Federal Register, Volume 77 Issue 41 (Thursday, March 1, 2012)

[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Proposed Rules]
[Pages 12543-12552]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4716]

[[Page 12543]]

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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 Riverside Fairy Shrimp

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of
availability of draft economic analysis, and amended required
determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period on the June 1, 2011, proposed revised
designation of critical habitat for Riverside fairy shrimp
(Streptocephalus woottoni) under the Endangered Species Act of 1973, as
amended (Act). We are revising the preamble to the proposed designation
to clarify that certain subunits that we originally proposed for
revised critical habitat designation under section 3(5)(A)(i) of the
Act, are now also being proposed under section 3(5)(A)(ii) of the Act
because these areas are essential for the conservation of the species
but were not confirmed to be occupied by Riverside fairy shrimp at the
time the species was listed in 1993. We also announce the availability
of a draft economic analysis (DEA) of the proposed designation of
revised critical habitat for Riverside fairy shrimp and an amended
required determination section of the proposal. We are reopening the
comment period for an additional 30 days to allow all interested
parties an opportunity to comment simultaneously on the proposed
revised critical habitat designation, the associated DEA, and the
amended required determinations section. Comments previously submitted
need not be resubmitted, as they will be fully considered in
preparation of the final rule.

DATES: We will consider comments received on or before April 2, 2012.
Comments must be received by 11:59 p.m. Eastern Time on the closing
date. Any comments that we receive after the closing date may not be
considered in the final decision on this action.

ADDRESSES: You may submit written comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2011-0013, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-ES-2011-0013; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments below for more information).

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. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We will accept written comments and information during this
reopened comment period on our proposed revised designation of critical
habitat for Riverside fairy shrimp published in the Federal Register on
June 1, 2011 (76 FR 31686), our DEA of the proposed revised
designation, and the amended required determinations provided in this
document. We will consider information and recommendations from all
interested parties. We are particularly interested in comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threats outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(2) Specific information on:
(a) Areas that provide habitat for Riverside fairy shrimp that we
did not discuss in our proposed revised critical habitat rule (76 FR
31686; June 1, 2011);
(b) Areas containing the physical and biological features essential
to the conservation of Riverside fairy shrimp that we should include in
the final revised critical habitat designation and why. Include
information on the distribution of these essential features and what
special management considerations or protections may be required to
maintain or enhance them;
(c) Areas proposed as revised critical habitat that do not contain
the physical and biological features essential for the conservation of
the species and that should not be designated as critical habitat;
(d) Areas not occupied or not known to be occupied at the time of
listing that are essential for the conservation of the species and why;
and
(e) The potential effects of climate change on Riverside fairy
shrimp and its habitat and whether the critical habitat may adequately
account for these potential effects.
(3) Our proposal to designate specific areas for which there is no
documentation of occupancy for the specific areas (subunits) prior to
1993, as essential for the conservation of the species under the
definition of critical habitat in section (3)(5)(A)(ii) of the Act.
(4) Lands we identified as essential for the conservation of
Riverside fairy shrimp in Appendix F of the Recovery Plan that are not
being proposed as critical habitat.
(5) Lands we have identified as essential for the conservation of
Riverside fairy shrimp that were not known at the time the Recovery
Plan was written but that we conclude are essential for the
conservation of the species.
(6) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed revised critical
habitat.
(7) Information that may assist us in identifying or clarifying the
physical and biological features essential to the conservation of
Riverside fairy shrimp.
(8) Whether any specific areas being proposed as revised critical
habitat for Riverside fairy shrimp should be excluded under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any particular area outweigh the benefits of including that area under
section 4(b)(2) of the Act. See the Exclusions section of the June 1,
2011, proposed rule to revise critical habitat (76 FR 31686) for
further discussion.
(9) Any probable economic, national security, or other relevant
impacts that may result from designating any area that may be included
in the final designation. We are particularly interested in any impacts
on small entities, and the benefits of including or excluding areas
that exhibit these impacts.
(10) Information on the extent to which the description of probable
economic impacts in the DEA is complete and accurate, and specifically:

[[Page 12544]]

(a) Whether there are incremental costs of critical habitat
designation (for example, costs attributable solely to the designation
of revised critical habitat for Riverside fairy shrimp) that have not
been appropriately identified or considered in our economic analysis,
including costs associated with future administrative costs or project
modifications that may be required by Federal agencies related to
section 7 consultation under the Act;
(b) Whether there are additional project modifications that may
result from the designation of critical habitat for Riverside fairy
shrimp and what those potential project modifications might represent.
(11) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to better assist us in
accommodating public concerns and comments.
If you submitted comments or information on the proposed revised
rule (76 FR 31686) during the initial comment period from June 1, 2011,
to August 1, 2011, please do not resubmit them. We will incorporate
them into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning revised critical habitat for Riverside
fairy shrimp will take into consideration all written comments and any
additional information we receive during this and previous comment
periods. On the basis of public comments, we may, during the
development of our final determination, find that areas proposed are
not essential, are appropriate for exclusion under section 4(b)(2) of
the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in ADDRESSES. We request that
you send comments only by the methods described in ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hard copy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R8-ES-2011-0013, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain
copies of the proposed rule (76 FR 31686) and the DEA on the Internet
at http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0013, or by
mail from the Carlsbad Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).

