both the existing
public/quasi-public lands and the additional reserve lands. All
critical habitat units within the boundaries of the Western Riverside
MSHCP are conserved or on PQP lands. The MSHCP will further offset the
proposed impacts to this species through management and monitoring
actions within the reserve, including the enhancement of historic or
vestigial vernal pools within Conservation Areas. This enhancement will
help offset the impacts of activities covered by the plan by increasing
the quality of the habitat that is conserved for this species and by
allowing the expansion of populations within the reserve through the
enhancement of historic or vestigial vernal pools that do not currently
provide habitat for the species (Service 2004a, pp. 239-245).
The 1993 final listing rule for the Riverside fairy shrimp
attributed the primary threat to this species to present or threatened
destruction, modification, or curtailment of its habitat or to urban
and agricultural development, OHV use, cattle trampling, human
trampling, road development, and water management activities (58 FR
41387, August 3, 1993). The 1993 final listing rule also identified
other natural and manmade factors, including introduction of nonnative
plant species, competition with invading species, trash dumping, fire,
and fire suppression activities (58 FR 41389, August 3, 1993) as
primary threats to the Riverside fairy shrimp. The Western Riverside
County MSHCP helps to address these threats through a regional planning
effort, and contains species-specific objectives and criteria to
provide for the conservation of the Riverside fairy shrimp and its
habitat as the plan is implemented.
Benefits of Inclusion--Western Riverside County MSHCP
The designation of critical habitat can result in regulatory,
educational, and ancillary benefits. As discussed under Application of
the ``Adverse Modification'' Standard, the regulatory benefit of
including an area in a critical habitat designation is the added
conservation that may result from the separate duty imposed on Federal
agencies under section 7(a)(2) of the Act to ensure that actions they
fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat.
However, for reasons stated in the Regulatory Benefits of Inclusion
for Habitat Conservation Plans section above, we conclude any
additional regulatory benefits of critical habitat designation would be
minimal because the regulatory benefits from designation are difficult
to distinguish at this point in time from the benefits of listing
because all areas are considered occupied. In addition, because
essential Riverside fairy shrimp habitat within the Western Riverside
County MSHCP is required to be protected under the plan, the likelihood
of a future section 7 consultation on these lands for other than
conservation-related actions is remote. Thus, because we do not
anticipate that the outcome of future section 7 consultations on
Riverside fairy shrimp would change if critical habitat was designated
and because the likelihood of future section 7 consultations is remote,
we conclude that the regulatory benefits of
[[Page 72109]]
designating habitat that contains the physical or biological features
essential to the conservation of the species and within the Western
Riverside County MSHCP (all acreages within Unit 3) would be, at most,
minor.
As discussed under Benefits of Inclusion--Orange County Central-
Coastal NCCP/HCP, another possible benefit of including lands in a
critical habitat designation is that the designation can serve to
educate landowners and the public regarding the potential conservation
value of an area, and may help focus conservation efforts on areas of
high conservation value for certain species. In the case of Riverside
fairy shrimp, however, there have already been multiple occasions when
the public has been educated about the species. The Western Riverside
County MSHCP was developed over a 5-year period, and has been in place
for almost a decade. Implementation of the plan is formally reviewed
yearly through publicly available annual reports, again providing
extensive opportunity to educate the public and landowners about the
location of, and efforts to conserve, areas identified as critical
habitat for the Riverside fairy shrimp. The permit holders of the
Western Riverside County MSHCP are aware of the value of these lands to
the conservation of the Riverside fairy shrimp, and conservation
measures are already in place to protect the Riverside fairy shrimp and
its habitat within the Conservation Area. Areas identified as critical
habitat for the Riverside fairy shrimp that are covered by the Western
Riverside County MSHCP were also included in the proposed designation
published in the Federal Register on June 1, 2011 (76 FR 31686), as
well as the previous proposed revised critical habitat published on
April 27, 2004 (69 FR 23024), and the previous final revised rule
published on April 12, 2005 (70 FR 19154). These publications were
announced in a press release and information was posted on the
Service's Web site.
We consider the educational benefits of critical habitat
designation for Riverside fairy shrimp (such as providing information
to the County of Riverside, other stakeholders, and the public
regarding areas important to the long-term conservation of this
species) have already been realized through the development and ongoing
implementation of the Western Riverside County MSHCP, by proposing
these areas as critical habitat, and through the Service's public
outreach efforts. For these reasons, we conclude that the educational
benefits of designating critical habitat within the Western Riverside
County MSHCP would be negligible.
Finally, critical habitat designation can result in ancillary
conservation benefits to Riverside fairy shrimp by triggering
additional review and conservation through other Federal and State
laws. The primary State law that might be affected by critical habitat
designation is CEQA. However, lands identified as critical habitat
within Western Riverside County have been identified in the Western
Riverside County MSHCP and are either already protected or targeted for
protection under the plan. Thus, review of any future development
proposals affecting lands identified as critical habitat within the
plan area under CEQA already take into account the importance of this
habitat to the species and the protections required for the species and
its habitat under the plan. The Federal law most likely to afford
protection to designated Riverside fairy shrimp habitat is the CWA.
Projects requiring a permit under the CWA, such as a fill permit under
section 404 of the CWA, located within critical habitat or likely to
affect critical habitat, would trigger section 7 consultation under the
Act. However, as discussed above, we conclude the potential regulatory
benefits resulting from designation of critical habitat would be
negligible because, with regard to the Riverside fairy shrimp, the
outcome of an adverse modification analysis under section 7(a)(2) of
the Act would not differ materially from the outcome of a jeopardy
analysis. Therefore, we conclude the ancillary benefits of designating
lands identified as critical habitat for the Riverside fairy shrimp
within the Western Riverside County MSHCP as critical habitat would be
negligible.
For the reasons stated above, we consider section 7 consultations
for critical habitat designation conducted under the standards required
by the 9th Circuit Court in the Gifford Pinchot Task Force v. U.S. Fish
and Wildlife Service decision would provide little conservation benefit
and would be largely redundant with those benefits attributable to
listing as well as those already provided by the Western Riverside
County MSHCP. Therefore, the benefits of inclusion are reduced because
the regulatory benefits of designating those acres as Riverside fairy
shrimp critical habitat, such as protection afforded through the
section 7(a)(2) consultation process, are minimal. Additionally, the
benefits of inclusion are reduced because the educational and ancillary
benefits of designating lands identified as critical habitat for the
Riverside fairy shrimp covered by the Western Riverside County MSHCP
would be negligible because the location of lands identified as
critical habitat for Riverside fairy shrimp for this species within
Western Riverside County and the importance of conserving such habitat
are well known and are already addressed through CEQA and through
implementation of Western Riverside County MSHCP.
Benefits of Exclusion--Western Riverside County MSHCP
The benefits of excluding from designated critical habitat the
approximately 865 ac (350 ha) of land within the Western Riverside
County MSHCP are significant. The benefits of excluding lands
identified as critical habitat covered by these plans include: (1)
Continuance and strengthening of our effective working relationships
with all MSHCP jurisdictions and stakeholders to promote the
conservation of the Riverside fairy shrimp and its habitat; (2)
allowance for continued meaningful collaboration and cooperation in
working toward recovering this species, including conservation benefits
that might not otherwise occur; (3) encouragement of other
jurisdictions with completed HCP/NCCP plans to amend their plans to
cover and benefit the Riverside fairy shrimp and vernal pool habitat;
and (4) encouragement of additional HCP and other conservation plan
development in the future on other private lands that include Riverside
fairy shrimp and other federally listed species.
We have developed close partnerships with the County of Riverside
and several other stakeholders through the development of the Western
Riverside County MSHCP. The protection and management provided for the
Riverside fairy shrimp and its habitat, including the physical or
biological features essential to the conservation of the species, are
consistent with statutory mandates under section 7 of the Act to avoid
destruction or adverse modification of critical habitat. Furthermore,
this plan goes beyond the statutory mandate by actively protecting
habitat areas that contain the physical or biological features
essential to the conservation of the species. By excluding the
approximately 865 ac (350 ha) of land within the boundaries of the
Western Riverside County MSHCP from critical habitat designation, we
are eliminating a redundant layer of regulatory review for projects
covered by the Western Riverside County MSHCP, maintaining our
partnership with Riverside County and other participating
jurisdictions,
[[Page 72110]]
and encouraging new voluntary partnerships with other landowners and
jurisdictions to protect the Riverside fairy shrimp and other listed
species. As discussed above, the prospect of potentially avoiding a
future designation of critical habitat provides a meaningful incentive
to plan proponents to extend protections to endangered and threatened
species and their habitats under a habitat conservation plan. Achieving
comprehensive landscape-level protection for listed species,
particularly rare vernal pool species such as the Riverside fairy
shrimp through their inclusion in regional conservation plans, provides
a key conservation benefit for such species. Our ongoing partnerships
with the County of Riverside and the regional Western Riverside County
MSHCP participants, and the landscape-level multiple species
conservation planning efforts they promote, are essential to achieve
long-term conservation of the Riverside fairy shrimp.
As noted earlier, some HCP permittees have expressed the view that
critical habitat designation of lands covered by an HCP devalues the
conservation efforts of plan proponents and the partnerships fostered
through the development and implementation of the plans, and would
discourage development of additional HCPs and other conservation plans
in the future. Permittees of the Western Riverside County MSHCP have
repeatedly stated that exclusion of lands covered by the plan would
prove beneficial to our partnership (WRCRCA 2012, p. 5). In a comment
letter on the proposed critical habitat, a representative from the
Western Riverside Regional Conservation Authority stated that lands
covered by the Western Riverside County MSHCP should be excluded from
critical habitat. We consider that where an existing HCP provides
protection for a species and its habitat within the plan area, the
benefits of preserving existing partnerships by excluding the covered
lands from critical habitat are most significant. Under these
circumstances, excluding lands owned by or under the jurisdiction of
the permittees of an HCP promotes positive working relationships and
eliminates impacts to existing and future partnerships while
encouraging development of additional HCPs for other species.
Large-scale HCPs, such as the Western Riverside County MSHCP, take
many years to develop, and foster a strategic ecosystem-based approach
to habitat conservation planning by addressing conservation issues
through a coordinated approach. If, instead, local jurisdictions were
to require landowners to individually obtain ITPs under section 10 of
the Act, the conservation likely to result would be uncoordinated,
patchy, and less likely to achieve listed species recovery as
conservation measures would be determined on a project-by-project basis
instead of on a comprehensive, landscape-level scale. To avoid that
outcome, we are committed to fostering partnerships with local
jurisdictions to encourage the development of regional HCPs that afford
proactive landscape-level conservation for multiple species. We
conclude that the exclusion from critical habitat designation of lands
meeting the definition of critical habitat within the Western Riverside
County MSHCP will result in significant partnership benefits that we
believe will result in important protection for and conservation of the
Riverside fairy shrimp and other listed species and their habitats.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Western
Riverside County MSHCP
We reviewed and evaluated the exclusion of approximately 865 ac
(350 ha) of land within the boundaries of the Western Riverside County
MSHCP from our revised designation of critical habitat, and we
determined the benefits of excluding these lands outweigh the benefits
of including them. The benefits of including these lands in the
designation are reduced because the regulatory, educational, and
ancillary benefits that would result from critical habitat designation
are almost entirely redundant with the regulatory, educational, and
ancillary benefits already afforded through the Western Riverside
County MSHCP and under State and Federal law. In contrast to the
reduced benefits of inclusion, the benefits of excluding lands covered
by the Western Riverside County MSHCP from critical habitat designation
are significant. Exclusion of these lands will help preserve the
partnerships we developed with local jurisdictions and project
proponents through the development and ongoing implementation of the
Western Riverside County MSHCP, and aid in fostering future
partnerships for the benefit of listed species. Our partnership with
plan participants has already resulted in significant benefits to
listed species and vernal pool habitat; based on this track record of
success, we expect that this meaningful partnership will continue into
the future.
The Western Riverside County MSHCP will provide significant
conservation and management of the Riverside fairy shrimp and its
habitat and help achieve recovery of this species through habitat
enhancement and restoration, functional connections to adjoining
habitat, and species monitoring efforts. Additional HCPs or other
species-habitat plans potentially fostered by this exclusion would also
help to recover this and other federally listed species. Therefore, in
consideration of the relevant impact to current and future
partnerships, as summarized in the Benefits of Exclusion--Western
Riverside County MSHCP section above, we determine the significant
benefits of exclusion outweigh the minor benefits of inclusion.
Exclusion Will Not Result in Extinction of the Species--Western
Riverside County MSHCP
We determine that the exclusion of 865 ac (350 ha) of land within
the boundaries of the Western Riverside County MSHCP from the
designation of critical habitat for the Riverside fairy shrimp will not
result in extinction of the species. Proposed actions that affect
waters of the United States as defined under the CWA, which in many
cases include vernal pools occupied by Riverside fairy shrimp, will
continue to be subject to consultation under section 7(a)(2) of the Act
and to the duty to avoid jeopardy to the species. The protection
provided by the Western Riverside County MSHCP also provides assurances
that this species will not go extinct as a result of excluding these
lands from the critical habitat designation.
Therefore, the Secretary is exercising his discretion to exclude
865 ac (350 ha) of land (all of Unit 3) within the boundaries of the
Western Riverside County MSHCP from this final critical habitat
designation.
Carlsbad HMP Under the San Diego MHCP
The San Diego Multiple Habitat Conservation Program (MHCP) is a
comprehensive, multijurisdictional planning program designed to create,
manage, and monitor an ecosystem preserve in northwestern San Diego
County while providing for economic and urban development by
streamlining the permitting process. The MHCP is also a subregional
plan under the State of California's NCCP program, which was developed
in cooperation with CDFG. The MHCP preserve system (focused planning
area (FPA)) is intended to protect viable populations of native plant
and animal species and their habitats in perpetuity, while
accommodating continued economic
[[Page 72111]]
development and quality of life for residents of northern San Diego
County.
The MHCP includes an approximately 112,000-ac (45,324-ha) study
area within the cities of Carlsbad, Encinitas, Escondido, San Marcos,
Oceanside, Vista, and Solana Beach (MHCP 2003, entire). These cities
will implement their respective portions of the MHCP through subarea
plans. Only the City of Carlsbad has an approved subarea plan at this
time, which is called the Carlsbad Habitat Management Plan (Carlsbad
HMP). The section 10(a)(1)(B) incidental take permit and IA for the
Carlsbad HMP were issued on November 12, 2004 (Service 2004b).
Conservation requirements within the Carlsbad HMP for Riverside fairy
shrimp include conserving 100 percent of the known Riverside fairy
shrimp habitat and implementing the MHCP's narrow endemic and no net
loss of wetlands (including vernal pools) policies for any additional
vernal pools discovered in the MHCP planning area. These policies
require all vernal pools and their watersheds within the MHCP study
area to be 100 percent conserved, regardless of occupancy by Riverside
fairy shrimp and regardless of location inside or outside of the FPA,
unless doing so would remove all economic uses of a property. In the
event that no feasible project alternative avoids all impacts on a
particular property, the impacts must be minimized and mitigated to
achieve no net loss of biological functions and values (Service 2004c,
p. 330). Unit 4c covers the Poinsettia Lane Commuter Train Station
vernal pool complex within the Carlsbad HMP, and consists of 9 ac (4
ha): 3 ac (1 ha) of private property and 6 ac (3 ha) local land owned
by the North County Transit District.
