[Federal Register: April 6, 2000 (Volume 65, Number 67)]
[Proposed Rules]               
[Page 18026-18028]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Delist the Vernal Pool Fairy Shrimp and Vernal Pool 
Tadpole Shrimp

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to remove the vernal pool fairy shrimp 
(Branchinecta lynchi) and the vernal pool tadpole shrimp (Lepidurus 
packardi) from the Federal list of threatened and endangered species 
pursuant to the Endangered Species Act (Act) of 1973, as amended. We 
find that the petition, other information the petitioner specifically 
requested we evaluate, and additional information available in our 
files did not present substantial scientific or commercial information 
indicating that delisting of the vernal pool fairy shrimp and vernal 
pool tadpole shrimp may be warranted.

DATES: The finding announced in this document was made on March 30, 

ADDRESSES: Submit any data, information, comments, or questions 
concerning this petition to the Field Supervisor; Sacramento Fish and 
Wildlife Office; 2800 Cottage Way, Room W-2605; Sacramento, California 
95825. The petition finding and supporting data are available for 
public inspection, by appointment, during normal business hours at the 
above address.

FOR FURTHER INFORMATION CONTACT: Kyle Merriam or Karen Miller at the 
Sacramento Fish and Wildlife Office (see ADDRESSES section above), or 
at 916/414-6600.



    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial information indicating that 
the petitioned action may be warranted. To the maximum extent 
practicable, this finding is to be made within 90 days of the receipt 
of the petition, and the finding is to be published promptly in the 
Federal Register. If the finding is that substantial information was 
presented, we will commence a status review of the involved species.
    On February 29, 1996, we received a petition, dated the same day, 
to delist the vernal pool fairy shrimp (Branchinecta lynchi) and the 
vernal pool tadpole shrimp (Lepidurus packardi). The petition was 
submitted by the Fairy Shrimp Study Group (petitioner), consisting of 
the California Chamber of Commerce, Granite Construction, Teichert 
Aggregates, Sares-Regis Group, the California Cattlemen's Association, 
the Western Growers Association, and the California Farm Bureau 
    In a letter dated March 8, 1996, we notified the petitioner that a 
response would be delayed due to lack of funds and continuing 
resolutions in effect from November 14, 1995, to January 26, 1996, 
resulting in suspension of the listing program and reassignment of 
listing personnel to other activities. A moratorium on listing 
activities, and the consequent backlog at the time the moratorium was 
lifted, further delayed us from responding to the delisting petition.
    On October 22, 1997, the petitioner filed a case in Federal court 
(Court) challenging our failure to address the delisting petition 
(Fairy Shrimp Study Group v. Babbitt, case number 1:97CV02481). Most of 
the issues discussed by the petitioner were included in a lawsuit filed 
by the Building Industry Association challenging the listing of the 
vernal pool crustaceans (Building Industry Association v. Babbitt, 979 
F Supp. 893 (1997)), and were addressed by the Court in that case. The 
Court found that we had correctly determined the status of the vernal 
pool crustaceans as endangered and threatened and stated that (1) 
decisions to review petitions are not subject to judicial review; (2) 
we had used the best available information in our decision to list the 
vernal pool crustaceans; (3) the plaintiffs had been provided adequate 
notice of the concept of vernal pool complexes and vernal pool 
populations; and (4) we had not violated our Interagency Cooperative 
Policy for Peer Review in Endangered Species Activities (59 FR 34270).
    In a settlement with the petitioner reached on October 26, 1999, we 
agreed to evaluate the best scientific and commercial information 
available as of that date. The data and information evaluated were to 
include relevant geographic information on the location of vernal pools 
and fairy shrimp, including information generated in section 7 
consultations since February 29, 1996.
    On September 19, 1994, we published the final rule to list the 
vernal pool fairy shrimp and vernal pool tadpole shrimp as threatened 
and endangered, respectively, in the Federal Register (59 FR 48136). 
The vernal pool fairy shrimp and vernal pool tadpole shrimp are 
crustacean species endemic to vernal pool habitats in California and 
southwestern Oregon. Both of these fresh-water crustaceans are about 
the size of a dime and live brief lives within vernal pools, seasonal 
wetlands that fill with water during fall and winter rains. These 
species were listed as a result of significant threats to their vernal 
pool habitats by a variety of human-caused activities, primarily urban 
development and conversion of land to agricultural use.
    The factors for listing, delisting, or reclassifying species are 
described at 50 CFR 424.11. We may delist a species only if the best 
scientific and commercial data available substantiate that it is 
neither endangered nor threatened. Delisting may be warranted as a 
result of: (1) Extinction; (2) recovery; or (3) a determination that 
the original data used for classification of the species as endangered 
or threatened were in error.
    The petition asserts that delisting of the vernal pool fairy shrimp 
and vernal pool tadpole shrimp is warranted because the original data 
used for classification of the vernal pool crustaceans as threatened 
and endangered were in error. The petition contends the listing was 
erroneous for four general reasons: (1) The original data and studies 
supporting the listing, including the original petitions to list the 
species, had fatal problems; (2) original information relied upon was 
not subjected to independent peer review; (3) new studies indicate that 
California has widespread vernal pool habitat that it is under little 
or no threat; and (4) the original listing information did not 
correctly establish the threats to the species and their vernal pool 
    We do not agree with the petitioner's assertion that the original 
data and studies supporting the listing, including the original 
petitions to list the species, had fatal problems. The petitions and 
information accompanying or cited in them fulfilled the requirements as 

