Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 12543 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2011–0013; 

4500030114] 

RIN 1018–AX15 

Endangered and Threatened Wildlife 

and Plants; Revised Critical Habitat for 

Riverside Fairy Shrimp 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, notice of availability 

of draft economic analysis, and 

amended required determinations. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce the 

reopening of the public comment period 

on the June 1, 2011, proposed revised 

designation of critical habitat for 

Riverside fairy shrimp (Streptocephalus 

woottoni) under the Endangered Species 

Act of 1973, as amended (Act). We are 

revising the preamble to the proposed 

designation to clarify that certain 

subunits that we originally proposed for 

revised critical habitat designation 

under section 3(5)(A)(i) of the Act, are 

now also being proposed under section 

3(5)(A)(ii) of the Act because these areas 

are essential for the conservation of the 

species but were not confirmed to be 

occupied by Riverside fairy shrimp at 

the time the species was listed in 1993. 

We also announce the availability of a 

draft economic analysis (DEA) of the 

proposed designation of revised critical 

habitat for Riverside fairy shrimp and an 

amended required determination 

section of the proposal. We are 

reopening the comment period for an 

additional 30 days to allow all 

interested parties an opportunity to 

comment simultaneously on the 

proposed revised critical habitat 

designation, the associated DEA, and 

the amended required determinations 

section. Comments previously 

submitted need not be resubmitted, as 

they will be fully considered in 

preparation of the final rule. 

DATES: We will consider comments 

received on or before April 2, 2012. 

Comments must be received by 11:59 

p.m. Eastern Time on the closing date. 

Any comments that we receive after the 

closing date may not be considered in 

the final decision on this action. 

ADDRESSES: You may submit written 

comments by one of the following 

methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Search for Docket 

No. FWS–R8–ES–2011–0013, which is 

the docket number for this rulemaking. 

(2) By hard copy: Submit by U.S. mail 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–R8–ES–2011– 

0013; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, MS 

2042–PDM; Arlington, VA 22203. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see Public 

Comments below for more information). 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, U.S. Fish and 

Wildlife Service, Carlsbad Fish and 

Wildlife Office, 6010 Hidden Valley 

Road, Suite 101, Carlsbad, CA 92011; 

telephone 760–431–9440; facsimile 

760–431–5901. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We will accept written comments and 

information during this reopened 

comment period on our proposed 

revised designation of critical habitat for 

Riverside fairy shrimp published in the 

Federal Register on June 1, 2011 (76 FR 

31686), our DEA of the proposed revised 

designation, and the amended required 

determinations provided in this 

document. We will consider 

information and recommendations from 

all interested parties. We are 

particularly interested in comments 

concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

there are threats to the species from 

human activity, the degree of which can 

be expected to increase due to the 

designation, and whether that increase 

in threats outweighs the benefit of 

designation such that the designation of 

critical habitat may not be prudent. 

(2) Specific information on: 

(a) Areas that provide habitat for 

Riverside fairy shrimp that we did not 

discuss in our proposed revised critical 

habitat rule (76 FR 31686; June 1, 2011); 

(b) Areas containing the physical and 

biological features essential to the 

conservation of Riverside fairy shrimp 

that we should include in the final 

revised critical habitat designation and 

why. Include information on the 

distribution of these essential features 

and what special management 

considerations or protections may be 

required to maintain or enhance them; 

(c) Areas proposed as revised critical 

habitat that do not contain the physical 

and biological features essential for the 

conservation of the species and that 

should not be designated as critical 

habitat; 

(d) Areas not occupied or not known 

to be occupied at the time of listing that 

are essential for the conservation of the 

species and why; and 

(e) The potential effects of climate 

change on Riverside fairy shrimp and its 

habitat and whether the critical habitat 

may adequately account for these 

potential effects. 

(3) Our proposal to designate specific 

areas for which there is no 

documentation of occupancy for the 

specific areas (subunits) prior to 1993, 

as essential for the conservation of the 

species under the definition of critical 

habitat in section (3)(5)(A)(ii) of the Act. 

(4) Lands we identified as essential 

for the conservation of Riverside fairy 

shrimp in Appendix F of the Recovery 

Plan that are not being proposed as 

critical habitat. 

(5) Lands we have identified as 

essential for the conservation of 

Riverside fairy shrimp that were not 

known at the time the Recovery Plan 

was written but that we conclude are 

essential for the conservation of the 

species. 

(6) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

revised critical habitat. 

(7) Information that may assist us in 

identifying or clarifying the physical 

and biological features essential to the 

conservation of Riverside fairy shrimp. 

(8) Whether any specific areas being 

proposed as revised critical habitat for 

Riverside fairy shrimp should be 

excluded under section 4(b)(2) of the 

Act, and whether the benefits of 

potentially excluding any particular 

area outweigh the benefits of including 

that area under section 4(b)(2) of the 

Act. See the Exclusions section of the 

June 1, 2011, proposed rule to revise 

critical habitat (76 FR 31686) for further 

discussion. 

(9) Any probable economic, national 

security, or other relevant impacts that 

may result from designating any area 

that may be included in the final 

designation. We are particularly 

interested in any impacts on small 

entities, and the benefits of including or 

excluding areas that exhibit these 

impacts. 

(10) Information on the extent to 

which the description of probable 

economic impacts in the DEA is 

complete and accurate, and specifically: 


srobinson on DSK4SPTVN1PROD with PROPOSALS
12544 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

(a) Whether there are incremental 

costs of critical habitat designation (for 

example, costs attributable solely to the 

designation of revised critical habitat for 

Riverside fairy shrimp) that have not 

been appropriately identified or 

considered in our economic analysis, 

including costs associated with future 

administrative costs or project 

modifications that may be required by 

Federal agencies related to section 7 

consultation under the Act; 

(b) Whether there are additional 

project modifications that may result 

from the designation of critical habitat 

for Riverside fairy shrimp and what 

those potential project modifications 

might represent. 

(11) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to better assist us 

in accommodating public concerns and 

comments. 

If you submitted comments or 

information on the proposed revised 

rule (76 FR 31686) during the initial 

comment period from June 1, 2011, to 

August 1, 2011, please do not resubmit 

them. We will incorporate them into the 

public record as part of this comment 

period, and we will fully consider them 

in the preparation of our final 

determination. Our final determination 

concerning revised critical habitat for 

Riverside fairy shrimp will take into 

consideration all written comments and 

any additional information we receive 

during this and previous comment 

periods. On the basis of public 

comments, we may, during the 

development of our final determination, 

find that areas proposed are not 

essential, are appropriate for exclusion 

under section 4(b)(2) of the Act, or are 

not appropriate for exclusion. 

You may submit your comments and 

materials concerning the proposed rule 

or DEA by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the Web site. We will post all 

hardcopy comments on http:// 

www.regulations.gov as well. If you 

submit a hard copy comment that 

includes personal identifying 

information, you may request at the top 

of your document that we withhold this 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing the proposed rule and 

DEA, will be available for public 

inspection on http:// 

www.regulations.gov at Docket No. 

FWS–R8–ES–2011–0013, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). You may obtain copies of the 

proposed rule (76 FR 31686) and the 

DEA on the Internet at http:// 

www.regulations.gov at Docket No. 

FWS–R8–ES–2011–0013, or by mail 

from the Carlsbad Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of revised critical habitat for 

Riverside fairy shrimp in this document. 

