Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4925

ANTENNA STANDARDS—Continued

Frequency (MHz) Category

Maximum

beamwidth

to 3 dB

points 1 (included

angle in degrees)

Minimum

antenna

gain (dbi)

Minimum radiation suppression to angle in degrees from centerline of main beam in decibels

5°

to10°

10° to

15°

15° to

20°

20° to

30°

30° to

100°

100° to

140°

140° to

180°

Above 31,300 ............................... A 2.2 38 25 29 33 36 42 55 55

B 2.2 38 20 24 28 32 35 36 36

1 If a licensee chooses to show compliance using maximum beamwidth to 3 dB points, the beamwidth limit shall apply in both the azimuth and

the elevation planes. 2Except for Multiple Address System frequencies listed in §§ 101.147(b)(1) through (b)(4), where omnidirectional antennas may be used. 3Antennas used at outlying stations as part of a central protection alarm system need conform to only the following 2 standards:

(i) The minimum on-beam forward gain must be at least 10 dBi, and

(ii) The minimum front-to-back ratio must be at least 20 dB.

4Omnidirectional antennas may be authorized in the band 2150–2160 MHz.

5These antenna standards apply to all point-to-point stations authorized after June 1, 1997. Existing licensees and pending applicants on that

date are grandfathered and need not comply with these standards. 6These antenna standards apply to all point-to-point stations authorized on or before June 1, 1997.

7Except for antennas between 140° and 180° authorized or pending on January 1, 1989, in the band 10,550 to 10,565 MHz for which minimum radiation suppression to angle (in degrees) from centerline of main beam is 36 decibels. 8These antenna standards apply only to DEMS User Stations licensed, in operation, or applied for prior to July 15, 1993.

9Except for temporary-fixed operations in the band 13200–13250 MHz with output powers less than 250 mW and as provided in § 101.147(q). 10 DEMS User Station antennas in this band must meet performance Standard B and have a minimum antenna gain of 34 dBi. The maximum

beamwidth requirement does not apply to DEMS User Stations. DEMS Nodal Stations need not comply with these standards. 11Except as provided in § 101.147(t).

Note to footnote 11: Stations must employ an antenna that meets the performance standards for Category A, except that in areas not subject

to frequency congestion, antennas meeting standards for Category B may be employed. Note, however, that the Commission may require the

use of high performance antennas where interference problems can be resolved by the use of such antennas. 12The minimum front-to-back ratio shall be 38 dBi. 13 Mobile, except aeronautical mobile, stations need not comply with these standards.

* * * * *

[FR Doc. 97–2083 Filed 1–31–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AC83

Endangered and Threatened Wildlife

and Plants; Determination of

Endangered Status for the San Diego

Fairy Shrimp

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) determines

endangered status pursuant to the

Endangered Species Act of 1973, as

amended (Act), for the San Diego fairy

shrimp (Branchinecta sandiegonensis).

This animal is restricted to vernal pools

in southwestern coastal California and

extreme northwestern Baja California,

Mexico. Less than 81 hectares (ha) (200

acres (ac)) of habitat likely remains. This

species is imperiled by a variety of

factors including: habitat destruction

and fragmentation from urban

development and agricultural

conversion, alterations of vernal pool

hydrology, off-road vehicle (ORV)

activity, and livestock overgrazing. This

rule implements Federal protection and

recovery provisions afforded by the Act.

EFFECTIVE DATE: February 3, 1997.

ADDRESSES: The complete file for this

final rule is available for public

inspection, by appointment, during

normal business hours at the Carlsbad

Field Office, U.S. Fish and Wildlife

Service, 2730 Loker Avenue West,

Carlsbad, California 92008.

FOR FURTHER INFORMATION CONTACT:

Chris Nagano or Susan Wynn at the

above address (telephone 619/431–

9440).

SUPPLEMENTARY INFORMATION:

Background

The San Diego fairy shrimp is a

member of the aquatic crustacean order

Anostraca. The species was first

collected in Poway and Ramona, San

Diego County, in 1962 by J. E. Lynch

(Fugate 1993). Michael Fugate (1993)

described Branchinecta sandiegonensis

based on collections that he and Marie

Simovich made at Del Mar Mesa in San

Diego County. The species is restricted

to vernal pools in coastal southern

California south to extreme

northwestern Baja California, Mexico.

No individuals have been found in

riverine waters, marine waters, or other

permanent bodies of water. All known

localities are below 700 meters (m)

(2,300 feet (ft)) and within 65 kilometers

(km) (40 miles (mi)) of the Pacific

Ocean, from Santa Barbara County south

to northwestern Baja California. The

majority of the vernal pools in this

region, including many which likely

served as habitat for the species, were

destroyed prior to 1990. Between 1979

and 1986, approximately 68 percent of

the privately owned vernal pools under

the City of San Diego’s jurisdiction were

destroyed (Wier and Bauder 1991).

Adult male San Diego fairy shrimp

range in length from 9 to 16 mm (0.4 to

0.6 inches (in.)) and the females are 8 to

14 mm (0.4 to 0.5 in.) long. Mature

individuals have a delicate elongate

body, large stalked compound eyes, no

carapace (shell covering the back), and

11 pairs of swimming legs. They swim

or glide gracefully upside down by

means of complex beating movements of

the legs that pass in a wave-like frontto-back direction. Nearly all species of

fairy shrimp feed on algae, bacteria,

protozoa, rotifers, and bits of organic

matter (Eng et al. 1990, Pennak 1989).

The second pair of antennae in adult

female San Diego fairy shrimp are

cylindrical and elongate, but in the

males they are greatly enlarged and

specialized for clasping the females

during copulation. The females carry

their eggs in an oval or elongate ventral

brood sac.

Five other species of branchinectid

fairy shrimp occur in southern

California (Simovich and Fugate 1992).

The only other branchinectids in

southern California that are similar in
4926 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations

appearance to the San Diego fairy

shrimp are Lindahl’s fairy shrimp

(Branchinecta lindalhi) and the

threatened vernal pool fairy shrimp (B.

lynchi), which occurs in southwestern

Riverside County. Male San Diego fairy

shrimp can be distinguished from males

of other Branchinecta species by the

shape of the second antenna. Female

San Diego fairy shrimp are

distinguishable from other members of

the genus by the shape and length of the

brood sac and by the presence of paired

dorsolateral spines on five of the

abdominal segments (Fugate 1993).

The San Diego fairy shrimp is a

habitat specialist found in small,

shallow vernal pools, which range in

depth from 5 to 30 centimeters (cm) (2

to 12 in.) and in water temperature from

10 to 20 degrees Celsius (C) (50 to 68

degrees Fahrenheit (F)) (Fugate and

Simovich 1992, Hathaway and

Simovich undated). Water chemistry is

one of the most important factors in

determining the distribution of fairy

shrimp (Belk 1977, Branchiopod

Research Group 1996). The San Diego

fairy shrimp appears to be sensitive to

high water temperatures (Branchiopod

Research Group 1996). Hathaway and

Simovich (undated) presented data

indicating that pools located in the

inland mountain and desert regions may

be too cool (below 5 degrees C (41

degrees F)) or too warm (above 30

degrees C (86 degrees F)) for this

species.

Adult San Diego fairy shrimp are

usually observed from January to March;

however, in years with early or late

rainfall, the hatching period may be

extended. The species hatches and

matures within 7 days to 2 weeks

depending on water temperature

(Hathaway and Simovich undated,

Simovich and Hathaway undated). The

San Diego fairy shrimp disappear after

about a month, but animals will

continue to hatch if subsequent rains

result in additional water or refilling of

the vernal pools (Branchiopod Research

Group 1996). The eggs are either

dropped to the pool bottom or remain in

the brood sac until the female dies and

sinks. The ‘‘resting’’ or ‘‘summer’’ eggs

are capable of withstanding heat, cold,

and prolonged drying. When the pools

refill in the same or subsequent rainy

seasons, some but not all of the eggs

may hatch. Fairy shrimp egg banks in

the soil may be comprised of the eggs

from several years of breeding (Donald

1983).

The genetic characteristics of the San

Diego fairy shrimp, as well as ecological

conditions such as watershed

contiguity, indicate that populations of

these animals are defined by pool

complexes rather than by individual

vernal pools (Fugate 1992). Individual

vernal pools occupied by the San Diego

fairy shrimp are most appropriately

referred to as subpopulations.

Vernal pools have a discontinuous

occurrence in several regions of

California (Keeler-Wolf et al. 1995).

Vernal pools form in regions with

Mediterranean climates where shallow

depressions fill with water during fall

and winter rains and then evaporate in

the spring (Collie and Lathrop 1976;

Holland 1976, 1988; Holland and Jain

1977, 1988; Simovich and Hathaway

undated; Thorne 1984; Zedler 1987).

Overbank flooding from intermittent

streams may augment the amount of

water in some vernal pools (Hanes et al.

1990). Downward percolation is

prevented by the presence of an

impervious subsurface layer, such as a

claypan, hardpan, or volcanic stratum

(Holland 1976, 1988). Due to local

topography and geology, the pools are

usually clustered into pool complexes

(Bauder 1986, Holland and Jain 1988).

Pools within a complex are typically

separated by distances on the order of

meters and may form dense,

interconnected mosaics of small pools

or a more sparse scattering of larger

pools.

Temporary inundation makes vernal

pools too wet during the wet period of

the year for adjacent upland plant

species adapted to drier soil conditions,

while rapid drying during late spring

makes pool basins unsuitable for typical

marsh or aquatic species that require a

more permanent source of water.

However, a number of indigenous plant

and aquatic invertebrate species have

evolved to occupy the extreme

environmental conditions found in

vernal pool habitats (Alexander 1976,

Barclay and Knight 1984, Baskin 1994,

Zedler 1987). Fairy shrimp play an

important role in the community

ecology of many ephemeral water

bodies. They are fed upon by waterfowl

(Krapu 1974, Swanson et al. 1974) and

other vertebrates, such as western

spadefoot toad (Scaphiopus hammondi)

tadpoles (Branchiopod Research Group

1996).

Urban and water development, flood

control, highway and utility projects, as

well as conversion of wildlands to

agricultural use, have eliminated vernal

pools in southern California (Jones and

Stokes Associates 1987). Changes in

hydrological pattern, overgrazing, and

ORV use also imperil this aquatic

habitat and the San Diego fairy shrimp.

Human activities that impact the

watershed of vernal pools indirectly

affect this animal. The flora and fauna

in vernal pools or swales can change if

the hydrological regime is altered

(Bauder 1986, 1987). Human-caused

activities that reduce the extent of the

watershed or that alter runoff patterns

(i.e., amounts and seasonal distribution)

may eliminate the animals, reduce their

population sizes or reproductive

success, or shift the location of sites

inhabited by the animals. The vernal

pool habitat type has been ranked in the

California Department of Fish and

Game’s Natural Diversity Data Base in

priority class G1–S1, which denotes

communities in the State of California

that occur over less than 800 ha (2,000

ac) globally.