The Poinsettia Lane Commuter Train Station vernal pool complex
supports the only known occurrence of the Riverside fairy shrimp within
the boundaries of the Carlsbad HMP. Coverage of the Riverside fairy
shrimp under the Carlsbad HMP is conditioned on permanent protection,
management, and monitoring of the Poinsettia Lane Commuter Train
Station vernal pool complex as outlined in the biological opinion for
the Carlsbad HMP (Service 2004c, pp. 327-33). We continue to work with
the City of Carlsbad to conserve this area.
Benefits of Inclusion--Carlsbad HMP Under the San Diego MHCP
The designation of critical habitat can result in regulatory,
educational, and ancillary benefits. As discussed under Application of
the ``Adverse Modification'' Standard, the regulatory benefit of
including an area in a critical habitat designation is the added
conservation that may result from the separate duty imposed on Federal
agencies under section 7(a)(2) of the Act to ensure that actions they
fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat.
However, as discussed above and for reasons stated in the
Regulatory Benefits of Inclusion for Habitat Conservation Plans section
above, we conclude any additional regulatory benefits of critical
habitat designation would be minimal because the regulatory benefits
from designation are difficult to distinguish at this point in time
from the benefits of listing. In addition, because lands identified as
critical habitat for the Riverside fairy shrimp habitat within the
Carlsbad HMP are required to be protected under the plan, the
likelihood of a future section 7 consultation on these lands for other
than conservation related actions is remote. Thus, because we do not
anticipate that the outcome of future section 7 consultations on
Riverside fairy shrimp would change if critical habitat were designated
and because the likelihood of future section 7 consultations is remote,
we conclude that the regulatory benefits of designating lands
identified as critical habitat for Riverside fairy shrimp within the
Carlsbad HMP (Subunit 4c) would be, at most, minor.
Another possible benefit of including lands in a critical habitat
designation is that the designation can serve to educate landowners and
the public regarding the potential conservation value of an area, and
may help focus conservation efforts on areas of high conservation value
for certain species. Any information about the Riverside fairy shrimp
and its habitat that reaches a wide audience, including parties engaged
in conservation activities, is valuable. In the case of Riverside fairy
shrimp, however, there have already been multiple occasions when the
public has been educated about the species. The framework of the
regional San Diego MHCP was developed over a 6-year period and both the
San Diego MHCP and the Carlsbad HMP have been in place for almost a
decade. Implementation of the subarea plan is formally reviewed yearly
through publicly available annual reports and a public meeting, again
providing extensive opportunity to educate the public and landowners
about the location of, and efforts to conserve, lands identified as
critical habitat for the Riverside fairy shrimp. As discussed above,
the permit holders of the Carlsbad HMP are aware of the value of these
lands to the conservation of Riverside fairy shrimp. Lands identified
as critical habitat for Riverside fairy shrimp that are covered by the
Carlsbad HMP were included in the proposed designation published in the
Federal Register on June 1, 2011 (76 FR 31686), as well as the previous
proposed revised critical habitat published on April 27, 2004 (69 FR
23024), and the previous final revised rule published on April 12, 2005
(70 FR 19154). These publications were announced in press releases and
information was posted on the Service's Web site.
We consider the educational benefits of critical habitat
designation (such as providing information to the City of Carlsbad and
other stakeholders and to the public regarding areas important to the
long-term conservation of this species) have already been realized
through development and ongoing implementation of the Carlsbad HMP, by
proposing these areas as critical habitat, and through the Service's
public outreach efforts. For these reasons, we conclude that the
educational benefits of designating critical habitat within the
Carlsbad HMP would be negligible.
Finally, critical habitat designation can also result in ancillary
conservation benefits to Riverside fairy shrimp by triggering
additional review and conservation through other Federal and State
laws. The primary State law that might be affected by critical habitat
designation is CEQA. However, lands identified as critical habitat
within the City of Carlsbad have been identified in the HMP and are
either already protected or targeted for protection under the plan.
Thus, review of development proposals affecting habitat that contains
the physical or biological features essential to the conservation of
the species under CEQA by the City of Carlsbad already takes into
account the importance of this habitat to the species and the
protections required for the species and its habitat under the plan.
The Federal law most likely to afford protection to designated
Riverside fairy shrimp habitat is the CWA. Projects requiring a permit
under the CWA, such as a fill permit under section 404 of the CWA,
located within critical habitat or likely to affect critical habitat,
would trigger section 7 consultation under the Act. However, as
discussed above, we conclude the potential regulatory benefits
resulting from designation of critical habitat would be negligible
because, with regard to Riverside fairy shrimp, the outcome of an
adverse modification analysis under section 7(a)(2) of the Act would
not differ materially from the outcome of a
[[Page 72112]]
jeopardy analysis. Therefore, we conclude that the ancillary benefits
of designating lands identified as critical habitat for Riverside fairy
shrimp within the Carlsbad HMP as critical habitat would be negligible.
For the reasons stated above, we consider section 7 consultations
for critical habitat designation conducted under the standards required
by the 9th Circuit Court in the Gifford Pinchot Task Force v. U.S. Fish
and Wildlife Service decision would provide little conservation benefit
and would be largely redundant with those benefits attributable to
listing as well as those already provided by the Carlsbad HMP.
Therefore, the benefits of inclusion are reduced because the regulatory
benefits of designating those acres as Riverside fairy shrimp critical
habitat, such as protection afforded through the section 7(a)(2)
consultation process, are minimal. Additionally, the benefits of
inclusion are reduced because the educational and ancillary benefits of
designating lands identified as critical habitat for Riverside fairy
shrimp covered by the Carlsbad HMP would be negligible because the
location of such habitat for this species within the City of Carlsbad
and the importance of conserving such habitat are well known and are
already addressed through CEQA and through implementation of the
Carlsbad HMP.
Benefits of Exclusion--Carlsbad HMP Under the San Diego MHCP
The benefits of excluding from designated critical habitat the
approximately 9 ac (4 ha) of land within the Carlsbad HMP are
significant. The benefits of excluding lands identified as critical
habitat covered by this plan include: (1) Continuance and strengthening
of our effective working relationships with the City of Carlsbad and
other plan stakeholders to promote the conservation of the Riverside
fairy shrimp and its habitat; (2) allowance for continued meaningful
collaboration and cooperation in working toward recovering this
species, including conservation benefits that might not otherwise
occur; (3) encouragement of other jurisdictions to complete subarea
plans under the MHCP (including the cities of Oceanside, San Marcos,
and Escondido) that cover or are adjacent to Riverside fairy shrimp or
other vernal pool habitat; and (4) encouragement of additional NCCP/HCP
and other conservation plan development in the future on private lands
within the region that includes Riverside fairy shrimp and other
federally listed species.
We have developed close partnerships with the City of Carlsbad and
several other stakeholders through the development of the Carlsbad HMP.
The protections and management provided for Riverside fairy shrimp and
its habitat under the plan are consistent with statutory mandates under
section 7 of the Act to avoid destruction or adverse modification of
critical habitat. By excluding the approximately 9 ac (4 ha) of land
within the boundaries of the Carlsbad HMP from critical habitat
designation, we are eliminating a redundant layer of regulatory review
for projects covered by the Carlsbad HMP, maintaining our partnership
with the City of Carlsbad, and encouraging new voluntary partnerships
with other landowners and jurisdictions to protect the Riverside fairy
shrimp and other listed species. As discussed above, the prospect of
potentially avoiding a future designation of critical habitat provides
a meaningful incentive to plan proponents to extend protections to
endangered and threatened species and their habitats under a habitat
conservation plan. Achieving comprehensive landscape-level protection
for listed species, particularly rare vernal pool species such as the
Riverside fairy shrimp through their inclusion in regional conservation
plans, provides a key conservation benefit for such species. Our
ongoing partnerships with the City of Carlsbad and other regional MHCP
participants, and the landscape-level multiple species conservation
planning efforts they promote, are essential to achieve long-term
conservation of Riverside fairy shrimp.
As noted in the Benefits of Exclusion--Orange County Southern
Subregion HCP and Benefits of Exclusion--Western Riverside County MSHCP
sections above, some HCP permittees have expressed the view that
critical habitat designation of lands covered by an HCP devalues the
conservation efforts of plan proponents and the partnerships fostered
through the development and implementation of the plans, and would
discourage development of additional HCPs and other conservation plans
in the future. Where an existing HCP provides protection for a species
and its essential habitat within the plan area, the benefits of
preserving existing partnerships by excluding the covered lands from
critical habitat are most significant. Under these circumstances,
excluding lands owned by or under the jurisdiction of the permittees of
an HCP promotes positive working relationships and eliminates impacts
to existing and future partnerships while encouraging development of
additional HCPs for other species.
Large-scale HCPs, such as the regional MHCP and subarea plans in
development under its framework, take many years to develop and foster
an ecosystem-based approach to habitat conservation planning by
addressing conservation issues through a coordinated approach. If,
instead, local jurisdictions were to require landowners to individually
obtain ITPs under section 10 of the Act, the conservation likely to
result would be uncoordinated, patchy, and less likely to achieve
listed species recovery as conservation measures would be determined on
a project-by-project basis instead of on a comprehensive, landscape-
level scale. To avoid that outcome, we are committed to fostering
partnerships with local jurisdictions to encourage the development of
regional HCPs that afford proactive landscape-level conservation for
multiple species. We find that the exclusion from critical habitat
designation of lands identified as critical habitat for the Riverside
fairy shrimp within the Carlsbad HMP will result in significant
partnership benefits that we believe will result in greater protection
for the Riverside fairy shrimp and its habitat and other listed species
and their habitats.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Carlsbad HMP
Under the San Diego MHCP
We reviewed and evaluated the exclusion of approximately 9 ac (4
ha) of land within the boundaries of the Carlsbad HMP from our revised
designation of critical habitat, and we determined the benefits of
excluding these lands outweigh the benefits of including them. The
benefits of including these lands in the designation are reduced
because the regulatory, educational, and ancillary benefits that would
result from critical habitat designation are almost entirely redundant
with the regulatory, educational, and ancillary benefits already
afforded through the Carlsbad HMP and under State and Federal law. In
contrast to the reduced benefits of inclusion, the benefits of
excluding lands covered by the Carlsbad HMP from critical habitat
designation are significant. Exclusion of these lands will help
preserve the partnerships we developed with local jurisdictions and
project proponents through the development and ongoing implementation
of the Carlsbad HMP, and aid in fostering future partnerships for the
benefit of listed species. Our partnership with the City of Carlsbad
[[Page 72113]]
has already resulted in significant benefits to listed species and
vernal pool habitat; based on this track record of success, we expect
that this meaningful partnership will continue into the future.
The Carlsbad HMP will provide significant conservation and
management of the Riverside fairy shrimp and its habitat and help
achieve recovery of this species through habitat enhancement and
restoration, functional connections to adjoining habitat, and species
monitoring efforts. Additional HCPs or other species-habitat plans
potentially fostered by this exclusion would also help to recover this
and other federally listed species. Therefore, in consideration of the
relevant impact to current and future partnerships, as summarized in
the Benefits of Exclusion--Carlsbad HMP under the San Diego MHCP
section above, we determine the significant benefits of exclusion
outweigh the minor benefits of inclusion.
Exclusion Will Not Result in Extinction of the Species--Carlsbad HMP
Under the San Diego MHCP
We determine that the exclusion of 9 ac (4 ha) of land within the
boundaries of the Carlsbad HMP from the designation of critical habitat
for Riverside fairy shrimp will not result in extinction of the
species. Proposed actions that affect waters of the United States as
defined under the CWA, which in many cases include vernal pools
occupied by Riverside fairy shrimp, will continue to be subject
consultation under section 7(a)(2) of the Act and to the duty to avoid
jeopardy to the species. The protection provided by the Carlsbad HMP
also provides assurances that this species will not go extinct as a
result of excluding lands from critical habitat within the plan area.
Therefore, the Secretary is exercising his discretion to exclude 9
ac (4 ha) of land (Subunit 4c) within the boundaries of the Carlsbad
HMP from this final critical habitat designation.
County of San Diego Subarea Plan Under the San Diego MSCP
The Riverside fairy shrimp is covered under the County of San Diego
Subarea Plan. The Multiple Species Conservation Program (MSCP) is a
comprehensive habitat conservation planning program that encompasses
582,243 ac (235,626 ha) within 12 jurisdictions in southwestern San
Diego County. The MSCP is a subregional plan that identifies the
conservation needs of 85 federally listed and sensitive species,
including the Riverside fairy shrimp, and serves as the basis for
development of subarea plans by each jurisdiction in support of section
10(a)(1)(B) permits. The subregional MSCP identifies where mitigation
activities should be focused, such that upon full implementation of the
subarea plans, approximately 171,920 ac (69,574 ha) of the 582,243-ac
(235,626-ha) MSCP plan area will be preserved and managed for covered
species. The MSCP also provides for a regional biological monitoring
program, with the Riverside fairy shrimp identified as a first-priority
species for field monitoring.
Consistent with the MSCP, the conservation of Riverside fairy
shrimp is addressed in the County of San Diego Subarea Plan. The County
of San Diego Subarea Plan identifies areas that are hard-lined for
conservation and areas where mitigation activities should be focused to
assemble its preserve (pre-approved mitigation area). Implementation of
the County of San Diego Subarea Plan will result in a minimum 98,379-ac
(39,813-ha) preserve area.
A portion of Subunit 5d (23 ac (9 ha)) is within the County of San
Diego Subarea Plan. Within the covered area, 6 ac (2 ha) are within a
hard-lined preserve area. These hard-lined preserve lands were
designated in conjunction with the Otay Ranch Specific Plan, and are to
be conveyed to a land manager (for example, County or Federal
government) in phases such that 1.18 ac (0.48 ha) are conserved for
every 1 ac (0.40 ha) developed. A natural resource management plan has
been developed that addresses the preservation, enhancement, and
management of sensitive natural resources on the 22,899-ac (9,267-ha)
Otay Ranch hard-lined preserve area (County of San Diego 1997, pp. 3-
15). The remaining 17 ac (7 ha) are outside the hard-lined preserve.
This portion of the unit receives protections set out in the County of
San Diego Subarea Plan, including the requirement that any impacts to
the Riverside fairy shrimp and vernal pools be avoided to the maximum
extent practicable; where complete avoidance is infeasible, projects
would be designed to avoid any significant reduction to species
viability (Service 1998b, pp. 33, 43, 66). Any unavoidable impacts will
be minimized and mitigated to achieve no net loss of function or value
(Service 1998b, p. 66).
The Secretary is exercising his discretion to exclude the portion
of Subunit 5d (23 ac (9 ha)) of land within the boundaries of the
County of San Diego Subarea Plan from this final critical habitat
designation.
Benefits of Inclusion--County of San Diego Subarea Plan Under the San
Diego MSCP
The designation of critical habitat can result in regulatory,
educational, and ancillary benefits. As discussed under Application of
the ``Adverse Modification'' Standard, the regulatory benefit of
including an area in a critical habitat designation is the added
conservation that may result from the separate duty imposed on Federal
agencies under section 7(a)(2) of the Act to ensure that actions they
fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat.