For more information on the taxonomy, 

biology, and ecology of Riverside fairy 

shrimp, please refer to the listing rule 

published in the Federal Register on 

August 3, 1993 (58 FR 41384), the 

5-Year Review for Riverside fairy 

shrimp signed on September 30, 2008 

(Service 2008), which is available online 

at http://www.fws.gov/carlsbad/, and 

our proposed revised critical habitat 

designation published in the Federal 

Register on June 1, 2011 (76 FR 31686), 

which is available online at 

http://www.regulations.gov (at Docket 

No. FWS–R8–ES–2011–0013), or contact 

the Carlsbad Fish and Wildlife Office 

(see FOR FURTHER INFORMATION CONTACT). 

Previous Federal Actions 

On April 12, 2005, we published a 

final designation of critical habitat for 

Riverside fairy shrimp in the Federal 

Register (70 FR 19154). On January 14, 

2009, the Center for Biological Diversity 

filed a complaint in the U.S. District 

Court for the Southern District of 

California challenging our 2005 

designation of critical habitat for 

Riverside fairy shrimp (Center for 

Biological Diversity v. United States 

Fish and Wildlife Service and Dirk 

Kempthorne, Secretary of the Interior, 

Case No. 3:09–CV–0050–MMA–AJB). 

The plaintiffs alleged that our April 12, 

2005, critical habitat designation for 

Riverside fairy shrimp was insufficient 

for various reasons, specifically 

challenging the reasoning used to 

exclude areas from the 2005 critical 

habitat designation for Riverside fairy 

shrimp and citing improper use of a 

coextensive economic analysis. A 

settlement agreement was reached with 

the plaintiffs (Case No. 3:09–cv–00051– 

JM–JMA; November 16, 2009) in which 

we agreed to submit a proposed revised 

critical habitat designation for the 

Riverside fairy shrimp to the Federal 

Register by May 20, 2011, and submit a 

final revised critical habitat designation 

to the Federal Register by November 15, 

2012. 

On June 1, 2011, we published a 

proposed rule to designate revised 

critical habitat for the Riverside fairy 

shrimp (76 FR 31686). We proposed to 

designate approximately 2,984 acres 

(1,208 hectares) of land in five units in 

Ventura, Orange, Riverside, and San 

Diego Counties, California, as revised 

critical habitat. That proposal had a 60- 

day comment period, ending 

August 1, 2011. 

Critical Habitat 

Section 3(5)(A)(i) of the Act defines 

critical habitat as ‘‘the specific areas 

within the geographical area occupied 

by the species, at the time it is listed in 

accordance with the provisions of 

section 4 of this Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protection.’’ Section 

3(5)(A)(ii) pertains to ‘‘specific areas 

outside the geographical area occupied 

by the species at the time it is listed in 

accordance with the provisions of 

section 4 of this Act, upon a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species.’’ Conservation, as defined 

under section 3 of the Act, means to use 

and the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided under the Act are no 

longer necessary. For more information 

on critical habitat, please refer to our 

proposed revised critical habitat 

designation published in the Federal 

Register on June 1, 2011 (76 FR 31686). 

As stated in the proposed rule (76 FR 

31692: June 1, 2011), when we are 

determining which areas should be 

designated as critical habitat or revised 

critical habitat, our primary source of 

information is generally the listing 

information developed during the 

listing process for the species. However, 

section 4 of the Act also requires that we 

designate critical habitat, or make 

revisions to, critical habitat on the basis 

of the best scientific data available and 

after taking into consideration the 

economic impact, the impact on 

national security, and any other relevant 

impacts. 

In proposing revised critical habitat 

for Riverside fairy shrimp, we have 

made extensive use of the information 

in the Recovery Plan (Service 1998), and 


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Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 12545 

incorporated the recovery goals and 

strategy identified in the Recovery Plan. 

We also reviewed other relevant 

information, including peer-reviewed 

journal articles, unpublished reports 

and materials (e.g., survey results and 

expert opinions), the final listing rule 

(58 FR 41384; August 3, 1993), the first 

and second rules proposing critical 

habitat published in the Federal 

Register on September 21, 2000 (65 FR 

57136), and April 27, 2004 (69 FR 

23024), respectively; and the subsequent 

final critical habitat designations 

published in the Federal Register on 

May 30, 2001 (66 FR 29384), and April 

12, 2005 (70 FR 19154), the 5-year 

review for the Riverside fairy shrimp 

(Service 2008), and regional databases 

and GIS coverages, for example, 

California Natural Diversity Database, 

and National Wetlands Inventory maps. 

We analyzed this information to 

determine historical occupancy, 

occupancy at the time of listing, and 

current occupancy. Additionally, we 

reviewed available information 

pertaining to the species’ habitat 

requirements and its distribution. 

The geographical area known to be 

occupied by the species in the U.S. as 

presented in the listing rule (58 FR 

41385; August 3, 1993) is that area 

bounded by the coastline to the west, 

east to an area near tribal land of the 

Pechanga Band of Luiseno Mission 

Indians of the Pechanga Reservation, 

California, in western Riverside County, 

north into the central foothills of Orange 

County near the former Marine Corps 

Air Station (MCAS) El Toro, and south 

to coastal mesa tops along the United 

States-Mexico Border in San Diego 

County. The current known range of 

Riverside fairy shrimp is from Ventura 

County to the United States-Mexico 

Border in San Diego County, a northsouth distance of approximately 163 

miles (mi) (262 kilometers (km)) within 

southern California and inland from the 

Pacific Coast 50 mi (80 km), based on 

all available species occurrence data 

pre- and post-listing. (Two additional 

records documented Riverside fairy 

shrimp in northwestern Baja California, 

Mexico, at the time the species was 

listed (58 FR 41385)). Extant 

occurrences are located within four 

counties in southern California: 

Ventura, Orange, Riverside, and San 

Diego. 

When we developed our proposed 

critical habitat, we considered areas 

where Riverside fairy shrimp have been 

documented since listing (1993), 

including areas outside the geographical 

range of the species as presented in the 

listing rule, to be ‘‘within the 

geographical area occupied by the 

species at the time of listing [in 1993]’’ 

(see proposed rule at 76 FR 31689; June 

1, 2011 and discussion below). Based on 

our review of the species biology and 

life-history traits, we conclude that 

occurrences documented since the 1993 

listing do not represent an expansion of 

the species’ distribution and range, but 

rather reflect our better understanding 

of the distribution and range of the 

species at the time of listing (Service 

2008, p. 9). 

We acknowledge that the geographical 

range known to be occupied by the 

species at the time of listing in the U.S. 

(based on species occurrence records 

available at the time the species was 

listed (58 FR 41384; August 3, 1993)) is 

from central Orange County to 

southwestern San Diego County at the 

United States-Mexico Border. However, 

as with many species, listing often 

results in greater efforts to conduct 

surveys that may reveal more 

information related to specific 

occurrences across a greater 

geographical area than were initially 

known (76 FR 31690; June 1, 2011). 