The largest number of vernal pools in

California, including those inhabited by

the San Diego fairy shrimp, are located

in San Diego County. However, the

cumulative loss of vernal pool habitat in

San Diego County is estimated at 90 to

97 percent (Bauder 1986, Oberbauer and

Vanderweir 1991, Keeler-Wolf et al.

1995). Based on a composite of available

information, the Service estimates that

less than 81 ha (200 ac) of occupied

vernal pool habitat likely remains. Weir

and Bauder (1991) estimate that 70

percent of remaining vernal pool habitat

occurs on military lands. Keeler-Wolf et

al. (1995) concluded that the greatest

recent losses of vernal pool habitat in

San Diego County have occurred in Mira

Mesa, Penasquitos, and Kearney Mesa,

which accounted for 73 percent of all

the pools destroyed in the region during

the 7-year period between 1979 and

1986. Other substantial losses have

occurred in the Otay Mesa area, where

over 40 percent of the vernal pools were

destroyed during the 11-year period

between 1979 and 1990. Vernal pools in

southern coastal Santa Barbara County

are imperiled by development (Ferren

and Pritchett 1988, Keeler-Wolf et al.

1995). Vernal pool habitat was once

extensive on the coastal plain of Los

Angeles County (R. Mattoni and T.

Longcore, in litt., 1996). The loss of

vernal pool habitat is now nearly total

in Los Angeles and Orange counties

(Keeler-Wolf et al. 1995, Ferren and

Pritchett 1988).

Previous Federal Action

On March 24, 1992, the Service

received a petition dated March 16,

1992, from David Hogan, formerly of the

San Diego Biodiversity Project in Julian,

California, and Dr. Denton Belk of the

Lady of Our Lake University in San

Antonio, Texas, to list the San Diego

fairy shrimp as an endangered species.

On August 4, 1994, the Service

published a proposed rule in the

Federal Register (59 FR 39874) to list

the San Diego fairy shrimp as an

endangered species. The proposed rule
Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4927

was the first Federal action on the San

Diego fairy shrimp and also constituted

the 12-month warranted finding that the

petitioned action was warranted, as

required by section 4(b)(3)(B) of the Act.

The processing of this final rule

follows the Service’s fiscal year 1997

listing priority guidance published in

the Federal Register on December 5,

1996 (61 FR 64475). The guidance

clarifies the order in which the Service

will process rulemaking following two

related events: (1) the lifting on April

26, 1996, of the moratorium on final

listings imposed on April 10, 1995

(Public Law 104–6), and (2) the

restoration of significant funding for

listing through passage of the Omnibus

Budget Reconciliation Act passed on

April 26, 1996, following severe funding

constraints imposed by a number of

continuing resolutions between

November 1995 and April 1996. The

guidance calls for giving highest priority

to handling emergency situations (Tier

1) and second highest priority (Tier 2)

to resolving the listing status of the

outstanding proposed listings. This final

rule falls under Tier 2. At this time there

are no pending Tier 1 actions. This rule

has been updated to reflect any changes

in distribution, status and threats since

the effective date of the listing

moratorium. This additional

information was not of a nature to alter

the Service’s decision to list the species.

Summary of Comments and

Recommendations

In the August 4, 1994, proposed rule

and associated notifications, all

interested parties were requested to

submit factual reports or information

that might assist the Service in

determining whether listing is

warranted for this species. Appropriate

State agencies, county governments

(including affected planning

departments), Federal agencies,

scientific organizations, and other

interested parties were contacted and

requested to comment. Notices of the

proposed rule were published in the

San Diego Union Tribune, Orange

County Register, and the Riverside

County Press-Enterprise.

In compliance with Service policy on

information standards under the Act (59

FR 34270; July 1, 1994), the Service

solicited the expert opinions of three

appropriate and independent specialists

regarding pertinent scientific or

commercial data and assumptions

relating to the taxonomy, population

models, and supportive biological and

ecological information for the San Diego

fairy shrimp. Comments received from

these reviewers were supportive of the

proposed listing action and included

corrections to the range of the species,

the spelling of its scientific name, and

additional information on co-occurrence

with other listed vernal pool species.

These revisions have been incorporated

into this final rule.

On August 18, 1994, the Service

received a written request for a public

hearing from the late Dr. William

Hazeltine of Oroville, California. Several

other requests for a public hearing also

were received. As a result, on

September 26, 1994, the Service

published a notice in the Federal

Register (59 FR 49045) announcing the

public hearing and extending the

comment period until October 31, 1994.

The Service conducted a public hearing

on October 19, 1994, at the Radisson

Hotel in Rancho Bernardo, California.

Testimony was taken from 6 p.m. to 8

p.m. Twenty-one individuals presented

testimony on the San Diego fairy

shrimp. During the comment periods,

the Service received 63 comments

(letters and oral testimony), from 1

Federal agency, 1 local agency, and 61

individuals or groups. Several

individuals submitted more than one

comment. Twenty-six comments

supported the proposed listing, 30

opposed it, and 7 were neutral.

The Service has reviewed all of the

written and oral comments received

during the comment period. Several

comments dealt with matters of opinion

or legal history, which are not relevant

to the listing decision. Comments

updating the data presented in the

‘‘Background’’ or ‘‘Summary of Factors

Affecting the Species’’ are incorporated

into those sections of this final rule.

Opposing comments and other

substantive comments concerning the

rule have been organized into specific

issues. These issues and the Service’s

response to each are summarized as

follows.

Issue 1

A number of commenters stated that

a single public hearing was inadequate

to obtain full public input on the

proposal. They requested that public

hearings be held in more than one

location.

Service Response

The Service is obligated to hold at

least one public hearing on a listing

proposal if requested to do so within 45

days of publication of the proposal (50

CFR 424.16(c)(3)). Considering the

limited geographic distribution of the

species, the Service judged that holding

a single public hearing did not cause

undue inconvenience to those wishing

to attend.

Issue 2

Several respondents stated that the

Service’s notification to the public on

the proposal was inadequate.

Service Response

The Service went through an

extensive notification process to make

the public aware of the proposal,

including Federal Register notifications,

letters to specific concerned parties, and

notifications in local newspapers. This

process satisfied the requirements of the

Act and was described at the beginning

of this section.

Issue 3

Some respondents believed that

listing the San Diego fairy shrimp would

result in adverse economic impacts to

hundreds of acres of land and

questioned the value of these animals to

society. Two commenters requested that

an analysis of the economic impact of

listing the species be completed. Other

commenters claimed the San Diego fairy

shrimp is an ‘‘insignificant’’ species and

that listing would interfere with the

natural evolutionary process of

extinction. Conversely, a number of

respondents asserted that opposition to

the listing of the species was based

solely on economic interests. They cited

the ecological and educational value of

vernal pool plants and animals. Four

crustacean biologists noted that the

species is of great scientific value to the

study of biological evolution,

systematics, and ecology.

Service Response

Under section 4(b)(1)(A) of the Act, a

listing determination must be based

solely on the best scientific and

commercial data available. The

legislative history of this provision

clearly states the intent of Congress to

‘‘ensure’’ that listing decisions are

‘‘based solely on biological criteria and

to prevent non-biological criteria from

affecting such decisions’’ (H.R. Rep. No.

97–835, 97th Cong. 2d Sess. 19 (1982)).

As further stated in the congressional

report, ‘‘economic considerations have

no relevance to determinations

regarding the status of species.’’ Because

the Service is specifically precluded

from considering economic impacts in a

final decision on a proposed listing, the

Service does not consider the possible

economic consequences of listing the

San Diego fairy shrimp. Although a

variety of opinions likely exist as to a

particular species’ contribution to

society, including its aesthetic,

scientific, or other significance, this

issue is not among the five factors upon

which a listing determination is based.
4928 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations

Issue 4

One commenter stated that the listing

of the San Diego fairy shrimp will result

in a ‘‘taking’’ of their private property in

clear violation of their constitutional

rights.

Service Response

Listing under the Act does not imply

that private land would be confiscated

or taken without just compensation. The

San Diego fairy shrimp will be protected

under section 9 of the Act, which

prohibits the take of this animal.

Recovery planning for the species may

include recommendations for land

acquisition or easements involving

private landowners. These efforts would

only be undertaken with the

cooperation of the landowner. In the

majority of cases, private landowners

are not precluded from using their land

in the manner originally intended.

Executive Order 12630, Government

Actions and Interference with

Constitutionally Protected Property

Rights, requires that a Takings

Implications Assessment (TIA) be

conducted ‘‘as a part of any final

rulemaking to evaluate the risk of and

strategies for avoidance of the taking of

private property.’’ However, the

Attorney General has issued guidelines

to the Department of the Interior

(Department) regarding TIAs. The

Attorney General’s guidelines state that

TIAs used to analyze the potential for

Fifth Amendment ‘‘taking claims’’ are to

be prepared after, rather than before, an

agency makes a restricted discretionary

decision. In enacting the Act, Congress

required the Department to list a species

based solely upon scientific and

commercial data indicating whether or

not the species is in danger of

extinction. The Service may not

withhold a listing based upon economic

concerns. Therefore, even though a TIA

may be required, a TIA for a listing

action is finalized only after the final

determination is made regarding

whether to list the species.

Issue 5

Three respondents stated that critical

habitat should be designated for the San

Diego fairy shrimp.

Service Response

The Service believes that the risk

posed by designating critical habitat at

this time outweighs the potential

benefits. As discussed in Factors ‘‘A’’

and ‘‘E’’ under the ‘‘Summary of Factors

Affecting the Species’’ section below,

the San Diego fairy shrimp could be

adversely affected by acts of vandalism.

The Service is aware of vernal pools

apparently containing suitable habitat

for this animal that were destroyed to

escape regulatory requirements.

Designation of critical habitat for the

San Diego fairy shrimp is not prudent

and would increase the degree of threat

facing the species. Further discussion is

contained in the ‘‘Critical Habitat’’

section below.

Issue 6

One commenter claimed that the

petition was not valid because, pursuant

to 50 CFR 424.14(b)(2)(I), the document

was submitted prior to the publication

of the scientific paper naming the

species.

Service Response

Pursuant to 50 CFR 424.14(b)(2)(I), a

petition must contain the scientific and

common name of the species. The

petition for the listing of the San Diego

fairy shrimp contained this information.

Although the document was received

prior to publication of the formal

description of the animal, the petition

included sufficient information,

including a pre-publication copy of the

paper, to adequately identify the

species.

Issue 7

Two commenters stated that

development of areas containing the San

Diego fairy shrimp should be allowed to

proceed because this is the only way to

provide an economic incentive for

private landowners to protect the

habitat of this animal.