However, for reasons stated in the Regulatory Benefits of Inclusion
for Habitat Conservation Plans section above, we conclude any
additional regulatory benefits of critical habitat designation would be
minimal because the regulatory benefits from designation are difficult
to distinguish at this point in time from the benefits of listing.
Thus, because we do not anticipate that the outcome of future section 7
consultations on the Riverside fairy shrimp would change if critical
habitat were designated, we conclude that the regulatory benefits of
designating lands identified as critical habitat for the Riverside
fairy shrimp within the portion of Subunit 5d within the County of San
Diego Subarea Plan would be, at most, minor.
Another possible benefit of including lands in a critical habitat
designation is that the designation can serve to educate landowners and
the public regarding the potential conservation value of an area, and
may help focus conservation efforts on areas of high conservation value
for certain species. Any information about the Riverside fairy shrimp
and its habitat that reaches a wide audience, including parties engaged
in conservation activities, is valuable. In the case of the Riverside
fairy shrimp, however, there have already been multiple occasions when
the public has been educated about the species. The framework of the
regional San Diego MSCP was developed over a 7-year period, while the
County of San Diego Subarea Plan has been in place for over a decade.
Implementation of the subarea plans is formally reviewed yearly through
publicly available annual reports and a public meeting, again providing
extensive opportunity to educate the public and landowners about the
location of, and efforts to conserve, essential Riverside fairy shrimp
habitat. As discussed above, the permit holders of the County of San
[[Page 72114]]
Diego Subarea Plan are aware of the value of these lands to the
conservation of the Riverside fairy shrimp, and measures are already in
place to protect Riverside fairy shrimp and its habitat.
Lands identified as critical habitat for the Riverside fairy shrimp
that are covered by the County of San Diego Subarea Plan were also
included in the proposed designation published in the Federal Register
on June 1, 2011 (76 FR 31686), as well as the previous proposed revised
critical habitat published on April 27, 2004 (69 FR 23024), and the
previous final revised rule published on April 12, 2005 (70 FR 19154).
These publications were announced in press releases and information was
posted on the Service's web site. We consider the educational benefits
of critical habitat designation (such as providing information to the
County and other stakeholders and to the public regarding areas
important to the long-term conservation of this species) have already
been realized through the development and ongoing implementation of the
County of San Diego Subarea Plan, by proposing these areas as critical
habitat, and through the Service's public outreach efforts. The
educational benefits of designating critical habitat within the County
of San Diego Subarea Plan would be negligible.
Finally, critical habitat designation can also result in ancillary
conservation benefits to the Riverside fairy shrimp by triggering
additional review and conservation through other Federal and State
laws. The primary State law that might be affected by critical habitat
designation is CEQA. However, lands identified as critical habitat
within the County of San Diego in Subunit 5d are required to be
protected under the Subarea Plan. Thus, review of development proposals
affecting lands identified as critical habitat for the Riverside fairy
shrimp in Subunit 5d under CEQA by the County of San Diego already
takes into account the importance of this habitat to the species and
the protections required for the species and its habitat under the
Subarea plan. The Federal law most likely to afford protection to
designated Riverside fairy shrimp habitat is the CWA. Projects
requiring a permit under the CWA, such as a fill permit under section
404 of the CWA, located within critical habitat or likely to affect
critical habitat, would trigger section 7 consultation under the Act.
However, as discussed above, we conclude the potential regulatory
benefits resulting from designation of critical habitat would be
negligible because, with regard to the Riverside fairy shrimp, the
outcome of an adverse modification analysis under section 7(a)(2) of
the Act would not differ materially from the outcome of a jeopardy
analysis. Therefore, we conclude the ancillary benefits of designating
habitat containing the physical or biological features essential to the
conservation of the Riverside fairy shrimp within that portion of
Subunit 5d covered by the County of San Diego Subarea Plan as critical
habitat would be negligible.
For the reasons stated above, we consider section 7 consultations
for critical habitat designation conducted under the standards required
by the 9th Circuit Court in the Gifford Pinchot Task Force v. U.S. Fish
and Wildlife Service decision would provide little conservation benefit
and would be largely redundant with those benefits attributable to
listing as well as those already provided by the County of San Diego
Subarea Plan. Therefore, the benefits of inclusion are reduced because
the regulatory benefits of designating those acres as Riverside fairy
shrimp critical habitat, such as protection afforded through the
section 7(a)(2) consultation process, are minimal. Additionally, the
benefits of inclusion are reduced because the educational and ancillary
benefits of designating lands identified as critical habitat for
Riverside fairy shrimp covered by the County of San Diego Subarea Plan
would be negligible because the location of lands identified as
critical habitat for Riverside fairy shrimp for this species within the
County of San Diego and the importance of conserving such habitat are
well known and are already addressed through CEQA and through
implementation of the County of San Diego Subarea Plan.
Benefits of Exclusion--County of San Diego Subarea Plan Under the San
Diego MSCP
The benefits of excluding from designated critical habitat the
approximately 23 ac (9 ha) of land within the County of San Diego
Subarea Plan are significant. The benefits of excluding critical
habitat covered by these plans include: (1) Continuance and
strengthening of our effective working relationships with the County of
San Diego and all MSCP jurisdictions and stakeholders to promote the
conservation of the Riverside fairy shrimp and its habitat; (2)
allowance for continued meaningful collaboration and cooperation in
working toward recovering the Riverside fairy shrimp, including
conservation benefits that might not otherwise occur; (3) encouragement
of other jurisdictions with completed subarea plans under the MSCP to
amend their plans to cover and benefit Riverside fairy shrimp and
vernal pool habitat (such as the City of Poway Subarea Plan under the
MSCP); (4) encouragement of other jurisdictions to complete subarea
plans under the MSCP (including the City of Santee) to cover and
benefit Riverside fairy shrimp and vernal pool habitat; (5)
encouragement for the City of San Diego to complete its draft vernal
pool management plan; and (6) encouragement of additional HCP and other
conservation plan development in the future on other private lands that
include Riverside fairy shrimp and other federally listed species.
We have developed close partnerships with the County of San Diego,
and several other stakeholders, and the protections and management
provided for the Riverside fairy shrimp and its habitat are consistent
with statutory mandates under section 7 of the Act to avoid destruction
or adverse modification of critical habitat. Furthermore, this plan
goes beyond the statutory mandate by requiring active management of the
portion of Subunit 5d covered by the County of San Diego Subarea Plan
and within the hardline reserves (6 ac (2 ha)). By excluding the
approximately 23 ac (9 ha) of land covered by the County of San Diego
Subarea Plan from critical habitat designation, we are eliminating a
redundant layer of regulatory review for the approved Otay Ranch
Specific Plan under the County of San Diego Subarea Plan and
encouraging new voluntary partnerships with other landowners and
jurisdictions to protect the Riverside fairy shrimp and other listed
species. As discussed above, the prospect of potentially avoiding a
future designation of critical habitat provides a meaningful incentive
to plan proponents to extend protections to endangered and threatened
species and their habitats under a habitat conservation plan. Achieving
comprehensive landscape-level protection for listed species,
particularly rare vernal pool species such as Riverside fairy shrimp
through their inclusion in regional conservation plans, provides a key
conservation benefit for such species. Our ongoing partnerships with
the county of San Diego and the regional MSCP participants, and the
landscape-level multiple species conservation planning efforts they
promote, are essential to achieve long-term conservation of Riverside
fairy shrimp.
As noted in the Benefits of Exclusion--Orange County Southern
Subregion HCP and Benefits of Exclusion--Western Riverside County
[[Page 72115]]
MSHCP sections above, some HCP permittees have expressed the view that
critical habitat designation of lands covered by an HCP devalues the
conservation efforts of plan proponents and the partnerships fostered
through the development and implementation of the plans, and would
discourage development of additional HCPs and other conservation plans
in the future. Where an existing HCP provides protection for a species
and its essential habitat within the plan area, the benefits of
preserving existing partnerships by excluding the covered lands from
critical habitat are most significant. Under these circumstances,
excluding lands owned by or under the jurisdiction of the permittees of
an HCP promotes positive working relationships and eliminates impacts
to existing and future partnerships while encouraging development of
additional HCPs for other species.
Large-scale HCPs, such as the regional MSCP and County of San Diego
Subarea Plan issued under its framework, take many years to develop,
and foster a strategic, ecosystem-based approach to habitat
conservation planning by addressing conservation issues through a
coordinated approach. If, instead, local jurisdictions were to require
landowners to individually obtain ITPs under section 10 of the Act, the
conservation likely to result would be uncoordinated, patchy, and less
likely to achieve listed species recovery as conservation measures
would be determined on a project-by-project basis instead of on a
comprehensive, landscape-level scale. To avoid that outcome, we are
committed to fostering partnerships with local jurisdictions to
encourage the development of regional HCPs that afford proactive
landscape-level conservation for multiple species. We conclude that the
exclusion from critical habitat designation of lands identified as
critical habitat for the Riverside fairy shrimp in Subunit 5d within
the County of San Diego Subarea Plan will result in significant
partnership benefits that we conclude will result in greater protection
for the Riverside fairy shrimp and its habitat and also other listed
species and their habitats.
Benefits of Exclusion Outweigh the Benefits of Inclusion--County of San
Diego Subarea Plan Under the San Diego MSCP
We reviewed and evaluated the exclusion of approximately 23 ac (9
ha) of land within the boundaries of the County of San Diego Subarea
Plan from our revised designation of critical habitat, and we
determined the benefits of excluding these lands outweigh the benefits
of including them. The benefits of including these lands in the
designation are reduced because the regulatory, educational, and
ancillary benefits that would result from critical habitat designation
are almost entirely redundant with the regulatory, educational, and
ancillary benefits already afforded through the County of San Diego
Subarea Plan and under State and Federal law. In contrast to the
reduced benefits of inclusion, the benefits of excluding lands covered
by the County of San Diego Subarea Plan from critical habitat
designation are significant. Exclusion of these lands will help
preserve the partnerships we developed with local jurisdictions and
project proponents through the development and ongoing implementation
of the MSCP and the County of San Diego Subarea Plan, and aid in
fostering future partnerships for the benefit of listed species. Our
partnership with the County of San Diego has already resulted in
significant benefits to listed species and vernal pool habitat; based
on this track record of success, we expect that this meaningful
partnership will continue into the future.
Designation of lands covered by the County of San Diego Subarea
Plan may discourage other partners from seeking, amending, or
completing subarea plans under the MSCP framework or from pursuing
other HCPs that cover the Riverside fairy shrimp and other listed
vernal pool species. Designation of critical habitat does not require
that management or recovery actions take place on the lands included in
the designation. The County of San Diego Subarea Plan will provide
significant protection of the Riverside fairy shrimp and its habitat,
and help achieve recovery of this species through habitat enhancement
and restoration, functional connections to adjoining habitat, and
species monitoring efforts. Additional HCPs or other species-habitat
plans potentially fostered by this exclusion would also help to recover
this and other federally listed species. Therefore, in consideration of
the relevant impact to current and future partnerships, as summarized
in the Benefits of Exclusion--County of San Diego Subarea Plan under
the San Diego MSCP section above, we determine the significant benefits
of exclusion outweigh the minor benefits of critical habitat
designation.
Exclusion Will Not Result in Extinction of the Species--County of San
Diego Subarea Plan Under the San Diego MSCP
We determine that the exclusion of 23 ac (9 ha) of land in Subunit
5d within the boundaries of the County of San Diego Subarea Plan from
the designation of critical habitat for the Riverside fairy shrimp will
not result in extinction of the species. Proposed actions that affect
waters of the United States as defined under the CWA, which in many
cases include vernal pools occupied by Riverside fairy shrimp, will
continue to be subject consultation under section 7(a)(2) of the Act
and to the duty to avoid jeopardy to the species. The protection
provided by the County of San Diego Subarea Plan also provides
assurances that this species will not go extinct as a result of
excluding these lands from the critical habitat designation.
Therefore, the Secretary is exercising his discretion to exclude 23
ac (9 ha) of land within the boundaries of the County of San Diego
Subarea Plan from this final critical habitat designation.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of revised critical habitat for Riverside fairy shrimp
during two comment periods. The first comment period associated with
the publication of the proposed rule (76 FR 31686) opened on June 1,
2011, and closed on August 1, 2011. We also requested comments on the
proposed critical habitat designation and associated DEA during a
comment period that opened March 1, 2012, and closed on April 2, 2012
(77 FR 12543). We published a notice of the proposed rulemaking in
local newspapers on June 6, 2011. We did not receive any requests for a
public hearing. We also contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties and
invited them to comment on the proposed rule and DEA during these
comment periods.
During the first comment period, we received five comment letters
directly addressing the proposed critical habitat designation. During
the second comment period, we received one comment letter addressing
the proposed critical habitat designation or the DEA. All substantive
information provided during the comment periods has either been
incorporated directly into this final determination or is addressed
below. Comments we received were grouped into two general issues
specifically relating to the proposed critical habitat
[[Page 72116]]
designation for Riverside fairy shrimp, and are addressed in the
following summary and incorporated into the final rule as appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from four species experts
in invertebrate biology, freshwater crustaceans and fairy shrimp. These
reviewers are also experts in vernal pool habitat in southern
California, and conservation biology principles. We received responses
from all four of the peer reviewers.
We reviewed all peer reviewer comments for substantive issues and
new information regarding critical habitat for Riverside fairy shrimp.
In general, the peer reviewers welcomed the expanded critical habitat
and the conservation of more pools, but disagreed with the exclusion of
lands within HCPs and the exemption of military lands. The peer
reviewers provided additional information on Riverside fairy shrimp
ecology and vernal pool ecology, including information on climate
change. The reviewers also provided clarification and suggestions to
improve the final critical habitat rule. Peer reviewer comments are
addressed in the following summary and incorporated into the final rule
as appropriate.
Peer Reviewer Comments
Comments on Riverside Fairy Shrimp Biology
(1) Comment: One peer reviewer agreed that maintaining natural
levels of connectivity, which provide for gene flow, is important for
the persistence of Riverside fairy shrimp, but noted that both
unnaturally low and unnaturally high levels of connectivity are
undesirable. The reviewer noted that unnaturally high levels of
connectivity could result from recreational activities, such as bikers
or OHVs, thus transferring Riverside fairy shrimp between distant pools
and disrupting locally adapted populations.
Our Response: We agree with the peer reviewer that both too little
and too much connectivity, and thus gene flow, are undesirable. We
acknowledge that humans can impact Riverside fairy shrimp genetic
diversity through undesirable increases in gene flow, and that these
artificial increases in gene flow can impact locally adapted genetic
conditions and decrease the fitness of vernal pool populations.
(2) Comment: Two peer reviewers appreciated the inclusion of a
discussion about the importance of functional hydrology to the
Riverside fairy shrimp and its habitat within the critical habitat unit
descriptions and the PCEs. One reviewer noted that due to this
complexity, management that addresses individual pools is not as likely
to be as successful as management at the watershed level.