Our method for identifying areas with 

physical and biological features 

essential to the conservation of the 

species and other areas essential for the 

conservation of Riverside fairy shrimp, 

has been to target areas occupied by 

Riverside fairy shrimp, and areas known 

to possess suitable ephemeral wetland 

habitat likely to be occupied or become 

occupied based on proximity to known 

occurrences, contiguous habitat, or 

within expected dispersal distances for 

Riverside fairy shrimp. We considered 

the low numbers of populations, 

restricted distribution, specialized 

habitat requirements, and limited 

genetic variability of Riverside fairy 

shrimp, and while we did not include 

all available habitat or all areas where 

Riverside fairy shrimp are located, 

criteria used to identify those areas 

essential for the conservation of 

Riverside fairy shrimp include areas of 

discontinuous habitat that: (1) Provide 

for geographic distribution across the 

range of the species; (2) represent the 

full range of habitat and environmental 

variability that the species occupies; (3) 

provide appropriate inundation and 

ponding durations, natural hydrologic 

regimes and appropriate soils, and 

intermixed wetland and upland 

watershed (that is, contain the necessary 

primary constituent elements (PCEs)); 

(4) provide for connectivity among 

pools within geographic proximity to 

facilitate dispersal and gene flow among 

vernal pool complexes; and (5) provide 

protection for unique, existing vernal 

pool composition and structure. Our 

determination of habitat, and therefore 

features, essential to the conservation of 

Riverside fairy shrimp takes into 

consideration the generalized 

conservation strategy identified in the 

1998 Recovery Plan as necessary for the 

species stabilization and reclassification 

(Service 1998, pp. 1–113 and 

Appendices F and G therein). For more 

information on how critical habitat 

units and subunits were identified and 

delineated and additional information 

regarding the Recovery Plan, please also 

see the ‘‘Methods’’ section of the 

proposed revised critical habitat rule we 

published on June 1, 2011 (76 FR 

31686). 

Specific areas identified for inclusion 

into revised critical habitat were 

determined first at the unit level (based 

on Management Area (Units 1–5) 

provided in the Recovery Plan (Service 

1998, p.38)). We delineated subunit 

boundaries by focusing on areas known 

or likely to be occupied based on 

species occurrence records and the 

presence of PCEs within each subunit. 

We mapped essential physical and 

biological features and then applied 

selection criteria to identify those areas 

essential to the conservation of 

Riverside fairy shrimp. We proposed to 

designate subunits within the 

geographical area occupied by the 

species at the time it was listed, as 

currently understood. As discussed 

below, based on information regarding 

the geographical area occupied by the 

species at the time it was listed, and the 

limited surveys verifying occupancy of 

many specific pools prior to listing, we 

are now also proposing certain subunits 

as essential for the conservation of the 

species under section 3(5)(A)(ii) of the 

Act. 

We have not proposed for designation 

certain areas identified in the Recovery 

Plan that: (1) Lack a confirmed 

identification of species occurrence, (2) 

lack essential physical and biological 

features to support Riverside fairy 

shrimp in a self-sustaining population, 

or (3) do not represent occupied 

occurrences that add to species viability 

and, therefore, that we do not consider 

to be essential for the recovery of the 

species at this time. Specifically, we 

determined these areas are not essential 

for the conservation of the species 

because: (1) The original record of 

species occurrence, or current species 

persistence, remains questionable and 

unconfirmed; (2) specific occupied 

pools or their watersheds have been so 

highly modified or degraded that the 

long-term viability of the population is 

unlikely and the functional value of 

enhancing or restoring the existing 

habitat to assist in recovery is minimal; 

(3) they do not possess, or likely will 


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12546 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

not retain (if restored), the necessary 

physical and biological features (soils, 

hydrology, topography) to support and 

maintain a self-sustaining population of 

Riverside fairy shrimp; or (4) the area 

supports an occurrence that does not 

appreciably add to the species viability 

at the unit or subunit level, therefore, 

the area is not essential for the recovery 

of the species. 

We initially proposed Unit 1 (1a and 

1b), Unit 2 (2dA, 2dB, 2e, 2f, 2g, 2h, and 

2i), Unit 3 (3c, 3d, 3e, and 3h), Unit 4 

(4c), and Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, 

and 5h) for designation as revised 

critical habitat under section 3(5)(A)(i) 

of the Act because the areas contain 

physical and biological features 

essential to the conservation of the 

species that may require special 

management considerations or 

protection and we considered the areas 

to be within the geographical range 

occupied by the species at the time of 

listing. Because we lack surveys 

confirming the presence of Riverside 

fairy shrimp in these areas at the time 

of listing, we are now also proposing 

them for designation under section 

3(5)(A)(ii) of the Act. We have 

determined that the areas are essential 

to the conservation of the species as 

presented below (Table 1). Since the 

time of listing we have also confirmed 

the areas are occupied by Riverside fairy 

shrimp. 

TABLE 1—SUBUNIT OCCUPANCY STATUS AND JUSTIFICATIONS FOR DETERMINING SPECIFIC AREAS ESSENTIAL TO AND FOR

THE CONSERVATION OF RIVERSIDE FAIRY SHRIMP

Unit/subunit: name 1 Service status at 

listing 2

Current status 3; year 

of first record 4

ESA section 

3(5)(A)(i) justification 5 ESA section 3(5)(A)(ii) justification 6

Ventura County 

1a: Tierra Rejada Preserve.Presumed occupied ... Occupied; 1998 

(CNNDB, EO 9).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; possesses 

unique soils and habitat type; disjunct population which maintains genetic diversity 

and population stability at species’ northernmost distribution. 

1b: South of Tierra 

Rejada Valley (east 

of Hwy 23).

Presumed occupied ... Presumed occupied; 

no protocol surveys 

have been completed.

Has PCEs 1–3; may 

require management.

Provides appropriate inundation ponding; 

proximity and connectivity to 1a at northern distribution; protects existing vernal 

pool composition; ecological linkage. 

Orange County 

2c: (MCAS) El Toro ... Confirmed occupied ... Occupied; 1998 

(CNDDB, E0 10).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; maintains current geographic, elevation, and ecological 

distribution; maintains current population 

structure; provides for connectivity; large 

continuous block; ecological linkage. 

2dA: Saddleback 

Meadow.

Presumed occupied ... Occupied; 1997 

(HELIX 2009, Report #10537).

Has PCEs 1–3; may 

require management.

2dB: O’Neil Regional 

Park—near Trabuco 

Canyon.

Presumed occupied ... Occupied; 2001 

(CNDDB, EO 17).

Has PCEs 1–3; may 

require management.

Maintains current geographic, elevation, and 

ecological distribution; maintains current 

population structure; provides for 

connectivity. 

2e: O’Neil Regional 

Park—near Canada 

Gobernadora/east 

of Tijeras Creek.

Presumed occupied ... Occupied; 1997 

(CNDDB, EO 4).

Has PCEs 1–3; may 

require management.

Maintains current geographic, elevation, and 

ecological distribution; maintains current 

population structure; provides for 

connectivity. 

2f: Chiquita Ridge ...... Presumed occupied ... Occupied; 1997 

(CNDDB, EO 5).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; maintains current geographic, elevation, and ecological 

distribution; maintains current population 

structure; provides for connectivity. 

2g: Radio Tower Road Presumed occupied ... Occupied; 2001 

(CNDDB, EO 15, 

16).

Has PCEs 1–3; may 

require management.

Maintains current geographic, elevation, and 

ecological distribution; maintains current 

population structure; provides for 

connectivity. 

2h: San Onofre State 

Beach, State Park– 

leased land (near 

Christianitos Creek).

Presumed occupied ... Occupied; 1997 

(CNDDB, EO 6).

Has PCEs 1–3; may 

require management.

Unique soils and wetland type, maintains 

habitat function, genetic diversity and species viability; ecological linkage. 

2i: SCE Viejo Conservation Bank.Presumed occupied ... Occupied; 1998 

(CNDBB, EO 10).

Has PCEs 1–3; may 

require management.

Maintains current geographic, elevation, and 

ecological distribution; maintains current 

population structure; provides for 

connectivity. 