Service Response

The Service recognizes that while

some populations of the San Diego fairy

shrimp located on private lands are

protected by their owners, significant

privately owned areas containing the

animal and its habitat are not secure

against adverse impacts. Between 1979

and 1986, approximately 68 percent of

the privately owned vernal pools under

the City of San Diego’s jurisdiction were

destroyed (Weir and Bauder 1991).

Please refer to Factor ‘‘A’’ below for an

expanded discussion on landownership

patterns and protection for the species.

Issue 8

Two commenters stated that the San

Diego fairy shrimp should not be listed

under the Act because the animal is

indirectly protected by other taxa

inhabiting vernal pools that have been

designated as endangered or threatened

species. Another commenter said that

only the protection of ecosystems rather

than species-by-species listing will

protect the San Diego fairy shrimp and

its vernal pool habitat.

Service Response

The other vernal pool taxa that have

been listed under the Act have a more

restricted range, inhabit different

geographic areas, or different vernal

pool habitats (e.g., deeper pools) than

the San Diego fairy shrimp. In addition,

although one purpose of the Act is to

conserve ecosystems upon which

endangered and threatened species

depend, species rather than ecosystems

are listed under the Act. Please see

Factor ‘‘D’’ below for further discussion.

Issue 9

Two commenters stated that the

Service had not obtained the review of

the proposed listing by three experts.

One of these commenters, in his

discussion of the motives of one

petitioner and two of his scientific

colleagues, questioned whether the

Service had ‘‘accounted for the bias on

the part of the listing proponents.’’

Service Response

In accordance with the Service’s

policy on peer review, the proposed rule

for the San Diego fairy shrimp was

reviewed by at least four vernal pool

specialists, including three experts other

than the individuals referred to by the

commenter, as well as by all interested

reviewers during the public comment

period on the proposed rule. Although

the Service acknowledges the concern of

the commenter regarding the parties

expressing contrary views, the final

decision to list the San Diego fairy

shrimp is based on the best scientific

and commercial information available,

which includes peer review by

acknowledged authorities.

Issue 10

Three commenters requested that the

Service delay or not list the San Diego

fairy shrimp because they felt that there

is insufficient information on the

distribution and abundance of the

animal. Some of these parties contended

that the data are lacking because the

species was not formally described until

1993. One commenter stated that the

status of the species in Ventura, Los

Angeles, and Orange counties is not

clear. Expressing a contrary view, a

recognized crustacean biologist stated

that the fairy shrimp fauna of southern

California is well known. Two biologists

noted that misidentification of the

species may have caused confusion

regarding the distribution of the San

Diego fairy shrimp. Four biologists

commented that the species has specific

ecological and biological requirements

and the animal has a restricted

geographic range.
Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4929

Service Response

The Service concludes, as detailed in

the ‘‘Background’’ and ‘‘Summary of

Factors’’ sections, that sufficient

biological data exist to warrant listing of

the San Diego fairy shrimp under the

Act. Sampling conducted at various

locations and intensities between 1962

and 1993 by biologists familiar with

fairy shrimp and their habitats provided

adequate information on the

distribution, habitat requirements, and,

most importantly, threats to the San

Diego fairy shrimp to warrant the

present action. Fugate’s formal

description of the species (Fugate 1993)

contains records of the San Diego fairy

shrimp that were collected in 1962. The

species has not been found in the few

extant vernal pools in Ventura and Los

Angeles counties, and it has an

extremely limited distribution in Santa

Barbara and Orange counties, in part

based on the prevailing lack of suitable

habitat. The majority of the extant

populations of the San Diego fairy

shrimp are found in San Diego County.

The listing process includes an

opportunity for the public to comment

and provide information that is

evaluated and considered by the Service

before making a final decision. The

additional data provided by respondents

during the comment period, the report

by the Branchiopod Research Group

(1996), and other appropriate

information available to the Service

have been incorporated into this final

rule. None of these sources provide

evidence indicating that this taxon is

not endangered. These materials

represent the best available scientific

and commercial information upon

which to base a listing decision.

Issue 11

Several commenters stated that the

San Diego fairy shrimp does not warrant

listing because of its ‘‘widespread’’

distribution.

Service Response

After reviewing all available data, the

Service concludes the San Diego fairy

shrimp is found in less than 81 ha (200

ac) of vernal pool habitat and is not a

widespread species. The animal is

restricted to vernal pools in coastal

southern California and extreme

northwestern Baja California, Mexico.

As described elsewhere in this final

rule, the San Diego fairy shrimp is

imperiled by habitat loss from

construction activities (urban

development, highway construction,

etc.) and degradation (conversion of

land to agricultural use, ORV use, and

changes in hydrological patterns in

areas it inhabits).

Issue 12

Two commenters claimed that the

data on the San Diego fairy shrimp do

not demonstrate a historic and

consistent decline in population levels.

Service Response

Relatively little information is

available to reconstruct the distribution

of the San Diego fairy shrimp prior to

the loss of its vernal pool habitat that

began in the 1800’s. However, the

Service is required to evaluate species

based on current and likely future

threats to their status. In all likelihood,

the species’’ status over time probably

paralleled the region-wide trend in

vernal pool losses. As discussed in this

final rule, 97 percent of its vernal pool

habitat has been destroyed, and all

extant populations of this endemic

vernal pool species face severe,

imminent threats that could result in

substantial habitat losses and

extirpations in the future.

Issue 13

Several commenters noted that the

proposed rule incorrectly stated that the

San Diego fairy shrimp is found in more

than 70 vernal pools located in 11

vernal pool complexes.

Service Response

After reviewing all available

information, the Service has determined

that the San Diego fairy shrimp inhabits

a minimum of 25 vernal pool complexes

in San Diego, Orange, and Santa Barbara

counties, and Baja California. Although

the species inhabits a number of vernal

pool complexes that were not included

in the proposed rule, the Service’s

decision to list the animal is based on

significant threats associated with past

and likely future habitat loss and

fragmentation, rather than solely on the

basis of numbers of inhabited vernal

pools or vernal pool complexes.

Furthermore, based on available

information, the Service estimates that

less than 81 ha (200 ac) of habitat

remain that support the species. Please

see Factor ‘‘A’’ for a discussion of the

status of the locations inhabited by the

animal.

Issue 14

One commenter asserted that there are

insufficient data upon which to

determine the potential habitat of the

San Diego fairy shrimp in California and

Baja California, Mexico. This

commenter suggested that the Service

survey for the species throughout

southern California, as well as the entire

Baja California peninsula. In addition,

the respondent said that the Service

lacks the data to complete a ‘‘reasoned

analysis’’ of the historic and potential

loss of the vernal pool habitat of the

animal and requested specific

information on potential development

projects to allow public review and

comment on threats to the species posed

by these proposed actions.

Service Response

Potentially suitable conditions for

vernal pools in Baja California exist

along the coast from the United States/

Mexico border south to about 30 degrees

north Latitude. Only a few vernal pools

are known from this area because of the

typically mountainous terrain and

relative absence of plateaus and mesas.

Those present are subject to adverse

human impacts. Sonoran Desert habitat

is found south of 30 degrees north

Latitude (Shreve and Wiggins 1986,

Wiggins 1980); ephemeral wetlands in

that region do not provide suitable

conditions for the San Diego fairy

shrimp. Please see Factor ‘‘A’’ for a

discussion of the specific threats to each

of the locations inhabited by the San

Diego fairy shrimp in California and

northwestern Baja California. Copies of

the Environmental Impact Statements

for individual development projects

impacting occupied locations are

available for public review at the

Carlsbad Field Office (see ADDRESSES

section).

Issue 15

One commenter stated that 90 percent

of the remaining vernal pool habitat in

San Diego County is located on U.S.

Navy and Marine Corps bases and,

therefore, is protected. Two commenters

noted that proactive management

programs for vernal pools have been

implemented at the affected military

facilities. However, three commenters

noted that vernal pool habitat for the

San Diego fairy shrimp has been

degraded by ORVs and trash dumping at

Miramar Naval Air Station and Marine

Corps Base Camp Pendleton.

Service Response

Weir and Bauder (1991) state that 70

percent of the remaining vernal pools

occur on military lands. The largest

remaining block of habitat for the San

Diego fairy shrimp is located at Miramar

Naval Air Station. This site contains

approximately 26 ha (65 ac) of vernal

pools, exclusive of associated

watersheds. The base is owned by the

U.S. Navy and will be realigned to the

U.S. Marine Corps on October 1, 1997.

Furthermore, proposed re-alignment

related activities will impact
4930 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations

approximately 4 percent of the vernal

pools at the air station. (Department of

the Navy 1996). The U.S. Navy and the

U.S. Marine Corps have stated that they

do not have plans to permit a National

Wildlife Refuge overlay of the vernal

pools, and have not prepared a

management plan for the vernal pools

(Department of the Navy 1996). The U.S.

Marine Corps has not yet prepared a

management plan for the vernal pools at

Camp Pendleton. Therefore, the

protection of the San Diego fairy shrimp

at the two bases containing the largest

blocks of extant vernal pools within the

range of the species is not assured.

Issue 16

One commenter questioned the

accuracy of the references (Bauder 1986,

Oberbauer 1990) which provided the

amount of historic and extant vernal

pools. In addition, the commenter stated

that some of the information was only

relevant to San Diego County and not

the remainder of the species’ range in

California and Baja California. The

commenter did not provide data to

support his assertion that the

information utilized by the Service was

incorrect.

Service Response

The Service has determined that

Bauder (1986) and Oberbauer (1990)

based their conclusions on data

gathered utilizing acceptable scientific

methods. Except for a few remnant sites,

vernal pools in Santa Barbara, Ventura,

Los Angeles, and Orange counties have

been destroyed.

Issue 17

Two commenters asserted that the

San Diego fairy shrimp is not restricted

to vernal pools because individuals

have been observed in man-made nonvernal pool habitats such as roadside

ditches, mud puddles, and road ruts.

The City of San Diego provided

information describing vernal pools

inhabited by the animal that formed on

soil placed on top of the Miramar

Landfill. Expressing a contrary view,

five biologists stated that the San Diego

fairy shrimp is restricted to vernal

pools. They reported that the ‘‘artificial’’

habitats are either degraded vernal pools

or areas subject to overflow from extant

pools during periods of high water.

Service Response

The Service has carefully reviewed

the assertion that the San Diego fairy

shrimp is found in non-vernal pool

habitat. A number of the sites that

served as the basis for this belief have

been examined by Service biologists and

were found to represent degraded vernal

pool habitat. Some of these records,

such as roadside ditches, scraped areas,

and airport runoff ditches likely

represent remnant vernal pool habitat or

are part of the swale systems connected

to vernal pools, a fact reiterated in the

oral comments of a vernal pool expert

during the public hearing. Most of these

disturbed habitats are also imperiled by

urban development.