Background

It is our intent to discuss only those topics directly relevant to
the designation of revised critical habitat for Riverside fairy shrimp
in this document. For more information on the taxonomy, biology, and
ecology of Riverside fairy shrimp, please refer to the listing rule
published in the Federal Register on August 3, 1993 (58 FR 41384), the
5-Year Review for Riverside fairy shrimp signed on September 30, 2008
(Service 2008), which is available online at http://www.fws.gov/carlsbad/, and our proposed revised critical habitat designation
published in the Federal Register on June 1, 2011 (76 FR 31686), which
is available online at http://www.regulations.gov (at Docket No. FWS-
R8-ES-2011-0013), or contact the Carlsbad Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

On April 12, 2005, we published a final designation of critical
habitat for Riverside fairy shrimp in the Federal Register (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. United
States Fish and Wildlife Service and Dirk Kempthorne, Secretary of the
Interior, Case No. 3:09-CV-0050-MMA-AJB). The plaintiffs alleged that
our April 12, 2005, critical habitat designation for Riverside fairy
shrimp was insufficient for various reasons, specifically challenging
the reasoning used to exclude areas from the 2005 critical habitat
designation for Riverside fairy shrimp and citing improper use of a
coextensive economic analysis. 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.
On June 1, 2011, we published a proposed rule to designate revised
critical habitat for the Riverside fairy shrimp (76 FR 31686). We
proposed to designate approximately 2,984 acres (1,208 hectares) of
land in five units in Ventura, Orange, Riverside, and San Diego
Counties, California, as revised critical habitat. That proposal had a
60-day comment period, ending August 1, 2011.

Critical Habitat

Section 3(5)(A)(i) of the Act defines critical habitat as ``the
specific areas within the geographical area occupied by the species, at
the time it is listed in accordance with the provisions of section 4 of
this Act, on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection.'' Section 3(5)(A)(ii)
pertains to ``specific areas outside the geographical area occupied by
the species at the time it is listed in accordance with the provisions
of section 4 of this Act, upon a determination by the Secretary 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 which are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary. For more
information on critical habitat, please refer to our proposed revised
critical habitat designation published in the Federal Register on June
1, 2011 (76 FR 31686).
As stated in the proposed rule (76 FR 31692: June 1, 2011), when we
are determining which areas should be designated as critical habitat or
revised critical habitat, our primary source of information is
generally the listing information developed during the listing process
for the species. However, section 4 of the Act also requires that we
designate critical habitat, or make revisions to, critical habitat on
the basis of the best scientific data available and after taking into
consideration the economic impact, the impact on national security, and
any other relevant impacts.
In proposing revised critical habitat for Riverside fairy shrimp,
we have made extensive use of the information in the Recovery Plan
(Service 1998), and

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incorporated the recovery goals and strategy identified in the Recovery
Plan. We also reviewed other relevant information, including peer-
reviewed journal articles, unpublished reports and materials (e.g.,
survey results and expert opinions), the final listing rule (58 FR
41384; August 3, 1993), 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), the 5-year review for the Riverside fairy shrimp (Service
2008), and regional databases and GIS coverages, for example,
California Natural Diversity Database, and National Wetlands Inventory
maps. We analyzed this information to determine historical occupancy,
occupancy at the time of listing, and current occupancy. Additionally,
we reviewed available information pertaining to the species' habitat
requirements and its distribution.
The geographical area known to be occupied by the species in the
U.S. as presented in the listing rule (58 FR 41385; 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 Luiseno 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. 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
41385)). 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).
We acknowledge that the geographical range known to be occupied by
the species at the time of listing in the U.S. (based on species
occurrence records available at the time the species was listed (58 FR
41384; August 3, 1993)) is from central Orange County to southwestern
San Diego County at the United States-Mexico Border. 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).
Our method for identifying areas with physical and biological
features essential to the conservation of the species and other areas
essential for the conservation of Riverside fairy shrimp, has been to
target areas occupied by Riverside fairy shrimp, and areas known to
possess suitable ephemeral wetland habitat likely to be occupied or
become occupied based on proximity to known occurrences, contiguous
habitat, or within expected dispersal distances for Riverside fairy
shrimp. We considered the low numbers of populations, restricted
distribution, specialized habitat requirements, and limited genetic
variability of Riverside fairy shrimp, and while we did not include all
available habitat or all areas where Riverside fairy shrimp are
located, criteria used to identify those areas essential for the
conservation of Riverside fairy shrimp include areas of discontinuous
habitat that: (1) Provide for geographic distribution across the range
of the species; (2) represent the full range of habitat and
environmental variability that the species occupies; (3) provide
appropriate inundation and ponding durations, natural hydrologic
regimes and appropriate soils, and intermixed wetland and upland
watershed (that is, contain the necessary primary constituent elements
(PCEs)); (4) provide for connectivity among pools within geographic
proximity to facilitate dispersal and gene flow among vernal pool
complexes; and (5) provide protection for unique, existing vernal pool
composition and structure. Our determination of habitat, and therefore
features, essential to the conservation of Riverside fairy shrimp takes
into consideration the generalized conservation strategy identified in
the 1998 Recovery Plan as necessary for the species stabilization and
reclassification (Service 1998, pp. 1-113 and Appendices F and G
therein). For more information on how critical habitat units and
subunits were identified and delineated and additional information
regarding the Recovery Plan, please also see the ``Methods'' section of
the proposed revised critical habitat rule we published on June 1, 2011
(76 FR 31686).
Specific areas identified for inclusion into revised critical
habitat were determined first at the unit level (based on Management
Area (Units 1-5) provided in the Recovery Plan (Service 1998, p.38)).
We delineated subunit boundaries by focusing on areas known or likely
to be occupied based on species occurrence records and the presence of
PCEs within each subunit. We mapped essential physical and biological
features and then applied selection criteria to identify those areas
essential to the conservation of Riverside fairy shrimp. We proposed to
designate subunits within the geographical area occupied by the species
at the time it was listed, as currently understood. As discussed below,
based on information regarding the geographical area occupied by the
species at the time it was listed, and the limited surveys verifying
occupancy of many specific pools prior to listing, we are now also
proposing certain subunits as essential for the conservation of the
species under section 3(5)(A)(ii) of the Act.
We have not proposed for designation certain areas identified in
the Recovery Plan that: (1) Lack a confirmed identification of species
occurrence, (2) lack essential physical and biological features to
support Riverside fairy shrimp in a self-sustaining population, or (3)
do not represent occupied occurrences that add to species viability
and, therefore, that we do not consider to be essential for the
recovery of the species at this time. Specifically, we determined these
areas are not essential for the conservation of the species because:
(1) The original record of species occurrence, or current species
persistence, remains questionable and unconfirmed; (2) specific
occupied pools or their watersheds have been so highly modified or
degraded that the long-term viability of the population is unlikely and
the functional value of enhancing or restoring the existing habitat to
assist in recovery is minimal; (3) they do not possess, or likely will