Our Response: We appreciate the peer reviewers' critical review and
agree that management at the watershed level is the most likely to be
successful in the conservation and recovery of the Riverside fairy
shrimp. We have considered functional hydrology in previous documents
addressing Riverside fairy shrimp conservation. The 1998 Recovery Plan
addressing vernal pool species, including Riverside fairy shrimp, takes
into account the importance of functional hydrology to Riverside fairy
shrimp and designates entire pool complexes rather than individual
vernal pools (Service 1998a, pp. 38-39). This final revised critical
habitat rule includes functional hydrology in PCE 2, which requires
``intermixed wetland and upland habitats that function as the local
watershed, including topographic features characterized by mounds,
swales, and low-lying depressions within a matrix of upland habitat
that result in intermittently flowing surface and subsurface water in
swales, drainages, and pools described in PCE 1.''
(3) Comment: One peer reviewer noted that, though our description
of critical habitat states that units include vernal pool networks and
watersheds, the maps within the proposed rule do not show those
features. The peer reviewer recommended including those features in the
maps so that their inclusion could be verified.
Our Response: The printing standards of the Federal Register are
not compatible with topographical maps or other detailed features that
would show vernal pool networks and watersheds. However, the GIS files
we used to delineate critical habitat are available by request from the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT). The shapefiles can be laid over other layers (aerial
photography, roads) for users to view the vernal pool networks and
watersheds.
(4) Three peer reviewers had comments on genetic aspects of
Riverside fairy shrimp ecology. The reviewers noted that genetic
variation in Riverside fairy shrimp is lower than for other
Streptocephalus species, and that untested pools may host unique
genetic diversity. The reviewers concluded that maintaining genetic
variation is important for the viability of the species, and that no
genetic diversity is expendable.
Our Response: We appreciate the peer reviewers' critical review,
and agree that genetic diversity is crucial to the continued viability
of the Riverside fairy shrimp. As described in our Criteria Used To
Identify Critical Habitat section, genetic diversity was one of the
main criteria used in creating critical habitat units. Our final
critical habitat designation provides for the preservation of existing
Riverside fairy shrimp genetic diversity across the range of the
species and makes use of the best scientific and commercial data
available.
(5) Comment: One peer reviewer stated that the proposed rule
overstated the longevity and durability of Riverside fairy shrimp
cysts. The reviewer noted that cysts, particularly those that are
salvaged from vernal pools and placed in storage, can be crushed or
destroyed by disease.
Our Response: We appreciate the peer reviewer's critical review. We
did not intend for our text to imply that cysts were indestructible,
and we agree with the peer reviewer that cysts can be vulnerable to
factors such as crushing, disease, or aging.
(6) Comment: One peer reviewer stated that the definition of
haplotype given in the proposed rule is confusing, and that haplotype
is better defined as ``a unique copy or form of a sequenced gene
region.''
Our Response: We appreciate the peer reviewer's critical review. We
agree that this is a clearer definition, and have made use of it in
this final rule.
(7) Comment: Two commenters stated that many of the pools currently
occupied were also occupied at the time of listing, and that the
increase of known occupied pools was due to the increase of survey
efforts rather than newly colonized pools.
Our Response: We agree with the peer reviewers' assessment, and in
the proposed revised rule published on June 1, 2011 (76 FR 31686), we
proposed all but one subunit under section 3(5)(A)(i) of the Act. All
of these subunits are within the known geographical area occupied by
the species at the time of listing. However, because we lack definitive
evidence of their occupancy at the time of listing, which under Otay
Mesa could disqualify the areas from designation under section
3(5)(A)(i) of the Act, we alternatively identify these areas as meeting
the definition of critical habitat under section 3(5)(A)(ii) of the
Act. We identify them as such to make clear that we consider these
[[Page 72117]]
specific areas to be essential for the conservation of Riverside fairy
shrimp, notwithstanding the absence of surveys confirming the presence
of Riverside fairy shrimp at the time of listing. As described in the
Criteria Used to Identify Critical Habitat section above, a designation
limited to areas known to be occupied at the time of listing would be
inadequate to conserve the species. See the Criteria Used To Identify
Critical Habitat section above for more information on our designation
of critical habitat units, and see Table 3 for details of the units
designated as final critical habitat or excluded under section 4(b)(2)
of the Act.
(8) Comment: One peer reviewer offered detailed feedback on
scientific aspects of our Species Description, Habitat, Life History,
and New Information Specific to Riverside Fairy Shrimp sections of the
proposed rule. The suggested changes included aspects of vernal pool
characteristics that support Riverside fairy shrimp, cyst bank
dynamics, and vernal pool ecology specific to southern California.
Our Response: We appreciate the peer reviewer's thorough review of
our proposed revised critical habitat rule, and agree with all the
suggested changes. However, as this final revised critical habitat rule
does not include these sections, the suggested changes are not
specifically reflected in this final revised critical habitat rule. We
will, however, make use of the updated information in future actions
related to the Riverside fairy shrimp.
(9) Comment: One peer reviewer stated that our description of red-
color cercopods as useful to distinguish between other fairy shrimp in
the genus Streptocephalus was misleading. The peer reviewer noted that,
``While a red tail is a character not seen in other genera in the area,
it is not a useful character in distinguishing among species within the
genus Streptocephalus.''
Our Response: The reference by Eng et al. that we quoted in the
proposed rule (77 FR 31686) specifically states, ``both living male and
female S. woottoni have the red color of the cercopods covering the
ninth and 30-40 percent of the eighth abdominal segments. No red
extends onto the abdominal segments in living S. seali of either sex''
(Eng et al. 1990, pp. 358-359). We had intended for our statement in
the proposed rule to specifically refer to genera in the area, in
which, as the peer reviewer notes, this is a useful distinguishing
characteristic. However, we agree with the peer reviewer that the
characteristic is not useful with other non-local Streptocephalus
species, and we will be more specific when using this reference in the
future.
(10) Comment: One reviewer suggested that the Service should
conduct a long-term viability analysis of the Riverside fairy shrimp
that incorporates GIS modeling, field studies, and species
requirements.
Our Response: We thank the peer reviewer for the suggestion and
will consider it in our next 5-year review and future recovery planning
efforts for the Riverside fairy shrimp.
(11) Comment: One peer reviewer requested that we consider the
ecosystem supporting Riverside fairy shrimp in our future actions
regarding the species. The reviewer noted that the Riverside fairy
shrimp is part of a complex food web, not all of which is considered in
actions that address Riverside fairy shrimp conservation.
Our Response: We concur with the peer reviewer that it is crucial
to consider the entire vernal pool ecosystem in conserving Riverside
fairy shrimp. However, we did not explicitly focus on an ecosystem
approach in this final revised critical habitat rule. A critical
habitat designation is a regulatory action that identifies specific
areas within the geographical area occupied by the species at the time
of listing on which are found those physical or biological features
that are essential to the conservation of the species and that may
require special management considerations or protection, and areas
outside the geographical area occupied at the time of listing that are
determined to be essential for the conservation of the species. In the
1998 Vernal Pool Recovery Plan, we took an ecosystem-centered approach
to the conservation of Riverside fairy shrimp. A recovery plan (and the
associated recovery goals and objectives) is a guidance document
developed in cooperation with partners, which provides a roadmap with
detailed site-specific management actions to help conserve listed
species and their ecosystems. We will continue to consider the entire
vernal pool ecosystem in developing future recovery actions for the
Riverside fairy shrimp and recommendations in future 5-year reviews.
(12) Comment: One peer reviewer noted that we had incorrectly cited
a reference by Parsick (2002). The reviewer noted that Parsick analyzed
the gut contents of San Diego fairy shrimp, not Riverside fairy shrimp.
Our Response: We appreciate the peer reviewer's critical review. We
have reworded the sentence containing that reference to make clear that
Parsick did not analyze the gut contents of Riverside fairy shrimp.
Comments on Critical Habitat, Exclusions, and Exemptions
(13) Comment: All four reviewers stressed the importance of
maximizing critical habitat. The commenters reasoned that all suitable
and potentially suitable habitat would be needed as critical habitat to
fully recover the species. The commenters also reasoned that
classifying all suitable areas as critical habitat would counter
threats based on: (1) Limited habitat requirements; (2) low genetic
variability; (3) previous population declines; and (4) stochastic or
chance catastrophic events.
Our Response: We appreciate the peer reviewers' concern for the
recovery of the Riverside fairy shrimp. Based on the best available
scientific information, we have identified all habitat areas that we
are able to determine meet the definition of critical habitat at this
time. We have excluded certain areas covered by the Orange County
Central-Coastal NCCP/HCP, the Orange County Southern Subregion HCP, the
Western Riverside County MSHCP, City of Carlsbad HMP under the San
Diego MHCP, County of San Diego Subarea Plan under the MSCP, and lands
owned by DHS, where we have determined that the benefits of exclusion
outweighs the benefits of inclusion within the critical habitat
designation (see the Exclusions section above). In the case of each of
the HCP exclusions, we concluded that the plan provides protection for
the Riverside fairy shrimp and its habitat that contains the physical
or biological features essential to the conservation of the species. In
the case of the DHS exclusion, we excluded lands based on national
security concerns. As required by section 4(a)(3)(B)(i) of the Act, we
have also exempted certain military lands from critical habitat that
are covered by approved INRMPs that provide a benefit to Riverside
fairy shrimp (see the Application of Section 4(a)(3) of the Act section
above). Nevertheless, our final critical habitat designation still
includes a wide variety of vernal pool habitat. With the inclusion of
diverse vernal pool habitat types across the range of the species, our
critical habitat designation addresses the threats outlined by the
reviewers. The designation addresses these threats through inclusion of
a variety of vernal pool habitat types, which assists the species in
buffering against catastrophic events, and through inclusion of lesser
known occupied areas to target preservation for declining populations
[[Page 72118]]
and areas with unique genetic variability.
We recognize that the designation of critical habitat may not
include all of the habitat that may eventually be determined to be
necessary for the recovery of the Riverside fairy shrimp. Critical
habitat designations do not signal that habitat outside the designation
is unimportant or may not contribute to recovery. Areas outside the
critical habitat designation will continue to be subject to
conservation actions implemented under section 7(a)(1) of the Act and
regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the prohibitions of section 9 of the Act, if actions
occurring in these areas may affect the Riverside fairy shrimp. These
protections and conservation tools will continue to contribute to
recovery of this species.
(14) Comment: Two peer reviewers recommended designating both a
wide variety of types of vernal pool habitats and upland habitat
surrounding vernal pools. The reviewers suggested that preserving a
diverse range of habitats could help to buffer the Riverside fairy
shrimp against the possible unknown future changes due to climate
change. One reviewer added that maintaining vernal pools with
connectivity in natural watersheds could help Riverside fairy shrimp
survive better than if they were in isolated pools. One reviewer also
noted that preserving upland habitat as critical habitat could alter
the water chemistry and ponding depth in pools that currently possess
the features that support the Riverside fairy shrimp.
Our Response: We fully agree with the peer reviewers that it is
essential to preserve a diverse array of vernal pool habitat. As we
stated in our Criteria Used To Identify Critical Habitat section above,
by protecting a variety of habitats throughout the species' current and
historical range, we increase the probability that the species can
adjust in the future to various limiting factors that may affect the
population. Preserving this wide array of habitat types will also help
to buffer against the uncertain and complex future effects of climate
change. We also concur that preserving upland habitat is necessary to
preserve the functional hydrology that supports Riverside fairy shrimp.
This idea is reflected in PCE 2 for Riverside fairy shrimp critical
habitat, which requires a mixture of ephemeral and wetland habitats as
necessary to support the Riverside fairy shrimp. We conclude that PCE 2
and our criteria used to identify critical habitat have resulted in the
designation of a diverse array of vernal pool habitat (see unit
descriptions in the Final Critical Habitat Designation section above
for further description of the types of vernal pool habitat that are
designated as critical habitat).
We also agree that it is important to preserve upland habitat and
watersheds associated with vernal pool complexes, and that the loss of
those features could detrimentally alter water chemistry and ponding
depth. In PCE 2, we require ``intermixed wetland and upland habitats
that function as the local watershed, including topographic features
characterized by mounds, swales, and low-lying depressions within a
matrix of upland habitat that result in intermittently flowing surface
and subsurface water in swales, drainages, and pools described in PCE
1.'' We conclude that, with the PCEs, we have preserved upland habitat
and watersheds associated with vernal pools that support the physical
or biological features necessary for the conservation of the Riverside
fairy shrimp.
(15) Comment: Three peer reviewers expressed strong concern about
exemption of military lands from the final critical habitat
designation. One of the three peer reviewers listed several specific
concerns with base activities affecting Riverside fairy shrimp: (1)
OHVs frequently impact vernal pools, pulverize cysts, and allow
invasion of nonnative species; (2) large numbers of pools are slated to
be developed for reasons not having to do with national security; (3)
military staff are not taking the requirement for management seriously;
and (4) there are too many populations on military property to warrant
exemption from critical habitat. The peer reviewer concluded that, with
the amount of area excluded, continued military activities could
potentially jeopardize the continued existence of the Riverside fairy
shrimp.
Our Response: We appreciate the peer reviewers' concerns about the
ongoing conservation of the Riverside fairy shrimp. In our analysis of
the INRMPs provided by MCB Camp Pendleton and MCAS Miramar, we found
that these plans provide considerable conservation benefits to the
Riverside fairy shrimp and its habitat. These conservation measures are
typically not addressed through a critical habitat designation, which
is a statutory prohibition on destruction or adverse modification of
critical habitat.
Section 4(a)(3)(B)(i) of the Act describes exemptions from critical
habitat that apply to DOD land. The Secretary has determined that the
INRMPs for MCB Camp Pendleton and MCAS Miramar provide a benefit to the
Riverside fairy shrimp, and that the lands they cover are therefore
exempt from critical habitat designation. More detail on our rationale
is presented in the Application of Section 4(a)(3) of the Act section
above.
We respectfully disagree with the peer reviewer that staff at MCB
Camp Pendleton do not take their requirement for management seriously.
MCB Camp Pendleton consults with the Service for all impacts to vernal
pool habitat, including unplanned impacts sustained during training
activities. In the case of any unplanned impacts, MCB Camp Pendleton
consults with us retroactively on those impacts and works to minimize
future impacts to vernal pool habitat. In regard to the commenter's
assertion that pools are planned for development for reasons other than
national security, the Service continues to review all project
proposals through the section 7 process, and will ensure that all
development carried out does not jeopardize the continued existence of
the Riverside fairy shrimp.
We also disagree that exempting these areas from critical habitat
will jeopardize the continued existence of the Riverside fairy shrimp.
Sections 4(a)(3)(B)(ii) and (iii) of the Act note that agencies granted
an exemption must still consult under section 7(a)(2) of the Act, and
that the DOD must comply with section 9, ``including the prohibition
preventing extinction and taking of endangered species and threatened
species.'' Thus, although military bases can be exempt from critical
habitat, the Act has mechanisms in place to prevent extinction.
Therefore, we find that exempting military lands at MCB Camp Pendleton
and MCAS Miramar under section 4(a)(3)(B)(i) of the Act is justified.
(16) Comment: Two peer reviewers expressed the belief that lands
covered by HCPs should not be excluded from critical habitat because
HCPs do not offer the same levels of protection as critical habitat.