Riverside County 

3c: Australia Pool ....... Presumed occupied ... Occupied; 1998 

(CNDDB, EO 11).

Has PCEs 1–3; may 

require management.

Maintains habitat function, genetic diversity 

and species viability; ecological linkage. 

3d: Scott Road Pool .. Presumed occupied ... Occupied; 2002 

(CNNDB, EO 24).

Has PCEs 1–3; may 

require management.

Maintains current geographic, elevation, and 

ecological distribution; disjunct habitat. 


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TABLE 1—SUBUNIT OCCUPANCY STATUS AND JUSTIFICATIONS FOR DETERMINING SPECIFIC AREAS ESSENTIAL TO AND FOR

THE CONSERVATION OF RIVERSIDE FAIRY SHRIMP—Continued 

Unit/subunit: name 1 Service status at 

listing 2

Current status 3; year 

of first record 4

ESA section 

3(5)(A)(i) justification 5 ESA section 3(5)(A)(ii) justification 6

3e: Schleuniger Pool Presumed occupied ... Occupied; 1998 

(CNDDB, EO 8).

Has PCEs 1–3; may 

require management.

Maintains current geographic, elevation, and 

ecological distribution. 

3f: Skunk Hollow and 

Field Pool.

Confirmed occupied ... Skunk Hollow: Occupied; 1988 (CNDBB, 

EO 3), Field Pool: 

Occupied; 1988 

(Service, GIS ID 9).

Has PCEs 1–3; may 

require management.

3g: Johnson Ranch 

Created Pool.

Created (in 2002) ....... Occupied; 2003 (Service, GIS ID 13).Has PCEs 1–3; may 

require management.

Provides for connectivity among pools; maintains current population structure. 

3h: Santa Rosa Plateau–Mesa de Colorado.Presumed occupied ... Occupied; 2009 

(Selheim and 

Searcy 2010, Report # 11005).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; unique soils 

and habitat type; large continuous blocks 

of occupied habitat; ecological linkage. 

San Diego County 

4c: Poinsettia Lane 

Commuter Train 

Station (JJ 2).

Presumed occupied ... Occupied; 1998 

(CNDDB, EO 7).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; unique soils 

and habitat type; disjunct habitat; provides 

protection for existing vernal pool composition and structure. 

5a: J 33 (Sweetwater 

High School).

Presumed occupied ... Occupied; 2003 (City 

of San Diego, 2004).

Has PCEs 1–3; may 

require management.

Maintains current population structure; genetic diversity. 

5b: J15 (Arnie’s Point) Presumed occupied ... Occupied; 2006 (ERS, 

Report # 8639).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; maintains current population structure; ecological linkage. 

5c: East Otay Mesa ... Presumed occupied ... Occupied; 2000 GIS 

ID 4; 2001 (EDAW 

2001) (CNDDB, EO 

25).

Has PCEs 1–3; may 

require management.

Unique soils and habitat type; maintains current geographic, elevation, and ecological 

distribution; disjunct habitat; protects existing vernal pool composition. 

5d: J29–31 ................. Confirmed occupied ... Occupied; 1986 

(Bauder 1986); 

(Simovich and 

Fugate 1992) 

(CNDDB, EO 2).

Has PCEs 1–3; may 

require management.

5e: J2 N, J4, J5 ......... Presumed occupied ... Occupied; 2003 (City 

of San Diego, 2004).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; provides for 

connectivity among pools; maintains current population structure. 

5f: J2 S and J2 W ...... Presumed occupied ... Occupied; 2001 

(CNDDB, EO 18).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; provides for 

connectivity among pools; maintains current population structure. 

5g: J14 ....................... Presumed occupied ... Occupied; 2002 

(HELIX 2002, Report # 2386).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; provides for 

connectivity among pools; maintains current population structure. 

5h: J11, J12, J16–19 Presumed occupied ... Occupied; 2002 (City 

of San Diego, 2004).

Has PCEs 1–3; may 

require management.

Necessary to stabilize in RP; provides for 

connectivity among pools; maintains current population structure. 

1 Unit/Subunit name as it appears in Table 1 of proposed revised rule (76 FR 31698–31699). For additional information, see the Recovery Plan 

(RP) for Vernal Pools of Southern California (Service 1998, 113+ pp.). 2Service status: ‘‘Confirmed occupied’’ means that there is a record of occupancy at or before the time of listing; ‘‘Presumed occupied’’ means 

there is no documentation of occupancy for the specific areas (subunits) prior to 1993, but the areas are presumed to have been occupied at the 

time of listing based on best available science and positive survey results in the possession of the Service. ‘‘Created’’ refers to a vernal pool enhancement or restoration after the time of listing. 3 4 Current status: ‘‘Occupied’’ indicates a positive survey result after the time of listing documenting the species occurrence and ‘‘presumed occupied’’ indicates no protocol surveys have been completed. The listed year indicates the year of first record followed by source. EO (element 

occurrence) is the number assigned to that occurrence, as defined and described according to the California Natural Diversity Data Base 

(CNDDB 2011). GIS ID is the number of the occurrence information for multiple species within jurisdiction of the Carlsbad Fish and Wildlife Office (Service 2011). City of San Diego (2004) is from the ‘‘Vernal pool inventory 2002–2003’’ or Contractor, and Report # is the number from a 

section 10(A)(1)(a) survey report, available in Service files. 5 Reason/s determined essential to the conservation of the species as defined according to criteria set forth in the proposed revised critical 

habitat rule, this document, and in section 3(5)(A)(i) of the Act and based on current information of what we consider the occupied geographic 

range of the species at the time of listing. 6 Reason/s determined essential for the conservation of the species as defined according to criteria set forth in the proposed revised critical 

habitat rule, this document, and in section 3(5)(A)(ii) of the Act. RP = Recovery Plan (see Service 1998, Appendix F, pp. F–1 to F–5). An empty 

box in the ‘‘ESA section 3(5)(A)(ii) justification’’ column indicates this subunit not proposed under section 3(5)(A)(ii) of the Act, and was confirmed 

occupied at the time of listing (see footnote 3). 


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The proposed revised rule explains in 

detail the bases for our determination 

that Unit 1 (1a and 1b), Unit 2 (2dA, 

2dB, 2e, 2f, 2g, 2h, and 2i), Unit 3 (3c, 

3d, 3e, and 3h), Unit 4 (4c), and Unit 5 

(5a, 5b, 5c, 5e, 5f, 5g, and 5h) are 

essential to the conservation of 

Riverside fairy shrimp (76 FR 31686). 

Although the discussion of each subunit 

in the proposed revised rule occurs in 

the context of section 3(5)(A)(i) of the 

Act, the reasons identified in the 

proposed revised rule fully support 

designation of each of the subunits 

under section 3(5)(A)(ii) of the Act. 

As stated in the proposed revised 

critical habitat rule (76 FR 31690; June 

1, 2011), pursuant to section 3(5)(A)(i) 

of the Act we consider Unit 1 (1a and 

1b) Unit 2 (2c, 2dA, 2dB, 2e, 2f, 2g, 2h, 

and 2i), Unit 3 (3d, 3e, and 3h), Unit 4 

(4c), and Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, 

and 5h) to be specific areas within the 

geographical area occupied by Riverside 

fairy shrimp at the time it was listed 

(although not all subunits were 

surveyed prior to listing) on which are 

found those physical or biological 

features essential to the conservation of 

the species which may require special 

management considerations or 

protection, and our rationale is 

explained below. We also have 

determined that these specific areas are 

essential for the conservation of 

Riverside fairy shrimp pursuant to 

section 3(5)(A)(ii) of the Act. 