[[Page 12546]]

not retain (if restored), the necessary physical and biological
features (soils, hydrology, topography) to support and maintain a self-
sustaining population of Riverside fairy shrimp; or (4) the area
supports an occurrence that does not appreciably add to the species
viability at the unit or subunit level, therefore, the area is not
essential for the recovery of the species.
We initially proposed Unit 1 (1a and 1b), Unit 2 (2dA, 2dB, 2e, 2f,
2g, 2h, and 2i), Unit 3 (3c, 3d, 3e, and 3h), Unit 4 (4c), and Unit 5
(5a, 5b, 5c, 5e, 5f, 5g, and 5h) for designation as revised critical
habitat under section 3(5)(A)(i) of the Act because the areas contain
physical and biological features essential to the conservation of the
species that may require special management considerations or
protection and we considered the areas to be within the geographical
range occupied by the species at the time of listing. Because we lack
surveys confirming the presence of Riverside fairy shrimp in these
areas at the time of listing, we are now also proposing them for
designation under section 3(5)(A)(ii) of the Act. We have determined
that the areas are essential to the conservation of the species as
presented below (Table 1). Since the time of listing we have also
confirmed the areas are occupied by Riverside fairy shrimp.

Table 1--Subunit Occupancy Status and Justifications for Determining Specific Areas Essential to and for the
Conservation of Riverside Fairy Shrimp
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Current status ESA section ESA section
Unit/subunit: name \1\ Service status at \3\; year of 3(5)(A)(i) 3(5)(A)(ii)
listing \2\ first record \4\ justification \5\ justification \6\
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Ventura County
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1a: Tierra Rejada Preserve..... Presumed occupied Occupied; 1998 Has PCEs 1-3; may Necessary to stabilize
(CNNDB, EO 9). require in RP; possesses
management. unique soils and
habitat type;
disjunct population
which maintains
genetic diversity and
population stability
at species'
northernmost
distribution.
1b: South of Tierra Rejada Presumed occupied Presumed Has PCEs 1-3; may Provides appropriate
Valley (east of Hwy 23). 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
----------------------------------------------------------------------------------------------------------------
2c: (MCAS) El Toro............. Confirmed Occupied; 1998 Has PCEs 1-3; may Necessary to stabilize
occupied. (CNDDB, E0 10). require in RP; maintains
management. current geographic,
elevation, and
ecological
distribution;
maintains current
population structure;
provides for
connectivity; large
continuous block;
ecological linkage.
2dA: Saddleback Meadow......... Presumed occupied Occupied; 1997 Has PCEs 1-3; may ......................
(HELIX 2009, require
Report 10537).
2dB: O'Neil Regional Park--near Presumed occupied Occupied; 2001 Has PCEs 1-3; may Maintains current
Trabuco Canyon. (CNDDB, EO 17). require geographic,
management. elevation, and
ecological
distribution;
maintains current
population structure;
provides for
connectivity.
2e: O'Neil Regional Park--near Presumed occupied Occupied; 1997 Has PCEs 1-3; may Maintains current
Canada Gobernadora/east of (CNDDB, EO 4). require geographic,
Tijeras Creek. management. elevation, and
ecological
distribution;
maintains current
population structure;
provides for
connectivity.
2f: Chiquita Ridge............. Presumed occupied Occupied; 1997 Has PCEs 1-3; may Necessary to stabilize
(CNDDB, EO 5). require in RP; maintains
management. current geographic,
elevation, and
ecological
distribution;
maintains current
population structure;
provides for
connectivity.
2g: Radio Tower Road........... Presumed occupied Occupied; 2001 Has PCEs 1-3; may Maintains current
(CNDDB, EO 15, require geographic,
16). management. elevation, and
ecological
distribution;
maintains current
population structure;
provides for
connectivity.
2h: San Onofre State Beach, Presumed occupied Occupied; 1997 Has PCEs 1-3; may Unique soils and
State Park-leased land (near (CNDDB, EO 6). require wetland type,
Christianitos Creek). management. maintains habitat
function, genetic
diversity and species
viability; ecological
linkage.
2i: SCE Viejo Conservation Bank Presumed occupied Occupied; 1998 Has PCEs 1-3; may Maintains current
(CNDBB, EO 10). require geographic,
management. elevation, and
ecological
distribution;
maintains current
population structure;
provides for
connectivity.
----------------------------------------------------------------------------------------------------------------
Riverside County
----------------------------------------------------------------------------------------------------------------
3c: Australia Pool............. Presumed occupied Occupied; 1998 Has 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 Has PCEs 1-3; may Maintains current
(CNNDB, EO 24). require geographic,
management. elevation, and
ecological
distribution;
disjunct habitat.