The record of San Diego fairy shrimp

in ‘‘mud puddles’’ at El Camino

Memorial Park in Mira Mesa likely

represents degraded vernal pool habitat.

The animals that inhabit the Miramar

Landfill site were likely distributed into

this area from adjacent areas with extant

vernal pools, or eggs were contained in

material that was scraped from an area

that previously contained vernal pools

and was used to cover the landfill.

In addition, the accurate

identification of fairy shrimp is

extremely difficult because the

morphological characters that

differentiate the species are often subtle

and can be misinterpreted by biologists

not specifically trained in fairy shrimp

identification. Widespread common

species, such as Lindahl’s fairy shrimp,

can be mistaken for other fairy shrimp

species, including the San Diego fairy

shrimp. Some of the records of the San

Diego fairy shrimp in non-vernal pool

habitats may be the result of such

misidentifications.

Issue 18

Three commenters questioned the

scientific basis upon which the

taxonomy of the San Diego fairy shrimp

is based. Two of these parties, citing the

lack of unambiguous genetic data,

claimed that it is unclear that the animal

is a distinct species. However, a

recognized crustacean biologist stated

that the San Diego fairy shrimp is

distinct. This biologist noted that the

genetics of the genus had been

examined in detail by Fugate (1992).

Service Response

Using the best and most recent

systematic information from a number

of reliable sources, including Eng et al.

(1990), Fugate (1992, 1993), and other

recognized experts on fairy shrimp

taxonomy, the Service adopts the

prevailing scientific consensus and

maintains that the San Diego fairy

shrimp is a distinct species.

Issue 19

One commenter questioned the threat

to the San Diego fairy shrimp posed by

ORV activity, trash dumping, and

alterations of vernal pool hydrology.

This commenter felt that trash dumping

and ORV use could benefit the animal

because trash could provide shade and

ORVs could serve as a dispersal agent.

This same party questioned whether

fragmentation of the vernal pool

complexes resulting from human

actions poses a threat to the San Diego

fairy shrimp because the complexes

have historically constituted fragmented

habitat. In contrast, two biologists noted

that the species is imperiled by

chemicals associated with trash

dumping, such as motor oil or

pesticides, and by the physical damage

or destruction of the vernal pools

through alteration in hydrology caused

by urban development, ORVs, and other

actions.

Service Response

After reviewing all available data, the

Service has determined that habitat

fragmentation, trash dumping, ORV use,

and alterations in the hydrology of the

vernal pool habitat of the San Diego

fairy shrimp imperil the species. Please

refer to Factors ‘‘A’’ and ‘‘E’’ for an

expanded discussion of these threats.

Issue 20

One commenter stated that cattle

grazing does not affect the San Diego

fairy shrimp, but did not present

supporting data.

Service Response

The Service recognizes and

acknowledges that low to moderate

levels of livestock grazing likely have

minimal impacts on the San Diego fairy

shrimp. However, overgrazing in areas

containing the animal is likely to be

detrimental. High livestock densities

may result in excessive physical

disturbances, such as trampling, and

changes in pool water chemistry and

water quality. Trampling of pool

margins and thinning of vegetation from

overgrazing may increase pasture runoff,

leading to erosion and increased

siltation of vernal pool habitat.

Issue 21

One commenter stated that a

minimum viable population analysis for

the San Diego fairy shrimp must be

completed prior to listing because an

analysis based on the loss of the vernal

pool habitat of the species does not

provide a basis upon which to evaluate

the status of the animal.

Service Response

A minimum viable population

analysis, while potentially useful for

developing a recovery plan for the

species (Shaffer 1990), is not required to

determine whether a taxon should be

listed, nor does it address foreseeable

deterministic threats to species.
Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4931

Issue 22

Three respondents contended that the

proposed rule did not accurately reflect

the success of vernal pool ‘‘creation’’

efforts. The commenters claimed that

artificial vernal pools were successful

and were adequate mitigation for

adverse impacts to vernal pools

resulting from urban development.

Service Response

In a review of 21 vernal pool creation

projects located throughout California,

Ferren and Gervitz (1990) concluded

that no conclusive data exist to

substantiate the hypothesis ‘‘that vernal

pools can be restored or created to

provide functional values within the

range of variability of natural pools.’’

The only known vernal pool creation

experiment conducted in southern

California that specifically investigated

fairy shrimp was a failure (Branchiopod

Research Group 1996). Although some

individuals (Sugnet and Associates et

al. 1992) have claimed complete success

or some degree of success for vernal

pools in the Central Valley of California,

these conclusions are generally based on

anecdotal studies and the persistence of

fairy shrimp for only a short period of

time (e.g., 3 years or less). Moreover, the

principle pool creation technique (i.e.,

relocation of soil from excavated pool

bottoms rather than inoculation with a

known quantity of eggs) and a lack of

scientifically designed monitoring do

not allow for collection of the necessary

data to determine the long-term

population viability of transplanted

species (Branchiopod Research Group

1996).

In a study of the preservation and

management of vernal pools (Jones and

Stokes Associates 1990), the researchers

concluded that the ‘‘science of vernal

pool creation is still in its infancy and

is primarily an experimental mitigation

technique.’’ Environmental

requirements, not dispersal, are likely

the limiting factors in the distribution of

fairy shrimp (U.S. Fish and Wildlife

Service (USFWS) 1994). The San Diego

fairy shrimp requires more restrictive

environmental conditions than more

widely distributed taxa (Branchiopod

Research Group 1996). No demonstrated

long-term populations of the San Diego

fairy shrimp exist in artificial habitats.

Artificially created habitats may also

increase the potential for hybridization

between the San Diego fairy shrimp and

other more widespread species. For

example, Lindahl’s fairy shrimp is a

widespread species found in western

North America that occurs in a wide

array of habitats, ranging from pools

whose salinity is high enough to

support brine shrimp (Artemia sp.) to

snow melt pools. Poor planning,

careless construction, or haphazard

placement of the substrate during vernal

pool creation may enhance conditions

for species like Lindahl’s fairy shrimp.

Laboratory studies have shown that

Lindahl’s fairy shrimp and the San

Diego fairy shrimp readily hybridize in

the laboratory and produce viable first

generation hybrids (Fugate 1992,

Branchiopod Research Group 1996).

Evidence suggests that hybridization

between other fairy shrimp has occurred

in the field due to human actions. Belk

(1977) reported that the westward

dispersal of a desert fairy shrimp

(Streptocephalus dorothae) from Texas

and New Mexico across extensive

expanses of arid land into Arizona may

be due to the cattle ponds and livestock

watering holes that were built in the

region during the past century. Wiman

(1979) reported that viable hybrid

offspring are produced by this species

and Mackin’s desert fairy shrimp (S.

mackini), a resident species in Arizona.

The San Diego fairy shrimp may be

adversely impacted as a result of actions

taken to create and/or restore vernal

pools (Branchiopod Research Group

1996). Scraping of the vernal pool

bottoms for plant seed collection can

damage or destroy fairy shrimp eggs,

and heat or humidity during storage can

mold or kill eggs. Created or modified

vernal pools may hold water for

inappropriate lengths of time, at

inappropriate depths or temperatures.

Given these uncertainties associated

with vernal pool creation, the Service

maintains that transplanting target

species (e.g., listed, proposed, and

candidate species) into artificial pools

cannot be considered adequate

replacement for the loss of occupied

vernal pool habitat. Even if such

transplantation of the San Diego fairy

shrimp and creation of its habitat were

documented to be a proven procedure

rather than an evolving problematic

venture, artificial pool creation for the

species would not fulfill the mandates

of section 2 of the Act, which require

the Service to develop programs that

conserve the ecosystems upon which

listed species depend. As discussed

elsewhere in this rule, natural habitat

throughout the range of the San Diego

fairy shrimp has been damaged or

eliminated. As a result, the Service

concludes that the continued survival

and recovery of the San Diego fairy

shrimp can only be assured at this time

by the preservation and enhancement of

extant vernal pools and their associated

watersheds.

Issue 23

Nine respondents alleged that

Federal, State and local regulatory

processes provide adequate protection

for the crustaceans. Several of these

commenters said that listing would

directly affect agricultural, industrial

and commercial development in areas

that have been meticulously planned

and subject to State laws such as the

Natural Community Conservation

Planning (NCCP) Act and the California

Environmental Quality Act (CEQA).

Some commenters noted the ‘‘no net

loss’’ wetlands policies of several State

and county agencies, while others cited

section 404 of the Clean Water Act as

providing protection for this habitat.

Two commenters, citing two

development projects in San Diego

County, claimed that significant

portions of the vernal pools at these

project sites will be preserved. These

commenters stated that these projects

are representative of the level of

preservation afforded vernal pool

habitat in the San Diego area.

Expressing a contrary position,

several other commenters noted that

Federal, State, and local laws have been

ineffective in providing protection for

the species. One commenter noted that

the City of San Diego has approved the

California Terraces project on Otay

Mesa, and has advanced other projects

impacting San Diego fairy shrimp

habitat through the CEQA planning

process without adequate mitigation for

the species.

Service Response

Based on an examination of the

available information, the Service has

determined that proposed and on-going

damage or destruction of vernal pools in

southern California caused by urban and

agricultural development is prevalent

despite existing Federal, State, and local

regulations. Existing levels of protection

are not adequate to assure the survival

of the San Diego fairy shrimp. For

example, while vernal pool habitat has

been preserved permanently for some

projects through special conditions of

permits authorized under section 404 of

the Federal Clean Water Act, significant

areas of vernal pool habitat continue to

be destroyed in spite of the U.S. Army

Corps of Engineers’ (Corps)

jurisdictional authority to regulate these

wetlands under the Clean Water Act.

Between 1993 and 1996, the Service

identified 15 unauthorized projects in

San Diego and Orange counties that

destroyed or damaged a minimum of 40

vernal pools exclusive of watersheds

(Susan Wynn, USFWS, unpub. notes).

The projects were not authorized
4932 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations

because landowners either were not

required or failed to comply with the

regulatory requirements of the section

404 permitting process. Please see

Factor ‘‘D’’ for a detailed discussion of

the inadequacy of existing regulations.

Issue 24

Five commenters stated that the San

Diego Multiple Species Conservation

Program (MSCP) plan and the Multiple

Habitat Conservation Plan (MHCP) that

are being prepared pursuant to the State

of California’s NCCP Act of 1991 will

adequately protect the San Diego fairy

shrimp and its vernal pool habitat in

San Diego County. For this reason, the

commenters urged the Service not to list

the animal. Expressing a contrary view,

one respondent stated that the MSCP

and the MHCP will not adequately

protect the animal or its habitat. This

same respondent noted that no plan that

will protect the San Diego fairy shrimp

has been adopted by any local

government in southern California.