[[Page 18027]]

forth in the Act and our regulations (50 CFR 424.14(b)). The Act 
requires us to base listing decisions on the best scientific and 
commercial data available. We diligently solicited all available 
information on the species through public notice, public comment 
periods, and public hearings to assure this standard was met. The 
petitioner did not identify any information available at the time of 
the listing that was not considered by us in the listing decision.
    Despite the petition's focus on our assessment of historic vernal 
pool habitat, remaining vernal pool habitat, and habitat loss, these 
issues were irrelevant to the decision to list the vernal pool 
crustaceans, since the listing decision was not made as the result of 
historic habitat loss. As stated in the final rule, ``The purpose of 
addressing historic vernal pool losses in the proposed rule was to 
provide a historical context to the Central Valley ecosystem inhabited 
by the four crustacean species. In a legal context, the extent of 
historic habitat loss is of academic interest only, since the five 
factors at 50 CFR 424.11(c) under which species may qualify for listing 
look prospectively to the future rather than retrospectively on the 
past. The relevant issues are whether the current extent of fairy and 
tadpole shrimp habitat is depleted and/or fragmented enough to render 
the species vulnerable to extinction, or whether foreseeable threats 
similarly threaten the species'' (59 FR 48136). Section 4 of the Act, 
and regulations promulgated to implement the listing provisions of the 
Act (50 CFR part 424), set forth procedures for adding species to the 
Federal Lists. A species may be determined to be endangered or 
threatened due to one or more of the five factors described in section 
4(a)(1) of the Act: (1) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; and (5) other natural or manmade 
factors affecting its continued existence.
    The petitioner suggested that estimates of habitat loss, historic 
vernal pool habitat, and remaining vernal pool habitat cited in the 
final rule were incorrect. We reviewed the information cited, and find 
that it represented the best scientific and commercial information 
available on the vernal pool crustaceans and their habitats. We can 
find no evidence to support the petitioner's arguments that the method 
of determining habitat loss in Holland (1988) was incorrect. The 
petitioner does not provide any alternative information about rates of 
habitat loss, or demonstrate this estimate was in error.
    The petitioner argues that the proposed and/or final rules did not 
include random studies that could be extrapolated to unsampled areas or 
information about the locations of vernal pool crustacean populations, 
and questions the use of vernal pool complexes to evaluate vernal pool 
crustacean populations. However, the final rule does include a random 
study (Simovich et al. 1993) and describes the number and location of 
the known populations of the vernal pool crustaceans in adequate detail 
to convey relevant information about their range and distribution. The 
concepts of populations and vernal pool complexes were addressed 
throughout the listing process. The petitioner does not provide any 
evidence to support its claim that the methodology of Simovich et al. 
(1993) was flawed or that the results were not valid, and the 
petitioner does not propose a more effective method of evaluating 
vernal pool crustacean populations in its petition. We do not agree 
with the petitioner's assertion that vernal pool crustaceans are 
present in non-vernal pool habitats. We responded to this comment in 
the final rule and concluded that most of these areas represented 
historic vernal pool complexes that had been degraded by human 
activities (59 FR 48145). The petitioner presented no additional 
information to counter our finding.
    We disagree with the petitioner's statement that the final rule did 
not receive peer review. We conducted extensive peer review on the 
listing of the vernal pool crustaceans. The petitioner did not, and has 
not, provided the names of individuals they believe should have 
reviewed the information contained in the rule, and has not provided 
any evidence that our method of peer review was not effective.
    The petition refers to four pieces of information: Jones and Stokes 
(1994), Sugnet and Associates (1995), a study presented by Dave Smith 
of the Natural Resource Conservation Service at the 1994 Annual 
Conference of the California Association of Resource Conservation 
Districts, and comments made in 1996 by then-State Resources Secretary 
Douglas Wheeler ``at a meeting of a governor's task force.'' The 
petitioner cites these sources to provide additional information on the 
vernal pool crustaceans and their remaining vernal pool habitats. The 
petitioner provided a copy of Sugnet and Associates (1995), and we were 
able to obtain and review a copy of the first source (Jones and Stokes 
1994); we were unable to obtain copies of the latter two sources and 
relied on the petitioner's presentation of the information. Jones and 
Stokes (1994) supports our findings that vernal pool habitats are 
threatened. Sugnet and Associates (1995) and the information attributed 
to Smith do not present new information about the current distribution 
of vernal pool habitats. The amount of remaining vernal pool habitats 
given by the petitioner supports rather than challenges the information 
presented in the final rule. The comments attributed to Wheeler do not 
provide any information about vernal pools or vernal pool crustaceans. 
None of these sources supports the petitioner's claim that vernal pool 
habitat is widespread and not threatened.
    The petitioner states that existing regulatory mechanisms made 
listing the vernal pool crustaceans unnecessary. However, the final 
rule exhaustively describes how existing regulatory mechanisms were not 
sufficient to protect vernal pool crustacean habitats based on 
information in the administrative record. The petitioner notes that 
minimization measures taken for 22 projects mentioned in the final rule 
resulted in a net gain of vernal pools. However, many of these 
minimization measures were developed and implemented after the 
publication of the final rule listing the vernal pool crustaceans as 
threatened and endangered. Without the protection of the Act, many of 
these measures would not have been implemented.
    As discussed in the final rule, we concluded that the vernal pool 
fairy shrimp and vernal pool tadpole shrimp were threatened and 
endangered as the result of urban development, conversion of native 
habitat to agriculture, and extinction by naturally occurring random 
events by virtue of the small, isolated nature of many of the remaining 
populations. The petitioner contends threats to vernal pool crustaceans 
discussed in the final rule were unverified. However, the threats 
described in the final rule were well supported, both with cited 
literature and other information available in the administrative 
record. The petitioner does not provide any data, arguments, or 
evidence to contradict our findings.
    Since the petition to delist the vernal pool fairy shrimp and the 
vernal pool tadpole shrimp was submitted on February 29, 1996, we added 
new information to our files on the status of these species. We 
reviewed that information as requested by the petitioners, including 

