[Federal Register Volume 62, Number 22 (Monday, February 3, 1997)]
[Rules and Regulations]
[Pages 4925-4939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2578]


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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.

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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 
front-to-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

[[Page 4926]]

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

[[Page 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.

[[Page 4928]]

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.

[[Page 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

[[Page 4930]]

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 non-vernal 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.

[[Page 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

[[Page 4932]]

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 (Keeler-Wolf 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

[[Page 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

[[Page 4934]]

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

[[Page 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 co-exist 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

[[Page 4936]]

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 ecosystem-based 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

[[Page 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

[[Page 4938]]

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).

[[Page 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:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                             Species                                                          Vertebrate                                                
------------------------------------------------------------------                            population                                                
                                                                                                 where                   When      Critical     Special 
                                                                         Historic range       endangered     Status     listed      habitat      rules  
              Common name                    Scientific name                                      or                                                    
                                                                                              threatened                                                
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                                              *         *         *         *         *         *         *                                             
Crustaceans                                                                                                                                             
                                                                                                                                                        
                                              *         *         *         *         *         *         *                                             
Fairy shrimp, San Diego...............  Branchinecta               U.S.A. (CA), Mexico......         NA           E         608          NA          NA 
                                         sandiegonensis.                                                                                                
                                                                                                                                                        
                                              *         *         *         *         *         *         *                                             
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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]
BILLING CODE 4310-55-P