Service Response

The San Diego fairy shrimp is

proposed to be covered under the MSCP

plan, which is currently in the final

stages of the National Environmental

Policy Act public review process. The

Service anticipates making a decision

on ‘‘incidental take’’ (section

10(a)(1)(B)) permit issuance in April

1997. The Service has determined that

72 percent of the remaining vernal pool

habitat within the MSCP planning area

is located in the proposed program

preserve. However, less than 30 percent

of the total San Diego fairy shrimp

habitat is protected within the MSCP

planning area. Additional important

habitat for this species occurs on

military lands, such as Miramar Naval

Air Station, but this land is not included

as part of the MSCP. Military lands

contain the largest remaining blocks of

vernal pool habitat for the San Diego

fairy shrimp, approximately 70 percent

of the total habitat of the species.

Conservation planning for listed species

on military lands will be accomplished

through separate avenues, such as

formal consultations pursuant to section

7 of the Act and through the Sikes Act

agreements. It will be the responsibility

of the Service to ensure that these

conservation planning activities are

consistent with the MSCP or MHCP

should these plans be approved.

Preserve management plans must

include specific measures to protect

against detrimental edge effects to the

San Diego fairy shrimp. The MHCP is

still in development and the precise

configuration and conservation strategy

have not been determined. Therefore the

protections that would be afforded the

San Diego fairy shrimp by this plan

cannot yet been determined. Please see

Factor ‘‘D’’ for a discussion of the

inadequacy of these regulatory

mechanisms.

Summary of Factors Affecting the

Species

After a thorough review and

consideration of all available

information, the Service has determined

that the San Diego fairy shrimp should

be classified as an endangered species.

Procedures found at section 4 of the Act

and regulations implementing the

listing provisions of the Act (50 CFR

part 424) were followed. A species may

be determined to be an endangered or

threatened species due to one or more

of the five factors described in section

4(a)(1). These factors and their

application to the San Diego fairy

shrimp (Branchinecta sandiegonensis

Fugate) are as follows.

A. The Present or Threatened

Destruction, Modification, or

Curtailment of Their Habitat or Range

The San Diego fairy shrimp is

imperiled because its vernal pool

habitat is being damaged or destroyed

by a variety of human-caused activities,

primarily urban development and

agricultural conversion. Habitat loss

occurs from destruction and

modification of vernal pools due to

filling, grading, discing, leveling, and

other activities, as well as the

modification of surrounding uplands

that alters vernal pool watersheds.

Rapid urbanization of areas

containing vernal pools poses a

significant threat to the San Diego fairy

shrimp. Nearly all of the vernal pools

that occurred throughout the range of

the species from southern Santa Barbara

County to extreme northwestern Baja

California have been eliminated (KeelerWolf et al. 1995). The majority of extant

vernal pools located in the range of the

San Diego fairy shrimp are found in San

Diego County. According to Bauder

(1986), 838 vernal pools comprising 283

ha (698 ac) were eliminated by urban

development between 1979 and 1986.

Adequate mitigation measures were not

implemented for these areas. In general,

the growth rate of the human population

and associated urban development in

southern California and northwestern

Baja California is equal to or exceeds

that of any other region in California.

San Diego is one of the fastest growing

counties in the nation, with a

population increase of 349 percent

between 1950 and 1990 (California

Department of Finance 1993). The

population growth rate that is predicted

could further fragment and degrade the

remaining vernal pool habitat of the San

Diego fairy shrimp.

The following is a discussion of the

status of the locations that contain

suitable vernal pool habit for the San

Diego fairy shrimp.

San Diego County

Tijuana Slough National Wildlife Refuge

The vernal pool watershed is

approximately 2 ha (5 ac) in size.

Construction of an improved fence on

the United States/Mexican border has

apparently eliminated trampling caused

by persons crossing the border illegally.

Proctor Valley

This small vernal pool complex is

located in an isolated valley (Bauder

1986). The vernal pools are highly

disturbed by grazing and ORV traffic

(Julie Vanderweir, USFWS, pers. obs.).

The San Diego fairy shrimp has been

documented at this site. The vernal

pools in Proctor Valley are part of the

MSCP.

Otay Mesa

The vernal pools at this site are

located in several disjunct locations

across the southernmost mesa in

California. Otay Mesa extends from just

south of the Otay River, across the

international border into Mexico, west

to Interstate 805, and east to the

foothills below Otay Mountain.

Historical and ongoing agricultural

activities, such as cattle ranching and

dry land farming, have continually

disturbed this area and have destroyed

78 percent of the vernal pools once

located on Otay Mesa. The remaining

vernal pools are scattered, with the only

sizeable areas of vernal pool habitat

occurring on the northeastern corner of

Otay Mesa. The San Diego fairy shrimp

has been documented at this site (H.

Wier and J. Brown, in litt., 1994).

Portions of the vernal pool complexes

on Otay Mesa are part of the MSCP and

are also being considered for inclusion

in the proposed San Diego National

Wildlife Refuge. Otay Mesa currently is

farmed for truck crops and barley and is

grazed. However, significant portions

have been or are proposed for industrial

and residential development in the Otay

Mesa Community Plan. This

development is closely associated with

development projects that have been or

will be implemented on the United

States/Mexican border. A proposed toll

road would facilitate the development

of significant portions of Otay Mesa.

On west Otay Mesa, the proposed

California Terraces residential project

will eliminate significant amounts of

vernal pool habitat for the San Diego
Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4933

fairy shrimp. The Final Environmental

Impact Report for this project has been

approved by the City of San Diego.

Other proposed projects, such as State

Highway 905, Robinhood Ridge, Hidden

Trails, and Santee Investments also

would adversely impact vernal pool

habitat for this animal.

On east Otay Mesa, the proposed Otay

Ranch and State Highway 125 would

impact approximately 9,300 ha (23,000

ac), including substantial areas

containing habitat for the San Diego

fairy shrimp. Some of the vernal pools

located within these project areas are

located in a proposed biological reserve.

However, the projects as proposed

would eliminate the majority of the

habitat for the San Diego fairy shrimp.

On-going actions by the U.S. Border

Patrol on Otay Mesa continue to

significantly impact vernal pools by

ORV use and associated law

enforcement activities. Unauthorized

discing and grading on Otay Mesa also

has impacted vernal pool habitat for the

San Diego fairy shrimp.

Otay Lakes

These vernal pools consist of several

scattered complexes, north and south of

the lake, not connected by any

continuous mesa system (Bauder 1986).

Four vernal pool complexes at Otay

Lakes are included in the MSCP and are

proposed to be included within the San

Diego National Wildlife Refuge. These

pools are owned by the City of San

Diego. A proposed resort would

eliminate all vernal pools that are

located north of the lake.

Sweetwater Reservoir

The vernal pools occur on the

southwestern edge of Sweetwater

Reservoir in southern San Diego County.

These pools are one of the few

remaining examples of isolated vernal

pool habitat between the central mesas

of San Diego and Otay Mesa to the south

(Bauder 1986). The surrounding area

has been brushed or grazed and consists

primarily of disturbed ruderal

vegetation. Portions of the area

containing vernal pools have been

proposed for urban development. Some

of the vernal pool complexes at

Sweetwater Reservoir are included in

the MSCP and are proposed to be

included within the San Diego National

Wildlife Refuge. However, the extension

of State Route 125 may impact a portion

of these vernal pools.

Mission Trails County Park

The small vernal pool complex at this

site is inhabited by the San Diego fairy

shrimp. The vernal pools are subject to

damage caused by bikes, trash dumping,

and unrestricted hiking.

Linda Vista

Museum specimens of the San Diego

fairy shrimp are known from Linda

Vista. However, these vernal pools have

been eliminated by urban development.

Kearney Mesa

The vernal pools on Kearney Mesa

originally covered approximately 38

square km (15 square mi). However, the

majority of this region has been

developed for residential and

commercial uses.

The largest and most contiguous block

and number of vernal pools in southern

California and northwestern Baja

California occurs on Miramar Naval Air

Station. Weir and Bauder (1991) state

that 70 percent of the remaining vernal

pools occur on military lands.

Approximately 26 ha (65 ac) of vernal

pools are located on the Miramar Naval

Air Station. These pools exhibit a wide

variety of conditions from disturbed to

pristine, and vary greatly in size, depth,

type and number of cobbles, soil type,

hydrological characteristics, and species

composition. The San Diego fairy

shrimp has been estimated to inhabit 80

percent of the vernal pools at the base

(Branchiopod Research Group 1996).

This military base will be transferred

from the U.S. Navy to the U.S. Marine

Corps (Department of the Navy 1996).

The Marine Corps has proposed

construction of additional helicopter

landing fields, ammunition bunkers,

and other facilities that may adversely

affect areas containing habitat for the

San Diego fairy shrimp.

The vernal pools at Montgomery Field

occur within the approach path of the

airport. This vernal pool complex is in

a heavily urbanized area surrounded by

the airport, research and office

developments, and Interstate 15 and

State Route 163. Three separate areas of

airport land encompass the watershed

containing 138 vernal pools. Although

this site has been set aside for the

protection of the vernal pools, in

February 1995 unknown persons dug

trenches which resulted in the draining

of some high-quality pools. The vernal

pools at Montgomery Field are included

in the MSCP and are proposed to be part

of the San Diego National Wildlife

Refuge.

The construction of a sludge

processing facility and mounding of

excess dirt at the Miramar Landfill, as

well as on-going landfill maintenance

have eliminated vernal pools inhabited

by the San Diego fairy shrimp. The

proposed extension of Nobel Drive

would damage or eliminate the vernal

pools containing habitat for the species.

Del Mar Mesa, Lopez Ridge, and Mira

Mesa

The vernal pools found on Del Mar

Mesa are part of a large mesa of

approximately 36 square km (14 square

mi). Approximately 120 vernal pools

with a high diversity of sizes, depths,

surface configuration, and soil type

occur in this area (Bauder 1986). The

San Diego fairy shrimp has been

documented in vernal pools at this site

(H. Wier and J. Brown, in litt., 1994).

Some of the vernal pool complexes at

Del Mar Mesa are included in the MSCP

and are proposed to be included within

the San Diego National Wildlife Refuge.

Residential development occurs to the

east, agriculture consisting of row-crop

dry farming occurs in McGonigle

Canyon, and undeveloped private lands

occur to the west.

The City of San Diego’s proposed

Future Urbanizing Area Neighborhood

8A project would result in the damage

or loss of several vernal pools on Del

Mar Mesa. Some of these vernal pools

have recently been scraped. The

construction of two major roads is

proposed in the immediate vicinity of

the California Department of

Transportation vernal pool reserve. If

completed, these roads would result in

further isolation and fragmentation of

these vernal pools and their watersheds,

as well as impacts to several pools

outside of the reserve. Used

refrigerators, sofas, and other trash have

been dumped in and around the vernal

pools outside of the vernal pool reserve.