We propose 21 subunits (Subunits 1a, 

1b; 2dA, 2dB, 2e, 2f, 2g, 2h, and 2i; 

Subunits 3c, 3d, 3e, and 3h; Subunit 4c; 

Subunits 5a, 5b, 5c, 5e, 5f, 5g, and 5h) 

under both section 3(5)(A)(i) and section 

3(5)(A)(ii) of the Act to make clear that 

we consider these specific areas to be 

essential for the conservation of 

Riverside fairy shrimp notwithstanding 

the absence of surveys confirming the 

presence of Riverside fairy shrimp at the 

time of listing. Although evidence 

suggests that these subunits were 

occupied by the Riverside fairy shrimp 

at the time the species was listed, due 

to a lack of documentation of 

occupancy, such as survey results prior 

to 1993, for the purposes of this 

rulemaking, we determine that these 

subunits also meet the definition of 

critical habitat in section 3(5)(A)(ii) of 

the Act. The following paragraphs 

explain our determination, which 

applies to the following units and 

subunits—Unit 1 (1a, 1b), Unit 2 (2dA, 

2dB, 2e, 2f, 2g, 2h, and 2i), Unit 3 (3c, 

3d, 3e, and 3h), Unit 4 (4c), and Unit 5 

(5a, 5b, 5c, 5e, 5f, 5g, and 5h). 

The Riverside fairy shrimp is a 

narrow endemic species that is 

imperiled due to historical and ongoing 

land use practices that have resulted in 

significant loss of habitat in southern 

California. The Recovery Plan states that 

conservation of most of the remaining 

occupied occurrences of Riverside fairy 

shrimp, as well as restorable habitat, is 

essential to the preservation of the 

remaining diversity and the prevention 

of further losses (Service 1998, p. 46) 

and is essential if Riverside fairy shrimp 

is to recover (Service 1998, pp. 62–64). 

Limiting the designation to subunits 

that were known to be occupied at the 

time of listing (positive pre-listing 

survey results) would result in the 

exclusion of most of the areas currently 

known to support viable Riverside fairy 

shrimp populations and would result in 

a designation that is inadequate to 

provide for the conservation of the 

species. Therefore, we are proposing to 

designate Unit 1 (1a and 1b), Unit 2 

(2dA, 2dB, 2e, 2f, 2g, 2h, and 2i), Unit 

3 (3c, 3d, 3e, and 3h), Unit 4 (4c), and 

Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, and 5h) 

under section 3(5)(a)(ii) of the Act as 

well as under section 3(5)(a)(i) of the 

Act because they consist of areas 

essential for the conservation of the 

species, are known to support Riverside 

fairy shrimp (with the exception of 

Subunit 1b), and contain physical and 

biological features essential to the 

conservation of the species. This 

proposed designation is based on the 

best scientific information available to 

us at this time. 

Units 1–5, which include Ventura 

County Unit (Transverse Range; Unit 1), 

Los Angeles Basin–Orange County Unit 

(Unit 2), Riverside Inland Valleys Unit 

(Unit 3), San Diego North and Central 

Coastal Mesas Unit (Unit 4), and San 

Diego Southern Coastal Mesas Unit 

(Unit 5) comprise specific areas 

(subunits) within the geographical area 

occupied by the species at the time it 

was listed based on our current 

understanding (as previously discussed 

above), that we have also determined 

are essential for the conservation of 

Riverside fairy shrimp. 

These units and subunits are 

necessary to stabilize existing 

populations of Riverside fairy shrimp 

(See Appendix F in the Recovery Plan 

for Vernal Pools of Southern California 

(hereafter, ‘‘Recovery Plan’’) Service 

1998, pp. F–1 to F–5) and are needed to 

meet recovery goals identified in the 

Recovery Plan. [The Recovery Plan 

identifies securing and conserving most 

of the remaining Riverside fairy shrimp 

occurrences from further loss and 

degradation in a configuration that 

maintains habitat function and species 

viability (Service 1998, p. 62) as 

necessary for recovery of the species]. 

The Recovery Plan specifically 

identifies securing from loss and 

degradation existing vernal pools and 

their associated watersheds within the 

Transverse and Los Angeles BasinOrange Management Areas as a recovery 

criterion (Service 1998, p. 62). The 

Recovery Plan also identifies remaining 

vernal pools and their watersheds 

contained within the complexes 

identified in Appendix F, secured in a 

configuration that maintains habitat 

function and species viability, as 

needed for recovery of Riverside fairy 

shrimp (Service 1998, p. 63). 

Post-listing surveys in each of the 

units and subunits have confirmed the 

presence of Riverside fairy shrimp. As 

indicated in the Recovery Plan for 

Vernal Pools of Southern California, a 

key conservation goal for Riverside fairy 

shrimp is protection of most of the 

remaining Riverside fairy shrimp 

occurrences (securing from further loss 

and degradation) in a configuration that 

maintains habitat function and species 

viability (Service 1998, p. 62). Each of 

the areas (subunits) contain essential 

habitat that supports or can support 

viable occurrences of this extremely 

endangered species and is necessary for 

its eventual recovery. 

At the time of listing, Riverside fairy 

shrimp were known to occupy nine 

vernal pool complexes within Orange, 

Riverside, and San Diego Counties, and 

Baja California, Mexico, including four 

vernal pools in Riverside County, one 

population in Orange County, two areas 

in San Diego County, and two locations 

in Baja California, Mexico (58 FR 

41384). All observed occurrences at that 

time were within 30 mi (48 km) of the 

coast. Most of the additional complexes 

identified since the time of listing 

(post-1993) fall within the extant range 

of the Riverside fairy shrimp known at 

the time of listing. The necessary 

conditions for vernal pool presence— 

Mediterranean climate, topographic 

depressions, and soils with poor 

drainage—were all present within the 

species’ known range, and these 

conditions strongly support the 

conclusion that additional occupied 

vernal pools and pool complexes 

containing Riverside fairy shrimp 

existed within the species’ known range 

that simply had not been surveyed for 

the species at the time of listing. 

The species was first collected in 

1979, and recognized as a new species 

in 1985. The species description was 

published in 1990 (Eng et al. 1990, pp. 

258–259), and Riverside fairy shrimp 

was federally listed as endangered in 

1993 (58 FR 41384). Listing typically 

results in greater efforts to conduct 

surveys which often reveal a greater 

number of occurrences than were 

initially known. Given the relatively 


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short time period from when Riverside 

fairy shrimp was identified and 

published as a new species (1990) to 

when original or new survey efforts 

were completed (generally in the late 

1980s and early 1990s, and again in 

1997–early 2000s) and given the 

species’ habitat, ecology, and lifehistory requirements (see following 

paragraphs below), the best scientific 

evidence suggests Riverside fairy 

shrimp were present and persisted in 

suitable seasonal depression wetlands 

with appropriate soils and 

microtopography within the 

geographical area known to be occupied 

by the species at the time it was listed. 

This conclusion is substantiated by the 

high number of additional occurrences 

identified since the time of listing 

(1993) from surveys conducted in 

locations that were not surveyed before 

1993. 

Riverside fairy shrimp are relatively 

sedentary and possess limited dispersal 

capabilities (Davies et al. 1997, p. 157). 

Dispersal is assumed to be through 

passive means including movement of 

diapausing cysts by rain and 

overponding of water (Zedler 2003, p. 