[[Page 12547]]

3e: Schleuniger Pool........... Presumed occupied Occupied; 1998 Has PCEs 1-3; may Maintains current
(CNDDB, EO 8). require geographic,
management. elevation, and
ecological
distribution.
3f: Skunk Hollow and Field Pool Confirmed Skunk Hollow: Has PCEs 1-3; may ......................
occupied. Occupied; 1988 require
(CNDBB, EO 3), management.
Field Pool:
Occupied; 1988
(Service, GIS ID
9).
3g: Johnson Ranch Created Pool. Created (in 2002) Occupied; 2003 Has PCEs 1-3; may Provides for
(Service, GIS ID require connectivity among
13). management. pools; maintains
current population
structure.
3h: Santa Rosa Plateau-Mesa de Presumed occupied Occupied; 2009 Has PCEs 1-3; may Necessary to stabilize
Colorado. (Selheim and require in RP; unique soils
Searcy 2010, management. and habitat type;
Report large continuous
11005). blocks of occupied
habitat; ecological
linkage.
----------------------------------------------------------------------------------------------------------------
San Diego County
----------------------------------------------------------------------------------------------------------------
4c: Poinsettia Lane Commuter Presumed occupied Occupied; 1998 Has PCEs 1-3; may Necessary to stabilize
Train Station (JJ 2). (CNDDB, EO 7). require in RP; unique soils
management. and habitat type;
disjunct habitat;
provides protection
for existing vernal
pool composition and
structure.
5a: J 33 (Sweetwater High Presumed occupied Occupied; 2003 Has 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 Has PCEs 1-3; may Necessary to stabilize
(ERS, Report require in RP; maintains
8639). management. current population
structure; ecological
linkage.
5c: East Otay Mesa............. Presumed occupied Occupied; 2000 Has PCEs 1-3; may Unique soils and
GIS ID 4; 2001 require habitat type;
(EDAW 2001) management. maintains current
(CNDDB, EO 25). geographic,
elevation, and
ecological
distribution;
disjunct habitat;
protects existing
vernal pool
composition.
5d: J29-31..................... Confirmed Occupied; 1986 Has PCEs 1-3; may ......................
occupied. (Bauder 1986); require
(Simovich and management.
Fugate 1992)
(CNDDB, EO 2).
5e: J2 N, J4, J5............... Presumed occupied Occupied; 2003 Has PCEs 1-3; may Necessary to stabilize
(City of San require in RP; provides for
Diego, 2004). management. connectivity among
pools; maintains
current population
structure.
5f: J2 S and J2 W.............. Presumed occupied Occupied; 2001 Has PCEs 1-3; may Necessary to stabilize
(CNDDB, EO 18). require in RP; provides for
management. connectivity among
pools; maintains
current population
structure.
5g: J14........................ Presumed occupied Occupied; 2002 Has PCEs 1-3; may Necessary to stabilize
(HELIX 2002, require in RP; provides for
Report management. connectivity among
2386). pools; maintains
current population
structure.
5h: J11, J12, J16-19........... Presumed occupied Occupied; 2002 Has PCEs 1-3; may Necessary to stabilize
(City of San require in RP; provides for
Diego, 2004). management. connectivity among
pools; maintains
current population
structure.
----------------------------------------------------------------------------------------------------------------
\1\ Unit/Subunit name as it appears in Table 1 of proposed revised rule (76 FR 31698-31699). For additional
information, see the Recovery Plan (RP) for Vernal Pools of Southern California (Service 1998, 113+ pp.).
\2\ Service status: ``Confirmed occupied'' means that there is a record of occupancy at or before the time of
listing; ``Presumed occupied'' means there is 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 positive survey results in the possession of the Service. ``Created'' refers to a vernal pool
enhancement or restoration after the time of listing.
\3\ \4\ Current status: ``Occupied'' indicates a positive survey result after the time of listing documenting
the species occurrence and ``presumed occupied'' indicates no protocol surveys have been completed. The listed
year indicates 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 number of the occurrence information 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.
\5\ Reason/s 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 of what we consider the occupied geographic range of the species at the time of
listing.
\6\ Reason/s determined essential for 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)(ii) of the Act. RP =
Recovery Plan (see Service 1998, Appendix F, pp. F-1 to F-5). An empty box in the ``ESA section 3(5)(A)(ii)
justification'' column indicates this subunit not proposed under section 3(5)(A)(ii) of the Act, and was
confirmed occupied at the time of listing (see footnote 3).