Ninety of the vernal pools on Lopez

Ridge are owned by the California

Department of Transportation and the

City of San Diego. The vernal pools have

a wide variety of sizes and depths

(Bauder 1986). The area containing

vernal pools on the north side of Carroll

Canyon is being quarried for sand and

gravel. Some of the vernal pool

complexes at Lopez Ridge are included

in the MSCP and are proposed to be

included within the San Diego National

Wildlife Refuge. The remainder are

located on private property and are

proposed to be developed for residential

housing. Although the publicly owned

pools are protected from development,

ORV activity, proposed development

immediately adjacent to the preserve,

and proposed restoration actions may

threaten the San Diego fairy shrimp at

this locality (M. Simovich, pers. comm.,

1993).

Some of the vernal pools at

Challenger High School in Mira Mesa

were filled without authorization under

the Clean Water Act during the winter
4934 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations

of 1987 to 1988. No restoration for this

action has occurred to date; a public

park is proposed for this location.

Carlsbad

The small vernal pool complex in

Carlsbad is located on a coastal bluff in

an urbanized area. The San Diego fairy

shrimp has been documented at this site

(H. Wier and J. Brown, in litt., 1994).

Construction of a railroad station and

associated facilities resulted in the

permanent loss of some of the vernal

pools. The mitigation consisted of

restoration and preservation of

additional habitat. The remaining vernal

pools are protected in a preserve.

Marine Corps Base Camp Pendleton

The vernal pools at Marine Corps

Base Camp Pendleton are found on the

coastal bluffs in the vicinity of Interstate

5 north of the mouth of the Santa

Margarita River, and in the vicinity of

Wire Mountain (Bauder 1986). Mima

mound topography (a natural patchwork

of soil mounds and surrounding flat

ground) is well developed on the coastal

bluffs and the vernal pools vary greatly

in size and depth. The vernal pools on

Wire Mountain, in the western portion

of the base, are located in a watershed

consisting of coastal sage scrub. The

vernal pools on Wire Mountain have

been fenced to prevent entry by casual

visitors and ‘‘keep out’’ signs have been

placed around a few of the pools. Many

of the vernal pools on the coastal bluffs

continue to be damaged or destroyed

during military maneuvers.

Poway

The vernal pools in Poway were

historically located north of Poway

Road and east of Interstate 15 (Bauder

1986). Some of the pools occurred on

mesa fingers and others were in grassy

hills (Bauder 1986); however, only three

vernal pools were extant at this site by

the end of 1987. The majority of the

vernal pools at this site have been

eliminated by urban development. No

conservation measures have been

undertaken or are proposed for the

Poway vernal pools. Therefore, these

pools are still subject to potential urban

development, ORV use, and other

human-caused disturbances.

Ramona

The vernal pools in Ramona are found

in an inland valley approximately 65

km (40 mi) from the coast (Bauder

1986). They represent the easternmost

and highest elevational occurrences in

San Diego County. These vernal pools,

which vary in size and depth, are

located in non-native grassland and

coastal sage scrub. Expansion of the

Ramona Airport may impact some of the

vernal pools. Other vernal pools have

been eliminated by the construction of

retail stores and the realignment of Dye

and Highland Roads. Bauder (1986)

stated that overgrazing by cattle has a

significant impact on these pools. To

date, no proposal has been made to

protect the Ramona vernal pools.

San Marcos

The vernal pools in San Marcos are

more closely related, physically and

botanically, to vernal pools in Riverside

County than those in San Diego County

(Bauder 1986). Two of the four vernal

pool complexes in San Marcos have

been eliminated (Bauder 1986; Chris

Nagano, USFWS, pers. obs., 1996). The

remaining complexes have been

significantly impacted by discing (F.

Roberts, USFWS, pers. obs., 1995).

Indirect impacts, such as runoff from

adjacent industrial areas, adversely

affect the vernal pools. No conservation

measures have been undertaken or are

proposed for the San Marcos vernal

pools, which the City of San Marcos has

requested be excluded from the

proposed MHCP.

Orange County

The San Diego fairy shrimp has been

recorded at Fairview Park in the City of

Costa Mesa. This site has been damaged

by recreational activities, such as dog

walking, model airplane flying, and

soccer players. Insecticide spraying for

mosquito control in the park also likely

adversely impacts the vernal pool

habitat. The San Diego fairy shrimp has

been found inhabiting a single vernal

pool located along the proposed

Antonio Parkway in southern Orange

County.

Los Angeles County

The San Diego fairy shrimp has not

been recorded from the two known

extant vernal pools in Los Angeles

County.

Ventura County

The San Diego fairy shrimp has not

been recorded from the two known

extant vernal pool complexes in Ventura

County.

Santa Barbara County

Vernal pools are rare in Santa Barbara

County; they are located at Moore Mesa,

Ellwood Mesa, and Isla Vista. All of the

vernal pools in this area have been or

are currently imperiled by urban

development, ORVs, draining, and other

human-caused factors (Ferren and

Pritchett 1988). The Santa Barbara

County vernal pools are now isolated

from those in San Diego County by

substantial agricultural and urban

development in Ventura, Los Angeles,

and Orange counties.

The vernal pools at Isla Vista are

found in an isolated group that occurs

on a flat-topped coastal mesa. Despite

intensive sampling, only a single adult

female San Diego fairy shrimp is known

from the Del Sol Open Space and Vernal

Pool Reserve in Isla Vista. This park is

owned and managed by the Isla Vista

Recreation and Park District, a local

agency (Ferren and Pritchett 1988).

Directed surveys of vernal pools in Isla

Vista for fairy shrimp have not located

any additional San Diego fairy shrimp

individuals (M. Simovich, pers. comm.,

1994).

Baja California

Few vernal pool complexes in Baja

California are similar to those in San

Diego County. The vernal pool complex

at Valle de las Palmas, located south of

Tecate, contains several proposed or

rare plant species (Brown et al. 1993).

The vernal pools at Valle de las Palmas

are being adversely affected by cattle

grazing, agriculture, and removal of clay

soil for pottery and bricks. The highly

disturbed vernal pool complex located

at Bajamar, north of Ensenada, is

imperiled by cattle grazing and

potentially from chemical spills from

the adjacent highway. No Federal, State,

or local regulations protect the vernal

pools or the San Diego fairy shrimp in

Mexico.

The San Diego fairy shrimp is

especially vulnerable to alterations in

hydrology. Its vernal pool habitat is also

vulnerable to indirect destruction due to

the alteration of supporting watersheds.

Development projects adjacent to vernal

pools are often responsible for adverse

alterations in drainage. Hydrological

alterations can result from urban or

agricultural development or a

combination of these activities. An

increase in water due to urban run-off

leads to increased inundation, making

the pools vulnerable to invasion by

marsh plant species that outcompete

obligate (restricted to) vernal pool taxa,

resulting in decreased abundance of

obligate vernal pool taxa. At the other

extreme, some pools have been drained

or blocked from their source of water

and have shown an increased

domination by upland plant species.

Alterations in vernal pool hydrology

may adversely impact the San Diego

fairy shrimp due to changes in the

maximum and minimum water

temperatures.

Filling of vernal pool wetlands

without authorization from the Corps

also poses a threat to this species. The

Service is aware of 15 actions that
Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4935

occurred between 1993 and 1996 in San

Diego County, including urban

development, that have resulted in the

damage or destruction of approximately

40 vernal pools, exclusive of associated

watersheds, that likely provided habitat

for the San Diego fairy shrimp (S. Wynn,

F. Roberts, unpub. notes). At least three

of these parties likely intended to alter

the elevations of the site to eliminate

one or more of the parameters used by

the Corps to define a wetland according

to their 1987 jurisdictional manual (U.S.

Army Corps of Engineers 1987). Similar

deliberate activities that are damaging or

destroying vernal pools are likely

occurring throughout the range of the

San Diego fairy shrimp (S. Wynn,

unpub. notes). Because of the immediate

threat posed by these on-going

activities, the Service finds that good

cause exists for this rule to take effect

immediately upon publication in

accordance with 5 U.S.C. 553(d)(3).

B. Overutilization for Commercial,

Recreational, Scientific or Educational

Purposes

Not known to be applicable.

C. Disease or Predation.

No known diseases affect the San

Diego fairy shrimp. Fairy shrimp are a

food item in the diet of migratory

waterfowl and other native animals

(Krapu 1974, Swanson et al. 1974).

However, this naturally occurring

predation is not considered a threat to

the continued existence of the San

Diego fairy shrimp.

D. The Inadequacy of Existing

Regulatory Mechanisms

The primary cause for the decline of

this species is loss of habitat due to

human activities. No State or local laws

exist that adequately protect the San

Diego fairy shrimp. Other regulatory

mechanisms necessary for the

conservation of its vernal pool habitat

have also proven inadequate and

ineffective.

Existing regulatory mechanisms that

could provide some protection for the

San Diego fairy shrimp include: (1)

section 404 of the Federal Clean Water

Act; (2) occurrence with other species

protected by the Federal Endangered

Species Act; (3) consideration under the

California Environmental Quality Act

(CEQA); (4) implementation of

conservation plans pursuant to the State

of California’s Natural Community

Conservation Planning Act of 1991

(NCCP), including the San Diego

Multiple Species Conservation Plan

(MSCP), the San Diego County Multiple

Habitat Conservation Plan (MHCP), and

the Central/Coastal Orange County

NCCP/HCP; (5) local laws and

regulations; (6) Federal land

management responsibilities; and (7)

Mexican law.

Clean Water Act

Under section 404 of the Clean Water

Act, the Corps regulates the discharge of

fill into waters of the United States,

including navigable waters, wetlands

(e.g., vernal pools), and other waters (33

CFR parts 320–330). The Clean Water

Act requires project proponents to

obtain a permit from the Corps prior to

undertaking many activities (e.g.,

grading, discharge of soil or other fill

material) that would result in the filling

of wetlands subject to the Corps’

jurisdiction. The Corps promulgated

Nationwide Permit Number 26 to

address fill of isolated or headwater

wetlands totaling less than 10 acres.

Under the 1996 reauthorized

Nationwide Permit 26 (61 FR 65873),

project proposals that involve the fill of

wetlands of less than one-third of an

acre are considered authorized. Fill of

between one-third and one acre requires

notification only to the Corps. Where fill

would adversely modify between 1 and

3 acres of wetland, the Corps circulates

a predischarge notification to the

Service and other interested parties for

comment to determine whether an

individual permit should be required for

a proposed fill activity and associated

impacts.

Individual Corps permits are required

for discharge of material that would fill

or adversely modify more than 3 acres

of wetlands. The review process for

individual permits is more rigorous than

for nationwide permits. Unlike

nationwide permits, an analysis of

cumulative wetland impacts is required

for individual permit applications.