Our Response: Critical habitat designation and HCPs offer distinct
benefits to species. The primary benefit of a critical habitat
designation derives from the requirement under section 7(a)(2) of the
Act that Federal agencies consult with the Service to insure that any
action authorized, funded, or carried out by such agencies does not
destroy or adversely modify critical habitat. Thus, critical habitat
designation precludes Federal action if it will destroy or adversely
modify critical habitat, but designation does not require any
affirmative action on a Federal agency's part to protect, enhance, or
manage critical habitat. On the other hand, HCPs typically offer
[[Page 72119]]
landscape-level conservation, monitoring, and management of covered
species' habitat. The Orange County Central-Coastal NCCP/HCP, Orange
County Southern Subregion HCP, Western Riverside County MSHCP, Carlsbad
HMP under the San Diego MHCP, and County of San Diego Subarea Plan
under the MSCP all provide ongoing protection for the Riverside fairy
shrimp and its habitat that will benefit the long-term conservation of
the species, as well as providing strong partnerships to promote future
conservation of the Riverside fairy shrimp and vernal pool habitat.
Based on the benefits to the Riverside fairy shrimp and its habitat
that are provided by these habitat conservation plans, we chose to
conduct exclusion analyses to compare the benefits of excluding areas
covered by these existing conservation plans with the benefits of
including those areas within this final revised critical habitat
designation. We note that a decision to exclude an area is not based on
the difference between the protection provided by critical habitat
designation and an HCP, but takes into account the redundancy of
protections provided by an HCP with those provided by critical habitat
designation. Conservation benefits provided by an existing HCP are not
considered a benefit of exclusion because they would remain in place
regardless of critical habitat designation; however, the conservation
provided under an HCP does minimize the benefits of inclusion to the
extent that the protection that would result from critical habitat
designation is redundant with the protection already provided under an
HCP. In the case of the identified HCPs, we concluded that the
protection for habitat containing physical or biological features
essential to the conservation of the Riverside fairy shrimp that is
likely to result from designation of lands covered by the HCPs is
almost entirely redundant with the protection for such habitat provided
by the HCPs, thus minimizing the conservation benefit of designation.
In the case of the HCPs discussed above, we also weighed other
benefits of designation against the potential negative effects of
designating areas covered by the HCPs on future partnerships and the
development of new HCPs. We concluded that designating critical habitat
within these HCPs could have a detrimental effect on our conservation
partnerships (see the Benefits of Exclusion sections above). Weighing
the significant conservation benefits of excluding lands identified as
critical habitat for the Riverside fairy shrimp that are covered by the
Orange County Central-Coastal NCCP/HCP, Orange County Southern
Subregion HCP, Western Riverside County MSHCP, Carlsbad HMP under the
San Diego MHCP, and County of San Diego Subarea Plan under the MSCP
against the minimal and largely redundant benefits of designating such
habitat, we determined that the benefits of exclusion outweigh the
benefits of inclusion. The Secretary is therefore exercising his
discretion to exclude lands identified as critical habitat for the
Riverside fairy shrimp that are covered by these HCPs (see Table 5).
(17) Comment: One peer reviewer disagreed with the exclusions we
were considering as described in the proposed revised critical habitat
rule. The reviewer stated that all conservation plans (HCPs) should be
critically analyzed before deciding to exclude lands within their
boundaries. The commenter cited as an example the new vernal pool plan
being developed by the City of San Diego due to the original plan being
struck down by the courts.
Our Response: Our decision to exclude areas from critical habitat
does not take place in the proposed rule, but in the final rule.
Section 4(b)(2) of the Act authorizes the Secretary to designate
critical habitat after taking into consideration the economic impacts,
national security impacts, and any other relevant impacts of specifying
any particular area as critical habitat. An area may be excluded from
critical habitat if it is determined that the benefits of exclusion
outweigh the benefits of designating a particular area as critical
habitat, unless the failure to designate will result in the extinction
of the species. Before we made the decision to exclude any area from
critical habitat, we carefully weighed the benefits of exclusion of an
area from critical habitat versus the benefits of inclusion of an area
in critical habitat. As described in comment (16), we concluded that
the benefits of exclusion outweigh the benefits of inclusion for the
Orange County Central-Coastal NCCP/HCP, Orange County Southern
Subregion HCP, Western Riverside County MSHCP, Carlsbad HMP under the
San Diego MHCP, and County of San Diego Subarea Plan under the MSCP. We
conclude that the exclusions made in this final rule are legally
supported under section 4(b)(2) of the Act and scientifically
justified. Our detailed rationale for our decision is provided in the
Land and Resource Management Plans, Conservation Plans, or Agreements
Based on Conservation Partnerships section above.
Comments From Federal Agencies
(18) Comment: A representative from the U.S. Marine Corps noted
that we had incorrectly identified the pool on MCAS Miramar that
supports the Riverside fairy shrimp as the ``AA 1-7, 9-13 East Miramar
(Pool 10) (AA1 East),'' and that the pool is more appropriately
identified as ``East Miramar (AA1 South+ Group)(Pool 4786; previously
Pool 12).''
Our Response: We appreciate the commenter's feedback, and we have
made the appropriate changes throughout this rule.
(19) Comment: A commenter emphasized that the basin supporting the
Riverside fairy shrimp on MCAS Miramar is not a naturally occurring
vernal pool, but one ``created by construction of an earthen dam across
a small ephemeral streambed, and associated excavations, many decades
in the past,'' and that naturally occurring vernal pools on MCAS
Miramar do not hold water long enough to support the Riverside fairy
shrimp.
Our Response: We acknowledge that the vernal pool on MCAS Miramar
that supports the Riverside fairy shrimp was created by construction
activities many decades ago. However, we still believe that the pool
contains the physical or biological features essential to the
conservation of Riverside fairy shrimp. While we believe that this area
contains the physical or biological features essential to the
conservation of the species, we have also determined that it is exempt
from critical habitat under section 4(a)(3)(B)(i) of the Act because
the INRMP at MCAS Miramar provides conservation benefits to the
species.
(20) Comment: The commenter agreed with the Service's exemptions of
lands under the management of MCAS Miramar and MCB Camp Pendleton, and
reiterated that the INRMPs at both stations provide for conservation
and management of Riverside fairy shrimp habitat.
Our Response: We concur that the INRMPs at MCB Camp Pendleton and
MCAS Miramar continue to provide conservation benefits to the species
and its habitat. Details of our rationale to exempt MCB Camp Pendleton
and MCAS Miramar from critical habitat are given in the Exemptions
section above. We look forward to working with the Marine Corps to
further conservation and management of the Riverside fairy shrimp and
other listed and sensitive species.
(21) Comment: The commenter concurred with the Service's assessment
that the San Mateo and Wire Mountain areas on MCB Camp Pendleton no
[[Page 72120]]
longer meet the definition of critical habitat. The commenter asserted
that staff at the Base will continue to work with the Service on
Riverside fairy shrimp conservation.
Our Response: We appreciate the Marine Corps' continued efforts to
conserve the Riverside fairy shrimp and its habitat.
(22) Comment: The DHS has requested exclusion for national security
reasons of lands owned by DHS on which activities related to the
operation and maintenance of the Border Infrastructure System are
carried out. These lands are composed of all of Subunit 5(b) ((29 ac)
(12 ha)) and a portion of Subunit 5h ((11 ac) (4 ha)). The Department
states that the lands should be excluded because: (1) The same areas
were excluded in the previous 2005 critical habitat rule; (2) though
the situation at the border has changed since the 2005 rule, there are
still ongoing activities that relate to national security interests;
and (3) all areas are either already disturbed, do not contain the
PCEs, or have been set aside for conservation.
Our Response: We appreciate the commenter's information regarding
ongoing national security issues. As described in our response to
comment (17), section 4(b)(2) of the Act authorizes the Secretary to
designate critical habitat after taking into consideration the economic
impacts, national security impacts, and any other relevant impacts of
specifying any particular area as critical habitat. Before we make the
decision to exclude any area from critical habitat, we carefully weigh
the benefits of exclusion of an area from critical habitat versus the
benefits of inclusion of the area in critical habitat. As described in
our ``Exclusions Based on National Security Impacts'' section above, we
have determined that the benefits of excluding the DHS owned lands
outweigh the benefits of inclusion, and that such exclusion will not
result in extinction of the species. Based on that discussion, the
Secretary is exercising his discretion to exclude all lands owned by
DHS. We believe that this exclusion is consistent with the analysis in
our 2005 final revised critical habitat rule (70 FR 19154; April 12,
2005).
We respectfully disagree with the commenter that the DHS lands
identified as essential do not contain the PCEs. In an earlier proposed
revised critical habitat rule published on April 27, 2004 (69 FR
23024), we did identify some lands as critical habitat that we
subsequently removed in the final revised rule (70 FR 19154; April 12,
2005) due to lack of PCEs from construction of the BIS. The removed
areas were not included in our 2011 proposed critical habitat
designation, because they do not contain the PCEs. As described under
Criteria Used to Identify Critical Habitat section above, we carefully
assessed all areas occupied by Riverside fairy shrimp, and only
proposed those areas as critical habitat that contain the PCEs. We do
acknowledge that all lands in Subunit 5b (29 ac (12 ha)) have been set
aside for conservation, and took that factor into consideration in our
exclusion analysis.
(23) Comment: The commenter requested that we more clearly define
the role of DHS. The commenter suggested adding the language, ``U.S.
Customs and Border Protection is tasked with maintaining National
Security interests along the nation's international borders. As such,
CBP activities may qualify for exclusions under section 4(b)(2) of the
act.''
Our Response: We acknowledge the important role of U.S. Customs and
Border Protection in protecting our nation's international borders,
including operation and maintenance of the BIS in the Exclusions Based
on National Security Impact section above.
(24) Comment: The commenter requested an explanation of how road
maintenance could impact the Riverside fairy shrimp. The commenter
stated that we had not provided further information on how road
maintenance could impact Riverside fairy shrimp critical habitat, and
stated that if there was no such information, we should replace the
term ``maintenance'' with ``widening or construction of roadways.''
Our Response: Ongoing road maintenance may impact Riverside fairy
shrimp habitat. These activities could potentially adversely affect the
habitat and physical or biological features essential to the Riverside
fairy shrimp by damaging, disturbing, and altering soil composition
through direct impacts, increased erosion, and increased nutrient
content (PCEs 1d, 3). Additionally, road maintenance may lead to runoff
that could alter the water quality and natural hydrology of vernal
pools through changes in pool characteristics (Rodgers 2000, pp. 247-
248), including interfering with ponding depths and duration necessary
to support the Riverside fairy shrimp. Therefore, we consider road
maintenance as an activity that may adversely affect or modify critical
habitat. In order to make our definition of road maintenance more
clear, we have added clarification of road maintenance activities that
could adversely affect critical habitat to include road construction,
widening, and grading in the Application of the ``Adverse
Modification'' Standard section above.
(25) Comment: The commenter requested that we provide a clearer
definition for OHV, and asked if it was synonymous with off-road
vehicle. The commenter also stated that the use of the term ``roads''
seemed to apply to paved highways in some cases and unpaved roads in
others. The commenter requested we clarify these terms, particularly as
off-road impacts could have a significant effect on DHS border patrol
operations, and requested that the term ``roads'' should include all
roads, and not just paved roads.
Our Response: We intended the term ``off-highway vehicle'' to refer
to any and all vehicles capable of travelling on dirt roads or across
the countryside; this may include trucks or non-motorized vehicles not
able to use highways. We have changed all instances off ``off-road
vehicle'' to OHV in order to avoid confusion.
In reference to the commenter's question about roads, the term
``roads'' refers to all roads, including both paved roads and unpaved
dirt roads.
Comments from Local Agencies
(26) Comment: One commenter stated that lands covered by the Orange
County Southern Subregion HCP should be excluded from critical habitat
because: (1) The plan is complete and provides a conservation benefit
to the species; (2) the plan provides assurances that the conservation
strategies and actions will be implemented and effective; (3) the
Service has stated its intention to exclude habitat within this plan
area from any revision to an existing critical habitat designation as
long as the Conservation Strategy is being properly implemented; and
(4) designation of critical habitat within Subarea 1 will not provide
educational benefits or improve CEQA review of local projects.
Our Response: The Secretary may exercise his discretion to exclude
an area from critical habitat designation under section 4(b)(2) of the
Act if he concludes that the benefits of excluding the area outweigh
the benefits of its designation. Areas are not excluded based solely on
the existence of management plans or other conservation measures;
however, we acknowledge that the existence of a plan may reduce the
benefits of inclusion of an area from critical habitat designation to
the extent that the protections provided under the plan are redundant
with conservation benefits of the critical habitat
[[Page 72121]]
designation. Thus, in some cases, the benefits of exclusion in the form
of sustaining and encouraging partnerships that result in on-the-ground
conservation of listed species may outweigh the incremental benefits of
inclusion. We have weighed the benefits of exclusion against the
benefits of inclusion for lands covered by the Orange County Southern
Subregion HCP, and the Secretary is exercising his discretion to
exclude all lands within the boundaries of the Orange County Southern
Subregion HCP from this final critical habitat designation.
In regard to the commenter's point about educational benefits and
impacts of critical habitat on CEQA analysis, we agree that negligible
educational benefits would be realized by the designation of critical
habitat. We also agree that review of development proposals affecting
lands identified as critical habitat for the Riverside fairy shrimp
under CEQA by Orange County already takes into account the importance
of this habitat to the species and the protections required for the
species and its habitat under the Subarea plan. Details of our
rationale are given in our discussion of the Orange County Southern
Subregion HCP under Land and Resource Management Plans, Conservation
Plans, or Agreements Based on Conservation Partnerships above.
(27) Comment: One commenter believed that all lands covered by the
Western Riverside County MSHCP should be excluded from critical
habitat. The commenter stated that: (1) The Service has previously
found the Western Riverside County MSHCP sufficient for the
conservation and recovery of the Riverside fairy shrimp; (2) the
Western Riverside County MSHCP contains a plan to conserve and manage
the Riverside fairy shrimp that is currently being implemented; and (3)
excluding lands covered by the Western Riverside County MSHCP from
critical habitat fosters important conservation partnerships with local
agencies.
Our Response: As we stated in comment 26 above, the Secretary can
exercise his discretion to exclude an area from critical habitat under
section 4(b)(2) of the Act if we conclude that the benefits of
exclusion of the area outweigh the benefits of its inclusion. In this
case, the Secretary's decision to exclude is consistent with previous
critical habitat rules; however, the decision to exclude is not based
on previous rulemakings, but on the exclusion analysis within this
final revised critical habitat rule.
In regard to the commenter's point about the existing conservation
and management plan, we reiterate that areas are not excluded based
solely on the existence of management plans or other conservation
measures; however, we acknowledge that the existence of a plan may
reduce the benefits of inclusion of an area from critical habitat to
the extent that the protections provided under the plan are redundant
with conservation benefits of the critical habitat designation. Thus,
in some cases the benefits of exclusion in the form of sustaining and
encouraging partnerships that result in on-the-ground conservation of
listed species may outweigh the incremental benefits of inclusion. In
this case, we agree with the commenter that excluding areas covered by
the Western Riverside County MSHCP will foster our partnership. We have
weighed the benefits of exclusion against the benefits of inclusions
for lands covered by the Western Riverside County MSHCP, and based on
the discussion of the Western Riverside County MSHCP under Land and
Resource Management Plans, Conservation Plans, or Agreements Based on
Conservation Partnerships, the Secretary is exercising his discretion
to exclude all lands within the boundaries of the Western Riverside
County MSHCP from this final critical habitat designation.