[[Page 12548]]

The proposed revised rule explains in detail the bases for our
determination that Unit 1 (1a and 1b), Unit 2 (2dA, 2dB, 2e, 2f, 2g,
2h, and 2i), Unit 3 (3c, 3d, 3e, and 3h), Unit 4 (4c), and Unit 5 (5a,
5b, 5c, 5e, 5f, 5g, and 5h) are essential to the conservation of
Riverside fairy shrimp (76 FR 31686). Although the discussion of each
subunit in the proposed revised rule occurs in the context of section
3(5)(A)(i) of the Act, the reasons identified in the proposed revised
rule fully support designation of each of the subunits under section
3(5)(A)(ii) of the Act.
As stated in the proposed revised critical habitat rule (76 FR
31690; June 1, 2011), pursuant to section 3(5)(A)(i) of the Act we
consider Unit 1 (1a and 1b) Unit 2 (2c, 2dA, 2dB, 2e, 2f, 2g, 2h, and
2i), Unit 3 (3d, 3e, and 3h), Unit 4 (4c), and Unit 5 (5a, 5b, 5c, 5e,
5f, 5g, and 5h) to be specific areas within the geographical area
occupied by Riverside fairy shrimp at the time it was listed (although
not all subunits were surveyed prior to listing) on which are found
those physical or biological features essential to the conservation of
the species which may require special management considerations or
protection, and our rationale is explained below. We also have
determined that these specific areas are essential for the conservation
of Riverside fairy shrimp pursuant to section 3(5)(A)(ii) of the Act.
We propose 21 subunits (Subunits 1a, 1b; 2dA, 2dB, 2e, 2f, 2g, 2h,
and 2i; Subunits 3c, 3d, 3e, and 3h; Subunit 4c; Subunits 5a, 5b, 5c,
5e, 5f, 5g, and 5h) under both section 3(5)(A)(i) and section
3(5)(A)(ii) of the Act 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 evidence
suggests that these subunits were occupied by the Riverside fairy
shrimp at the time the species was listed, due to a lack of
documentation of occupancy, such as survey results prior to 1993, for
the purposes of this rulemaking, we determine that these subunits also
meet the definition of critical habitat in section 3(5)(A)(ii) of the
Act. The following paragraphs explain our determination, which applies
to the following units and subunits--Unit 1 (1a, 1b), Unit 2 (2dA, 2dB,
2e, 2f, 2g, 2h, and 2i), Unit 3 (3c, 3d, 3e, and 3h), Unit 4 (4c), and
Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, and 5h).
The Riverside fairy shrimp is a narrow endemic species that is
imperiled due to historical and ongoing land use practices that have
resulted in significant loss of habitat in southern California. The
Recovery Plan states that conservation of most of the remaining
occupied occurrences of Riverside fairy shrimp, as well as restorable
habitat, is essential to the preservation of the remaining diversity
and the prevention of further losses (Service 1998, p. 46) and is
essential if Riverside fairy shrimp is to recover (Service 1998, pp.
62-64). Limiting the designation to subunits that were known to be
occupied at the time of listing (positive pre-listing survey results)
would result in the exclusion of most of the areas currently known to
support viable Riverside fairy shrimp populations and would result in a
designation that is inadequate to provide for the conservation of the
species. Therefore, we are proposing to designate Unit 1 (1a and 1b),
Unit 2 (2dA, 2dB, 2e, 2f, 2g, 2h, and 2i), Unit 3 (3c, 3d, 3e, and 3h),
Unit 4 (4c), and Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, and 5h) under section
3(5)(a)(ii) of the Act as well as under section 3(5)(a)(i) of the Act
because they consist of areas essential for the conservation of the
species, are known to support Riverside fairy shrimp (with the
exception of Subunit 1b), and contain physical and biological features
essential to the conservation of the species. This proposed designation
is based on the best scientific information available to us at this
time.
Units 1-5, which include Ventura County Unit (Transverse Range;
Unit 1), Los Angeles Basin-Orange County Unit (Unit 2), Riverside
Inland Valleys Unit (Unit 3), San Diego North and Central Coastal Mesas
Unit (Unit 4), and San Diego Southern Coastal Mesas Unit (Unit 5)
comprise specific areas (subunits) within the geographical area
occupied by the species at the time it was listed based on our current
understanding (as previously discussed above), that we have also
determined are essential for the conservation of Riverside fairy
shrimp.
These units and subunits are necessary to stabilize existing
populations of Riverside fairy shrimp (See Appendix F in the Recovery
Plan for Vernal Pools of Southern California (hereafter, ``Recovery
Plan'') Service 1998, pp. F-1 to F-5) and are needed to meet recovery
goals identified in the Recovery Plan. [The Recovery Plan identifies
securing and conserving most of the remaining Riverside fairy shrimp
occurrences from further loss and degradation in a configuration that
maintains habitat function and species viability (Service 1998, p. 62)
as necessary for recovery of the species]. The Recovery Plan
specifically identifies securing from loss and degradation existing
vernal pools and their associated watersheds within the Transverse and
Los Angeles Basin-Orange Management Areas as a recovery criterion
(Service 1998, p. 62). The Recovery Plan also identifies remaining
vernal pools and their watersheds contained within the complexes
identified in Appendix F, secured in a configuration that maintains
habitat function and species viability, as needed for recovery of
Riverside fairy shrimp (Service 1998, p. 63).
Post-listing surveys in each of the units and subunits have
confirmed the presence of Riverside fairy shrimp. As indicated in the
Recovery Plan for Vernal Pools of Southern California, a key
conservation goal for Riverside fairy shrimp is protection of most of
the remaining Riverside fairy shrimp occurrences (securing from further
loss and degradation) in a configuration that maintains habitat
function and species viability (Service 1998, p. 62). Each of the areas
(subunits) contain essential habitat that supports or can support
viable occurrences of this extremely endangered species and is
necessary for its eventual recovery.
At the time of listing, Riverside fairy shrimp were known to occupy
nine vernal pool complexes within Orange, Riverside, and San Diego
Counties, and Baja California, Mexico, including four vernal pools in
Riverside County, one population in Orange County, two areas in San
Diego County, and two locations in Baja California, Mexico (58 FR
41384). All observed occurrences at that time were within 30 mi (48 km)
of the coast. Most of the additional complexes identified since the
time of listing (post[hyphen]1993) fall within the extant range of the
Riverside fairy shrimp known at the time of listing. The necessary
conditions for vernal pool presence--Mediterranean climate, topographic
depressions, and soils with poor drainage--were all present within the
species' known range, and these conditions strongly support the
conclusion that additional occupied vernal pools and pool complexes
containing Riverside fairy shrimp existed within the species' known
range that simply had not been surveyed for the species at the time of
listing.
The species was first collected in 1979, and recognized as a new
species in 1985. The species description was published in 1990 (Eng et
al. 1990, pp. 258-259), and Riverside fairy shrimp was federally listed
as endangered in 1993 (58 FR 41384). Listing typically results in
greater efforts to conduct surveys which often reveal a greater number
of occurrences than were initially known. Given the relatively