Resulting permits may include special

conditions that require potential

avoidance or mitigation for

environmental impacts. On nationwide

permits, the Corps has discretionary

authority to instead require an

individual permit if the Corps believes

that resources are sufficiently important,

regardless of the wetland’s size. In

practice, however, the Corps generally

does not require an individual permit

when a project qualifies for a

nationwide permit, unless a threatened

or endangered species or other

significant resources would be adversely

affected by the proposed activity. Most

vernal pools and swales within the

range of the San Diego fairy shrimp

encompass less than 1 acre. The

discontinuous distribution of these sites

has allowed some landowners to divide

large projects into several smaller

projects. Wetland acreage on these

smaller projects is generally less than 1

acre, and therefore, most projects

qualify for Nationwide Permit 26.

Discing and other farming or ranching

practices, including grazing, can

degrade or destroy vernal pool habitat

without a permit from the Corps

because many of these activities are

exempt from regulation under the Clean

Water Act (33 CFR 323.4(a)). The

discontinuous configuration of the pools

and swales further obscures separation

of these wetland losses.

Endangered Species Act

The Act can incidentally afford

protection to San Diego fairy shrimp if

they co-exist with species already listed

as threatened or endangered. Pogogyne

abramsii (San Diego mesa mint), P.

nudiscula (Otay mesa mint), Orcuttia

californica (California orcutt grass),

Eryngium aristulatum var. parishii (San

Diego button celery), and the Riverside

fairy shrimp (Streptocephalus wootoni)

are listed as endangered under the Act

and occur in the same habitat as the San

Diego fairy shrimp. However, these

species are not always found in the

same vernal pools or vernal pool

complexes as the San Diego fairy

shrimp. The Riverside fairy shrimp and

San Diego fairy shrimp are known to coexist in only three vernal pool

complexes in San Diego County. Within

a vernal pool complex, the San Diego

fairy shrimp often does not occur in the

same pools as listed plant species.

Except for the Riverside fairy shrimp,

these other noted vernal pool species

are plants for which the Act does not

provide prohibitions against take.

Therefore, the umbrella protection that

they may provide would only occur if

a proposed federally funded or

authorized action would jeopardize the

continued existence of those species, as

determined in a biological opinion

developed under section 7 of the Act.

California Environmental Quality Act

Section 15380 of the CEQA requires

that impacts to any taxon that meets the

criteria for listing under the California

Endangered Species Act be treated as

significant regardless of its current

listing status. The San Diego fairy

shrimp has been recognized as a distinct

taxon by the scientific and local

conservation communities since 1990.

Impacts to this species would qualify as

significant under section 15380 of the

CEQA even though this species was not

described taxonomically until 1993

(Fugate 1993). However, this taxon has

only been considered in a limited

number of environmental impact reports

since 1990. Required biological surveys

are often inadequate and project
4936 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations

proponents may ignore the results of

surveys if occurrences of sensitive

species are viewed as a constraint on

project design. Mitigation measures

used to condition project approvals are

essentially experimental and fail to

adequately guarantee protection of the

populations. Most mitigation plans that

have been required were designed

specifically for vernal pool plants. The

artificial creation of vernal pools as

compensatory mitigation has not been

scientifically demonstrated to be

successful (Ferren and Gevirtz 1990;

Zedler and Black 1988; M. Simovich, in

litt., 1992). For example, in San Diego

County, vernal pools containing the San

Diego fairy shrimp and the federally and

State-listed San Diego mesa mint were

destroyed without adequate

environmental documentation or

coordination with the Service and the

California Department of Fish and

Game.

Natural Communities Conservation

Planning Act

In 1991, the State of California passed

the NCCP Act to address the

conservation needs of natural

ecosystems throughout the State. The

initial focus of this program was the

coastal sage scrub community in

southern California, although other

associated vegetation communities are

also being addressed in this ecosystembased planning approach. The San

Diego fairy shrimp is found in vernal

pools that are often not located in

coastal sage scrub. However, the San

Diego fairy shrimp is being treated as a

covered species under the MSCP plan

and MHCP. These plans, under

development by the County of San

Diego and its coastal cities, are being

integrated as components of the NCCP

program. The MSCP is developed and is

currently undergoing the final stages of

the public review process. The MHCP is

still in the developmental phase, and it

is uncertain as to how successful it will

be in providing protection for this

species. The Central/Coastal Orange

County NCCP/HCP (approved by the

Service on July 17, 1996) treats the San

Diego fairy shrimp as a ‘‘conditionally

covered’’ species and provides coverage

for this species under the section

10(a)(1)(B) ‘‘incidental take’’ permits

only for highly degraded and/or

artificial habitat. Non-degraded, natural

vernal pool habitat is not covered. The

San Diego fairy shrimp has not been

confirmed in the Central/Coastal NCCP/

HCP planning area. If present, it would

likely occur in highly degraded and/or

artificial habitat, where incidental take

would be allowed under the permit.

Local Laws and Regulations

The San Diego fairy shrimp is not

specifically protected under any local

laws or regulations. The San Diego fairy

shrimp occurs within the California

Department of Transportation Vernal

Pool Preserve on Del Mar Mesa.

Although these pools are being managed

for the long-term protection of vernal

pool flora and fauna, ORV activity,

proposed development immediately

adjacent to the preserve, and proposed

restoration actions may threaten the San

Diego fairy shrimp at this locality (M.

Simovich, pers. comm., 1993).

The San Diego Vernal Pool

Preservation Program, enacted by the

City of San Diego in 1980, did not

include adequate protection for vernal

pools, nor did it contain sufficient

mitigation to compensate for the loss of

vernal pools. More than 800 pools have

been destroyed under the preservation

plan, and only three sites containing

approximately 8 ha (21.8 ac) of

watersheds containing vernal pools

have been purchased using $882,000 of

the mitigation funds. The preservation

program did not collect sufficient funds

to mitigate the vernal pool land area

lost, nor did it include suitable preserve

size, design configuration, or adequate

management.

Federal Land Management

Responsibilities

The Service has proposed a National

Wildlife Refuge in San Diego County

which includes a proposed Vernal Pool

Stewardship Project. The Draft

Environmental Assessment for the

Vernal Pools Stewardship Project was

released in November of 1996. Approval

of the Vernal Pools Stewardship Project

does not grant the Service jurisdiction

or control over lands within the project

boundary, nor does it automatically

make lands within the project boundary

part of the National Wildlife Refuge

System (NWRS). Lands do not become

part of the NWRS until they are

purchased by the Service or are placed

under an agreement that provides for

management as part of the refuge

system. Service policy is to acquire

lands only from willing sellers. To date,

the Service has not purchased any lands

for inclusion in the vernal pool unit, nor

are any lands under an agreement to be

managed as part of the refuge. Proposed

projects are located within several of the

areas recommended for inclusion in the

vernal pool refuge. On Otay Mesa and

below the Sweetwater Reservoir, the

proposed alignment for State Route 125

intersects lands within the proposed

refuge boundary. Because these lands

have not been purchased, the Federal

Highways Administration does not have

to complete an evaluation pursuant to

section 4(f) of the U.S. Department of

Transportation Act (49 U.S.C. 303). In

addition, a resort is proposed within the

unit located above Otay Lakes that

would eliminate the vernal pools on

that site.

The San Diego fairy shrimp is found

on Federal lands managed by the U.S.

Navy at Cholla Heights Naval Housing

and Miramar Naval Air Station, and the

U.S. Marine Corps at Camp Pendleton.

These lands are used, in part, for

military training activities that involve

ORV maneuvers that adversely impact

the species (Hogan and Belk 1992). The

air station will be transferred to the

Marine Corps on October 1, 1997. The

Marine Corps has indicated that they

will not allow a National Wildlife

Refuge overlay on the air station

(Department of the Navy 1996);

however, they have agreed to place a

vernal pool stewardship overlay on the

areas of the base containing vernal

pools. The Marine Corps stated that they

will implement management plans for

the vernal pools at Miramar Naval Air

Station and Camp Pendleton, but none

has been prepared to date. Surrounding

privately owned vernal pool habitat and

watershed is not protected.

Mexican Law

The Service is not aware of any

existing regulatory mechanisms that

would protect the San Diego fairy

shrimp or its habitat where it occurs in

northwestern Baja California, Mexico.

E. Other Natural or Man-Mmade Factors

Affecting Their Continued Existence

Secondary impacts associated with

urbanization include disposal of waste

materials into habitat for the San Diego

fairy shrimp. Disposal of concrete, tires,

refrigerators, sofas, and other trash

adversely affects these animals by

eliminating habitat, disrupting pool

hydrology or, in some cases, through

release of toxic substances (Bauder

1986, 1987). Malathion, herbicides,

laundry detergent, household plant

fertilizer, and motor oil have been

documented to be fatal to the San Diego

fairy shrimp through poisoning of the

animals or by the formation of a barrier

to gas exchange on the surface of the

water, which can result in asphyxiation

(Branchiopod Research Group 1996).

Dust and other forms of air or water

pollution from commercial development

or agricultural projects may also be

deleterious to this animal.

ORV use also imperils the San Diego

fairy shrimp. ORVs crush fairy shrimp

eggs (Ericksen et al. 1986); less than the

weight of an apple can crush dormant
Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4937

fairy shrimp eggs (Branchiopod

Research Group 1996). ORVs can also

cut deep ruts, compact soil, destroy

native vegetation, and alter pool

hydrology. Fire fighting activities,

security patrols, military maneuvers,

and recreational activities have

cumulatively damaged vernal pool

habitats in many areas within the range

of the species (Bauder 1986, 1987). On

the Otay Mesa, law enforcement-related

ORV use by the U.S. Border Patrol has

adversely impacted vernal pools known

to be inhabited by the San Diego fairy

shrimp.

Cattle grazing occurs on Otay Mesa,

Otay Lakes, and Ramona in areas where

several vernal pool complexes contain

the San Diego fairy shrimp. Overgrazing

in areas containing the animal and its

habitat is likely detrimental. High levels

of pasture runoff may lead to increased

siltation of vernal pool habitat. High

livestock densities may result in

excessive physical disturbance, such as

trampling, and cause changes in pool

water chemistry and water quality.

Impacts due to overgrazing have been

described as analogous to those from

vehicle traffic (e.g., causing deep tracks,

burying eggs, and trampling

individuals) (Bauder 1986, 1987).

The Service has carefully assessed the

best available scientific and commercial

information regarding past, present, and

future threats faced by the San Diego

fairy shrimp in determining to issue this

final rule. Based on this evaluation, the

preferred action is to list the San Diego

fairy shrimp as endangered. This

species is imperiled by rapid

urbanization, conversion of land to

agricultural use, vehicle use, extremely

limited available habitat (less than 81 ha

(200 ac) of vernal pools), and changes in

hydrologic patterns in areas where they

occur. Numerous ongoing and proposed

development projects pose an imminent

threat to the San Diego fairy shrimp.