(28) Comment: One commenter believed that lands from the Western
Riverside County MSHCP should be excluded because the exclusion would
be consistent with the Service's previous exclusions of land within the
Western Riverside County MSHCP, including in the 2005 final revised
critical habitat designation for Riverside fairy shrimp. The commenter
stated that a different determination in this rule would violate the
Act and regulations at 50 CFR 424.12(g) because conditions have not
changed since the 2005 revised designation. Furthermore, the commenter
stated that a designation of critical habitat is required only to the
``maximum extent prudent and determinable'' (based on regulations at 50
CFR 424.12(a)(1)), but would not be prudent when such designation is
not beneficial to the species.
Our Response: Section 4(b)(2) of the Act requires us to make
critical habitat determinations on the basis of the best available
scientific data at the time the designation is made. Therefore,
critical habitat determinations are made based on individual species
biology and an individual weighing analysis, not on decisions made in
previous critical habitat rules. Additionally, we do not agree that
designating critical habitat would violate regulations at 50 CFR
424.12(g). The regulations state that ``Existing critical habitat may
be revised according to procedures in this section as new data become
available to the Secretary.'' As described in our Criteria Used to
Identify Critical Habitat section above, in determining which areas
meet the definition of critical habitat, we considered information
including new survey reports; CDFG's CNDDB records; published peer-
reviewed articles; unpublished papers and reports; and GIS data (such
as species occurrences, soil data, land use, topography, and ownership
maps), some of which has been published since the 2005 revised critical
habitat designation. We also disagree with the commenter's assertion
that designation of critical habitat for the Riverside fairy shrimp
would not be beneficial.
However, as described in our discussion of the Western Riverside
MSHCP under Land and Resource Management Plans, Conservation Plans, or
Agreements Based on Conservation Partnerships and in the response to
comment 27 above, we have determined that the benefits of excluding
lands covered by the Western Riverside County MSHCP outweigh the
benefits of including such lands. Therefore, we are excluding all lands
within the boundaries of the Western Riverside County MSHCP from this
final critical habitat designation.
Public Comments
(29) Comment: One commenter stated that Subunit 5c should not be
designated as critical habitat because the Service lacks surveys
proving occupancy of the subunit at the time of listing. The commenter
concluded that the Service had not used the best available scientific
information in making this decision.
Our Response: As required by section 4(b)(1)(A) of the Act, we used
the best scientific and commercial data available to define areas that
contain the physical or biological features necessary for the
conservation of the Riverside fairy shrimp. As with many species,
listing often results in greater efforts to conduct surveys, which may
reveal a greater number of occurrences than were initially known. We
determine that many additional occurrences, including Subunit 5c, were
occupied at the time of listing but had not been identified due to lack
of survey effort. We find occurrences documented since the 1993 listing
do not represent an expansion of the species' distribution and range
into previously unoccupied areas, but rather a better understanding of
the historical distribution and range of the species (Service 2008, p.
9).
[[Page 72122]]
Because occurrences documented since listing are within relative
proximity to existing, occupied, vernal pool habitat or within similar
landscape types (for example, coastal terraces and mesas, inland
valleys, inland mesas, and cismontane depressions) supporting ephemeral
wetlands with occurrences that were known at the time of listing, it is
reasonable to conclude, based on several life-history traits, that the
Riverside fairy shrimp was present at the time of listing in these
unsurveyed habitats. This subunit is known to be currently occupied;
dry season surveys in 2011 by Busby Biological Services documented the
presence of Riverside fairy shrimp cysts (Busby Biological Services
2011, Attachment 3). This subunit was first documented as occupied in
2000 (GIS ID 4). Subunit 5c contained the physical or biological
features essential to the conservation of the species and the features
known to support life-history characteristics of the Riverside fairy
shrimp at the time of listing. Therefore, for the aforementioned
reasons, although not ``documented'' to have been occupied at listing,
we conclude this subunit was occupied at the time of listing, and that
this rationale makes use of the best scientific and commercial
information available.
Regardless, as stated in our March 1, 2012, publication (77 FR
12543), and in this final revised critical habitat rule, we are
alternatively designating Subunit 5c under section 3(5)(A)(ii) of the
Act because we consider this unit essential for the conservation of the
Riverside fairy shrimp regardless of its occupancy status at listing,
and conclude that a designation limited to areas known to be occupied
at the time of listing would be inadequate to ensure the conservation
of the species. We conclude that this approach also makes use of the
best scientific and commercial information available.
(30) Comment: The commenter further stated that Subunit 5c does not
contain the physical or biological features essential to the
conservation of the Riverside fairy shrimp, and that it therefore does
not meet the definition of critical habitat. The commenter stated that
the pool is heavily disturbed by OHVs and cattle grazing, and that only
a few surveys since the time of listing have detected the presence of
Riverside fairy shrimp. The commenter added that in most years, the
vernal pool does not hold water long enough to allow Riverside fairy
shrimp to mature. The commenter stated that the infrequent presence of
Riverside fairy shrimp may be due to transfer by human and animal
traffic.
Our Response: As discussed in comment 29, the lack of surveys
confirming Riverside fairy shrimp in a given year does not mean that a
pool is not occupied. Cysts of Riverside fairy shrimp can persist--and
be present--in the soil bank for many years before hatching. When
mature, cysts can survive environmental conditions such as temperature
extremes, the digestive tracts of animals, and years of desiccation,
and still hatch under the appropriate environmental conditions (Pennak
1989, pp. 352-353; Fryer 1996, pp. 1-14; Eriksen and Belk 1999, p. 22).
Indeed, as only small percentages of Riverside fairy shrimp cysts hatch
in any given year, if the pool dries before the species is able to
mature and reproduce, there are still many more cysts left in the soil
that may hatch the next time the pool fills (Simovich and Hathaway
1997, p. 42). Even if the pool does not fill every year, the pool will
still support Riverside fairy shrimp, and such infrequent fillings are
a natural feature of the species' habitat (see PCE 1c) (Eriksen and
Belk 1999, p. 105; Ripley et al. 2004, pp. 221-223). Cysts of other
vernal pool fairy shrimp have been known to persist for up to 8 years
in vernal pool soils, although anecdotal evidence states that cysts can
persist even longer (Belk 1998, Table 1). Therefore, the presence of
cysts in scattered years is typical of the life-history characteristics
of the Riverside fairy shrimp.
We agree with the commenter that Riverside fairy shrimp are
sometimes transferred by frequent vehicle use (Navy 2001, 2002,
entire). However, Subunit 5c contains the physical or biological
features essential to the conservation of the species including
ephemeral wetland habitat (PCE 1), intermixed wetland and upland
habitats that act as the local watershed (PCE 2), and topography and
soils that support ponding during winter and spring months (PCE 3). As
discussed in the Criteria Used to Identify Critical Habitat section
above, the presence of these features, which currently support
Riverside fairy shrimp in Subunit 5c, in combination with the life-
history characteristics of Riverside fairy shrimp, render it likely
that this subunit was occupied at the time of listing. Dry season
surveys in 2011 confirmed the presence of Riverside fairy shrimp cysts
in Subunit 5c (Busby Biological Surveys 2011). Subunit 5c is occupied
irrespective of whether the cysts naturally occur in this area or if
they arrived through OHV activity. Notwithstanding our conclusion that
Subunit 5c meets the definition of critical habitat under section
3(5)(A)(i), we are alternatively designating this subunit under section
3(5)(A)(ii) because the area is essential for the conservation of the
Riverside fairy shrimp regardless of its occupancy status at listing.
See discussion in Unit 5: San Diego Southern Coastal Mesas and,
specifically, the discussion in ``Subunit 5c: East Otay Mesa'' under
Final Designation of Critical Habitat. We conclude that a designation
limited to areas documented to be occupied at the time of listing would
be inadequate to ensure the conservation of the species.
(31) Comment: One commenter questioned the amount of habitat
designated for the Riverside fairy shrimp in Subunit 5c. The commenter
stated that the pond is the only basin that could support the Riverside
fairy shrimp in Subunit 5c, and it is not connected to any other vernal
pool complexes in the area. The commenter also questioned how an
artificial pond could be considered essential habitat and stated that
it does not meet the definition of critical habitat.
Our Response: In drawing critical habitat units, we relied on the
best available scientific information to define areas that contain the
physical or biological features essential to the conservation of the
Riverside fairy shrimp. We relied on survey reports, information from
the CNDDB, and GIS mapping data, including topographical maps and
aerial photographs.
We agree that not all portions of Subunit 5c are made up of vernal
pool basins. Vernal pool basins are not the only PCE identified for the
Riverside fairy shrimp. As described in our Criteria Used to Identify
Critical Habitat section above, and in our response to Comments 2 and
14 above, Riverside fairy shrimp require intermixed wetland and upland
habitats that function as the local watershed, including topographic
features characterized by mounds, swales, and low-lying depressions. In
the case of Subunit 5c, the subunit boundary captures a small stream as
well as the downward slope and mima mound topography that make up the
watershed associated with the occupied vernal pool (PCE 2). Subunit 5c
contains the physical or biological features essential to conserve the
Riverside fairy shrimp (see ``Subunit 5c: East Otay Mesa'' for more
information), and this subunit is itself essential to the conservation
of the species.
In regard to the commenter's assertion that a created pond could
not provide the physical or biological features essential to the
conservation of the species, as discussed in the Primary Constituent
Elements for Riverside Fairy
[[Page 72123]]
Shrimp section above, multiple scientists have documented that both
natural and created ponds can function as habitat for the Riverside
fairy shrimp when they contain the appropriate physical or biological
features (including soil characteristics and ponding duration) (Moran
1977, p. 155; Hathaway and Simovich 1996, p. 670; Service 1998a, p.
22). Subunit 5c contains characteristics, including the presence of
mima mound topography and soils that support long-term ponding during
winter and spring months and intermixed wetland and upland habitats
that act as the local watershed, that are representative of Riverside
fairy shrimp vernal pool habitat. The presence of these
characteristics, which are shown on topographic maps created prior to
the time of listing, further suggest that these elements which support
the Riverside fairy shrimp have long been in place, even as the
occurrence is now affected by human disturbance and OHV use.
Additionally, the subunit is currently occupied by Riverside fairy
shrimp. Habitat loss continues to be the greatest direct threat to
Riverside fairy shrimp, coupled with the estimated loss of 90 to 97
percent of vernal pool habitat in southern California (Mattoni and
Longcore 1997, pp. 71-73, 86-88; Bauder and McMillan 1998, p. 66;
Keeler-Wolf et al. 1998, p. 10; Service 1998a, p. 45). As we indicated
in the 1998 Recovery Plan, a key conservation goal for the Riverside
fairy shrimp is protection of most of the remaining Riverside fairy
shrimp occurrences (Service 1998a, p. 62). Given the historic and
continued loss of habitat, and based on the best available scientific
information available to us at this time, we have determined this
subunit to be essential for the long-term conservation and recovery of
the species (see ``Subunit 5c: East Otay Mesa'' section for more
information).
(32) Comment: The commenter stated that the proposed development of
a recycling center and landfill on Subunit 5c would provide benefits to
the public in the form of jobs and San Diego County's need for
increased landfill space. The commenter concluded that the subunit
should be excluded for economic reasons, especially as the commenter
believes that the Riverside fairy shrimp will not become extinct if the
subunit is excluded.
Our Response: Section 4(b)(2) of the Act states that the Secretary
shall designate and make revisions to critical habitat on the basis of
the best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat. In making that
determination, the statute on its face, as well as the legislative
history, are clear that the Secretary has broad discretion regarding
which factors to use and how much weight to give to any factor.
The commenter suggested that Subunit 5c should be excluded for
economic reasons. Under section 4(b)(2) of the Act, we consider the
economic impacts of specifying any particular area as critical habitat.
We prepared a draft economic analysis (DEA) of the proposed critical
habitat designation and related factors (Industrial Economics Inc.
2011, entire). The draft analysis, dated November 3, 2011, was made
available for public review and comment for 30 days (77 FR 12543, March
1, 2012). Following the close of the comment period, a final analysis
(dated August 30, 2012) of the potential economic effects of the
designation was developed, taking into consideration the public
comments we received and any new information (Industrial Economics Inc.
2012). Our economic analysis did not identify any disproportionate
costs likely to result from the designation. Because this area is
currently known to be occupied by Riverside fairy shrimp (see ``Subunit
5c: East Otay Mesa'' above and response to comment 29), consultation
under section 7 of the Act would be required if the proposed landfill
would affect waters of the United States under the CWA. Alternatively,
if the project had no Federal nexus and would result in take of
Riverside fairy shrimp, an incidental take permit under section 10 of
the Act would be required. In either case, the costs associated with
avoiding adverse modification of critical habitat are likely to mirror
those necessary to avoid jeopardy to the species. Therefore, critical
habitat designation is not likely to result in incremental costs other
than minor administrative costs associated with consideration of
critical habitat in the section 7 consultation. Additionally, the lands
that make up Subunit 5c area are already identified as critical habitat
for the Quino checkerspot butterfly; therefore, an adverse modification
analysis would be required for the project, assuming the existence of a
Federal nexus, regardless of this final revised critical habitat
designation. Our economic analysis did not identify any
disproportionate costs likely to result from the designation.
Specifically, because we conclude that the designation of critical
habitat would not meaningfully influence whether a landfill can be
constructed in Subunit 5c as there are existing constraints on
development of these lands due to the presence of Riverside fairy
shrimp and the designation of Subunit 5c lands as Quino checkerspot
critical habitat, we also conclude that the public benefits asserted by
the commenter--the need for a new landfill and the jobs that would
result from a landfill project--are not traceable to and would not be
avoided by an exclusion of Subunit 5c from the designation. Therefore,
the Secretary has declined to exercise his discretion to exclude any
areas, including Subunit 5c, from this designation of critical habitat
for Riverside fairy shrimp based on economic impacts or public benefits
(for more information see ``Exclusions Based on Economic Impacts''
section above). See also Response to Comment 37.
Comments on Legal and Policy Issues Relating to Critical Habitat
(33) Comment: One commenter stated that the Service had failed to
comply with the Regulatory Flexibility Act, as amended (RFA), because
it did not draft an initial regulatory flexibility analysis (IRFA) at
the time the proposed revised critical habitat rule was published. The
commenter believes that the Service had no justifiable reason to delay
the IRFA, and that postponing the analysis could harm small businesses
that may be affected by the proposed rule. The commenter also stated
that 30 days was an insufficient amount of time for small businesses to
review the DEA and provide comments, and that the dual rulemaking
provided an unnecessary burden on small entities that might wish to
comment on both the proposed rule and the DEA.