[[Page 18028]]

geographic information on the location of vernal pools and fairy 
shrimp, and information generated in section 7 consultations and 
section 10 habitat conservation plans. Except for the discovery of a 
new population of vernal pool fairy shrimp in Jackson County, Oregon 
(Brent Helm, May Consulting Services, in litt. 1998), the current range 
and distribution of these species is as described in the final rule. 
Current information on the status of the vernal pool crustaceans 
indicates these species are not yet recovered. Significant threats 
still exist throughout their ranges, primarily urban development and 
conversion of land to intensive agricultural use. Habitat loss occurs 
from direct destruction and modification of vernal pools due to these 
and other activities, as well as modification of surrounding uplands 
that can alter vernal pool habitats indirectly. Population growth 
projections for California indicate the current trends of agricultural 
conversion and urbanization will continue to threaten the vernal pool 
crustacean species, particularly because areas containing vernal pools 
are primarily privately owned. The existing network of protected areas 
is not yet adequate to permanently protect these species from 
extinction. Continued implementation of the Act is necessary to achieve 
a conservation strategy that includes large areas of permanently 
protected vernal pool crustacean habitats that are not subject to the 
threats of urbanization and agricultural conversion.
    Listing the fairy shrimp and the vernal pool tadpole shrimp as 
threatened and endangered provides for the development of a recovery 
plan, which is being developed. The recovery plan will describe site-
specific actions necessary to achieve conservation and survival of the 
fairy shrimp and the vernal pool tadpole shrimp, and will establish a 
framework for agencies to coordinate activities and cooperate with each 
other in conservation efforts. The plan will also set recovery goals 
and priorities. After the plan is completed and implemented, we will 
continue to evaluate information on the status of and threats to these 
species, and undertake delisting actions as appropriate.
    Thus, based on our review of information on the vernal pool 
crustaceans added to our files since the time of listing and the 
information that the petitioner asked us to review, we determine there 
is not substantial information to indicate that delisting of the vernal 
pool tadpole shrimp and vernal pool fairy shrimp may be warranted.

References Cited

Holland, R.F. 1988. What about this vernal pool business? Pages 351-
355 in J.A. Kusler, S. Daly, and G. Brooks, editors. Urban wetlands, 
proceedings of the National Wetland Symposium. Oakland, California
Jones and Stokes Associates. 1994. Wetland resource planning 
recommendations for Chico, Clovis, Fresno, and surrounding areas of 
Butte and Fresno Counties. Sacramento, California. iv + 73 pp. + 
maps + appendices
Simovich, M., R. Brusca, and J. King. 1993. Invertebrate survey 
1991-1993, PGT-PGE/Bechtel pipeline expansion project. Unpublished 
report to Bechtel Corporation, San Francisco, California.
Sugnet and Associates. 1995. Habitat conservation planning for 
California's Central Valley grassland prairie/vernal pool 
landscapes. National Association of Environmental Professionals 
Conference, Washington, D.C. 4 pp.


    The primary author of this document is Kyle E. Merriam, Sacramento 
Fish and Wildlife Office (see ADDRESSES section above).


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

    Dated: March 30, 2000.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 00-8420 Filed 4-4-00; 8:45am]