Extraordinary increases in the human

population and associated pressures

from urban development have rendered

existing regulatory mechanisms

inadequate. All of the known

populations of the San Diego fairy

shrimp are imperiled. Only a portion of

the extant vernal pools would be

protected under the MSCP and/or the

proposed San Diego National Wildlife

Refuge. Because the San Diego fairy

shrimp has been extirpated from all but

approximately 81 ha (200 ac) of vernal

pool habitat, and because of the threats

to the species discussed above, the San

Diego fairy shrimp is in danger of

extinction throughout all or a significant

portion of its range and thus meets the

definition of endangered as defined in

the Act. Designation of critical habitat

for the San Diego fairy shrimp is not

prudent for the reasons discussed

below.

Critical Habitat

Critical habitat is defined in section 3

of the Act as—(I) the specific areas

within the geographical area occupied

by a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management consideration or

protection; and (ii) specific areas

outside the geographical area occupied

by a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures needed

to bring the species to the point at

which listing under the Act is no longer

necessary.

Section 4(a)(3) of the Act, as

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, the Secretary designate

critical habitat concurrently with

determining a species to be endangered

or threatened. The Service finds that the

designation of critical habitat is not

prudent for the San Diego fairy shrimp.

Service regulations at 50 CFR

424.12(a)(1) state that designation of

critical habitat is not prudent when one

or both of the following situations exist:

(1) The species is threatened by taking

or other human activity, and

identification of critical habitat can be

expected to increase the degree of such

threat to the species, or (2) such

designation of critical habitat would not

be beneficial to the species. Because the

San Diego fairy shrimp faces numerous

human-caused threats (see Factors ‘‘A’’

and ‘‘E’’ above), the publication of

precise maps and descriptions of critical

habitat in the Federal Register would

make this species more vulnerable to

incidents of vandalism and, therefore,

would contribute to the decline of the

species. A number of sites inhabited by

the San Diego fairy shrimp occur on

private land that is undergoing rapid

urban development and agricultural

conversion. As documented in this rule,

some areas have been destroyed to

eliminate vernal pool characteristics

and escape regulatory jurisdiction by

the Corps. The proper agencies have

been notified concerning management

requirements of the animal. Protection

of the habitat of the species will be

addressed through the recovery, section

7 consultation, and incidental take

permit processes. Federal involvement

in areas where the animal occurs can be

identified without designation of critical

habitat. Therefore, the Service finds that

designation of critical habitat for the

San Diego fairy shrimp is not prudent at

this time, because such designation

would likely increase the degree of

threat from vandalism or other human

activities.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery actions,

requirements for Federal protection, and

prohibitions against certain activities.

Recognition through listing encourages

and results in public awareness and

conservation actions by Federal, State,

and local agencies, private

organizations, and individuals. The Act

provides for possible land acquisition

and cooperation with the States and

requires that recovery plans be

developed for listed species. The

protection required by Federal agencies

and the prohibitions against taking and

harm are discussed, in part, below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is proposed or listed as endangered

or threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(1) requires Federal

agencies to use their authorities to

further the purposes of the Act by

carrying out programs for listed species.

Section 7(a)(2) of the Act requires

Federal agencies to insure that activities

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of the species. If a Federal

action is likely to adversely affect a

listed species, the responsible Federal

agency must enter into formal

consultation with the Service.

Federal agencies expected to have

involvement with the San Diego fairy

shrimp include the Army Corps of

Engineers and the Environmental

Protection Agency due to their permit

authority under section 404 of the Clean

Water Act. Nationwide permits are not

valid where a federally listed

endangered or threatened species would

be affected by the proposed project.

When listed species may be affected,

formal consultation is required pursuant

to section 7 of the Act before nationwide

permits become effective.

The San Diego fairy shrimp occurs on

Miramar Naval Air Station, Marine

Corps Base Camp Pendleton, and Cholla

Heights Naval Housing. These bases will

likely be involved through military
4938 Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations

activities or potential excessing of

Federal lands. The Department of

Transportation (Federal Highways

Administration) may possibly be

affected by the listing of this species

because some populations occur on

properties where federally funded

roadways may be constructed. Activities

undertaken by the U.S. Border Patrol

may affect vernal pools containing the

species along the international border.

The Federal Aviation Administration

will be affected through activities they

fund, permit, or authorize at the

Ramona Airport and Montgomery Field

Airport. In addition, the Department of

Housing and Urban Development (HUD)

may insure housing loans in areas that

presently support San Diego fairy

shrimp. HUD actions regarding these

loans would also be subject to review by

the Service under section 7 of the Act.

The listing of the San Diego fairy

shrimp also brings sections 5 and 6 of

the Act into effect. Section 5 authorizes

acquisition of lands for the purposes of

conserving endangered and threatened

species. Pursuant to section 6, the

Service will be able to grant funds to the

affected State for management actions

aiding in protection and recovery of the

species.

Listing the San Diego fairy shrimp as

endangered provides for the

development and implementation of a

recovery plan for the species. Such a

plan will bring together State and

Federal efforts for conservation of the

species. The plan will establish a

framework for agencies to coordinate

activities and cooperate with each other

in conservation efforts. The plan will set

recovery priorities and estimate the

costs of various tasks necessary to

accomplish the priorities. It also will

describe site-specific management

actions necessary to achieve

conservation and survival of the San

Diego fairy shrimp.

The Act and its implementing

regulations set forth a series of

prohibitions and exceptions that apply

to all endangered wildlife. The

prohibitions, codified at 50 CFR 17.21

for endangered wildlife, in part, make it

illegal for any person subject to the

jurisdiction of the United States to take

(includes harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or

collect; or to attempt any of these),

import or export, ship in interstate or

foreign commerce in the course of

commercial activity, or sell or offer for

sale in interstate or foreign commerce

any listed species. It also is illegal to

possess, sell, deliver, carry, transport, or

ship any such wildlife that has been

taken illegally. Certain exceptions apply

to agents of the Service and State

conservation agencies.

Permits may be issued to carry out

otherwise prohibited activities

involving endangered wildlife under

certain circumstances. Regulations

governing permits are codified at 50

CFR 17.22 and 17.23. Such permits are

available for scientific purposes, to

enhance the propagation or survival of

the species, and/or for incidental take in

connection with otherwise lawful

activities.

It is the policy of the Service,

published in the Federal Register on

July 1, 1994 (59 FR 34272), to identify

to the maximum extent practicable at

the time a species is listed those

activities that would constitute a

violation of section 9 of the Act. The

intent of this policy is to increase public

awareness of the effect of the listing on

proposed and on-going activities within

a species’ range. Activities that could

potentially result in ‘‘take’’ of the San

Diego fairy shrimp include, but are not

limited to: unauthorized collecting or

handling of the animal, unauthorized

pesticide applications within the vernal

pool habitat of the species, or

intentional or unauthorized damage or

destruction of its habitat (e.g., ORV use,

urban development or agricultural

conversion that damages or destroys the

vernal pools or alters their hydrology),

violation of the terms and conditions of

discharge permits, and discharges or

dumping of toxic chemicals, silt

fertilizers, oil, organic wastes, or other

pollutants into waters supporting the

species.

Activities that the Service believes are

unlikely to result in a violation of

section 9 are: possession, delivery, or

movement, including interstate

transport and import into or export from

the Unites States, involving no

commercial activity, of dead specimens

of the San Diego fairy shrimp that were

collected prior to the date of publication

in the Federal Register of the final

regulation adding this species to the list

of endangered species; and federally

approved projects that involve activities

such as discharge of fill material,

draining, ditching, tiling, pond

construction, stream channelization or

diversion, or alteration of surface or

ground water into or out of a wetland

(i.e., due to roads, impoundments,

discharge pipes, storm water detention

basins, etc.), when such activity is

conducted in accordance with any

reasonable and prudent measures given

by the Service in accordance with

section 7 of the Act.

Questions regarding whether specific

activities will constitute a violation of

section 9 of the Act should be directed

to the Field Supervisor of the Service’s

Carlsbad Field Office (see ADDRESSES

section). Requests for copies of the

regulations regarding listed wildlife and

inquiries about prohibitions and permits

should be addressed to U.S. Fish and

Wildlife Service, Ecological Services,

Endangered Species Permits, 911 N.E.

11th Avenue, Portland, Oregon 97232–

4181 (telephone 503/231–2063,

facsimile 503/231–6243).

Reasons for Effective Date

The Service is concerned that

issuance of a final rule for this species

that is not effective immediately upon

publication will result in continued

deliberate damage to vernal pools

inhabited by the San Diego fairy shrimp.

As discussed under Factor ‘‘A’’ above,

on-going alteration of vernal pool

hydrology and destruction of pools has

been documented by the Service.

Because of the immediate threat to the

continued existence of the San Diego

fairy shrimp posed by these on-going

activities, the Service finds that good

cause exists for this rule to take effect

immediately upon publication in

accordance with 5 U.S.C. 553(d)(3).

National Environmental Policy Act

The Fish and Wildlife Service has

determined that Environmental

Assessments and Environmental Impact

Statements, as defined under the

authority of the National Environmental

Policy Act of 1969, need not be

prepared in connection with regulations

adopted pursuant to section 4(a) of the

Endangered Species Act of 1973, as

amended. A notice outlining the

Service’s reasons for this determination

was published in the Federal Register

on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited

in this rule is available upon request

from the Carlsbad Field Office (see

ADDRESSES section).

Required Determinations

The Service has examined this

regulation under the Paperwork

Reduction Act of 1995 and found it to

contain no information collection

requirements. This rulemaking was not

subject to review by the Office of

Managment and Budget under Executive

Order 12866.

Authors

The primary authors of this final rule

are Chris Nagano and Susan Wynn,

Carlsbad Field Office (see ADDRESSES

section).
Federal Register / Vol. 62, No. 22 / Monday, February 3, 1997 / Rules and Regulations 4939

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements, and

Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of

chapter I, title 50 of the Code of Federal

Regulations, is amended as set forth

below:

PART 17—[AMENDED]

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.

2. Section 17.11(h) is amended by

adding the following, in alphabetical

order under CRUSTACEANS, to the List

of Endangered and Threatened Wildlife,

to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate

population

where

endangered or

threatened

Status When

listed

Critical

habitat

Special

rules Common name Scientific name

* * * * * * *

CRUSTACEANS

* * * * * * *

Fairy shrimp, San Diego ...... Branchinecta

sandiegonensis.

U.S.A. (CA), Mexico .. NA E 608 NA NA

* * * * * * *

Dated: January 27, 1997.

John G. Rogers,

Acting Director, U.S. Fish and Wildlife

Service.

[FR Doc. 97–2578 Filed 1–31–97; 8:45 am]

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