Our Response: The Service complied with the RFA when designating
critical habitat. The RFA requires the head of an agency to certify, at
the time of the proposal, that a rulemaking will not have a significant
impact on a substantial number of small business entities. If the
agency cannot certify, then the RFA recommends conducting an IRFA. It
is the Service's general practice to issue a proposed critical habitat
rule followed by a subsequent Federal Register Notice (FRN) that
announces the availability of the DEA. The DEA provides the substantive
economic information to evaluate compliance with the RFA and other
statutes and Executive Orders. In our subsequent FRN announcing the
availability of the DEA, the Service provides the necessary
certification
[[Page 72124]]
statement or, if it is unable to make such a certification, conducts an
IRFA. In both circumstances, the public is provided a second
opportunity to review and comment on the proposed rule and to review
and comment on the accompanying DEA or IRFA. We do not agree that a 30
day public comment period, which is the typical duration for public
comment periods under the Administrative Procedure Act, is insufficient
to afford members of the public with a meaningful opportunity to submit
comments on the DEA or imposes an unreasonable burden on small
businesses. Because the second FRN announcing the availability of the
DEA is part of the proposed rulemaking, the Service's practice complies
with the RFA. Further, in conversations with the Office of Management
and Budget (OMB) and the Small Business Administration's (SBA) Office
of Advocacy, and following their recommendations, the Service
identifies in our initial proposal, to the maximum extent practicable,
which small business sectors may be affected by the rulemaking. This
assists SBA and small business sectors to understand whether the
proposed rulemaking may impact a particular sector and allows for more
focused public review and comment.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly affected by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
all available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the EO regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable. Further
details are provided in the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.) and Regulatory Planning and Review--Executive Orders 12866 and
13563 sections below.
(34) Comment: One commenter believed that previous court decisions
in the Tenth Circuit Court require the Service to conduct a National
Environmental Policy Act (NEPA) analysis prior to critical habitat
designation.
Our Response: As we stated in the proposed rule, it is our position
that, outside the jurisdiction of the U.S. Court of Appeals for the
Tenth Circuit, we do not need to prepare environmental analyses as
defined by NEPA in connection with designating critical habitat under
the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This position was upheld by the U.S. Court of Appeals for the
9th Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995),
cert. denied 516 U.S. 1042 (1996)). This action is outside the
jurisdiction of the U.S. Court of Appeals for the Tenth Circuit.
Comments Relating to the Draft Economic Analysis (DEA)
(35) Comment: One commenter stated that the DEA employs a flawed
methodology because it employs the so-called baseline methodology,
which, as the Tenth Circuit Court has noted, grossly underestimates the
cost of designation. The commenter stated that the Service has flip-
flopped on its method of conducting a DEA, and that the change seems
arbitrary.
Our Response: As explained in chapter 2 of the DEA, the estimation
of incremental impacts is consistent with direction provided by OMB to
Federal agencies for the estimation of the costs and benefits of
Federal regulations (see OMB, Circular A-4, 2003). It is also
consistent with several recent court decisions, including Cape Hatteras
Access Preservation Alliance v. U.S. Department of the Interior, 344 F.
Supp. 2d 108 (D.D.C.); Center for Biological Diversity v. U.S. Bureau
of Land Management, 422 F. Supp. 2d 1115 (N.D. Cal. 2006); and Home
Builders Association of Northern California v. U.S. Fish and Wildlife
Service, 616 F.3d 983 (9th Cir. 2010). Those decisions found that
estimation of incremental impacts stemming solely from the designation
is proper.
We respectfully disagree with the commenter that our change in
policy was arbitrary. As described in the DEA, we developed our current
methodology in response to conflicting court decisions. In the DEA, we
address the divergent court opinions by analyzing both the baseline
protections accorded to the Riverside fairy shrimp absent critical
habitat designation and by monetizing incremental impacts attributable
to critical habitat designation. We determine that this methodology
addresses the divergent opinion of the courts and provides a thorough
review for policymakers that enables them to consider the true costs of
critical habitat designation, by comparing the costs that would occur
solely as a result of designation to those costs that would occur in
the absence of designation.
(36) Comment: Another commenter stated that the DEA does not
explain the source of its estimate of administrative costs, and
expresses concern that not all entities affected by administrative
costs are included in the analysis.
Our Response: The consultation cost model was originally based on
data gathered from three Service field offices (including a review of
consultation records and interviews with field office staff), telephone
interviews with Federal action agency staff (for example, BLM, USFS,
U.S. Army Corps of Engineers), and telephone interviews with private
consultants who perform work in support of permittees. In the case of
Service and Federal agency contacts, efforts focused on determining the
typical level of effort required to complete several different types of
consultations (hours or days of time), as well as the typical
Government Service (GS) level of the staff member performing this work.
In the case of private consultants, we interviewed representatives of
firms in California and New England to determine the typical cost
charged to clients for these efforts (for example, biological survey,
preparation of materials to support a biological assessment). The model
is periodically updated with new information, received in the course of
data collection efforts, which support economic analyses and public
comments on more recent critical habitat rules. In addition, the GS
rates are updated annually.
(37) Comment: One commenter stated that Subunit 5c should be
excluded
[[Page 72125]]
because of its critical function as San Diego County's future recycling
center and landfill. The commenter believes that the benefits to
society of development plans at that site outweigh the benefits of
including Subunit 5c as critical habitat.
Our Response: The Secretary is required to take into consideration
``any other relevant impact'' in addition to economic or national
security impacts, in designating critical habitat under section 4(b)(2)
of the Act. The commenter suggests that a ``relevant impact'' of
designating Subunit 5c that should be considered by the Secretary is
the effect designation would have on the potential future development
of the area as a recycling center and landfill. As described in the
comment letter, the project was approved by a county-wide initiative.
The County Department of Environmental Health put out a Notice of
Preparation of a Draft Environmental Impact Report (EIR) in September
of 2011 (County of San Diego DEH 2011, pp. 1-4); the draft EIR is still
under preparation.
Under section 4(b)(2) of the Act and its implementing regulations
at 50 CFR 424.19, the Secretary is required to identify significant
activities that are likely to be affected by a critical habitat
designation and consider the probable economic and other impacts of the
designation on those activities. The significant activities subject to
this consideration are those that are carried out, authorized, or
funded by a Federal agency, because the consequences of critical
habitat designation result from the obligation of Federal agencies to
consult under section 7 of the Act and to ensure that their activities
are not likely to jeopardize any listed species or destroy or adversely
modify designated critical habitat. Thus, whether designation of
critical habitat could affect the siting of a new recycling center and
landfill in Subunit 5c depends, in the first instance, on whether
Federal authorization is required to build such a landfill. For
purposes of addressing this comment, we assume that a Federal nexus
that would trigger section 7 consultation under the Act would exist.
The most likely Federal nexuses triggering section 7 consultation would
be the need for a Section 404 permit under the CWA if the project would
affect jurisdictional waters of the United States or the need for an
incidental take permit under section 10 of the Act because the proposed
project would result in take of the Riverside fairy shrimp.
Assuming that a Federal nexus exists, we next must determine if the
designation of critical habitat would result in impacts to the future
recycling center and landfill. If the designation would not itself
result in impacts to the project beyond those already likely to occur
as a result of the listing of the Riverside fairy shrimp, then the
project is not an ``other relevant impact'' of designation under
section 4(b)(2) of the Act.
The pool in Subunit 5c is known to be occupied by Riverside fairy
shrimp and, as a result, in the event of a future consultation on the
project under section 7 of the Act, the Service would be required to
evaluate the effects of the East Otay Mesa Recycling Collection Center
and Landfill Project on Riverside fairy shrimp occupying the pool,
regardless of the designation of critical habitat. As discussed under
the Physical or biological features section above, intact vernal pool
hydrology (including the seasonal filling and drying down of pools) is
the essential feature that governs the life cycle of the Riverside
fairy shrimp, and intact vernal pool hydrology made up of the vernal
pool basin and its upslope watershed (adjacent vegetation and upland
habitat) must be available and functional (Hanes and Stromberg 1998, p.
38). Adjacent upland habitat supplies essential hydrological inputs to
sustain vernal pool ecosystems. Protection of the upland habitat
between vernal pools within the watershed is essential to maintain the
space needs of the Riverside fairy shrimp and to buffer the vernal
pools from edge effects. Conserving surrounding uplands ensures
maintenance of proper hydrology to create pools of adequate depth also
supports the temporal needs of the Riverside fairy shrimp, as deep
pools provide for inundation periods of adequate length to support the
entire life-history function and reproductive cycles necessary for the
Riverside fairy shrimp.
We consider it likely that any measures identified as necessary to
avoid adverse modification of Riverside fairy shrimp critical habitat
in Subunit 5c would also be required to avoid jeopardy to the species.
We also note that the project area contains designated critical habitat
for the Quino checkerspot butterfly. Assuming the existence of a
Federal nexus for the project, an adverse modification analysis for
Quino checkerspot butterfly critical habitat also would be required
(regardless of whether or not Subunit 5c is designated as Riverside
fairy shrimp critical habitat). For these reasons, we conclude that
designation of critical habitat in Subunit 5c is not likely to affect
whether a recycling center and landfill can be developed or to impose
restrictions on such development beyond those that would result from
listing of the species. This conclusion is consistent with the results
of our FEA, which did not identify any incremental economic impacts of
designation beyond the minor added administrative costs of including an
evaluation of critical habitat in future section 7 consultations
involving Subunit 5c (Industrial Economics Inc. 2012, p. 4-17).
We have taken into account the potential economic impacts (see
response to comment 32) and any other relevant impact of designating
Subunit 5c as critical habitat. We conclude that designation of
critical habitat will not result in significant economic impacts or
other relevant impacts under section 4(b)(2) of the Act. Subunit 5c
contains the physical or biological features necessary for the
conservation of the Riverside fairy shrimp and is essential for the
conservation of the Riverside fairy shrimp, and the Secretary has
declined to consider this area for exclusion under 4(b)(2) of the Act.
(38) Comment: One commenter stated that the DEA uses a flawed Monte
Carlo analysis. Explanation is needed: (1) For the use of 100,000
iterations; (2) for the use of a bell curve in the histogram in Exhibit
4-7 of forecast present value incremental impacts to development (where
bell curves are generally used for natural phenomena); (3) regarding
how specific probabilities for the four scenarios were chosen; (4) for
why the Distribution of Impacts to Development Activities in the
technical appendix has a narrower range than the collection of
distributions for the sum of each unit and the sum for each subunit
does not match the total value for each unit; and (5) regarding which
scenarios are used for each subunit so grounds for exclusion are
clearer.
Our Response: The number of iterations selected ensured a
representative set of potential outcomes while being computationally
manageable. This clarification has been added as a footnote in the
development chapter.
In regard to the commenter's second point, Monte Carlo analyses
generate a range of outcomes by randomly sampling from statistical
distributions of uncertain input parameters, and then running the model
using those chosen inputs. The process is repeated (in this case
100,000 times) until a representative set of outputs has been
generated. The bell-shaped statistical distribution of the outputs in
this analysis was therefore generated from repeatedly sampling the
input distributions and running the model; it
[[Page 72126]]
was not pre-specified. This clarification has been added as a footnote
in the development chapter of the FEA.
With regard to the commenter's question about how scenarios were
chosen, as described on page 4-14 of the DEA, absent information on the
likelihood of any particular outcome in developable areas not covered
by HCPs, the analysis assumes that an equal probability exists that a
property will be located in one of the four geographic situations
described in the development chapter: (a) Entirely in upland areas, (b)
proximate to a nonjurisdictional pool, (c) proximate to a
jurisdictional pool that is occupied, or (d) proximate to a
jurisdictional pool that is unoccupied.
The commenter is correct that the sum of development cost ranges
for each subunit does not match the range from the distribution of all
costs. As described on page 4-18 and in Exhibit 4-8 of the DEA, this
occurs because the distribution of total costs across the proposed
revised critical habitat area has a narrower range than the aggregation
of the distributions for each subunit. In other words, it is not
realistic to assume that every property will experience the most costly
option for each variable included in the model (the sum of the upper
bounds of the distributions). Likewise, it is unlikely that none of the
affected properties will experience any impacts (the sum of the lower
bounds of the distributions).
Finally, the DEA delineates proposed critical habitat areas into
three categories in the development chapter: (a) Not developable, (b)
developable but in HCP areas that the Service is considering for
exclusion, and (c) other developable areas. As described above, the
four geographic situations are applied with equal probability to lands
in the third category (other developable areas). The areas of each
subunit in this category are identified in Exhibits 4-9 through 4-23.
(39) Comment: One commenter stated that the DEA makes unexplained
(and incorrect) assumptions in its development analysis: (1) The
analysis assumes that all undeveloped parcels that are privately owned
will be developed (Exhibit 4-24), which means future impacts on
development will be disparately felt by those private landowners who do
have plans to develop their land, such as Subunit 5c; (2) the analysis
assumes a mean development project size of 13.5 housing units
identified in the consultation history; and (3) the DEA does not
explain why 60 percent was used as the only alternative to 41 percent
of the 2,984 acres already subject to conservation plans.
Our Response: As described on page 4-4 of the DEA, the analysis
does not assume that all undeveloped parcels that are privately owned
will be developed, but instead relies on Regional Growth Forecast
datasets from the Southern California Association of Governments (SCAG)
and the San Diego Association of Governments (SANDAG) for information
on future development in proposed revised critical habitat. These
forecasts provide the total number of projected housing units at the
Census tract level, which were applied at the proposed critical habitat
unit level using the relationship between developable acres in the
units and census tracts.
With regard to the commenter's assertion about mean development
project size, as noted by the commenter and described on page 4-5, the
estimated number of housing units per project is based on the
consultation history. As described in Exhibit 4-24, it is uncertain
whether this estimate is too high or too low, and how the number will
vary across projects in the future. The commenter does not provide
additional information to refine this estimate.
In section 2.4.4, the DEA describes why 60 percent and 41 percent
are used as the two alternative areas subject to conservation plans. If
the City of San Diego Subarea Plan was approved and implemented, an
additional 19 percent of proposed critical habitat would be subject to
an HCP and considered for exclusion. This additional 19 percent over
the 41 percent subject to existing HCPs would lead to 60 percent of
proposed critical habitat potentially subject to HCPs in the future.
(40) Comment: One commenter stated that the DEA should delete the
willingness-to-pay study because the benefits cannot be directly
compared to the costs and because it asks how much people would spend
in order to protect the species from going extinct, not how much they
did pay.
Our Response: For completeness, the benefits chapter of the DEA
describes the results of any relevant studies that have evaluated the
benefits of Riverside fairy shrimp preservation, and then describes
whether or not the results of those studies can be compared to the
costs estimated in the DEA. The willingness-to-pay study described by
the commenter elicits the importance of preserving the Riverside fairy
shrimp to local populations within the region of the proposed critical
habitat using a well-accepted valuation technique. Because of its
relevance, this study is summarized in the DEA. As suggested by the
commenter and mentioned in chapter 6 of the DEA, the benefits presented
in this study cannot be directly compared to the incremental costs
quantified in chapters 4 and 5 and, as a result, the DEA does not make
this comparison.
(41) Comment: One commenter believed that designating critical
habitat in Subunit 5c would cause undue burden on the owners, who wish
to develop the subunit as a landfill. The commenter stated that any
delay to this multimillion dollar project could result in substantial
costs and delay, and undue burden on the landowners.