[[Page 12549]]

short time period from when Riverside fairy shrimp was identified and
published as a new species (1990) to when original or new survey
efforts were completed (generally in the late 1980s and early 1990s,
and again in 1997-early 2000s) and given the species' habitat, ecology,
and life-history requirements (see following paragraphs below), the
best scientific evidence suggests Riverside fairy shrimp were present
and persisted in suitable seasonal depression wetlands with appropriate
soils and microtopography within the geographical area known to be
occupied by the species at the time it was listed. This conclusion is
substantiated by the high number of additional occurrences identified
since the time of listing (1993) from surveys conducted in locations
that were not surveyed before 1993.
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 actively through 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 which the species partitions reproductive effort over more than one
hydration event and utilizes diapause of eggs (production of cyst bank)
and the fractional hatching of the egg (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, 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
and 64). Typically, mounds of soil (mima) topography and impervious
soils with a subsurface clay or hardpan layer provide the necessary
ponding opportunities during winter and spring (Zedler 1987, pp. 13 and
17). Underlying soil types and pool size influence the wetland
habitats' physiochemical parameters, associated vegetation, and faunal
communities, as do regional climate (rainfall; temperature; evaporation
rate) and elevation differences (Keeler-Wolf et al. 1998, p. 9). Vernal
pools are discontinuously distributed in several regions in southern
California, and Riverside fairy shrimp may be well adapted to the
ephemeral nature of its 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 range at the
time of listing were likely present prior to listing but occurred in
areas that had not been surveyed for Riverside fairy shrimp prior to
listing.
If the proposed revised rule is made final, section 7 of the Act
will prohibit destruction or adverse modification of critical habitat
by any activity funded, authorized, or carried out by any Federal
agency. Federal agencies proposing actions affecting critical habitat
must consult with us on the effects of their proposed actions, under
section 7(a)(2) of the Act.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion of a particular 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 (activities conducted, funded,
permitted, or authorized by Federal agencies), the educational benefits
of mapping areas containing essential features that aid in the recovery
of the listed species, and any benefits that may result from
designation due to State or Federal laws that may apply to critical
habitat.
When considering the benefits of excluding a particular area, we
consider, among other things, whether exclusion of a specific area is
likely to result in conservation; the continuation, strengthening, or
encouragement of partnerships; or implementation of a management plan.
In the case of Riverside fairy shrimp, the benefits of critical habitat
include public awareness of the presence of Riverside fairy shrimp and
the importance of habitat protection, and, where a Federal nexus
exists, increased habitat protection for Riverside fairy shrimp due to
protection from adverse modification or destruction of critical
habitat. In practice, situations with a Federal nexus exist primarily
on Federal lands or for activities conducted, funded, permitted, or
authorized by Federal agencies.
The final decision on whether to exclude any areas will be based on
the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared a draft economic analysis concerning the proposed
revised critical habitat designation (DEA), which is available for
review and comment (see ADDRESSES).

Draft Economic Analysis

The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed revised critical habitat
designation for Riverside fairy shrimp. The DEA describes the economic
impacts of all known potential conservation efforts for Riverside fairy
shrimp; some of these costs will likely be incurred regardless of
whether we designate revised critical habitat.
The DEA separates conservation efforts into two distinct categories
according to ``without critical habitat'' and ``with critical habitat''
scenarios. The ``without critical habitat'' scenario represents the
baseline for the analysis, considering protections that are already in
place for the species (e.g., under the Federal listing and other
Federal, State, and local regulations). The ``with critical habitat''
scenario describes the incremental impacts specifically due to
designation of revised critical habitat for the species. In other
words, the