602) and wind (Brendonck and Riddoch 

1999, p. 67; Vanschoenwinkel 2008, 

pp.130–133), or actively through 

animal-mediated transport (Keeler-Wolf 

et al. 1998, p. 11; Bohonak and Jenkins 

2003, p. 784; Green and Figuerola 2005, 

p. 150); however, evidence of passive 

dispersal remains limited and the 

relative role of vertebrate vectors 

requires additional studies (see Bohonak 

and Jenkins 2003, p. 786). Riverside 

fairy shrimp have a relatively long 

maturation time (Simovich 1998, p. 

111), which limits the species to deeper 

pools with longer ponding durations 

(Hathaway and Simovich 1996, p. 675). 

Riverside fairy shrimp exhibit a 

diversified bet-hedging reproductive 

strategy (Simovich and Hathaway 1997, 

p. 42) in which the species partitions 

reproductive effort over more than one 

hydration event and utilizes diapause of 

eggs (production of cyst bank) and the 

fractional hatching of the egg (cyst) bank 

(Simovich and Hathaway 1997, p. 42; 

Philippi et al. 2001, p. 392; Ripley et al. 

2004, p. 222). 

Riverside fairy shrimp are restricted 

to certain pool types (deep, longponding along coastal mesas or in valley 

depressions) with certain underlying 

soils (Bauder and McMillian, p. 57), 

which have variable but specific water 

chemistry (Gonzalez et al. 1996, p. 317) 

and temperature regimes (Hathaway and 

Simovich 1996, p. 672). Suitable pools 

are geographically fixed and limited in 

number, and influenced by position, 

distance from coast, and elevation 

(Bauder and McMillian 1998, pp. 62 and 

64). Typically, mounds of soil (mima) 

topography and impervious soils with a 

subsurface clay or hardpan layer 

provide the necessary ponding 

opportunities during winter and spring 

(Zedler 1987, pp. 13 and 17). 

Underlying soil types and pool size 

influence the wetland habitats’ 

physiochemical parameters, associated 

vegetation, and faunal communities, as 

do regional climate (rainfall; 

temperature; evaporation rate) and 

elevation differences (Keeler-Wolf et al. 

1998, p. 9). Vernal pools are 

discontinuously distributed in several 

regions in southern California, and 

Riverside fairy shrimp may be well 

adapted to the ephemeral nature of its 

habitat and to the localized climate, 

topography, and soil conditions (Bauder 

and McMillian 1998, p. 56; Keeley and 

Zedler 1998, p. 6). These statements are 

supported by careful review of the 

species’ habitat, ecology, and lifehistory requirements. Based on these 

habitat and life-history traits, we 

conclude that the additional 

occurrences detected since listing both 

within and to the north of the species 

known geographical range at the time of 

listing were likely present prior to 

listing but occurred in areas that had not 

been surveyed for Riverside fairy 

shrimp prior to listing. 

If the proposed revised rule is made 

final, section 7 of the Act will prohibit 

destruction or adverse modification of 

critical habitat by any activity funded, 

authorized, or carried out by any 

Federal agency. Federal agencies 

proposing actions affecting critical 

habitat must consult with us on the 

effects of their proposed actions, under 

section 7(a)(2) of the Act. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

Section 4(b)(2) of the Act requires that 

we designate or revise critical habitat 

based upon the best scientific data 

available, after taking into consideration 

the economic impact, impact on 

national security, or any other relevant 

impact of specifying any particular area 

as critical habitat. We may exclude an 

area from critical habitat if we 

determine that the benefits of excluding 

the area outweigh the benefits of 

including the area as critical habitat, 

provided such exclusion will not result 

in the extinction of the species. 

When considering the benefits of 

inclusion of a particular area, we 

consider the additional regulatory 

benefits that area would receive from 

the protection from adverse 

modification or destruction as a result of 

actions with a Federal nexus (activities 

conducted, funded, permitted, or 

authorized by Federal agencies), the 

educational benefits of mapping areas 

containing essential features that aid in 

the recovery of the listed species, and 

any benefits that may result from 

designation due to State or Federal laws 

that may apply to critical habitat. 

When considering the benefits of 

excluding a particular area, we consider, 

among other things, whether exclusion 

of a specific area is likely to result in 

conservation; the continuation, 

strengthening, or encouragement of 

partnerships; or implementation of a 

management plan. In the case of 

Riverside fairy shrimp, the benefits of 

critical habitat include public awareness 

of the presence of Riverside fairy shrimp 

and the importance of habitat 

protection, and, where a Federal nexus 

exists, increased habitat protection for 

Riverside fairy shrimp due to protection 

from adverse modification or 

destruction of critical habitat. In 

practice, situations with a Federal nexus 

exist primarily on Federal lands or for 

activities conducted, funded, permitted, 

or authorized by Federal agencies. 

The final decision on whether to 

exclude any areas will be based on the 

best scientific data available at the time 

of the final designation, including 

information obtained during the 

comment period and information about 

the economic impact of designation. 

Accordingly, we have prepared a draft 

economic analysis concerning the 

proposed revised critical habitat 

designation (DEA), which is available 

for review and comment (see 

ADDRESSES). 

Draft Economic Analysis 

The purpose of the DEA is to identify 

and analyze the potential economic 

impacts associated with the proposed 

revised critical habitat designation for 

Riverside fairy shrimp. The DEA 

describes the economic impacts of all 

known potential conservation efforts for 

Riverside fairy shrimp; some of these 

costs will likely be incurred regardless 

of whether we designate revised critical 

habitat. 

The DEA separates conservation 

efforts into two distinct categories 

according to ‘‘without critical habitat’’ 

and ‘‘with critical habitat’’ scenarios. 

The ‘‘without critical habitat’’ scenario 

represents the baseline for the analysis, 

considering protections that are already 

in place for the species (e.g., under the 

Federal listing and other Federal, State, 

and local regulations). The ‘‘with 

critical habitat’’ scenario describes the 

incremental impacts specifically due to 

designation of revised critical habitat for 

the species. In other words, the 


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incremental conservation efforts and 

associated economic impacts would not 

occur but for the designation. 

Conservation efforts implemented under 

the baseline (without critical habitat) 

scenario are described qualitatively 

within the DEA, but economic impacts 

associated with these efforts are not 

quantified. Economic impacts are only 

quantified for conservation efforts 

implemented specifically due to the 

designation of critical habitat (i.e., 

incremental impacts). For a further 

description of the background and 

methodology of the analysis, including 

relevant court case precedent, see 

Chapter 2, ‘‘Framework for the 

Analysis’’ of the DEA (Industrial 

Economics, Inc. (IEC) 2011, pp. 2–1 to 

2–24). The DEA also discusses the 

potential benefits associated with the 

designation of critical habitat, but does 

not monetize these benefits. 

The 2005 Economic Analysis 

considered both pre-designation (from 

the listing of the species in 1993 

through 2004) and post-designation 

(2005 through 2025) impacts to 

activities occurring within the study 

area (which is defined as the area 

proposed for critical habitat 

designation), referred to as a ‘‘coextensive analysis.’’ Since that time, 

however, courts in other cases have held 

that an incremental analysis of impacts 

stemming solely from the critical habitat 

rulemaking is proper, and as such, is the 

current DEA framework approach used 

by the Service. 