Our Response: We respectfully disagree with the commenter that the
designation of critical habitat would result in significant time and
financial burden. The Service expects that, for the Riverside fairy
shrimp, the outcome of an adverse modification analysis on lands
identified as critical habitat would be similar to that of a jeopardy
analysis for lands currently occupied by the Riverside fairy shrimp,
including Subunit 5c. Again, because the subunit is occupied by the
Riverside fairy shrimp, a jeopardy analysis would likely occur
regardless of critical habitat designation. Our rationale is presented
in Appendix D of the DEA (Industrial Economics Inc. 2011, pp. D-1-D-6).
See also our responses to Comments 32 and 37. In the DEA analysis we
note that, with regard to vernal pool species such as Riverside fairy
shrimp, the outcomes of jeopardy and adverse modification analyses (in
terms of potential restrictions on development) may often be similar.
In general, a properly functioning hydrological regime is critical to
sustain listed vernal pool species and their immediate vernal pool
habitat (local watershed). Avoidance or adequate minimization of
impacts to the wetland area and its associated watershed, which
collectively create the hydrological regime necessary to support the
Riverside fairy shrimp, are essential not only to enable the critical
habitat unit to carry out its conservation function such that adverse
modification is avoided, but also to avoid a jeopardy determination
with regard to the continued existence (survival) of the listed
species. Because the Riverside fairy shrimp is completely dependent on
a properly functioning vernal pool system for its survival, at this
time we are not able to differentiate meaningfully between the
conservation measures needed to avoid adverse modification of critical
habitat and those needed to avoid jeopardy to the species. Impacts to
both wetland features where Riverside fairy shrimp actually occurs and
to the associated local watershed necessary to maintain
[[Page 72127]]
those wetland features should generally be avoided to prevent jeopardy
to the Riverside fairy shrimp or to prevent adverse modification to
Riverside fairy shrimp critical habitat. Service biologists regularly
work with project proponents to avoid impacts to vernal pool and
ephemeral wetland habitat whenever possible; this process includes
conservation measures designed to avoid or minimize impacts to both the
pools and the associated local watershed area. Therefore, we do not
expect that an adverse modification analysis would result in
significant additional delay or cost to the landowner.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The OIRA
has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
rule in a manner consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish
a notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a certification
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities. In this final rule, we are certifying that the critical
habitat designation for Riverside fairy shrimp will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale.
According to the SBA, small entities include small organizations,
such as independent nonprofit organizations, small governmental
jurisdictions including school boards and city and town governments
that serve fewer than 50,000 residents, as well as small businesses.
Small businesses include manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts on these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities, such as: (1)
Agricultural, commercial, and residential development; (2)
transportation; and (3) livestock grazing and other human activities.
We apply the ``substantial number'' test individually to each industry
to determine if certification is appropriate. However, the SBREFA does
not explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect the Riverside fairy shrimp. Federal agencies also must
consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification'' Standard section).
In our FEA of the critical habitat designation, we evaluated the
potential economic effects on small business entities resulting from
conservation actions related to the listing of the Riverside fairy
shrimp and the designation of critical habitat. The analysis is based
on the estimated impacts associated with the rulemaking as described in
chapters 4, 5, and Appendix A of the FEA, and evaluates the potential
for economic impacts related to activity categories, including
development, transportation, and other human activities, such as
habitat management, livestock grazing, and water management, as well as
impacts to the energy industry (Industrial Economics Inc. 2012, pp. 4-
1-6-6, A-1-A-7).
As described in chapters 4 and 5 of the FEA, estimated incremental
impacts consist primarily of administrative costs and time delays
associated with section 7 consultation and CEQA review. The Service and
the Federal action agency are the only entities with direct compliance
costs associated with this critical habitat designation, although small
entities may participate in section 7 consultation as a third party. It
is, therefore, possible that the small entities may spend additional
time considering critical habitat during section 7 consultation for the
Riverside fairy shrimp. The FEA indicates that the incremental impacts
potentially incurred by small entities are limited to the development
sector.
In order to understand the potential impacts on small entities
attributable to development activities, the FEA
[[Page 72128]]
conservatively assumed that all of the private owners of developable
lands affected by the revised critical habitat designation are
developers. We estimated that a total of 34.2 development projects may
be affected by the revised critical habitat designation, or 1.42
projects per year. Costs per project range from $5,000 where
incremental costs are limited to the additional cost of considering
adverse modification during a section 7 consultation to $1.07 million
where additional effort to comply with CEQA may be required, and time
delays occur in areas with the highest land values. Because in most
cases we are unable to identify the specific entities affected, the
impact relative to those entities' annual revenues or profits is
unknown. Assuming that the entities are small land subdividers with
annual revenues less than $7 million, the high-end impacts represent
approximately 15.2 percent of annual revenues. Of the total number of
entities engaged in land subdivision and residential, commercial,
industrial, and institutional construction, 97 percent are small
entities. Provided the assumptions that development activity occurs at
a constant pace throughout the timeframe of the analysis and each
project is undertaken by a separate entity, we estimated that
approximately two to three developers may be affected by the proposed
revised critical habitat designation each year. Conservatively assuming
that costs are borne by current landowners, and all landowners are land
subdividers or construction firms, less than 3 percent or 1 percent,
respectively, of all small entities in these sectors would be affected
when the final revised critical habitat rule becomes effective
(Industrial Economics Inc. 2012, p. A-5).
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the EO regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.
In doing so, we focus on the specific areas being designated as
critical habitat and compare the number of small business entities
potentially affected in that area with other small business entities in
the region, instead of comparing the entities in the area of
designation with entities nationally, which is more commonly done. This
analysis results in an estimation of a higher number of small
businesses potentially affected. In this rulemaking, we calculate that
less than 3 percent or 1 percent (assuming that all landowners are land
subdividers or construction firms), respectively, of all small entities
in the area would be affected when this final rule becomes effective.
If we were to calculate that value based on the proportion nationally,
then our estimate would be significantly lower than 1 percent.
Following our evaluation of potential effects to small business
entities from this rulemaking, we conclude that the number of
potentially affected small businesses is not substantial.
The FEA also concludes that none of the government entities with
which the Service might consult on the Riverside fairy shrimp for
transportation or habitat management activities meets the definitions
of small as defined by the SBA (Industrial Economics Inc. 2012, p. A-
6); therefore, impacts to small government entities due to
transportation and habitat management activities are not anticipated. A
review of the consultation history for the Riverside fairy shrimp
suggests future section 7 consultations on livestock grazing (for
example, ranching operations) and water management are unlikely, and as
a result are not anticipated to be affected by this rule (Industrial
Economics Inc. 2012, pp. A-6-A-7).
In summary, we have considered whether this revised designation
will result in a significant economic impact on a substantial number of
small entities and the energy industry. Information for this analysis
was gathered from the SBA, stakeholders, and from Service files. We
determined that less than 3 percent of land subdividers or 1 percent of
construction firms engaged in development activity within the area
proposed for designation would be affected when the final rule becomes
effective (Industrial Economics Inc. 2012, p. A-5). Given that this
final rule excludes 1,259 ac (510 ha), the costs of the critical
habitat designation will likely be even lower. Therefore, we are
certifying that the designation of critical habitat for Riverside fairy
shrimp will not have a significant economic impact on a substantial
number of small entities, and an RFA is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
The economic analysis finds that none of these criteria is relevant
to this analysis. Thus, based on information in the economic analysis,
energy-related impacts associated with Riverside fairy shrimp
conservation activities within critical habitat are not expected. As
such, the designation of critical habitat is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and
[[Page 72129]]
``Federal private sector mandates.'' These terms are defined in 2
U.S.C. 658(5)-(7). ``Federal intergovernmental mandate'' includes a
regulation that ``would impose an enforceable duty upon State, local,
or tribal governments'' with two exceptions. It excludes ``a condition
of Federal assistance.'' It also excludes ``a duty arising from
participation in a voluntary Federal program,'' unless the regulation
``relates to a then-existing Federal program under which $500,000,000
or more is provided annually to State, local, and tribal governments
under entitlement authority,'' if the provision would ``increase the
stringency of conditions of assistance'' or ``place caps upon, or
otherwise decrease, the Federal government's responsibility to provide
funding,'' and the State, local, or tribal governments ``lack
authority'' to adjust accordingly. At the time of enactment, these
entitlement programs were: Medicaid; Aid to Families with Dependent
Children work programs; Child Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent Living; Family Support Welfare
Services; and Child Support Enforcement. ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector, except (i) a condition of Federal assistance
or (ii) a duty arising from participation in a voluntary Federal
program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not expect this rule to significantly or uniquely affect
small governments. Small governments would be affected only to the
extent that any programs having Federal funds, permits, or other
authorized activities must ensure that their actions would not
adversely affect critical habitat. Therefore, a Small Government Agency
Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for the Riverside fairy shrimp in a takings
implications assessment. As discussed above, the designation of
critical habitat affects only Federal actions. Although private parties
that receive Federal funding, assistance, or require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. The takings implications
assessment concludes that this designation of revised critical habitat
for Riverside fairy shrimp does not pose significant takings
implications for lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A federalism impact
summary statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in California. We received no
comments from State agencies. The designation of critical habitat in
areas currently occupied by the Riverside fairy shrimp imposes no
additional restrictions to those currently in place and, therefore, has
little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
in that the areas that contain the physical or biological features
essential to the conservation of the species are more clearly defined,
and the elements of the features of the habitat necessary to the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the species. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested parties to obtain more detailed location
information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the 9th Circuit (Douglas County
v. Babbitt, 48 F.3d
[[Page 72130]]
1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands occupied by the Riverside fairy shrimp at the time of listing
that contain the features essential to conservation of the species, and
no tribal lands unoccupied by the Riverside fairy shrimp that are
essential for the conservation of the species. Therefore, we are not
designating critical habitat for Riverside fairy shrimp on tribal
lands.
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Carlsbad Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.95, amend paragraph (h) by revising the entry for
``Riverside Fairy Shrimp (Streptocephalus woottoni)'' to read as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) Crustaceans.
* * * * *
Riverside Fairy Shrimp (Streptocephalus woottoni)
(1) Unit descriptions are depicted for Ventura, Orange, and San
Diego Counties, California, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Riverside fairy shrimp consist of three components:
(i) Ephemeral wetland habitat consisting of vernal pools and
ephemeral habitat that have wet and dry periods appropriate for the
incubation, maturation, and reproduction of the Riverside fairy shrimp
in all but the driest of years, such that the pools:
(A) Are inundated (pond) approximately 2 to 8 months during winter
and spring, typically filled by rain, surface, and subsurface flow;
(B) Generally dry down in the late spring to summer months;
(C) May not pond every year; and
(D) Provide the suitable water chemistry characteristics to support
the Riverside fairy shrimp. These characteristics include
physiochemical factors such as alkalinity, pH, temperature, dissolved
solutes, dissolved oxygen, which can vary depending on the amount of
recent precipitation, evaporation, or oxygen saturation; time of day;
season; and type and depth of soil and subsurface layers. Vernal pool
habitat typically exhibits a range of conditions but remains within the
physiological tolerance of the species. The general ranges of
conditions include, but are not limited to:
(1) Dilute, freshwater pools with low levels of total dissolved
solids (low ion levels (sodium ion concentrations generally below 70
millimoles per liter));
(2) Low alkalinity levels (lower than 80 to 1,000 milligrams per
liter (mg/l)); and
(3) A range of pH levels from slightly acidic to neutral (typically
in range of 6.4-7.1).
(ii) Intermixed wetland and upland habitats that function as the
local watershed, including topographic features characterized by
mounds, swales, and low-lying depressions within a matrix of upland
habitat that result in intermittently flowing surface and subsurface
water in swales, drainages, and pools described in paragraph (h)(2)(i)
of this entry. Associated watersheds provide water to fill the vernal
or ephemeral pools in the winter and spring months. Associated
watersheds vary in size and therefore cannot be generalized, and they
are affected by factors including surface and underground hydrology,
the topography of the area surrounding the pool or pools, the
vegetative coverage, and the soil substrates in the area. The size of
associated watersheds likely varies from a few acres to greater than
100 ac (40 ha).
(iii) Soils that support ponding during winter and spring which are
found in areas characterized in paragraphs (h)(2)(i) and (h)(2)(ii),
respectively, of this entry, that have a clay component or other
property that creates an impermeable surface or subsurface layer. Soil
series with a clay component or an impermeable surface or subsurface
layer typically slow percolation, increase water run-off (at least
initially), and contribute to the filling and persistence of ponding of
ephemeral wetland habitat where the Riverside fairy shrimp occurs.
Soils and soil series known to support vernal pool habitat include, but
are not limited to:
(A) The Azule, Calleguas, Cropley, and Linne soils series in
Ventura County;
(B) The Alo, Balcom, Bosanko, Calleguas, Cieneba, and Myford soils
series in Orange County;
(C) The Cajalco, Claypit, Murrieta, Porterville, Ramona, Traver,
and Willows soils series in Riverside County; and
(D) The Diablo, Huerhuero, Linne, Placentia, Olivenhain, Redding,
Salinas, and Stockpen soils series in San Diego County.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
January 3, 2013.
(4) Critical habitat map units. Data layers defining map units were
created using a base of U.S. Geological Survey 7.5' quadrangle maps.
Unit descriptions were then mapped using Universal Transverse Mercator
(UTM) zone 11, North American Datum (NAD) 1983 coordinates. The maps in
this entry, as modified by any accompanying
[[Page 72131]]
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public on http://regulations.gov at
Docket No. FWS-R8-ES-2011-0013, on our Internet site (http://www.fws.gov/carlsbad/), and at the Carlsbad Fish and Wildlife Office,
6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011.
[[Page 72132]]
(5) Note: Index map follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR04DE12.017
[[Page 72133]]
(6) Unit 1: Ventura County, California. Map of Subunit 1a, Tierra
Rejada Preserve, and Subunit 1b, South of Tierra Rejada Valley,
follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.018
[[Page 72134]]
(7) Unit 2: Los Angeles Basin-Orange County Foothills, Orange
County, California.
(i) Map of Subunit 2dA, Saddleback Meadows, and Subunit 2dB,
O'Neill Regional Park (near Trabuco Canyon), follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.019
[[Page 72135]]
(ii) Map of Subunit 2e, O'Neill Regional Park (near Ca[ntilde]ada
Gobernadora), follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.020
[[Page 72136]]
(iii) Map of Subunit 2h, San Onofre State Beach, State Park-leased
land (near Christianitos Creek foothills) (near Camp Pendleton),
follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.021
[[Page 72137]]
(8) Unit 5: San Diego Southern Coastal Mesas, San Diego County,
California.
(i) Map of Subunit 5a, Sweetwater (J33); Subunit 5e, J2 N, J4, J5
(Robinhood Ridge); Subunit 5f, J2 W and J2 S (Hidden Trails, Cal
Terraces, Otay Mesa Road); Subunit 5g, J14; and Subunit 5h, J11 E and
J11 W, J12, J16-18 (Goat Mesa), follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.022
[[Page 72138]]
(ii) Map of Subunit 5c, East Otay Mesa, follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.023
[[Page 72139]]
(iii) Map of Subunit 5d, J29-31, follows:
[GRAPHIC] [TIFF OMITTED] TR04DE12.024
[[Page 72140]]
* * * * *
Dated: November 14, 2012.
Rachel Jacobson,
Principal Deputy Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-28250 Filed 12-3-12; 8:45 am]
BILLING CODE 4310-55-C