[[Page 12550]]

incremental conservation efforts and associated economic impacts would
not occur but for the designation. Conservation efforts implemented
under the baseline (without critical habitat) scenario are described
qualitatively within the DEA, but economic impacts associated with
these efforts are not quantified. Economic impacts are only quantified
for conservation efforts implemented specifically due to the
designation of critical habitat (i.e., incremental impacts). For a
further description of the background and methodology of the analysis,
including relevant court case precedent, see Chapter 2, ``Framework for
the Analysis'' of the DEA (Industrial Economics, Inc. (IEC) 2011, pp.
2-1 to 2-24). The DEA also discusses the potential benefits associated
with the designation of critical habitat, but does not monetize these
benefits.
The 2005 Economic Analysis considered both pre-designation (from
the listing of the species in 1993 through 2004) and post-designation
(2005 through 2025) impacts to activities occurring within the study
area (which is defined as the area proposed for critical habitat
designation), referred to as a ``co-extensive analysis.'' Since that
time, however, courts in other cases have held that an incremental
analysis of impacts stemming solely from the critical habitat
rulemaking is proper, and as such, is the current DEA framework
approach used by the Service.
The DEA provides estimated costs of the probable economic impacts
of the proposed critical habitat designation for the Riverside fairy
shrimp over a 24-year time horizon (beginning in 2012 and ending in
2035), which was determined to be the appropriate period for analysis
because limited planning information is available for most activities
to forecast activity levels for projects beyond a 24-year timeframe
(for example, regional development projections end in 2035). The DEA
identifies potential incremental costs as a result of the proposed
revised critical habitat designation; these are those costs attributed
to critical habitat over and above those baseline costs attributed to
listing. The DEA quantifies potential economic impacts of Riverside
fairy shrimp conservation efforts associated with the following
categories of activity: (1) Agricultural, commercial, and residential
development; (2) transportation; and (3) livestock grazing and other
activities (IEC 2011, p. ES-4 and in Exhibit ES-3). The DEA presents a
distribution of future impacts to development activities using a ``low-
end'' scenario (10th percentile development costs with a low-end cost
of transportation) with a ``high-end'' scenario (90th percentile
development costs with the high-end costs from transportation) (IEC
2011, p. ES-5). Both totals include the incremental costs attributable
to habitat management activities.
In total, the potential incremental impacts of proposed revised
critical habitat designation for Riverside fairy shrimp are estimated
to be $1.75 million to $2.87 million ($166,000 to $273,000 on an
annualized basis), assuming a 7 percent discount rate (IEC 2011, p. ES-
5). Approximately 90 percent of these incremental costs result from
time delays to development activities; the remaining portion results
from administrative costs of considering adverse modification in
section 7 consultations and conducting environmental assessments to
comply with the California Environmental Quality Act (CEQA). Baseline
impacts associated with consideration of Riverside fairy shrimp and its
habitat were not quantified.
For development activities within the study area from year 2012 to
year 2035, we estimate the 10th to 90th percentile of incremental
impacts (including direct and indirect costs) for forecasted
development activities to be $1.71 million to $2.77 million, assuming a
7 percent discount rate, which is $163,000 to $265,000 in annualized
impacts. These cost estimates include the direct costs of section 7
consultations, as well as the indirect costs of project time delays and
CEQA assessments. Time delays account for approximately 90 percent of
the total impacts. Given spatial and regulatory uncertainties within
the proposed revised critical habitat area, the analysis presents
incremental impacts to development activities as a distribution of
possible outcomes (see ``Chapter 4- Potential Economic Impacts to
Development Activities''; IEC 2011, pp. 4-1 to 4-34).
Total estimated incremental impacts to transportation activities
are limited to the administrative costs of consultation. These
consultations may result in project modifications; however, the timing
and nature of any such modifications remain uncertain and, therefore,
are not quantified in the analysis. Generally, impacts to
transportation activities are limited due to the low density of roads
and the few planned transportation projects within areas of proposed
critical habitat. Incremental impacts to transportation activities are
estimated to be $9,560 (low-end scenario) to $37,500 (high-end
scenario) ($779 low end to $3,050 high-end, when annualized), at a 7
percent discount rate (IEC 2011, p. 5-3 and in Exhibit 5-1).
Estimated incremental impacts to habitat conservation activities
(years 2012-2035) are estimated to be $46,200 ($3,770 annualized), at a
7 percent discount rate (IEC 2011, pp. 5-4 and in Exhibit 5-2). Impacts
are attributed to future incremental administrative costs of section 7
consultations related to habitat management activities. Incremental
costs are assumed to be $405 per technical assistance and $2,380 per
informal consultation. Because these projects generally benefit
critical habitat, incremental project modifications are not
anticipated.
Incremental costs are generally limited to administrative efforts
of new and reinitiated consultations to consider adverse modification
of critical habitat for Riverside fairy shrimp, administrative costs of
complying with the CEQA, and time delays resulting from both processes.
The proposed critical habitat area is unlikely to generate economic
impacts beyond administrative costs of section 7 consultation for
several reasons:
(1) Forty-one percent of the proposed revised critical habitat
designation already receives protection through the various regional
Habitat Conservation Plans (HCPs) and areas proposed as revised
critical habitat receive a significant level of baseline protection
through various Federal and State regulations, in addition to
avoidance, minimization and mitigation measures afforded by existing
HCPs.
(2) All subunits except for one are currently known to be occupied
by the species, and thus these areas will require consultation
regardless of the designation due to the species being listed. In
subunits without existing baseline protection (Subunit 1b), surveys are
frequently undertaken to comply with the CEQA because all subunits
contain vernal pools or seasonally ponded habitats.
(3) Additionally, we recognize project modifications necessary to
avoid a determination of adverse modification of critical habitat under
section 7 of the Act may be different from the measures necessary to
avoid a jeopardy determination for the species. However, at this point
in time, we do not know what these specific project modifications are
likely to be. We are seeking public comments to provide information on
what the additional project modifications associated with an adverse
modification analysis might represent.
(4) Little development activity is forecasted within the proposed
revised critical habitat units. Twenty-four of the

[[Page 12551]]