The DEA provides estimated costs of 

the probable economic impacts of the 

proposed critical habitat designation for 

the Riverside fairy shrimp over a 24- 

year time horizon (beginning in 2012 

and ending in 2035), which was 

determined to be the appropriate period 

for analysis because limited planning 

information is available for most 

activities to forecast activity levels for 

projects beyond a 24-year timeframe (for 

example, regional development 

projections end in 2035). The DEA 

identifies potential incremental costs as 

a result of the proposed revised critical 

habitat designation; these are those costs 

attributed to critical habitat over and 

above those baseline costs attributed to 

listing. The DEA quantifies potential 

economic impacts of Riverside fairy 

shrimp conservation efforts associated 

with the following categories of activity: 

(1) Agricultural, commercial, and 

residential development; (2) 

transportation; and (3) livestock grazing 

and other activities (IEC 2011, p. ES–4 

and in Exhibit ES–3). The DEA presents 

a distribution of future impacts to 

development activities using a ‘‘lowend’’ scenario (10th percentile 

development costs with a low-end cost 

of transportation) with a ‘‘high-end’’ 

scenario (90th percentile development 

costs with the high-end costs from 

transportation) (IEC 2011, p. ES–5). Both 

totals include the incremental costs 

attributable to habitat management 

activities. 

In total, the potential incremental 

impacts of proposed revised critical 

habitat designation for Riverside fairy 

shrimp are estimated to be $1.75 million 

to $2.87 million ($166,000 to $273,000 

on an annualized basis), assuming a 7 

percent discount rate (IEC 2011, p. ES– 

5). Approximately 90 percent of these 

incremental costs result from time 

delays to development activities; the 

remaining portion results from 

administrative costs of considering 

adverse modification in section 7 

consultations and conducting 

environmental assessments to comply 

with the California Environmental 

Quality Act (CEQA). Baseline impacts 

associated with consideration of 

Riverside fairy shrimp and its habitat 

were not quantified. 

For development activities within the 

study area from year 2012 to year 2035, 

we estimate the 10th to 90th percentile 

of incremental impacts (including direct 

and indirect costs) for forecasted 

development activities to be $1.71 

million to $2.77 million, assuming a 7 

percent discount rate, which is $163,000 

to $265,000 in annualized impacts. 

These cost estimates include the direct 

costs of section 7 consultations, as well 

as the indirect costs of project time 

delays and CEQA assessments. Time 

delays account for approximately 90 

percent of the total impacts. Given 

spatial and regulatory uncertainties 

within the proposed revised critical 

habitat area, the analysis presents 

incremental impacts to development 

activities as a distribution of possible 

outcomes (see ‘‘Chapter 4– Potential 

Economic Impacts to Development 

Activities’’; IEC 2011, pp. 4–1 to 4–34). 

Total estimated incremental impacts 

to transportation activities are limited to 

the administrative costs of consultation. 

These consultations may result in 

project modifications; however, the 

timing and nature of any such 

modifications remain uncertain and, 

therefore, are not quantified in the 

analysis. Generally, impacts to 

transportation activities are limited due 

to the low density of roads and the few 

planned transportation projects within 

areas of proposed critical habitat. 

Incremental impacts to transportation 

activities are estimated to be $9,560 

(low-end scenario) to $37,500 (high-end 

scenario) ($779 low end to $3,050 highend, when annualized), at a 7 percent 

discount rate (IEC 2011, p. 5–3 and in 

Exhibit 5–1). 

Estimated incremental impacts to 

habitat conservation activities (years 

2012–2035) are estimated to be $46,200 

($3,770 annualized), at a 7 percent 

discount rate (IEC 2011, pp. 5–4 and in 

Exhibit 5–2). Impacts are attributed to 

future incremental administrative costs 

of section 7 consultations related to 

habitat management activities. 

Incremental costs are assumed to be 

$405 per technical assistance and 

$2,380 per informal consultation. 

Because these projects generally benefit 

critical habitat, incremental project 

modifications are not anticipated. 

Incremental costs are generally 

limited to administrative efforts of new 

and reinitiated consultations to consider 

adverse modification of critical habitat 

for Riverside fairy shrimp, 

administrative costs of complying with 

the CEQA, and time delays resulting 

from both processes. The proposed 

critical habitat area is unlikely to 

generate economic impacts beyond 

administrative costs of section 7 

consultation for several reasons: 

(1) Forty-one percent of the proposed 

revised critical habitat designation 

already receives protection through the 

various regional Habitat Conservation 

Plans (HCPs) and areas proposed as 

revised critical habitat receive a 

significant level of baseline protection 

through various Federal and State 

regulations, in addition to avoidance, 

minimization and mitigation measures 

afforded by existing HCPs. 

(2) All subunits except for one are 

currently known to be occupied by the 

species, and thus these areas will 

require consultation regardless of the 

designation due to the species being 

listed. In subunits without existing 

baseline protection (Subunit 1b), 

surveys are frequently undertaken to 

comply with the CEQA because all 

subunits contain vernal pools or 

seasonally ponded habitats. 

(3) Additionally, we recognize project 

modifications necessary to avoid a 

determination of adverse modification 

of critical habitat under section 7 of the 

Act may be different from the measures 

necessary to avoid a jeopardy 

determination for the species. However, 

at this point in time, we do not know 

what these specific project 

modifications are likely to be. We are 

seeking public comments to provide 

information on what the additional 

project modifications associated with an 

adverse modification analysis might 

represent. 

(4) Little development activity is 

forecasted within the proposed revised 

critical habitat units. Twenty-four of the 


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25 subunits contain some privately 

owned land; however, a major portion 

of proposed revised critical habitat falls 

within existing HCP habitat preserves, 

or other conservation areas. 

Furthermore, many of the privately 

owned acres are already set aside for 

mitigation. 

We also do not anticipate designation 

of revised critical habitat to result in any 

appreciable incremental economic 

benefits. Any economic benefits related 

to conservation efforts would flow from 

the listing of the species, rather than the 

designation of critical habitat, and 

would fall within the economic 

baseline. The analysis also addresses the 

distribution of impacts associated with 

the designation, including an 

assessment of any local or regional 

impacts of habitat conservation and the 

potential effects of conservation efforts 

on small entities and the energy 

industry. 

As we stated earlier, we are soliciting 

data and comments from the public on 

the DEA, as well as all aspects of the 

proposed revised rule and our amended 

required determinations. We may revise 

the proposal or supporting documents 

to incorporate or address information 

we receive during the public comment 

periods. In particular, we may exclude 

an area from revised critical habitat if 

we determine that the benefits of 

excluding the area outweigh the benefits 

of including the area, provided that 

exclusion will not result in the 

extinction of this species. 

Required Determinations—Amended 

In our June 1, 2011, proposed revised 

rule (76 FR 33880), we indicated that we 

would defer our determination of 

compliance with several statutes and 

executive orders until the information 

concerning potential economic impacts 

of the designation and potential effects 

on landowners and stakeholders became 

available in the DEA. We have now 

made use of the DEA to make these 

determinations. In this document, we 

affirm the information in our proposed 

rule concerning Executive Order (E.O.) 

12866 (Regulatory Planning and 

Review), E.O. 12630 (Takings), E.O. 