25 subunits contain some privately owned land; however, a major portion
of proposed revised critical habitat falls within existing HCP habitat
preserves, or other conservation areas. Furthermore, many of the
privately owned acres are already set aside for mitigation.
We also do not anticipate designation of revised critical habitat
to result in any appreciable incremental economic benefits. Any
economic benefits related to conservation efforts would flow from the
listing of the species, rather than the designation of critical
habitat, and would fall within the economic baseline. The analysis also
addresses the distribution of impacts associated with the designation,
including an assessment of any local or regional impacts of habitat
conservation and the potential effects of conservation efforts on small
entities and the energy industry.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed revised rule
and our amended required determinations. We may revise the proposal or
supporting documents to incorporate or address information we receive
during the public comment periods. In particular, we may exclude an
area from revised critical habitat if we determine that the benefits of
excluding the area outweigh the benefits of including the area,
provided that exclusion will not result in the extinction of this
species.

Required Determinations--Amended

In our June 1, 2011, proposed revised rule (76 FR 33880), we
indicated that we would defer our determination of compliance with
several statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA to make these determinations. In this document, we
affirm the information in our proposed rule concerning Executive Order
(E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings),
E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C.
4321 et seq.), and the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951). However, based on the DEA data, we are
amending our required determination concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).

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 of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
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 effect of the rule on small entities (i.e.,
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. Based on our DEA of the proposed revised designation, we
provide our analysis for determining whether the proposed revised
designation would result in a significant economic impact on a
substantial number of small entities. Based on comments we receive, we
may revise this determination as part of a final rulemaking.
According to the Small Business Administration, 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; and small businesses (13 CFR 121.201). 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 to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as 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 proposed designation of critical habitat for
Riverside fairy shrimp would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as residential and
commercial development, transportation, and other human activities,
which include habitat management and livestock grazing. In order to
determine whether it is appropriate for our agency to certify that this
proposed revised rule would not have a significant economic impact on a
substantial number of small entities, we considered each industry or
category individually (for example, ``small business,'' ``small
governmental jurisdiction,'' and ``small organization''). We apply the
``substantial number'' test individually to each industry to determine
if certification is appropriate. However, the RFA 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
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
Revised critical habitat designation will not affect activities that do
not have any Federal involvement; designation of revised critical
habitat only affects activities conducted, funded, permitted, or
authorized by Federal agencies. 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 fund, permit, or implement that may
affect the species. If we finalize this proposed revised critical
habitat designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process.
In the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation efforts related
to the proposed critical habitat for Riverside fairy shrimp. The
analysis is based on the estimated impacts associated with the proposed
rulemaking as described in Chapters 4, 5, and Appendix A of the DEA,
and evaluates the potential for economic impacts related to activity
categories including residential development, transportation, and other
human activities, including habitat management, livestock grazing and

[[Page 12552]]

water management, as well as impacts to the energy industry (IEC 2011,
pp. 4-1 to 6-6; pp. A-1 to A-7).
As described in Chapters 4 and 5 of the DEA, estimated incremental
impacts consist primarily of administrative costs and time delays
associated with section 7 consultation and CEQA review. The Service and
the action agency are the only entities with direct compliance costs
associated with this proposed 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 DEA indicates that the
incremental impacts potentially incurred by small entities are limited
to development activities.
In the DEA, to understand the potential impacts on small entities
attributable to development activities, we conservatively assumed that
all of the private owners of developable lands affected by proposed
revised critical habitat designation are developers. We estimated that
a total of 34.2 development projects may be affected by the proposed
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 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 rule is published (IEC 2011,
p. A-5).
Our analysis constitutes an evaluation of not only potentially
directly affected parties, but those also potentially indirectly
affected. Under the RFA and following recent case law, we are only
required to evaluate the direct effects of a regulation to determine
compliance. Since the regulatory effect of critical habitat is through
section 7 of the Act, which applies only to Federal agencies, we have
determined that only Federal agencies are directly affected by this
rulemaking. Other entities, such as small businesses, are only
indirectly affected. However, to better understand the potential
effects of a designation of critical habitat, we frequently evaluate
the potential impact to those entities that may be indirectly affected,
as was the case for this rulemaking. 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 regional area, versus
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 the final rule is published. 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
do not believe that the small businesses in the affected sector
represent a substantial number.
The DEA also concludes that none of the government entities with
which the Service might consult on Riverside fairy shrimp for
transportation or habitat management activities meet the definitions of
small as defined by the Small Business Act (SBA) (IEC 2011, 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 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 the proposed rule (IEC 2011, pp. A-6 to A-7).
In summary, we have considered whether the proposed revised
designation would 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 Small Business
Administration, stakeholders, and from Service files. We determine that
less than three percent of land subdividers or one percent of
construction firms engaged in development activity within the area
proposed for designation would be affected if the final rule is
published as proposed (IEC 2011, p. A-5). For the above reasons and
based on currently available information, we certify that, if
promulgated, the proposed revised critical habitat would not have a
significant economic impact on a substantial number of small business
entities. Therefore, an initial regulatory flexibility analysis is not
required.

References Cited

A complete list of all references we cited in the proposed rule and
in this document is available on the Internet at http://www.regulations.gov or by contacting the Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this notice are the staff from the Carlsbad
Fish and Wildlife Office, Pacific Southwest Region, U.S. Fish and
Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

Authority

The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).

Dated: February 22, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-4716 Filed 2-29-12; 8:45 am]
BILLING CODE 4310-55-P