13132 (Federalism), E.O. 12988 (Civil 

Justice Reform), E.O. 13211 (Energy, 

Supply, Distribution, and Use), the 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.), the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), the National Environmental 

Policy Act (42 U.S.C. 4321 et seq.), and 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951). However, 

based on the DEA data, we are 

amending our required determination 

concerning the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Based on our DEA of the proposed 

revised designation, we provide our 

analysis for determining whether the 

proposed revised designation would 

result in a significant economic impact 

on a substantial number of small 

entities. Based on comments we receive, 

we may revise this determination as part 

of a final rulemaking. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the proposed 

designation of critical habitat for 

Riverside fairy shrimp would affect a 

substantial number of small entities, we 

considered the number of small entities 

affected within particular types of 

economic activities, such as residential 

and commercial development, 

transportation, and other human 

activities, which include habitat 

management and livestock grazing. In 

order to determine whether it is 

appropriate for our agency to certify that 

this proposed revised rule would not 

have a significant economic impact on 

a substantial number of small entities, 

we considered each industry or category 

individually (for example, ‘‘small 

business,’’ ‘‘small governmental 

jurisdiction,’’ and ‘‘small organization’’). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the RFA does not explicitly 

define ‘‘substantial number’’ or 

‘‘significant economic impact.’’ 

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In estimating the numbers of 

small entities potentially affected, we 

also considered whether their activities 

have any Federal involvement. Revised 

critical habitat designation will not 

affect activities that do not have any 

Federal involvement; designation of 

revised critical habitat only affects 

activities conducted, funded, permitted, 

or authorized by Federal agencies. In 

areas where the species is present, 

Federal agencies already are required to 

consult with us under section 7 of the 

Act on activities they fund, permit, or 

implement that may affect the species. 

If we finalize this proposed revised 

critical habitat designation, 

consultations to avoid the destruction or 

adverse modification of critical habitat 

would be incorporated into the existing 

consultation process. 

In the DEA, we evaluated the 

potential economic effects on small 

entities resulting from implementation 

of conservation efforts related to the 

proposed critical habitat for Riverside 

fairy shrimp. The analysis is based on 

the estimated impacts associated with 

the proposed rulemaking as described in 

Chapters 4, 5, and Appendix A of the 

DEA, and evaluates the potential for 

economic impacts related to activity 

categories including residential 

development, transportation, and other 

human activities, including habitat 

management, livestock grazing and 


srobinson on DSK4SPTVN1PROD with PROPOSALS
12552 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

water management, as well as impacts 

to the energy industry (IEC 2011, pp. 4– 

1 to 6–6; pp. A–1 to A–7). 

As described in Chapters 4 and 5 of 

the DEA, estimated incremental impacts 

consist primarily of administrative costs 

and time delays associated with section 

7 consultation and CEQA review. The 

Service and the action agency are the 

only entities with direct compliance 

costs associated with this proposed 

critical habitat designation, although 

small entities may participate in section 

7 consultation as a third party. It is, 

therefore, possible that the small entities 

may spend additional time considering 

critical habitat during section 7 

consultation for the Riverside fairy 

shrimp. The DEA indicates that the 

incremental impacts potentially 

incurred by small entities are limited to 

development activities. 

In the DEA, to understand the 

potential impacts on small entities 

attributable to development activities, 

we conservatively assumed that all of 

the private owners of developable lands 

affected by proposed revised critical 

habitat designation are developers. We 

estimated that a total of 34.2 

development projects may be affected 

by the proposed revised critical habitat 

designation, or 1.42 projects per year. 

Costs per project range from $5,000 

where incremental costs are limited to 

the additional cost of considering 

adverse modification during a section 7 

consultation, to $1.07 million where 

additional effort to comply with CEQA 

may be required and time delays occur 

in areas with the highest land values. 

Because we are unable to identify the 

specific entities affected, the impact 

relative to those entities’ annual 

revenues or profits is unknown. 

Assuming that the entities are small 

land subdividers with annual revenues 

less than $7 million, the high-end 

impacts represent approximately 15.2 

percent of annual revenues. Of the total 

number of entities engaged in land 

subdivision and residential, 

commercial, industrial and institutional 

construction, 97 percent are small 

entities. Provided the assumptions that 

development activity occurs at a 

constant pace throughout the timeframe 

of the analysis, and each project is 

undertaken by a separate entity, we 

estimated that approximately two to 

three developers may be affected by the 

proposed revised critical habitat 

designation each year. Conservatively 

assuming that costs are borne by current 

landowners, and all landowners are 

land subdividers or construction firms, 

less than 3 percent or 1 percent, 

respectively, of all small entities in 

these sectors would be affected when 

the final rule is published (IEC 2011, p. 

A–5). 

Our analysis constitutes an evaluation 

of not only potentially directly affected 

parties, but those also potentially 

indirectly affected. Under the RFA and 

following recent case law, we are only 

required to evaluate the direct effects of 

a regulation to determine compliance. 

Since the regulatory effect of critical 

habitat is through section 7 of the Act, 

which applies only to Federal agencies, 

we have determined that only Federal 

agencies are directly affected by this 

rulemaking. Other entities, such as 

small businesses, are only indirectly 

affected. However, to better understand 

the potential effects of a designation of 

critical habitat, we frequently evaluate 

the potential impact to those entities 

that may be indirectly affected, as was 

the case for this rulemaking. In doing so, 

we focus on the specific areas being 

designated as critical habitat and 

compare the number of small business 

entities potentially affected in that area 

with other small business entities in the 

regional area, versus comparing the 

entities in the area of designation with 

entities nationally—which is more 

commonly done. This analysis results in 

an estimation of a higher number of 

small businesses potentially affected. In 

this rulemaking, we calculate that less 

than 3 percent or 1 percent (assuming 

that all landowners are land subdividers 

or construction firms), respectively, of 

all small entities in the area would be 

affected when the final rule is 

published. If we were to calculate that 

value based on the proportion 

nationally, then our estimate would be 

significantly lower than 1 percent. 

Following our evaluation of potential 

effects to small business entities from 

this rulemaking, we do not believe that 

the small businesses in the affected 

sector represent a substantial number. 

The DEA also concludes that none of 

the government entities with which the 

Service might consult on Riverside fairy 

shrimp for transportation or habitat 

management activities meet the 

definitions of small as defined by the 

Small Business Act (SBA) (IEC 2011, p. 

A–6); therefore, impacts to small 

government entities due to 

transportation and habitat management 

activities are not anticipated. A review 

of the consultation history for Riverside 

fairy shrimp suggests future section 7 

consultations on livestock grazing (for 

example, ranching operations) and 

water management are unlikely, and as 

a result are not anticipated to be affected 

by the proposed rule (IEC 2011, pp. A– 

6 to A–7). 

In summary, we have considered 

whether the proposed revised 

designation would result in a significant 

economic impact on a substantial 

number of small entities and the energy 

industry. Information for this analysis 

was gathered from the Small Business 

Administration, stakeholders, and from 

Service files. We determine that less 

than three percent of land subdividers 

or one percent of construction firms 

engaged in development activity within 

the area proposed for designation would 

be affected if the final rule is published 

as proposed (IEC 2011, p. A–5). For the 

above reasons and based on currently 

available information, we certify that, if 

promulgated, the proposed revised 

critical habitat would not have a 

significant economic impact on a 

substantial number of small business 

entities. Therefore, an initial regulatory 

flexibility analysis is not required. 

References Cited 

A complete list of all references we 

cited in the proposed rule and in this 

document is available on the Internet at 

http://www.regulations.gov or by 

contacting the Carlsbad Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this notice are 

the staff from the Carlsbad Fish and 

Wildlife Office, Pacific Southwest 

Region, U.S. Fish and Wildlife Service 

(see FOR FURTHER INFORMATION CONTACT). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: February 22, 2012. 

Rachel Jacobson, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2012–4716 Filed 2–29–12; 8:45 am] 

BILLING CODE 4310–55–P 


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